FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710
SECRETARY OF LABOR :
MINE SAFETY AND HEALTH : Docket No. WEST 2021-0178-DM
ADMINISTRATION (MSHA) :
on behalf of ALVARO SALDIVAR :
:
v. : Mine ID: 0405432
:
GRIMES ROCK, INC. :
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
BY: Althen and Rajkovich, Commissioners
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) (2018) (“Mine Act”).[1] On May 25, 2021, the Commission received from Grimes Rock, Incorporated (“Grimes Rock”) a petition for review of an Administrative Law Judge’s May 18, 2021 order temporarily reinstating miner Alvaro Saldivar. On June 1, 2021, 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. Saldivar.
Complainant Alvaro Saldivar testified that he was a miner at Grimes Rock, Incorporated on two separate occasions. He was first employed as a welder from May 2019 through July 2019, and then employed again from October 5, 2020 to January 15, 2021, as a service technician. Tr. 16. Saldivar testified that while employed at Grimes Rock, he reported approximately eight or so safety issues to his direct supervisor Rene Garcia and general manager Ernie Melendez on multiple occasions. Saldivar stated that the complaints went unaddressed by mine management. Tr. 17-27. Most of his complaints involved the water truck he operated. All the alleged protected activity occurred during Saldivar’s second period of employment with Grimes Rock. Tr. 35-36.
Saldivar also testified that he complained about a lack of proper training. While he signed documents stating that he received new miner training, Saldivar testified that he did not receive the required specific task training relating to the large equipment that he was required to operate. Resp. Ex. C.; Tr. 21, 25-26, 28, 44. He testified that he even made his requests in writing on his daily pre-shift reports. Tr. 21. According to Saldivar, his requests for additional training also went unaddressed. Tr. 22. On cross examination, Saldivar admitted that he received training from the Quinn Company, but asserted that the training did not relate to operation of the equipment but rather related to the maintenance of certain equipment. Tr. 46-47, 74.
Grimes Rock issued five disciplinary warnings to Saldivar during his second period of employment at the mine, which Saldivar signed. Resp. Ex. K. Saldivar testified that he did not commit the infractions as written on the disciplinary forms, and that he signed the forms only to avoid losing his job. Tr. 49-50, 54-56, 59, 62-63, 64, 74-75. He also testified as to his belief that his supervisors were acting in a “malicious” manner towards him and that the discipline was being issued in retaliation for his frequent complaints about jobsite safety hazards. Tr. 28, 59.
Saldivar was terminated on January 15, 2021, one day after he made his last safety complaint. Tr. 30.
On February 21, 2021, Saldivar filed a discrimination complaint with the Department of Labor’s Mine Safety and Health Administration (“MSHA”) over his termination. The Secretary of Labor subsequently filed an application for temporary reinstatement on behalf of Saldivar on April 12, 2021. A hearing was held on the matter on May 11, 2021. On May 18, the Judge issued a decision granting the Secretary’s application for temporary reinstatement and issued an order directing temporary reinstatement of the miner. Sec’y of Labor on behalf of Alvaro Saldivar v. Grimes Rock, Inc., Unpublished Decision and Order at 1-6 (May 18, 2021). On May 25, 2021, the Commission received the operator’s petition for review of the Judge’s temporary reinstatement decision and order.[2] The Secretary responded to the operator’s petition on June 1, 2021.
A. Temporary Reinstatement
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) (“JWR”); Sec’y of Labor on behalf of Jones v. Kingston Mining, Inc., 37 FMSHRC 2519, 2522 (Nov. 2015). 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.” JWR, 920 F.2d at 748, n.11.
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 at 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).
Upon adopting the “Marion approach” in Secretary of Labor on behalf of Cook v. Rockwell Mining, LLC in which the scope of a temporary reinstatement hearing was at issue, the Commission held that a temporary reinstatement hearing must be a full evidentiary process. 43 FMSHRC ___, slip op. at 9, No. WEVA 2021-0203 (Apr. 23, 2021), citing Sec’y of Labor on behalf of Kevin Shaffer v. Marion County Coal Co., 40 FMSHRC 39, 47 (Feb. 2018) (separate opinion of Acting Chair Althen and Commissioner Young). During the proceeding, a Judge must consider any evidence which is relevant to the adverse action. Id. In other words, “all evidence relating to the adverse employment action is relevant in a temporary reinstatement proceeding -- even that which seems directed to an affirmative defense or rebuttal of the miner’s claim.” Id.
