FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 10, 2013

BEFORE: Jordan, Chairman; Young 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 17, 2013, following a hearing, Administrative Law Judge William S. Steele issued a decision and order temporarily reinstating Dustin Rodriguez to employment with C.R. Meyer and Sons Company (“C.R. Meyer”), pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2). 35 FMSHRC __, slip op. at 25. On April 23, 2013, C.R. Meyer petitioned for review of that decision and order. The operator argues that the judge erred when he refused to admit certain evidence supporting its contention that, regardless of the validity of Rodriguez’s discharge on January 25, the temporary reinstatement obligation should have been tolled as of February 22, 2013 (the date the operator alleges Mr. Rodriguez would have been laid off in any event). For the reasons that follow, we agree that the judge erroneously excluded the evidence. Consequently, we remand this case for further proceedings on the issue raised by the operator.

I.

Factual and Procedural Background

            Mr. Rodriguez, a resident of Las Vegas, NV, and a member of the San Bernardino and Riverside Counties (CA) Plumber and Pipefitters, Local 364, Union, was originally hired by C.R. Meyer, along with a dozen or so other “local” employees, in early December 2012. Tr. 12-13, 50. Rodriguez was brought on as a journeyman pipefitter at Molycorp Inc.’s Pass Mine and Mill in Mountain Pass, California, to work on the mine’s “Phoenix” construction project. Tr. 5, 13, 16, 80-81. C.R. Meyer also employed union miners from its Michigan location, and considered these individuals “regular” employees for purposes of work at the mine. Tr. 75-76, 96, 115-16.

            After C.R. Meyer’s work on the Phoenix project ended, several “local” employees were let go, but Rodriguez was kept on and assigned to additional C.R. Meyer maintenance and other projects at the mine. Rodriguez testified at reinstatement hearing that on January 24, 2013, while working on those projects, he requested safety information regarding exposure to the sodium carbonate with which he would be working, and also raised safety concerns about the scaffolding around a sodium carbonate tank.

            There was testimony at the hearing that, over the course of its month-long work on the Phoenix project, C.R. Meyer was pleased with Rodriguez’s work, particularly in the area of worker safety and interacting with the primary contractor on the project. Tr. 82-83. Rodriguez testified that C.R. Meyer viewed him as a candidate for long-term employment with it, including as a foreman. Tr. 43, 62. In addition, Rodriguez testified that, on the morning of January 24, Mark Cartwright, C.R. Meyer’s piping supervisor, instructed and trained him regarding a piping construction project at the mine that the company had just been awarded. Tr. 20-24. Rodriguez stated that he would supervise four men on the project, which would take approximately one month to complete. Tr. 20-22. However, Cartwright testified that he had begun hearing that week about instances, and observed one himself, where Rodriguez was seen standing around watching others doing tasks in which he should have been assisting. Tr. 87-89. Cartwright alleges that he therefore decided to terminate Rodriguez on Thursday morning of that week, January 24, before Rodriguez was assigned to work on the sodium carbonate tank project. Tr. 89-90. Rodriguez was discharged the next day, January 25.

            On February 25, 2013, Rodriguez filed a discrimination complaint with the Department of Labor’s Mine Safety and Health Administration (“MSHA”), alleging that C.R. Meyer’s discharge of him amounted to discrimination in violation of section 105(c) of the Mine Act. The Secretary filed an Application for Temporary Reinstatement on March 25, 2013, requesting an order requiring the operator to temporarily reinstate Mr. Rodriguez to his former position of journeyman pipefitter. On April 3, C.R. Meyer requested a hearing on the Secretary’s application.

            In response to the judge’s April 4 notice of hearing, the operator on April 8 submitted a list of witnesses and exhibits that stated that, for its projects at the mine, it would be offering evidence regarding “the circumstances surrounding the hiring and layoff of the ‘local’ employees who performed services for C.R. Meyer in December of 2012 through February of 2013.” The Secretary filed a Motion in Limine, seeking to exclude “any evidence presented by Respondent for the purpose of creating a testimonial conflict or for the purpose of supporting an affirmative or rebuttal defense.” Mot. at 4.

