FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

October 21, 2011

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

DECISION ON PETITION FOR REVIEW

OF TEMPORARY REINSTATEMENT AND

APPLICATION FOR STAY PENDING APPEAL

BY THE COMMISSION:

            This temporary reinstatement proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”), specifically the temporary reinstatement provisions of section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2). On October 6, 2011, the Commission received from Proppant Specialists, LLC (“Proppant”) a petition for review and application to stay Administrative Law Judge Jacqueline R. Bulluck’s order granting temporary reinstatement to miner Burdette Billings. 33 FMSHRC ___, slip op. at 4, No. LAKE 2011-855-DM (Sept. 29, 2011). On October 17, the Commission received the Secretary of Labor’s opposition to Proppant’s petition and application. For the reasons that follow, we grant the petition for review, deny Proppant’s request for a stay, and thus affirm the judge’s order requiring the temporary reinstatement of Mr. Billings.

I.

Factual and Procedural Background

            Complainant Billings was working at Proppant’s Oakdale Wet Plant in Monroe County, Wisconsin, as a front-end loader operator in April 2011. Sec’y’s Br. in Support of Appl. for Temp. Reinst. (hereinafter S. Br.), Pavlat Decl. ¶ ¶ 5(B), (C). The Secretary alleges that, after Proppant did not address safety concerns Mr. Billings raised with it regarding miners at the plant having to walk through sand which reached temperatures of 600 degrees Fahrenheit, Mr. Billings filed hazard complaints with MSHA. Id. at ¶¶ 5(D), (E). In a matter of days the Department of Labor’s Mine Safety and Health Administration (“MSHA”) inspected the plant. Id. at ¶ 5(F). On April 27, 2011, MSHA issued four citations to Proppant, regarding the hot sand and other alleged violations, and alleging high negligence and aggravated conduct on the part of the operator. Id. at ¶¶ 5(G), (H). Billings was discharged by Proppant on April 28, 2011. Id. at ¶ 5(J).

            Pursuant to section 105(c)(2) of the Mine Act, Mr. Billings filed a discrimination complaint dated May 9, 2011, with MSHA. See S. Br., Attach. 1. Following an investigation (Pavlat Decl., ¶ 4), on July 20, 2011, MSHA applied to the Commission for an order temporarily reinstating the miner to his position with Proppant. Proppant dropped the request it had originally made for a hearing on the Secretary’s application, and instead it and the Secretary agreed to submit their respective evidence and argument in writing to the judge. Slip op. at 1.

            The judge concluded from the parties’ submissions that the allegations of discrimination contained in the Secretary’s application had not been shown to be clearly lacking in merit and thus could not be considered frivolous. Id. at 4. Accordingly, the judge ordered reinstatement, and in keeping with the parties’ prior agreement, Mr. Billings was economically reinstated retroactive to August 8, 2011. Id.

II.

Disposition

            A.        Petition for Review of Temporary Reinstatement

            Under section 105(c)(2) of the Mine Act, “if the Secretary finds that [a discrimination] 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.” 30 U.S.C. § 815(c)(2). The Commission has repeatedly recognized that 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.’” See Sec’y on behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993) (quoting Sec’y on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 738 (11th Cir. 1990)). The Commission applies the substantial evidence standard in reviewing the judge’s determination. Sec’y on behalf of Bussanich v. Centralia Mining Co., 22 FMSHRC 153, 157 (Feb. 2000).

            The judge concluded that the Secretary had established that Mr. Billings’ complaint was not frivolously brought because in the application and subsequent brief the Secretary had adequately “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.” Slip op. at 4. The judge thus followed the proper framework to decide an application for temporary reinstatement. See Sec’y on behalf of Williamson v. Cam Mining, LLC, 31 FMSHRC 1085, 1089-91 (Oct. 2009). Moreover, Proppant does not dispute that, for purposes of this proceeding, substantial evidence supports the judge’s foregoing findings (see P. Pet. at 5), and our review of the record confirms that such evidence is present.

