FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

July 12, 2012

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

DECISION

BY THE COMMISSION:

            This temporary reinstatement proceeding arises under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (2006) (“Mine Act”). On June 28, 2012, the Commission received from Armstrong Coal Company, Inc. (“Armstrong Coal”) and Armstrong Fabricators, Inc. (“Armstrong Fabricators”) a joint petition for review of Administrative Law Judge Jerold Feldman’s June 21, 2012 Decision on Remand and Order of Temporary Reinstatement. On July 6, 2012, the Commission received the Secretary of Labor’s opposition to the joint petition. For the reasons that follow, we grant the petition for discretionary review and affirm the Judge’s order requiring the temporary reinstatement of Reuben Shemwell.

            Mr. Shemwell worked as a welder from April 19, 2010, until his termination on September 14, 2011. 34 FMSHRC , slip op. at 2, No. KENT 2012-655-D (June 21, 2012) (ALJ) (“Dec. on Remand”). Mr. Shemwell worked at surface mines operated by Armstrong Coal and at a repair shop operated by Armstrong Fabricators. Id. 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. Id. at 8. However, the operators assert that Shemwell was discharged for unauthorized personal cell phone use during working hours. Id.

            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. MSHA conducted a preliminary investigation of Shemwell’s discrimination complaint and found that it was not frivolously brought. 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. On March 8, 2012, Armstrong Coal filed a Request for Hearing on the Secretary’s Application for Temporary Reinstatement.

            On April 20, 2012, the Judge issued a summary decision in the Secretary’s favor, concluding that Mr. Shemwell’s discrimination complaint was not frivolously brought and directing Armstrong Coal and/or Armstrong Fabricators to immediately reinstate Mr. Shemwell no later than April 25, 2012. 34 FMSHRC , slip op. at 7-9, No. KENT 2012-655-D (Apr. 20, 2012) (ALJ). The Judge noted that there were issues concerning whether Armstrong Coal or Armstrong Fabricators was the proper party to be named in the proceeding and whether Mr. Shemwell had filed his complaint in a timely manner but reasoned that it was not his duty to resolve those issues in a temporary reinstatement proceeding. Id. at 3-7.

            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.

            On May 10, 2012, we issued an order granting the operators’ petition, vacating the Judge’s decision granting summary decision, denying the operators’ motion to stay, and remanding the matter to the Judge. We held that the Judge erred in granting the motion for summary decision and remanded the matter to the Judge for a hearing. 34 FMSHRC , slip op. at 4-5, No. KENT 2012-655-D (May 10, 2012). We reasoned that 29 C.F.R. § 2700.45(c) requires a hearing on an application for temporary reinstatement, if it is requested, and that the Judge failed to hold a hearing although Armstrong Coal had requested one. Id. at 4. We determined that the issues regarding the timeliness of the filing of Shemwell’s complaint and which operator is appropriately named as a party to the proceeding may be addressed and decided in the proceeding on the merits. Id. at 5-6. However, we noted some evidence in the record that the shop where Mr. Shemwell worked had been idled and the staff laid off. Id. at 5. We instructed the Judge on remand to take evidence regarding whether there was a layoff that would toll an operator’s temporary reinstatement obligation, in addition to other evidence relevant to a temporary reinstatement proceeding. Id.

            The Judge conducted a hearing on May 23, 2012. Consistent with our remand instructions, the Judge took evidence relevant to a temporary reinstatement proceeding and evidence regarding the layoff at Armstrong Fabricators’ shop. The Judge concluded that the Secretary demonstrated that Shemwell’s discrimination complaint was not frivolously brought. Dec. on Remand at 12. The Judge further found that regardless of the layoff, there is a suitable position to which Shemwell can be reinstated. Id. at 10. Accordingly, the Judge ordered Armstrong Coal and/or Armstrong Fabricators to immediately reinstate Shemwell, no later than June 27, 2012, to the welder position he held prior to his termination, or to a similar position as a laborer at the same rate of pay and benefits, and with the same or equivalent duties assigned to him. Id. at 12. The Judge also, in part, ordered Armstrong Coal and/or Armstrong Fabricators to provide back pay to Shemwell effective April 25, 2012. Id. at 13.

            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 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). The Commission applies the substantial evidence standard in reviewing the Judge’s determination. Sec’y of Labor on behalf of Bussanich v. Centralia Mining Co., 22 FMSHRC 153, 157 (Feb. 2000).

            The issues before us are: (1) whether substantial evidence supports the Judge’s determination that Shemwell’s discrimination complaint was not frivolously brought; and (2) whether the Judge erred in determining that the operators’ obligation to temporarily reinstate Shemwell under section 105(c)(2) of the Mine Act is not affected by the layoff. After review of the pleadings and record evidence, we conclude that the Judge’s determination that the complaint is not frivolous is supported by substantial evidence and is consistent with applicable law. We further conclude that the Judge’s finding that the layoff has no legal effect on the obligation to temporarily reinstate Shemwell is consistent with applicable law and supported by substantial evidence. We intimate no view as to the ultimate merits of this case.

            Accordingly, we affirm the Judge’s June 21 decision temporarily reinstating Shemwell.

/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 West Main Street, 4^th Floor

Louisville, KY 40202

Alex L. Scutchfield, Esq.

Miller & Wells, PLLC

300 E. Main Street, Suite 360

Lexington, KY 40507

Dan Zaluski, Esq.

Armstrong Coal Company, Inc.

407 Brown Road

Madisonville, KY 42431

Tony Oppegard, Esq.

P.O. Box 22446

Lexington, KY 40522

tonyoppegard@yahoo.com

Edward Waldman, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

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