FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE
443
DENVER, CO 80202-2500
303-844-5266/FAX
303-844-5268
July 23, 2012
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SECRETARY OF LABOR, v. |
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TEMPORARY REINSTATEMENT PROCEEDING Docket No. KENT 2012-1157-D MADI-CD-2012-11 Mine ID No. 15-19356 Parkway Mine Surface Facilities TEMPORARY REINSTATEMENT PROCEEDING Docket No. KENT 2012-1158-D MADI-CD-2012-12 Mine ID No. 15-19356 Parkway Mine Surface Facilities TEMPORARY REINSTATEMENT PROCEEDING Docket No. KENT 2012-1250-D MADI-CD-2012-13 Mine ID No. 15-19356 Parkway Mine Surface Facilities |
DECISION
AND ORDER OF TEMPORARY REINSTATEMENT
Appearances: Matt S. Shepard, Angele Gregory, Office of the
Solicitor, U.S. Department of Labor, Nashville, Tennessee for the Applicants;
Tony Oppegard,
Lexington, Kentucky for the Applicants;
Adam K. Spease,
Alex L. Scutchfield, Miller Wells PLLC, Louisville, Kentucky for the
Respondents;
Daniel Z.
Zaluski, Armstrong Coal Company Inc., Madisonville, Kentucky for the
Respondents.
Before: Judge Simonton
I. INTRODUCTION
These
cases are before me on applications for temporary reinstatement filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration
(“MSHA”), against Armstrong Coal Company, Inc., and Armstrong
Fabricators, Inc., hereinafter referred to jointly as Respondents,
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”). On June 15, 2012, pursuant to 29 C.F.R. §
2700.45(c), Respondents requested a hearing on these matters. On June 18, 2012, a preliminary status
conference was held wherein all parties stipulated to a brief extension to
allow for scheduling a hearing outside the 10-day window required under 29
C.F.R. § 2700.45(c). A hearing was
conducted on July 6, 2012, in Madisonville, Kentucky. The record closed on July 13, 2012, after allowing
for submission of post-hearing briefs.
II. ANALYSIS AND FINDINGS
i. Background
The parties stipulated to the
following facts:
Armstrong
Coal Company, Inc. is an “operator” as defined in Section 3(d) of the Mine
Act. Respondent’s operations affect
interstate commerce. As such, Respondent
is subject to the jurisdiction of the Mine Act, and the presiding
Administrative Law Judge has the authority to hear and issue a decision
regarding these cases.
In the event it is determined that temporary reinstatement is
appropriate relief to be ordered in these cases, and that the right to such
relief is not tolled, such relief may be ordered against Respondents
jointly. Respondents agreed to this
stipulation for the sole purpose of this temporary reinstatement proceeding
only and to avoid the time and expense of fact-finding on this issue at the
hearing in this matter. Respondents
reserve the right to challenge Mine Act or MSHA jurisdiction over Armstrong
Fabricators, Inc., at any subsequent hearing on the
merits of the Applicants' claims or in any other proceeding or for any other
purpose.
During the hearing, the parties also agreed to stipulate that,
for purposes of the hearing, Applicants Dustin Flener, Jarred Adams, and Ronnie
Burden are “miners” as defined by the Mine Act.
Respondents reserved the right to challenge that designation at any
subsequent hearing on the merits of the Applicants’ claims or in any other
proceeding or for any other purpose.
Unless otherwise specified the
following facts are undisputed:
Applicants
Jarred Adams, Dustin Flener and Ronnie Burden, hereinafter referred to jointly
as Applicants, were employed by Respondents.
Tr. 108, 137 and 155-56. Flener
and Adams worked as welders at the fabrication shop, which was located at
Armstrong’s Parkway Mine Surface Facilities.
Tr. 108, 137. The men welded
equipment, such as draglines, blades, and buckets, used by Armstrong Coal
Company in their surface and underground mines.