            At the April 10 hearing, the judge granted the Secretary’s motion in limine and ruled that C.R. Meyer could not introduce any evidence on the issue of whether the temporary reinstatement should be tolled. Slip op. at 4, 22. The judge permitted counsel for the operator to make a proffer for the record. Id.; Tr. 9-10, 114-18. According to C.R. Meyer’s proffer, because Molycorp had placed a limit on the number of employees C.R. Meyer could have work at the mine, subsequent to Rodriguez’s discharge it had to reduce its workforce there. The operator claimed that it chose to lay off all of its remaining “local” miners. Accordingly, C.R. Meyer maintained that Rodriguez would have been laid off with those local miners in any event, even if his employment had not already been terminated. Tr. 114-17. In making his proffer on the issue, counsel for the operator repeatedly stated the date of the layoff to be January 25, 2013, the same date Rodriguez was discharged. Tr. 116-17.

            On April 17, 2013, the judge issued a decision concluding that Rodriguez’s complaint had met the “not frivolously brought” standard for temporary reinstatement. Slip op. at 24. The judge relied on testimony that Rodriguez had engaged in protected activity and that the operator was both aware of Rodriguez’s protected activity and had demonstrated animus toward those actions. Id. at 19-21. The judge also considered that less than 24 hours passed between Rodriguez’s protected activities and his termination. Id. at 21-22. Accordingly, the judge held that the Secretary had introduced sufficient evidence of a nexus between Rodriguez’s protected activity and his termination to warrant temporary reinstatement. He further ordered that Rodriguez be paid at a journeyman pipefitter rate for the same number of hours worked, and with the same benefits he had been receiving at the time of his discharge. Id. at 25.

            The judge disagreed with the claim that the layoff of all local employees constituted a tolling argument. Based on C.R. Meyer’s counsel’s proffer that all of the “local” employees would have been laid off by January 25, the judge characterized the operator’s argument as an alternative explanation for Rodriguez’s discharge on January 25 and rejected it as an affirmative defense that was outside the scope of the temporary reinstatement proceeding. Id. at 22-23.

II.

Disposition

            C.R. Meyer does not challenge the judge’s finding that the Secretary established that Rodriguez’s discrimination complaint was not frivolously brought. We therefore limit our review to the issue of whether the judge erred in declining to admit the operator’s evidence and failing to consider its argument that any obligation it had to reinstate Rodriguez should have been tolled as of February 22, 2013.

            We have recognized that “the occurrence of certain events, such as a layoff for economic reasons, may toll an operator’s reinstatement obligation.” Sec’y on behalf of Shemwell v. Armstrong Coal Co., 34 FMSHRC 996, 1000 (May 2012) (citations omitted). Consistent with the narrow scope of temporary reinstatement proceedings, we have permitted a limited inquiry to determine whether the obligation to reinstate a miner may be tolled even when it has been established that the miner’s discrimination complaint is not frivolous. See Sec’y on behalf of Gatlin v. KenAmerican Res., Inc., 31 FMSHRC 1050, 1054 (Oct. 2009) (temporary reinstatement order does not require that a miner is owed reinstatement under every circumstance, regardless of changes that occur at the mine after issuance of the order). In Gatlin, we held that the duration of a miner’s temporary reinstatement may be modified if the operator can prove that the miner’s inclusion in a subsequent layoff was entirely unrelated to his protected activity. Id at 1055.

            We recently addressed this issue again, in Secretary on behalf of Ratliff v. Cobra Natural Resources, LLC, 35 FMSHRC ___ (Feb. 28, 2013). We reiterated that, when an operator attempts to demonstrate that a layoff properly included a reinstated miner (or would have included the miner if he or she had not been discharged previously, in the case of a complaining miner whose case is being heard), the Secretary may “assert that the miner’s inclusion in the layoff was, or might have been, related to protected activity engaged in by the miner.” Slip op. at 4. Given that “the layoff itself, as a termination of employment, must at that point be evaluated as a potentially wrongful adverse action,” we held that

if the objectivity of the layoff as applied to the miner is called into question in the temporary reinstatement phase of the litigation, judges must apply the “not frivolously brought” standard contained in section 105(c)(2) of the Mine Act to the miner’s claim [regarding the layoff]. . . . In other words, temporary reinstatement should be granted and not tolled unless the operator shows that the claim that the layoff arose at least in part from protected activity is frivolous.

