**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OFADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Ave.NW, Suite 520N

TELEPHONE: (202)434-9958/ FAX: (202)434-9949

 

 
| SECRETARY OF LABOR

  MINE SAFETY AND HEALTH      

  ADMINISTRATION (MSHA), 

  on behalf of TRACY A. LEWIS,

                           Complainant,

 

                        v.

 

TIP TOP MATERIALS, LLC,

                           Respondent                                                                                     |   |   | TEMPORARY REINSTATEMENT

 

Docket No. VA 2021-0008-D

MSHA Case No.: NORT-CD 2021-03

 

 

 

 

Mine: Tip Top Materials, LLC

Mine ID: 44-07399 |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**ORDER GRANTING TEMPORARY REINSTATEMENT**

**OF TRACY A. LEWIS**

 

 

Before:             Judge Young

 

            Pursuantto Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Act”),30 U.S.C. § 801, *et. seq.*, and 29 C.F.R. § 2700.45, the Secretary ofLabor (“Secretary”) on February 26, 2021, filed an Application for TemporaryReinstatement of miner Tracy A. Lewis (“Complainant”) to his former positionwith Tip Top Materials, LLC (“Respondent”) at Respondent’s mine pending finalhearing and disposition of the case. 

 

            Accordingto Commission Rule 45, a request for hearing must be filed within 10 daysfollowing receipt of the Secretary’s application for temporary reinstatement.29 C.F.R. § 2700.45(c). The Secretary’s certificate of service states thatthe Application for Temporary Reinstatement of Complainant was served onRespondent by electronic mail on February 26. The Respondent has not filed atimely Request for Hearing. 

 

            TheSecretary has found that the Complaint was not frivolously brought and, asexplained below, has provided evidence supporting that determination. Therefore,consistent with Section 105(c)(2) of the Act, the temporary reinstatement of TracyA. Lewis is granted. 

 

Lawand Regulations

 

            Section105(c) of the Mine Act prohibits discrimination against miners for exercisingany protected right under the Mine Act and provides that a miner may file acomplaint with the Secretary alleging discrimination. 30 U.S.C. § 815(c)(1-2).The plain language of the Act also provides that “if the Secretary finds thatthe complaint was not frivolously brought, the Commission, on an expeditedbasis upon application by the Secretary, *shall*order the immediatereinstatement of the miner pending final order on the Complaint.” 30 U.S.C. § 815(c)(2)(emphasis added). 

            TheCommission’s regulations control the temporary reinstatement procedures. Oncean application for temporary reinstatement is served on the person against whomrelief is sought, 

thatperson shall notify the Chief Administrative Law Judge or his designee within10 calendar days whether a hearing on the application is requested. 29 C.F.R. § 2700.45(c).If no hearing is requested, the Judge assigned to the matter shall reviewimmediately the Secretary’s application and, if based on the contents thereof,the Judge determines that the miner’s complaint was not frivolously brought,[1]shall issue immediately a written order of temporary reinstatement. *Id.*

 

             Ifthere is a hearing, the judge must determinewhether the complaint of the miner “is supported by substantial evidence and isconsistent with applicable law.”[2]*Sec**=**yof Labor on behalf of Peters v. Thunder Basin Coal Co.*, 15 FMSHRC 2425,2426 (Dec. 1993). In the instant case, however, theRespondent has not timely filed a request for hearing. Thus, CommissionProcedural Rule 45(c) compels me to review the Secretary’s determination thatthe Complaint in this matter was not frivolously brought. *See*29 C.F.R.§ 2700.45(c).

 

Disposition

 

            TheSecretary has provided the evidentiary basis for his determination that thecomplaint in this matter has not been frivolously brought. The Act requires theSecretary to investigate the miner’s complaint of discrimination. 30 U.S.C. § 815(c)(2).The Secretary’s application includes the complaint filed by Complainant(Exhibit “A” to the Application) and the Declaration of Special Investigator MichaelR. Hughes indicating that this was done (Exhibit “B.”) 