Tr. 111-12, 139-140. The men
always reported to the fabrication shop on workdays, but several times a week
they would travel to work on-site at Armstrong Coal Company’s mines. Tr. 111-14, 140-41. Burden worked as an electrician in the
electrical shop, which was located behind the fabrication shop at Parkway. Tr. 155-60.
His job involved repairing and testing transformers, working on
substations, and collecting samples of transformer oil to submit for testing by
a local lab. Id.
In
January 2012, another fabrication shop employee, Reuben Shemwell, filed a
discrimination complaint against Respondents.
Tr. 48. Shemwell alleged that he
was terminated, in part, because of safety complaints he made about the type of
respirators being used at the shop. Tr.
48-50. Prior to that complaint, MSHA had
not been conducting regular E01 inspections of the fabrication shop. Tr.50.
Vice President of Operations Kenny Allen explained that when Respondent
Armstrong Coal Company, Inc., purchased the Parkway Mine the company took steps
that it believed would insulate the shop from MSHA jurisdiction and eliminate
the need to maintain the shop to “MSHA standards.” Tr. 255.
Following the filing of Shemwell’s discrimination complaint, however,
MSHA attempted to assert jurisdiction over the fabrication and electrical
shops. Tr. 48-50.
On
February 23, 2012, MSHA inspectors Eddie Nichols and Gene Wright reported to
the fabrication shop to conduct an E01 inspection. Tr. 74.
Nichols testified that they initially met with Safety Manager Rick
Brothers and advised him that they were there to conduct an inspection. Tr. 77.
Brothers said that Armstrong opposed the inspection and would send the
workers home if MSHA continued with the inspection. Id. Nichols then called MSHA’s District
Office to find out what actions the inspectors should take. Tr. 78-79.
Nichols’ supervisor said that he would get an answer and call back. Id.
While
Nichols waited for a return phone call, the miners working at the fabrication
shop were sent home. Tr. 80. Inspector Nichols saw the workers leave the
shop, and Adams and Burden both testified that they were sent home on February
23rd when MSHA arrived. Id., Tr. 117, 174. Burden recalled being in the break room when
Shop Foreman Oscar Ramsey came in and told them that MSHA had “showed up” and
they should “get their stuff and go home.”
Tr. 174.
During
the wait, Brothers received a phone call from Dan Zaluski, Respondent’s
corporate counsel. Nichols testified
that he also spoke to Zaluski, who said that he didn’t understand why MSHA was
there to inspect but it must be in reference to the 105(c) complaint. Tr. 80.
Zaluski then said that he would allow the inspection but opposed
it. Id. However, Inspectors Nichols and Wright
were instructed by their supervisors to return to the district office, and they
did not conduct an inspection on February 23rd. Id.
The
following day, February 24, 2012, a meeting was called at the fabrication
shop. Several members of Armstrong
management were present at the meeting, including Kenny Allen and Oscar Ramsey. Applicant Burden testified that during the
meeting Allen said that someone had called in, there had been a citation and
that if MSHA showed back up Armstrong was going to close the shop down and
outsource everything. Tr. 176. Burden further explained that Allen made it
“pretty clear” that if MSHA showed up again at the fabrication shop, the men
would not have a job. Tr.177-178. Allen testified that he told the men at the
meeting if MSHA asserted its jurisdiction over the shop the company would be
forced to close it for economic reasons.
Tr. 250-51.
On
February 27, 2012, MSHA received the following anonymous complaint about
Parkway Mine Surface Facilities: “The mine is dumping the contents of
transformers on the ground around the shop building.” Applicants’ Ex. 2. Supervisory Special Investigator Kirby Smith
explained that the complaint was cause for concern due to the potential for
PCBs in the spilled oil. Tr. 56. PCBs are dangerous, cancer-causing agents
often found in oil that was used in older transformers. Id. Applicant Adams testified he previously
had asked supervisors Oscar Ramsey and Terry Fulkerson about the possibility of
PCBs being present in the oil of some of the transformers onsite because he was
concerned about him and his men working on them. Tr. 124.
