<DOC>
[DOCID: f:kt99243.wais]
LEECO, INCORPORATED
July 23, 1999
KENT 99-243-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
July 23, 1999
SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT
MINE SAFETY AND HEALTH : PROCEEDING
ADMINISTRATION, (MSHA), :
on behalf of Rodney Smith, : Docket No. KENT 99-243-D
Complainant :
v. : BARB CD 98-26
: BARB CD 98-33
LEECO, INCORPORATED, : BARB CD 99-02
Respondent :
: Maces Creek
: Mine ID 15-17911
ORDER GRANTING TEMPORARY REINSTATEMENT
Before: Judge Bulluck
This matter is before me on an application, filed
by the Secretary on July 6, 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 Leeco,
Incorporated ("Leeco") to temporarily reinstatement Rodney
Smith to his former position as a roof bolter, third shift
belt examiner and assistant foreman at Leeco's Maces Creek
Mine, or to a similar position at the same rate of pay.
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
Ronnie L. Brock, Mine Safety and Health Administration ("MSHA")
supervisory investigator assigned to the Barbourville field
office, and a copy of discrimination complaints filed by
Smith with MSHA on June 23, 1998, July 23, 1998, and
December 3, 1998, respectively.[1] The application alleges
that Smith was 1) suspended for three days because of his
designation as a miners' representative, 2) subjected to
interference and prevented from carrying out his duties
pursuant to his miners' representative designation, and 3)
constructively discharged from his employment with
Leeco by being required to work and travel in belt
entries under unsafe, hazardous roof conditions.
Leeco elected not to request a hearing and on July 16,
1999, filed its Response, therein denying that the company
had prevented Smith, as a miners' representative, from
engaging in "walk-around" duties with an MSHA
inspector, or suspended him for discriminatory reasons,
or that Smith was constructively discharged. Leeco's
Response was supported by Affidavit of Leeco's
president, Joseph Evans.
Procedural Framework
The scope of this proceeding is governed by the provisions
of Commission Rules 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,
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
Brock's review of the investigative reports, respecting
Smith's discrimination claims. Brock found that on June 23,
1998, Smith, the sole non-supervisory miners' representative
who traveled with MSHA inspectors, was suspended for three
days for working inby unsupported roof, a common practice at
the mine, for which no other employee had been similarly
disciplined. Brock further found that on July 22, 1998,
mine superintendent Arnold Lowe prevented Smith from
accompanying MSHA inspector Buford Conley on a Triple A
inspection of the mine, by sending Smith home and permitting
a shift foreman, not yet officially confirmed as a miners'
representative, to travel with Conley. Brock's review also
found support for Smith's claim that he was constructively
discharged on December 1, 1998, due to Leeco's failure to
address hazardous roof conditions reported by Smith in the
pre-shift and belt examination books. In this regard, Brock
found that other employees had been making notations of
corrective actions in the examination books, which actions
were not, in fact, being taken, and that on November 30,
1998, Smith refused to sign the pre-shift book that falsely
reported corrective roof support measures. Finally, Brock
concluded that Smith's allegations of constructive discharge
due to Leeco's failure to correct hazardous conditions in
the belt entries where Smith traveled and worked, and
harassment due to his designation as a miners'
representative, were not frivolous.
Leeco's Response, supported by president Evans' Affidavit,
seeks to establish that the complaints were frivolously
brought by, rebutting each allegation made by the Secretary.
Leeco asserts that Smith and two other employees
intentionally, deliberately and repeatedly traveled under
unsupported roof, and that all three were suspended for
three days. Respecting the July 22, 1998, inspection, Leeco
states that Smith had completed his shift prior to the
inspection and was not sent home, suffered no loss of pay,
and was among several miners' representatives at the mine,
one of whom traveled with Inspector Conley during his
inspection. In response to the constructive discharge
allegation, Leeco asserts that Smith certified that
corrective action had, in fact, been taken, respecting
conditions found by him, to the degree that he consecutively
signed several pre-shift and belt examination book entries.
Moreover, Leeco states that Smith voiced no specific health,
safety or other concerns to mine management, respecting his
general job dissatisfaction, and that he voluntarily
resigned on December 1, 1998.
It is clear that the Mine Act protects miners'
representatives from harassment or intimidation in the
exercise of their duties. Moreover, since Leeco has waived
its right to a hearing on the Secretary's application, while
I have considered Leeco's Response, my review must accept as
true the events, as alleged. At best, Leeco has shown an
intent to defend its actions at hearing, on the basis of
legitimate business-related, non-discriminatory motivations.
The Secretary has set forth allegations of discipline of
Smith and interference in the exercise of his duties as a
miners' representative, sufficient to raise an inference of
discrimination. Likewise, respecting constructive
discharge, the Secretary's allegation sets forth protected
activity and refusal to work under unsafe roof conditions,
under circumstances that are protected under the Mine Act,
if proven. While the Secretary ultimately bears the burden
at hearing of proving these allegations by a preponderance
of the evidence, in order to sustain a violation of section
105(c), they are not, as set forth in the Secretary's
application, clearly lacking in merit and, therefore,
satisfy the lesser threshold in this proceeding, of not
being frivolously brought.
ORDER
For the reasons set forth above, it is ORDERED that Leeco,
Incorporated, immediately reinstate Rodney Smith to the position
that he held immediately prior to his resignation from employment
on December 1, 1998, 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.
Jacqueline R. Bulluck
Administrative Law Judge
Distribution:
MaryBeth Bernui, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail)
Robert I.Cusick, Esq., Wyatt, Tarrant & Combs Law Firm,
Citizens Plaza, 500 West Jefferson Street, Louisville, KY 40202
(Certified Mail)
Melanie J. Kilpatrick, Esq., Wyatt, Tarrant & Combs Law Firm,
250 West Main Street, Suite 1700, Lexington, KY 40507
(Certified Mail)
C.T. Corporation Systems, Agent for Service, Leeco, Inc.,
Kentucky Home Life Bldg., Louisville, KY 40202
(Certified Mail)
Mr. Rodney Smith, General Delivery, Slemp, KY 41763
(Certified Mail)
Stephen Sanders, Esq., Appalachian Research and Defense Fund
of Kentucky, Inc., 120 N. Front Street, Prestonsburg, KY 41653
(Certified Mail)
nt
**FOOTNOTES**
[1]: Discrimination Complaint of June 23, 1998, alleges that
"[Smith] was given three days off, for following direct orders
given by [his] supervisor." Discrimination Complaint of July 23,
1998, alleges that "On July 22, 1998, [Smith] was refused [his]
rights as a miners' representative to travel with MSHA inspector.
[He] was sent home." Discrimination complaint of December 3,
1998, alleges that "[Smith] was forced to quit for reporting
safety violations and management made no attempt to correct them,
and [he] was harassed for being a miners' representative."