Id. In the instant case this procedure was not followed.

            C.R. Meyer’s asserted grounds for tolling appear simple and straight-forward, i.e., that because of a 10-person limit placed on the maintenance project by its customer, Molycorp, it laid off all miners hired locally, and these layoffs would have legitimately included Rodriguez. However, in its proffer, C.R. Meyer’s counsel represented that all of the layoffs had occurred by January 25, 2013, which was also the date Rodriguez was discharged. In his decision, the judge understandably relied on counsel’s representation to conclude that the operator was not making a tolling argument but rather was affirmatively defending its actions by claiming that, on the same day it terminated him, it would have laid off Rodriguez for economic reasons regardless of his protected activity.

            In its petition for review, C.R. Meyer states that the January 25, 2013 date stated during the proffer as the date for the completion of the layoffs was an error, and that the correct date was February 22, 2013. That an error was made is supported by exhibits submitted during the proffer which reflect that the last layoff of a local miner was on February 22, 2013. Proffered Ex. E, F. Based on our review of the operator’s April 8, 2013 submission, its proffer at the hearing including the exhibits, and the clarification of its proffer in the petition for review, we find that, based on our holdings in Gatlin and Cobra, the judge erred in excluding C.R. Meyer’s evidence regarding the layoff. The judge’s exclusion of this evidence resulted in no consideration being given to the tolling issue. On remand, the judge must allow C.R. Meyer to offer its evidence on tolling the complainant’s temporary reinstatement.

            We reiterate that the inquiry into tolling must be limited, consistent with the scope and spirit of a temporary reinstatement proceeding. Nevertheless, the Secretary shall be allowed to present the rebuttal evidence he indicated he was prepared to introduce on the issue of tolling at the original hearing. Tr. 74-75. The Secretary can also introduce evidence and cross-examine witnesses to question the objectivity of the layoff as it would have applied to Rodriguez. If the Secretary pursues that issue, the judge shall determine whether the evidence, as a whole, supports a “non-frivolous” claim that such a layoff might have been motivated in any way by the miner's protected activity. If it does, the operator’s request that reinstatement be tolled must be denied. See Cobra, slip op. at 4. Because it is inappropriate to resolve conflicting testimony at this stage, the Secretary’s burden of proof is limited to establishing facts which could support the claim that any inclusion of the complaining miner in the layoff might have been based in part on the miner’s protected activity.

            Should the Secretary fail to sufficiently establish the possibility that any inclusion of Rodriguez in the layoff might have been motivated by the miner's protected activity, the judge must then consider the entire record and determine whether the operator has proven by a preponderance of the evidence that the layoff of local miners, which the operator alleges took place no later than February 22, justifies tolling its obligation to temporarily reinstate Rodriguez. If the operator succeeds in proving that tolling is justified, the judge shall determine the period of time for which the layoff would have properly included Rodriguez and shall limit any tolling to that period.

III.

Conclusion

            For the foregoing reasons, we reverse the judge’s decision solely with respect to the admission of evidence related to tolling, and remand the case to him for further proceedings consistent with this opinion. Until the judge issues his decision on remand, the miner remains reinstated under the terms of the judge’s original decision.

                                                                                    /s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chairman

                                                                                    /s/Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Patrick K. Nakamura

                                                                                    Patrick K. Nakamura, Commissioner

Distribution

Erik K. Eisenmann, Esq.

Whyte Hirschboeck Dudek, S.C.

555 East Wells Street, Suite 1900

Milwaukee, WI 53202

eeisenmann@whdlaw.com

for C.R. Meyer & Sons, Company

Natalie A. Nardecchia, Esq.

Office of the Solicitor

U.S. Department of Labor

350 South Figueroa Street, Suite 370

Los Angeles, CA 90071-1202

nardecchia.natalie@dol.gov

Dustin Rodriguez

1464 Labrador Drive

Las Vegas, NV 89142

Administrative Law Judge William S. Steele

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

875 Green Tree Road

7 Parkway Center, Suite 290

Pittsburgh, PA 15220