**FEDERAL MINESAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OFADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC20004-1710

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

 
| SECRETARY  OF LABOR    U.S. DEPARTMENT OF LABOR obo    GEORGE RICE,

                            Complainant

 

                        v.

 

 

NALLY  & HAMILTON ENTERPRISES,

                            Respondent                                                                              |   |   | TEMPORARY  REINSTATEMENT     PROCEEDING

 

Docket  No. KENT 2022-0118

MSHA  Case No. BARB-CD-2022-03

 

 

 

Mine:  Meadow Branch Mine

Mine  ID: 15-19890

    |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

**ORDER GRANTINGTEMPORARY REINSTATEMENT**

 

Before:                        JudgeMcCarthy

 

This matter is before the undersigned on the Secretaryof Labor’s Application for Temporary Reinstatement filed on behalf of miner GeorgeRice pursuant to section 105(c) of the Federal Mine Safety and Health Act of1977, 30 U.S.C. § 801, et seq., as amended (“Act”), and 29 C.F.R.§ 2700.45. The Secretary seeks an order temporarily reinstating Rice tohis former position with Nally & Hamilton Enterprises pending the investigationand disposition of a Discrimination Complaint under section 105(c) of the Act. 

            OnJuly 18, 2022, Rice filed a Discrimination Complaint with MSHA. The Secretary foundthat the Complaint was not frivolously brought and filed an Application forTemporary Reinstatement (“Application”) on August 18, 2022. 

 

            OnAugust 24, 2022, Respondent filed a Request for Hearing. The undersigned held ahearing via Zoom for government on September 2, 2022. Witnesses were notsequestered as credibility is not at issue in a temporary reinstatementproceeding. *See, e.g.*,*Sec’y of Labor on behalf of Williamson v. CAMMining, LLC*, 31 FMSHRC 1085, 1089, 1091 (Oct. 2009). 

 

            Giventhe expedited nature of this proceeding, the undersigned did not allowpost-hearing briefs in this matter. However, Rice sent an email clarifying hisclosing arguments and adding additional support after the hearing. Theundersigned granted Respondent leave to submit—and Respondent submitted—aresponse.[1]

 

**I. Statement of the Case**

The Application alleges that Respondent violatedsection 105(c) when it fired Rice on July 15, 2022 for reporting safetyconcerns at the mine. App. at 2. 

Rice also alleges that he was fired for refusing towork in unsafe conditions in violation of section 105(c). Jt. Ex. 4 at 1; Tr.at 27. However, the Secretary’s Application does not allege that Respondentfired Rice because of a refusal to work. Because the Secretary demonstratesthat it did not frivolously bring the charge that Respondent fired Rice forreporting safety concerns—and this basis alone supports a grant of temporaryreinstatement—the undersigned does not need to address this additional allegedprotected activity by Rice.

As a remedy for firing Rice in violation of section105(c), the Application requests that the undersigned issue an Order ofTemporary Reinstatement to reinstate Rice to the position he held prior to hisfiring on July 15, 2022, or to a similar position at the same rate of pay, withthe same benefits, and with the same or equivalent duties assigned to him. App.at 2. 

**II. Testimony atHearing**

** **

At the hearing, the Secretary presented two witnesses:Rice and Freddie Fugate, the MSHA special investigator who investigated theComplaint. The Respondent presented one witness: Jake Napier. As explained morefully below, the undersigned does not make any credibility determinations inpresenting this evidence. The facts as presented here are merely an evaluationof the evidence to determine if the miner’s complaint was not frivolouslybrought. 

Rice began working for Respondent as a rock-truckdriver at Meadow Branch Mine in January 2022. Tr. at 20, 34, 59. Usually, Ricedrove truck #1427. *Id.* at 35. Sometime during the spring of 2022, theair conditioning in truck #1427 began malfunctioning. *Id.* at 37. Ricerepeatedly informed his foreman, Napier, that the air conditioning was notworking. *Id.* A mechanic worked on the air conditioning in truck #1427,but, each time, it would break again. *Id.* at 40-43. Each time the airconditioning was not working, Rice would report the broken air conditioning. *Id.*at 41-42. 

