FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

Washington, DC 20001

June 21, 2012

                                                                         DECISION ON REMAND AND ORDER OF TEMPORARY REINSTATEMENT

Appearances:              Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for the Secretary of Labor;

                                    Tony Oppegard, Esq., Lexington, Kentucky, for Reuben Shemwell;

Adam K. Spease, Esq., Miller Wells, PLLC, Louisville, Kentucky,

                                    for Armstrong Coal Company, Inc., and Armstrong Fabricators, Inc.;

Daniel Z. Zaluski, Esq., Madisonville, Kentucky, for Armstrong Coal Company, Inc.

Before: Judge Feldman

            This proceeding seeking the temporary reinstatement of Reuben Shemwell has been brought pursuant to 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), “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 noted that the parameters of a temporary reinstatement hearing are narrow, being limited to a determination with respect to whether a miner’s discrimination complaint has been frivolously brought. See Sec’y of Labor o/b/o Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 738 (11th Cir. 1990).

            I. Procedural History

            For the purposes of this proceeding, Shemwell’s relevant employment period as a welder was from April 19, 2010, until his termination on September 14, 2011. Shemwell’s welding duties concerned maintaining and repairing draglines at Armstrong Coal Company, Inc.’s (“Armstrong Coal Company’s” or “Armstrong Coal”) Midway and Equality surface mines. Tr. 218-19. The Midway mine is located in Ohio County, Kentucky. Tr. 119-20, 218-19. The Equality mine, located in Muhlenberg County, Kentucky, is approximately ten miles from the Midway mine. Tr. 119-20.

            In addition to repairing draglines, Shemwell was assigned to work at the Armstrong Fabricators, Inc. (“Armstrong Fabricators”) shop also located in Muhlenberg County. The shop is situated off mine property, adjacent to Armstrong Coal Company’s Parkway preparation plant (Mine ID: 15-19356). The preparation plant is co-located with Armstrong Coal Company’s Parkway underground coal mine. Tr. 218-19. Armstrong Coal Company’s mobile equipment was maintained at the Armstrong Fabricators shop. Tr. 116-17, 250.

            Armstrong Coal Company, Inc. and Armstrong Fabricators, Inc. are distinct corporate entities incorporated in the state of Delaware. Resp. Opp. to Sec’y. Sum. Dec. Mot., Exs. A, B. Although they are distinct business entities, Armstrong Coal Company and Armstrong Fabricators are affiliated companies that are both related to Armstrong Energy, Inc. Tr. 120-21.

            The Secretary alleges that Shemwell’s dismissal was motivated by his April 2011 complaints concerning the need for improved respirator protection from fumes that were generated during the welding process. Following Shemwell’s complaint, upgraded respirators were ordered by Armstrong Coal in August 2011 for distribution to welding personnel. The Secretary’s application initially sought an order reinstating Shemwell to a position at Armstrong Coal Company through a motion for summary decision filed on March 21, 2012.

            Armstrong Coal opposed Shemwell’s reinstatement. Armstrong Coal argued that although Shemwell had worked as a welder at its surface mine facilities, Shemwell was employed by Armstrong Fabricators. Prior to Armstrong Fabricators’ inclusion as a party, Armstrong Coal Company contended that Armstrong Fabricators did not have the ability to reinstate Shemwell because it had ceased operations at its shop. Although Armstrong Coal asserted it was not a responsible party, it nevertheless asserted that Shemwell was discharged for excessive personal cell phone use during working hours.

            In response to Armstrong Coal’s opposition, on April 2, 2012, the Secretary filed a motion to amend her initial application for temporary reinstatement to add Armstrong Fabricators as a party. On April 20, 2012, I issued a decision that granted both the Secretary’s amended application for temporary reinstatement, and the Secretary’s motion for summary decision that sought the reinstatement of Shemwell. 33 FMSHRC __ (Apr. 2012) (ALJ). Armstrong Coal and Armstrong Fabricators filed a joint petition for review of the April 20, 2012, decision.

            The Commission remanded this matter on May 10, 2012. 33 FMSHRC __, slip op.