 

            Mr.Hughes’ Declaration provides facts in support of the Secretary’s conclusionthat the complaint was not frivolously brought, including:

 

1.    Complainant was a “miner” employed as aforeman at a “mine” operated by a “person,” as defined by the Act; 

2.    Complainant participated in an MSHAinvestigation into a discrimination complaint arising from the firing of hisson, Matthew Lewis, allegedly for filing a safety complaint with MSHA; 

3.    Complainant had been ordered by themine superintendent to fire his son for making a safety-related complaint toMSHA, and that he carried out the order;

4.     Complainant was subsequently terminated from his employmentunder circumstances that Mr. Hughes found to provide “reasonable cause tobelieve that Tracy Lewis was discharged because he engaged in protectedactivities.”

 

Dec. of Michael R. Hughes, Feb. 4, 2021 (Ex. “B” to App.For Temp. Reinst.)

 

            TheComplaint was timely filed, within a week after Complainant was terminated. Itincludes additional allegations relevant to MSHA’s decision. Complainant statedthat he was told by other employees at the mine that Complainant would be “gonein two weeks,” and that he was told he was fired for approaching too quickly inhis vehicle upon learning of a confrontation between his son and the minesuperintendent and other employees. 

 

            Thefacts provided in support of the agency’s decision, if true, would establishjurisdiction, a timely complaint of discrimination, and that Complainantengaged in protected activity and suffered an adverse action close in time tothe protected activity, under circumstances that provide a reasonable cause tobelieve that there was a causal nexus between his participation in an MSHAinvestigation and his termination.

 

Findingsand Conclusion

 

            Atthis stage, the facts alleged by the Secretary are undisputed. Therefore, Ifind that the Complaint for discrimination has not been frivolously brought,and that Complainant Tracy A. Lewis is entitled to Temporary Reinstatementunder the provisions of Section 105(c) of the Act. 

 

**ORDER**

 

It is hereby **ORDERED** that **Tracy A. Lewis** be **immediately****TEMPORARILY REINSTATED** to his former job as a foreman at the Tip TopMaterials mine at his former rate of pay, overtime, and all benefits he wasreceiving at the time of his termination. 

 

This Order **SHALL** remain in effect until such time asthere is a final determination in this matter by hearing and decision, approvalof settlement, or other order of this court or the Commission. 

 

            Iretain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R. § 2700.45(e)(4).The Secretary **SHALL** provide a report on the status of the underlyingdiscrimination complaint **as soon as possible**. Counsel for the Secretary **SHALL**also **immediately** notify my office of any settlement or of any determinationthat Tip Top Materials, LLC, did not violate Section105(c) of the Act. 

 

 

 

 

/s/Michael G. Young

                                                                                    MichaelG. Young

                                                                                    AdministrativeLaw Judge

 

Distribution (Via Certified Mail & E-mail)

 

LaShanta Harris, Esq., U.S. Dept. of Labor, Office of theRegional Solicitor, 201 12 Street South, Suite #401, Arlington, VA 22202, Harris.LaShanta@dol.gov

 

Christopher Dale, Superintendent, Tip Top Materials, LLC,1704 U.S. Highway 19, Lebanon, VA 24266, cldale.construction@bvu.net

 

Wes Addington, Esq., Appalachian Citizens’ Law Center, 317Main Street, Whitesburg, KY 41858, wes@aclc.org

 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522, tonyoppegard@gmail.com

----

[1]The Act’s legislative history suggests that acomplaint is not frivolously brought if it Aappearsto have merit.@ S. Rep. No. 181, 95th Cong.,1st Sess. 36-37 (1977), *reprinted in* Senate Subcommittee on Labor,Committee on Human Resources, 95th Cong. 2nd Sess., *Legislative History ofthe Federal Mine Safety and Health Act of 1977*, at 624-25 (1978). Inaddition to Congress=Aappearsto have merit@ standard, the Commission andthe courts have also equated Anot frivolously brought” to Areasonable cause to believe” and Anot insubstantial.”*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, 747 & n.9 (11th Cir. 1990). 

[2]ASubstantial evidence@ means Asuchrelevant evidence as a reliable mind might accept as adequate to support [thejudge=s] conclusion.@*Rochester &Pittsburgh Coal Co.,* 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting *ConsolidatedEdison Co. V. NLRB*, 305 U.S. 197, 229 (1938)).