i 

June 2021 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

06-11-21 SEC. OF LABOR O/B/O ALVARO 

SALDIVAR v. GRIMES ROCK, INC. 

WEST 2021-0178-

DM 

Page 299 

COMMISSION ORDERS 

06-02-21 NASELLE ROCK AND ASPHALT 

COMPANY 

PENN 2018-0169 Page 311 

06-11-21 ROBERT THOMAS v. 

CALPORTLAND COMPANY 

WEST 2018-402-DM Page 314 

 

ADMINISTRATIVE LAW JUDGE DECISIONS 

06-07-21 VULCAN CONSTRUCTION 

 MATERIALS, LLC 

SE 2020-0087-M Page 321 

ADMINISTRATIVE LAW JUDGE ORDERS 

06-24-21 SEC. OF LABOR O/B/O RYAN S. 

LEMLEY v. MONONGALIA 

COUNTY COAL RESOURCES INC. 

PENN 2021-0087 Page 335 
ii 

Review was Granted in the Following Case During the Month of June 2021 

Secretary of Labor obo Alvaro Saldivar v. Grimes Rock, Inc., Docket No. 

WEST 2021-0178 (Judge Miller, May 18, 2021) 
COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

June 11, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

DECISION 

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. 

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. 

SECRETARY OF LABOR

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of ALVARO SALDIVAR 

v. 

GRIMES ROCK, INC. 

Docket No. WEST 2021-0178-DM 

Mine ID: 0405432 

43 FMSHRC Page 299
I. 

Factual and Procedural Background 

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. 

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. 

43 FMSHRC Page 300
II. 

Applicable Law 

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. 

43 FMSHRC Page 301
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). 

III.

Disposition 

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 “butfor” causation standard for discrimination proceedings within the Ninth Circuit. Grimes Rock, 

43 FMSHRC Page 302
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 “butfor” 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). 

3

 To date, the Commission has not yet issued a decision applying the Ninth Circuit’s 

holding in a section 105(c) discrimination proceeding. 

43 FMSHRC Page 303
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 

43 FMSHRC Page 304
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. 

 

43 FMSHRC Page 305
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. 

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. 

43 FMSHRC Page 306
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. 

 

IV.

Conclusion 

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 

 

43 FMSHRC Page 307
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 

43 FMSHRC Page 308
Distribution: 

Karla Malagon 

U.S. Department of Labor 

Office of the Solicitor 

350 S. Figueroa Street, Suite 370 

Los Angeles, CA 90071 

malagon.karla@dol.gov 

Jessica M. Flores 

U.S. Department of Labor 

Office of the Solicitor 

350 S. Figueroa Street, Suite 370 

Los Angeles, CA 90071 

Flores.Jessica@dol.gov 

Bruce L. Brown 

U.S. Department of Labor 

Office of the Solicitor 

350 S. Figueroa Street, Suite 370 

Los Angeles, CA 90071 

Brown.Bruce.L@dol.gov 

Peter Goldenring 

Pachowicz & Goldenring PLC 

6050 Seahawk Street 

Ventura, CA 93003 

peter@pglaw.law 

Mark R. Pachowicz 

Pachowicz & Goldenring PLC 

6050 Seahawk Street 

Ventura, CA 93003 

mark@pglaw.law 

Alvaro Saldivar 

1241 Lookout Drive 

Oxnard, CA 93035 

saldivarwelding@icloud.com 

Administrative Law Judge Margaret Miller 

Federal Mine Safety and Health Review Commission 

Office of Administrative Law Judges 

721 19th Street, Suite 443 

43 FMSHRC Page 309
Denver, CO 80202-2536 

mmiller@fmshrc.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

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 

Nelson.April@dol.gov 

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 

Garris.Melanie@dol.gov 

43 FMSHRC Page 310
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

June 2, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

 

ORDER

BY THE COMMISSION: 

 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act”). On July 6, 2020, the Commission received from Naselle Rock 

and Asphalt Company (“Naselle”) two motions seeking to reopen penalty assessments that had 

become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 

815(a). 1

 Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

 We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

1 For the limited purpose of addressing these motions to reopen, we hereby consolidate 

docket numbers WEST 2020-0341-M and WEST 2020-0342-M involving similar procedural 

issues. 29 C.F.R. § 2700.12. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

 v. 

NASELLE ROCK AND ASPHALT 

Docket No. WEST 2020-0341-M 

A.C. No. 45-01129-511209 

Docket No. WEST 2020-0342-M 

A.C. No. 45-00063-511208 

COMPANY 

43 FMSHRC Page 311
 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessments were delivered on March 23, 2020, and 

became final orders of the Commission on April 22, 2020. Naselle asserts that the proposed 

assessments were not timely contested as a result of safety precautions taken in response to the 

Covid-19 pandemic. Offices were shut down on March 30, 2020, and personnel did not return to 

work until the week of April 20. The notices of contest were mailed on April 23, 2020, one day 

after the proposed assessments became final orders. The Secretary does not oppose the request to 

reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed. 

 Having reviewed Naselle’s request and the Secretary’s response, we find that the one-day 

delay in contesting the proposed assessments was excusable in light of the unusual pandemic 

related circumstances. In the interest of justice, we hereby reopen these matters and remand them 

to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the 

Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the 

Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. 

See 29 C.F.R. § 2700.28. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor III, Chair 

 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

 

43 FMSHRC Page 312
Distribution: 

Kim Redding, Consultant 

N-Compliance Safety Services, Inc. 

Redding1562@msn.com 

John M. McCracken, 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 

McCracken.John.M@dol.gov 

Archith Ramkumar 

Appellate Counsel 

U.S. Department of Labor 

Office of the Solicitor 

Ramkumar.Archith@dol.gov 

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 

Nelson.April@dol.gov 

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 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC Page 313
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

June 11, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER OF REMAND

BY: Althen and Rajkovich, Commissioners 

This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2018) (“Mine Act” or “Act”). It involves a complaint filed by miner Robert Thomas 

alleging that CalPortland Company (“CalPort”) discriminated against him in violation of the 

Mine Act. After a Commission Administrative Law Judge found that CalPort unlawfully 

discriminated against Thomas, CalPort filed a petition for discretionary review challenging the 

Judge’s decision on the ground that the miner had failed to establish a prima facie case of 

discrimination. 

On review, the Commission determined that the Judge erred in concluding that Thomas 

had established a prima facie case of discrimination, reversed the Judge’s decision, and 

dismissed the case. 

Thomas subsequently filed a petition for review of the Commission’s decision in the 

United States Court of Appeals for the Ninth Circuit on the grounds that the Commission had 

erred in its determination and asserted, along with Respondent CalPort, that the Commission’s 

long-standing precedent under Pasula-Robinette should no longer apply to section 105(c) cases, 

as it misconstrues the word “because” in the statute.1 See Sec’y of Labor on behalf of Pasula v. 

1 The Act states in pertinent part that: 

No person shall discharge or in any manner discriminate against . 

. . any miner . . . because such miner . . . filed or made a complaint 

under or related to this Act, including a complaint notifying the 

operator or the operator’s agent . . . of an alleged danger or safety 

or health violation in a coal or other mine . . . or because such 

miner . . . has instituted or caused to be instituted any proceeding 

under or related to this Act . . . . 

30 U.S.C. § 815(c)(1) (emphasis added).

ROBERT THOMAS 

 v. 