            Eventhough Rice worked the night shift, the truck would get so hot without airconditioning that on at least one occasion Rice had to stop the truck becausehe was close to passing out. *Id*. at 38, 43. On another occasion, thetruck was so hot that Rice became nauseated and vomited. *Id.* at 43. Atone point in June 2022, Rice recorded a temperature of 110o in the truck. *Id.*at 44. Napier admitted that such a temperature would represent a healthhazard. *Id.* at 137.

 

            Ricetestified that, at a certain point, Napier told Rice to tie open the door oftruck #1427 to mitigate the rising temperature. Tr. at 45. Napier denied thisbut admitted that doing so would not be safe. *Id.* at 121.

 

            Onor around July 13, 2022, Rice asked someone to call into the MSHA hotline toreport the broken air conditioning. *Id.* at 45-46. On July 14, 2022, MSHAinspected the mine and issued several citations. *Id.* at 94-96, 127. Onecitation was for the air conditioning in truck #1427. *Id.* at 95. 

            Thereafter,on the same day as the MSHA inspection, Rice showed up for the night shift andrepeated his safety concerns about the air conditioning in truck #1427. *Id.*at 47. Napier assigned him to drive truck #235. *Id.* at 48. While drivingtruck #235, Rice experienced steering that would break free to the point thatRice was unable to steer it around curves, and brakes that did not completelystop the truck. *Id.* at 49-51; *id.* at 53-54 (Rice could not get upthe hill in the truck and the brakes would not fully stop the truck as hebacked down the hill.). When Rice reported these safety concerns to Napier overthe CB radio, Napier responded in an unusual, mad tone and told Rice to “[j]ustgo on and get off the hill.” *Id.* at 55-56. Based on his 11- to 12-years’experience as a miner and knowledge of similar expressions in the miningindustry, Rice interpreted Napier’s response as a statement that Napier haddischarged him. *Id.* at 56-57, 83, 84-85. 

 

            Inopposition to the Application, Respondent alleged that Rice had voluntarily quitand that there was no adverse action. Napier denied having told Rice to get offthe hill and stated that he would not have fired Rice over the CB radio. Tr. at116, 127. Napier also testified that an employee, whom Napier had hired, toldhim that Rice had quit. *Id.* at 123, 126. Napier waited a week before reportingthat Rice was no longer working at the mine. *Id.* at 118-19.[2]

 

            Respondentalso noted that, after he was allegedly fired, Rice texted Napier about thetruck. *Id.* at 86. However, Napier testified that he did receive that textmessage. *Id.* at 130.

** **

**III. Legal Principlesand Analysis**

** **

Section 105(c)(2) of the Mine Act providesthat, as to claims of discrimination, “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.” During a temporaryreinstatement proceeding, a judge should not make credibility determinations,resolve testimonial conflicts, or weigh the operator’s evidence against theSecretary’s evidence. *Sec’y of Labor on behalf of Cook v. Rockwell Mining*,43 FMSHRC 157, 162 (Apr. 2021) (citations omitted). Rather, a judge in atemporary reinstatement proceeding should simply evaluate the Secretary’sevidence and determine whether the miner’s complaint appears to have merit. *Id.*at 161 (quoting *Williamson*, 31 FMSHRC at 1089).

 

During a temporary reinstatementproceeding, the Secretary need not prove a prima facie case of discrimination butmust simply prove a non-frivolous issue of discriminatory motivation foradverse action taken because of protected activity. *Rockwell Mining*,43 FMSHRC at 161. The Commission has held that the Secretary can establishsuch a non-frivolous causal nexus by showing operator knowledge of theprotected activity and temporal proximity between the protected activity andthe adverse action. *Sec’y of Labor on behalf of Stahl v. A&K EarthMovers Inc.*, 22 FMSHRC 323, 325-26 (Mar. 2000). 

Here, the Secretary has demonstrated that Rice’sComplaint was not frivolously brought. For purposes of this temporaryreinstatement proceeding, the Secretary has demonstrated a non-frivolous caseof discriminatory discharge, that is, protected activity by Rice, adverseaction taken against him by Respondent, and a causal nexus between the two. First,the Secretary has sufficiently demonstrated that Rice engaged in protectedactivity when he made safety and health complaints about the air conditioningin truck #1427 and safety complaints about the steering and brakes in truck#235. Tr. at 41-42, 49-51. Such complaints are protected under section105(c)(1). 

