**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

7 PARKWAY CENTER, SUITE290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

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

 

 
| SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA) 

 obo JOHN COLLINS,

                           Complainant,

 

                        v.

 

CRIMSON OAK GROVE RESOURCES,

 LLC,

                           Respondent                                                                              |   |   | TEMPORARY REINSTATEMENT

PROCEEDING

 

Docket No. SE 2023-0235

MSHA No.: SE-MD-2023-09

 

 

 

Mine: Oak Grove Mine

Mine ID: 01-00851 |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**DECISION AND ORDER**

**REINSTATING JOHNCOLLINS**

 

Before:             Judge Lewis

 

On August 25, 2023, 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”) filed anApplication for Temporary Reinstatement of miner, John Collins (“Collins” or“Complainant”), to his former position with Crimson Oak Grove Resources, LLC (“OakGrove” or “Respondent”), at Oak Grove Mine pending final hearing anddisposition of the case.

 

That application followed a Discrimination Complaint timelyfiled by Collins on July 27, 2023, that alleged, in effect, that histermination was motivated by his protected activity. The Secretary representsthat this Complaint was not frivolously brought and requests an Order directingRespondent to reinstate Collins to his former position as a mobile equipmentoperator on the surface of the mine.

 

Respondent timely filed a motion requesting a hearingregarding this application on September 01, 2023. A remote hearing was held viaZoom on September 11, 2023, wherein the Secretary presented the testimony ofthe Complainant, and the Respondent had the opportunity to cross-examine theSecretary’s witness and present testimony and documentary evidence in supportof its position. 29 C.F.R. § 2700.45(d).

 

For the reasons set forth below, I grant the applicationand order the temporary reinstatement of Collins.

** **

**Contentions of the Parties**

 

On July 27, 2023, Collins filed a Discrimination Complaintwith MSHA alleging that on June 14, 2023, he was:

 

Ask[ed] to load [the] panline on a truck by my immediatesupervisor, Jeff Jamsion [sic]. I told him that I don’t feel comfortableloading the panline with my 250 Komatzu Loader. He told me we load pan all thetime with the Loader and I said I doesn’t [sic] feel comfortable loading withthe Loader again. Then he say [sic] load the panline Collins[.] Mike is at thedump[,] The truck is waiting to be loaded. I proceeded to load[.] The panlineloaded 1 piece of pan[.] The second piece[,] I went to approach the truck toload lift up [sic] and my Loader rock[ed] a little and then when I raise [sic] upmy forks[,] went to the ground and the back end comes [sic] off the ground 6 feetand slams down[,] jarring my back. Jeff Jamsion [sic] fill[ed] out a[n]incident report that day[,] June 14th. [On] June 23[,] I wascall[ed] to the office saying [sic] that they [were] investigating the incidentand I was suspended pending investigation on the equipment to he [sic] find outwhat’s wrong with the Loader. June 26th was a meeting [sic]suspension with intent to discharge [for failure] to care for myself andother’s and company property [sic]. July 21st[,] I was discharged bythe arbitrator. I want my job back with full backpay! [I] want this incidentclear off my record! 

 

*Applicationfor Temporary Reinstatement*at**ExhibitB, p. 2. 

 

TheSecretary also submitted the August 24, 2023, Affidavit of Michael LaRue, a specialinvestigator employed by the Mine Safety andHealth Administration with the Application. LaRue wrote that he investigated Collins’discrimination claim against Respondent. LaRue found and concluded thefollowing: 

 

2.a. At all relevant times, Respondent Crimson Oak Grove Resources, LLC (“OakGrove”) engaged in the operation of a coal or other mine and is, therefore, an “operator”withinthe meaning of Section 3(d) of the Act.

 

b.Oak Grove Mine (“the mine”), Mine ID 01-00851, located in Jefferson County, Alabama,has products that enter commerce and is, therefore, a “mine” within the meaningof Sections 3(b), 3(h), and 4 of the Act. Oak Grove operates the mine.

 

c.Collins worked for Oak Grove at the mine for the past nineteen (19) years. Forfifteen (15) years he worked underground as a motor man. Collins wastransferred to the surface and worked in the bathhouse since March of 2022. InFebruary 2023 Collins began working as a mobile equipment operator on thesurface of the mine. Collins is a “miner” within the meaning of Section 3(g) ofthe Act.

d.On Wednesday, June 14, 2023, Collins was told by his supervisor, Jeff Jamison(“Jamison”), to use a Komatsu 250 with fork attachments to load pan lines ontoa haul truck.

 

e.Collins expressed concern to Jamison about the weight of the pan lines beingtoo heavy for the Komatsu 250 – that the Komatsu 250 was not equipped to handlethe load. Jamison told Collins they “do it all the time.”

 

f.Collins again told Jamison he did not feel comfortable completing the task withthe Komatsu 250. Jamison advised Collins the Cat loader, a larger piece ofequipment, was not available for use for this task as it was being used byanother miner elsewhere at the mine.

 

g.For a third time Collins told Jamison he did not feel comfortable using the Komatsu250 for the task, as he felt it was an undersized piece of equipment. However,Collins also felt he could not further disagree with his supervisor. Jamisontold Collins to “just go ahead and load” the pan lines. Collins reluctantlybegan the task.

 

h.As Collins loaded the first pan line, he noticed the Komatsu 250 was unsteadywhen the forks were raised.

 

i.As Collins loaded the second pan line, he felt the rear tires of the Komatsu 250lift off of the ground. Collins stopped moving the Komatsu 250 in an effort tostabilize the equipment.

