FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE
443
DENVER, CO 80202-2500
303-844-5266/FAX
303-844-5268
December 20, 2012
|
SECRETARY OF LABOR, CIMBAR PERFORMANCE MINERALS, |
: : : : : : : : : : : : |
TEMPORARY REINSTATEMENT PROCEEDING Docket No. CENT 2013-79-D SE-MD-13-01 Mine: Houston Plant Mine ID: 41-04038 |
DECISION
AND ORDER OF TEMPORARY REINSTATEMENT
Appearances: Michael Schoen, Office of the Solicitor, U.S.
Department of Labor, Dallas, TX, for the Complainant;
R. Henry Moore,
Jackson Kelly PLLC, Pittsburgh, PA, for the Respondent.
Before: Judge Miller
This
case is before me on an application for temporary reinstatement filed by the
Secretary of Labor, (“Secretary”) acting through the Mine Safety and Health
Administration (“MSHA”), against Cimbar Performance Minerals and its successors, pursuant
to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 815(c)(2) (the “Act” or “Mine Act”).
On November 12, 2012, pursuant to 29 C.F.R. § 2700.45(c), Respondent
requested a hearing on the application. A hearing was held on December 13, 2012 in
Houston, Texas.
I. ANALYSIS AND FINDINGS
a. Background
Cimbar
Performance Minerals (“Cimbar”) is engaged in the production and packaging of
barite ore and is an “operator” as defined in Section 3(d) of the Mine Act. The 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 this case. Complainant, Yero Pack, is a miner as defined
by the Mine Act. Stip.1-6.
Complainant
was employed by Cimbar at its plant located in Houston, Texas. Pack began his
employment with Cimbar on February 18, 2011. He first worked as a temporary employee
and then as a full time, permanent production employee, primarily on the
afternoon shift. Pack was laid-off from
his employment on June 29, 2012. Because there was a dispute as to
jurisdiction, Pack originally filed his discrimination complaint with OSHA. Cimbar
no longer disputes jurisdiction and, on September 26, 2012, Pack filed a
discrimination complaint with MSHA pursuant to section 105(c) of the Mine Act. Pack’s complaint alleges that he complained
about the lack of personal protective equipment and was subsequently
terminated. Cimbar alleges that Pack was
terminated as a part of a plant wide lay-off. Pack’s complaint was
investigated by the Secretary, and the special investigator found that Pack’s
complaint was not frivolous.
b. Findings of Fact
Pack
was hired on February 18, 2011 as a temporary employee, and was later hired as
a full time employee in August or September of 2011. Pack worked on the
afternoon shift, packing and stacking material for shipment to customers. For a short time, Pack was the lead man until
a new supervisor for his shift was hired, and the temporary supervisor was
returned to the lead man position. At
the time of his termination, Eugene Torres was Pack’s direct supervisor, Adam Martinez
was the first shift supervisor, and Tab Kellough was the plant manager. Pack
worked forty hours per week, but, early in his employment with Cimbar, he often
worked overtime hours. He worked with
nine other production employees for a period
of time, but, at the time he was laid off, four production employees remained
on the shift. Pack earned $11.00 per hour and received no other benefits.
Beginning
in September 2011, Pack made safety related complaints to various
supervisors. His first complaint
involved a complaint against Adam Martinez, the first shift supervisor and the
overall safety director. Pack spoke to Martinez about the use of personal
protective equipment (“PPE”), specifically dust masks and ear plugs. Martinez
did not provide the equipment and told Pack that they didn’t use it correctly
anyway. At hearing, Martinez denied that he had a conversation with Pack about
PPE and explained that there is an unlocked cabinet containing PPE for
employees to access at any time. Pack indicated that he also spoke to Kellough,
the plant manager, about the need for PPE.
Pack
continued to make safety complaints to Martinez, his supervisor, Torres and
directly to Kellough for several months.
The complaints included bad brakes and brake lights on a forklift, keeping
training up to date, an employee bringing a minor to work, and persons falling
asleep at work. Specifically Pack complained about his supervisor, Torres
falling asleep on the forklift. On June
21, 2012, Pack complained about having to work with dust and dirt that had
accumulated when the bags were being filled.
Even though the two company witnesses testified that it was Pack’s duty
to clean up the area, Pack asserts that Torres told him that production was
more important. Shortly thereafter, Pack,
along with two of the remaining three permanent production employees on his
shift, was laid off from his job. Two temporary employees remained on the third
shift and, several days after Pack was laid off, the mine hired more temporary
employees to continue the work on the second shift. According to Cimbar Ex. 2, one employee was
hired just days before Pack was laid off, and remained working.
Cimbar
asserts that Pack was terminated as a part of a planned lay-off. The mine had decided to eliminate the second
shift workers as an economic measure, given its tumbling sales. Cimbar asserts that business began to decline
in January 2012 and the mine began systematic lay-offs. In March 2012, Cimbar stopped the third shift
production and laid off the third shift production employees. In May 2012,
Cimbar reduced the second shift and laid off all of the temporary production
employees on that shift. Pack and two
other production employees remained. In June 2012, Pack was laid off with the
other second shift production employees.
After Pack was laid off, Cimbar hired temporary workers on the second
shift in the production department. Cimbar asserts that, a number of times, temporary
workers were hired to fill orders when the need arose.
