FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19^TH Street, Suite 443

Denver, CO 80202-2536

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

October 29, 2012

DECISION AND ORDER GRANTING APPLICATION

FOR TEMPORARY REINSTATEMENT

Appearances:              Francesca Cheroutes, Esq., Office of the Solicitor, U. S. Department of Labor, Denver, Colorado, for Applicant;

Kristin R.B. White, Esq., and Michelle C. Witter, Esq., Jackson Kelly, PLLC, Denver, Colorado, 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 Nelson Gregory Bradley (“Bradley”) against Climax Molybdenum Company (“Climax”) 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 October 4, 2012, and Climax requested a hearing within 10 days of receipt of the application. The application alleges that Climax discriminated against Bradley when he was demoted and then terminated from his employment because he engaged in protected activities by reporting a supervisor who failed to immediately correct or report hazardous conditions and for counseling a miner who violated one of the mine’s safety rules. Bradley was demoted from a supervisory position to an hourly miner on February 21, 2012, and he was terminated from his employment on June 25, 2012. The application states that the Secretary has determined that the underlying discrimination complaint filed by Bradley was not frivolously brought. An evidentiary hearing in this temporary reinstatement proceeding was held in Denver, Colorado, and the parties presented oral argument in lieu of filing briefs. For the reasons set forth below, I find that the application for temporary reinstatement must be granted.

I. SUMMARY OF THE EVIDENCE

            The parties entered into eight stipulations as follows:

1. Respondent is an operator within the meaning of the Federal Mine Safety and Health Act of 1977 (the “Mine Act”), 30 U.S.C. § 801 et seq.

2. Climax Molybdenum Company; Henderson Mine; Mine I.D. No. 05-00790, is subject to the jurisdiction of the Mine Act.

3. At all times relevant to this proceeding, Complainant, Nelson Gregory Bradley, was a “miner” within the meaning of §§ 3(g) and 105(c) of the Mine Act, 30 U.S.C.§§ 802(g) and 815(c).

4. The administrative law judge has jurisdiction in this matter to decide whether the complaint of discrimination filed by Nelson Gregory Bradley pursuant to § 105(c)(2) of the Mine Act was frivolously brought.

5. On February 21, 2012, Nelson Gregory Bradley was demoted from his salaried position as a front line supervisor in the development department to an hourly miner assigned to the road crew.

6. On May 4, 2012, Nelson Gregory Bradley called the Freeport McMoRan Compliance Line.

7. By letter dated June 25, 2012, the Mine indicated Nelson Gregory Bradley’s employment was terminated.

8. On or about June 26, 2012, Nelson Gregory Bradley filed a discrimination complaint with MSHA pursuant to § 105(c) of the Mine Act, MSHA case No. RM-MD-12-11.

            Bradley was employed by Climax between 1978 and 1982 and then again in 1995 until June 2012, with a few gaps in his employment. (Tr. 17). On or about June 25, 2012, Bradley was terminated from his employment. The stated reason for his termination was his refusal to take a drug test. On May 4, 2012, Bradley called the Freeport compliance hotline to raise issues about a demotion he was given in February 2012. As described in more detail below, during the company’s investigation into whether his demotion was justified, an hourly miner advised a management employee and a human resources department (“HR”) employee that he had reason to believe that Bradley and another Climax employee had been smoking marijuana underground at work. A drug test was ordered for Bradley and the other employee. Both employees refused to take the drug test. Because this refusal was in violation of Freeport’s “Guiding Principles,” they were terminated from their employment. (Ex. R-3, p. 26). Climax maintains that it has an absolute right to terminate an employee who is using drugs or alcohol at work or who refuses to take a drug test. Because Freeport has a strict drug and alcohol-free policy and all employees who fail a drug test or who refuse to take a drug test are terminated for violating this policy, it had the right to terminate Bradley. Climax also maintains that Bradley did not engage in conduct protected by the Mine Act and that his demotion and termination were not motivated in any part by his protected activity. It contends that the complaint of discrimination was frivolously brought in this case.

CHRONOLOGY OF EVENTS

            1. November 11, 2011 - In 2011, Bradley was a front line supervisor in the development department at the Henderson Mine. On November 11, he called Albert Archuleta, a safety specialist in the Climax safety department, to raise a concern about Joe Hatrick. (Tr. 22). Joe Hatrick was the superintendent of the development department at the mine. Bradley told Archuleta that Hatrick was coming underground, visiting the work sites, and observing safety hazards, but not reporting these hazards to anyone until two to three hours later. Id. Bradley testified that he was trained to address safety hazards immediately or barricade the affected area until the hazards could be corrected. Bradley testified that on November 11, Hatrick called a senior supervisor on the section about two to three hours after he visited the area with instructions to tell Bradley to “write up certain individuals for violations.” Id. Joe Hatrick’s actions angered Bradley for several reasons. First, it left alleged safety hazards uncorrected for several hours. (Tr. 22, 81). Bradley believes that when Joe Hatrick came underground, he should have immediately pointed out any safety hazards to him so that they could be corrected at that time. Second, he also believed that Joe Hatrick’s actions undercut his authority as a front line supervisor. As the miners’ immediate supervisor, Bradley believed that he should determine how serious any safety infraction is and whether the miner responsible should be formally disciplined or just coached. Bradley testified that he talked to the safety department because he believed that Joe Hatrick’s actions perpetuated safety hazards and created an unsafe and hostile work environment.

