FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

August 21, 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 August 6, 2012, the Commission received from Argus Energy WV, LLC (“Argus Energy”) a petition for review of Administrative Law Judge William Steele’s August 1, 2012 Decision and Order Reinstating Clinton Ray Ward. On August 13, 2012, the Commission received the Secretary of Labor’s opposition to the petition. For the reasons that follow, we grant the petition for review and affirm the Judge’s order requiring the temporary reinstatement of Mr. Ward.

            Mr. Ward worked as a third shift chief electrician at Argus Energy’s Deep Mine No. 8 from October 2011 until his termination on June 1, 2012. 34 FMSHRC , slip op. at 5, No. WEVA 2012-1448-D (Aug. 1, 2012) (ALJ) (“slip op.”). Ward alleged that he became aware that water was impounded behind the seal outby the No. 3 section and water was present in the return entry adjacent to the affected seals and in active workings of the mine. Id. at 5-6. Ward maintained that, beginning in January 2012, he complained about the water accumulations to the third shift mine foreman, Elza Maynard, who, in turn, communicated the safety complaint to Mine Superintendent Grover Meade. Id. at 6; Tr. 28-29.  

            On April 24, 2012, the Department of Labor’s Mine Safety and Health Admininstration (“MSHA”) conducted an inspection at the mine, which resulted in the issuance of approximately 96 citations. Slip op. at 6. MSHA Inspector Dave Thomson issued Citation No. 8143298, alleging a violation of 30 C.F.R. § 75.364(f)(2) because there was an excessive amount of water in the return entry which prevented it from being traveled as part of a weekly examination. Id. The mine was shut down for 25 days while the water was pumped out of the cited area, and Citation No. 8143298 was terminated on May 19, 2012. Id. at 4, 6. After the mine resumed production, Ward and Foreman Maynard were called to Mine Superintendent Meade’s office, where they both received demotions. Id. at 14. Subsequently, in a meeting with the third shift, Meade allegedly stared at Ward when Meade responded to a question about who called MSHA, and stated that he knew who had called. Id. On June 1, 2012, Argus Energy terminated Ward. Id. at 4.

            On June 5, 2012, Ward filed a discrimination complaint with MSHA against Argus Energy alleging that his termination was motivated by his protected activity. Id. at 1. MSHA conducted a preliminary investigation of Ward’s discrimination complaint and found that it was not frivolously brought. Id. at 7. The Secretary filed an Application for Temporary Reinstatement, requesting an order requiring Argus Energy to temporarily reinstate Ward to his former position as the third shift chief electrician. Id. at 1-2. On July 16, 2012, the operator filed a request for hearing, and a hearing was held on July 27, 2012. Id. at 2.

            On August 1, 2012, the Judge issued a decision, concluding that Ward’s discrimination complaint was not frivolously brought and directing Argus Energy to reinstate Ward to his former position as the third shift chief electrician at the same rate of pay and with the same benefits that he received prior to his discharge. Id. at 16. The Judge concluded that Ward had engaged in protected activity based on evidence that Ward had raised the issue of water accumulations near the seals several times with Third Shift Foreman Maynard. Id. at 13-14. The Judge further concluded that there was a nexus between that protected activity and the alleged discrimination. Id. at 15. In reaching this conclusion, the Judge found Ward’s testimony that Meade had stared at him when he responded that he knew who had called MSHA to be sufficient evidence of hostility toward the protected activity. Id. at 14. Reasoning that credibility determinations were not appropriate at this stage of the proceedings, the Judge also found that Argus Energy had knowledge of Ward’s protected activity despite the operator’s witnesses’ testimony that they had no knowledge of Ward’s complaints. Id. at 15. Finally, the Judge concluded that there was a coincidence in time between the protected activity and the adverse action because Ward expressed concerns until April 2012, the mine was shut down between April 24 and May 19, and Ward was terminated on June 1. Id. Accordingly, the Judge held that Ward’s application for temporary reinstatement was not frivolously brought. Id. at 16.

            Argus Energy filed a petition for review of the Judge’s temporary reinstatement order. Pet. at 1-16. It argues that Ward was terminated due to repeated performance problems, and that substantial evidence does not support the Judge’s determination that Ward’s complaint was non-frivolous. Id. at 2. The operator contends that the Judge’s finding that Ward had complained about water behind the seals to the third shift foreman from January through April 2012 is not supported by substantial evidence. Id. at 12-13. Argus Energy points to evidence that water had not existed in the seals area during January to March 2012. Id. It also asserts that the Judge’s finding that there was a non-frivolous issue as to a nexus between the alleged protected activity and discharge was not supported by substantial evidence. Id. at 13-14. The operator explains that nobody involved in the decision to terminate Ward was aware that Ward had engaged in protected activity at the time it took the adverse action. Id. at 14. The operator argues that Judges must be permitted to make some credibility determinations after a temporary reinstatement hearing in order to afford parties due process. Id. at 15-17. The Secretary opposed the petition. S. Opp. at 1-21.

