FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

February 28, 2013 

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

DECISION

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”). On January 14, 2013, Administrative Law Judge William S. Steele issued an order temporarily reinstating Russell Ratliff to employment with Cobra Natural Resources, LLC (“Cobra”) pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2). 35 FMSHRC __, slip op. at 20. Cobra has filed a petition for review of the judge’s temporary reinstatement order with the Commission. For the reasons that follow, we grant review and affirm the judge’s order requiring the temporary reinstatement of Ratliff.

I.

Factual and Procedural Background

            The facts of this case are set forth in detail in the judge’s January 14, 2013 decision and order. Id. at 4-19. On October 31, 2012, Ratliff filed a discrimination complaint with the Department of Labor’s Mine Safety and Health Administration (“MSHA”) alleging that his discharge from Cobra amounted to discrimination in violation of section 105(c) of the Mine Act. The Secretary filed an Application for Temporary Reinstatement on December 12, 2012, requesting an order requiring Cobra to temporarily reinstate Ratliff to his former position. Cobra requested a hearing, which was held on January 7, 2013.

            At the time of his discharge, Ratliff was working as a scoop operator and shuttle car operator at the Mountaineer Alma A. Mine. Id. at 6; Tr. 10. On October 9, 2012, Ratliff spoke out at a daily safety meeting, stating, in effect, that he believed that recent operations at the mine were not being conducted in accordance with the approved ventilation plan. Slip op. at 14. Thereafter, he documented his concerns on ten “Running Right” cards, and on October 15, he deposited the cards in a designated box at the mine. Id. at 4, 15. On October 15, subsequent to his shift Ratliff was also involved in a verbal altercation in the bathhouse with an assistant mine foreman. Id. at 8. On October 17, 2012, Ratliff was discharged from his position at Cobra, purportedly for his insubordination and his use of profanity toward the assistant mine foreman. Id. at 4-5.

            On November 16, 2012, Cobra circulated a letter to employees announcing a reduction in the workforce at the mine, effective as of January 15, 2013. C. Ex. D; C. Ex. E. A total of 14 Cobra employees at the Mountaineer Mine were affected by the layoff. Slip op. at 13. Nine of these employees was transferred to work at other mines operated by Alpha Natural Resources (Cobra’s parent company) and five were laid off entirely. Id. at 8, 13. Cobra asserts that these decisions were exclusively based on employee evaluations, which had been completed in March 2012. Id. at 13. The five employees who received the lowest scores on their evaluation did not receive other assignments and were terminated completely. Id.; C. Ex. H.

            Ratliff was terminated prior to the layoff. However, he received an overall score on his March 2012 evaluation which would have ranked him among the five lowest-scoring employees employed at Cobra at the time of the layoff. C. Ex. B; C. Ex. H. At the hearing, the operator contended that had Ratliff been employed at Cobra at the time of the layoff, he would have been included in the layoff. Tr. 123-24. Thus, Cobra contended that any “award of temporary reinstatement should be tolled no later than January 15, 2013,” the date when employees affected by the layoff would cease being paid. See C’s Request for Hearing on Appl. for Temporary Reinstatement.

            On January 14, 2013, the judge issued a decision concluding that Ratliff’s complaint was not frivolously brought. Slip op. at 20. More specifically, the judge concluded that Ratliff engaged in protected activity both in speaking at the safety meeting and in submitting the “Running Right” cards. Id. at 14-15. The judge also concluded that the operator was aware of Ratliff’s activities, showed animus toward Ratliff’s activities, and that there was a close connection in time between these activities and his discharge. Id. at 19-20. Accordingly, the judge directed Cobra to temporarily reinstate Ratliff to his former position or to a similar position at the same rate of pay for the same number of hours worked, and with the same benefits, as at the time of his discharge. Id. at 20.

