.
BR&D ENTERPRISES, INC.
August 29, 2000
KENT 2000-255-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
August 29, 2000
SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT
MINE SAFETY AND HEALTH : PROCEEDING
ADMINISTRATION, on behalf of :
DEWAYNE YORK, : Docket No. KENT 2000-255-D
Complainant : BARB-CD-2000-06
v. :
:
BR&D ENTERPRISES, INC., : Mine ID 15-18028
Respondent :
DECISION
AND
ORDER OF TEMPORARY REINSTATEMENT
Appearances: Joseph B. Luckett, Esq., Associate Regional Solicitor,
U.S. Department of Labor, Nashville, Tennessee, for
Complainant;
J. P. Cline, III, Esq., Middlesboro, Kentucky, for
Respondent.
Before: Judge Zielinski
This matter is before me on an Application for Temporary
Reinstatement filed by the Secretary on behalf of Dewayne York
pursuant to section 105(c)(2) of the Federal Mine Safety and
Health Act of 1977 (the "Act"), 30 U.S.C. � 815(c)(2). The
application seeks an order requiring Respondent, BR&D
Enterprises, Inc., (BR&D) to reinstate York as an employee
pending completion of a formal investigation and final decision
on the merits of a discrimination complaint he has filed with the
Mine Safety and Health Administration (MSHA). A hearing on the
application was held in Pineville, Kentucky, on August 23, 2000.
For the reasons set forth below, I grant the application and
order Mr. York's temporary reinstatement.
Summary of the Evidence
Dewayne York had been employed by BR&D for approximately
seven of his ten years as a miner. He worked at the #3 mine for
12-14 months prior to being terminated on May 25, 2000, and held
the position of roof bolter operator on the #1 shift at the time
of his discharge. By all accounts, York was a good worker and
there were no complaints about his work performance.
York testified that from the time he started working at the
#3 mine, BR&D followed a mining procedure that violated its
approved roof control plan, in that miners would enter
intersections that had not been properly supported. The work
crew in a section of the mine consisted of twelve men, four of
whom operated two roof bolting machines, or "pinners", referred
to as the "intake" and "return" pinners. The power cables of the
"intake" pinner ran along the right, or intake, side of the mine
entries, and those of the "return" pinner ran along the left or
"return" side. York and Charlie Price operated the "intake"
pinner. After the continuous mining machine had driven an entry
past where a crosscut would be made and the area had been bolted,
the miner would then make a 32 foot deep cut at the face, back
away from the face into the previously mined area and make
another cut by turning right and starting the crosscut. While
that area of the entry had been bolted, the newly created
intersection was considered unsupported and BR&D's approved roof
control plan specified that no miners were allowed to enter it
until temporary supports, or two rows of bolts, had been
installed in the newly created crosscut.[1] The intake pinner
would normally bolt the crosscut, because its power cables ran
along the right side of the entry and the return pinner would
bolt the new cut at the face of the entry, its cables being hung
along the left side of the entry.
York testified that, rather than wait for the intake pinner
to install two rows of bolts in the crosscut, the return pinner
and its crew would travel through the unsupported intersection to
bolt the new cut at the face. York himself also entered the
unsupported intersection to help hang the power cable for the
return pinner. He testified that he tolerated this procedure
until early April, 2000, when they encountered "draw rock"[2]
presenting unstable roof conditions. At that time, he refused to
continue with the procedure and insisted that two rows of bolts
be placed in the opening of the crosscut before he and other
miners entered the intersection. He claims that the return
pinner was idle while the two rows of bolts were being installed
in the crosscut and that production fell as a result. In
addition to his complaints about violation of the roof control
plan, which were also voiced by other bolter operators, he
testified that he complained to his foreman, Jackie Jaggers,
about excessive dust attributable to a failure to install line
curtain and excessively wide and deep cuts made by the continuous
miner. He acknowledged on cross examination that he did not
attempt to bring his safety concerns to MSHA officials and did
not speak directly to any other management officials about them.
**FOOTNOTES**
[1] The roof control plan provided that: "Openings that
create an intersection will be supported by permanent supports or
be supported with two rows of temporary supports on 5-foot
centers across the opening before any work or travel in the
intersection."
[2] Draw rock, or "draw slate" is "soft slate, shale, or
rock approx. 2 in. (5.08 cm) to 2 ft. (0.61 m) in thickness,
above the coal, and which falls with the coal or soon after the
coal is removed." American Geological Institute, A Dictionary of
Mining, Mineral and Related Terms 168 (2d ed. 1996).
Jaggers testified that neither York nor any other miner had
ever made such complaints to him and further denied that he had
ever advised the mine superintendent or president of any such
complaints. Randy Phelps, the mine superintendent testified that
he had no knowledge of any complaints made by York and that he
had never discussed complaints with Jagger or Stanley Ditty, the
president and an owner of BR&D. Ditty testified that no-one had
ever advised him that York or any other miner had made safety
complaints.