 

j.Collins then proceeded to lift up the forks carrying the second pan line. As theforks rose higher, the weight of the pan line caused the front-end loader totip forward. This caused the back tires of the Komatsu 250 to come off of theground approximately six (6) feet. The unsecured pan line slipped off of theforks and fell to the ground. The rear of the Komatsu 250 then slammed to theground onto the rear tires.

 

k.Collins continued to work the rest of the day, while another miner finished thejob of loading the pan lines with the Cat loader.

 

l.Collins filled out an accident report due to pain in his back as a result of theKomatsu 250 slamming to the ground.

 

m.On Friday, June 23, 2023, Collins was called to a meeting with the mine manager,Jesse Avery (“Avery”). Present with Avery were a union representative and ahuman resources representative. Collins was shown a video of the incident andadvised he was suspended pending investigation, with the intent to discharge.During the meeting Avery acknowledged Collins told Jamison about his safetyconcerns with using the Komatsu 250 for the task. Avery also advised theincident and video had just come across his desk, so while there was a delay intime since the incident, it was just brought to the attention of Avery.

 

n.On Monday, June 26, 2023, Collins was called to a meeting, this time with multiplerepresentatives from the mine, the union and human resources. Collins wasinformed he would continue to be suspended with the intent to discharge orpending the outcome of arbitration.

 

o.On Friday, July 21, 2023, Collins and Oak Grove appeared before an arbitratordue to Collins filing a grievance with the United Mine Workers of America.During the arbitration Jamison admitted that Collins voiced safety concerns toJamison about the task of loading the pan lines with the Komatsu 250. Thearbiter ruled in favor of the mine and Collins was verbally terminated.

 

p. Collins timely filed adiscrimination complaint with MSHA on Thursday, July 27, 2023 assertinghis termination was motivated by his reports of unsafe working conditions.

 

3. Based upon my investigationof these matters, I have concluded that Collins’ complaint of discriminationwas not frivolously brought.

 

*Id.*at Exhibit A, p. 1-4.The Secretary cited this declaration as a basis for the formal request fortemporary reinstatement. *Id.* at 1.

 

In its pre-hearing submission and during hearing,Respondent argued that Collins did not engage in protected activities, Tr. 107,and was instead discharged “because of the manner in which he negligentlyoperated a loader on June 14, 2023.” Resp. Req. for Hearing at 1. Respondent furtherargues that Collins had a documented history of conduct that led to equipmentbeing damaged, and that an arbitrator had affirmed Collins’ discharge,indicating that they had a legitimate reason to discharge him. *Id.*

 

Theparties jointly stipulated at hearing that the Administrative Law Judgehas jurisdiction over this proceeding. The Oak Grove Mine is a mine as definedby the Mine Act, that its products enter interstate commerce, and that at allrelevant times, John Collins was a miner as contemplated by the Mine Act. Tr.8.

 

**Summary of Testimony**

 

John Collins was a miner at the Oak Grove Mine, where hehad worked for 19 years. Tr. 20. He became a mobile equipment operator inFebruary of 2023 and worked six days per week. Tr. 21. Prior to working as aloader or mobile equipment operator, he had worked as an underground laborer, amotorman, and surface utility, which was in the bathhouse at the north portal.Tr. 21, 43. Collins described his work in the bathhouse as being janitorial,however he also used a loader in this position.[1] Tr. 23. He worked in that position forthree to four years. Tr. 23. At some point during his time at the bathhouse,Paul Jamison became Collins’ direct supervisor.[2] Tr. 23. Jamison was Collins’ directsupervisor for over a year in the bathhouse. Tr. 23. 

In 2016, Collins (who is Black) had filed an EEOC complaintafter Jamison spit on him. Tr. 23. As a result of the complaint, Collinsbelieves that Jamison was terminated. Tr. 23-24. Collins described hisrelationship with Jamison in 2021 as “better,” but said that he made complaintsto the general manager stating that he was not comfortable having Jamison as asupervisor. Tr. 24. He was told in response that no changes would be made. Tr.24. In 2022, Collins made further harassment and discrimination complaintsagainst Jamison, alleging that Jamison was picking on him. Tr. 24. Collinstestified that he tried to deal with the situation by simply following allorders that Jamison issued. Tr. 25. 

 

As a mobile equipment operator, Collins routinely operatedthe Komatsu 250 front-end loader, a piece of machinery with which he was “veryfamiliar,” describing it as “pretty much my assigned equipment to run.” Tr. 21-22,27, 48-49. Collins’ Certificate of Training was admitted as Respondent’sExhibit A. Tr. 49. Collins testified that it was issued after it was determinedthat he could operate the equipment listed.[3] Tr. 48. Based on his experience andexpertise, Collins testified that for the task of loading the pan lines, theKomatsu 250 was not the proper equipment. Tr. 27. 

 

In the middle of Collins’ shift on June 14, 2023, atapproximately 11:30 am, Jamison stopped Collins as he was coming from thebathhouse and ordered Collins to load the pan lines onto a truck. Tr. 25-26.Collins agreed to do so. Tr. 26. Jamison informed Collins that another employeewas using the Cat loader, which is a larger loader, and Collins told Jamisonthat he did not feel comfortable loading the pan line with the 250 Komatsuloader. Tr. 26. Jamison replied that they “do it all the time.” Tr. 26. Collinssaid that he understood, but repeated that he did not feel comfortable usingthe Komatsu loader for this task. Tr. 26. Jamison replied that the Cat loaderwas in use, “so I need you to go ahead and load the truck.” Tr. 26. Collinstold Jamison, “I’m going to tell you again, I don’t feel comfortable doing it,but I will go ahead and do it.” Tr. 26, 30. Collins testified that his tellingJamison that he did not feel comfortable using the Komatsu 250 loader to loadthe pan lines was his attempt to express that it was dangerous.[4] Tr. 28. 

