FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19^TH Street, Suite 443

Denver, CO 80202-2500

303-844-3577/FAX 303-844-5268

August 10, 2012

DECISION AND ORDER DENYING APPLICATION

FOR TEMPORARY REINSTATEMENT

ORDER OF DISMISSAL

Appearances:              Edward V. Hartman, Esq., Office of the Solicitor, U. S. Department of Labor, Chicago, Illinois, for Applicant;

R. Brian Hendrix, Esq., and Benjamin D. Wood, Esq., Patton Boggs, LLP, Washington, DC, for Respondent.

Before:                        Judge Manning

            This case is before me on an application for temporary reinstatement brought by the Secretary of Labor on behalf of Jeffrey Fletcher against Frontier-Kemper Constructors, Inc. (“Frontier-Kemper”) under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (the “Mine Act”). The application was filed by the Secretary on or about July 6, 2012, and Frontier-Kemper requested a hearing within 10 days of receipt of the application. The application alleges that Frontier-Kemper discriminated against Fletcher when he was terminated for participating in an inspection conducted by Inspector Stephen J. Wilson of the Department of Labor’s Mine Safety and Health Administration (“MSHA”). Fletcher was terminated from his employment on May 2, 2012, and he filed his complaint of discrimination with MSHA on May 31, 2012. The application states that the Secretary has determined that the underlying discrimination complaint filed by Fletcher was not frivolously brought. A hearing in this temporary reinstatement proceeding was held in Henderson, Kentucky, and the parties filed post-hearing briefs. For the reasons set forth below, I find that the Secretary failed to establish that Fletcher’s discrimination complaint was not frivolously brought.

I. SUMMARY OF THE EVIDENCE

            The parties entered into eight stipulations as follows:

1. Frontier-Kemper Constructors, Inc., is an independent contractor performing services at the Gibson South Mine, and it is an operator as defined in Section 3(d) of the Federal Mine Safety and Health Act, 30 U.S.C. § 802(d).

2. Frontier-Kemper Constructor, Inc.’s Gibson South Coal (South) LLC-Gibson South Slope construction project is located in Gibson County, IN.

3. The complainant, Jeffrey Fletcher, was employed by Respondent at the Gibson South slope construction project and he was a miner within the meaning of Section 3(g) of the Mine Act, 30 U.S.C. § 802(g).

4. During the day shift on April 30, 2012, Mr. Fletcher was asked by his supervisor, Jeff Knowlton, to assist Mr. Knowlton in marking the drill pattern on the working face of the slope with paint.

5. While marking the working face with paint on April 30, 2012, Mr. Knowlton and Mr. Fletcher both placed themselves at least 7.5 feet beyond the last row of roof support, in violation of the approved roof support plan and 30 C.F.R. § 77.1900-1.

6. On May 1, 2012, MSHA Inspector Stephen J. Wilson, A/R Number 24865, observed the paint on the working face and determined that the face was at least 7.5 feet from the last row of roof support.

7. On May 2, 2012, Frontier-Kemper Constructors, Inc., suspended Mr. Fletcher and his employment was terminated on May 9, 2012.

8. This temporary reinstatement proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and its designated Administrative Law Judge pursuant to Sections 105 and 106 of the Mine Act.

            Jeffrey Fletcher worked for Frontier-Kemper as an hourly employee for about six years. (Tr. 17). As stated in the stipulations, he was terminated from his employment on May 9, 2012. At all relevant times, Frontier-Kemper was helping Gibson South Coal develop a new mine by constructing the slope that would eventually become the main entrance for the mine. Fletcher was classified as a “Miner 1" while working on this project, which denotes “a more experienced, more knowledgeable miner.” (Tr. 20). Fletcher was given training on roof control plans, but he testified that the plans were not reviewed in depth. (Tr. 21). Until he was terminated, Fletcher had never received any discipline from Frontier-Kemper.

