FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

 July 3, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

DECISION

BY:     Young and Nakamura, Commissioners

            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 June 6, 2013, Administrative Law Judge Kenneth R. Andrews issued an order temporarily reinstating Darrick Piper to employment with KenAmerican Resources, Inc., (“KenAmerican”) pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2). 35 FMSHRC __, slip op. at 15. The judge concluded that Piper’s March 27, 2013 discrimination complaint, in which he alleged that KenAmerican refused to recall him from a layoff because he had previously filed a separate discrimination complaint, was not frivolously brought. KenAmerican has filed a petition for review of the judge’s order with the Commission. For the reasons that follow, we grant review and affirm the judge’s order requiring temporary reinstatement of Piper.

I.

Factual and Procedural Background

            On December 31, 2012, ten miners at KenAmerican’s Paradise Number 9 Mine were laid off due to deteriorating economic conditions. Slip op. at 6; Tr. 36, 52. The miners were all purportedly selected for layoff because of their excessive absenteeism. Slip op. at 6; Tr. 36, 53. Piper was one of these ten miners. Slip op. at 6. At the time of his discharge, he was a shuttle car operator at the mine. Gov’t Ex. 6; Tr. 50.

            On February 1, 2013, Piper filed a discrimination complaint with the Department of Labor’s Mine Safety and Health Administration (“MSHA”) alleging, in part, that he was discharged in retaliation for engaging in protected activity in violation of section 105(c)(2) of the Mine Act. Slip op. at 1. Piper alleged that prior to the layoff, in October 2012, he had reported to his mine foreman that he believed that his face boss “was using drugs.” Id. at 6; Gov’t Ex. 1; Gov’t Ex. 2, Decl. Kirby Smith.

            On March 19, 2013, the Secretary of Labor (“Secretary”) filed an application for temporary reinstatement requesting an order requiring KenAmerican to reinstate Piper to his former position. Gov’t Ex. 2. On April 5, 2013, however, the Secretary submitted an unopposed motion to dismiss the application after determining “that the facts disclosed during [his] investigation of the case on the merits do not support a violation of [s]ection 105(c).” Slip op. at 1-2; Gov’t Ex. 3. Accordingly, the judge dismissed the proceeding. Slip op. at 2; Docket No. KENT 2013-571-D, Unpublished Order dated Apr. 8, 2013.

            On March 27, 2013, while the March 19 application for temporary reinstatement was still pending, Piper filed a second discrimination complaint with MSHA. Gov’t Ex. 5. In this complaint Piper alleged, in effect, that he had not been included within KenAmerican’s recent recall of laid-off employees because he had filed the February 1 discrimination complaint. Id.

            On May 14, 2013, the Secretary filed a second application for temporary reinstatement. S. Appl. at 1. In this application, the Secretary alleges that Ron Winebarger, the mine’s manager of human resources, refused to speak with Piper about the layoff recall, but contacted and recalled other employees who had been laid off on December 31. S. Appl. at 3; Decl. Curtis R. Hardison.

            KenAmerican requested a hearing on the May 14 application, which is the subject of this proceeding. At the hearing, Piper testified about the sequence of events that occurred while he was on layoff. Slip op. at 6-7. On January 1, 2013, Piper encountered Winebarger while shopping at a local store. Id. at 6. Piper inquired of Winebarger about the possibility of returning to work. Id. at 7. Piper testified that Winebarger told him to check back in a couple of weeks. Id.; Tr. 34.

            In February, Piper visited the mine and spoke with its general manager, Randy Wiles. Slip op. at 7. Piper asked Wiles about returning to work. Piper testified that Wiles responded:

“I just don’t know. But the way people are quitting around here right now, there’s a good chance that you will get your job back.” Id.; Tr. 35. On this day, Piper also spoke with Winebarger. Slip op. at 7. Winebarger testified that he told Piper that once the mine lifted its hiring freeze he was welcome to apply and that he would receive due consideration. Id. at 7; Tr. 54.

            KenAmerican lifted its hiring freeze at the end of February. Slip op. at 7. Winebarger testified that Wiles instructed him to begin hiring by “[looking] at the guys who were laid off first . . . [G]ive them the opportunity to reapply and [] give them due consideration.” Id.; Tr. 58. Winebarger met with the mine’s general manager and together they considered each of the ten miners who had been laid off on December 31. Slip op. at 7. They invited six of the laid-off employees in to speak with them. Id. Four of these men were offered the chance to return to work, and three accepted. Id. Piper, however, was not contacted by KenAmerican. Id. Winebarger testified that Piper had a history of attendance problems that had recently become worse. Slip op. at. 8; Tr. 65.