            2. November 16, 2011 - The following Monday, Joe Hatrick spoke to Bradley and told him that Rick Sinclair, Bradley’s immediate supervisor, wanted to talk to him. Bradley then briefly met with Hatrick, Sinclair, and Dave Smith, another senior supervisor. Bradley testified that Sinclair asked him who he had been talking to. (Tr. 23). When Bradley told Sinclair that he had talked to Archuleta, Sinclair asked what it was all about. Bradley testified that after he responded to Sinclair’s question, Hatrick leaned forward in an agitated manner and told Bradley that it was “[your] job to manage the stress levels underground, no matter what; and that if [you] could not manage the stress levels underground, that [you] might ought to seek opportunities elsewhere.” (Tr. 24). After Hatrick left the area, Sinclair assured Bradley that he had the authority to manage his crew but that, in effect, he needed to learn how to deal with Hatrick.

            3. January 31, 2012 - Will Hatrick, Joe Hatrick’s son, was an hourly miner on Bradley’s crew. It was reported to Bradley that Will committed a safety infraction. (Tr. 25). There was a safety rule at the mine that prohibited operators of concrete transports from backing past a safety cone until that operator had “positive and clear communications from the workers in the area.” Id. Apparently there had recently been an accident in which a concrete transport backed up to a shotcrete rig and bumped against a miner. Lenny Juull, an hourly lead man on the crew, told Bradley that Will Hatrick started backing up while he and another miner were working in the area without first communicating with them. (Tr. 27). At the end of the shift, Bradley asked Will Hatrick why he had backed up past a safety cone. (Tr. 29). Bradley testified that Will immediately became agitated and said that he had been sitting there a long time and he was just backing up around a corner so he would be in direct line of sight of the workers. Id. Bradley told Will that backing up beyond a safety cone can put miners in danger unless they know that you will be doing so. He told Will Hatrick that he should have set the emergency brake, chocked the tires, walked over to the miners to see if they needed any help, and then communicated with miners in the area before he started backing up. (Tr. 29-30).

            According to Bradley, Will Hatrick said that he was being treated unfairly and wanted to know when he could schedule the EMT class he wanted to take. (Tr. 30, 86-87). Bradley testified that he did not issue any formal discipline to Will Hatrick because he was “a little nervous about issuing the superintendent’s son more strict discipline.” Id. Bradley testified that if Will were not Joe’s son, he might have issued a written disciplinary notice. (Tr. 89). Bradley believed that Will’s actions created a safety hazard. (Tr. 88). Bradley believed that Will was trying to advance too quickly and he was always asking to receive training on other pieces of equipment.

            Will Hatrick also testified about the events of that day. (Tr. 158-61). He testified that, because the area had been set up incorrectly with the concrete transport around a corner, he backed the concrete transport up just enough so he could see the area where he was to dump the concrete. He said that the back of his transport only passed the safety cone a short distance, but that Juull started yelling at him. (Tr. 158). Will testified that Bradley agreed with him that the area had been set up poorly by Juull because it required Will to back around a blind corner when it was time to dump the concrete. (Tr. 159).

            Will testified that when he talked to Bradley at the end of the shift, Bradley did not talk about the incident underground but started giving Will a hard time because he was getting special treatment and that he should not be taking EMT training on his days off because it was “bad morale for the crew.” (Tr. 161). Will testified that every time he sought additional training, Bradley would respond that “you have to crawl before you can walk.” (Tr. 162-63).

            4. Late January 2012 - David Long, another senior supervisor in the development department who reported to Joe Hatrick, testified that David Smith approached him in late January 2012 and said that an hourly employee came to him and complained about a “hostile work environment.” (Tr. 165). After he talked to Tom Green, an investigation into this allegation was started. They talked to six or seven hourly employees in development, including Will Hatrick. Long testified that it was clear that many employees on Bradley’s crew were upset and complained that he was not fair with them. (Tr. 167). Long testified that the miners told him that Bradley hollered at them to such an extent that they “didn’t want to come to work.” (Tr. 167). Long also testified that the miners told him that Bradley spent a lot of his time operating equipment. Long testified that supervisors should not be operating equipment because you cannot be both a supervisor and an equipment operator. (Tr. 168). The miners also complained that Bradley would not give them time to eat lunch or get a drink of water.