            The judge also came to a conclusion regarding the evidence the operator proffered in response to the application. The judge found that, “[a]t best, Proppant has shown an intent to defend its actions at hearing, on the basis of legitimate business-related, non-discriminatory reasons.” Slip op. at 4.

            Proppant takes issue with the judge’s treatment of its evidence, stating that the judge “wholly failed to account for the uncontested Declaration of Mr. Cummins[,] in which he declared under oath that he alone made the decision to terminate Mr. Billings and that he was unaware of the complaints or the inspection at that time.” P. Pet. at 5. According to the operator, it had thus “demonstrated” that the adverse action was actually taken by Mr. Cummins, who had no knowledge of the miner’s complaints and the subsequent MSHA inspection. Id.

            We cannot agree that the affidavits and other evidence submitted by either party in this case conclusively establish or disprove any of the elements of a case of discrimination under the Mine Act, as it would be improper to do so at this time. Moreover, the evidence cited by Proppant – while it may ultimately be relevant or even dispositive in the later discrimination proceeding – serves in this temporary reinstatement proceeding as no more than an alternative theory as to why Proppant discharged the miner. Contrary to Proppant’s suggestion, the judge was under no obligation to adopt this theory at this stage of the proceeding. “[R]esolv[ing] conflicts in the testimony, and ma[king] credibility determinations in evaluating the Secretary’s prima facie case,” are simply not appropriate “at this stage in the proceeding.” Williamson, 31 FMSHRC at 1089 (citing Sec’y on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999)).

            Proppant also submits that it was error for the judge not to address its request that the judge order the Secretary to reach a decision on whether or not she would file a discrimination complaint on behalf of Mr. Billings under section 105(c)(2), given that the 90-day statutory period for such a filing lapsed in early August. P. Pet. at 5-6. We find it unnecessary to address Proppant’s argument, because in her response to the petition for review the Secretary explains that she filed a discrimination complaint on October 14, 2011, in Docket No. LAKE 2012-34-DM, Secretary on behalf of Billings v. Proppant Specialists, LLC. See S. Resp. at 19.

            B.        Request for Stay

            Commission Procedural Rule 45(f) provides that, with respect to an order granting temporary reinstatement, “[t]he filing of a petition shall not stay the effect of the Judge’s order unless the Commission so directs; a motion for such a stay will be granted only under extraordinary circumstances.” 29 C.F.R. § 2700.45(f). The grounds for Proppant’s application for stay here were the lack of a timely filing of a discrimination complaint by the Secretary and the judge’s failure to address the issue in her order of temporary reinstatement. P. Pet. at 6-8. We conclude that the Secretary’s subsequent filing of the complaint renders the operator’s request for stay on those grounds moot, and we thus deny the application.

III.

Conclusion

            For the foregoing reasons, we affirm the judge’s determination that the miner’s discrimination complaint is not frivolous and thus deny the petition to review the miner’s temporary reinstatement. In so doing, we intimate no view as to the ultimate merits of this case. We also deny the application for a stay as moot.

                                                                                    /s/ Mary Lu Jordan.

                                                                                    Mary Lu Jordan, Chairman

                                                                                    /s/ Michael F. Duffy

                                                                                    Michael F. Duffy, Commissioner

                                                                                    /s/ Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Robert F. Cohen

                                                                                    Robert F. Cohen, Jr., Commissioner

                                                                                    /s/ Patrick K. Nakamura

                                                                                    Patrick K. Nakamura, Commissioner

Distribution

Robin Rosenbluth, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2228

Arlington, VA 22209

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Burdette Billings

12353 Grover Rd.

Camp Douglas, WI 54618

Mark N. Savit, Esq.

Marci M. Fulton

Patton Boggs LLP

1801 California Street, Suite 4900

Denver, CO 80202

Allan Fogel

Mark Gauf

International Union of Operating Engineers

Local 139, Main Office, District B

4702 S. Biltmore Lane

Madison, WI 53718

Administrative Law Judge Jacqueline Bulluck

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021