 

On June 14, 2023, Collins had just come off a 35-daysuspension for a fender on a loader that got bent. Tr. 30, 52, 56. Collins wasconcerned that he could get suspended or lose his job for “any little thingthat happened,” so he followed Jamison’s orders despite feeling it was unsafe.[5] Tr.30.

 

Prior to June 14, 2023, Collins had loaded pan lines fiveor six times and usually used the Cat loader to load them. Tr. 22. Collinsdescribed the Cat loader as “heavy equipment” that was “stronger than the 250Komatsu.” Tr. 22. Prior to June 14, Collins had never used the Komatsu 250front-end loader to load pan lines onto a haul truck. Tr. 22.

 

On June 14, the Komatsu loader was configured with a forksystem, as depicted on page 42 of the Komatsu loader spec sheet.[6] Tr. 96.According to the spec sheet, the max tipping load was approximately 15,000pounds.[7]Tr. 98. The weight of the pan line was over 11,500 pounds.[8] Tr. 68; Resp.Ex. E. 

 

Collins testified that Jamison was aware that Collinsdidn’t use the 250 Komatsu loader to load pan lines because in the past when hehad to do so, he would switch the Komatsu loader for a co-worker’s Cat loader.Tr. 26. Collins explained that he did this because the Cat loader was astronger loader than the Komatsu. Tr. 26-27. Collins testified that this wasnot the first time Jamison tried to get Collins to load something heavy withthe Komatsu 250 loader, and that Collins had previously told him that it wasnot the right equipment. Tr. 27.

 

Collins testified that the pan line “can be loaded [withthe Komatsu 250 loader], but it’s dangerous.” Tr. 28. He explained that the panline is too heavy for the loader, causing the loader to rock. Tr. 28. Hetestified that he only used the Komatsu loader to dig out pan lines, but neverto lift them above a low level. Tr. 28. Once he would dig out the pan lines,Collins’ coworker would come with the Cat loader to load them onto the truck.Tr. 28. Jamison was aware that this was the normal way of loading the panlines, which is why he informed Collins that the Cat was unavailable on June 14.Tr. 29. 

Collins described lifting the pan lines on June 14. Tr. 30.Collins took his time and was able to lift the first pan line and get it “kindof level.” Tr. 30. However, the loader struggled in trying to lift the panline. Tr. 30-31. Collins testified that the “guy moving the wood” on the trucksaid “lift up.” Tr. 31. Collins lifted it, but when he could not lift it anyfurther, he “just set it down on there.” Tr. 31. He was able to lift the firstpan line onto the truck, but described it as “kind of scary.”[9] Tr.31. He testified that when he was lifting the first pan line, he knew that theKomatsu 250 “wasn’t a piece of equipment that could handle it...That’s why I saidI didn’t feel comfortable doing it.” Tr. 31.

 

After Collins loaded the first piece, Jamison left thelocation and did not see Collins load the second pan. Tr. 63. Collins then wentto get the second pan line and tried to load it. Tr. 31. He testified that hekept it low so it wouldn’t drop and that he tilted the load back when he got tothe truck. Tr. 31. He lifted the pan line slowly and then the heavy load “tookme straight down, and that’s when the back end come up.” Tr. 31. The pan linecame off the loader when the back end of the loader was lifted off the ground.Tr. 32. Collins testified that he could not have done anything differently oncethe load started to destabilize the loader. Tr. 31-32. “They said I could havedid [sic] something different. But at the – in the time in the moment, you’reoff the ground, I mean, I just try [sic] not to make no sudden move [sic] tohurt anybody. I didn’t want to hurt myself neither.”[10] Tr. 31-32.

After the pan line fell off the Komatsu loader, Collins hadno trouble driving it. Tr. 35. He did not notice any damage to the vehicle ortires. Tr. 35. He proceeded to drive toward the dump to get his coworker withthe Cat loader to help load the pan line onto the truck. Tr. 35. The task ofloading the pan line onto the truck was completed using the Cat loader. Tr. 36.

 

Collins testified that he spoke to Jamison approximately 5minutes after the pan line fell. Tr. 54. When Collins returned to the truck,Jamison had seen the pan line on the ground and asked Collins what hadhappened. Tr. 35. Collins responded, “I told you what was going to happen...Iknew it was going to happen, Jeff.”[11]Tr. 35. Jamison asked if Collins was okay and Collins responded, “Yeah, I thinkI’ll be all right.” Tr. 35. However, approximately five minutes later, Collinstold Jamison to fill out an incident report because he felt he had injured hislower back. Tr. 36. 

 

After watching the video, Jamison believed that Collinsproperly loaded the first pan, but that he could tell on the second pan thatthe pan line was not all the way against the mast on the forks and the forkswere not tipped back.[12]Tr. 64. Jamison testified that as one watches the video one can see that theback tires come off the ground a little as Collins was approaching the truck,leading Collins to stop and level it out. Tr. 65. Jamison testified thatbecause Collins did not straighten his load or tip it back more, the pan slidoff the forks. Tr. 65.