            5. February 17, 2012 - While Bradley was in North Dakota attending his father-in-law’s funeral, he received a phone message on his voice mail from David Smith saying that he had been reported for harassment and mismanagement, and that he was to report to the mine on February 21 for a hearing. Bradley suspected that Will Hatrick complained about him and that this complaint was the reason why he had to attend a hearing on this issue. (Tr. 34).

            6. February 21, 2012 - Bradley attended the hearing, which was more in the nature of a meeting, to discuss the matter. Dave Long, HR specialist Matt Stones, and Dave Smith attended the meeting. Long started the meeting by listing the allegations against Bradley. It was reported that he had screamed at an employee for getting a concrete truck stuck in a ditch. (Tr. 35). It was reported that he told an employee that he had to “crawl before he could walk” and he was making it difficult for this employee to obtain EMT training. Bradley testified that he attempted to address each of the allegations. The truck incident involved Will Hatrick. Bradley testified that Will was driving a concrete truck and he got a flat tire. Rather than calling the shop so that someone could come and fix it, he continued driving with the tire totally flat, which caused the accident that damaged the truck. (Tr. 36). Bradley testified that when he found out about the accident, he asked Will how the accident happened and Will replied that Tim Cork told him to drive the truck to the shop despite the flat. Bradley testified that he did not yell at Will but simply told him that sometimes he should make his own decisions when things were not working out. (Tr. 37). The incident involving the EMT training also concerned Will Hatrick.

            At the meeting, there was also a discussion about Bradley spending too much time operating equipment. (Tr. 83, 167-68). He also admitted that he would sometimes talk to his crew in an “elevated tone,” but he said that he never screamed at them. (Tr. 84). The meeting lasted about 15 minutes. Bradley was told to leave the room and when he returned he was advised that he was being demoted to an hourly position on the road crew. (Tr. 38). His direct supervisor, Rick Sinclair, was in Canada at the time of the meeting.

            Long testified that Bradley was asked a lot of questions at the meeting about the allegations that the miners had raised. (Tr. 169). Bradley admitted that he operated equipment. When the EMT course that Will Hatrick wanted to take came up, Long testified that Bradley said that he told Will that he might not give him vacation time to take the EMT course. After Bradley left the room, his situation was discussed and several options were considered including terminating Bradley, giving him a written warning, and giving him additional training. (Tr. 171). Long testified that he recommended that Bradley be offered an hourly position in a different department where he could run equipment. (Tr. 171, 173).

            7. February 21 through March 22, 2012 - Bradley met with several managers and HR employees to discuss his demotion to try to get the decision reversed. The managers he discussed it with included Tom Green, Craig Filkins, and Matt Stones. Bradley believed that the demotion was not made in good faith and that it related to his complaints about Joe and Will Hatrick relating to safety issues. (Tr. 46-47).

            8. March 23, 2012 - Bradley met with Lee Fronapfel, the Henderson Mine Manager, to discuss his demotion. He was accompanied by Mike Aguilar, his immediate supervisor at that time, and Matt Stones. Bradley testified that Fronapfel told Bradley that if he did not stop trying to get his supervisory position back, he was “going down another road,” which Bradley interpreted to mean he would be fired. (Tr. 43, 94). Fronapfel indicated that he was demoted because he had an intimidating management style and he could not handle the stress of being a front line supervisor. (Tr. 98-99; Ex. R-4). At the reinstatement hearing, Bradley testified that he could deal with the pressure of meeting production and safety goals and that any stress in the work environment was a result of Joe Hatrick’s management style. Id. He also stated that he had never been previously counseled concerning his communication skills or his management style since he became a front line supervisor in 2005 or 2006. (Tr. 21).

            9. May 4, 2012 - Bradley called the Freeport compliance hotline to complain about his demotion. After Bradley made this call, he talked to Fred Menzer, who he described as the vice-president of Climax Molybdenum North America. (Tr. 45). Menzer said that he had just received the hot line complaint. His complaint caused Freeport to start an investigation of the demotion.

            10. June 4, 2012 - On or about June 4, 2012, Bradley was placed on investigatory leave with pay so he would not “influence the interviews.” (Tr. 49).

            11. May and June 2012 - In order to avoid the appearance of impropriety, Erich Bower, the manager of the Henderson Mill, conducted the investigation. As the mill manager, Bower did not generally interact with the miners or supervisors of the development or road crews at the Henderson Mine or their supervisors.

            Bower interviewed about 20 people during his investigation, both management and hourly, including Bradley. (Tr. 116, 153). During his interview on June 8, Bradley was asked about specific incidents. Bradley described the interview as follows:

They asked me about some of the statements being made. They asked me about some ear plugs being pulled out of Will's ears in the training process. And there was some line of questions more about me, about screaming until I was red in the face, and there were other issues. And about half that interview seemed like they were investigating me instead of my compliance hot line report.

(Tr. 51). He also described his problems with Joe Hatrick. Bradley provided a written statement to Bower, as well. (Tr. 96; Ex. R-4).