            On April 30, 2012, Fletcher was working the day shift at the slope, which runs from 7:00 a.m. to 7:00 p.m. Jeff Knowlton was his supervisor. (Tr. 22). Knowlton was in charge of the slope crew and he was known as the “walk boss.” (Tr. 23). There were about six miners on the crew that day including the mechanics. (Tr. 26). Fletcher had worked for Knowlton at other projects for Frontier-Kemper and Fletcher testified that Knowlton had never done anything that caused him to distrust him. He also testified the he felt comfortable raising any safety concerns with him. (Tr. 54, 114-15). At the start of the shift, the crew was pinning the roof by installing roof bolts to support the roof. On April 30 the roof control plan required that roof bolts be installed on four foot centers. Knowlton was operating the roof bolting machine that morning. (Tr. 24). Fletcher’s job that morning was to make sure that all of the necessary supplies were available including roof bolts, plates, and glue. According to Fletcher, this pinning operation took about nine hours of the twelve hour shift. Id. The crew stopped roof bolting at about 4:00 p.m. that day.

            At about 4:00 p.m., Knowlton told the crew to go to the surface to prepare the jumbo drill for the next cycle of mining. (Tr. 25, 61). As the jumbo drill was being prepared, Knowlton came up to the surface and told Fletcher he was going to help him paint the face. (Tr. 26, 62). The upper portion of the face is painted using a basket that is attached to a scoop. The basket, which is equipped with railings, is designed to be picked up by the bucket of the scoop. The miners painting the face stand in this basket when painting the face. (Tr. 27). The face is painted so that when the next section of the face is extracted, the slope is kept straight in accordance with the mine plan. Engineers point two beams of laser lights at the face which is marked with paint and, from those two markings, a center point is established. (Tr. 28). As described below, the crew then applies paint at other locations to designate the arch into which the steel arch support will be installed. The paint on the face tells the operator of the jumbo drill where to drill.

            Before stepping into the basket, Fletcher did not measure the distance between the last row of roof bolts and the face. He testified that he did not even look up at the roof to estimate this distance or to look at the condition of the roof. (Tr. 28-29, 65-67, 76). He did not know whether Knowlton took any measurements. Tony Theriac, a mucker, was the other miner involved in this work. Theriac operated the scoop. Besides Knowlton, Fletcher was the most experienced miner on the crew. (Tr. 63). After they found the centerline, Fletcher got into the basket with Knowlton and Theriac lifted the bucket slightly which positioned Fletcher and Knowlton about a foot from the face under unsupported roof. (Tr. 64, 115-16). Fletcher testified that he did not notice that he was under unsupported roof but that he knew that a miner is not allowed to work between the last row of roof bolts and the face if that distance is greater than four feet. (Tr. 67-68, 76). He testified that he did not know that it was greater than four feet that day because he did not examine the roof. (Tr. 68). In addition, the previous shot did not leave the face in a smooth, flat condition. (Tr. 78). Fletcher held a nine foot pole on the center point so he could rotate it around while Knowlton painted the arch. (Tr. 30, 64). Fletcher estimated that this task took about 20 minutes. Id. Fletcher admitted that the normal procedure is to pin the roof to within four feet of the face before it is painted, drilled, and shot. (Tr. 80). He testified that he just did what Knowlton told him to do. (Tr. 81). After the face was painted, Fletcher walked back to the surface, performed other duties, showered, and left the mine at the end of his shift.

