**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

7 PARKWAY CENTER, SUITE290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240/ FAX: 412-928-8689

 

 
| SECRETARY OF LABOR,

 MINE SAFETY AN D HEALTH

 ADMINISTRATION (MSHA) obo

 GEORGE PORTER

                           Complainant,

 

                        v.

 

PACER MINERALS, LLC,

                           Respondent                                                                             |   |   | TEMPORARY REINSTATEMENT

 

Docket No. CENT 2023-0058

MSHA No.: DENV-CD-2023-01

 

 

 

Mine: Pink Monster

Mine ID: 39-01653 |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------|

**ORDER GRANTING TEMPORARY REINSTATEMENT**

**OF GEORGE PORTER**

 

Before:             Judge Lewis                           

 

            Pursuantto Section 105(c) 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 December 15, 2022, filed an Application for TemporaryReinstatement of miner Frank George Porter (“Complainant”) to his formerposition as a heavy equipment operator with Pacer Minerals, 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 Application for Temporary Reinstatement wasserved on Respondent by electronic mail on December 14, 2022. 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) of the Act, the temporaryreinstatement of George Porter 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 “2” to the Application) and the Declaration ofSpecial Investigator Daniel Scherer indicating that this was done (Exhibit “1.”)

 

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

3.       My investigation of this case,which included witness interviews and a review of documents that Pacerprovided, disclosed the following:

A.      At all relevant times, Paceroperated the Pink Monster Mine near Pringle, S.D. (the “Mine”). MSHA hasinspected Pacer’s operations on numerous occasions and Pacer is an “operator”under Section 3(d) of the Mine Act.

B.      Pacer’s products, which includefeldspar and mica, enter commerce, or its operations or the Mine’s productsaffect commerce.

C.      Porter was, at all relevanttimes, employed as a heavy equipment operator by Pacer and was, therefore, a“miner” under Section 3(g) of the Mine Act.

D.      On October 24, 2022, Portertimely filed a discrimination complaint with MSHA alleging that Pacerdischarged him in violation of section 105(c) of the Mine Act.

4.       Porter’s discrimination complaintarose from the following circumstances:

A.      Porter worked for Pacer as asafety manager beginning in August 2021. At the time of his discharge, heworked 40 hours per week and earned $25.00 per hour as a heavy equipmentoperator.

B.      In the fall of 2022, Pacerassigned Porter to work at the Mine after he had worked at another of thecompany’s mines, the White Elephant, that Pacer subsequently closed.

C.      On September 15, 2022, Porter anda colleague, Mark Hughes (“Hughes”), used heavy equipment to clear blastedoverburden out of the Mine’s pit. Unbeknownst to them, they worked near wherePacer’s blasting contractor, Century Blasting Service, LLC (“Century”), had setexplosives in six holes for blasting. Mine Manager Tony Boggs (“Boggs”) knewthat the explosives were present but did not tell Porter. Instead, he directedthem to work away from the explosives’ location without explaining why. Porterunwittingly worked near undetonated charges for several hours.

D.      The explosives remained from an earlierblast on Pink Monster’s upper level. Century drilled and loaded holes for twoshots, one above the other. However, the lower level holes – near where Porterand Hughes worked – were not tied into the blast sequence of the upper levelholes. Neither Pacer nor Century noticed that this had occurred.

E.      Porter reported this incident toPacer General Manager Ryan Fredsall (“Fredsall”) on September 22, 2022.

F.       Fredsall and the company’s humanresources director/accountant, Tamera Sutherland, investigated the incident butdid not discipline anyone.

G.      On September 30, 2022, Pacer laidoff Porter.

H.      Porter did not work at the Mineagain.

Dec. of DanielScherer, December 14, 2022 (Ex. “1” to App. For Temp. Reinst.)

 

            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 George Porter is entitled to Temporary Reinstatement underthe provisions of Section 105(c) of the Act. 

 

**ORDER**

 

It is hereby **ORDERED** that **George Porter** be **immediately****TEMPORARILY REINSTATED**to the position he held on the date of hisdischarge from Pacer Minerals, LLC, or a comparable position within the samecommuting area and at the same rate of pay and benefits he received prior tohis discharge. 

 

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. 

 

 

 

 

/s/ John Kent Lewis

                                                                                    JohnKent Lewis

                                                                                    AdministrativeLaw Judge

 

 

 

Distribution: 

 

Ryan Fredsall, General Manager,Pacer Minerals, 25429 U.S. Highway 385 Custer, S.D. 57730 (ryan@pacerminerals.com) 

 

Matthew B. Finnigan. Esq.,Office of the Solicitor, 1244 Speer Blvd., Suite 515 Denver, CO 80204-3516 (finnigan.matthew@dol.gov) 

 

George Porter, 12066 HooverCourt, Custer, SD 57730, (georgeporter502@yahoo.com) 

 

----

[1] The Act’slegislative history suggests that a complaint is notfrivolously brought if it “appears 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’ “appears to have merit” standard, the Commission and thecourts have also equated “not frivolously brought” to “reasonable cause to believe”and “not 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]“Substantial evidence” means “such 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)).