CALPORTLAND COMPANY 

 Docket No. WEST 2018-402-DM 

Mine ID: 4503687 

43 FMSHRC Page 314
Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds sub. nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981). Citing several Supreme 

Court decisions,2

 the parties argued that the Pasula-Robinette standard conflicts with Supreme 

Court instruction that the ordinary meaning of “because” required application of the simple and 

traditional standard of “but-for causation.”3 Thomas v. CalPortland Co., 993 F.3d 1204, 1208-

09 (9th Cir. 2021). 

Applying step one of Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842–

44 (1984), the Circuit Court ultimately found the statute clear and rejected the Pasula-Robinette

standard of review concluding that the Supreme Court has instructed “that the word ‘because’ in 

a statutory cause of action requires a but-for causation analysis unless the text or context 

indicates otherwise.” 993 F.3d at 1211. It remanded the case to the Commission with instructions 

to apply the “but-for” causation analysis to Thomas’ claim of discrimination. Id. 

On June 7, 2021, the court issued its mandate in this matter, thereby returning the case to 

the Commission’s jurisdiction. Accordingly, we remand this matter to the Judge for 

reconsideration of Mr. Thomas’ claim of discrimination under the “but-for” causation standard 

consistent with the Ninth Circuit’s decision. 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

2 Burrage v. United States, 571 U.S. 204, 212-17 (2014); Univ. of Sw. Tex. Med. Ctr. v. 

Nassar, 570 U.S. 338, 346-60 (2013); Gross v. FBL Fin. Servs., 557 U.S. 167, 174-80 (2009). 

3

 At oral argument, however, Thomas changed his position and argued that the Court 

should apply the Pasula-Robinette standard instead. Thomas v. CalPortland Co., 993 F.3d 1204, 

1209 (9th Cir. 2021). 

43 FMSHRC Page 315
Chair Traynor, concurring in result only:

This case is already over. 

It began with a complaint filed by miner Robert Thomas alleging that CalPort 

discriminated against him for his exercise of protected rights in violation of the Mine Act. After 

a Commission Administrative Law Judge found that CalPort unlawfully discriminated against 

Thomas, CalPort filed a petition for discretionary review challenging the Judge’s decision on the 

ground that the miner had failed to establish a prima facie case of discrimination. 

On review, the Commission determined that the Judge erred in concluding that miner 

Thomas had established a prima facie case of discrimination. None of the five Commissioners 

found that protected activity in any way motivated Thomas's suspension and termination. Thus, 

the Commission unanimously reversed the judge’s decision for lack of any evidence of unlawful 

motivation.41 The Commission was unanimous in concluding that under any causation standard, 

the case must be dismissed. 

Thomas subsequently filed a petition for review of the Commission’s decision in the 

United States Court of Appeals for the Ninth Circuit on the grounds that the Commission had 

erred in its determination. Initially, Thomas joined Respondent CalPort’s assertion that the 

Commission’s long-standing precedent under Pasula-Robinette should no longer apply to section 

105(c) cases, claiming various Supreme Court holdings require application of some version of a 

“but-for” test when analyzing whether an adverse action is motivated by protected activity. 

Thomas v. CalPortland Co., 993 F.3d 1204, 1209 (9th Cir. 2021). At oral argument, however, 

Thomas changed his position and argued that the Court should apply the Pasula-Robinette

standard instead. Id. It is of great significance that the Secretary of Labor—the indispensable 

party charged with interpretation of the Mine Act—was not a party to this case and did not 

participate at any of the stages of this proceeding, including at argument before the Ninth Circuit. 

The Commission had unanimously ruled that there was no evidence whatsoever that 

CalPort’s termination of Thomas was motivated at all by protected activity. Thus, it is immaterial 

to the resolution of this case whether in future cases the Commission and Courts should require 

the Secretary to offer an interpretation of section 105 that replaces the Pasula-Robinette test with 

a more stringent “but-or” test of causation. We know with certainty that the miner in this case 

failed to introduce evidence that would satisfy any test of causation—from the Pasula-Robinette

test’s requirement of “some motivation” to the most stringent conceivable application of a “butfor” causation standard. The Commission found and the Ninth Circuit did not disagree that there 

is simply no evidence of causation in this case. Yet rather than affirm the Commission, the Court 

purported to “reverse” the Commission (even though it did not disagree with our review of the 

1

 The two concurring Commissioners explained that they had “considered whether 

Thomas’ putatively protected complaints about inadequate training and excessive work hours 

motivated in any way the same adverse action referenced in his administrative complaint - his 

suspension and ultimate termination” to conclude that “[a]long with the majority, we find no 

proof that they did.” 42 FMSHRC 43, 58 (Jan. 2020) (Jordan and Traynor, concurring) 

(emphasis added). 

43 FMSHRC Page 316
evidence in the case or our decision to dismiss it) in an opinion directing the Commission to 

revise its interpretation of section 105(c) as applied in discrimination cases and first announced 

in Pasula-Robinette. Unfortunately, that direction results from some confusion as to the role of 

the Secretary and Commission under the Mine Act’s somewhat unique split-enforcement 

scheme. 

The Ninth Circuit panel wrote that under the well-known Chevron doctrine it “need not 

consider the Commission’s interpretation because the statutory text is unambiguous.” 993 F.3d at 

1211. Of course, the Commission is not responsible for interpreting section 105(c) of the Mine 

Act, its role is to review the Secretary of Labor’s interpretation. “Since the Secretary of Labor is 

charged with responsibility for implementing this Act . . . the Secretary's interpretations of the 

law and regulations shall be given weight by both the Commission and the courts.” S. Rep. No. 

95-181, at 49 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 637 (1978). Because 

the Secretary has not yet proffered an interpretation of section 105(c) in light of case law 

purportedly requiring a ‘but-for’ standard of causation, the Ninth Circuit in this case did not (and 

could not have) correctly applied the Chevron doctrine in this case.2

 This confusion manifested 

itself again in the Court’s final direction to the Commission on remand in which they state that it 

“is for the Commission to apply the but-for standard to this case in the first instance on remand.” 

993 F.3d at 1211. Of course, it is not for the Commission but for the Secretary of Labor to 

interpret section 105(c) in the first instance. The Commission and Courts are to provide 

deferential review.3

The Secretary of Labor is not a party to this case, and this is therefore not an appropriate 

case to litigate or announce a revised interpretation of section 105(c), especially since this case 

can (and has been) resolved without engaging in such reinterpretation. The Commission has 

already unanimously held that this case should be dismissed for lack of evidence of unlawful 

motivation under any standard of causation—whether Pasula-Robinette, or some yet to be 

articulated version of the “but-for” test. The Ninth Circuit did not disagree. 

On remand, the Judge must be cautious not to usurp the Secretary’s role interpreting 

section 105(c). The Judge need not stray far from the Commission’s prior decision, undisturbed 

2

 The Court addressed the precise question of whether the existing legal standard for 

making a prima facie case under section 105(c)—the Pasula-Robinette standard—was 

incompatible with recent caselaw addressing the text of the Mine Act and answered in the 

affirmative. What the Court did not do (and could not have done) is apply Chevron review to the 

Secretary’s new interpretation of section 105(c) accommodating a but-for causation element. 

3

 We cannot in this litigation know how the Secretary might choose to interpret section 

105(c) in a future case in which he must demonstrate “but-for” causation to make out a prima 

facie case of discrimination. 