He was told by Fulkerson that all the transformers had been tested and
“they were on file.” Id. Applicant
Burden testified that he had knowledge of oil being spilled at the shop during
the time he worked there and that he discussed the oil spills with Supervisor
Ramsey. Tr. 169-170. Specifically, Burden recalled once receiving
a phone call about a transformer being struck and oil spilling from it. Tr. 168.
He told a co-worker to contact Oscar Ramsey about the spill. Id. In addition, he approached Ramsey about
oil leaking from transformers stored on a skid behind the shop. Burden explained that between 300 and 400
transformers were stored on concrete pads behind the shop, and he voiced his
concern about oil leaking from them. Tr.
169-70. Burden explained that any
transformer that is not in use should be tested and should bear a sticker that
says “Non-PCB.” Tr. 166-67. He recalled that there were transformers on
the skid that did not bear a “Non-PCB sticker.”
Id. Although he confronted Ramsey, to his
knowledge, no action was taken. Tr. 170.
Applicant
Flener testified he and a coworker, Ben Bowers, had concerns about potential
exposure to PCBs after draining the oil out of a transformer. Tr. 145-46.
Flener was present when Bowers asked Supervisor Fulkerson if the oil had
been tested for PCBs. Tr. 146. Fulkerson told them the transformers had all
been tested. Id. Ramsey, on cross
examination, acknowledged his awareness that Flener is “kin” to Reuben
Shemwell, the Complainant in the precursor discrimination case. Tr. 220.
On
February 28, 2012, Inspectors Ray Cartwright and Louis Adams arrived at the
fabrication shop to investigate the anonymous complaint. Tr. 90; Gov’t Ex. 2. They first met with Supervisor Ramsey and told
him the purpose for their visit.
Tr.92. They then provided him
with a copy of the complaint, and Ramsey responded that the investigation would
have to be conducted “under protest.”
Gov’t Ex. 1; Tr. 93. Within
minutes, Manager of Surface Safety Richard Hicks arrived and told the
inspectors he had spoken with Kenny Allen and that Allen told him to oppose the
inspection. Tr. 96.
Inspector
Cartwright explained to Hicks that they were not there to conduct an inspection
of the shop but to walk around the back of the shop to investigate the
complaint regarding oil spillage. Tr.
95. They also provided Hicks with a copy
of the complaint. Id. Hicks then took a phone
call from Kenny Allen. Tr. 97. When Hicks got off the phone, he advised
Inspectors Cartwright and Adams that Allen had just given orders to turn off
the lights, lock the doors, and send everyone home. Tr. 98.
In his testimony, Kenny Allen confirmed that he gave those instructions
after learning that the MSHA inspectors were at the shop to investigate a
complaint. Tr. 252.
All
of the shop workers were then called together by Ramsey, who told them that
they were laid off “indefinitely.” Tr.
121. Jarred Adams recalled Ramsey saying
in a phone conversation with him later that day that Kenny Allen was “pulling
the plug on the shop.” Tr. 122. Ronnie Burden recalled that the men were told
to “get their stuff,” file for unemployment, and get a job application if they
wanted to reapply with Armstrong. Tr.
178-179. Flener, who was not working on
February 28th, phoned Ramsey to find out what was going on and was
told that he had been laid off. Tr.
142-43. On March 16, 2012, Flener
contacted John Bruce, the Superintendent of Surface Operations, to ask why the
shop workers had been laid off. Tr.
144. Bruce told Flener, he had “MSHA to
thank for coming out and closing the shop down.”
Both
Ramsey and Allen testified they had discussions when the shop opened back in
2008 or 2009 that if MSHA ever tried to exert jurisdiction over the shop it
would not be economically feasible to keep the shop open. Tr 202, 235, 265-66. In addition, they had no idea who filed the
anonymous complaint, nor did they have any reason to believe it was Applicants Adams,
Flener or Burden. Tr. 205, 207, 210,
211, 212, 256-58. Ramsey confirmed that
an oil spill had occurred several years ago and they had a local environmental
engineering firm, Associated Engineers, clean up the area. Tr. 216.
