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[DOCID: f:ct2001366.wais]
PEA RIDGE IRON ORE COMPANY, INC.
September 28, 2001
CENT 2001-366-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
September 28, 2001
SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT
MINE SAFETY AND HEALTH : PROCEEDING
ADMINISTRATION, (MSHA), :
on behalf of : Docket No. CENT 2001-366-D
WILLIAM C. ALLEN :
Complainant : SC MD 01-11
v. :
PEA RIDGE IRON ORE COMPANY, INC.,:
Respondent :
: Mine: Pea Ridge Iron Ore Co.
: Mine ID 23-00454
ORDER GRANTING TEMPORARY REINSTATEMENT
Before: Judge Bulluck
This matter is before me upon application, filed by the
Secretary on August 2, 2001, 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 Pea Ridge Iron Ore Company,
Inc. ("Pea Ridge") to temporarily reinstate William Allen to his
former position as a long hole drill operator/blaster at its
mine, or to a similar position at the same rate of pay, with the
same or equivalent duties. Section 105(c)(2) 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
Ronald M. Mesa, Mine Safety and Health Administration ("MSHA")
special investigator assigned to the Dallas, Texas District
Office, and a copy of the discrimination complaint filed by Allen
with MSHA on February 27, 2001.[1] The application alleges that
Allen was terminated from employment by Pea Ridge because of
safety concerns Allen had raised with MSHA inspectors during an
escapeways inspection of the mine.
Pea Ridge elected not to request a hearing and on August 27,
2001, filed its Opposition to the application, with declarations
of Pea Ridge employees Thomas Gallagher (with attachments), Jeff
Sumpter, Jim Reed, Jr., and Dennis Lafferty, therein denying that
Pea Ridge had discriminated against Allen and asserting that
Allen was discharged for violating the company's drug policy.
The Secretary filed her Response, with supplemental declaration
of Special Investigator Mesa, on August 31, 2001. Pea Ridge
filed its Reply on September 10, 2001.
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
"If 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 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). In a temporary reinstatement
proceeding, however, an applicant is not required to prove a
prima facie case of discrimination, as is the ultimate burden in
prevailing on the merits of the complaint, although it is useful
to consider the elements of a prima facie case in determining
whether the non-frivolous test has been satisfied.
The Secretary's allegations are based, in part, on
Investigator Mesa's investigation of Allen's discrimination
claims. In Mesa's Declaration of July 30, 2001, he made the
following findings upon which he based his conclusion that Pea
Ridge had discriminated against Allen:
1) on or about January 24, 2001, Mr. Allen spoke with
MSHA inspectors at the mine conducting an escape ways
inspection and told them that particular parts of the
mine were not safe and that he had given up reporting
safety concerns to management as his concerns were
never addressed;
2) on or about January 29, 2001, Allen's first day back
to work after speaking with the MSHA inspectors, Pea
Ridge asked Mr. Allen to submit to a drug test. When
Mr. Allen refused to submit, because he was not able to
consult with an attorney on that day, Pea Ridge
terminated Mr. Allen; and
3) this was Pea Ridge's first instance of requiring a
drug test once an employee passed a pre-employment drug
screening.
By supplemental declaration, Mesa provided additional
information respecting his investigation by summarizing
interviews with several Pea Ridge employees. Mesa referenced an
interview with hourly "employee A," who reported to Mesa a
general rumor in the mine that superintendent Larry Tucker
believed that Allen had pointed MSHA inspectors to some of the
underground violations that had resulted in issuance of citations
and orders during the escapeways inspection. This rumor, Mesa
stated, was corroborated by "Employee B," who told Mesa that Pea
Ridge employees were very upset by the citations it had received
during the regular and escapeways inspections. According to
Mesa, both employees told him that they were unaware of drug
usage on the job by Allen. Mesa stated that "Employee C"
reported having seen Allen talking frequently with MSHA inspector
Rodney Rice during the regular inspection which took place
between November 2000 and January 2001, prior to the escapeways
inspection between January and February 2001. "Employee D," Mesa
asserted, told the investigator that he had repeatedly asked Pea
Ridge for a written copy of its drug policy, which he had never
received, and that he had never known Allen to use drugs. Mesa
states that "Employee E" told him that Pea Ridge would sometimes
request that he report to work while he was off and drinking
alcohol, despite the fact that he would make his supervisor aware
that he had been drinking. Furthermore, Mesa asserts that Pea
Ridge management officials Thomas Gallagher (employee relations
director), Larry Tucker (mine superintendent), and James Sumpter
(mine operations supervisor) refused his requests for interviews.
Hourly employee Jim Reed refused as well, but did speak to the
investigator informally. According to Mesa, Reed stated that he
had never seen nor heard of Allen using marijuana and that he,
Reed, had not made any allegation of Allen using drugs to
Gallagher. In summary, based on these interviews, Mesa found
that Allen had a reputation of reporting safety concerns, and
that there was a rumor that Allen was responsible for some of the
citations and orders issued to Pea Ridge by MSHA . In addition,
he also found that, while Pea Ridge had discussed implementing
its drug policy during several employee meetings, there was no
written policy and the employees did not understand what the
policy was with any certainty. Mesa concluded, therefore, that
Allen's complaint of discriminatory discharge was not frivolously
brought.