(May 2012). The Commission did not disturb the grant of the Secretary’s motion to amend the application for temporary reinstatement to include Armstrong Fabricators. Id. at 5, fn. 4. However, the Commission accepted review, vacated the grant of the Secretary’s motion for summary decision, and remanded this matter for further proceedings. Id. at 6. In addition to receiving other evidence relevant to a temporary reinstatement proceeding, the Commission specifically directed that I determine whether there was a layoff at Armstrong Fabricators that would toll its obligation to reinstate Shemwell. Id. at 5. Because the vacated April 20, 2012, decision ordered Shemwell’s reinstatement no later than April 25, 2012, the Commission’s remand directed that the pay and benefits associated with any reinstatement should be retroactive to April 25, 2012. Id.

            A hearing was conducted in Owensboro, Kentucky on May 23, 2012. Post-hearing briefs were simultaneously filed on June 12, 2012. The Respondents presented testimony that Armstrong Fabricators laid off its personnel at its shop where it maintained mobile equipment. However, welders assigned to Armstrong Fabricators continue to maintain draglines and buckets at Armstrong Coal Company’s surface mine facilities. Tr. 206-07.

            David Lander, Armstrong Coal’s manager of draglines, repeatedly disciplined Shemwell for using his cell phone during the workday. The disciplinary actions occurred on three occasions beginning on June 8, 2011, shortly after Shemwell complained to Lander in April 2011 about the need for more effective respirator protection. Resp. Exs. 2-4. Lander’s discipline served as a significant basis for Shemwell’s ultimate September 14, 2011, termination. Given the relatively short intervening period between the protected activity and the disciplinary action

that led to Shemwell’s discharge, it is clear that Shemwell’s discrimination complaint has not been frivolously brought.

            II. Findings of Fact

                        a. Protected Activity

            On March 15, 2010, Shemwell filed an application for employment for the position of welder/laborer with Armstrong Coal Company. Gov. Ex. 5 at p. 1. Shemwell was hired by Armstrong Coal Company on April 19, 2010. Id. at p. 2. At that time, Shemwell enrolled in Armstrong Coal Company’s 401(k) plan. Id. at pp. 3, 6. Upon being hired, Shemwell signed statements related to Armstrong Coal Company’s policies and procedures. Namely, Shemwell certified that he had received and read Armstrong Coal Company’s anti-harassment policy.

He also signed statements that he had “received a copy of the Armstrong Coal Company, Inc. Employee Handbook,” and, that he understood and agreed to abide by Armstrong Coal Company’s clothing policy. Finally Shemwell authorized Armstrong Coal Company to make direct deposits of his salary into his bank account. Id. at pp. 4, 5, 7, 8.

            Shemwell’s job duties included maintaining mobile equipment at Armstrong Fabricators’ shop, as well as welding and repairing draglines at Armstrong Coal’s surface facilities. Shemwell was not aware that mining operations and welding maintenance activities were performed by separate business entities. Although Shemwell’s pay stub was annotated “Armstrong Fabricators, Inc.,” Shemwell testified that “[he] always thought [he] was employed by Armstrong Coal Company.” Resp. Opp. to Sec’y. Sum. Dec. Mot., Ex. C; Tr. 59.

            While it is apparent that Shemwell reasonably believed that he was an Armstrong Coal Company employee, Shemwell’s belief, alone, is not dispositive of the issue of Armstrong Coal Company’s liability. Rather, as discussed herein, it is the objective evidence that amply demonstrates that it is appropriate to include Armstrong Coal Company as a party from which reinstatement relief can be sought.

            In mid-April 2011, Shemwell was assigned by Lander, Armstrong Coal’s dragline manager, to repair the center pin of a dragline at an Armstrong Coal Company surface mine.

Tr. 56, 62, 81, 206-07. To access the pin, Shemwell had to enter the tub of the dragline, an enclosed area that is not well ventilated in that it is not directly exposed to outside air. Shemwell was wearing a respirator that protected against particle inhalation. However it was ineffective with respect to minimizing or preventing the inhalation of smoke and fumes.

            Before performing the welding repair, it was necessary for Shemwell to gouge out the material around the center pin by torching the material, which produced smoke that adversely affected him. Tr. 66. After completing the necessary gouging, Shemwell welded the center pin area for approximately 45 minutes, at which time he exited the tub without completing the welding because he was overcome by fumes and smoke. Tr. 72-73.