 

Jamison testified that when the back wheels of the loadercame off the ground, Collins “should have stopped, reevaluated his load and, ifnecessary, set it down and reposition[ed] it, and take[n] it back up andtilt[ed] it back.” Tr. 67. Instead, he testified that Collins stopped, “satthere for a few seconds, and then he continued on toward the truck and raisingthe pan.” Tr. 67. Jamison testified that the company felt that Collins “neglectedto do it the right way. He endangered himself and the equipment and everybodyaround him.” Tr. 67.

 

At some point after June 14, Eric Koontz was made aware byhuman resources that there was an incident involving Collins on the loader.[13]Tr. 89. He was shown a video and read the incident report and considered thoseactions as the start of the investigation. Tr. 89. Koontz spoke with Jamisonand “other operators.” Tr. 89. Koontz testified that he spoke with “every partyinvolved,” and decided to discharge Collins. Tr. 89-90.

 

Collins worked until June 23, when Jamison told Collins to seethe mine manager, Jesse Avery, about his injury after completing several tasks.Tr. 36-37. Present in the June 23 meeting were Collins, Avery, the unionrepresentative Anthony Davis, and the human resources representative ChadMcAtee. Tr. 37-38. During this meeting, Avery showed Collins the video of himloading the pan lines. Tr. 38-39. Avery told Collins that he “could have didthis and did that,” and Collins responded that “at the time in the moment...whenit’s in the air, ain’t [sic] too much you can do.” Tr. 39. Avery said Collinscould have loaded from the cable side, but Collins explained that the loadercan’t pick up from that side. Tr. 39. Avery continued to tell Collins that heshould have done something differently, but Collins responded that he was doingwhat his boss told him to do. Tr. 39. Collins told Avery that he had voicedconcerns to Jamison that he felt uncomfortable using the Komatsu loader for thetask. Tr. 39. Avery responded that it was not Jamison’s job to know whether theload is appropriate for the loader and to stop blaming him. Tr. 39. Unionrepresentatives at the meeting also argued that Collins should not bedischarged. Tr. 91-92. They viewed the video of the June 14 incident and didnot see Collins acting recklessly in any way. Tr. 100. They argued that theblame should have been on Jamison, but Koontz dismissed this argument. Tr. 92. 

 

Koontz asked Jamison about Collins’ statements that he wasnot comfortable using the Komatsu loader to load the pan and Jamison statedthat “post the suspension, once Mr. Collins returned, that he was using thatphrase as, like, an insurance policy for everything, basically...every task hewas assigned, ‘I’m not – I’m not comfortable with that.’” Tr. 92.[14]Koontz believed that the Komatsu loader was appropriate to loan pans becauseJamison has used it for that task. Tr. 92.

 

Collins asked Avery why so much time had passed between theaccident and the meeting, and Avery said that it just came across his desk. Tr.39-40. Jamison testified that he put the incident report in his truck and didn’tturn it in to human resources until a few days later. Tr. 77. The humanresources representative said that Collins could have hurt himself or someoneelse. Tr. 40. At the meeting, Avery suspended Collins pending an investigation.Tr. 40. 

 

On June 26, Collins was called to a meeting withrepresentatives from human resources present and Koontz on the phone. Tr. 40.Collins was told that he violated Rule Number 2 by being a danger to himselfand others in the accident with the pan line.[15] Tr. 40. Collins does not believe thathe had the second pan line loaded on the front-end forks in an unsafe manner.Tr. 40. He loaded it in the same manner that he had done previously. Tr. 41.Between June 26 and July 21, Collins remained on unpaid suspension. Tr. 41. 

 

Two previous incidents were discussed at hearing. On March23, 2023, Collins was unloading a truck with his coworker, and he hit it insome way leading to damage to the pump. Tr. 61. On April 13, 2023, the fenderand steps of the Komatsu loader were damaged, and Jamison had not been informedabout it. Tr. 62. Jamison testified that the evening shift operator pointed outthe damage so Jamison asked Collins about it the following day. Tr. 62-63.Collins initially denied causing the damage, but later admitted to it. Tr. 63.Tr. 84. Koontz was involved in the March and April investigations involvingCollins. Tr. 84. Koontz testified that he decided to pursue a discharge becauseof the two previous incidents and that he had offered Collins alternative work,and that Collins had become a risk to himself and others. Tr. 93. Koontztestified that he considered all aspects of the incident, including Collins’statements that he was uncomfortable, in making his discharge decision. Tr. 98.

 

On July 21, 2023, an arbitration was held and thearbitrator upheld Collins’ termination.[16] Tr. 41. Collins filed a Charge ofDiscrimination with the EEOC on July 27, 2023, alleging discrimination based onrace.[17]Tr. 51 In the section of the Charge titled, “The Particulars Are,” was the EEOCrepresentative’s summary of what Collins told them. Tr. 50-51. Collinstestified that he told the EEOC representative that he had voiced safetyconcerns to his supervisor. Tr. 57. Collins understood that the EEOC complaintfocused on the treatment he received as a result of him being Black. Tr. 57. 

 

**Analysis**

 

Section105(c) of the Mine Act, 30 U.S.C. § 815(c), prohibits discrimination againstminers for exercising any protected right under the Act. The purpose of thisprotection is to encourage miners “to play an active part in the enforcement ofthe Act,” in recognition of the fact that “if miners are to be encouraged to beactive in matters of safety and health they must be protected against ...discrimination which they might suffer as a result of their participation.” S.Rep. No. 95-181, 95th Cong. 1st Sess. 35 (1977), *reprinted in* SenateSubcomm. on Labor, Comm. on Human Res., 95th Cong. 2nd Sess., *LegislativeHistory of the Federal Mine Safety and Health Act of 1977*, at 623 (1978). Congresscreated the temporary reinstatement as “an essential protection for complainingminers who may not be in the financial position to suffer even a short periodof unemployment or reduced income pending the resolution of the discriminationcomplaint.” *Id.* at 624-25 (1978).