Pea Ridge's Opposition, supported by declarations of
Gallagher, Sumpter, Reed and Lafferty, seeks to establish that
Allen has only shown temporal proximity between his protected
activity and his termination, which is insufficient to establish
that his complaint was not frivolously brought. Pea Ridge
asserts that in regularly scheduled monthly meetings from
September through December 2000, employees, including Allen, were
made aware of the company's intention to respond on an "incident
or accident" basis to information that caused a reasonable
suspicion of drug usage on the part of an employee, by requiring
submission of the suspect to a drug test. According to Pea
Ridge, on January 25, 2001, two non-supervisory employees,
independently provided Gallagher with information that caused
him to suspect employees Allen and Roger Sohn of reporting to
work under the influence of drugs. Gallagher attested to Jim
Reed (mechanic lead man) having reported his belief that Sohn
came to work "doped up" and rumors that Allen also worked under
the influence of drugs. Gallagher also attested to Dennis
Lafferty (production lead man) reporting drug problems
underground and alluding to Allen's work area as smelling of
marijuana. It is this information, Pea Ridge asserts, that
motivated Gallagher to require Allen and Sohn to be drug tested,
and the sole reason for both terminations was their refusal,
despite notice that the consequence of refusal was termination.
Pea Ridge also maintained that employees regularly and routinely
conversed with MSHA inspectors and that, prior to Allen's
termination, neither Jeff Sumpter nor any other management
official had reported Allen's alleged conversations with MSHA
inspectors during the January 24, 2001, escapeways inspection or
during any prior inspections.
Because Pea Ridge has waived its right to a hearing on the
Secretary's application, while I have considered Pea Ridge's
Opposition, my review must accept as true the events, as alleged
by the Secretary. Indeed, what is in dispute is Pea Ridge's
motivation for terminating Allen, rather than the facts giving
rise to the controversy. Allen has not only shown that he
engaged in protected activity during the escapeways inspection,
but has also raised the possibility that he had a reputation of
complaining to MSHA inspectors during previous inspections.
Allen has also shown that he suffered adverse action, and he has
put into question his termination by challenging the legitimacy
of the drug test required by Pea Ridge. Pea Ridge, by
establishing that management was aware that miners routinely
conversed with MSHA inspectors, has put into question the actual
extent of Gallagher's knowledge and, while Gallagher was the
deciding official in Allen's termination, whether other
management officials had any input in that decision. While Pea
Ridge's termination of Roger Sohn is relevant to a construction
of Pea Ridge's motivation in terminating Allen, the circumstances
surrounding Sohn's termination are distinguishable from Allen's
because there is no allegation that Sohn engaged in protected
activity. Furthermore, the evidence of exactly who reported
Allen's alleged on-the-job drug usage and whether it was
reasonable to require him to take a drug test is in dispute.
The temporal proximity between the protected activity and
Allen's termination, in combination with circumstantial evidence
of management's awareness of miners' candid conversations with
MSHA inspectors, rumor that management believed Allen to have
tipped off MSHA inspectors during a prior inspection, and
complaints about Allen's on-the-job drug usage cast in shadow,
are sufficient to meet the non-frivolous test. While, on the
merits of the complaint, the Secretary bears the ultimate burden
of proving pretext by a preponderance of the evidence, the
allegations, as set forth in the Secretary's application, are not
clearly lacking in merit and, therefore, satisfy the lesser
threshold in this proceeding, of being not frivolously brought.
ORDER
For the reasons set forth above, the Application for
Temporary Reinstatement is GRANTED. It is ORDERED that Pea Ridge
Ore Company, Inc., REINSTATE William C. Allen to the position
that he held immediately prior to his termination from employment
on January 29, 2001, at the same rate of pay and benefits, or to
a similar position at the same rate of pay and benefits, with the
same or equivalent duties, effective August 30, 2001.
Jacqueline R. Bulluck
Administrative Law Judge
Distribution: (Certified Mail)
Lydia A. Tzagoloff, Esq., Office of the Solicitor, U.S.
Department of Labor, 1099 18th Street, Suite 2150, Denver, CO
80202
Michael P. Burke, One Metropolitan Square, 221 North Broadway,
Suite 3600, St. Louis, MO 63102
nt
**FOOTNOTES**
[1]:Allen's Discrimination Complaint names Thomas Gallagher,
director of personnel, as the management official responsible for
the adverse action, and alleges that Allen was terminated on
January 29, 2001, for refusing to submit to drug testing without
benefit of legal counsel, on the heels of having reported, "among
other things, the poor condition of the middle incline between
2475 level and 2370 level." Allen's Complaint also alleges that
mine operations supervisor Jeff Sumpter had observed Allen's
conversation with the MSHA inspectors on January 24, 2001.