FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 10, 2012

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, 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 April 20, 2012, Administrative Law Judge Jerold Feldman issued an Order Granting Secretary’s Motion for Summary Decision and Order Granting Amended Application for Temporary Reinstatement. In the order, the Judge granted temporary reinstatement to Reuben Shemwell pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C. § 815 (c)(2). 33 FMSHRC , slip op. at 8, No. KENT 2012-655-D (Apr. 20, 2012) (ALJ). Armstrong Coal Company, Inc. (“Armstrong Coal”) and Armstrong Fabricators, Inc. (“Armstrong Fabricators”) subsequently filed a timely petition for review of the Judge’s temporary reinstatement order. Armstrong Coal and Armstrong Fabricators also filed a motion to stay the temporary reinstatement order. For the reasons that follow, we grant the petition, deny the motion for stay, vacate that portion of the Judge’s decision granting the Secretary’s Motion for Summary Decision, and remand the matter to the Judge for further proceedings.

I.

Factual and Procedural Background

            Armstrong Coal operates the Parkway Mine Surface Facilities in Muhlenberg County, Kentucky. Armstrong Fabricators performs services at the Parkway facility. During the relevant time, Reuben Shemwell was employed at the Parkway facility as a welder. Slip op. at 1-2.

            Mr. Shemwell’s employment was terminated on September 14, 2011. The Secretary alleges that Shemwell’s dismissal was motivated by Shemwell’s complaints concerning the need for respirator protection from fumes that were generated during the welding process. The complaints resulted in respirators being purchased in April 2011. However, the operators assert that Shemwell was discharged for excessive personal cell phone use during working hours. Slip op. at 2.

            On January 23, 2012, Mr. Shemwell filed a discrimination complaint with the Department of Labor’s Mine Safety and Health Administration (“MSHA”) against Armstrong Coal. App. for Temp. Reinstatement, Ex. B. MSHA conducted a preliminary investigation of Shemwell’s discrimination complaint and found that it was not frivolously brought. Id. at 2. On March 5, 2012, the Secretary filed an Application for Temporary Reinstatement, requesting an order requiring Armstrong Coal to temporarily reinstate Shemwell to his former position as a welder. Id. at 3.

            On March 8, 2012, Armstrong Coal filed a Request for Hearing on the Secretary’s Application for Temporary Reinstatement. On March 13, 2012, the Judge held a conference call with counsel of the parties. During the call, the Judge instructed the Secretary to file a Motion for Summary Decision on the issue of temporary reinstatement. Tr. 8; Mot. for Summary Dec. at 1 n.1.

            On March 20, 2012, the Secretary filed a Motion for Summary Decision. The Secretary argued that Shemwell engaged in activity protected by section 105(c) of the Mine Act when he told management at Armstrong Coal that he needed a new respirator because of fumes that were generated during welding. Mot. for Summary Dec. at 4-5. She submits that Shemwell was terminated approximately five months after Armstrong Coal acted on Shemwell’s complaints and purchased new respirators. Id. at 5. The Secretary asserted that the timing of the termination, in addition to other arguably unwarranted disciplinary actions leading up to the termination, showed that Shemwell’s complaint was not frivolous. Id. at 5-6.

            Armstrong Coal opposed the motion. Armstrong Coal argued in part that the standard for summary decision had not been satisfied because there were questions of material fact at issue. Opp’n at 5-6. Armstrong Coal asserted that there was a question of fact concerning which entity employed Shemwell. Id. at 6-8. It maintained that Shemwell was employed by Armstrong Fabricators rather than by Armstrong Coal. Id. It further asserted that Shemwell’s complaint was filed 131 days after his termination, beyond the 60-day time-frame provided in section 105(c)(2) of the Mine Act. Id. at 8-10. Finally, Armstrong Coal contended that there was insufficient evidence in the record to establish that Shemwell’s termination was discriminatorily motivated. Id. at 10-16. Accordingly, Armstrong Coal requested that the motion for summary decision be denied and that the matter be set for hearing. Id. at 17.

            On March 28, 2012, the Judge held another conference call with counsel of the parties. During the call, the parties discussed amending the Application for Temporary Reinstatement to include Armstrong Fabricators as a party. Counsel for Armstrong Coal and Armstrong Fabricators indicated that Armstrong Fabricators would not oppose a motion to amend. Tr. 3.

            On April 2, 2012, the Secretary filed a Motion to Amend the Application for Temporary Reinstatement to add Armstrong Fabricators as a party. Neither Armstrong Coal nor Armstrong Fabricators opposed the motion.

            On April 20, 2012, the Judge issued an Order Granting Secretary’s Motion for Summary Decision and Order Granting Amended Application for Temporary Reinstatement. The Judge granted the Secretary’s motion to amend the application for temporary reinstatement to add Armstrong Fabricators as a party in addition to Armstrong Coal. Slip op. at 6. He reasoned that it was not his duty to resolve real party-in-interest issues at the preliminary stage of a temporary reinstatement proceeding. Id. The Judge concluded, however, that the Secretary’s assertion that Armstrong Coal is a proper party to the proceeding, in addition to Armstrong Fabricators, was not frivolous. Id.