 

Section 105(c)(2) states inrelevant part that 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.” 30 U.S.C. § 815(c)(2).Following an investigation, “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.” *Id.* The Commission has stated that thescope of a temporary reinstatement proceeding is therefore “narrow, beinglimited to a determination by the judge as to whether a miner’s discriminationcomplaint is frivolously brought.” *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). 

 

In adopting section 105(c), Congress indicated that acomplaint is not frivolously brought if it “appears to have merit.” S. Rep. No.181, 95th Cong., 1st Sess. 36-37 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).“Courts have recognized that establishing ‘reasonable cause to believe’ that aviolation of the statute has occurred is a ‘relatively insubstantial’ burden.” *Sec’yof Labor on behalf of Ward v. Argus Energy WV, LLC*, 2012 WL 4026641, *3(Aug. 2012) citing *Schaub v. West Michigan Plumbing & Heating, Inc.*,250 F.3d 962, 969 (6th Cir. 2001).

 

As a result, temporary reinstatementhearings have traditionally been considered preliminary proceedings that werenarrow in scope. As such, neither the judge nor the Commission is to resolveconflicts in testimony at this stage of the case. *Sec**’**y ofLabor on behalf of Albu v. Chicopee Coal Co*., 21 FMSHRC 717, 719 (July1999). 

 

Ina temporary reinstatement hearing, a judge is tasked with evaluating theevidence of the Secretary’s case and determining whether the miner’s complaintappears to have merit. *Sec’y of Labor on behalf of Williamson v. CAM Mining,LLC*, 31 FMSHRC 1085, 1089 (Oct. 2009). The Secretary must prove only a non-frivolousissue of discrimination and need not make a full showing of its prima faciecase of discrimination. *Id*. at 1088. However, the Commission has statedthat it may be “useful to review the elements of a discrimination claim” whengauging whether a claim is nonfrivolous.[18]*Id*. Thoseelements include (1) that the complainant was engaged in a protected activityand (2) that the adverse action complained of was motivated in part by thatactivity. *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). The Secretarymay establish the motivational nexus betweenthe protected activity and the adverse action with indirect or circumstantialevidence such as (i) the employer’s knowledge of the protected activity, (ii)hostility or animus towards the protected activity, (iii) coincidence in timebetween the protected activity and the adverse action, and (iv) disparatetreatment of the complainant. *Sec’y of Labor on behalf of Chacon v. PhelpsDodge Corp*., 3 FMSHRC 2508, 2510 (Nov. 1981).

 

More recently, in *MSHA on behalfof Roger Cook v. Rockwell Mining*, 43 FMSHRC 157 (Apr. 2021), CommissionerRajkovich, writing for a two-Commissioner majority on evidentiary issues intemporary reinstatement proceedings, adopted what he termed, “the *Marion*approach.”[19] 43 FMSHRC 157, 165-166(Apr. 2021). As described by Commissioner Rajkovich, the Marion approachrequires the judge to “consider any evidence which is both relevant to theadverse action and does not require any credibility or value determinations.” *Id.*at 165. He explains that: 

 

The *Marion* approachalso gives operators a meaningful opportunity to provide undisputedevidence (i.e., evidence which does not require any credibility or valuedeterminations) that the complaint was frivolously brought... I hold that theJudge can consider evidence regarding allegations of a miner's unprotectedmisconduct to determine if the miner has a viable case. Such evidence may notserve as a basis for denial of reinstatement if it requires resolution of anactual credibility determination.

 

Id. at 165-166. As examples of such instances, CommissionerRajkovich explained:

 

Scenarios existwhere there is no conflicting evidence regarding the miner's unprotectedmisconduct, i.e., a scenario where the Judge is not presented with anycredibility or value determinations regarding the alleged misconduct. Forexample, a document, which both parties agree is genuine, may show that theoperator's decision to fire the miner was made in response to the miner'sunprotected misconduct and prior to any identified protected activity. Underthese circumstances, the Judge would not need to make any credibility or valuedeterminations regarding this document. And although the document wouldtechnically relate to an affirmative defense, it would strongly support acontention that there was no motivational nexus between the protected activityand the adverse action at issue. In this scenario I would find that the Judgecannot only consider the uncontroverted evidence regarding the miner'smisconduct but is required to consider such evidence when making his temporaryreinstatement determination.

 

*Id.* at 166. Notably, Commissioner Rajkovich did notadopt the confusing legal standard discussed in the separate opinion in *MarionCounty Coal Co*., which stated that “The burden of proof in a temporaryreinstatement case, therefore, contains two legal standards: “preponderance ofthe evidence” and “non-frivolous.”” 40 FMSHRC 39, 46 (Feb. 2018) (separateopinion of Commissioners Althen and Young).[20] This stacking of burdensis confusing,[21] without precedent,[22]and unworkable at the trial level. When applying the preponderance of theevidence standard, it is required that there be meaningful discovery such thata trier of fact can truly weigh the totality of the evidence. However, atemporary reinstatement proceeding is so preliminary that there is usuallylittle discovery or exchange of evidence.