            Erich Bower testified that he understood that the complaint was that Bradley had been verbally harassed and unjustly demoted. (Tr. 109). Bradley told him that Joe Hatrick and other senior managers in the development department would come underground on a “witch hunt” and it was causing the miners to “look over their shoulder and therefore [they were] not able to work safely.” (Tr. 110). Bradley was also concerned about nepotism in the development department. He felt that Will was getting special treatment, that he was “untouchable,” and he could not properly supervise him. (Tr. 111). Bradley also told him that Will was asking to operate a lot of different pieces of equipment and Bradley felt that he was being moved along too quickly. (Tr. 86, 112).

            The last person Bower interviewed was an hourly miner on the development crew who was not identified at the hearing. Tom Green was present during this interview. (Tr. 138). At the end of the interview, Bower asked the miner if he would like to add anything. (Tr. 119). The miner hesitated and then said that he believed that Bradley and Lenny Juull had been using marijuana underground at the mine while on duty. Id. Bower testified that this miner told him that “he had actually seen [Lenny Juull] smoke marijuana and said [he] believes Greg [Bradley] is involved in it as well.” (Tr. 119). When Bower asked why he thought Bradley was involved, Bower testified that the miner said that Bradley and “Lenny would go down the drift and there would be a distinct smell and they would return with markedly changed demeanor, were his words, a mood shift from aggressive and agitated to mellow and relaxed, is what he said.” (Tr. 119-20). The unidentified miner did not report that he actually saw Bradley smoking marijuana. (Tr. 128). Bower testified that he pushed this miner because Bradley has worked at the mine a long time and the company has a random drug testing policy. Bower believed it was a stretch that they would be smoking marijuana at the mine. In response, Bower testified that the unidentified miner told him that he “actually saw Lenny Juull carrying a clean urine sample and that is how they passed the tests.” (Tr. 120).

            Bower said that after the unidentified miner mentioned the clean urine sample, Bower “hit the brakes on everything” and asked HR to schedule a drug test for both Bradley and Juull. (Tr. 120-21). Bower testified that he had no choice but to order that these employees be given direct observation drug tests. Id. Green also testified that a direct observation drug test was absolutely necessary in this instance “because there was a credible safety concern that the employee had raised.” (Tr. 139-41). Green testified that the fact that Bradley had phoned the compliance hotline did not have any bearing on his decision to order the drug test. (Tr. 146). Bower testified that he would have ordered the same type of drug test for any miner if it were reported that the miner had been using marijuana at the mine. (Tr. 122). Joe Hatrick did not play any role in requesting a drug test. (Tr. 131). He also testified that Bradley would still be working at the mine if he had taken the drug test and passed. (Tr. 122). Green’s testimony with respect to this interview was consistent with Bower’s. (Tr. 153-55).

            At the conclusion of the investigation, Bower determined that Bradley’s demotion was justified. Although he determined that Bradley was a good miner, he did not “fit the mold of a supervisor and . . . he was not performing those tasks well.” (Tr. 118). Bower’s investigation concluded that when senior supervisors discovered safety infractions, Bradley would often not write miners up for the infractions because he believed that these supervisors should have done so. (Tr. 132). Bower said that this was a red flag for him. He concluded that Bradley’s complaint about Joe Hatrick was not a safety complaint, it was a “management style complaint given to the safety department.” (Tr. 133).

            12. June 21, 2012 - Bradley received a message at home to call Tom Green. When he returned the call, he was advised to report to the mine on June 22 at 1:30 p.m.

            13. June 22, 2012 - When Bradley arrived at the mine, he was told by Tom Green that it had been reported that he was a drug user. (Tr. 53). The tests were to be performed at the mine offices by an independent alcohol and drug testing company. The test was to be performed using a guideline established by the Substance Abuse and Mental Health Services Administration of the Department of Health and Human Services. (Tr. 136-37; Ex. R-3, p. 24). Climax first inspected his locker. (Tr. 141). No prohibited substances were found in his locker. There were, however, about eleven alligator clips in Bradley’s locker. (Tr. 65). Bradley testified that these clips were used when performing electrical work, but he admitted that he did not perform any electrical work at the mine. He also admitted that alligator clips can be used when smoking marijuana. He was asked to take a breathalyser test and he did not object. The results were negative. Green told Bradley that he was going to be given a standard DOT drug test (Direct Observations Test) in the men’s room. Green asked him to lift up his shirt and to drop his pants to his knees. (Tr. 54). He was also advised that Green would observe him when he provided a urine sample. Green offered him water to drink. (Tr. 67). Bradley testified that he was stunned by this and had never heard of that kind of test being conducted at the mine. (Tr. 55). He did not take the drug test and said that he “needed representation.” (Tr. 57 )

            Bradley testified that he did not take the drug test because he did not trust management’s motive for conducting the test, he felt uncomfortable performing the test, he viewed the test as management’s way of trying to getting rid of him, and he had a tape recorder taped to his stomach. (Tr. 56). He told Green that the test was unfounded and the report must have come from the investigation of his complaint to the compliance hot line. After telling Green that he needed representation, Bradley walked out of the mine office to get in his truck. At Bradley’s truck Green asked him if he knew what this means and Bradley handed Green his security gate card/identification badge and left the property. (Tr. 57, 68-69, 143-44).