He avowed that the material that was spilled did not contain PCBs. Id.
ii. Applicable Law
Section
105(c)(1) of the Mine Act provides that no person shall discharge or otherwise
discriminate against a miner for exercising rights under the Act.
It states in
pertinent part:
No person shall
discharge or in any manner discriminate against . . . or otherwise interfere with the exercise of the statutory rights of
any miner . . . because such miner . . . has filed or made a complaint under or
related to this Act, including a complaint notifying the operator or the
operator’s agent . . . of an alleged danger or safety or health violation in a
coal or other mine.
30
U.S.C. § 815(c)(1)(Emphasis provided by the Commission in Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1478 (Aug.
1982)).
Pursuant
to 105(c)(1), 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)(1). 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). Accordingly, it is only necessary to
determine whether the Applicants’ complaints appear to have merit.
(Emphasis added). See S. Rep. No. 181, at 36 (1977), reprinted in Senate Subcomm. on Labor,
Comm. on Human Res., Legislative History
of the Federal Mine Safety and Health Act of 1977, 94th Cong.,
2d Sess., at 624 (1978). In Jim Walter Resources, Inc. v. FMSHRC,
the Eleventh Circuit found the “not frivolously brought” standard comparable to
a “reasonable cause to believe” standard.
Jim Walter Res., Inc. v. FMSHRC,
920 F.2d 738 (11th Cir. 1990). The
Eleventh Circuit concluded that the low burden imposed by the “not frivolously
brought” standard reflects clear Congressional intent to make temporary
reinstatement relatively easy to obtain.
Id. at 748.
The Commission has consistently and
historically found that Congress intended section 105(c) to be broadly
construed to afford maximum protection for miners exercising their rights under
the Act. See Sec’y of Labor o/b/o Charles H. Dixon et. al. v. Pontiki Coal
Corp., 19 FMSHRC 1009, 1017 (June 1997) citing
Swift v. Consolidation Coal Co., 16 FMSHRC 201, 212 (Feb. 1994) (“the
anti-discrimination section should be construed ‘expansively to assure that
miners will not be inhibited in any way in
exercising any rights afforded by the legislation.’”)(quoting S. Rep. No. 181,
at 36 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative
History of the Federal Mine Safety and Health Act of 1977, 94th
Cong., 2d Sess., at 624 (1978) (emphasis added)).
Although the Secretary is not
required to present a prima facie case in a temporary reinstatement proceeding
the Commission has determined it useful to review the elements of a
discrimination claim in order to assess whether the evidence at this stage of
the proceedings meets the non-frivolous test.
Sec’y of Labor o/b/o Williamson v.
CAM Mining, LLC, 31 FMSHRC 1085 (Oct. 2009). In order to establish a prima facie case
under Section 105(c), a miner must show: (1) that he engaged in a protected
activity; and (2) that his termination was motivated, at least in part, by the
protected activity. See Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct.
1980).
The Commission has held that
evidence of motivation may be shown by circumstantial evidence. See,
e.g., Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-11 (Nov. 1981),
rev'd on other grounds sub nom., Donovan
v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983) (holding that illegal
motive may be established if the facts support a reasonable inference of
discriminatory intent); Schulte v. Lizza
Industries, Inc., 6 FMSHRC 8 (Jan. 1984). Circumstantial indicia of discriminatory
intent by a mine operator against a complaining miner include: (1) knowledge by the operator of the
protected activity, (2) hostility toward the miner because of his protected
activity, (3) coincidence in time between the protected activity and the
adverse action, and (4) disparate treatment of the complaining miner. Jungers
v. Borax, 15 FMSHRC 300, 308 (Feb. 1993).
iii. The Solicitor Has Met Her Burden of
Proof to Establish a Non-Frivolous Allegation
As
far as I have been able to determine, the cases before me present a novel question
of law, i.e., is it necessary for a specific miner subject to adverse action to
be identified in an anonymous health and safety complaint in order to meet the
non-frivolous temporary reinstatement standard?