            While recovering on the deck of the dragline, Shemwell encountered Lander. Shemwell’s eyes were watery and red and it was obvious that he had been adversely affected by his welding activities. Lander instructed Shemwell to get some air before returning to his welding in the tub. Shemwell responded that he would not return to weld in the tub. Shemwell testified that Lander did not respond and simply walked away. Tr. 75, 80.

            Approximately one week after the welding incident in the tub, Shemwell met Lander in the bucket house where he informed Lander that Armstrong Coal “needed to do something about the respirators.” Tr. 81. Shemwell showed Lander a welding magazine that was lying on a table in the bucket house that depicted fresh air respirators. Shemwell testified that Lander responded that fresh air respirators were “pricey,” although Shemwell conceded that Lander stated “he would see what could be done about it.” Tr. 84.

            Lander testified that Shemwell, as well as several other employees, expressed concerns regarding the need for better respirator protection. Tr. 169. Lander testified that he welcomed complaints about safety and that he did not view Shemwell’s complaints as a problem. In response to the respirator complaints, Lander testified that both negative and positive air pressure system respirators were purchased from a company named Airgas to afford additional protection to the welders. Tr. 172-73. The respirators were ordered in August 2011.

                        b. Alleged Adverse Action

            Shemwell testified that shortly after he communicated his respirator complaints to Lander, his relationship with Lander deteriorated. Shemwell testified that Lander became “arrogant” and that he started to constantly complain about Shemwell’s work. Tr. 134.

On June 8 and June 28, 2011, Lander verbally warned Shemwell about eating breakfast at work, using his cell phone at work, and coming to work late. Gov. Ex. 2-3. Shemwell testified that on July 22, 2011, Lander called him off the dragline and advised him that two people had complained about Shemwell arriving late to work, eating breakfast on the job, and using his cell phone. Tr. 134. Shemwell testified that these accusations were false. Tr. 134. As a result of his discussion with Shemwell, Lander issued a written warning on July 22, 2011, concerning Shemwell’s lateness and cell phone use. Lander’s written warning noted, “[i]f this happens again before 12-31-11 you will be dismissed – terminated.” Resp. Ex. 4.

            Lander testified that he knew that Shemwell “was going through a difficult period of time in the month of June . . . [because] he was going through a divorce.” Tr. 181. Lander told Shemwell that he himself had “been through [a divorce] in 1980, it’s very difficult, they’re hard, they can distract you.” Tr. 181. Despite Lander’s recognition that Shemwell had personal problems, Lander found Shemwell’s cell phone use to be excessive, issuing two verbal warnings in June 2011 that culminated in a July 22, 2011, written warning admonishing Shemwell that he would be terminated before December 2011, if his cell phone use continued. Resp. Exs. 2-4.

            With regard to Lander’s authority to discipline Shemwell who is purported to be an employee of Armstrong Fabricators, Lander testified:

Court: Who did Mr. Shemwell work for?

Lander: Mr. Shemwell? Fabricators, yes, sir.

Court: Okay. Look at his employment application. Is that who he applied for employment with?

Lander: I see where you’re going, but I don’t know, because may I tell you how they came to me?

Court: No. I didn’t ask you that question. Just answer my question. Did Mr. Shemwell apply for employment with Armstrong Fabricators or Armstrong Coal Company, based on that application?

Lander: Based on this application, I guess you would say [Armstrong] Coal Company

Court: And you work for who?

Lander: The Coal Company.

Court: And you disciplined him, right?

Lander: As well as I do any contract people that would come in, yes.

Court: Well, would you discipline non – [fabricator contractors] – let’s say it was Otis Elevator [that] was building an elevator down into your pit. Would you discipline Otis Elevator employees?

Lander: No, sir.

Tr. 208-09.

            Following the written warning, Lander recommended the reassignment of Shemwell to the Armstrong Fabricators shop, where Oscar Ramsey, the manager of the shop, could observe Shemwell under closer supervision. Tr. 194-95, 244. Ramsey testified that, after Shemwell’s reassignment, he observed Shemwell using his cell phone several times a day as Ramsey traveled around the shop. After consulting with Armstrong Coal Company’s Human Resources Director Gary Phillips, in view of Lander’s prior disciplinary warnings, Ramsey testified that he decided to terminate Shemwell for excessive cell phone use. Tr. 241-45. Phillips testified that although he was Human Resources Director for Armstrong Coal Company, he also handled human resource issues for Armstrong Fabricators, “an affiliated company.” Tr. 271, 290. Shemwell’s termination letter, issued by Phillips, states “[t]his letter is to inform you that your employment with Armstrong Coal Company has been terminated effective 9/14/11.” Gov. Ex. 4.

