FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

September 20, 2012

BEFORE: Jordan, Chairman; Young 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 28, 2012, the Commission received from FTS International Proppants, LLC (“FTS”) a petition for review of Administrative Law Judge David Simonton’s August 23, 2012 order temporarily reinstating Norman Deck. On September 11, 2012, the Commission received the Secretary of Labor’s opposition to the petition. For the reasons that follow, we grant review and affirm the Judge’s order requiring the temporary reinstatement of Mr. Deck.

            Mr. Deck worked as a load-out technician at FTS’s Brewer Quarry Mine. 34 FMSHRC , slip op. at 2, No. CENT 2012-689-D (Aug. 23, 2012) (ALJ) (“slip op.”). On April 30, 2012, Deck filed an anonymous complaint with the Department of Labor’s Mine Safety and Health Administration (“MSHA”) alleging that an accident at the mine had not been reported. Id. On May 14, 2012, FTS terminated Deck from his employment. Id. On the same day, Deck filed a complaint with MSHA alleging that his termination was related to his safety report.

            MSHA Special Investigator Steve Medlin investigated Deck’s discrimination complaint and concluded that it was not frivolously brought. Id. The Secretary filed an Application for Temporary Reinstatement, requesting an order requiring FTS to temporarily reinstate Deck to his former position. Id. at 1-2. The operator filed a request for hearing, and a hearing was held on August 16, 2012. Id. at 1.

            On August 23, 2012, the Judge issued his decision, concluding that Deck’s discrimination complaint was not frivolously brought and directing FTS to temporarily reinstate Deck to his former position or to a similar position at the same rate of pay and benefits and with the same or equivalent duties assigned. Id. at 5. The Judge concluded that it was undisputed that Deck engaged in protected activity by making a safety complaint to MSHA on April 30. Id. at 4. He further concluded that it was undisputed that Deck was terminated 14 days later. Id. The Judge noted that the evidence was disputed regarding whether Deck’s April 30 complaint in some way motivated FTS to remove him from employment. Id. at 4. The Judge concluded, however, that there was sufficient evidence in the record to support the determination that the Secretary had established that Deck’s discrimination complaint was non-frivolous. Id. at 4-5.

            FTS filed a petition for review of the Judge’s temporary reinstatement order pursuant to Commission Procedural Rule 45(f), 29 C.F.R. § 2700.45(f). It argues that the Secretary failed to meet her burden of proving that Deck had engaged in protected activity when he called MSHA on April 30. Supporting memo at 7-11. The operator asserts that the Judge erred in relying upon Investigator Medlin’s testimony because it was inaccurate and unreliable, and that Deck’s April 30 call to MSHA was not based on a reasonable and good faith belief that a violation had occurred. Id. In addition, FTS contends that the Secretary failed to prove that Deck’s termination was motivated in part by his April 30 call to MSHA. Id. at 11-17. More specifically, the operator argues that the Judge erred in relying upon evidence that management officials told MSHA Investigator Medlin inconsistent reasons for Deck’s termination because such evidence is disputed. Id. at 12-14. It further contends that the Judge erred in concluding that there was a coincidence in timing between Deck’s April 30 complaint and May 14 termination because an intervening event had occurred (Deck’s mistreatment of drivers on May 1) that was the real reason for Deck’s termination. Id. at 14-16. Finally, FTS states that the Judge erred in relying upon Medlin’s testimony that miners had informed him that a management official had stated that Deck had been fired for calling MSHA. Id. at 16-17. It explains that Medlin’s testimony lacked sufficient specificity, such as which miners made those statements. Id. at 16-17. The Secretary opposed the petition.

            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”).

            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, “[i]t [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). 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).

            We conclude that substantial evidence supports the Judge’s determination that Deck’s application for temporary reinstatement was not frivolously brought. We reject the operator’s assertion that the Judge erred in concluding that Deck engaged in protected activity. As the Judge noted, evidence is undisputed that Deck filed a complaint with MSHA on April 30 when he anonymously notified MSHA that an accident had occurred at the mine and had not been reported. Slip op. at 4; Tr. 10, 73, 149-50. Section 105(c) of the Mine Act protects a miner who makes “a complaint under or relating to [the] Act.” 30 U.S.C. § 815(c). Section 103(d) of the Mine Act, 30 U.S.C. § 813(d), and the implementing regulations in 30 C.F.R. Part 50, require an operator to keep records and report accidents that occur at a mine. In making the anonymous call to MSHA, Deck engaged in an activity protected by section 105(c). See generally Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1364-65 & n.6 (Dec. 2000) (stating that complaints are protected as long as they reasonably relate to the safety and health of miners under the Act).

            Moreover, as the Judge found, there are facts in the record which support the Secretary’s theory of liability that Deck’s termination was motivated in part by his April 30 call to MSHA. The Judge noted that “Deck was terminated by [FTS] a mere 14 days [after Deck’s April 30 call to MSHA], thus meeting the circumstantial indicia of discriminatory intent based on the coincidence in time between the protected activity and the adverse action.” Slip op. at 4. As to the dispute regarding whether Production Supervisor Brian Francis was aware that Deck had made the April 30 complaint prior to deciding to terminate the miner, the Judge primarily relied on the testimony of Deck “that Francis told him when he was removed, ‘I guess you shouldn’t have called MSHA now, should you?’ Tr. 172.” Slip op. at 5. The Judge cited the testimony of Medlin only to support the conclusion he reached based on the timing of the termination and Deck’s testimony about what Francis had said. Furthermore, even though the operator disputes the evidence, Medlin testified that one management official informed him that FTS fired Deck for poor work performance, while another management official testified that Deck was fired for his mistreatment of drivers. Tr. 51-53, 126.

            As to the operator’s second argument, even if there were an intervening event that could have constituted a non-discriminatory reason for termination, the two-week period between Deck’s complaint to MSHA and termination is sufficiently brief to support the finding that there was a coincidence in time between the protected activity and adverse action. See, e.g., Sec’y of Labor on behalf of Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1090 (Oct. 2009). Finally, the investigator’s testimony that miners informed him that a management official had stated that Deck had been fired for contacting MSHA is sufficiently specific for purposes of a temporary reinstatement proceeding without disclosing the identity of miners who made those statements. Tr. 126-27, 131-32, 134.

            Requiring the Judge to resolve alleged inaccuracies and conflicts in testimony when the parties have not yet completed discovery would improperly transform the temporary reinstatement hearing into a hearing on the merits. See Chicopee Coal, 21 FMSHRC at 719; CAM Mining, 31 FMSHRC at 1088-89.

            Accordingly, we affirm the Judge’s August 23 decision temporarily reinstating Deck. We intimate no view as to the ultimate merits of this case.

                                                                                    /s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chair

                                                                                    /s/Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Patrick K. Nakamura                                                                                

                                                                                     Patrick K. Nakamura, Commissioner

Distribution

Victor Kastner

Operations Manager

2003 Nine Road

Brady, TX 76825

Norman Deck

204 Virginia Street

St. Louis, MO 63101

Phillip J. Mackey, Esq.

Sarah E. Mullen, Esq.

Lewis Rice and Fingersh, LC

600 Washington Avenue, Suite 2500

St. Louis, MO 63101

Edward Waldman, Esq.

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 David P. Simonton

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

721 19^th Street, Suite 443

Denver, CO 80202-5268