            The Judge granted the Secretary’s motion for summary decision. Id. at 8. The Judge excused the untimeliness of the filing of Shemwell’s complaint with MSHA. Id. at 6-7. He noted evidence that Shemwell had engaged in protected activity by complaining about the respirators, and that Shemwell was discharged five months after new respirators were purchased. Id. at 7-8. The Judge concluded that the coincidence in timing between Shemwell’s protected activity and the adverse action of discharge was sufficient under the “not frivolously brought” standard to reveal that the discharge was motivated in part by the protected activity. Id. Accordingly, the Judge ordered “Armstrong Coal Company, Inc., and/or Armstrong Fabricators, Inc.” to immediately reinstate Shemwell, no later than April 25, 2012, to the position he held prior to his termination or to a similar position at the same rate of pay and benefits, with the same or equivalent duties assigned to him. Id. at 9.

            Armstrong Coal and Armstrong Fabricators filed a petition for review of the Judge’s temporary reinstatement order and a motion to stay the Judge’s reinstatement order. The Secretary opposed the petition and motion to stay.

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 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., Inc., 21 FMSHRC 717, 719 (July 1999).

            We conclude that the Judge erred in granting the motion for summary decision. Commission Procedural Rule 45 provides in part that if a hearing on the application for temporary reinstatement is requested, “the hearing shall be held” within 10 calendar days of the request. 29 C.F.R. § 2700.45(c) (emphasis added). Here, although Armstrong Coal timely requested a hearing on March 8, the Judge did not provide it. Rather, he decided the matter on a motion for summary decision.

            Rule 45 sets forth procedural protections that meet the “fundamental requirement of due process” because they give the operator the “opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 748 (11th Cir. 1990) (citations omitted). Among other things, the operator will have the opportunity to cross-examine any witnesses supporting the Application for Temporary Reinstatement. As part of those protections, a party is entitled to a hearing on an application for temporary reinstatement within 10 days of requesting one. 29 C.F.R. § 2700.45(c).

            Even if the Commission’s Procedural Rules permitted the filing and disposition of a motion for summary decision in a temporary reinstatement proceeding, such a motion would necessarily fail in the circumstances presented in this case. Rule 67 provides that a motion for summary decision may be granted in part if there is “no genuine issue as to any material fact.” 29 C.F.R. § 2700.67(b)(1). As acknowledged by the Secretary, there is “uncertainty surrounding Armstrong Fabricators’ operating status.” S. Opp’n at 8 n.2. During the March 28, 2012 conference call between the parties’ counsel and the Judge, counsel for Armstrong Coal and Armstrong Fabricators stated, “Mr. Shemwell’s position was no longer available at Armstrong Fabricators because the shop where he worked has been idled and the staff laid off.” Tr. 3. The Commission has recognized that the occurrence of certain events, such as a layoff for economic reasons, may toll an operator’s reinstatement obligation. KenAmerican Res., Inc., 31 FMSHRC 1050, 1054 (Oct. 2009).

            Accordingly, we vacate that part of the Judge’s decision, granting the motion for summary decision, and remand for a hearing in accordance with the provisions of Rule 45. In addition to other evidence relevant to a temporary reinstatement proceeding, the Judge is instructed to take evidence relevant to whether there was a layoff that would toll an operator’s temporary reinstatement obligation. Because the Judge originally determined that Shemwell should be temporarily reinstated no later than April 25, 2012, if the Judge determines after a hearing that Shemwell should be temporarily reinstated, such reinstatement should be retroactive to April 25, 2012.

            We need not reach other issues identified by Armstrong Coal and Armstrong Fabricators in the petition filed before us. The issue regarding the timeliness of the filing of Shemwell’s complaint with MSHA may be addressed and decided in the proceeding on the merits. See, e.g., Sec’y of Labor on behalf of Young v. Lone Mountain Processing, Inc., 20 FMSHRC 927, 932 n.6 (Sept. 1998). Similarly, the issue of which operator is appropriately named as a party to the proceeding may be addressed and decided in the proceeding on the merits. Finally, given that we have vacated the Judge’s order granting summary decision, we deny the operators’ motion to stay as moot.

III.

Conclusion

            For the foregoing reasons, we grant the operators’ petition, vacate the Judge’s decision granting summary decision, deny the operators’ motion to stay as moot, and remand for further proceedings consistent with this decision. 

/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, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Adam K. Spease, Esq.,

Miller & Wells, PLLC

710 W. Main St., 4^TH Fl.

Louisville, KY 40202

Alex L. Scutchfield, Esq.,

Miller & Wells, PLLC

300 E. Main Street, Suite 360

Lexington, KY 40507

Daniel Z. Zaluski, Esq.

Armstrong Coal Company, Inc.

407 Brown Road

Madisonville, KY 42431

Tony Oppegard, Esq.,

Attorney for Reuben Shemwell

P.O. Box 22446

Lexington, KY 40522

tonyoppegard@yahoo.com

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 Jerold Feldman

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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

Washington, D.C. 20001-2021