(Emphasis added).

            Shemwell filed for unemployment benefits as a former employee of Armstrong Coal Company. Gov. Ex. 8. However, Kentucky Unemployment Office records reflect Shemwell’s unemployment benefits were charged to the account of Armstrong Fabricators, Inc. Resp. Ex. 6.

                        c. Armstrong Fabricators’ Business Activities

            Shortly after Shemwell filed the subject discrimination complaint, MSHA attempted to inspect the fabricator shop facility. Kenny Allen is the Executive Vice President of Operations for Armstrong Coal Company. Tr. 214. Allen told Ramsey that he believed that subjecting Armstrong Fabricators to MSHA oversight would not be economically feasible. Tr. 252. Consequently, Ramsey testified that Allen decided to cease operations at the fabricator shop.

Tr. 252. As a result, approximately ten welders who worked at the shop were laid off on February 28, 2012, and the shop was closed shortly thereafter in March 2012. Tr. 220-21,

246-47, 251. However, Ramsey continues to occupy an office in the shop building from where he oversees unaffiliated contractors who now maintain Armstrong Coal Company mobile equipment. Tr. 247.

            At the time of the layoff, there were approximately eight other Armstrong Fabricator welders who were assigned to maintain draglines at surface facilities. Tr. 204, 206-207. Lander testified that he currently supervises a total of “eleven Armstrong Fabricator welders” who maintain draglines at Armstrong Coal Company’s facilities. Tr. 203-06. These welders apparently perform the same functions Shemwell was performing when he was supervised by Lander, prior to Lander’s recommendation that Shemwell be reassigned to the fabricator shop.

            III. Further Findings and Conclusions

                        a. Not Frivolously Brought Standard

            As noted in the initial April 20, 2012, decision, while the Secretary is not required to present a prima facie case in a temporary reinstatement proceeding, it is helpful to review the proof that is necessary to ultimately 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 o/b/o 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 o/b/o Robinette v. United Castle Coal Co., 3 FMSHRC 803

(Apr. 1981).

            Shemwell’s April 2011, protected health and safety complaints concerning respirators is not in dispute. The Secretary contends that Shemwell’s termination was motivated by his requests for respirator protection. The Respondents assert that Shemwell was terminated for his unauthorized cell phone use, and, that his discharge was not motivated by his protected activity.

            As the scope of a temporary reinstatement hearing is narrow, it is premature to resolve credibility issues regarding the underlying motivation for Shemwell’s termination at this preliminary stage of the proceeding. Sec’y o/b/o Albu v. Chicopee Coal, 21 FMSHRC 717, 719 (July 1999). It is only necessary to determine whether Shemwell’s claim appears to have merit. See S. Rep. 95-181, at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Resources, 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977,

at 624.

            In considering whether Shemwell’s complaint is frivolous, it is important to keep in mind that direct evidence of a discriminatory motive is rarely encountered. Sec’y of Labor o/b/o 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 concede knowledge of Shemwell’s protected activity. It is noteworthy at this preliminary stage that the initial adverse action complained of occurred shortly after Shemwell’s health and safety complaints were made. Shemwell communicated his safety complaints to Lander in April 2011. Shortly thereafter, in June 2011, Lander issued a series of disciplinary warnings culminating in the July 22, 2011, final written warning that provided a foundation for Shemwell’s September 2011 termination. The fact that Shemwell was disciplined by Lander, the recipient of Shemwell’s protected complaints, is a significant factor that supports the Secretary’s assertion that Shemwell’s complaint is not frivolous. Finally, the apparent disinclination of the Respondents to subject themselves to Mine Act jurisdiction, as demonstrated by Allen’s decision to close the Armstrong Fabricators shop, is an additional relevant factor with respect to motivation. Accordingly, the Secretary has demonstrated that the claim that Shemwell’s termination was motivated, at least in part, by his protected activity is not frivolous.