The Marion approach gives operators an opportunity to provide evidence that the complaint was frivolously brought. 43 FMSHRC ___, slip op. at 9 (emphasis added). It is permissible, therefore, for a Judge to consider evidence regarding allegations of a miner’s unprotected misconduct to determine if the miner has a viable case. However, such evidence may not serve as a basis for denial of reinstatement if it requires resolution of a credibility determination. Id. at 10. In a temporary reinstatement hearing, the Judge may not resolve credibility disputes or make rulings on credibility.
B. Standards of Review
The Commission applies the substantial evidence standard when reviewing a Judge’s factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I); Sec’y of Labor on behalf of Bussanich v. Centralia Mining Co., 22 FMSHRC 153, 157 (Feb. 2000). “Substantial evidence” means ‘such relevant evidence as a reasonable mind might accept as adequate to support [the judge’s] conclusion.”’ Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. of New York, Inc. v. NLRB, 305 U.S. 197, 229 (1938)); Sec’y of Labor on behalf of Norman Deck v. FTS Int’l Proppants, LLC, 34 FMSHRC 2388, 2392 (Sep. 2012).
When reviewing a Judge’s evidentiary rulings, the Commission applies an abuse of discretion standard. Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1366 (Dec.
2000). “Applying an abuse of discretion standard is consistent with the discretion accorded judges in matters related to the conduct of a trial.” Marfork Coal Co., 29 FMSHRC 626, 634 (Aug. 2007) (citation omitted). Abuse of discretion may be found when there is no evidence to support the decision or if the decision is based on an improper understanding of the law. Pero, 22 FMSHRC at 1366 (citations omitted).
In its Petition, the operator essentially sets forth two alleged errors by the Judge. First, it claims the Judge erred in applying the Pasula-Robinette standard instead of the new “but-for” causation standard articulated by the Ninth Circuit Court of Appeals in Thomas v. CalPortland Co., 993 F.3d 1204 (9th Cir. 2021). PTR at 2-3, 4-5, 10. Second, it argues that the Judge’s pretrial rulings and preclusion of evidence at the hearing improperly narrowed the scope of the proceeding and deprived the operator of a robust evidentiary hearing in violation of its right to due process. PTR at 2-3, 10. It cites to at least five examples of evidentiary error.
We conclude that the Judge did not abuse her discretion and that substantial evidence supports her finding that the miner’s claim was not frivolously brought.
A. Grimes Rock argues that the Judge erred in applying the Pasula-Robinette standard instead of the new “but-for” causation standard mandated by the Ninth Circuit in Thomas v. CalPortland.
The “but-for” causation standard established by the Ninth Circuit Court of Appeals in Thomas v. CalPortland now governs section 105(c) discrimination cases brought within the Ninth Circuit. The Judge initially looked to the Commission’s longstanding Pasula-Robinette standard in reaching her decision. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981). However, contrary to Grimes Rock’s assertion that she “failed to consider” the CalPortland holding, the Judge specifically looked to the Ninth Circuit test, acknowledging that the instant case arises in the Ninth Circuit.
The Judge concluded that the same outcome would have been reached under the “but-for” causation standard for discrimination proceedings within the Ninth Circuit. Grimes Rock, Inc., Unpublished Decision and Order at 1-6; PTR at 10. The Judge correctly pointed out that the requirements for a full discrimination proceeding do not affect the “not frivolously brought” standard in a temporary reinstatement case such as this.
Grimes has not shown that the Judge erred in concluding that, under either standard, the complainant met the “not frivolously brought” test applicable to temporary reinstatement proceedings. Accordingly, it is neither necessary nor useful to identify the full scope of the “but-for” causation standard in this temporary reinstatement proceeding.[3]
B. Grimes Rock argues that the Judge’s pretrial rulings and preclusion of evidence at the hearing improperly narrowed the scope of the proceeding and deprived the operator of a robust evidentiary hearing in violation of its right to due process.
Specifically, Grimes Rock contends that the Judge erred in the following discovery and evidentiary rulings when considering the relevance of the available evidence.