For the following reasons I find that in order to preserve the spirit
and intent of the law protecting miners from unlawful reprisal the answer can
and must be a resounding, “No”.
Here,
it is undisputed that in January 2012, former employee Shemwell filed a
discrimination complaint against the Respondents after he was removed from
employment.[1] On February 23, 2012, MSHA attempted to
conduct an inspection of the fabrication shop where Shemwell and the Applicants
worked. This was the first time since
Respondents began operating the shop that MSHA had attempted to conduct an
inspection there. Supervisory Special
Investigator Kirby Smith testified MSHA’s actions were prompted by Shemwell’s
discrimination complaint and the health and safety issue raised by Shemwell
regarding respirators used at the shop.
Tr. 48-50. The evidence also
suggests that is what Respondent believed.
See Inspector Nichol’s
unrebutted testimony that Respondent’s attorney Zaluski stated to him that the
inspection must have been prompted by Shemwell’s 105(c) complaint. Tr. 80.
Respondent’s reaction to the attempted inspection was to shut off the
power and send the employees home for the day in order to avoid the potential
liability that might arise from MSHA’s inspection. Respondent’s Vice President of Operations
Allen made that clear in his testimony.
Tr. 248.
The
following day, February 24, 2012, Allen called a meeting with the shop
employees and expressly told them that if MSHA returned to exercise
jurisdiction over the shop they would shut it down because it would be
economically unfeasible to operate.
There is no question those employees knew after that meeting that any
complaints about health and safety issues prompting an MSHA inspection would
lead to a permanent closure of the shop and loss of their jobs. I can think of nothing more chilling on an
employee’s inclination to report possible health and safety issues than the
threat imposed on them by Allen at that meeting, whether he intended it that
way or not.
Three
days after the meeting, February 27, 2012, an anonymous complaint that “the
mine is dumping the contents of transformers on the ground around the shop
building” was received by MSHA on its hotline.
In response, MSHA inspectors returned to the shop the next day, February
28, 2012, to conduct an inspection. True
to his February 24th threat Allen, that very day, ordered the shop closed. All three applicants along with eight other
miners lost their jobs. Facially, the
undisputed facts regarding Respondent’s resistance to MSHA jurisdiction and
their response to the exercise of that jurisdiction based on protected activity (Shemwell’s articulated respirator
concerns and the anonymous oil dumping complaint) clearly meets the minimal
non-frivolous burden required of the Applicants in these cases.
What
is left then is the Respondents’ argument that there is no evidence Applicants Adams,
Flener or Burden actually engaged in protected activity; thus they fail to meet
the statutory requirement of Section 105(c)(1) and the prima facie elements of
a discrimination case. This is a more
difficult question and one which appears to be of first impression for the
Commission. Critical to my analysis is
the fact that the proceeding before me involves applications for temporary
reinstatement which, as noted above, require a minimal showing that the miners’
discrimination complaints are non-frivolous.
As Respondents point out in their post-hearing brief the Applicants must
demonstrate that their complaints “appear to have merit,” i.e., that there is
reasonable cause to believe that the miner was discriminated against in part due to protected activity in
which he has engaged. Sec’y of Labor v. Centralia Mining Co., 22
FMSHRC 153, 157 (Feb. 2000); CAM Mining at
1088.
The
Commission clearly recognized in Moses
that a violation of 105(c)(1) could be found based on a suspicion that the
miner had reported to MSHA an accident which led to an MSHA investigation. Specifically, it stated:
Section
105(c)(1) was intended to “be construed expansively to assure that miners will
not be inhibited in any way in exercising any rights afforded by the Act. Miners would be less likely to exercise their
rights if no remedy existed for discriminatory action based on an operator’s
mistaken belief that a miner had exercised a protected right. . . . An equally
important consideration is that an affected miner suffers as much by mistake as
he would if he were discriminated against because he had actually engaged in
protected activity. We conclude that
discrimination based upon a suspicion or belief that a miner has engaged in
protected activity, even though, in fact, he has not, is proscribed by section
105(c)(1).