            On May 1, 2012, Fletcher arrived at the mine to start his 7:00 a.m. shift. He thought that the crew would start drilling the face using the painted surface as a guide and that these drill holes would be used to shoot the face later in the shift. Instead, the crew was told to take the roof bolting machine back down the slope to do more pinning. (Tr. 31). Knowlton was not at the mine that day. Three MSHA inspectors arrived at the slope at about 9:30 a.m. and one of the inspectors, Stephen Wilson, immediately “started hollering about the paint on the face.” (Tr. 32). The crew was in the process of installing another row of roof bolts. Inspector Wilson wanted to know who painted the face. Before anyone answered, Fletcher talked to Bob Smith and told him that he was on the crew that painted the face. (Tr. 32-22, 75). Fletcher testified that Smith told him “to be truthful and honest when [Inspector Wilson] asked questions.” (Tr. 33-34, 75). Bob Smith was the onsite project safety manager. (Tr. 36). Inspector Wilson approached Fletcher shortly after that and asked him questions. In response to these questions, Fletcher told the inspector that he was on the crew that painted the face, he explained the process that was used to paint the face, and he provided the names of the other crew members. (Tr. 34-35, 46, 85-86). The inspector also talked to other miners and asked for everyone’s full names and phone numbers. Inspector Wilson issued an order of withdrawal under section 104(d)(1) of the Mine Act, which closed down the slope for the day. The crew performed work on the surface for the remainder of the shift. (Tr. 36). Before Fletcher left that day, Fletcher and other members of the crew were told to report to Frontier-Kemper’s corporate headquarters in Evansville, Indiana, the following day rather than the slope. Id. Fletcher thought that the meeting was going to be with MSHA. (Tr. 37).

            On May 2, Fletcher reported to Frontier-Kemper’s Evansville headquarters office. Each miner was separately interviewed by George Zugel, the corporate safety director. Exactly what happened in these interviews is in dispute. Fletcher testified that at first Zugel was “pretty laid back.” (Tr. 39). He gave him some paper and wanted him to draw a picture of the face and to write a statement of what happened. Id. During this interview, Zugel also asked Fletcher if he had talked to MSHA and what he had told them. Fletcher told Zugel that he told MSHA that he was involved in painting the face. (Tr. 44, 96-97). Fletcher then left Zugel’s office and went to another area to write up his statement and draw a picture of the face as it appeared on April 30. The statement he wrote is Government Exhibit 1 and the drawing is page two of Government Exhibit 2. A couple of hours later that morning, he was asked to return to Zugel’s office. Fletcher handed him the statement and drawing. Fletcher testified that when Zugel looked at his statement, “he didn’t like it.” (Tr. 42). Zugel said, “somebody’s lying” and that “he [Zugel] was going to get to the bottom of it.” (Tr. 42, 95). Fletcher testified that Zugel threatened his job and talked about a “federal car” that “was waiting to take somebody to jail.” (Tr. 42, 149). Fletcher testified that Zugel then said, “Now’s the time to give your ass to Jesus.” (Tr. 43). Fletcher testified that Zugel kept on asking him how far it was between the last row of roof bolts and the face that had been painted. It was Fletcher’s impression that Zugel was trying to get him to give Zugel a definite measurement. (Tr. 43, 95). When Fletcher told Zugel that he did not measure the distance between the last row of roof bolts and the face, Zugel just “couldn’t accept” that. Id.

            Fletcher testified that Zugel gave him an “opportunity to write another statement.” (Tr. 43). Fletcher said that Zugel told them that if he brought back another statement like the first one, he would no longer have a job. Fletcher then drafted a second statement, which is the first page of Government Exhibit 2. It was Fletcher’s impression that when he presented the second statement to Zugel, he seemed to like it “a whole lot better.” (Tr. 45). Fletcher believes that the first statement was true. The first statement sets forth details about what happened on April 30, including using the basket to paint the face. This statement does not mention that anyone was working beyond the last row of roof bolts that were more than four feet from the face. (Tr. 90, 102; Ex. G-1). Near the end of that first statement, however, Fletcher wrote that, after George Foster completed the preshift examination on the morning of May 1, he told the crew that more pinning was required “because it was over 4 ft.” (Tr. 51; Ex. G-1). In the second statement, Fletcher states, in part, that on April 30 “Jeff Knowlton and I went [beyond] the last row of bolts in excess of well over the 4 ft standard bolt pattern specified by MSHA regulations from the basket and painted the top portion of the face w/ orange paint.” (Ex. G-2, p. 1) . Fletcher said that it took him awhile to write the second statement because he did not know what Zugel was looking for. (Tr. 99). Fletcher testified that he was at the Frontier-Kemper office about six hours that day. Before he left the offices that day, he was given a suspension notice. (Tr. 47).

