FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

September 29, 2011

ORDER GRANTING TEMPORARY ECONOMIC REINSTATEMENT

Before:            Judge Bulluck

            This matter is before me upon Application, filed by the Secretary on July 20, 2011, pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(c)(2), for an order requiring Proppant Specialists, LLC (“Proppant”), to temporarily reinstate Burdette Billings to his former position as a front-end loader operator, at Proppant's Oakdale Wet Plant, or to a similar position at the same rate of pay. Section 105(c) prohibits operators from discharging or otherwise discriminating against miners who have engaged in safety-related protected activity, and authorizes the Secretary to apply to the Commission for temporary reinstatement of miners, pending full resolution of the merits of their complaints. The Application is supported by Declaration of MSHA Special Investigator Thomas J. Pavlat, and a copy of the Discrimination Complaint filed by Billings with MSHA on May 9, 2011. The Application alleges that Billings was terminated by Proppant because he filed a hazardous condition complaint with MSHA.

            Proppant elected to waive its right to a hearing, and on September 2, 2011, both parties filed simultaneous briefs. The parties have agreed to temporary economic reinstatement should I grant the Application. Proppant’s Opposition denies that Billings had been terminated for any discriminatory reason, and is supported by Declaration of Chris E. Cummins, Senior Vice President of Frac Tech Services, LLC, Proppant’s parent company.

Procedural Framework

            The scope of this proceeding is governed by the provisions of Commission Rule 45(c), 29 C.F.R. § 2700.45(c), which limits the inquiry to a “not frivolously brought” standard, by providing that “[i]f no hearing is requested, the Judge assigned 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, he shall issue immediately a written order of temporary reinstatement.”

            It is well settled that the “not frivolously brought” standard is entirely different from the scrutiny applicable to a trial on the merits of the underlying discrimination complaint. In Jim Walter Resources v. FMSHRC, 920 F.2d 738 (11th Cir. 1990), the Court explained the standard as follows:

            The legislative history of the Act defines the ‘not frivolously brought standard’ as indicating whether a miner's ‘complaint appears to have merit’ -- an interpretation that is strikingly similar to a reasonable cause standard. [Citation omitted]. In a similar context involving the propriety of agency actions seeking temporary relief, the former 5th Circuit construed the ‘reasonable cause to believe’ standard as meaning whether an agency's ‘theories of law and fact are not insubstantial or frivolous.’ 920 F.2d at 747 (emphasis in original) (citations omitted).

            . . . Congress, in enacting the ‘not frivolously brought’ standard, clearly intended that employers should bear a proportionately greater burden of the risk of an erroneous decision in a temporary reinstatement proceeding. Any material loss from a mistaken decision to temporarily reinstate a worker is slight; the employer continues to retain the services of the miner pending a final decision on the merits. Also, the erroneous deprivation of the employer's right to control the makeup of his work force under section 105(c) is only a temporary one that can be rectified by the Secretary's decision not to bring a formal complaint or a decision on the merits in the employer's favor. Id. at 748, n. 11 (emphasis in original).

Ruling

            The Mine Act accords to miners and miners' representatives protection from discharge or other discriminatory acts, based on their exercise of any statutory right under the Act. 30 U.S.C. § 815(c). The Commission has consistently held a miner seeking to establish a prima facie case of discrimination to proving that he engaged in activity protected by the Act, and that he suffered adverse action as a result of the protected activity. Secretary on behalf of Pasula v. Consolidation Coal Company, 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds sub nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of Robinette v. United Coal Company, 3 FMSHRC 803, 817-18 (April 1981).