43 FMSHRC Page 317
by the Ninth Circuit’s review,5

 to demonstrate that Thomas’ complaint fails for lack of any

evidence of unlawful motivation under any conceivable formulation of the “but-for” causation 

requirement. But interpreting section 105(c) in the first instance to arrive at a new test for 

discrimination that includes a “but-for” causation requirement is the role of the Secretary, not the 

Judge, Commission or Courts. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

5

 The Court did not find any error with the Commission’s unanimous conclusion that the 

record in this case is devoid of any evidence that protected activity motivated the miner’s 

termination. 

43 FMSHRC Page 318
Distribution: 

Demian Camacho, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

350 South Figueroa Street, Suite 370 

Los Angeles, CA 90071-1202 

camacho.demian@dol.gov 

 

Brian P. Lundgren, Esq. 

Jackson Lewis P.C. 

520 Pike Street, Suite 2300 

Seattle, WA 98104 

brian.lundgren@jacksonlewis.com 

Colin F. McHugh, Esq. 

Navigate Law Group 

1310 Main Street 

Vancouver, WA 98660 

cmchugh@navigatelawgroup.com 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

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 

Nelson.April@dol.gov 

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 

Garris.Melanie@dol.gov 

43 FMSHRC Page 319
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 

mmiller@fmshrc.gov 

43 FMSHRC Page 320
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2536 

303-844-3577 FAX 303-844-5268

June 7, 2021 

DECISION 

Appearances: Winfield Ward Murray, Esq., U.S. Department of Labor, Office of the 

Solicitor, Atlanta, Georgia for Petitioner; 

Chris Sorrows, Vulcan Construction Materials LLC, Birmingham, 

Alabama, for Respondent. 

Before: Judge Manning 

I. INTRODUCTION

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Vulcan 

Construction Materials LLC (“Vulcan”) pursuant to sections 105 and 110 of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties 

presented testimony and documentary evidence at a video conference hearing and filed posthearing briefs. A single 104(a) citation with a total proposed penalty of $121.00 was adjudicated 

at the hearing. For reasons set forth below, I vacate the single citation at issue. 

Although I have not included a detailed summary of all evidence or each argument raised, 

I have fully considered all the evidence and arguments. Further, my findings are restricted to the 

particular facts of this case and carry no precedential value beyond the evidence presented. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 Petitioner 

v. 

VULCAN CONSTRUCTION 

 MATERIALS, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. SE 2020-0087-M 

A.C. No. 01-03143-504754

South Russellville Quarry 

43 FMSHRC Page 321
II. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

Vulcan operates the South Russellville Quarry (the “mine”), a surface limestone quarry in 

Franklin County, Alabama. On September 18, 2019, MSHA Inspector Tommy R. Wright 

conducted a routine inspection of the mine.1 Tr. 18. At the time of the inspection mine personnel 

were engaged in the process of stripping back material in order to have more rock to mine. Tr. 

19. Trucks and other mobile equipment were being used during the stripping process. 

At some point during the day Wright inspected the air brake system on a Mack water 

truck (the “truck” or the “water truck”).2 Tr. 20. Wright began the inspection by first having the 

driver move the truck onto a ramp, stop the truck with the service brake, and then set the parking 

brake to show that the brake would hold. Tr. 32. Both the service brake and parking brake held 

the truck on the ramp. Tr. 32, 68. 

Wright then had the driver move the truck to flat ground in order to test the brake system 

for air leaks. Tr. 32. After the wheels were scotched and the truck turned off, Wright instructed 

the driver to place his foot on the brake pedal. Tr. 32, 54-55. Wright then walked around the 

truck listening for air leaks. Tr. 33. After hearing the sound of air escaping from somewhere 

under the truck, Wright got down on his hands and knees, crawled toward the sound, and 

eventually used his finger to feel air coming out of a small hole on the brake chamber for the 

wheel on the right side of the rear most axle of the truck. 3 Tr. 33-34, 53-57, 63. According to 

1

 Inspector Wright has been with MSHA for over ten years. Tr. 11. Although Wright is 

currently employed as an electrical specialist, in September of 2019 he was a general mine 

inspector and routinely inspected pits, highwalls, mobile equipment, and plants, among other 

things. Tr. 11. Wright trained as a journeymen inspector at the Mine Safety Academy. Tr. 13. 

While at the Academy he received both classroom and hands-on training regarding how to 

examine brakes, including air brakes, for violations of the Secretary’s regulations. Tr. 14. 

Although Wright could not recall what model vehicle he was trained on, it was similar to the 

truck at issue in this proceeding. Tr. 44. Prior to working for MSHA, Wright spent 25 years in 

the coal mining industry and held jobs that required him to conduct maintenance, break down 

and rebuild mining equipment, troubleshoot and repair equipment components, and conduct preshift examinations when needed. Tr. 12-16. 

2

 The truck was being used to water the roads at the mine. Tr. 44. Wright testified that the 

truck is considered a self-propelled vehicle under MSHA regulations. Tr. 69. 

3

 Respondent’s cross-examination of Wright included questions about the inspector’s 

training and qualifications to inspect air brakes. Wright explained that he is trained to listen for 

audible air leaks when inspecting commercial motor vehicle air brake systems. Tr. 37-39. 

Although he could not say whether his Mine Academy training included instruction specific to 

Mack trucks like the one at issue, Wright confirmed that he was trained to examine, and 

conducted practice examinations of, similar trucks. Tr. 38-44; Ex. R-7. In response to questions 

about whether he made an air loss calculation, or completed a pressure threshold test, Wright 

explained that he is not required to do so. Tr. 61-62, 65-66. 

43 FMSHRC Page 322
Wright, the air being expelled from the hole was “continuous” and persisted the entire time the 

driver “pushed the brake pedal down and had it engaged.” Tr. 34-35, 54, 61. Wright agreed that 

the alleged leak did not start and stop as if the brakes were being pumped and “would go away” 

when the driver took his foot off the service brake pedal. Tr. 26, 34, 68. According to Wright, the 

chamber never sealed as it should have when the pedal was engaged. Tr. 66, 68-69. 

On cross-examination Wright conceded that, although he instructed the driver to put 

constant and consistent pressure on the brake pedal, he could not see the driver engaging the 

pedal during the test. Tr. 54-55. 

Wright testified that occasionally dirt accumulates around the diaphragm in air brake 

chambers. Tr. 35. As a result, he generally gives drivers an opportunity to pump the service 

brake pedal two to three times to expel any contaminates that may be in the chamber. Tr. 34-35. 

Although Wright testified that he gave the driver an opportunity to pump the brakes of the water 

truck, it is unclear whether the driver did so in this instance. Tr. 34-35. Nevertheless, according 

to Wright the alleged leak persisted, and the chamber did not seal. Tr. 35. In his experience, leaks 

only get worse over time. Tr. 34-35. 

At hearing, when shown a photograph of the subject brake chamber, Wright initially 

could not identify the hole from which air was escaping. Tr. 56, 58; Ex. P-2. However, Wright 

ultimately identified the “weep hole” on the brake chamber as the location from which air was 

being expelled but could not explain the purpose of the hole. Tr. 60, 66. Wright explained that 

“usually in a situation like that, [i.e., when air is coming out of a weep hole] it’s the diaphragm 

that’s busted or damaged.” Tr. 60-61. 

Based on what he saw and heard, Wright issued Citation No. 9428135 to Vulcan for an 

alleged violation of section 56.14101(a)(3), which requires that “[a]ll braking systems installed 

on the equipment shall be maintained in functional condition.” 30 C.F.R. § 56.14101(a)(3). 