On May 25, 2000, there was an unusually heavy rainstorm that
caused flooding and power outages at the #3 mine and the adjacent
#4 mine. York and the other miners arrived about 6:00 a.m., and
waited at the mine site. York testified that it was his and the
other miners' understanding from prior experience that they would
not be paid until they actually started working. They tired of
waiting and were repeatedly advised by management that the power
would be restored in a few minutes, predictions that proved
unfounded. By 9:00 a.m., the power had not been restored and
some of the miners decided to leave the mine site. York left
because of his belief that he was not being paid and the person
that he rode with to the mine was leaving. They proceeded to the
home of one of the miner's, where they could observe the road to
the mine and see whether other miners also left. In all, some
thirteen miners, including York, left the site.
Stanley Ditty testified that the purchaser of the mine's
coal was in need of coal at that time and he was intent on
producing coal that day as soon as power was restored.[3] He
wanted the miners to stay at the site and communicated that
desire to the superintendent, Phelps. He also testified that
miners were not normally paid until they reached the coal face,
but it was his long-standing practice to pay miners that stayed
at a mine site at his request, at least from the time of the
request.
On May 25, 2000, Ditty arrived at the mine site between 9:00
and 9:30 a.m. He determined, without consulting Phelps or
Jaggers, that he would discipline the absent miners by
suspending them until the following Tuesday, and began to call
the homes of the miners who had left. He had a conversation with
York's wife, Dejuana,[4] and later spoke with York himself. The
specifics of the conversations are disputed. Ditty testified
that he inquired about York's whereabouts and informed Mrs. York
that her husband had left the mine and was being suspended, that
she stated that he wasn't happy working at that mine, to which he
responded that he was free to find another job. Mrs. York denied
making any comment about her husband's happiness on the job and
testified that Ditty did not tell her about a suspension, just
that her husband had been fired.
Ditty testified that York called him at the mine that
morning.[5] Ditty asked why York had left the mine and was told
that he didn't think he was being paid. Ditty questioned how
York could believe that, asked him to cite an example, and told
him he was suspending York and the other miners who had left the
site. York protested the suspensions as unfair, then cursed
Ditty and told him he would see him in court. York denied
cursing Ditty and testified that he was told that he had been
terminated and that the other miners who had left had been
suspended, to which he responded that he would see Mr. Ditty in
court. Ditty also denied that production could have been reduced
as a result of York's claimed change in roof bolting procedures
because he had excess roof bolting capacity, i.e. two roof
bolters where other operators had only one, and that requiring
the return pinner to wait while bolts were installed at the
entrance of the crosscut would not have delayed other operations.
He stated that he was advised, only in preparation for the
hearing, that some miners indicated that they had followed the
unlawful practice described by York, but did so in order to get
longer breaks.
York filed a complaint of discrimination with MSHA on May
26, 2000, alleging that he had been discharged for making safety
complaints.
Findings of Fact and Conclusions of Law
Section 105(c)(2) of the Act, 30 U.S.C. � 815(c)(2),
provides, in pertinent part, that the Secretary shall investigate
a discrimination complaint "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 has established a procedure for
making this determination. Commission Rule 45(d), 29 C.F.R.
� 2700.45(d), states:
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 burden of proof shall be upon the
Secretary to establish that the complaint was not
frivolously brought. In support of his application for
temporary reinstatement, the Secretary may limit his
presentation to the testimony of the complainant. The
respondent shall have an opportunity to cross-examine
any witnesses called by the Secretary and may present
testimony and documentary evidence in support of its
position that the complaint was frivolously brought.
**FOOTNOTES**
[3] Power was restored later that morning and coal was
produced that day at the #3 mine. Coal was not produced that day
at the #4 mine which was lower in elevation and more severely
flooded. Some of the miners at the #4 mine had also left the
site.
[4] Ditty testified that he called York's home and spoke to
his wife. Mrs. York testified that she was at work that morning
and received a call from her son, who advised that Ditty was
looking for York. She then called the mine site and spoke to
Ditty.
[5] Mrs. York attempted to reach her husband by calling
the wives of two miners who worked with York and was eventually
successful in getting a message to him to call Mr. Ditty.
"The scope of a temporary reinstatement hearing is narrow, being
limited to a determination by the judge as to whether a miner's
discrimination complaint is frivolously brought." Secretary on
behalf of Price v. Jim Walter Resources, Inc., 9 FMSHRC 1305,
1306 (August 1987) aff'd sub nom. Jim Walter Resources, Inc. v.
FMSHRC, 920 F.2d 738 (11th Cir. 1990).