            The judge noted that the Commission has previously held that an economic layoff may toll an operator’s obligation to temporarily reinstate a miner. Id. at 19 (citing Sec’y of Labor on behalf of Gatlin v. KenAmerican Res., Inc., 31 FMSHRC 1050, 1055 (Oct. 2009) (stating that the duration of a temporary reinstatement of a miner may be modified if the operator can prove that the complainant’s inclusion in a layoff, at an idled mine, was entirely unrelated to his protected activity)). The judge held that the operator failed to prove that work was unavailable to Ratliff. The judge found that “a mere 14 employees were laid off out of a total of 106, and only five employees were permanently severed from service.” Id. The judge concluded that Cobra’s obligation to reinstate Ratliff was not tolled by the layoff because the operator continued to mine coal, and work was available for shuttle car operators. Id. 18-19.

            On review, Cobra asserts that the judge erred in determining that Ratliff’s temporary reinstatement order should not be modified to reflect that he would have been laid off by Cobra in January 2013, as part of a reduction in force. PDR at 6.

            The Secretary argues that the judge exceeded the scope of a temporary reinstatement hearing when he considered whether a remedy should be tolled due to changed circumstances.

S. Br. at 5. The Secretary maintains that the consideration of changed circumstances should be considered in a hearing separate from the temporary reinstatement hearing, after the parties have been provided an opportunity for discovery and to fully argue the matter in pleadings. Id. at 5-9.

The Secretary contends that this separate evidentiary hearing may in some circumstances be merged into the hearing on the merits. Id. at 8.

II.

Disposition

            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 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 of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 738 (11th Cir. 1990). It is “not the judge’s duty, nor is it the Commission’s, to resolve the conflict in testimony at this preliminary stage of the proceedings.” Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). In reviewing a judge’s temporary reinstatement order, the Commission has applied the substantial evidence standard. See id. at 719; Sec’y of Labor on behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993).

            While the scope of temporary reinstatement proceedings is limited to determining whether the complaint is frivolously brought, we have permitted a limited inquiry to determine whether the obligation to reinstate a miner may be tolled. In Gatlin, the Commission held that the judge erred in concluding “that a temporary reinstatement order requires a miner to be employed under any circumstance, regardless of changes that occur at the mine after issuance of the temporary reinstatement order.” 31 FMSHRC at 1054. The Commission has thus recognized that “the occurrence of certain events, such as a layoff for economic reasons, may toll an operator’s reinstatement obligation.” Sec’y of Labor on behalf of Shemwell v. Armstrong Coal Co., 34 FMSHRC 996, 1000 (May 2012) (citations omitted).

            We reject the Secretary’s argument that the judge necessarily exceeded the scope of the temporary reinstatement hearing by considering whether the layoff tolled Cobra’s obligation to temporarily reinstate Ratliff. In the hearing in a temporary reinstatement proceeding, the judge may appropriately consider evidence offered by an operator seeking to affirmatively show that reinstatement should be tolled because of a layoff due to business contractions or similar conditions. See Gatlin, 31 FMSHRC at 1054.

            As we also noted in Gatlin, in order for an operator to establish that temporary reinstatement should be tolled based on a subsequent layoff, the operator must demonstrate that “the layoff properly included” the miner who filed the complaint of discrimination. 31 FMSHRC at 1055. Thus, it follows that the judge may also consider any challenges the Secretary is prepared to assert that the miner’s inclusion in the layoff was, or might have been, related to protected activity engaged in by the miner.

            An operator generally must affirmatively prove that a layoff justifies tolling temporary reinstatement by a preponderance of the evidence. Gatlin, 31 FMSHRC at 1055. However, if the objectivity of the layoff as applied to the miner is called into question in the temporary reinstatement phase of the litigation, judges must apply the “not frivolously brought” standard contained in section 105(c)(2) of the Mine Act to the miner’s claim. This is because the layoff itself, as a termination of employment, must at that point be evaluated as a potentially wrongful adverse action. In other words, temporary reinstatement should be granted and not tolled unless the operator shows that the claim that the layoff arose at least in part from protected activity is frivolous.  