                        b. Party Status

                                    i. Armstrong Fabricators

            As a threshold matter, I construe the Commission’s remand that affirmed the grant of the Secretary’s motion to amend to be the law of the case with respect to the inclusion of Armstrong Coal Company and Armstrong Fabricators as proper parties. Nevertheless, during opening statements, Respondents’ counsel argued that “[i]t is our position that Armstrong Coal [Company] is not liable.” Tr. 28. Therefore, I will address the parties’ status in the event the Commission has not, in fact, disposed of the joint liability issue.

            Armstrong Fabricators has conceded that it is a proper party to this proceeding.

However, it asserted during a March 28, 2012, telephone conference that it has no suitable position available because the fabricator shop where Shemwell worked has been idled and the staff has been laid off. Consequently, the Commission directed that I determine the effect,

if any, of the reported layoff on the liability for reinstatement in this proceeding. Comm’n Rem., slip op. at 5. At trial, Respondents’ counsel repeated the impossibility of performance claim:

We also intend to show that Armstrong Fabricators, the shop where [Shemwell] was employed, has ceased operations and, therefore, that he cannot be returned to any position there, and we also intend to show that Armstrong Coal also has no position[s] to which he can be returned that were similar to that he had previously occupied.

Tr. 27-28.

            While the welders at the fabricator shop may have been laid off on February 28, 2012, Lander testified that he currently has 11 Armstrong Fabricators welders “working for [him].”

Tr. 206-07. These welders are assigned to bucket houses located at Armstrong Coal’s surface mines where they rebuild dragline buckets. Tr. 179. When they are not repairing buckets, the welders perform on-site maintenance on the draglines at the surface facilities. Tr. 205-07.

As noted above, counsel has proffered the surprising assertion that Armstrong Fabricators, Inc., is unable to reinstate Shemwell to a welding maintenance position because all of the welding positions at the bucket houses at Armstrong Coal’s Equality and Midway mines are currently filled. Tr. 221-22. To accept such an assertion as a defense in a discrimination proceeding

would eviscerate the anti-discrimination provisions of the Act. 30 U.S.C. 815(c). See Sec’y of Labor v. Akzo Nobel Salt, 19 FMSHRC 1254, 1259 (July 1997) (holding that displacement of a third party is not controlling by rejecting an operator’s claimed inability to reinstate a miner due to layoff protections afforded to existing personnel under a collective bargaining agreement). The Respondents’ reliance on an Administrative Law Judge decision tolling back pay awarded in a discrimination proceeding based on a seniority based layoff necessitated solely by “a bona fide economic retrenchment,” rather than by an attempt to avoid MSHA jurisdiction, is inapposite to the facts in this case. Resp. Br. at 18 citing Casebolt v. Falcon Coal Co., 6 FMSHRC 485, 499-500 (Feb. 1984) (ALJ).

            As the job duties of the welders performing on-site maintenance of draglines and bucket repair are similar to the duties performed by Shemwell prior to his discharge, there is a suitable welding position to which Shemwell can be reinstated. Thus, it is unnecessary to address whether the reported layoff of Armstrong Fabricator welders at its shop tolls the Respondents’ reinstatement obligation. See Comm’n Rem., slip op. at 5, citing KenAmerican Res.,

31 FMSHRC 1050, 1054 (Oct. 2009).

                                    ii. Armstrong Coal Company

            The record reflects that Armstrong Fabricators currently has approximately 12 employees, including Ramsey. By way of contrast, Armstrong Coal has 830 employees. Tr. 290. Although Armstrong Fabricators has admitted that it is a proper party, and it is clear that Armstrong Fabricators has the ability to provide the relief sought, it is important to address the question of the joint liability of Armstrong Coal Company for temporary reinstatement.

            The layoff of shop employees occurred after the filing of Shemwell’s complaint in an admitted effort to avoid Mine Act jurisdiction over shop operations. In the event the remaining welders performing dragline maintenance and bucket repair for Armstrong Coal Company’s benefit at its surface mines are laid off in a further effort by Armstrong Fabricators to avoid the reinstatement provisions of the Mine Act, Armstrong Coal Company must not be permitted to escape liability. 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 1284, 1314-15 (Dec. 1999).

            Notwithstanding the application of the concept of “alter ego”, as indicated below, the evidence reflects that Armstrong Fabricators is, in essence, a subdivision of Armstrong Coal Company, regardless of its incorporation as a separate entity. In this regard, Armstrong Coal Company attendance records reflect “Fab” as a location, and Armstrong Coal Company disciplinary notices completed by Lander describe “Fabricators” as a “department.” (Gov Ex. 6; Resp. Ex. 2-4).