Moses, 4 FMSHRC at 1480; see also Sec’y of Labor on behalf of Dixon, et al. v. Pontiki Coal
Corp., 19 FMSHRC 1009 (June 1997) (finding that the Secretary has the
authority to bring a 105(c) complaint on behalf of all miners affected by
alleged discriminatory conduct); Sec’y of
Labor on behalf of Green v. D&C Mining Corp., 33 FMSHRC 243 (Jan. 2011)
(ALJ) (holding that Respondent violated section 105(c) by discriminating
against Applicants for the mistaken belief that they had called MSHA inspectors
to the mine).
Further, in another 105(c) case, Sec’y of Labor on behalf of Caudill v.
Leeco, Inc. and Blue Diamond Coal Co., 24 FMSHRC 589 (May 2002) (ALJ),
Judge Zielinski rejected Respondent’s argument that the protected activity must
be that of the miner complaining of adverse action. The judge held that Caudill’s allegation that
he suffered adverse action as a result of the protected activity of his father
stated a cause of action under section 105(c).
The judge rejected Respondent’s reliance on Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3rd Cir.
2002), and rejected the same attempt as that made in the instant case to
analogize 105(c) to discrimination cases filed under the ADA or ADEA. The judge found that a strict literal
interpretation of section 105(c)(1) would be inconsistent with the
legislation’s purpose and that “refusing to allow Jimmy Caudill’s claim of
retaliation based upon protected activity by his father would nullify some of
the most important protections intended by Congress.” Caudill,
at 591. While I am not bound by Judge
Zielinski’s decision I find it supportive of the concept that rejects a strict
reading and interpretation of 105(c) which would require that the complaining
miner be the only individual who is protected from reprisal for complaining
about a health and safety concern.
Here, the Solicitor proffered
evidence that Adams cooperated in the Shemwell investigation by providing a
statement to MSHA Special Investigator Kirby Smith on February 6, 2012, with
Respondent’s attorney present.[2]Tr.
116-17. Furthermore, both Adams and
Burden testified they expressed concerns to Respondent’s management officials,
Supervisors Ramsey and/or Fulkerson about the presence of PCBs in oil used in
on-site transformers. Tr. 124,
168-70.Flener and coworker Ben Bowers had concerns about potential exposure to
PCBs after draining the oil out of a transformer. Tr. 145-46.Flener was present when Bowers
asked Fulkerson if the oil had been tested for PCBs. Tr. 146.
Fulkerson told them the transformers had all been tested. Id. Further, Ramsey, on cross examination,
acknowledged his awareness that Flener is “kin” to Reuben Shemwell, the
Complainant in the precursor to the instant discrimination cases. Tr. 220.
All of this evidence provides a basis for concluding that management
could have reasonably suspected that any of the Applicants called in the
anonymous complaint which triggered the MSHA inspection and layoff of the shop
employees on February 28, 2012.[3]
The
fact of the matter remains that, if Respondents are to believed, they had no
inclination or suspicion as to who made the anonymous complaint. That is precisely the point and the vexing
problem these cases present. It appears
that, rather than pinpoint one miner for retribution, the Respondents, in
response to the anonymous complaint and MSHA’s February 28, 2012, inspection to
investigate the complaint, took it upon themselves to punish everyone by
closing the facility and remove the livelihood of all 11 shop employees. Allowing Respondents to escape a test of the
merits of these Applicants’ cases by finding their complaints to be frivolous
would do nothing more than thwart the very purpose of the 105(c)
non-retaliation provisions Congress enacted.
Worse yet, it would invite every operator to take action against entire
groups of miners when anonymous complaints are brought forth to MSHA, only to
claim they had no idea who filed the complaint so no individual protected
activity could be found and thus, escape liability entirely for what could be
unmitigated reprisal for reporting health and safety concerns. As a matter of public policy this cannot be
what Congress intended when it passed the non-retaliation provisions of the
Mine Act.