            Fletcher subsequently received a letter dated May 10, 2012, from Frontier-Kemper terminating him from his employment. (Tr. 48; Ex. G-3). The letter states that he was terminated “due to non-compliance with safety rules and regulations pertaining to the events that occurred at the Gibson South job on May 1, 2012.” (Ex. G-3). The letter was signed by Angie Pulliam, Assistant HR Manager. Fletcher filed his complaint of discrimination with MSHA on May 31, 2012, alleging that he was terminated. “As a result of my participation of an MSHA accident investigation of a violation issued to Frontier-Kemper, I was terminated.” (Ex. G-4). He asked for his job back with back pay. Fletcher testified that he was fired because of the “MSHA inspector that I talked to.” (Tr. 49). He stated: “That’s the absolute only thing I did any different than anybody else and I was fired for and they got a citation.” Id. Apparently, at the time he filed his discrimination complaint, Fletcher did not know that Knowlton and Theriac were also terminated from Frontier-Kemper for the events of April 30-May 1. (Tr. 70).

            Fletcher admitted that he was a certified miner in Kentucky and that he received annual training with Frontier-Kemper every year. (Tr. 52-53). He was given training when he started working at the slope project in March 2012. (Tr. 54). He admitted that one of the most basic rules that an underground coal miner must learn is not to go inby the last row of roof bolts. (Tr. 55-56). He agreed that this rule had been taught in his training. In addition, Fletcher remembered that a miner was seriously injured in the slope when a rock fell from the roof on March 27, 2012. (Tr. 56, 59). Fletcher also remembered a meeting with Mr. Smith after that accident in which Frontier-Kemper stressed the importance of complying with the roof control plan. (Tr. 57). He also remembered being told by Smith at that meeting that working under unsupported top or any violation of company policy with regard to the roof control plan could result in termination. (Tr. 58). At the end of that meeting, Fletcher signed a statement signifying that he attended that meeting at which the importance of following the roof control plan was discussed. (Tr58-60.; Ex. R-A).

            Robert Bretzman, the MSHA special investigator who investigated Fletcher’s discrimination complaint, also testified at the hearing. He signed a declaration setting forth the reason why he concluded that Frontier-Kemper violated section 105(c) of the Mine Act. (Tr. 122; Ex. G-6). In the declaration, Bretzman stated that “[b]ased on the information available as a result of the special investigation I have conducted to date in this matter, I have concluded that evidence exists the Frontier-Kemper Constructors, Inc., decided to discharge Mr. Fletcher based, in part, on his participation in an MSHA inspection, and the subsequent violation that was issued.” (Ex. G-6 p. 2). He wrote the declaration on June 27, 2012, and testified that “at that point in time [his] investigation had just begun.” (Tr. 145).

            Inspector Bretzman is presently conducting a special investigation under section 110(c) of the Mine Act to determine whether a penalty case should be brought against Jeff Knowlton, an agent of Frontier-Kemper, as a result of the section 104(d)(1) order that was issued. (Tr. 123). Bretzman acknowledged that the number one rule in MSHA’s “Rules to Live By” is to never work under unsupported roof. (Tr. 126).

            George Zugel, corporate safety director, testified for Frontier-Kemper. He has extensive experience in the mining industry and is an MSHA certified trainer. (Tr. 155). On March 27, 2012, there was a fall of ground at the slope project because the roof was not properly supported. (Tr. 157). It was likely that the project manager would have been terminated because of this accident, but he resigned shortly after the accident. All the miners were retrained in roof support during what the company calls a “safety stand-down” because the slope project was shut down for this lengthy training session. (Tr. 158). Zugel testified that everyone was “reschooled on the concept of ground support starting from the basic on up to and including the contents of our approved sinking plan and the expectations of upholding that approved sinking plan.” (Tr. 159, 180-81). Frontier-Kemper received a citation for the March 27 accident. To abate the citation, the ground support plan was augmented and submitted to MSHA for approval.