Wright testified that the brake system was not being maintained in a functional condition because 

“the whole time that [the driver] had the foot brake pushed down, there was an audible air leak at 

this brake chamber.”4

 Tr. 20-23,26, 36. Wright testified that he relied on MSHA’s Program 

Policy Manual regarding section 56.14101(a)(3) when issuing the citation. Tr. 25; Ex. R-16. 

The Secretary’s Expert Witness 

The Secretary called Jonathan Hall as an expert witness. Hall is a mechanical engineer in 

MSHA’s Approval and Certification Center, which is part of the agency’s Technical Support 

Division.5

 Tr. 71. In addition to providing technical support to MSHA field personnel, Hall 

conducts accident investigations. Tr. 72. He has conducted approximately a dozen accident 

4

 Wright explained that he did not cite respondent under 56.14101(a)(1) or (a)(2) because 

the service brake and parking brake both held the truck on the ramp. Tr. 35-36. 

5

 Hall has a Bachelor of Science degree in mechanical engineering and is a registered 

professional engineer in the State of West Virginia. Tr. 73. Prior to working for MSHA, Hall was 

an engineer responsible for testing military equipment. Tr. 72-73. 

43 FMSHRC Page 323
investigations involving trucks with air brake systems. 6 Tr. 75. Hall testified that he is familiar 

with air brake systems like the one on the cited truck and has received on the job training for 

examining air brake systems and identifying defects.7

 Tr. 75, 92. 

Hall, both in his expert report and at hearing, provided an explanation of air brake system 

components and how they work.8

 Tr. 76; Ex. P-9. According to Hall each wheel has an air 

chamber or chambers, push rod, slack adjuster, S-Cam, brake pads, and brake drum. Tr. 78. Air 

chambers are canisters made up of two pieces of metal clamped together with an elastomeric 

rubberlike diaphragm inside. Tr. 78. In a dual air chamber system, like the one at issue in this 

case, the canister includes two chambers, one of which controls the parking brake while the other 

controls the service brake. Each chamber has its own diaphragm. Tr. 79. Air put into the parking 

brake chamber moves the diaphragm from one side of the chamber to the other in order to 

release the parking brake. Tr. 79-80. Air put into the service brake chamber similarly moves the 

service brake diaphragm from one side of the chamber to the other, which in turn causes the push 

rod to move. Tr. 78. The push rod rotates the slack adjuster and S-Cam and presses the brake 

pads against the inside of the brake drum. Tr. 78, 85. The brake pads pushing against the drum 

create friction and slow the rotating wheel. Tr. 78, 85. 

6

 Hall explained that an accident investigation is significantly more in-depth than a 

regular inspection because the vehicle has already been shown to have a fault or defect since it 

was involved in a serious or fatal accident. Tr. 101. Accident investigations, as opposed to 

regular inspections, often take days and involve multiple personnel, a check of both the “air side” 

and “mechanical side” of the brake system, the use of heavy equipment, and a review of 

manufacturer’s information and equipment operator manuals. Tr. 100-102, 112. Hall explained 

that, if a truck is still able to run following an accident, the investigation of the air brake system 

begins by conducting a pressure-holding test. Tr. 93. The pressure-holding test involves releasing 

the parking brake, allowing air to build up in the system until the compressor shuts off, and then 

holding down the service brake pedal to determine how much the pressure drops over a period of 

time. Tr. 106. The rate at which pressure is lost is then compared against the equipment 

manufacturer’s allowable air pressure loss rate to determine whether the system is losing 

pressure too fast and requires necessary repair. Tr. 93-94, 106, 107. Hall explained that, while 

the test verifies whether the air system can hold the necessary pressure, it does not determine 

whether the “wheel end” portion of the system is properly adjusted and can apply needed 

pressure to the wheel itself, nor does it necessarily show whether there is an air leak. Tr. 95, 107. 

To illustrate, Hall explained that you can have a small air leak that does not show up during the 

pressure-holding test and may not require the truck to be taken out of service immediately, but 

nevertheless still creates a problem. Tr. 95-96. 

7

 Hall’s on the job training included assembly, disassembly, testing and measuring of 

equipment components of trucks that were involved in accidents. Tr. 92-93. 

8 Prior to hearing Hall prepared an expert report that explained, generally, what truck air 

brakes are, how they work, the components of an air chamber, and problems that can be caused 

by air leaks in air brake systems. Tr. 76; Ex. P-9. 

43 FMSHRC Page 324
Hall explained that there are three possible sources for air leaks in an air chamber like the 

one at issue in this case. Tr. 80. First, air can leak from where the metal pieces of the chamber 

are clamped together. Tr. 80. Second, air can leak from the hoses that provide pressurized air to 

the chamber. Tr. 81-82. Third, air can leak through a damaged diaphragm. Tr. 82. On crossexamination Hall explained that, generally, one determines if there is a leak by listening for it. 

Tr. 96. While other tests can be used to find smaller leaks, the “rule of thumb” is that if you can 

hear a leak then there is some sort of problem within the braking system. Tr. 96, 113. 

Hall was not present at the time the citation was issued and did not examine the 

equipment. However, he reviewed the citation and was present during Wright’s testimony. Based 

on the data provided, Hall believed the most likely source of the alleged leak was a damaged 

diaphragm. Tr. 81-82, 86. Hall explained that diaphragms move every time the brake is applied 

and released. Tr. 82. Diaphragms wear out over time and eventually start to develop tears. Tr. 82, 

89. In addition, dirt that gets into the chamber through the weep hole can cause an abrasion and, 

over time, create a hole or tear in the diaphragm. Tr. 82. 

Hall explained that the weep hole allows air to exit the chamber when the diaphragm 

moves from one side to the other.9

 Tr. 83. Each time the brakes are applied or released the 

diaphragm moves from one side of the chamber to the other and there should be a brief, 

momentary movement of air through the weep hole. Tr. 82, 109, 111. When the brake is applied 

the chamber becomes pressurized, the diaphragm moves from one side to the other and air is 

expelled from the weep hole. Tr. 83, 109. When the brake is released air travels the other way 

through the weep hole. Tr. 83, 109-110. On cross-examination Hall agreed that any fluctuation in 

the treadle actuated by the brake pedal, will cause the system to exhaust air. Tr. 112, 114. 

According to Hall, air brake systems are designed and intended to be airtight and there 

should never be a continuous release of air from an air brake chamber or air brake system. Tr. 

83, 88, 107. Air brake systems are “designed to work with a certain given air pressure at a certain 

amount of energy.” Tr. 80, 83, 88. An air leak removes energy from the system and prevents it 

from working the way it was designed and intended to work. Tr. 80, 83, 88-89. Here, according 

to Hall, the continuous air leak was a defect, or shortcoming of the air brake system. Tr. 86. 

Continuous air leaks do not go away and, in Hall’s opinion, only get worse over time. Tr. 87, 89-

90. 

Vulcan’s Expert Witness 

Marty Rolfe was Vulcan’s sole witness and testified as an expert. Rolfe has a degree in 

occupational safety and health from Columbia Southern University, currently works in Vulcan’s 

safety and health department, and serves as the DOT representative for the company’s southeast 

division.10 Tr. 118-119; Ex. R-24 p. 312. His responsibilities include, among other things, 

9

 In this instance the brake chamber is mounted vertically on the truck, so the diaphragm 

moves up and down, but the operation of the chamber is the same. Tr. 141. 