 

Second, the Secretary has sufficientlydemonstrated that the Complaint was not frivolously brought as to the issue ofadverse action. Based on his years of experience and knowledge of the miningindustry, Rice testified that he interpreted Napier’s intemperate directive to“[j]ust go on and get off the hill”—which was issued right after Rice complainedabout the steering and brakes in truck #235 and refused to drive that truck—as apronouncement that he had been discharged. Tr. at 56-57, 83, 84-85. Similarphrases have been found sufficient for finding an adverse action indiscrimination proceedings. *See* e.g., *Moses v. Whitley Dev. Corp.*,4 FMSHRC 1475, 1479 (Aug. 1982) (upholding judge’s finding, as supported by complainantand supervisor testimony, that “go on to the house” was “commonly used in coalfields as a synonym for discharge”). Consequently, Rice’s testimony that ForemanNapier told him in a mad and unusual tone to “[j]ust go on and get off the hill,”immediately after Rice complained about safety issues with truck #235, is sufficientto demonstrate a non-frivolous claim of adverse action. *Pennypower ShoppingNews, Inc., v. N.L.R.B.*, 726 F.2d 626, 629 (10th Cir.1984) (“The test ofwhether an employee has been discharged depends on the reasonable inferencesthat the *employee* could draw from the statements or conduct of theemployer.”).

 

Finally, the Secretary has also establisheda non-frivolous causal nexus between Rice’s protected activity and his discharge.Rice made repeated complaints about the air conditioning in truck #1427,including the complaint he made at the start of the shift during which he was allegedlyfired. Tr. at 47. Rice also made complaints during that same shift about thesteering and brakes in truck #235. *Id.* at 49-51. The Respondent wasaware of Rice’s repeated safety complaints, and the alleged adverse actionoccurred during the very same shift that Rice engaged in protected activity. Suchknowledge of protected activity and close temporal proximity between theprotected activity and alleged discharge are sufficient to establish anon-frivolous causal nexus that Rice was fired because of his protected activity.*Stahl*, 22 FMSHRC at 325-26.

 

The Secretary has demonstrated that the complaintwas not frivolously brought. 

 

**IV. Order**

 

For the foregoing reasons, Respondent Nally& Hamilton Enterprises is **ORDERED**to immediately reinstate GeorgeRice to the position he held immediately prior to his termination on or about July15, 2022, or, if that position is no longer available, to a substantiallyequivalent position at the same rate of pay, with the same benefits, and withthe same or equivalent duties assigned to him.

 

This Order ofTemporary Reinstatement is not open-ended. It will end upon final order on theunderlying discrimination complaint as set forth in section 105(c)(2) of theAct. 30 U.S.C. § 815(c)(2). Therefore, the Secretary must promptlydetermine whether he will file a complaint with the Commission under section105(c)(2) of the Act and so advise Rice, the Respondent, and this administrativetribunal.

 

 

 

 

/s/Thomas P. McCarthy

ThomasP. McCarthy

                                                                        AdministrativeLaw Judge

 

 

 

 

Distribution:

 

Thomas Hamilton

Nally & HamiltonEnterprises 

Saltsman Willett Deton &Hamilton, PSC

212 E. Stephen Foster Avenue

Bardstown, KY 40004 

sth@ky-atty.com

 

Tony Oppegard

P.O. Box 22446

Lexington, KY 40522

tonyoppegard@gmail.com

 

Wes Addington

Appalachian Citizens’ LawCenter

317 Main Street

Whitesburg, KY 41858

wes@aclc.org

 

Jennifer M. Tag

Office of the Solicitor

U. S. Department of Labor

618 Church Street

Suite 230

Nashville, Tennessee 37219 

Tag.Jennifer.M@dol.gov

----

[1] Complainant also fileda reply to Respondent’s reply. The undersigned did not consider this additionalfiling as the Commission’s procedural rules do not provide a basis for a replyto a reply, and no leave was given by the undersigned for such a filing.

[2] Because of thestandards for evaluating an application for temporary reinstatement, the undersigneddoes not need to address the merits of Respondent’s case in defense. *RockwellMining*, 43 FMSHRC at 162 (“[T]he Judge is not obligated to resolvetestimonial conflicts . . . . In addition, the Judge should notweigh the operator’s evidence against the Secretary’s evidence when determiningwhether to grant temporary reinstatement.”).