            On March 27, 2013, after Piper learned that KenAmerican had recalled other employees, he contacted Winebarger to inquire about returning to work. Slip op. at 8. Winebarger testified that he told Piper “I can’t talk to you right now. You have a discrimination complaint against us, and I can’t talk to you about this right now.” Tr. 55. Winebarger testified that he had been previously advised not to speak to a party that is a litigant against KenAmerican without the presence of counsel. Slip op. at 8; Tr. 55. Piper testified that he came to believe that the company had “blackballed” him. Slip op. at 9; Tr. 41-42. As a result, he filed the second discrimination complaint with MSHA. Slip op. at 9; Gov’t Ex. 5.

            On June 6, 2013, the judge issued a decision in which he concluded that the March 27 discrimination complaint was not frivolously brought. Slip op. at 15. In addition, the judge stated that at all times relevant to his decision, Piper was a “miner” for purposes of section 105(c)(2) of the Mine Act and therefore was eligible for temporary reinstatement. Id. Accordingly, the judge ordered KenAmerican to provided immediate temporary reinstatement for Piper to his former position. Id.

            On review, KenAmerican asserts that the judge erred in concluding that Piper was a “miner” at the time he filed the March 27 discrimination complaint. Pet. at 4. The operator contends that Piper instead should have been considered an “applicant” for purposes of section 105(c)(2) and consistent with Commission case law and the Mine Act not eligible for temporary reinstatement pursuant to section 105(c)(2). Id. at 4-6.

II.

Disposition

            The dispositive issue in this appeal is whether the judge erred in concluding that Piper was a “miner” for purposes of temporary reinstatement in connection with his discrimination complaint filed on March 27, 2013. As explained below, we affirm the judge’s decision and conclude that treating Piper as being eligible for temporary reinstatement under the circumstances of this case is fully consistent with the language of the Act and Congressional intent.

            Section 105(c)(2) provides in relevant part:

Any miner or applicant for employment or representative of miners who believes that he has been discharged, interfered with, or otherwise discriminated against by any person in violation of this subsection may, within 60 days after such violation occurs, file a complaint with the Secretary alleging such discrimination. . . . [I]f 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. . . . [Emphases added.]

Thus, the language of section 105(c)(2) provides that “any miner or applicant for employment or representative of miners” may file a discrimination complaint with the Secretary, but appears to limit temporary reinstatement to “miners.” The term “miner” is defined in section 3(g) of the Act, 30 U.S.C. § 802(g), as “any individual working in a coal or other mine.”

            Indeed, the Commission has made it clear that “applicants for employment” are not eligible for temporary reinstatement under section 105(c)(2). Sec’y of Labor on behalf of Young v. Lone Mountain Processing, Inc., 20 FMSHRC 927 (Sept. 1998). In that case, the Secretary argued that the term “miner” as used in the temporary reinstatement provision of section 105(c)(2) was actually a “shorthand reference” that was meant to include “applicants for employment” and “miners’ representatives.” The Commission rejected that argument and held that under the language of section 105(c)(2) only “miners” may be granted temporary reinstatement. Id. at 930.

            However, under the circumstances of this case, Piper was not a mere “applicant” for a position with KenAmerican. He had actively worked in KenAmerican’s mine and was entitled to the protection of the temporary reinstatement provisions in section 105(c)(2). We need not explore in this case the full contours of the distinction between a “miner” and an “applicant for employment” under section 105(c)(2); rather, we conclude that under the facts of this case Piper must be regarded as a “miner” for temporary reinstatement purposes.

            It is significant that the genesis of Piper’s March complaint was the December 2012 layoff. Before that layoff, Piper was clearly a “miner,” and his February complaint alleged that his layoff was impermissibly based on his prior safety complaints. Furthermore, Piper’s March complaint alleged that KenAmerican’s human resources director, Ron Winebarger, would not speak to him about an employment recall because Piper had filed the February complaint with MSHA – a protected activity. In short, Piper’s March complaint clearly related back to, and was connected with, the events that took place when he was actively working in the mine. It would elevate form over substance to treat Piper as a mere job applicant who had no prior work history with the operator and had not already filed a discrimination complaint. 