 

**Findingsand conclusions**

** **

*ProtectedActivity and Adverse Employment Action*

 

            As discussed *supra*, to obtain a temporaryreinstatement a miner must raise a non-frivolous claim that he engaged inprotected activity with an arguable connection, or nexus, to an adverseemployment action. The initial issue here is whether Collins engaged inactivity that triggered those protections. 

 

            On June 14, 2023, Collins was ordered to use apiece of machinery for a task which he in good faith believed was unsafe. Hetold his supervisor, Paul Jamison, that he did not feel comfortable loading thepan line with the Komatsu loader, and his supervisor was dismissive of hiscomplaint. Tr. 26. Collins repeated his statement that he was uncomfortableusing the Komatsu loader for the task, and his supervisor told him that thelarger loader was in use, so he would have to do so. Tr. 26. Collins told hissupervisor a third time that he did not feel comfortable using the Komatsuloader to load the pans, but that he would relent. Tr. 26, 30. Collinstestified that he had previously told his supervisor that he did not feelcomfortable using the Komatsu loader to load pan lines and that he alwaysswitched it out for the larger Cat loader when loading pan lines. Tr. 26.

 

These repeated statements in thecontext of the work that was being ordered and Collins’ previous refusals touse the Komatsu loader to load pan lines constituted the protected activity ofmaking safety complaints. Despite Jamison and Koontz’s assertions at hearingthat Collins did not invoke his miner’s rights, a miner need not stateexplicitly that he is invoking his 105(c) rights under the Mine Act. It isenough that the miner reasonably intended for his statements to be safetyrelated, which in this case Collins did. Tr. 30, 31. It is of no moment thatJamison and Koontz were dismissive of Collins’ safety complaints as attempts toget out of work. If a miner tells his supervisor that he is not comfortableperforming a task involving heavy machinery where someone could be injured—andin this case someone was—it is incumbent that management take those concernsseriously. 

 

Respondent referred to evidence inthe form of testimony, photos, a video, and machinery spec sheet that attemptedto show that it was safe to use the Komatsu loader to lift the pan lines andthat the injury and termination were the result of Collins mishandling theequipment.[23] However, the evidencesubmitted proves no such thing. The video admitted into evidence showed theincident from an unhelpful angle and at a distance. See Sec. Ex. 1. Jamisontestified that one can see in the video how the back tires of the loader comeoff the ground as the loader approached the truck, and that Collins did not tipthe forks of the loader back. Tr. 64-65. However, this Court does not find thatJamison’s testimony is an accurate description of what the video admitted intoevidence shows. Without credible expert testimony interpreting the video in thecontext of the equipment used, the load handled, and the conditions on theground, this Court is not in a position to attribute fault based on the video. 

 

Respondent’s attempts to prove thatthe pan lines were well within the weight range for the Komatsu loader wereunconvincing. Respondent provided a scale ticket from almost two months afterthe incident to show that the pan line weighed 11,560 pounds. Resp. Ex-E. Thisis presumably the weight of an empty pan line. However, in the video, one cansee that as the pan line fell, it was filled with coal or some similar material.See Ex. 1. Therefore, it is unclear if the pan line contained several hundredor several thousand pounds more than the 11,560 pounds weight of August 09.Respondent further submitted the Komatsu spec sheet to prove that the Komatsuloader could lift up to 15,000 pounds without tipping over. See Ex. G. However,without an expert witness that could provide evidence of what conditions theloader could haul and lift such weight, this Court is unable to appropriatelyinterpret the spec sheet. Indeed, even Koontz could not interpret the documentsin a clear way. (“it all depends on how you’re – what task you’reperforming...There’s so many different parameters involved there.” Tr. 101-102.)[24]

 

However, even if Respondent couldmake a post-hoc showing that it was safe to haul the pan lines with the Komatsuloader, the relevant question under 105(c) is whether the miner made a good faithsafety complaint. 

 

So long as a minerhas a good faith belief that a safety hazard exists, they are protected inbringing their concern to the operator. *Robinette,* 3 FMSHRC 803; *Gilbertv. FMSHRC*, 866 F.2d 1433 (D.C. Cir. 1989). It is well established that a“good faith belief simply means [an] honest belief that a hazard exists.” *Id.*Whether perceived hazards are *actually* unsafe is not determinative ofthe protected status of a complaint. *Sec’y of Labor obo McGill v. U.S. SteelMining Co.*, 23 FMSHRC 981, 986 (2001); *Consolidation Coal Co. v.Marshall*, 663 F.2d at 1215. Alleged hazards are considered to be “relatedto” the Act, and are therefore protected by 105(c)(1). *Cullinan v. PeabodyTwentymile Mining LLC*, 36 FMSHRC 205, 207.

 

*Todd Descutner v. Nevada Gold Mines, LLC*, 2023 WL3790764 at *10 (May 25, 2023) (ALJ). *See also Patrick Shemwell v.KenAmerican Resources*, 2015 WL 9450196 at *9 (Dec. 16, 2015) (ALJ). In theinstant case, whether the pan line (and any coal contained in it) was slightlybelow or slightly above the maximum allowable weight for the Komatsu loader isnot dispositive. This Court finds that from Collins’ perspective as anexperienced operator, he reasonably believed and expressed that it was unsafe. Therefore,this Court finds that Collins’ claim that he engaged in protected activity wasnot frivolously brought.