            Zugel headed up the investigation into the events of April 30, 2012. He received a phone call from Bob Smith on the morning of May 1 advising him that MSHA would probably be issuing an order. (Tr. 160). Smith described the paint marks in relation to the last row of bolts and informed Zugel that Fletcher would be talking to the MSHA inspector to let them know that he was involved in painting the face. Zugel replied “by all means.” Id. Smith also told Zugel that he advised Fletcher to be truthful and forthright in his dealings with MSHA. Later Zugel learned from Smith that the MSHA inspector measured the distance between the face and the last row of roof bolts as being 7.5 feet. Zugel testified that this fact upset him because someone chose to “disregard good, solid safety training and procedures.” (Tr. 162). Before the end of the day, Zugel determined that he should execute an investigation away from the project site to find out what went wrong. He asked the project manager to have anyone who had a role in the incident to report to the Evansville office on May 2. Four individuals came to Evansville to be interviewed. (Tr. 164).

            Knowlton was interviewed first. (Tr. 165). During the first interview with him, it was not clear if he measured the distance between the last row of bolts and the face. At one point he stated that he measured the distance and it was 4.5 feet and at another point he said he did not do any measuring. (Tr. 165). He told Knowlton that he expected him to tell the truth. (Tr. 166). Zugel believed that Knowlton was lying to him and told him that it was time for him “to come to Jesus.” (Tr. 164). By that, Zugel meant it was time for him to stop lying and tell the truth. During his second interview, Knowlton broke down and started weeping. (Tr. 167). Knowlton started describing all the personal problems he was having and said he could not afford to lose his job or “get sideways” with MSHA. Id. Knowlton admitted that he and Fletcher went out under unsupported roof when they painted the face. (Tr. 168). He also admitted that when he measured the distance between the last row of roof bolts and the face it was about seven feet. (Tr. 194).

            Zugel interviewed Fletcher after he had talked to Knowlton. Zugel testified that, during the first oral interview of Fletcher, Fletcher said that he observed Knowlton measure the distance between the roof bolts and the face and that it was about four feet. (Tr. 169). Zugel said that Knowlton said the same thing during his first interview. (Tr. 169; Ex. G-7). Zugel testified that he was both disappointed and angry with Fletcher. Zugel believed that Fletcher was a skilled miner and he could not understand why he would work under unsupported roof. (Tr. 171). Although Zugel was angry with Fletcher during the interviews, he denied making any reference to a “federal car” or otherwise threatening Fletcher. (Tr. 172). He testified that when he gave Fletcher the opportunity to write another statement, he did not order him to say anything specific other than to tell the truth but that he did tell Fletcher that Knowlton admitted that they had worked under unsupported roof . (Tr. 174). Zugel asked Fletcher what he told the MSHA inspector so that he could compare what Fletcher told MSHA to what he was telling him. (Tr. 179). At the hearing, Zugel estimated that he spent about two hours interviewing Fletcher. (Tr. 176).

            After he completed all of the interviews, Zugel spoke with upper management and described what his investigation revealed. In his meeting with management, Zugel recommended that Knowlton be immediately terminated and that Fletcher be terminated as well. It was Zugel’s position that an “[e]xperienced miner going under unsupported ground is inexcusable” because it is “an egregious violation of safety rules.” (Tr. 178). Zugel testified that the fact that Fletcher talked to MSHA did not “change the complexion” of the situation and it had no influence on the order of withdrawal being issued. (Tr. 180).