1. The Judge denied the operator’s Application for Discovery.
The Mine Act envisions an “expedited basis” for a temporary reinstatement proceeding that does not permit full discovery or complete resolution of conflicting testimony. 30 U.S.C. § 815(c)(2); Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC, 34 FMSHRC 1875, 1879 (Aug. 2012). Furthermore, in reviewing claims that a Judge erred in a discovery dispute, the Commission cannot merely substitute its judgment for that of the Judge. Asarco, Inc., 12 FMSHRC 2548, 2555 (Dec. 1990) (“Asarco I”). A Commission Judge is granted wide discretion in discovery matters. In Re: Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 1005 (June 1992) (“Dust Sample Cases”); Gray v. North Fork Coal Corp., 35 FMSHRC 2349, 2359-60 (Aug. 2013).
We conclude that the Judge did not err in denying the broad discovery request. Grimes Rock’s discovery request was extraordinarily broad, consisting of a demand for the production of sixty documents, many of which were likely in the possession of Grimes Rock. Additionally, the application for discovery was filed only 7 days before hearing. As stated by the Judge, the request was overbroad, many of the requested documents were not relevant to a temporary reinstatement proceeding, and admission of much of the requested information would have required the Judge to make credibility determinations. Ord. Denying Resp. App. for Disc. at 2 (May 10, 2021). Resolving credibility issues is beyond the scope of a temporary reinstatement proceeding. See Sec’y of Labor on behalf of Williamson v. Cam Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009).
2. The Judge rejected Grimes Rock’s request to admit evidence of Saldivar’s criminal history.
The operator’s counsel argued that Saldivar’s criminal past should be admitted as evidence relevant to Saldivar’s credibility as a witness. PTR at 7.
The Judge did not abuse her discretion in denying admission of evidence regarding Saldivar’s criminal history. Due to the limited nature of a temporary reinstatement proceeding, a “Judge can only consider evidence which does not require any credibility . . . determinations.” Rockwell Mining, 43 FMSHRC ___, slip op. at 9, No. WEVA 2021-0203 (April 23, 2021). Thus, evidence regarding Saldivar’s credibility is not relevant at this stage of the proceedings.
In any event, a prior criminal conviction does not definitively prove that a person is untruthful in every situation and cannot be used to reject an applicant’s statements unless the conviction shows factually that a statement relative to the specific proceeding is untrue. Thus, a criminal conviction in no way contradicts Saldivar’s assertion that he made safety complaints, nor does it support Grimes Rock’s alleged legitimate business reason for terminating him. Additionally, there is no evidence that Saldivar withheld knowledge of his conviction from Grimes Rock. In fact, by its own admission, the operator was fully aware of Saldivar’s past and still chose to rehire him in October 2020. Resp. Opp. To Sec’y Mot. in Limine to Exclude Resp. Evidence at 1.
3. Grimes Rock argues that the Judge refused to allow questioning about Saldivar’s new miner training.
During the hearing, the Judge eventually asked Counsel for the operator to move on from his line of questioning concerning the new miner training that Saldivar had received. Tr. 42-45.
The Judge did not abuse her discretion in making this evidentiary ruling. Commission Procedural Rule 55(e) provides that Commission Judges have the power to “[r]egulate the course of the hearing,” while Commission Procedural Rule 55(c) provides that Commission Judges have the power to “[r]ule on offers of proof and receive relevant evidence.” 29 C.F.R. §§ 2700.55(c), (e) (emphasis added). Commission Procedural Rule 63(a) states that “[r]elevant evidence, including hearsay evidence, that is not unduly repetitious or cumulative is admissible.” 29 C.F.R. § 2700.63(a). The Administrative Procedure Act, in turn, states that “the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.” 5 U.S.C. § 556(d). See Shamokin Filler Co., 34 FMSHRC 1897, 1907 (Aug. 2012).
Grimes Rock’s allegation that the Judge did not allow cross-examination on Saldivar’s training is not accurate. During cross-examination, the operator’s counsel focused heavily on trying to prove that Saldivar was provided training during his first period of employment with the operator. Tr. 34-36. However, Saldivar’s safety complaints, including his requests for training, occurred during his second period of employment with Grimes Rock, not during his first. Tr. 21. Additionally, Saldivar alleged that he requested task training on the specific equipment he was asked to operate during his second period of employment. Tr. 21-22. However, operator’s counsel repeatedly questioned Saldivar about new miner training during his first period of employment. The Judge allowed Counsel to explore this line of questioning sufficiently before she asked him to move on.