            The Secretary’s allegations are based, in part, on Inspector Pavlat’s investigation of Billings’ discrimination claims. Based on his investigation, Pavlat found: 1) that prior to his filing a hazard complaint with MSHA, Billings spoke with Brandon Crawford, Acting Regional Manager, about the hazardous condition created by hot sand; 2) that Todd Rainey, Production Supervisor, was in charge at the Oakdale Wet Plant at the time and was well aware of the hazardous situation; 3) that Billings filed his hazard complaint with MSHA on Saturday, April 23, 2011, when nothing was done to correct the hot sand hazard; 4) that Supervisory MSHA Inspector Christopher Hensler in Hibbing, Minnesota, spoke with Billings no later than April 25, 2011, to follow up on his hazard complaint, at which time Billings told Hensler about his prior conversation with Crawford, and that Rainey was aware of the situation; 5) that on April 25, 2011, MSHA Inspector Robert Marcinel went to the Oakdale Wet Plant to commence an investigation of Billings’ complaint, during which Inspector Marcinel interviewed Billings; 6) that on April 27, 2011, Inspector Marcinel finished his inspection, held his closing conference with Crawford and Regional Safety Manager Jesse McAnally, and issued four 104(d)(1) high negligence citations to Proppant, including two relating to miners who were standing in or walking through hot sand; 7) that at the April 27, 2011, closeout conference, Inspector Marcinel told Crawford and McAnally that the citations would be reviewed for possible special assessment and a possible determination that the violations were knowing and/or willful; 8) that on April 28, 2011, Proppant discharged Billings and gave him an “Employee Counseling/Disciplinary Action Form” listing four reasons for his discharge; 9) that Crawford signed the form as “Supervisor” and Chris E. Cummins signed the form as “District or Department Manager;” 10) that a day or two after the MSHA inspection, Crawford and Rainey asked an Oakdale Wet Plant employee whether he knew who made the hazard complaint to MSHA (either Crawford or Rainey said they knew the complainant was either that employee or Billings, and that it was a process of elimination); the employee denied making the hazard complaint and Crawford responded that if the employee did not make the complaint, then they knew who did; and 11) that other company employees who have reported hazardous conditions or filed hazard complaints with MSHA have suffered adverse action. Sec’y. Brief, Pavlat Aff. Based on these findings, Pavlat concluded that Billings’ allegation that he was terminated because he filed a hazard complaint with MSHA was not frivolous.

            Proppant’s Opposition seeks to establish that the Discrimination Complaint was frivolously brought by asserting, in part: 1) that Chris E. Cummins is responsible for overseeing the operations of the mine; 2) that on April 28, 2011, Cummins traveled to the mine to follow up on reports of a disturbance caused by a mine employee at a local township council meeting; 3) that prior to his arrival at the mine, Cummins had never heard of Burdette Billings and when he arrived, Cummins learned that there were concerns about recent actions by Billings; 4) that the disciplinary form given to Billings set forth four instances of violations of company policy; 5) that Cummins did speak to other Proppant employees, both hourly and management, to discuss the factual details of the events described in the disciplinary form; 6) that Cummins decided to terminate Billings’ employment based upon the actions described in the disciplinary form, and without consulting anyone else as to the appropriate level of discipline to be administered; and 7) that Cummins was not aware that the April 25, 2011, MSHA inspection resulted from an anonymous complaint, nor did he know which, if any, miners spoke to the MSHA inspector. Resp. Opp. at 1-3. Proppant concludes, therefore, that the decision to terminate Billings was based solely on the four instances of misconduct described in the disciplinary form, and Billings was not terminated because of his hazard complaint to MSHA.

            While I have carefully considered Proppant's opposition, because it has waived its right to a hearing on the Secretary's Application, I must accept as true, the events, as alleged. The Secretary has set forth allegations of adverse treatment, close in proximity to protected activity so as to create a nexus, sufficient to raise an inference of discrimination. At best, Proppant has shown an intent to defend its actions at hearing, on the basis of legitimate business-related, non-discriminatory reasons. At this juncture, it is emphasized that, at hearing, the Secretary ultimately bears the burden of proving discrimination by a preponderance of the evidence, in order to sustain a violation under section 105(c). Accordingly, since the allegations of discrimination, as set forth in the Secretary's Application, have not been shown to be clearly lacking in merit, it must be concluded that they are not frivolous and, therefore, satisfy the lesser threshold in this proceeding.

ORDER

            For the reasons set forth above, it is ORDERED that Proppant Specialists, LLC temporarily economically reinstate Burdette Billings, by agreement of the parties, retroactive to August 8, 2011, to the position he held prior to his termination on April 28, 2011, at the same rate of pay and benefits applicable to that position.

                                                                        /s/

                                                                        Jacqueline R. Bulluck

                                                                        Administrative Law Judge

Distribution (Certified):

Eileen R. Hurley, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., Suite 844, Chicago, IL 60604

Mark N. Savit, Esq., Patton Boggs LLP, 1801 California Street, Suite 4900, Denver, CO 80202

/amc