 10 Prior to working for Vulcan, Rolfe held several positions in which he was responsible 

for addressing issues related to regulatory compliance of commercial motor vehicles. Tr. 120-

122; Ex. R-23. 

43 FMSHRC Page 325
maintaining Vulcan’s commercial motor vehicle (“CMV”) inspection schedule and regulatory 

qualification files for all company personnel who conduct air brake inspections and conducting 

risk investigations on vehicles that travel between mine sites. Tr. 119. Rolfe has 19 years of 

experience as a certified CMV air brake inspector11 and specializes in the application and 

enforcement of regulations under Title 49 C.F.R. Parts 40 and 300-399.12

Rolfe testified that a threshold pressure test is the first step of any air brake inspection. 

Tr. 126, 134. The threshold pressure test is an industry standard test which enables an air brake 

inspector to calculate an air loss rate for the brake system.13 Tr. 126, 135. The air loss rate is then 

compared to an allowable air loss rate to determine if the air system is functioning or the vehicle 

needs to be taken out of service.14 Tr. 126-127, 134, 136. According to Rolfe, the threshold 

pressure test determines if there is a leak you need to find and correct. Tr. 126-127. 

While Rolfe agreed that there should not be a continuous air leak from a brake chamber 

while the brake pedal is engaged, he explained that what sounds like an air leak may be the 

normal operation of the air brake system rather than the result of a defective leak. Tr. 130, 154-

155. Air systems are not completely airtight and have multiple exhaust ports and ways to vent air 

in order to protect the system and ensure proper operation. Tr. 130, 138-139. According to Rolfe, 

if a leak is audible then the system will fail the threshold pressure test. Tr. 135. Moreover, the 

threshold pressure test will tell you if a leak exists or if the system is still settling and exhausting 

by design. Tr. 144. 

Although Rolfe was not present at the time Wright inspected the truck and did not 

witness the alleged leak, he did have an opportunity to inspect the truck at issue.15 Tr. 136, 153-

154. Rolfe agreed that the alleged defect was at the weep hole. Tr. 133-134. He explained that a 

11 Rolfe is certified to inspect CMVs through both North American Standard and the 

FMCSA. Tr. 116; Ex. R-24. He testified that additional knowledge, training and experience 

requirements must be met to qualify as a CMV air brake inspector. Tr. 117. 

12 Rolfe testified that 49 C.F.R. contains the “only governmental regulations that exist” 

when inspecting a CMV. Tr. 131. These are regulations issued by the Department of 

Transportation.

13 The threshold pressure test is conducted from the seat of the truck. Tr. 135. The person 

conducting the test watches the air brake system gauge to determine the drop in system pressure, 

calculated in PSI, over the course of one minute. Tr. 136. I note that this test, as described by 

Rolfe, seems to be the same as the “pressure-holding test” described by Hall and utilized during 

MSHA accident investigations. 

14 The allowable air loss rate is set by the manufacturer. Tr. 126. Most manufacturers 

follow an industry standard. Tr. 126. 

15 At hearing, when presented with a picture of the chamber at issue, Rolfe easily 

identified it as a “Clamp Type 30 brake chamber in the vertical position” with a “standard type 

stroke chamber,” and provided a detailed explanation of the various parts of the chamber. Tr. 

141-143; Ex. R-1 p. 6. 

43 FMSHRC Page 326
weep hole allows air to escape from a brake chamber when the diaphragm moves forward, 

thereby preventing pressure buildup that would prevent necessary movement of the diaphragm. 

Tr. 138-140, 142. While Rolfe generally agreed with Hall’s testimony regarding how air brake 

systems and air brake chambers work,16 he took issue with Hall’s explanation of how long air 

may vent from a weep hole. Tr. 134. Specifically, he stated that “because you can’t see the 

diaphragm - it’s an internal piece of a component ... - you can’t determine how much air or how 

long it’s going to vent. ... You have to allow for the settling of all those components because you 

don't know how fast those diaphragms are going to move forward.” Tr. 134. Further, he 

explained that any fluctuation in the treadle valve will release air from the weep hole. Tr. 140. 

Rolfe opined that, had the diaphragm been “busted” as Wright alleged, there would have 

been no question about it and, given that there was 100 to 120 PSI on the pressurized side of the 

diaphragm, there would have been a “trumpet” sound coming from the chamber, which there was 

not. Tr. 143-144; Ex. R-5. p. 23. 

Citation No. 9428135 

Citation No. 9428135, issued under section 104(a) of the Mine Act on September 18, 

2019, alleges a violation of Section 56.14101(a)(3) of the Secretary’s safety standards. The 

Condition or Practice section of the citation states as follows: 

The braking system on the in use Mack water truck, Co. 66039, 

located at water tank fill up, is not being maintained in a functional 

condition. When tested the right rear tandem brake chamber has an 

audible air leak present when the brake paddle is engaged. The truck 

is used multiple times throughout the day to water mines roads. 

Employees working in and around this equipment were exposed to 

the possibility of injury, if the brakes were to fail. The truck passed 

a brake test, making the chance of an accident unlikely. 

Inspector Tommy Wright determined that an injury was unlikely to be sustained, but that 

if an injury were sustained it could reasonably be expected to result in lost workdays or restricted 

duty. Wright further determined that the cited condition was not S&S, affected one person, and 

was the result of Respondent’s low negligence. The Secretary proposed a penalty of $121.00 for 

this alleged violation. Vulcan replaced the brake chamber to abate the citation. 

Fact of Violation 

Brief Summary of the Parties’ Arguments 

The Secretary argues that Vulcan violated the cited standard because an audible air leak 

from the brake chamber indicated that the air brake system was not being maintained in a 

functional condition. Sec’y Br. 9. The Secretary cites the Commission’s decision in Daanen v. 

Janssen, 20 FMSHRC 189 (Mar. 1998) and argues that a violation of 56.14103(a)(3) exists when 

16 Rolfe explained that the service brake chamber is where pneumatic energy is turned in 

to mechanical energy. Tr. 142. 

43 FMSHRC Page 327
a component of a braking system is not maintained in the functional condition. Sec’y Br. 12-14. 

The brake chamber was a component of the braking system. According to the Secretary the 

continuous air leak from the chamber indicated a defect in the chamber and that the brake system 

was not being maintained in a functional condition. Id. at 9-10. 

Vulcan asserts that the citation should be vacated because the issuing inspector lacked the 

knowledge, training and education necessary to conduct a proper air brake inspection and failed 

to conduct a proper inspection in this instance.17 Vulcan Br. 1-8. Moreover, Respondent argues 

that air brake systems are designed to exhaust air from the location where the alleged leak was 

observed and that the test, as administered by the inspector, did not establish that there was a 

defect in the system. Vulcan Br. 9-10. 

Discussion 

Section 56.14101(a)(3) requires that “[a]ll braking systems installed on the equipment 

shall be maintained in functional condition.” 30 C.F.R. § 56.14101(a)(3). The Commission’s 

decision in Daanen & Janssen, 20 FMSHRC 189 (Mar. 1998) is controlling in cases involving 

citations issued for alleged violations of section 56.14101(a)(3). 