            14. June 26-27, 2012 - Bradley received a letter of termination from Climax dated June 25, 2012. (Tr. 58; Ex. R-7). He filed his complaint of discrimination with MSHA on June 26, 2012. (Tr. 77; Ex. G-1). Bradley testified that on June 26, 2012, he went to an independent lab and obtained a drug test and the results were negative.  

                          II. BRIEF SUMMARY OF THE PARTIES’ ARGUMENTS

            A. Secretary of Labor and Nelson Gregory Bradley

            Temporary reinstatement hearings before this Commission impose a low burden of proof and the Secretary must only show that “things could possibly have happened in the way that the claimant claims.” (Tr. 177). Conflicts of testimony are not to be resolved in a temporary reinstatement hearing. (Tr. 180).

Bradley participated in protected activity under the Mine Act on November 11, 2011 when he complained to the safety department that Joe Hatrick would wait several hours to address safety violations. (Tr. 178). Protected activity, under the Act, is “very broadly defined . . . on purpose” to protect miners. (Tr. 194). Moreover, Bradley’s coaching of Will Hatrick to enforce a rule that had already injured another miner was an attempt to enforce the safety rules of the Mine Act. Id.

On November 16, Joe Hatrick, Rick Sinclair and Dave Smith held a “coaching session” with Bradley where they told him that he should bring his complaints to someone within the developmental department and not to the safety department. (Tr. 178). These managers informed Bradley that if he disagreed with airing grievances within the department, he could “look for other employment, or might seek hourly employment.” Id. In addition to showing animus on the part of Climax Mine management toward safety complaints, the proximity in time between Bradley’s complaint and the “coaching session” exhibits a nexus in time. Id.

On January 31, 2012, Bradley coached Will Hatrick after Will broke a safety rule by backing behind a cone. (Tr. 179). On February 17, Bradley was supposedly demoted for mismanagement or for having an aggressive and harassing management style, despite the fact that he had always received exemplary evaluations. Id. Once again, these events show a nexus in time between Bradley’s actions concerning safety and management acting retributively against Bradley.

Any delay Bradley took in filing his discrimination complaint with MSHA was justified. Throughout the month subsequent to February 17, Bradley continued to complain about his demotion and the “retaliatory action that he believes he was subjected to.” (Tr. 179). On March 23, two members of Climax management threatened Bradley that he would be fired if he did not cease his complaints. Id. Climax knew that Bradley continued to question the legitimacy of his demotion and management was not happy that Bradley did so; they also “threatened additional adverse action if he continued” to do so. Id. Any delay in filing on Bradley’s part stemmed from the threatening actions of Climax management.

On May 4, Bradley called the Freeport compliance hotline. On June 4 he was placed on investigatory leave. Eighteen days later he was asked to take a drug test and was terminated when he refused. (Tr. 180).

Although refusing a drug test is usually legitimate grounds for termination, in this situation the drug test was the final act by a management that had escalated its adverse actions against Bradley in hopes that he would quit since they could not legally terminate his employment. (Tr. 181). The cases cited by Respondent where miners were rightfully terminated for refusing a drug test are not applicable in this situation. (Tr. 195). In both the Maynes and Perry cases, the miners in question were endangering themselves and other miners with their drug use by being intoxicated while working. Id. Even if Bradley were taking drugs at the time of the test, he could not possibly have endangered anyone because he was on investigatory leave. (Tr. 196). This test was not done to protect miner safety, but rather was a form of retaliation for Bradley’s safety complaints. Id.

The drug test represented another escalated step in a saga of threats and actions toward Bradley on the part of management. Climax management’s goal with these efforts was to make Bradley’s work environment intolerable enough for him to quit his job and abandon his safety complaints. (Tr. 197). The question of constructive discharge, whether a reasonable person would feel compelled to resign under the circumstances, is a question for the trier of fact and is therefore not appropriate to decide in this temporary reinstatement case. Id. That determination, however, does involve the cumulative effect that conditions have on a reasonable employee according to the Commission. Id. In Ramsey, the Commission held that a finding of constructive discharge can be based upon “aggravating factors such as a continuous pattern of discriminatory treatment.”

Climax has clear animosity toward safety complaints and a nexus in time exists between Bradley’s complaints and his refusal to take a retaliatory drug test. (Tr. 197). Bradley should immediately be reinstated as a front-line supervisor. (Tr. 198). If necessary, the Secretary is amenable to economic reinstatement. (Tr.181).