The operator’s line of questioning regarding new miner training during Saldivar’s first period of employment was not relevant to the miner’s claim, involving in part his failure to receive task training. The Judge was well within her authority to limit the time spent on questioning that does not support or disprove a material fact. Counsel also sought to use the line of questioning to show that Saldivar was not credible, which again, is not proper in a temporary reinstatement proceeding. Tr. 37.
4. The Judge declined to order the disclosure of the names of other miners who Saldivar alleged expressed similar safety concerns.
The Secretary asserted the informer’s privilege at the hearing. Tr. 77-78. The informer’s privilege is codified in Commission Procedural Rules 61 and 62. Commission Procedural Rule 61 states that “[a] Judge shall not, except in extraordinary circumstances, disclose or order a person to disclose to an operator or his agent the name of an informant who is a miner.” 29 C.F.R. § 2700.61. Commission Procedural Rule 62 states that “[a] Judge shall not, until 2 days before a hearing, disclose or order a person to disclose to an operator or his agent the name of a miner who is expected by the Judge to testify or whom a party expects to summon or call as a witness.” 29 C.F.R. § 2700.62.
The informer’s privilege is the well-established right of the government to withhold from disclosure the identity of persons furnishing information of violations of the law to law enforcement officials. Roviaro v. United States, 353 U.S. 53, 59 (1957); see generally Thomas J. Oliver, Annotation, Application, in Federal Civil Action, of Governmental Privilege of Nondisclosure of Identify of Informer, 8 ALR Fed. 6 (1971). The purpose of the privilege is to protect the public interest by maintaining a free flow of information to the government concerning possible violations of the law and to protect persons supplying such information from retaliation. Sec’y of Labor on behalf of Logan v. Bright Coal Co., 6 FMSHRC 2520, 2523 (Nov. 1984); cf. Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 305 (5th Cir.1972); Warrior Coal, LLC, 38 FMSHRC 913, 920 (May 2016).
Saldivar testified that other miners had made similar safety complaints. During the hearing, the operator repeatedly sought to learn the identity of the unnamed miners, to which the Judge refused to permit testimony. Tr. 47, 60-61, 73, 77-79.
We conclude that the Judge did not abuse her discretion in her ruling. Forcing the
Secretary or Complainant to reveal a miner’s identity who might have made safety complaints against the company and who might later become a witness in a subsequent discrimination proceeding could potentially lead to a miner who is still employed becoming a victim of retaliation. Revealing a miner’s identity prematurely could also be particularly devastating for a miner who ultimately is not called as a witness.
5. Grimes Rock contends that the Judge precluded questioning about disciplinary warnings received by Saldivar, which was evidence relevant to its rebuttal and affirmative defense.
Grimes Rock is incorrect in its assertion that the Judge precluded questioning about disciplinary warnings received by Saldivar. The Judge, in full compliance with Rockwell Mining, 43 FMSHRC ___, slip op. at 16-18, allowed Counsel to question Saldivar about the disciplinary warnings and also admitted the documentation into the record. Tr. 49-54, 67. However, Counsel for Grimes Rock made a tactical decision not to offer witnesses regarding activities that the operator claimed would have shown the applicant could not meet the not frivolously brought standard under the “but-for” causation standard.
C. Substantial evidence supports the Judge’s decision to temporarily reinstate Saldivar.
Substantial evidence supports the Judge’s finding that the Secretary sufficiently demonstrated that the miner’s complaint was not frivolously brought and that the Order of Temporary Reinstatement should be affirmed.
The hearing consisted of testimony from one witness, the Petitioner Alvaro Saldivar. Saldivar testified that he made roughly eight safety complaints, including requests for task training on specific equipment, to his direct supervisor Rene Garcia and the Mine Manager Ernie Melendez. Tr. 17-27. He also indicated that he wrote down some of the issues on the preoperational sheets that he filled out daily.[4] Tr. 73.
In contrast, Grimes Rock’s case consisted of cross-examining Saldivar and entering three exhibits (Resp. Exs. C, K, and M) into the record, which were meant to serve as proof of training and of numerous disciplinary warnings to Saldivar. Tr. 67. The evidence relates only to the operator’s rebuttal and affirmative defense. It does not speak to Saldivar’s claim that he engaged in protected activity. Grimes Rock declined to introduce any witnesses of its own, including the two supervisors who had direct knowledge of Saldivar’s alleged complaints. Tr. 81. This refusal by the operator essentially left undisputed Saldivar’s claims of safety complaints and that mine management had knowledge of those complaints. It also left Grimes Rock’s exhibits uncorroborated. Furthermore, even though Saldivar signed the disciplinary warnings, he disclaimed the content of them and claimed that he only signed them to keep his job.