Tab
Kellough and Adam Martinez testified on behalf of Cimbar. Both denied ever hearing
or learning that Pack had made any complaints about “safety violations.” Hence, Cimbar denies that there is a causal
connection between the safety complaints made by Pack and his termination. Kellough
explained that, as plant manager, he made the decisions regarding the lay-offs
at the mine. He agrees that temporary employees were hired after Pack was
laid-off but asserts that they were only hired for a short time and only when
needed to fulfill orders. Eugene Torres was not laid off of the second shift,
nor were employees whose jobs did not include production. Kellough explained that Cimbar does the
majority of its hiring through a temporary agency, and that at least one
laid-off employee was hired back through that agency. Cimbar also hires a large number of employees
who have criminal backgrounds.
c. Applicable Law
Section
105(c)(1) of the Mine Act states, in pertinent part, as follows:
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)(2), if the “Secretary finds that [a discrimination] complaint was not
frivolously brought, the Commission, on an expedited basis upon application of
the Secretary, shall order the immediate reinstatement of the miner pending
final order on the complaint.” 30 U.S.C.
§ 815(c)(2). The Commission has noted
that the parameters of a temporary reinstatement hearing are narrow, being
limited to a determination with respect to whether a miner’s discrimination
complaint has been frivolously brought. See Sec’y of Labor o/b/o Price v. Jim Walter
Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d., 920 F. 2d 738 (11th Cir. 1990). Accordingly, it is only necessary to
determine whether the Applicants’ complaints appear to have merit. 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 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 proceeding 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).
d. The Secretary Has Met Her Burden of
Proof to Establish a Non-Frivolous Allegation
Pack
explained that he made numerous safety complaints directly to his supervisors
and to Kellough. While Kellough and Martinez testified that they were not aware
of a single complaint, I credit Pack’s testimony for the limited purpose of
temporary reinstatement. I find,
therefore, that Pack has engaged in protected activity. Further, Pack was the subject
of an adverse action when he was terminated from his employment in June of 2012.
I
agree that mine management, including Pack’s supervisor and the plant manager,
Kellough, were aware of Pack’s complaints about unsafe conditions. Pack was terminated a very short time after he
made the June complaint. Given the
timing of the termination, and the knowledge of the supervisors at the mine, there
is sufficient evidence to support a causal connection between the protected
activity and the adverse action. Therefore, for purposes of this proceeding, the
Secretary has sufficiently demonstrated the elements of a prima facie case of
discrimination and I find that the complaint was not frivolously brought.
The
Secretary must demonstrate that the discrimination complaint made by Pack
“appears 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. I find that Pack made a safety complaint to
his supervisor, that the complaint was known to his supervisors, and that there
is adequate circumstantial evidence to connect Pack’s complaint to his
termination. Therefore, the complaint
filed by Pack is not frivolous and he must be reinstated.
e. Respondents’ Economic Feasibility Argument
The
Respondent argues that reinstatement of Pack is barred because, due to a
reduction in sales, on June 29, 2012 Cimbar laid off the three remaining full-time
production workers on the second shift. The layoff was one of a series that
began in March, 2012. In addition,
Cimbar challenges Pack’s return to work because he testified that he has found
other employment. I find both arguments to be without merit. First, the mine employs at least 35 persons
at the present time, many of whom are production employees. In addition,
temporary employees have been hired each month since the lay-off to work on the
second shift to do the work for which Pack was trained. The Commission has recognized
that in remedial contexts, an operator has the burden to show that
circumstances exist which would mitigate their liability. Ken-American
Resources, 31 FMSHRC1050, 1054 (Oct. 2009); see also Simpson v. Kenta
Energy, Inc., 11 FMSHRC 770, 779 (May 1989). The Commission has stated that, “‘[s]pecifically,
the burden of showing that work was not available for a discriminatee, whether
through layoff, business contractions, or similar conditions, lies with the
employer as an affirmative defense to reinstatement and backpay.’” Ken-American at 1054-1055 (quoting Simpson
v. Kenta Energy, Inc., 11 FMSHRC 770, 779 (May 1989) (alteration in
original)). “In such
circumstances, the operator must make such a showing by a preponderance of the
evidence.” Id. Cimbar
did not make such a showing. Therefore,
I find that there are positions available to which Pack can return as a full
time permanent employee.
Next,
the fact that Pack may be employed is not a bar to his reinstatement. The
Commission addressed the issue in Sec’y
of Labor on behalf of Mark Gray v. North Fork Coal Corp., 33 FMSHRC 589,
592 (March 2011) and found that other income is not relevant in the context of
temporary reinstatement. In North Fork, the mine argued that the
miner’s earnings while employed elsewhere during his economic reinstatement
should offset any amount owed by North Fork. The Commission explained that the
legal principles that apply to back pay awards are separate from those in a
temporary reinstatement proceeding and rejected the arguments of North Fork.
Given the Commission’s decision, I find that any other employment held by Pack
is not relevant for purposes of temporary reinstatement but the issue may be
addressed in the discrimination proceeding.
II. ORDER
For
all of the reasons listed above, I find that the Secretary presented sufficient
evidence at hearing to find the discrimination complaints non-frivolous. Accordingly, it is ORDERED that Respondent immediately re-instate the Complainant,
Yero Pack, as of today’s date, December
20, 2012, at the same rate of pay
and benefits that he was earning at the time of his termination. The parties may elect to economically reinstate Mr. Pack
if they so agree. The Secretary shall
provide an update regarding the status of the discrimination investigation to
the parties and to me, within 30 days of the date of this decision.
/s/ Margaret A. Miller
Margaret A. Miller
Administrative
Law Judge
Distribution:
Michael
Schoen, U.S. Dept. of Labor, Office of the Solicitor, 525 South Griffin Street,
Suite 501, Dallas, Texas 75202
R. Henry Moore, Jackson Kelly PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222-1000