            B. Climax Molybdenum Company

The Secretary did not meet her burden of showing that a causal nexus existed between protected activity cited by Bradley and his subsequent termination by Climax. When legitimate reasons to discharge an employee exist at the same time as protected activity, an inference that a termination occurred due to the protected activity “should not necessarily be drawn.” (Tr. 183). While pursuing an investigation begun at Bradley’s request, Bower and Green testified that they ordered a drug test to be performed on Bradley because an unidentified hourly miner indicated that Bradley and Lenny Juull had been using drugs underground and carrying clean urine to pass drug tests. Id. For the sake of safety, Climax management had no other choice before them except to order the test. (Tr. 184). A direct observation test was necessary due to the hourly miner’s allegation that he had seen Juull carrying clean urine. (Tr. 183-184). A miner violates the drug policy by having drugs in his system at any time, regardless of how long ago those drugs were taken. (Tr. 185). The allegations made by an hourly miner, not management hostility toward safety complaints, necessitated Climax to perform a drug test on Bradley and Juull. (Tr. 187).

Once Bradley refused the direct observation test permitted by the drug and alcohol policy, the company’s Guiding Principles required that Bradley be terminated. (Tr. 185). Bradley was aware that the drug policy was a condition of his employment and he had signed the drug policy. (Tr. 185-186). If the test had been negative, Bradley would have returned to work. (Tr. 185). The company followed its drug policy which, including the administration of a direct observation drug test, is in accordance with federal guidelines. (Tr. 186). Bradley was aware that refusing a drug test would result in termination and he and Juull were both terminated. (Tr. 187). Bradley chose not to take the test, which resulted in his termination; there was no nexus between Bradley’s complaints and his termination.

Furthermore, Bradley did not engage in protected activity because his grievances were not safety complaints, but rather personnel complaints. Bradley’s complaints that Joe Hatrick searched for safety problems in the mine is a complaint about management style and actually stems from the fact that Joe Hatrick was tougher on enforcing safety issues than Bradley was. (Tr. 189). Complaining about a demotion is also clearly a personnel issue. Id. As for Bradley’s coaching of Will Hatrick, the incident is not documented and amounts to a supervisor performing a normal task and is not protected activity. (Tr. 189-190). Bradley did not participate in protected activity under the Mine Act.

Dave Long testified that Joe Hatrick was not involved in Bradley’s demotion and that Bradley’s complaint about Joe Hatrick in November had nothing to do with his demotion. (Tr. 190). Dave Long did not even know of the complaint. (Tr. 191). The complaint and subsequent demotion, furthermore, have no nexus in time; as one judge has stated in Oasis Contracting, “two and a half months is too far removed” to provide a nexus. (Tr. 190). A demotion, moreover, does not allow for the remedy of temporary reinstatement. (Tr. 191).

Lastly, the demotion is time-barred under the 60-day time limit. (Tr. 191). Bradley was not intimidated by management to drop his complaints, but rather chose other remedies besides filing a complaint with MSHA. Id. He filed a hotline complaint and approached the company’s VP of operations. (Tr. 192). When Bradley was finally terminated, it was not a culmination of a chain of events linked to his demotion, but simply the result of his own choice to refuse a drug test. Id. The first priority of the Mine Act is the health and safety of miners. Allowing a miner who refused or failed a drug test to return to work is repugnant to the Mine Act.

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, which provides in subsection (d) 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).

            Although an applicant for temporary reinstatement need not prove a prima facie case of discrimination, I must consider the elements of a discrimination claim. In order to establish prima facie case in a discrimination proceeding, a complaining miner bears the burden of establishing (1) that he engaged in protected activity and (2) that the adverse action complained of was motivated in any part by that activity. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds, 663 F.2d 1211 (3rd Cir. 1981). 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 Bradley’s contention that he engaged in protected activity was not frivolously brought. When Bradley talked to safety specialist Archuleta on November 11, 2011, about the failure of Joe Hatrick to take steps to immediately correct the safety problems he found, Bradley was engaging in an activity protected under section 105(c) of the Mine Act. He was concerned that Hatrick was leaving uncorrected, for a period of at least an hour, conditions that affect the safety of miners on his shift. Climax disputes Bradley’s motivation for “reporting” Hatrick. That Bradley had other concerns about Hatrick’s method of managing the development section does not negate the fact that he also raised safety concerns. He also engaged in protected activity when he spoke to Will Hatrick about his failure to adhere to the policy about backing up the concrete truck beyond the safety cones. Will Hatrick, however, disputed Bradley’s description of what happened on January 31. The Commission has held that it is “not the judge’s duty, nor is it the Commission’s, to resolve the conflict in testimony at the preliminary stage of the proceedings.” Sec’y of Labor on behalf of Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1088 (Oct. 2009) (citation omitted). For purposes of this temporary reinstatement case, I will accept Bradley’s description of the events that occurred in November 2011 and on January 31, 2012.