            The decision to terminate Fletcher from his employment was made by Dave Rogstad, the president and CEO of Frontier-Kemper. (Tr. 189-90). He based this decision on the recommendation of Zugel and Zugel’s description of what happened on April 30. Zugel testified that the decision to terminate Fletcher was not based, in any part, on the fact that Fletcher spoke with an MSHA inspector on May 1. (Tr. 190, 220). Zugel testified that Rogstad told him that he decided to terminate Fletcher, in part, to “send a clear message throughout the company that we will not tolerate unsafe acts.” (Tr. 191). Knowlton, Fletcher, and Theriac were all terminated for engaging in the unsafe acts. (Tr. 192). As a result of these events and other safety-related events, the head of Frontier-Kemper’s mining division is also no longer working for the company.

            On May 3, 2012, Zugel met with MSHA at the district office on Vincennes, Indiana. Mary Jo Bishop, the acting district manager, Anthony DiLorenzo, the acting assistant district manager, and a special investigator were present. In addition to discussing the (d)(2) order, Zugel told them that Knowlton had been terminated and that Fletcher had been suspended pending the completion of the company’s investigation. (Tr. 185). Ms. Bishop indicated that anyone terminated should not be permitted to work at other Frontier-Kemper projects. Id. Following this meeting, Frontier-Kemper shut down the slope project for 24 hours and retrained all the miners at a facility of Vincennes University and MSHA participated in the training session. (Tr. 187).

                          II. BRIEF SUMMARY OF THE PARTIES’ ARGUMENTS

            A. Secretary of Labor and Jeffrey Fletcher

            The Secretary contends that the evidence clearly establishes that the discrimination complaint was not frivolously brought. She maintains that where a miner engages in protected activity, suffers an adverse employment action, and an inference of nexus exists between the two events, temporary reinstatement is proper. Fletcher spoke with an MSHA inspector on April 30, 2012; two days later Respondent’s corporate safety director asked Fletcher whether he talked to an MSHA inspector and what they discussed, and he was then suspended without pay and subsequently terminated. She argues that an illegal motive should be inferred where termination occurred just a few days after Fletcher spoke with an MSHA inspector.

            The Secretary cites case law which provides that a Commission judge must determine “whether the evidence mustered” by the miner to date establishes that his complaint is nonfrivolous, “not whether there is sufficient evidence of discrimination to justify permanent reinstatement.” Jim Walter Resources, 920 F.2d 738, 747 (11^th Cir. 1990). “Whether a complaint appears to have merit should not be equated, however, with a determination whether a complaint actually has merit – a determination that can and should be made only after the parties have had the opportunity to develop their cases fully through discovery and have presented all supporting evidence.” (Sec’y Br. 5) (emphasis in original). The Secretary also argues that the judge should not make credibility determinations nor weight the operator’s rebuttal or affirmative defense against the Secretary’s evidence of a prima facie case. In this case, Frontier-Kemper had knowledge of Fletcher’s protected activity, there was temporal proximity between the protected activity and the adverse action, and there is evidence of animus or hostility toward the protected activity.

            As to the animus factor, Zugel testified that he wishes that Frontier-Kemper had not received the section 104(d)(1) order. (Tr. 180). In addition, Zugel was unable to describe what he believed was not true in Fletcher’s first written statement. Zugel further testified that although other Frontier-Kemper employees had gone under unsupported roof at other operations, he was unsure whether they were disciplined or whether they had spoken to MSHA. (Sec’y Br. 8 citing Tr. 207). The core of the Secretary’s argument as to animus or hostility is as follows:

What Mr. Zugel’s testimony makes abundantly clear is, that when the most serious of all violations occurs, AND Frontier miners (i.e. Mr. Fletcher) knowingly tell MSHA inspectors about what happened, he personally gets involved and conducts a lengthy investigation by which he doesn’t collect all the evidence (i.e. fails to keep allegedly false statements), fails to submit any written reports to upper management, and goes into the investigation with the knowledge that if the miner submits a false statement he will be fired and if he tells the truth he will be fired. Seemingly if MSHA is not involved in an incident, Mr. Zugel’s recollection of the circumstances and results will be severely dimmed to say the least.