            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 Mine Act’s legislative history defines the “not frivolously brought” standard as indicating that a miner’s “complaint appears to have merit.” S. Rep. 95-181, at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 624 (1978). The “not frivolously brought” standard reflects a Congressional intent that “employers should bear a proportionately greater burden of the risk of an erroneous decision in a temporary reinstatement proceeding.” Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 748 (11th Cir. 1990) (“JWR”).

            Courts and the Commission have likened the “not frivolously brought” standard set forth in section 105(c)(2) with the “reasonable cause to believe” standard applied in other statutes. Id. at 747 (“there is virtually no rational basis for distinguishing between the stringency of this standard and the ‘reasonable cause to believe’ standard”); Sec’y of Labor on behalf of Markovich v. Minnesota Ore Operations, USX Corp., 18 FMSHRC 1349, 1350, 1352 (Aug. 1996). In the context of a petition for interim injunctive relief under the National Labor Relations Act (“NLRA”), 29 U.S.C. § 160(j), courts have recognized that establishing “reasonable cause to believe” that a violation of the statute has occurred is a “relatively insubstantial” burden. See Schaub v. West Michigan Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th Cir. 2001) (citations omitted). In Schaub, the Court explained that the proponent “need not prove a violation of the NLRA nor even convince the district court of the validity of the Board’s theory of liability; instead he need only show that the Board’s legal ‘theory is substantial and not frivolous.’” Id. (citations omitted). It cautioned that:

An important point to remember in reviewing a district court’s determination of reasonable cause is that the district judge need not resolve conflicting evidence between the parties. See Fleischut [v. Nixon Detroit Diesel, Inc., 859 F.2d 26, 29 (6th Cir. 1988)] (stating that the appellant’s appeal did not seriously challenge whether reasonable cause exists; instead it simply showed that a conflict in the evidence exists); Gottfried [v. Frankel, 818 F.2d 485, 494 (6th Cir. 1987)] (same). Rather, so long as facts exist which could support the Board’s theory of liability, the district court’s findings cannot be clearly erroneous. Fleischut, 859 F.2d at 29; Gottfried, 818 F.2d at 494.

Schaub, 250 F.3d at 969 (emphasis added).

            Similarly, at a temporary reinstatement hearing, the Judge must determine “whether the evidence mustered by the miner[] to date established that [his or her] complaint[] [is] nonfrivolous, not whether there is sufficient evidence of discrimination to justify permanent reinstatement.” JWR, 920 F.2d 744. As the Commission has recognized, “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 Bussanich v. Centralia Mining Co., 22 FMSHRC 153, 164 (Feb. 2000) (Marks and Beatty, dissenting). The Commission applies the substantial evidence standard in reviewing the Judge’s determination. Id. at 157.

            We conclude that substantial evidence supports the Judge’s determination that Ward’s application for temporary reinstatement was not frivolously brought. More specifically, although there is conflicting evidence in the record, there are facts which support the Secretary’s theory that Ward engaged in protected activity by complaining about the water accumulations and that a nexus exists between the protected activity and the alleged discrimination. As the Judge found, there is evidence that Ward expressed concerns about water accumulations to Third Shift Foreman Maynard prior to the MSHA inspection. Tr. 28-29, 31. In addition, although the operator presented evidence that none of the decision-makers had knowledge of Ward’s safety complaints prior to the termination, Ward testified that he informed Maynard about the water accumulations, who in turn informed Mine Superintendent Meade. Tr. 28-29, 37. Ward testified that he also informed Jake Bowen, his direct supervisor, that there were water accumulations in front of the seals that needed to be addressed. Tr. 57-58. The operator acknowledges that Bowen was one of the decision-makers who made the decision to terminate Ward. Pet. at 2; Tr. 145-46.

            Thus, facts in the record exist which support the Secretary’s theory of liability. The Judge implicitly credited Ward’s testimony. Requiring the Judge to resolve conflicts in testimony between Ward and the operator’s witnesses, when the parties have not yet completed discovery, would improperly transform the temporary reinstatement hearing into a hearing on the merits. See Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999); Sec’y of Labor on behalf of Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1088 (Oct. 2009).

            Accordingly, we affirm the Judge’s August 1 decision temporarily reinstating Ward. We intimate no view as to the ultimate merits of this case.

/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

Mark E. Heath, Esq.

Dennis R. Smith, Esq.

Spilman, Thomas & Battle, PLLC

300 Kanawha Blvd. East

P.O. Box 273

Charleston, WV 25321

Jerald S. Feingold, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2200

Arlington, VA 22209-2247

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2200

Arlington, VA 22209-2247

Administrative Law Judge William S. Steele

Office of Administrative Law Judges

Federal Mine Safety & Health Review Commission

7 Parkway Center

875 Greentree Rd., Suite 290

Pittsburgh, PA 15220