In adopting section 105(c), Congress indicated that a
complaint is not frivolously brought, if it "appears 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).
The "not frivolously brought" standard has been equated to the
"reasonable cause to believe" standard applicable in other
contexts. Jim Walter Resources, Inc., 920 F.2d at 747; Secretary
on behalf of Bussanich v. Centralia Mining Company, 22 FMSHRC
153, 157 (February, 2000).
While an applicant for temporary reinstatement need not
prove a prima facie case of discrimination, it is useful to
review the elements of a discrimination claim in order to assess
whether the evidence at this stage of the proceedings meets the
non-frivolous test. In order to establish a prima facie case of
discrimination under Section 105(c) of the Act, 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. Secretary on behalf
of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (October
1980), rev'd on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981);
Secretary on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC
1842 (August 1984); Secretary on behalf of Chacon v. Phelps Dodge
Corp., 3 FMSHRC 2508 (1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).
Applicant here has presented sufficient evidence on each of the
elements of a prima facie case to establish that his claim, on
the record of this temporary reinstatement proceeding, is not
frivolous.
York's testimony that he made numerous complaints to his
foreman, though contradicted, would be sufficient to establish a
prima facie case that he engaged in protected activity[6] and
easily passes the lower threshold applicable here. It is
undisputed that York suffered adverse action, i.e. he was
terminated, while the other miners who had left the mine site
received only suspensions. Recognizing that the asserted
independent justification for the termination, York's cursing of
Ditty, is also directly controverted, Respondent's primary
argument in opposing temporary reinstatement is that the
termination could not have been the product of unlawful
motivation because York presented no direct evidence that Ditty
had been informed that York had made safety complaints and that
Respondent presented testimony establishing that he had not been
so informed. However, there is enough circumstantial evidence
on the issue of whether Ditty was aware of York's claimed
protected activity to raise an issue as to unlawful motivation
and meet the non-frivolous test. Ditty described himself as a
"hands-on person" who was closely involved in the mining
operations under his control. He monitored production reports
and would have been aware of any reductions and the reasons
therefore. If there was a fall-off in production as a result of
changes in roof bolting procedures prompted by York's actions, it
is highly likely that Ditty would have been familiar with all of
the pertinent facts. Similarly, if York had made safety
complaints, as he claims, there is a reasonable inference that
mine managers, including Ditty, would have been aware of them.
The Commission has frequently acknowledged that it is very
difficult to establish "a motivational nexus between protected
activity and the adverse action that is the subject of the
complaint." Secretary on behalf of Baier v. Durango Gravel, 21
FMSHRC 953, 957 (September 1999). Consequently, the Commission
has held that "(1) knowledge of the protected activity; (2)
hostility or animus towards the protected activity; and (3)
coincidence in time between the protected activity and the
adverse action" are all circumstantial indications of
discriminatory intent. Id. As noted above, there is
circumstantial evidence that Ditty would have been aware of any
protected activity by York and the proximity in time of any such
knowledge and the claimed adverse action is sufficient to raise
an inference of unlawful motivation.
On the other hand, BR&D has presented credible evidence that
York had not engaged in protected activity, that at the time of
the termination Ditty had no knowledge of any protected activity
by York, and, that there was an independent justification for the
termination. These issues are hotly contested and cannot, and
should not, be resolved at this stage of the proceedings. The
investigation of York's complaint has not yet been concluded and
no formal complaint of discrimination has been filed on his
behalf. The purpose of a temporary reinstatement proceeding is
to determine whether the evidence presented by the Complainant
establishes that his complaint is not frivolous, not to determine
"whether there is sufficient evidence of discrimination to
justify permanent reinstatement." Jim Walter Resources, Inc.,
920 F.2d at 744. Congress intended that the benefit of the doubt
should be with the employee, rather than the employer, because
the employer stands to suffer a lesser loss in the event of an
erroneous decision since he retains the services of the employee
until a final decision on the merits is rendered. Id. 920 F.2d
at 748 n.11.
I find that York's complaint is not entirely without merit
and conclude that his discrimination complaint has not been
frivolously brought.
**FOOTNOTES**
[6] A complaint made to an operator or its agent of "an
alleged danger or safety or health violation" is specifically
described as protected activity in � 105(c)(1) of the Act.
ORDER
The Application for Temporary Reinstatement is GRANTED.
BR&D Enterprises, Inc., is ORDERED TO REINSTATE Mr. York to the
position that he held immediately prior to May 25, 2000, or to a
similar position, at the same rate of pay and benefits,
IMMEDIATELY ON RECEIPT OF THIS DECISION.
Michael E. Zielinski
Administrative Law Judge
Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN
37215 (Certified Mail)
J. P. Cline III, Esq., P.O. Drawer 2220, Middlesboro, KY 40965
(Certified Mail)
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