            There is no question that Bradley suffered two adverse actions. He was demoted on February 21 and he was terminated on June 25. In a temporary reinstatement case, the Secretary is not required to establish a causal nexus between the protected activity and the adverse action. She needs only to establish that there is a non-frivolous issue as to the causal nexus. To put it another way, she must simply demonstrate that evidence was presented to show that the adverse actions could have been motivated at least in part by the protected activity.

            Climax argues that Bradley’s complaint about his demotion is time-barred because more than 60 days passed before he filed his discrimination complaint with MSHA. I disagree. The 60-day time limit is not jurisdictional and I hold that justifiable circumstances may excuse a miner’s delay in filing a discrimination complaint. “[A] miner’s reasonable fear of retaliation may be considered in determining whether there are justifiable circumstances for the late filing of a discrimination complaint.” Holden v. Ross Island Sand & Gravel Co., 27 FMSHRC 400, 405 (April 2005) (ALJ). I find that the evidence establishes that Bradley believed he was being threatened with retaliation for raising safety concerns with mine management. The record also shows that his fear of retaliation was not entirely frivolous. Although he continued to try to get his demotion reversed, filing a complaint with MSHA would have raised the entire issue to a much higher level. There has been no showing that Climax has been prejudiced by the delay. Moreover, he filed his complaint of discrimination within a few days after he was fired.

            I find that, although the Applicant did not establish that Bradley’s demotion was a direct result of his protected activity, his protected activity could have been one of the motivating factors that led to his demotion, for purposes of this temporary reinstatement proceeding. Climax management had knowledge of his protected activities. Indeed, one of his protected activities was directed to his immediate supervisor. There was hostility displayed by management when he complained to the safety department about what he considered to be Joe Hatrick’s unsafe actions. There was also some coincidence in time between his protected activities and his demotion. His first protected activity occurred on November 11 and his other protected activity occurred on January 31 the following year. Bradley was on leave in North Dakota for two weeks between January 31 and the date of his demotion on February 21. Bradley testified that he believes that his demotion was “direct revenge for the January 31 infraction and everything that happened before that.” (Tr. 47). He felt that the safety concerns he raised were interrelated, in part, because they involved a supervisor and his supervisor’s son. Joe Hatrick did not testify at the hearing. I find that a non-frivolous link was established between Bradley’s safety activities and his demotion. More would be required to establish this nexus in a discrimination case.

            The fundamental issue in this case is whether there is reasonable cause to believe that Bradley was terminated for his protected activities or, to put it another way, does the complaint concerning the termination appear to have merit. I hold that if a mine operator orders an employee to undergo a drug test in retaliation for making a safety complaint, such an action would be a form of harassment that must be taken into consideration when evaluating the merits of a discrimination complaint. On the other hand, if an operator has a reasonable, good faith belief that an employee is using drugs, ordering him to take a drug test would generally not be considered harassment even if the employee had engaged in protected activities.

            The circumstances under which Bradley was ordered to take a drug test are not entirely clear. Bower testified that an unidentified miner said that he observed Juull smoke marijuana. As detailed above, the unidentified miner did not tell Bower that he observed Bradley smoking marijuana; he only saw him leave the work area and come back in a more mellow mood. Bower also testified that the miner told him that there was a “distinct smell.” (Tr. 119). Bower testified that this unidentified miner saw Juull carrying a clean urine sample but he did not observe Bradley doing so. The evidence presented at the hearing as to Bradley’s use of marijuana is circumstantial and it is based entirely on Bower’s hearsay testimony. The unidentified miner may have been confused as to what he observed or he could have been less than totally honest during the interview.

            As stated above, the Applicant must demonstrate that his complaint “appears to have merit.” It appears that Climax has a reasonable basis to order Bradley to take a drug test because a miner on his crew alleged that he may have been were using drugs while at work. The evidence presented by Applicant shows, however, that Climax may have had other motives for giving him a direct observation drug test. The unidentified miner did not tell Bower or Green that he observed Bradley with a clean urine sample, yet a direct observation test was ordered for Bradley. Bradley was on investigative leave on June 22, the date of the drug test, and he had been on such leave since June 4. Thus, Bradley was not working at the mine operating equipment and he had no reason to believe that he would be given a drug test when he was told to come to the mine on June 22. Consequently, Climax could not have had any reasonable expectation that Bradley would be carrying a clean urine sample when he arrived at the mine on the afternoon of June 22.

            Even though he was not working at the time, Bradley was an employee of Climax when he was ordered to take the drug test. Climax witnesses testified that anyone who tests positive for drugs or alcohol or who refuses to take a drug or alcohol test is automatically terminated from his employment. Freeport’s Guiding Principles, however, simply state that possession or use of drugs on company premises will subject an employee to “disciplinary action up to and including discharge.” (Ex. R-3, p. 24). It also provides, however, that any employee who refuses to submit to or cooperate fully with the administration of a drug test will be discharged. Id. at 26. It is clear that Bradley was aware of these policies. At the hearing, Bradley admitted that he was terminated for not taking the drug test: 

Q Mr. Bradley, do you agree that you were discharged because you refused to take the drug test?