            For example, in Sec’y of Labor on behalf of Ondreako v. Kennecott Utah Copper Corp., 25 FMSHRC 585, 586-87 (Oct. 2009), aff’g, 25 FMSHRC 612 (Oct. 2003) (ALJ), a miner who had made safety complaints was included in an extensive layoff based on an evaluation system very similar to the one used by Cobra in the present case. See 25 FMSHRC at 616. In finding that the miner’s discrimination complaint was not frivolously brought for purposes of temporary reinstatement, the judge noted, “[i]t would be easy to figure out how to give an employee that is complaining about safety conditions a poor score under this system.” Id. at 619.

            Of course, the ultimate determination concerning the appropriate remedy for any alleged discrimination, including the duration of an operator’s reinstatement obligation, if any, is made in the proceeding on the merits.

            In the present case, the judge focused on whether work was available to Ratliff. However, in the section of the Decision and Order which discussed hostility or animus towards the miner’s protected activity, the judge noted that a miner’s reputation for being “difficult” may represent animus toward his safety concerns. Slip op. at 16 (citing Sec’y of Labor on behalf of Turner v. National Cement Co. of California, 33 FMSHRC 1059, 1069 (May 2011)). In discussing animus, the judge noted that Ratliff had a reputation for being “difficult” because he was “a stickler on safety rules.” Id. This finding is supported by Ratliff’s testimony that he has a reputation of being “hot-headed over . . . safety issues.” Tr. 71. The judge also noted Ratliff’s testimony that he had spoken up many times at safety meetings, and that he was the only miner who spoke up frequently at safety meetings. Slip op. at 16; Tr. 57-58, 71.

            Thus, the judge concluded that “to a certain degree, Ratliff’s reputation for being difficult was caused by his insistence on safety matters.” Slip op. at 16. Additionally, the judge found that “[t]his evidence of animus is bolstered by the fact that another employee that participated in the October 9 safety meeting, Jon Lewis, was among the five employees laid off a month later.” Id. We have reviewed the judge’s findings and have determined that they are supported by substantial evidence.

            We recognize that these findings were made in the context of the judge’s discussion of the animus that may have motivated the discharge, but such animus is also relevant in determining whether the layoff was discriminatory, at least as it was applied to Ratliff. Cobra concedes that the ranking on which it relied to justify the inclusion of Ratliff in the layoff was based in part on subjective factors such as “attitude.” C. Ex. B (“areas of improvement” column).

            There is conflicting evidence in the record concerning whether the March 2012 evaluations were entirely unrelated to miners’ protected activities. As previously established, it is “not the judge’s duty, nor is it the Commission’s, to resolve the conflict in testimony at this preliminary stage of the proceedings. Albu, 21 FMSHRC at 719. The ultimate determination concerning whether Ratliff’s ranking in the March evaluation was related to his protected activities should be made following a hearing on the merits, after the parties have had an opportunity for discovery and to fully develop their positions.

            At this stage, we intimate no view on the ultimate merits of the case. We find that the record compels the conclusion that the Secretary’s claim (that Ratliff’s placement in the March evaluation resulted at least in part from his protected activity) is not frivolous. See American Mine Services, Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (remand not necessary when record supports no other conclusion). Accordingly, we affirm in result the judge’s order temporarily reinstating Ratliff.

                                                                                    /s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chairman

                                                                                    /s/Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Patrick K. Nakamura                                                                                

                                                                                    Patrick K. Nakamura, Commissioner

Distribution:

William E. Robinson, Esq.

Dinsmore & Shohl, LLP

900 Lee Street, Suite 600

P.O. Box 11887

Charleston, WV 25339-1887

Russell Ratliff

602 E. 7^th Avenue

Williamson, WV 25661

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge William Steele

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

875 Greentree Road, Suite 290

Pittsburgh, PA 15220