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[DOCID: f:kt200044.wais]
MANALAPAN MINING COMPANY
January 7, 2000
KENT 2000-44-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 7, 2000
SECRETARY OF LABOR, MSHA, : TEMPORARY REINSTATEMENT
on behalf of : PROCEEDING
VERNON DANIELS, :
Complainant : Docket No. KENT 2000-44-D
v. : BARB CD 99-21
:
MANALAPAN MINING COMPANY, : R.B. No. 7 Mine
Respondent :
:
:
: Mine ID 15-17701
ORDER GRANTING TEMPORARY REINSTATEMENT
Before: Judge Bulluck
This matter is before me upon application, filed by the
Secretary on November 29, 1999, 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 Manalapan Mining Company,
Incorporated ("Manalapan"), to temporarily reinstate Vernon
Daniels to his former position as a mobile bridge carrier
operator, day shift, at Manalapan's RB No. 7 mine, 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 Gary Harris, and a copy
of the discrimination complaint filed by Daniels with MSHA on
September 17, 1999. The application alleges that Daniels was
laid-off by Manalapan, because he made himself available to
testify at a temporary reinstatement hearing, and because,
subsequently, he testified at the related discrimination hearing.
Manalapan elected to waive its right to a hearing and on
December 9, 1999, filed its response, therein denying that
Daniels had been laid-off for any discriminatory reason, and
asserting that Daniels refused three offers to return to work.
The Secretary filed a reply to Manalapan's response on December
27, 1999, noting that any post lay-off offers made by Manalapan
to Daniels were for a different position, with less pay, or for a
different shift at another mine.
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 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
Harris's investigation of Daniels' discrimination claims. Based
on his investigation, Harris found: 1) that Daniels had been
employed at the RB No. 7 mine (J&C Mining prior to May 1999) from
February 1997, until July 29, 1999; 2) that on January 19, 1999,
day shift miners Vernon Daniels, William Daniels, Jeff Craig,
Dwayne Hubbard, Grant Noe and Carl Runyon engaged in protected
activity, when they testified in the wrongful discharge
proceeding of Middleton v. J&C Mining, L.L.C., 21 FMSHRC 217
(February 1999) (ALJ); 3) that on March 2, 1999, Manalapan
discharged Noe; 4) that in May 1999, Manalapan took over J&C
Mining, renamed the mine RB No. 7, and continued to employ all
J&C Mining employees on one maintenance and two production
shifts; 5) that during a day shift in June 1999, the foreman sent
Daniels and Hubbard home early; 6) that on July 29, 1999, due to
the depressed coal market, Manalapan laid-off 14 miners at the RB
No. 7 mine, including Daniels, Hubbard and Donnie Adkinson, and
transferred Runyon, Craig and William Daniels to another mine; 7)
that Manalapan retained seven day shift miners at the RB No. 7
mine, who did not participate in the Middleton hearing; 8) that
Manalapan replaced Daniels, Craig, Hubbard, and William Daniels
with second shift miners, who have less seniority and mining
experience; 9) that mine superintendent Earl Hensley, upon the
advice of day shift foreman George Saylor, decided which miners
to lay-off; 10) that foreman Saylor had knowledge of the miners'
protected activity; and 11) that all day shift miners who
testified in the Middleton hearing have suffered adverse action
within six months of the protected activity. Based on these
findings, Harris concluded that Daniels' allegation that he was
laid-off because of his participation in the January 1999,
Middleton hearing was not frivolous.
Manalapan's response seeks to establish that the
discrimination complaint was frivolously brought by asserting, in
part: 1) that on June 29, 1999, Manalapan shut down operations,
by placing the miners on one week without pay, in addition to
their paid vacation week; 2) that, due to the depressed coal
market, Manalapan owner Duane Bennett decided to eliminate the
second shift, and delegated the decision-making authority to mine
superintendent Hensley; 3) that Hensley received recommendations
from foreman Saylor, as to the best qualified and most reliable
miners; 4) that, for reasons concerning production, Hensley
determined that other miners were more dependable than Daniels,
and Hensley also believed that the lay-off would only last for a
couple of months; 5) that Jessie Saylor, foreman Saylor's son,
was also involved in the Middleton proceeding, as well as the
pending Noe wrongful discharge proceeding; 6) that Daniels was
absent nine days, and left work early two days, between January
and May 1999; 7) that Daniels refused three opportunities to
return to work, one at his previous position; and 8) that, of 38
miners laid-off, 11 of which were bridge operators, only 8 bridge
operators had been called back to work, as of December 9, 1999.
Manalapan concludes, therefore, that the decision to downsize was
motivated by a depressed coal market, that decisions on retention
and placement of miners were based solely on job qualifications
and work records, and that Daniels was not laid-off because he
gave testimony in the Middleton wrongful discharge hearing.
While I have carefully considered Manalapan's response,
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. Manalapan
has conceded the protected activity and has not challenged the
Secretary's position that, at the time Daniels was laid-off,
company officials responsible for the action had knowledge of
Daniels' participation in the Middleton discrimination
proceeding. At best, Manalapan 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
Manalapan Mining Company, Incorporated, reinstate Vernon Daniels,
retroactive to December 29, 1999, by agreement of the parties, to
the position he held prior to his lay-off on July 29, 1999, at
the same rate of pay and benefits for that position, or to a
similar position with the same or equivalent duties, at the same
rate of pay and benefits.
Jacqueline R. Bulluck
Administrative Law Judge
Distribution: (Certified Mail)
Brian W. Dougherty, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, TN 37215
Richard D. Cohelia, Representative, Manalapan Mining Company,
Route 1, P.O. Box 374, Evarts, KY 40828