 

The next issue is whether Collins suffered an adverse action. According to the Act andwell-settled Commission precedent, suffering a discharge is an adverseemployment action. 30 USC § 815(c)(1); *seealso* *Moses v. WhitleyDev. Corp.*, 4 FMSHRC 1475, 1478 (Aug. 1982), aff'd, 770 F.2d 168 (6thCir. 1985). It is uncontested that Collins was suspended on June 26 andthat his termination was approved in arbitration on July 21. Tr.40, 41. Therefore, Collins’ claim that he suffered an adverse employment action is notfrivolous.

 

*Nexusbetween the protected activity and the alleged discrimination*

 

Having concluded that Collins engaged in protected activity and suffered an adverseemployment action, the examination now turns to whether that activity has aconnection, or nexus, to the termination. The Commission recognizes that direct proof ofdiscriminatory intent is often not available and that the nexus betweenprotected activity and the alleged discrimination must often be drawn byinference from circumstantial evidence rather than from direct evidence.[25]*Phelps Dodge Corp.*, 3 FMSHRC at 2510. The Commission has identifiedseveral circumstantial indicia of discriminatory intent, including: (1) hostilityor animus toward the protected activity; (2) knowledge of the protectedactivity; (3) coincidence in time between the protected activity and theadverse action; and (4) disparate treatment of the complainant. *See*, *e.g.*, *CAM**Mining, LLC,* 31 FMSHRC at 1089; *see also*, *PhelpsDodge Corp.*, 3 FMSHRC at 2510.

 

Knowledge of the protected activity

 

According tothe Commission, “the Secretary need not prove that the operator has knowledgeof the complainant’s activity in a temporary reinstatement proceeding, onlythat there is a non-frivolous issue as to knowledge.” *CAM Mining, LLC,*31 FMSHRC at 1090 *citing**Chicopee Coal Co.*, 21 FMSHRC at 719. Infact, evidence is sufficient to support a finding of knowledge if an operatorerroneously suspects a miner made safety complaints, even if no complaint wasmade. *See Moses v. Whitley*, 4 FMSHRC at 1478.

 

Here, Collins made his safetycomplaints directly to his supervisor, Paul Jamison. Tr. 26-28. Collins alsoreiterated those complaints to General Manager Eric Koontz. Tr. 39, 92. Additionally,Mine Manager Avery was told by Collins that he told his supervisor that he feltuncomfortable using the Komatsu loader to lift pan lines, and Avery’s responseindicates that he understood the statement as a safety concern. “It’s your jobto know whether or not it will be able to lift or not; you can’t put this onthe boss.” Tr. 39. Here, Avery showed that Collins’ statements about beinguncomfortable with the task was a reference to safety and the ability of theKomatsu loader to lift pan lines. Therefore, I find that Collins has raised anon-frivolous issue as to whether Respondent had knowledge of his protectedactivity. 

 

Coincidence in time between the protectedactivity and the adverse action

 

TheCommission has accepted substantial gaps between the last protected activityand adverse employment action. See e.g. *CAM Mining, LLC,* 31 FMSHRC at1090 (three weeks) and *Sec’y of Labor on behalf of Hyles v. All AmericanAsphalt*, 21 FMSHRC 34 (Jan. 1999) (a 16-month gap existed between the miner’scontact with MSHA and the operator’s failure to recall miners from a layoff;however, only one month separated MSHA’s issuance of a penalty resulting fromthe miner’s notification of a violation and that recall failure). TheCommission has stated “We ‘appl[y] no hard and fast criteria in determiningcoincidence in time between protected activity and subsequent adverse actionwhen assessing an illegal motive. Surrounding factors and circumstances mayinfluence the effect to be given to such coincidence in time.’” *All AmericanAsphalt*, 21 FMSHRC at 47 (quoting *Hicks v. Cobra Mining, Inc.*, 13FMSHRC 523, 531 (Apr. 1991). 

 

Here,Collins made his safety complaints on June 14 and was suspended pending aninvestigation on June 26. This represents less than a two-week period, whichwould likely have been even shorter had Koontz become aware of the incidentsooner. Jamison testified that the incident report sat in his truck for a fewdays before he submitted it to human resources, and Koontz testified that thematter was delayed in reaching him, but that he acted on it as soon as he becameaware. Tr. 39-40, 77. As a result, I find that the time span between theprotected activities and the adverse action easily meets the thresholdrequirements for a temporary reinstatement proceeding and that the timing issufficient to establish a nexus.

 

Hostility or animus towards the protected activity

 

TheCommission has held, “[h]ostility towards protected activity--sometimesreferred to as ‘animus'--is another circumstantial factor pointing todiscriminatory motivation. The more such animus is specifically directedtowards the alleged discriminatee's protected activity, the more probativeweight it carries.” *Sec**’**y of Labor on behalf of Chacon v. Phelps Dodge Corporation*, 3 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted).

 

Here, theresponse to Collins’ safety complaints was to dismiss them and find any reasonnot to treat them as safety related. Collins told his supervisor three times onJune 14 that he did not feel comfortable using the Komatsu loader to load thepan lines, and in each instance, Jamison brushed aside his complaints.Similarly, Koontz accepted Jamison’s assertion that Collins simply said that hewas uncomfortable with every task he was assigned. Tr. 92. After Collins’injury, when he tried to explain to Avery that the blame should have been onhis supervisor who ordered him to use a loader that was too small for the task,Avery responded that it was not his supervisor’s responsibility to know whetherthe load was safe. Tr. 39. This level of dismissiveness and disregard forrepeated safety concerns constitutes animus sufficient tomeet the evidentiary standards of a temporary reinstatement.