Saldivar’s disagreement with the content of the warnings creates an evidentiary dispute requiring credibility determinations, which cannot be resolved in a temporary reinstatement proceeding.
Thus, considering all the evidence adduced at this preliminary stage of the proceeding, it is undisputed that Saldivar engaged in protected activity when he made safety complaints to the operator. Saldivar suffered an adverse action when he was terminated. It is undisputed that there was a close temporal proximity between Saldivar’s final safety complaint and his termination one day later. It is undisputed that Grimes Rock management was aware of the safety complaints, and Saldivar’s allegation that his supervisor was being malicious to him suggests hostility towards Saldivar’s safety complaints. Therefore, substantial evidence supports the Judge’s determination that the available evidence established a sufficient link between the protected activity and adverse action, even considering “but-for” causation.
For the foregoing reasons, we conclude that the Judge did not abuse her discretion in making evidentiary rulings, and that substantial evidence supports the Judge’s determination that Saldivar’s complaint alleging discrimination was not frivolously brought.
Accordingly, the Judge’s decision is affirmed.
/s/ William I. Althen
William I. Althen, Commissioner
/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner
Chair Traynor, concurring in result only:
I concur in result only. My position and views on certain legal issues addressed in this majority opinion are adequately expressed in my dissenting opinion in Sec’y of Labor on behalf of Cook v. Rockwell Mining, 43 FMSHRC ___, slip op. at 16-18, No. WEVA 2021-0203 (Apr. 23, 2021) (Traynor, concurring in result only and addressing the scope of temporary reinstatement proceedings), and my most recent concurring opinion in the Order of Remand, Thomas v. CalPortland Co., 43 FMSHRC ___, slip op. at 3, No. WEST 2018-402-DM (June 11, 2021) (Traynor, concurring in result only and addressing the Ninth Circuit’s opinion in Thomas v. CalPortland Co., 993 F. 3d 1204 (9th Cir. 2021).
I conclude that the Judge did not abuse her discretion in making evidentiary rulings, and that substantial evidence supports the Judge’s determination that Saldivar’s complaint alleging discrimination was not frivolously brought.
Accordingly, I would affirm the Judge.
/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair
Distribution:
Karla Malagon
U.S. Department of Labor
Office of the Solicitor
350 S. Figueroa Street, Suite 370
Los Angeles, CA 90071
Jessica M. Flores
U.S. Department of Labor
Office of the Solicitor
350 S. Figueroa Street, Suite 370
Los Angeles, CA 90071
Bruce L. Brown
U.S. Department of Labor
Office of the Solicitor
350 S. Figueroa Street, Suite 370
Los Angeles, CA 90071
Peter Goldenring
Pachowicz & Goldenring PLC
6050 Seahawk Street
Ventura, CA 93003
Mark R. Pachowicz
Pachowicz & Goldenring PLC
6050 Seahawk Street
Ventura, CA 93003
Alvaro Saldivar
1241 Lookout Drive
Oxnard, CA 93035
Administrative Law Judge Margaret Miller
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
721 19th Street, Suite 443
Denver, CO 80202-2536
Archith Ramkumar, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202
April Nelson, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Melanie Garris
U.S. Department of Labor
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
[1] 30 U.S.C. § 815(c)(2) provides in pertinent part:
Any miner … 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. Upon receipt of such complaint, the Secretary shall forward a copy of the complaint to the respondent and shall cause such investigation to be made as he deems appropriate. Such investigation shall commence within 15 days of the Secretary’s receipt of the complaint, and if 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.
[2] On May 27, 2021, the Commission received a Settlement Agreement and Joint Motion for Temporary Economic Reinstatement from the parties. The Judge approved the motion for temporary economic reinstatement on May 28, 2021.
[3] To date, the Commission has not yet issued a decision applying the Ninth Circuit’s holding in a section 105(c) discrimination proceeding.
[4] These forms were not introduced into evidence. However, this is likely because such documentation is the property of Grimes Rock. Thus, the Secretary could request them through discovery, which does not usually occur until the discrimination proceeding has commenced.