FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N.W., SUITE 9500
WASHINGTON, D.C. 20001
(202) 434-9950
June 1, 2010
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SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION, on behalf of RICKEY JOE STRATTIS, Applicant
v.
ICG BECKLEY, LLC,
Respondent
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: : : : : : |
TEMPORARY REINSTATEMENT PROCEEDING
Docket No. WEVA 2010-991-D HOPE CD 2010-06
Beckley Pocahontas Plant Mine ID 46-09216 |
ORDER ON TEMPORARY REINSTATEMENT
Appearances:
Jessica R. Hughes, Esq., U.S. Department of Labor, Arlington, Virginia, on behalf of the
Applicant;
R. Henry Moore, Esq., Pittsburgh, Pennsylvania, on behalf of the Respondent.
Pursuant to Section 105(c) of the Federal Mine Safety and Health Act of 1977 (the “Mine
Act”), 30 U.S.C. § 815, et seq., as amended, and 29 C.F.R. § 2700.45, this matter is before the
Court on an Application for Temporary Reinstatement filed by the Secretary of Labor
(“Secretary”) on behalf of Rickey Joe Strattis, Applicant. The Application seeks to have Mr.
Strattis reinstated to his former position as a dozer operator at Respondent’s facility.
A hearing
on the Application, made at the request of the Respondent, was held in Charleston, West Virginia
on May 24, 2010. The Court considered the evidence at the hearing, the closing statements
offered by the parties and the post-hearing briefs in making its determination.
The law is well-established on the issue of temporary reinstatement under the Mine Act.
Section 105(c)(2) of the Act 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 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 [her] application for temporary reinstatement, the Secretary may limit [her]
presentation to the testimony of the complainant. The respondent shall have an opportunity to
examine any witness called by the Secretary and may present testimony and documentary
evidence in support of its position that the complaint was not frivolously brought.”
Accordingly, the scope of a temporary reinstatement hearing is narrow, being limited to a
determination by the judge as to whether a miner's complaint was frivolously brought. Sec'y of
Labor 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, 95 th Cong. 1st Sess. 36-37 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources , 95th Cong. 2nd Sess.,
Legislative History of Federal Mine Safety and Health Act of 1977, at 6240625 (1978). The “not
frivolously brought” standard has been equated to the “reasonable cause to believe” standard
applied in other contexts. Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d at 747; Sec'y of
Labor on behalf of Bussanich v. Centralia Mining Co., 22 FMSHRC 153, 157 (February 2000).
Although an application for temporary reinstatement need not prove a prima-facie case of
discrimination, the elements of a discrimination claim are noted here as part of the context in
which it is assessed whether the evidence meets the non-frivolous test. Commission case law has
set forth the essential elements of an action under Section 105(c) of the Act, by articulating that a
complaining miner bears the burden of establishing: (1) that he or she engaged in protected
activity, and (2) that the adverse action complained of was motivated in any part by that activity.
Sec'y of Labor on behalf of Paula v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980),
rev'd on other grounds sub nom.; Consolidation Coal Co. v. Marshall, 773 F.2d 1211 (3rd. Cir.
1981); Sec'y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April
1981); Sec'y of Labor on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (August
1984); Sec'y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November
1981), rev'd on other grounds sub nom; Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir.
1983).
The Commission has frequently acknowledged the difficulty of establishing “a
motivational nexus between protected activity and that adverse action that is the subject of the
complaint.” See, e.g., Sec'y on behalf of Baier v. Durango Gravel, 21 FMSHRC 953 (September
1999). Consequently, the Commission has held that, “(1) knowledge of 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 indications of discriminatory intent. Id. at 957.
These examples are not in the conjunctive. Consequently, the coincidence in time between the
protected activity and Strattis’ discharge by itself can be a basis upon which to infer an illegal
motive on ICG Beckley’s part. See: Durango Gravel, 21 FMSHRC at 957.
The Court has determined that the evidence here establishes that Mr. Strattis’ Application
was not frivolously brought. The Secretary established that Mr. Strattis, by filing a 105 (c)
complaint in November 2009, engaged in protected activity. The Secretary maintains that Mr. Strattis’ subsequent discharge was motivated, at least in part, by that protective activity.
MSHA investigator Mr. Kelly Acord testified that he requested information from the Respondent
in connection with his investigation of the complaint on April 9, 2010. The Applicant was
discharged on April 14, 2010. In this regard the Secretary notes the close temporal connection
between the date on which MSHA sought additional information from the Respondent and Mr.
Strattis’ discharge, which occurred only three business days after that. Mr. Strattis testified that
ICG Beckley’s General Manager told him on the date of his discharge that MSHA had made a
document request in connection with his discrimination claim and that he characterized Strattis
as a “nuisance.”
On this record it is clear that Mr. Strattis had no knowledge that MSHA had
asked ICG Beckley for additional information in connection with its on-going investigation of his
claim of discrimination. Although the Applicant filed his discrimination claim in November of
the previous year, there had been no prior discipline meted out; he had not been suspended nor
discharged until shortly after the MSHA request for additional information.
The Court also concurs with the Secretary’s point that decisions, such as the
Commission’s recent issuance in CAM Mining LLC, 31 FMSHRC 1085, October 22, 2009, 2009
WL 3802726, enunciate the proper test and that the test in a temporary reinstatement proceeding
is not about making credibility determinations between competing versions of the events, but
rather whether the claim is frivolous.
For that reason, contentions raised in the Respondent’s
post-hearing brief, such as whether the Applicant was constantly confronting others, whether he
misused his equipment, and whether the real genesis of the discrimination claim was the
Applicant’s desire to work a day shift, are all matters for the subsequent full proceeding on the
claim of discrimination, as distinct from this temporary reinstatement matter.
Instead, the
Court’s task is to “evaluate[] the evidence of the Secretary’s prima facie case and determine[]
whether the miner’s complaint of discrimination ‘appear[s] to have merit.” CAM Mining at1089.
It is undisputed that Mr. Strattis engaged in protected activity and suffered the adverse
action of discharge and that, for purposes of temporary reinstatement, the claim is not frivolously
brought. Accordingly, for the reasons articulated above, Respondent is ORDERED to
economically reinstate Mr. Strattis to the position he held on April 14, 2010, at the same rate of
pay and with the same benefits to which he was then entitled. Mr. Strattis’ reinstatement will be
deemed effective as of the date of his discharge.
William B. Moran
Administrative Law Judge
Distribution:
Jessica R. Hughes, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor, Arlington, VA 22209-2247
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue, Suite 1340, Pittsburgh, PA 15222
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