In Daanen the Commission concluded that section 56.14103(a)(3) was ambiguous 

because it supported “at least two plausible and divergent interpretations.”18 Id. at 192. There the 

Secretary submitted an interpretation of the standard that “mandates a finding of violation when 

a component of the braking system is not maintained in functional condition, regardless whether 

the braking system is capable of stopping and holding the vehicle.” Id. In finding that the 

17 Respondent primarily argues that the water truck was a commercial motor vehicle 

subject to DOT regulations, and that the inspector failed to have the “minimal qualifications” 

necessary to conduct a proper air brake inspection under those regulations. Vulcan Br. 1-6. 

However, Respondent cites no authority for the proposition that MSHA has either incorporated 

DOT standards in its enforcement scheme, or that DOT regulations in any way preempt MSHA’s 

mandatory safety standards. Absent specific authority on these issues, I reject Respondent’s 

arguments regarding the applicability of DOT regulations to the case at hand. See Williams 

Natural Gas Company, 19 FMSHRC 1863, 1869 (Dec. 1997) (Discussing lack of specific 

authority regarding DOT preemption of regulations promulgated under the Mine Act). Moreover, 

although Wright may have lacked the knowledge, training and education to be a DOT certified 

air brake inspector, I find that nothing in the record suggests that he was not an authorized 

representative of the Secretary qualified to conduct inspections and issue enforcement actions for 

violations of mine safety and health standards including section 56.14101(a). 

18 The Secretary, in his brief, mistakenly states that the “Commission found that the 

language of . . . [the subject standard] was not ambiguous because the Secretary’s interpretation 

was reasonable as it is consistent with the language of the regulation.” Sec’y Br .13 (emphasis 

added). In fact, the Commission in Daanen found that the language subject standard was 

ambiguous before turning to the question of whether the Secretary’s interpretation was 

reasonable and entitled to deference. 20 FMSHRC at 192-193. 

43 FMSHRC Page 328
Secretary’s interpretation was reasonable and entitled to deference the Commission cited four 

specific reasons. 

First, the Commission found that the Secretary’s interpretation was consistent with the 

language of the standard. The standard’s use of the term “system” contemplated an 

“interrelationship of component parts.” Id. at 193. As a result, the Commission determined that 

for a braking system “to be considered functional, each of its component parts must be 

functional.” Id. 

Second, the Secretary’s interpretation was consistent with the Mine Act’s goal of 

promoting miner safety. Id. The Commission reasoned that “[b]y allowing a citation to issue 

before the entire braking system fails, the Secretary's interpretation is preventive and seeks to 

cure equipment defects before serious accident occur.” Id. 

Third, the Commission found that the Secretary had consistently applied the proffered 

interpretation. Id. at 194. The Secretary’s Program Policy Manual explicitly states that a citation 

should be issued under the standard “if a component or portion of any braking system on the 

equipment is not maintained in functional condition even though the braking system is in 

compliance with” subsections (1) and (2) of 56.14101(a). Id. 

Finally, the Commission stated that the Secretary’s “interpretation gives independent 

meaning to each part: subsection (1) is a [service brake] performance standard, while subsection 

(3) is a maintenance standard.” Id. The Commission noted that if a citation could only be issued 

under subsection (3) when the braking system failed to stop and hold equipment, then there 

would be no difference between the two subsections. Id. 

Consistent with the Commission’s holding in Daanen, I find that in order to establish a 

violation of section 56.14101(a)(3) the Secretary must prove that a component of the air brake 

system on the water truck was not maintained in a functional condition, regardless whether the 

braking system was capable of stopping and holding the vehicle.19,20 

19 Respondent contends that Daanen is inapplicable to the case at hand. Vulcan Br. 5. I 

disagree. Respondent’s argument rests entirely on factual differences between the two cases. Id. 

While the facts of the two cases are not identical, the Commission in Daanen made clear that the 

Secretary’s interpretation of the standard was reasonable, and that a violation will be proven if 

the Secretary can establish that a component of a braking system is not maintained in a 

functional condition. 

20 Much of Respondent’s evidence was presented as if the Secretary were charging 

Respondent with a violation of section 56.14101(a)(1) or (a)(2), i.e., for failing to pass the 

parking brake or service brake performance tests. However, Wright testified that the truck passed 

both performance tests and, as a result, issued the citation for an alleged violation of 

56.14101(a)(3) pursuant to the guidance in MSHA’s Program Policy Manual. In Daanen the 

Commission endorsed this approach by citing the Program Policy Manual as support for the 

Secretary’s consistent application of the standard. 20 FMSHRC at 194. 

43 FMSHRC Page 329
For reasons set forth below I find that while the air brake chamber on the water truck is a 

component of the braking system, the Secretary failed to prove by a preponderance of the 

evidence21 that the chamber and, in turn, the brake system, was not being maintained in a 

functional condition. 

I find that the air brake chamber is a critical component of the braking system on the 

water truck, which is clearly self-propelled mobile equipment. This fact was not disputed by the 

parties. Consequently, the air brake chamber must be maintained in functional condition for the 

truck’s braking system to be considered functional. See Daanen at 193. 

I find that the Secretary failed to establish that the air brake chamber was not being 

maintained in a functional condition. I credit Wright’s testimony that he heard and felt air being 

expelled from the weep hole. However, I find that the Secretary failed to prove by a 

preponderance of the evidence that the air brake chamber and, in turn, the air brake system, was 

not being maintained in a functional conduction. In reaching this conclusion I have relied on four 

critical pieces of evidence. 

 First, both expert witnesses agreed that a weep hole’s purpose is to exhaust air from the 

air brake chamber during normal operation. Accordingly, observing air being expelled from a 

weep hole does not by itself establish that a chamber is not being maintained in a functional 

condition.22 In order to prove a violation in this instance the Secretary also must establish that a 

defect, or shortcoming, in the chamber was the source of the air Wright observed being expelled 

from the weep hole. 

Second, neither of the Secretary’s witnesses could identify the source of the air being 

expelled from the weep hole with any level of the certainty. While both Wright and Hall posited 

that a damaged diaphragm was the likely source of the alleged leak, their testimony on this point 

was almost entirely speculative. Neither Wright nor Hall viewed the diaphragm or saw any 

21 The Secretary bears the burden of proving a violation by a “preponderance of the 

evidence.” RAG Cumberland Resources Corp., 22 FMSHRC 1066, 1070 (Sept. 2000). In order 

to satisfy this burden, the Secretary must convince the court that the existence of a fact is more 

probable than not. Id. Under certain circumstances the Secretary may establish a violation by 

inference, but only when the inference is inherently reasonable and there is a rational connection 

between the evidentiary facts and the conclusion inferred. Mid-Continent Resources, 6 FMSHRC 

1132, 1138 (May 1984). “If the Secretary fails to meet this burden then there is no violation, 

irrespective of any counterarguments.” Sims Crane, 41 FMSHRC 393, 396 (July 2019). 

22 The Secretary, in his brief, cites Grace Pacific Corp., 35 FMSHRC 3722 (Dec. 2013) 

(ALJ) and seemingly argues that an audible air leak by itself evidences an equipment defect. 

Sec’y Br. 15. However, the inspector in Grace Pacific both heard an audible air leak and 

calculated an air loss rate. Id. at 3273. Moreover, there the ALJ relied at least in part on the air 

loss rate calculation in finding that a violation existed. Id. at 3274 (“Given that the psi was lower 

than the acceptable level, leaving the brakes ineffective, I find that the brakes were not 

maintained in functional condition and a violation has been shown.”). 