A Yes.

(Tr. 70).

            Whether the complaint was frivolously brought with respect to the termination is the pivotal issue in this case. As stated above, courts and the Commission have equated the “not frivolously brought” standard with the “reasonable cause to believe” standard set forth in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987). Based on the evidence presented at the hearing, I hold that non-frivolous issues exist regarding the reasons why a direct observation drug test was ordered. Bradley testified that he did not take the drug test because, in part, he did not trust management’s motive for the test, he felt uncomfortable performing the test in the manner mandated by Climax, and he viewed the test as a continuation of the acts of harassment that were being directed at him for his protected activities including his efforts to reverse his demotion.

            The Commission recently held that a judge may not weigh “the operator’s rebuttal or affirmative defense evidence against the Secretary’s evidence of a prima facie case.” CAM Mining, 31 FMSHRC at 1091. The Commission stated that if a judge does so, he errs “by assigning a greater burden of proof than is required.” Id.

            The issue here is very close, but it is also very narrow. Based on the record evidence, I am unable to hold that Bradley’s claim with respect to his termination is entirely frivolous or without any merit. I recognize that Bradley refused to take a drug test and he acknowledged that he was terminated for that refusal. Nevertheless, Applicant presented evidence that Climax had knowledge of the protected activities and exhibited some degree of hostility toward the protected activities. Although there was no close coincidence in time between Bradley’s protected activities and his termination, he was continuing to press the issue of his demotion with management. Applicant presented evidence that his demotion bore some relationship to his protected activities. He was terminated during the investigation into his compliance hotline complaint. I find that there is some circumstantial evidence that one of the reasons Bradley may have been ordered to take the direct observation drug test was to harass him for his protected activities and his efforts to reverse the demotion that resulted, in part, from those activities. I recognize that this evidence is rather tenuous at this point and such evidence would be insufficient to establish such motivation in a discrimination case.

            In Sec’y of Labor on behalf of Price and Vacha v. Jim Walter Resources, Inc., the Commission, by a three-to-two vote, upheld the temporary reinstatement of two miners who would not take a drug test. 9 FMSHRC 1305 (Aug. 1987). In upholding the temporary reinstatement, the Commission reasoned:

Evidence has been introduced tending to show that the complainants were active safety committeemen who had filed numerous safety complaints; that there may have been some hostility on the part of some JWR management officials towards that protected activity; and that the manner of testing the complainants and their resultant discharge may have been tainted by discriminatorily disparate treatment, retaliation, or interference. We make no determination at this point as to the ultimate merits of a case of discrimination on this evidence.

Id. at 1306. The present case has some similarities with that case.

            I reach this result with a great deal of trepidation because a mine operator has a legitimate safety reason to employ only those miners who are alcohol and drug free. The only way a mine operator can attain this goal is to have a drug and alcohol testing program in place and to consistently enforce the program. Under the facts of this case, however, Bradley was not working at the mine and was, therefore, not in a position to endanger his fellow miners. In addition, the unidentified miner’s report of drug use related back to a time before Bradley was demoted in February.

            Although Climax’s evidence shows that it may be able to present a convincing defense to Bradley’s complaint in the underlying discrimination case, the purpose of a temporary reinstatement proceeding is to determine whether the evidence presented establishes that the discrimination complaint is not frivolous. It was not demonstrated "that things could not have happened the way the [applicant] alleges that they did. . . ." Sec'y of Labor on behalf of Stahl v. A & K Earth Movers Inc., 22 FMSHRC 233, 237 (Feb. 2000); aff'd 22 FMSHRC 323 (March 2000).

IV. ORDER

            For the reasons set forth above, Climax Molybdenum Company is hereby ORDERED to immediately reinstate Nelson Gregory Bradley to the position he held immediately prior to the time he was demoted on February 22, 2012, at the same rate of pay and benefits for that position, or to a similar position at the same rate of pay and benefits. Economic reinstatement would also comply with the terms of this order.

            I retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R § 2700.45(e)(4). The Secretary SHALL COMPLETE her investigation of the underlying discrimination complaint as quickly as possible, if she has not already done so. On or before November 9, 2012, counsel for the Secretary shall advise me and counsel for Climax, in writing, whether the Secretary has determined that Climax violated section 105(c) of the Mine Act.

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Francesca Cheroutes, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5708 (cheroutes.francesc@dol.gov and Certified Mail)

Kristin R.B. White, Esq., and Michelle C. Witter, Esq., Jackson Kelly PLLC, 1099 18^th Street, Suite 2150, Denver, CO 80202-1958 (kwhite@jacksonkelly.com, mwitter@jacksonkelly.com, and Certified Mail)

RWM