            Although Armstrong Coal Company is jointly liable, significant evidence reflects that it may be considered as the primary business entity responsible for the reinstatement of Shemwell. As previously discussed: Shemwell applied for employment with, and was hired by, Armstrong Coal Company (Gov. Ex. 5 at pp. 1, 3); when hired, Shemwell was required to acknowledge Armstrong Coal Company’s policies in its employee handbook (Gov. Ex. 5 at p. 5); Armstrong Coal Company was authorized to make direct deposits of Shemwell’s salary into his bank account (Gov. Ex. 5 at p. 7); Shemwell was a participant in Armstrong Coal Company’s 401(k) plan (Gov. Ex. 5 at p. 3; Tr. 291); Shemwell’s attendance was kept on Armstrong Coal Company records that reflect Shemwell was assigned to “Loc: Fab” (Gov. Ex. 6); Shemwell’s Emergency Contact Sheet reflects he was a welder employed by Armstrong Coal Company at the “Bucket House” location (Gov. Ex. 7); Shemwell was supervised by Lander, Armstrong Coal Company’s manager (Tr. 168-69, 206-07); Shemwell was disciplined by Lander on Armstrong Coal Company’s “Employee Counseling Form” that reflected Shemwell was a welder working in the “Department: Fabricators ” (Resp. Ex. 4); decisions to transfer and terminate Shemwell were made by Armstrong Coal Company management, including its Human Resources Director (Gov. Ex. 4, Tr. 194-95, 244); Shemwell’s “employment with Armstrong Coal Company [was] terminated effective 9/14/11” in a termination letter containing Armstrong Coal Company’s letterhead (Gov. Ex. 4); and Phillips acknowledged the application for unemployment benefits that Shemwell filed as an employee of Armstrong Coal Company (Gov. Ex. 8). Thus, the objective evidence amply demonstrates that it is also appropriate to hold Armstrong Coal Company as a party from which reinstatement relief can be sought.

            I note, parenthetically, that the April 20, 2012, initial decision in this matter based the joint liability of Armstrong Coal Company and Armstrong Fabricators on the Commission’s

“unitary operator” analysis that subjects affiliated corporations to liability under the Mine Act. See Berwind, 21 FMSHRC at 1316-17. 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.

            Although the facts in this case demonstrate the above indicia for “unitary operator” status, Berwind relies on the establishment of collateral facts to infer the propriety of extending unitary liability to affiliated business entities. In this case, there is adequate direct evidence to demonstrate that Armstrong Coal Company is a proper party from which reinstatement relief can be sought irrespective of its relationship with Armstrong Fabricators, Inc.

ORDER

            To prevail in this preliminary matter, the Secretary must only demonstrate that the application for temporary reinstatement is not frivolous. As discussed above, Lander’s disciplinary actions that served as a significant basis for Shemwell’s discharge were taken shortly after Shemwell’s health and safety complaints were communicated to Lander. As such, the record adequately reflects knowledge of the protected activity as well as a coincidence in time between the protected activity and the subject adverse actions. Consequently, the Secretary has demonstrated that Shemwell’s discrimination complaint has not been frivolously brought.

            As noted, Armstrong Fabricators, Inc. and Armstrong Coal Company are proper parties that are jointly liable in this proceeding. Consequently, IT IS ORDERED that Armstrong Coal Company, Inc., and/or Armstrong Fabricators, Inc., immediately reinstate Shemwell, no later than Wednesday, June 27, 2012, to the welder position he held immediately 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.

            IT IS FURTHER ORDERED that Armstrong Coal Company and/or Armstrong Fabricators, Inc., provide back pay and relevant benefits, less deductions for taxes and any other appropriate payroll deductions, to Shemwell effective April 25, 2012, until the date preceding Shemwell’s reinstatement. Shemwell’s payment should be reduced by any previous payments Shemwell has received for back pay during this retroactive period.

                                                                        /s/ Jerold Feldman

                                                                        Jerold Feldman

                                                                        Administrative Law Judge

Distribution: (Electronic and Certified Mail)

Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219-2440

Tony Oppegard, Esq., Attorney for Reuben Shemwell, P.O. Box 22446, Lexington, KY 40522

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

/jel