43 FMSHRC Page 330
damage to the diaphragm.23 Rather, in reaching their conclusion that the diaphragm was likely 

damaged, they relied almost exclusively on Wright’s observation that there was a “continuous” 

release of air from the weep hole, which, according to them, indicated a leak. However, Wright 

offered very little context as to what he meant by stating that the release was “continuous.”24 

While Wright and Hall testified that air should exhaust from the weep hole for only a brief 

moment when the brake is depressed before the diaphragm seals, Rolfe offered testimony 

disputing that fact. According to Rolfe, who unlike Secretary’s expert had an opportunity to 

examine the truck after the citation issued, it is impossible to determine how long air will vent 

from a weep hole. He explained that air brake chamber diaphragms are internal components that 

cannot be seen. As a result, it is impossible to tell how fast a diaphragm is moving or how long 

air will vent from a weep hole. I find Rolfe’s testimony on this issue to be both compelling and 

credible. While his testimony does not conclusively establish that the air brake chamber was 

being maintained in a functional condition, it does provide a credible alternative explanation for 

why the chamber did not seal as fast as Wright may have expected. 

Third, both experts agreed that any fluctuation in the brake pedal could release air from 

the system.25 Therefore it is critical that there be no fluctuation of the brake pedal during a test 

which seeks to discover whether there are leaks in the air brake system. Otherwise air being 

properly expelled from the system could be mistaken for a leak. For reasons that follow, I find 

that the Secretary failed to establish that during the test administered by Wright there was no 

fluctuation in the brake pedal that controls the treadle valve. 

Fourth, it is unclear how the truck driver depressed the service brake pedal during the 

test. While I credit Wright’s testimony that he instructed the driver to maintain constant and 

consistent pressure on the brake pedal during the test, it is unclear whether the brake was applied 

in such a way. Wright agreed that he was unable to observe the driver during the test. Moreover, 

the record is devoid of evidence that after he heard air being expelled from the weep hole Wright 

asked the driver whether he continuously depressed the pedal as instructed. 26 Given that any 

23 Hall, who offered the more substantive testimony on this topic, was not present at the 

time of the inspection, did not hear the alleged air leak, and never examined the subject brake 

chamber. 

24 Outside of statements that air was expelled from the chamber the entire time the brake 

pedal was depressed, Wright offered little context as to what he meant by saying that the alleged 

leak was “continuous” or “constant.” Notably, he did not testify to the duration of time that the 

brake pedal was depressed. 

25 Although neither party offered a detailed explanation of the treadle valve, the court 

understands that the treadle valve is connected to the service brake foot pedal and controls the 

amount of air pressure delivered to the brake chamber. As a result, fluctuations in pressure to the 

brake pedal necessarily means that air is moving through the treadle valve to the brake chamber. 

26 Indeed, Wright left open the possibility that the brake pedal was not fully depressed 

during the entire test. When Wright was asked on cross whether he knew for a fact that the driver 

applied consistent pressure to the brake pedal, he responded by saying that “if he didn’t [apply 

(continued...) 

43 FMSHRC Page 331
fluctuation in the brake pedal would send air through the treadle valve to the brake chamber, it 

was critical that the test administered by Wright be carried out in a very specific way in order to 

ensure that air being correctly expelled from the system would not be mistaken for a leak. Here, I 

find that the Secretary’s evidence is lacking with respect to how the brake pedal was depressed 

during the test and the evidence suggests that another plausible alternative explanation exists for 

why air was being expelled from the weep hole. 

Given the above analysis, I find that the Secretary failed to establish by a preponderance 

of the evidence that the air expelled from the weep hole indicated that the brake chamber and, in 

turn, the brake system, was not being maintained in a functional condition. Rolfe’s testimony 

regarding the inability to determine how long it may take for a properly functioning chamber to 

exhaust air from weep hole, the lack of more conclusive evidence regarding the source of the 

leak, and the failure to ensure that the test was properly administered by Wright all prevent me 

from making the inferential jump the Secretary’s evidence requires to uphold the citation. 

It is important that the parties recognize that that I am not finding that Respondent was in 

compliance with the cited standard. Rather, I find only that the Secretary failed to meet his 

burden of establishing the violation by a preponderance of the evidence. In reaching this 

conclusion I have not based my decision on the inspector’s alleged lack of training to conduct 

DOT inspections of commercial motor vehicles or his alleged failure to conduct the brake tests 

suggested by Vulcan. Consequently, the citation is vacated. 

III. ORDER 

For reasons set forth above, Citation No. 9428135 is VACATED. 

 /s/ Richard W. Manning 

Richard W. Manning 

Administrative Law Judge 

26 (...continued) 

consistent pressure], that would be [Vulcan’s] people not doing as they was (sic) asked.” Tr. 55. 

However, it is the Secretary’s burden at hearing to prove every element of the violation by a 

preponderance of the evidence. While it is unclear what happened in this instance, an inspector’s 

testimony that he gave someone an instruction does not conclusively establish that the instruction 

was followed. Similarly, failure to follow the instruction of an inspector does not prevent an 

operator from challenging whether the Secretary has met his burden. 

43 FMSHRC Page 332
Distribution: 

Winfield Ward Murray, Esq., United States Department of Labor, Office of the Solicitor, 61 

Forsyth Street, Suite 7T10, Atlanta, Georgia 30303 Email: (Murray.winfield.w@dol.gov) 

 

Brandon E. Russell, Conference and Litigation Representative, Mine Safety and Health 

Administration, 1030 London Drive, Suite 400, Birmingham, Alabama 35211 Email: 

(russell.brandon@dol.gov) 

Chris Sorrows and Autumn Graves, Vulcan Construction Materials, 1200 Urban Center Drive, 

Birmingham, AL 35242 Email: (sorrowsc@vmcmail.com hensleya@vmcmail.com) 

43 FMSHRC Page 333

ADMINISTRATIVE LAW JUDGE ORDERS
43 FMSHRC Page 334
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 

June 24, 2021 

ORDER GRANTING TEMPORARY REINSTATEMENT 

OF RYAN S. LEMLEY 

Before: Judge Lewis 

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 June 

8, 2021, filed an Application for Temporary Reinstatement of miner Ryan S. Lemley 

(“Complainant”) to his former position with Monongalia County Coal Resources Inc. 

(“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 June 8, 2021.

The Respondent has not filed a timely Request for Hearing. The parties submitted on June 23,

2021, a Joint Motion to Approve Settlement, which I approve herein.

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 Ryan S. Lemley 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 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of RYAN S. LEMLEY, 

 Complainant, 

v. 

MONONGALIA COUNTY COAL 

 RESOURCES, INC., 

 Respondent 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. PENN 2021-0087 

MSHA Case No.: MORG-CD-2021-05 

Mine: Monongalia County Mine 

Mine ID: 46-01968 

43 FMSHRC Page 335
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 Clarence Moore indicating that this was done (Exhibit “B.”) 

 Mr. Moore’s Declaration provides facts in support of the Secretary’s conclusion that the 

complaint was not frivolously brought, including: 

1. At all relevant times, Monongalia County Coal Resources Inc. was a Corporation 

and is a “person” as defined in section 3(f) of the Mine Act. 

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)). 

43 FMSHRC Page 336
2. Complainant was employed as a belt cleaner at MCCR’s Monongalia County Mine 

(46-01968), and therefore, was a “miner” within the meaning of section 3(g) of the 

Mine Act. 

