**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF THE CHIEF ADMINISTRATIVELAW JUDGE

1331 PENNSYLVANIA AVE.,N.W., SUITE 520N

WASHINGTON, DC20004-1710

TELEPHONE: 202-434-9900/ FAX: 202-434-9949

 

 

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**ORDER OF TEMPORARY REINSTATEMENT**

 

Before:             Judge Sullivan                        

 

            Thiscase is before me upon an Application for Temporary Reinstatement filed by the Secretaryof Labor pursuant to section 105(c)(2) of the Federal Mine Safety and HealthAct of 1977, 30 U.S.C. § 801, et seq*.*, and 29 C.F.R. § 2700.45. OnDecember 1, 2023, the Secretary filed the Application on behalf of miner anddesignated Miners’ Representative Samuel Coleman (“Complainant”) seeking hisreinstatement to his former positions of Underground Belt Repairman and Miners’Representative at the No. 7 Mine of Warrior Met Coal, LLC (“Respondent”). Thecertificate of service states that the Application was served on Respondents bye-mail that same day. The Application also satisfies the otherprocedural requirements of Commission Rule 45(b) as it timely “states the Secretary’s finding that theminer’s discrimination complaint was not frivolously brought[,] accompanied byan affidavit setting forth the Secretary’s reasons supporting his finding[,]and includes a copy of the miner’s complaint to the Secretary . . . .” 29C.F.R. § 2700.45(b).[1]

 

            CommissionProcedural Rule 45(d) provided Respondent with the right to, within 10 days ofreceipt of the Application, request an expedited hearing on the Application. *See*29 C.F.R. § 2700.45(d). Respondent elected not to do so.

 

            Section105(c)(1) of the Mine Act provides that “[n]o person shall discharge . . . anyminer . . . because such miner . . . has filed or made a complaint under orrelated to this Act, including a complaint notifying the operator . . . of analleged danger or safety or health violation in a . . . mine . . . .” 30 U.S.C.§ 815(c)(1). In the Application, as supported by her investigator’s sworndeclaration (Exhibit A thereto), the following unrebutted allegations of the Secretaryestablish the Complaint to her as having been not frivolously brought undersections 105(c)(1) and (2):

 

(1)   Before his employmentwas terminated on October 30, 2023, Complainant had worked for Respondent as anunderground coal miner for over four years.~~~~

(2)   In May 2023, theminers at the No. 7 Mine, pursuant to 30 C.F.R. § 40, designated Complainant astheir Miner’s Representative for purposes of the Mine Act. 

 

(3)  On October 17, 2023, Zachiah Mann, an underground miner at the No. 7Mine, reported to Complainant that Mann’s supervisor, Neil Almacen, had removeddanger tape where timbers were down and had instructed Mann to remove rocksunderneath a moving belt. Mann informed Complainant that he refused to do soand alleged that he was terminated for complaining to Almacen about those safetyissues.

 

(4)   Complainant, in hisrole as designated Miners’ Representative, questioned Almacen about Mann’saccount of events. Almacen responded that “Mann walked off the job and I firedhis ass.” Complainant informed Almacen that he would inspect the area that Mannhad complained about, and that if the problems had not been corrected, there wouldbe a safety issue.

 

(5)   Complainant also toldAlmacen that he had seen him traveling through the mine without requiredreflective clothing.

 

(6)   The following day,October 18, Complainant was suspended by Respondent’s Human ResourcesRepresentative, Sally Brown, on Almacen’s allegation to upper management thatComplainant had told Almacen that “someone was going to beat [his] ass.” OnOctober 30, Respondent terminated Complainant, on the purported ground ofinsubordination. 

 

There being no opposition to theApplication, I agree with the Secretary that it establishes the Complaint tohave been “not frivolously brought.” *See Jim Walters Res., Inc. v. FMSHRC*,920 F.2d 738, 747 (11th Cir. 1990) (relying upon Mine Act legislative historyand the Supreme Court’s treatment of a similar whistleblower protectionprovision to conclude that the “not frivolously brought” standard is theequivalent of a “reasonable cause to believe” standard and is met when aminer’s “complaint appears to have merit”). Accordingly, the Application isgranted. I reach no conclusion beyond that regarding the merits of theComplaint.

 

**ORDER**

 

It is hereby **ORDERED** that **SAMUEL COLEMAN** be **immediately****T****EMPORARILY REINSTATED** to his former positions at the No. 7 Mine athis former rate of pay, overtime, and all benefits he was receiving at the timeof his termination. 

 

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

 

            Iretain 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 underlyingdiscrimination complaint **no later than January 29, 2024**.[2] Counsel for the Secretary **SHALL**also **immediately** notify my office of any settlement or of any determinationthat the Respondent did not violate Section 105(c) ofthe Act. 

 

**WHEREFORE**, the Applicationis **GRANTED**, and it is **ORDERED** that reinstatement shall remain in effect until such time that the Secretaryprovides notification that he will not be bringing a discrimination case inchief on behalf of the Complainant, or such a case is brought and there is afinal determination on it by decision, approval of settlement, or other orderof this court or the Commission. I retainjurisdiction over this temporary reinstatement proceeding for such purposes asare necessary, as provided by 29 C.F.R. § 2700.45(e)(4).

 

**WHEREFORE**, the Secretary isfurther **ORDERED** to provide an update regarding the status of theSecretary’s investigation of the Complaint no later than January 29, 2024.

 

 

 

 

/s/ John T.Sullivan

John T.Sullivan

AdministrativeLaw Judge

 

 

Distribution: 

 

Colleen E. Howard & Jean C. Abreu, Office of theSolicitor, U.S. Department of Labor, 61 Forsyth Street, S.W., Room 7T10,Atlanta, GA 30303 (howard.colleen.e@dol.gov)(Abreu.jean.c@dol.gov)

 

Atlanta Docket (atl.fedcourt@dol.gov)

 

W. Brock Phillips & John B. Holmes, III, MAYNARD NEXSEN,P.C., 1901 Sixth Avenue North, Suite 1700, Birmingham, AL 35203 (bphillips@maynardnexsen.com) (JHolmes@maynardnexsen.com)

 

Samuel Coleman (bubbacoleman85@gmail.com)

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            [1]The Discrimination Complaint (“Complaint”) filed with the Secretary’s MineSafety and Health Administration by the Complainant is dated October 31, 2023,thus well within 60 days of the Complainant’s October 30 termination ofemployment. *See* 30 U.S.C. § 815(c)(2).

[2]Section 105(c)(3) of the Act directs the Secretary to notify a complainantwhether a section 105(c) violation occurred within 90 days of the filing of acomplaint. 30 U.S.C. § 815(c)(3).