            Treating Piper as a “miner” in this case is fully consistent with Congressional intent in drafting section 105(c)(2). Congress intended that temporary reinstatement provide “an essential protection for complaining miners who may not be in the financial position to suffer even a short period of unemployment or reduced income pending the resolution of the discrimination complaint.” S. Rep. No. 181, 95th Cong., 1st Sess. 37, reprinted in Subcommittee of Labor of the Senate Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977 at 625. A miner who has allegedly been laid off for an impermissible reason must trust that he or she will not suffer adverse consequences later – including not being recalled – simply because he or she filed a discrimination complaint with MSHA. Indeed, in this very case, Piper believed that he had been blackballed due to his protected activity, and denying reinstatement to former employees under these circumstances may exert a chilling effect on miners’ exercise of their rights under the Act.

            The decisions that KenAmerican seeks to rely upon are readily distinguishable. As discussed above, in Lone Mountain, the Commission held that a job applicant, as opposed to a miner, is not entitled to temporary reinstatement. 20 FMSHRC at 930. However, unlike the situation in Lone Mountain, Piper is not a mere job applicant who had no prior relationship with the operator. As discussed above, he worked at KenAmerican’s mine until the allegedly discriminatory layoff occurred and is seeking temporary reinstatement to the position that he once held.

            Nor is Secretary of Labor on behalf of Williams v. Peabody Coal Co., 822 F.2d 1134 (D.C. Cir. 1987), relevant here. The court’s decision did not even involve the issue of who could be eligible for temporary reinstatement under section 105(c)(2). Rather, the question in that case was whether individuals who had been laid off from a mine should be treated as “miners” for

purposes of the statutory right to receive paid training that section 115 of the Act, 30 U.S.C.

§ 825, grants to “miners.”

III.

Conclusion

            For the foregoing reasons, we conclude that Mr. Piper was a “miner” at all relevant times in this case for purposes of the temporary reinstatement provisions of section 105(c)(2) of the Mine Act. Accordingly, we affirm the order of the judge granting him temporary reinstatement. At this stage of the proceedings, we intimate no view on the ultimate merits of the case.

                                                                                    /s/ Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Patrick K. Nakamura

                                                                                    Patrick K. Nakamura, Commissioner 

Chairman Jordan, concurring:

            I agree with my colleagues’ affirmance of the judge’s decision in which he determined that Darrick Piper was a “miner” for purposes of temporary reinstatement. However, I write separately because I reach this conclusion based on a different analysis than the one adopted by the majority. 

            The Mine Act provides that if the Secretary finds that a discrimination complaint was not frivolously brought, then the Commission, 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). Section 3 of the Mine Act defines miner as “any individual working in a coal or other mine.” 30 U.S.C. § 802(g). This definition cannot be applied literally in determining whether an individual is eligible for temporary reinstatement, as persons seeking that relief are usually not working in a mine. Indeed, that is why they are seeking temporary reinstatement. The meaning of the term “miner” as used in section 105(c)(2) is, therefore, ambiguous.

            If a statute is clear and unambiguous, then effect must be given to its language. See Chevron, U.S.A, Inc., v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); accord., Local Union No. 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990). If, however, the statute is ambiguous or silent on a point in question, a second inquiry, commonly referred to as a “Chevron II” analysis, is required to determine whether an agency’s interpretation of a statute is a reasonable one. See Chevron, 467 U.S. at 843-44; Thunder Basin Coal Co., 18 FMSHRC 582, 584 n.2 (Apr. 1996); Keystone Coal Mining Corp., 16 FMSHRC 6, 13 (Jan. 1994). Deference is accorded to “an agency’s interpretation of the statute [that] it is changed with administering when that interpretation is reasonable.” Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D. C. Cir. 1994) (citing Chevron, 467 U.S. at 844). The agency’s interpretation of the statute is entitled to affirmance, as long, as that interpretation is one of the permissible interpretations that the agency could have selected. See Cumberland Coal Res., LP v. FMSHRC, __ F.3d __ No. 11-1464, 2013 WL 2450523, at 5 (D.C. Cir. June 7, 2013); Joy Technologies, Inc. v. Sec’y of Labor, 99 F.3d 991, 995 (10th Cir. 1996), cert. denied, 520 U.S. 1209 (1997) (citing Chevron, 467 U.S. at 843); Thunder Basin Coal Co. v. FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995).