Unrefuted
evidence presented at hearing shows that at a minimum Supervisor Ramsey and
Manager of Surface Safety Richard Hicks were aware of the February 27, 2012,
anonymous complaint when Respondents took action to close the fabrication shop
on February 28, 2012, because a copy of it was handed to them by MSHA Inspector
Louie Adams. Vice President of
Operations Allen’s testimony alone unequivocally establishes he never wanted
MSHA at the shop and, as soon as MSHA appeared to conduct an inspection Allen,
immediately shut the shop down and laid off 11 miners demonstrating hostility
or animus toward the protected activity and by extension any miner who may have
engaged in the activity. Finally, temporal
proximity of a single day between the anonymous complaint and the layoff has
been unequivocally established. Such
evidence is sufficient to find the Applicants claims non-frivolous.
iv. Respondents’ Economic Feasibility
Argument
The Respondents argue that
reinstatement of the Applicants is barred because the February 28, 2012, layoff
was conducted for bona fide economic reasons.
They presented the same argument to Judge Feldman in Sec’y of Labor o/b/o Reuben Shemwell v.
Armstrong Coal Co., Inc., et al., Docket No. KENT 2012-655-D. Judge Feldman rejected their argument as did
the Commission on appeal. Because this
issue has already been decided by the Commission I find it unnecessary to
address it in this decision.
III. DECISION AND ORDER
For
all of the reasons articulated above I find that the Applicants presented
sufficient evidence at hearing to render their discrimination complaints
non-frivolous. Accordingly, IT IS ORDERED that Respondents
Armstrong Coal Company, Inc., and/or Armstrong Fabricators, Inc., immediately
reinstate the Applicants Jarred Adams, Dustin Flener and Ronnie Burden, no later than Monday, July 30, 2012, to
the positions they held immediately prior to the February 28, 2012, layoff, or
to similar positions at the same rate of pay and benefits and with the same or
equivalent duties assigned.
IT IS FURTHER
ORDERED
that Respondents Armstrong Coal Company, Inc., and/or Armstrong Fabricators,
Inc., provide back pay and relevant benefits, less deductions for taxes and any
other appropriate payroll deductions, to the Applicants Adams, Flener and
Burden effective February 28, 2012,
until the date preceding their reinstatement.
/s/
David P. Simonton
David P. Simonton
Administrative
Law Judge
Distribution:
Angele
Gregory, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church
Street, Suite 230, Nashville, TN 37219-2456
Matt
Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church
Street, Suite 230, Nashville, TN 37219-2456
Adam
Spease, Esq., Alex Scutchfield, Esq., Miller Wells, PLLC, 710 West Main Street,
4th Floor, Louisville, KY 40202
Tony
Oppegard, Esq., P.O. Box 22446. Lexington, Kentucky 40522
Dan
Zaluski, Esq., Armstrong Coal Company, Inc., 407 Brown Road, Madisonville, KY
42431
Wes
Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg,
KY 41858
/atc
[1]In a June 21, 2012, decision Judge Feldman ordered Respondents to temporarily reinstate Shemwell. Secretary of Labor o/b/o Reuben Shemwell v. Armstrong Coal Co., et al., Docket No. KENT 2012-655-D. The Commission affirmed Judge Feldman’s decision on July 12, 2012. Id.
[2] Respondent argues in its post-hearing brief that there is a lack of temporal proximity between Adam’s participation in the MSHA investigation on February 6, 2012, and his layoff on February 28, 2012. This argument is best preserved for the case on the merits. I find it sufficient given the minimal burden of demonstrating a non-frivolous complaint in a temporary reinstatement proceeding to conclude Adam’s participation reasonably could have led Respondents to suspect he made the anonymous complaint on February 27, 2012.
[3] To the extent that Respondent cries foul and objects to reliance on this evidence I would point out that our discussions during the prehearing regarding scope of evidence relate to that which would tend to support any inference that Respondent suspected that any one of the Complainant’s may have lodged the anonymous complaint not to establish separate and independent claims of protected activity. Such evidence however, may be relevant for those purposes in the merits based cases which may follow.