(Sec’y Br. 8) (emphasis in original).

            B. Frontier Kemper

            Frontier-Kemper does not deny that Fletcher engaged in protected activity when he talked to an MSHA inspector or that he was suspended and then terminated a few days thereafter. It argues, however, that his termination was solely based on his failure to comply with the most basic safety rule in underground mining. The evidence demonstrates that Frontier-Kemper encouraged Fletcher to talk to MSHA and advised him to tell the truth. It argues that there is no evidence that Frontier-Kemper showed any animus or hostility toward Fletcher’s protected activity. Fletcher informed MSHA that he helped paint the face while standing in the basket under unsupported roof. This violation of the roof control plan was already obvious from the physical evidence that was present when the inspectors arrived.

            Frontier-Kemper also argues that mere coincidence in time is insufficient to sustain the application for temporary reinstatement in this case because Frontier-Kemper, as well as MSHA, became aware of the violation of a critical safety standard at the same time Fletcher confessed to the MSHA inspector. “It is common sense that Fletcher would be disciplined and terminated after a serious safety violation that also happened to involve an MSHA investigation.” (FK Br. 13-14). Frontier-Kemper also maintains that Fletcher was not treated disparately. Every employee who was involved in the unsafe practice was terminated, whether or not they talked to MSHA, and other crew members who talked to MSHA but were not involved were not terminated. The evidence clearly establishes that Fletcher was terminated because of his unsafe actions and his lack of candor with his employer.

III. DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

            Section 105(c)(2) of the Mine Act prohibits discrimination against miners for exercising any protected right under the Mine Act. The purpose of the protection is to encourage miners “to play an active part in the enforcement of the [Mine] Act” recognizing that, “if miners are to be encouraged to be active in matters of safety and health, they must be protected against any possible discrimination which they might suffer as a result of their participation.” S. Rep. No. 181, 95^th Cong., 1^st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95^th Cong., 2^nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977 at 623 (1978) (“Legis. Hist.”).

            Section 105(c)(2) provides, in pertinent part, that the Secretary shall investigate each complaint of discrimination “and if the Secretary finds that such complaint was not frivolously brought, the Commission, on an expedited basis upon application of the Secretary, shall order the immediate reinstatement of the miner pending final order on the complaint.” The Commission established a procedure for making this determination at 29 C.F.R. § 2700.45. Subsection (d) provides that the “scope of a hearing on an application for temporary reinstatement is limited to a determination as to whether the miner’s complaint was frivolously brought.”

            “The scope of a temporary reinstatement proceeding is narrow, being limited to a determination by the judge as to whether a miner’s discrimination complaint is frivolously brought.” Secretary of Labor on behalf of Price v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d sub nom. Jim Walter Resources Inc. v. FMSHRC, 920 F.2d 738 (11^th Cir. 1990). Courts and the Commission have equated the “not frivolously brought” standard contained in section 105(c)(2) of the Mine Act with the “reasonable cause to believe standard” at issue in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987). It has also been equated with “not insubstantial.” Jim Walter Resources, 920 F.2d at 747. Congress indicated that a complaint is not frivolously brought if it “appears to have merit.” (Legis. Hist. at 624-25). The Commission has held that the judge should not undertake to resolve disputes of fact or credibility that arise in a temporary reinstatement hearing. Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717,719 (July 1999); Sec’y of Labor on behalf of Stahl v. A & K Earth Movers, Inc., 22 FMSHRC 323, 325-26 (2000).

