FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

 

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240 / FAX: 412-928-8689

 

July 18, 2014

SECRETARY OF LABOR

  MINE SAFETY AND HEALTH   

  ADMINISTRATION (MSHA),

  on behalf of JEROMY COOTS,

                           Complainant

 

                        v.

 

LONE MOUNTAIN PROCESSING, INC.,

                           Respondent

 

 

CIVIL PENALTY PROCEEDING

 

Docket No. KENT 2014-609-D

Case No. BARB-CD 2014-05

 

 

 

 

Mine ID: 15-18647

Mine: Clover Fork No. 1

           

                       

 

ORDER GRANTING RESPONDENT’S MOTION TO WITHDRAW

REQUEST FOR HEARING AND

ORDER GRANTING TEMPORARY REINSTATEMENT

OF JEROMY COOTS

 

Before: Judge Harner

 

            Pursuant to section 105 (c)(2) of the Federal Mine Safety and Health Act of 1977 (AAct@), 30 U.S.C. ' 801, et. seq., and 29 C.F.R. '2700.45, the Secretary of Labor (ASecretary@) on July 2, 2104, filed an Application for Temporary Reinstatement of miner Jeromy Coots (“Complainant”) to his former position with Lone Mountain Processing, Inc. (“Respondent@) at the Clover Fork No. 1 Mine pending final hearing and disposition of the case.

 

            The case was assigned to me on July 7, 2014, and Respondent filed its timely Request for Hearing on July 9, 2014. Following conference calls with the parties, Respondent later filed its Motion to Withdraw Request for Hearing on July 17, 2014. For the following reasons, the temporary reinstatement of Jeromy Coots is hereby GRANTED.

 

            Section 105(c) 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 Ato play an active part in the enforcement of the [Mine Act]@ recognizing that, Aif 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, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 623 (1978).

 

            The Commission’s regulations control the temporary reinstatement procedures. Once an application for temporary reinstatement is served on the person against whom relief is sought, that person shall notify the Chief Administrative Law Judge or his designee within 10 calendar days whether a hearing on the application is requested. 29 C.F.R. § 2700.45(b). If no hearing is requested,[1] the Judge assigned to the matter shall review immediately the Secretary’s application and, if based on the contents thereof the Judge determines that the miner’s complaint was not frivolously brought, s[he] shall issue immediately a written order of temporary reinstatement. Id.

 

            In adopting section 105(c) of the Act, Congress indicated that a complaint is not frivolously brought if it Aappears to have merit.@ S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In addition to Congress= Aappears to have merit@ standard, the Commission and the courts have also equated Anot frivolously brought@ to Areasonable cause to believe@ and Anot insubstantial.@ Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990). The plain language of the Act states that “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.” 30 U.S.C. § 815(c)(2). The judge must determine whether the complaint of the miner “is supported substantial evidence and is consistent with applicable law.”[2] Sec=y of Labor on behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). 

 

            The Declaration of Freddie Fugate was filed with the Complainant’s Application for Temporary Reinstatement and asserts the following:

 

1.      Mr. Fugate is a special investigator with the Mine Safety and Health Administration (“MSHA”) and was assigned to conduct an investigation into a complaint filed by the Complainant. Decl. 1-2.

2.      The Complainant was employed at the Clover Fork No. 1 Mine (“Mine”) and was assigned to replace roof bolts that had become dislodged in the rehab section of the Mine. Decl. 2a-2b.

3.      The roof of the rehab section was 12 feet tall, and the Complainant initially used the Automated Temporary Roof Support System (“ATRSS”) to support the roof while roof bolting. Decl. 2b. However, the Complainant was advised after a short time that this system could no longer be used because it took too long to set in place. Decl. 2c.

4.      On that same day, the Complainant inquired why the ATRSS could no longer be used, to which he received a response from mine management that the work needed to be done quickly. Decl. 2d.

5.      The Complainant continued to work on the rehab section without the ATRSS for six days, but continued to complain to mine management. Decl. 2e.

6.      The Complainant was struck and injured by falling material, and he raised the issue of the ATRSS at a mine safety meeting on May 12, 2014. Decl. 2f-2g.

7.      Immediately following the meeting, the Complainant was called to the General Mine Foreman’s office where it was explained that the ATRSS took too much time to set up, and the work needed to be done quickly. Decl. 2h. The Complainant was then sent home for the day. Id.

8.      On May 13, 2014, the Complainant was fired. Decl. 2i.

 

            Based upon the affidavit of the special investigator and the asserted facts therein, I find that the Secretary’s complaint is not frivolously brought. WHEREFORE, it is hereby ORDERED that Respondent’s Motion to Withdraw Request for Hearing is GRANTED. It is further ORDERED that Jeromy Coots be TEMPORARILY REINSTATED to his former job at his former rate of pay, overtime and benefits pending final order on the complaint.

 

 

                                                                                    /s/Janet G. Harner

                                                                                    Janet G. Harner

                                                                                    Administrative Law Judge

 

Distribution:

 

Mary Sue Taylor, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219-2456

 

Jeromy Coots, P.O. Box 167, Grays Knob, KY 40829

 

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY 41858

 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522

 

Noelle Holladay True, Esq., Rajokovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513

 

C T Corporation System, 306 W. Main Street, Suite 152, Frankfurt, KY 40601

 

 

/kmb

 

           


[1] As noted, Respondent has withdrawn its request for hearing, which was timely filed. I shall grant Respondent’s Motion to Withdraw its hearing request and proceed as required by 29 C.F.R. § 2700.45(c).

 

[2] ASubstantial evidence@ means Asuch relevant evidence as a reliable mind might accept as adequate to support [the judge=s] conclusion.@ Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).