3. Complainant was employed at the Mine for approximately seven years, from 2014 

until MCCR discharged him from employment on April 19, 2021.

4. On April 21, 2021, Complainant filed a discrimination complaint alleging that 

MCCR discharged him on April 19, 2021 in response to Complainant engaging in 

protected activity.

5. Complainant served on the Mine safety committee from June of 2016 through June 

of 2018, and or four months, Complainant held a belt examiner certification. During 

these and other times, and while conducting belt examinations, he discovered and 

reported safety issues. On several occasions, he filled out an entire page in an 

examination book with safety concerns and hazards. In several instances, he filed 

complaints with MSHA under section 103(g) of the Mine Act.

6. During his employment at the Mine, Complainant frequently accompanied federal 

and state mine inspectors as a Miners’ Representative during their inspections. 

During one such examination by a state inspector, Complainant pointed out an area 

of inadequate roof support for which the inspector issued the Mine a citation. On 

another occasion, Complainant advised an MSHA inspector that an emergency sled 

was not in the required location with the required equipment, and the MSHA 

inspector issued a citation to the Mine.

7. Complainant observed a “hot trolley hanger” in the Mine to which someone had 

run a hose to spray water to keep it cool. If the water was turned off for more than 

30 seconds, the hanger would start smoking and the plates in the top would turn 

red. Complainant noted that the Mine did not take any other steps to abate this 

obvious condition during the day shift and afternoon shift, and so he called the 

dispatcher to contact the UMWA and let them know of the situation. Following this 

report, the UMWA and MCCR worked out a suitable solution to address the hot 

hanger.

8. Complainant reported that MCCR engaged in a years-long pattern of harassing him 

due to his safety reporting and cooperation with government inspectors.

9. In an August 14, 2018 letter from the late Bob Murray to UMWA President, Murray 

identified Complainant as one of several out of control individuals at Murray 

Energy owned mines who used “constant safety allegations and 103(g) complaints” 

to “harass [the] company and its management.” 

10. Complainant was generally known by MCCR as a miner that would cooperate with 

government inspectors. Following a number of anonymous 103(g) complaints 

called in to MSHA, management began referring to Lemley as “‘G’ Lemley.” 

11. MCCR raised false allegations against Complainant for allegedly destroying a 

contractor’s belt equipment while working underground at the mine. Complainant 

was subsequently written up for poor work performance and suspended on the 

grounds that he allegedly failed to report an area of unsupported roof for which the 

Mine was cited by a state inspector. Complainant maintains that he, in fact, reported 

43 FMSHRC Page 337
the unsupported roof to the inspector. The suspension eventually proceeded to 

arbitration, and Complainant was restored to his position with back pay.

12. During a belt move in which Complainant reported several safety issues, a foreman 

encouraged Complainant to ignore the safety concerns. Complainant’s work was 

impeded and slowed due to the safety concerns, but he was able to complete the 

belt move. The following day, a foreman told Complainant that the Assistant 

Superintendent wanted to write Complainant up for poor work performance, 

impeding production, and not following safety protocols. However, the foreman 

purportedly refused to do so because Complainant’s safety concerns were accurate.

13. After Complainant’s report of the mis-located emergency sled to an MSHA 

inspector, a MCCR safety representative told him he would no longer be able to 

serve as a Miners’ Representative on inspections with him if Complainant was 

going to continue to point out safety concerns to inspectors.

14. Following an anonymous 103(g) complaint about non-compliant hardhat liners that 

MSHA substantiated and MCCR believed Complainant called in, a member of the 

Safety Department approached him daily for the next two weeks to ensure he had 

the proper hard hat liner.

15. Complainant also reported that MCCR assigned him to an especially hostile 

foreman who repeatedly threatened him and attempted to write Complainant up for 

taking equipment out of service, purposefully making mistakes, and creating a 

hostile workplace. Complainant also complains of being assigned to several less 

desirable positions during that time.

16. On March 20, 2021, Complainant reported five 103(g) safety complaints to MSHA 

which MSHA investigated on March 22 and issued citations substantiating all five 

complaints. While underground, Complainant asked a foreman, “What’s new?” to 

which the foreman responded, “Other than you calling in all these complaints?” 

The foreman informed Complainant that MCCR was not happy, and he showed 

Complainant the list of violations. Complainant stated that the complaints must 

have been legitimate because of the citations issued.

17. The Mine’s attendance policy distinguishes between personal and sick days, and 

provides for multiple levels of discipline for violations.

18. On April 2, 2021, the UMWA and MCCR reached a local agreement to use the 

miners’ second week of vacation this year as personal days, due to the mine ceasing 

operations and permanently closing late in 2021.

19. On April 9 and 10, 2021, Complainant missed work, apparently without 

management consent and without proving an illness with a doctor’s note.

20. On April 16, 2021, Complainant suffered an adverse action when MCCR 

suspended him with the intent to discharge him under the attendance policy. 

Complainant received no warning before his suspension and discharge, and he was 

not afforded an opportunity to use personal days or a combination of a personal day 

and a sick day for his two absences.

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21. On April 19, 2021, Complainant suffered an adverse action when MCCR 

discharged him from his employment at the Mine.

22. MCCR treated Complainant more harshly than another similarly situated miner 

who has never called in a 103(g) complaint and has never been accused of doing 

so. In March 2021, that miner missed work, and attempted to use a personal day, 

but he did not have any personal days left to use. The miner had previously received 

a warning for missing work. As this was an additional unexcused absence within a 

180 day time frame, MCCR issued a letter suspending the miner for two days. 

Subsequently, the miner was again absent from work without an excuse. Yet, 

although MCCR initially moved to discharge him, it did not do so. Instead, MCCR 

issued him a second suspension and allowed him miner to use a personal day for 

his March absence. In addition, the miner had previously violated the attendance 

policies more than once.

23. Based on my investigation to this date, I have concluded that there is reasonable 

cause to believe that MCCR discharged Ryan S. Lemley because he engaged in 

protected activities. MCCR had knowledge of Complainant’s protected activities, 

it demonstrated animus towards Complainant regarding his protected activities, it 

disparately treated Complainant, and there was a short time between the latest 

protected activity and the adverse action. Thus, there is reason to believe that 

MCCR’s decision to discharge Complainant was based, at least in part, upon his 

protected activity, and I have concluded that the complaint filed by Ryan S. Lemley 

is not frivolous.

Dec. of Clarence W. Moore, June 8, 2021 (Ex. “B” 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 Ryan S. 

Lemley is entitled to Temporary Reinstatement under the provisions of Section 105(c) of the 

Act. 

ORDER 

It is hereby ORDERED that Ryan S. Lemley be immediately TEMPORARILY 

REINSTATED according to the terms submitted by the parties in their Joint Motion to Approve 

Settlement. 

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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 (Via Certified Mail & E-mail) 

Ryan M. Kooi, Esq., U.S. Dept. of Labor, Office of Regional Solicitor, 1835 Market St., 

Mailstop SOL/22, Philadelphia, PA 19103-2968, Kooi.ryan.m@dol.gov 

Timothy J. Baker, Esq., UMWA, 18354 Quantico Gateway Dr., Suite 200, Triangle, VA 22172, 

tjbaker@umwa.org 

Philip K. Kontul, Esq., Ogletree, Deakins, Nash, Smoak & Stewart PC, One PPG Place, Suite 

1900, Pittsburgh, PA 15222, Philip.kontul@ogletree.com 

43 FMSHRC Page 340