            A key issue is whether there was any kind of causal nexus between the protected activity and the adverse action. The Commission has frequently acknowledged that it is often difficult to establish a “motivational nexus between protected activity and the adverse action that is the subject of the complaint.” Sec’y of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999). I find that there is no evidence of a causal nexus between Fletcher’s discussion with an MSHA inspector and his suspension and subsequent termination. Inspector Wilson saw what he believed to be a violation of the roof control plan as soon as he arrived at the face. As part of his investigation, he talked to everyone who might have any information about the conditions he observed. Because Knowlton was not present and Fletcher was the senior miner on that crew, the inspector understandably wanted to talk to Fletcher. Inspector Wilson would have had sufficient evidence to issue the order even if he had not talked to Fletcher. Given the physical evidence that was present, neither Fletcher nor the other miners would have been able to credibly lie about what happened or establish a scenario in which there was no violation .

            The Secretary’s claim of disparate treatment was also not established. All three miners who were involved in the work of painting the face on April 30 were discharged. Although MSHA subsequently talked to Knowlton, no MSHA officials talked to him until after Inspector Wilson issued the order and he had been terminated from his employment. (Tr. 208). Inspector Wilson talked to other miners at the slope on May 1 and only the three miners responsible for the unsafe practice were disciplined by Frontier-Kemper. Apparently, Fletcher did not know that Theriac and Knowlton had also been terminated when he filed his discrimination complaint. (Tr. 49, 70).

            The Commission has held that a showing of hostility toward the protected activity is not required to support an order for temporary reinstatement. A & K Earth Movers, 22 FMSHRC 323, 325 n. 2 (March 2000). Nevertheless, it is clear that the Secretary did not establish animus or hostility toward Fletcher’s protected activity. As stated above, everyone involved knew that Inspector Wilson would want to talk to Fletcher, including Frontier-Kemper management and safety officials. The evidence makes clear that Fletcher was not treated any differently than he would have been if he had not talked to the inspector. In her argument on this issue, set forth above, the Secretary is trying to make the point that if Knowlton and Fletcher had proceeded under the unsupported roof on April 30 but the MSHA inspection team had not arrived at the slope on May 1, the discipline might not have been termination or the entire matter might have been swept under the rug and nobody would have been disciplined. Consequently, Fletcher’s conversation with Inspector Wilson was one factor that lead to his termination. This argument is beside the point because, even if I accept the Secretary’s argument that Fletcher would not have been terminated if MSHA had not arrived, it does not establish any animus or hostility toward Fletcher’s protected activity. The fact of the matter is that MSHA did arrive on May 1 and Frontier-Kemper terminated everyone who was involved in the unsafe practice whether or not they spoke to MSHA.

            I find that the Secretary has not established that there is reasonable cause to believe that Fletcher was terminated, even in part, because he spoke to Inspector Wilson about the events of April 30. Based on the evidence presented at the hearing, I find Applicant’s discrimination claim is completely lacking in merit. The only factor in the Applicant’s favor is the temporal proximity between the protected activity and the adverse action. Under the facts of this case, that is simply not enough. I have not attempted to resolve disputes of fact or credibility in reaching this conclusion. Although there are some disputes as to what was said during Fletcher’s interviews with Zugel, the important, relevant facts are not in dispute.

IV. ORDER

            For the reasons set forth above, I find that the Applicant did not establish that there was reasonable cause to believe that Jeffery Fletcher was terminated from his employment with Frontier-Kemper Constructors, Inc., for engaging in activities protected under the Mine Act. The “not frivolously brought” standard has not been met. As a consequence, the Secretary of Labor’s application for the temporary reinstatement of Jeffrey Fletcher is DENIED and this case is hereby DISMISSED.

                                                                        /s/ Richard W. Manning

                                                                        Richard W. Manning

                                                                        Administrative Law Judge

Distribution:

Edward V. Hartman, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S Dearborn Street, 8^th Floor, Chicago, IL 60604 (Hartman.Edward.V@dol.gov)

R. Brian Hendrix, Esq., Patton Boggs LLP, 2550 M Street, NW, Washington DC 20037 (bhendrix@PattonBoggs.com )

RWM