            The Secretary has interpreted the term “miner” in section 105(c)(2)’s temporary reinstatement provision to include a laid-off employee who makes a non-frivolous claim that a filing of a prior section 105(c) discrimination claim played a part in the employer’s decision not to recall him or her. The Secretary therefore considers Piper (the complainant in this case), a miner for purposes of section 105(c)(2) despite the fact that Piper’s protected activity, (the February 1st discrimination complaint alleging a discriminatory layoff) took place after he was laid off (and therefore no longer working in a mine), and despite the fact that the alleged discriminatory action of failing to recall Piper was not directed to a “miner” as that term is literally defined by section 3(g).

            The Secretary’s interpretation of “miner” is reasonable because it furthers the purpose of the statute. The fact that a laid-off individual files a complaint with the Secretary or engages in other protected activity should not influence the decision whether or not to recall that individual back to work. Granted, a laid-off employee who believes his or her protected activity has played a role in the recall process can pursue a claim under section 105(c), but if that individual has no opportunity to obtain temporary reinstatement in the interim, his or her willingness to engage in protected activity could be curtailed. Indeed, as my colleagues have noted, slip op. at 5, it would likely deter a laid-off employee from filing a complaint, even if, as was the case with Piper, the individual believed the lay off itself was conducted in a discriminatory fashion.

            The Secretary’s interpretation is also consonant with the Supreme Court’s interpretation of the term “employee” in the context of general discrimination law under Title VII. In Robinson v. Shell Oil Co., the Supreme Court held that the term “employee” in Title VII includes a former employee section 704(a). 519 U.S. 337, 345-46 (1997) (citing 42 U.S.C. § 2000e-2(a)). The case raised the issue of whether an individual could bring suit against his former employer for post-employment actions allegedly taken in retaliation for his filing a charge with the Equal Employment Opportunity Commission (“EEOC”). Id. at 339. The Court reasoned that the term “employees” could have a plain meaning in the context of one section of Title VII, but this did not mean it has the same meaning in all other sections and other contexts. Id. at 343. It decided that the term standing alone is necessarily ambiguous and that each section must be analyzed to see whether the context provides the term a further meaning. Id. at 343-44. The Court agreed with the EEOC that the “exclusion of former employees from the protection of [section] 704(a) would undermine the effectiveness of Title VII by allowing the threat of post-employment retaliation to deter victims of discrimination from complaining to the EEOC.” Id. at 346.

            I agree with my colleagues that the cases relied on by KenAmerican are readily distinguishable. In Secretary of Labor on behalf of Williams v. Peabody Coal Co., 822 F.2d 1134 (D.C. Cir. 1987), the majority correctly indicates that the issue was whether individuals who had been laid off from a mine should be treated as “miners” for purposes of the statutory right to receive paid training that section 115 of the Mine Act grants to “miners.” In that case the D.C. Circuit stated:

Congress enacted section 115(a) [the training provision] in order to create a safe and healthy work environment, but individuals while on layoff simply are not exposed to that environment.  Requiring that such individuals receive safety training would therefore serve no statutory purpose, even if they have statutory or contractual rights that preclude their being considered “strangers,” for some other purpose, to the mining industry or to the particular operator that laid them off.

822 F.2d at 1148 (emphasis added). In the context of section 105(c)(2), however, there is a different statutory purpose at stake: the right of miners to make safety complaints without fearing retaliation. Here, the statutory purpose of section 105(c)(2) is served by the Secretary’s approach.

            In Secretary of Labor on behalf of Young v. Lone Mountain Processing, Inc., 20 FMSHRC 927 (Sept. 1998), also relied on by the operator, the individual seeking temporary reinstatement had no previous employment relationship with the operator. Id. at 927-28, 930. This is not Piper’s situation, as he had worked at KenAmerican for years and had been laid off for a few months before the alleged adverse action occurred.  

            Accordingly, I conclude that the Secretary’s interpretation that Piper is a “miner” eligible for temporary reinstatement under section 105(c)(2) of the Mine Act, is reasonable and I would affirm the judge.

                                                                                    /s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chairman

Distribution:

Melanie J. Kilpatrick, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

3151 Beaumont Centre Circle, Suite 375

Lexington, KY 40513

kilpatrick@wktlaw.com

Jerald S. Feingold, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

feingold.jerald@dol.gov

Administrative Law Judge Kenneth R. Andrews

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

875 Green Tree Road,

7 Parkway Center, Suite 290,

Pittsburgh, PA 15220