 

Respondentsubmitted an arbitrator’s decision to try to show that the termination was fora legitimate reason. This Court admitted the decision into the record, but uponreview, finds that it has no probative value. The arbitrator’s decisionconcerns contractual provisions between the operator and the union and has norelevance to a Mine Act discrimination complaint. 

 

Disparate Treatment

 

“Typical forms of disparate treatmentare encountered where employees guilty of the same, or more serious, offensesthan the alleged discriminatee escape the disciplinary fate which befalls thelatter.” *Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp.*, 3FMSHRC 2508, 2512 (Nov. 1981). The Commission has previously held that evidenceof disparate treatment is notnecessary to prove a *prima facie* claim of discrimination when the otherindicia of discriminatory intent are present. *Id*. at 2510-2513. 

 

In the instant matter, insufficientevidence was presented to establish that Collins faced disparate treatment. 

 

However, as has already been shown,there is sufficient evidence to conclude that this discrimination claim was notfrivolously brought as it relates to animus, knowledge, and coincidence intime. Therefore, I find that the Secretary has established a nexus between Collins’protected activity and the Respondent’s subsequent adverse action.

 

**Conclusion**

** **

I find that there is reasonable cause to believe thatCollins made safety complaints on June 14, 2023; that following such, Collinssuffered an adverse employment action; that Respondent was aware of Collins’protected activity; that Respondent knew and showed animus toward the protectedactivity; and that there was a close connection in time between the allegedprotected activity and Complainant’s discharge. Therefore, given an arguablenexus between the Complainant’s protected activity and Respondent’s adverseemployment action, the Secretary has carried its burden of proving the miner’scomplaint was not frivolously brought. 

** **

**ORDER**

 

For the reasons set forth above, it is **ORDERED**that Complainant John Collins be reinstated by Respondent to his former position, orthe equivalent, at the same rate of pay, hours worked, and with all otherbenefits he was receiving at the time of his discharge, effective the date ofthis decision.[26]

 

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: 

 

Christopher D. Pence, Esq., Hardy Pence PLLC, 10 HaleStreet, 4th Floor, Charleston, WV 25301 cpence@hardypence.com

 

Jennifer M. Tag, Esq., Office of the Solicitor, US Departmentof Labor, 618 Church Street, Suite 230, Nashville, TN 37219 tag.jennifer.m@dol.gov

 

Samuel Maples, Esq., MAPLES, TUCKER AND JACOBS, LLC, 2001Park Place North, Suite 1325, Birmingham, AL 35203 sam@mtandj.com

----

[1]At the north portal, Collinsoperated a 380 loader and Cat loader. Tr. 44. He used these loaders to load panlines onto supply cars. Tr. 44-45. The 250 Komatsu loader was not at the northportal. Tr. 44.

[2]Paul Jamison was the surface supplyyard manager. Tr. 58.Hisduties were to supervise the loading, unloading, and storage of supplies at themine. Tr. 58-59. For approximately two years, Jamison has been Collins’supervisor. Tr. 59. He testified at hearing. 

[3] Jamison described thetraining documented in Exhibit B as being issued after “the other operator [went]over with him just to refresh him on going on the preoperational checks, andthen I watched him operate.” Tr. 60. Jamison testified that Collins had hisload against the mast and forks tipped up when he watched him operate theloader. Tr. 60. Jamison described Collins as “an experienced operator.” Tr. 61.

[4]Jamison testified that Collinsregularly said he did not feel comfortable loading or unloading things as “hisexcuse to get out of trouble for – if he messes up or gets someone else to doit.” Tr. 64.Jamisontestified that he did not take these statements to be invocations of Collins’miner’s rights because it was “his escape goat. [sic]” Tr. 73.

[5] Collins disputed causing$22,000 worth of damage in that incident. Tr. 52-53. He stated that theinvestigation into whether the pump was damaged was inadequate. Tr. 53. Collinsdisagreed with the 35-day suspension but agreed to come back because he neededthe job. Tr. 53. Collins testified that he’s the only person who has everreceived a 35-day suspension. Tr. 56. Koontz testified that the reason thesuspension lasted for that long was due to problem in finding an arbitrator.Tr. 86.

[6] The Komatsu loader specsheet was admitted into evidence as Respondent’s Exhibit G. Tr. 96-97.

[7] When asked whether therewas a difference between a static load and a safe working load for the Komatsu250 loader weight capacity, general manager Eric Koontz stated that “it’s veryopinionated when you read the documents.” Tr. 101. When asked if theappropriate inquiry is the maximum payload or maximum tipping load, Koontzreplied, “it all depends on how you’re – what task you’re performing...There’s somany different parameters involved there.” Tr. 101-102. 

[8] A scale ticket thatstated that the pan weighed 11,560 pounds on August 09, 2023, was admitted intoevidence as Respondent’s Exhibit E. Tr. 90-91. The testimony at hearing did notestablish whether the pan line was empty when it was weighed on August 09.

[9] The bed of the haul truckwas approximately five to five and a half feet off the ground. Tr. 102.

[10]A video of Collins hauling the second pan line was admitted as Secretary’sExhibit 1. Tr. 42.

[11] Paul Jamison alsogoes by Jeff Jamison. Tr. 72.

[12] Still frames of thevideo were admitted into the record as Respondent’s Exhibit C. Tr. 66.

[13]Eric Koontz was the general managerof Crimson Oak Grove Resources. Tr. 80. Except for a few months in 2021, Koontzhas served in this position since May 2019. Tr. 80. Koontz testified athearing.

[14] Koontz testified that ifCollins had a safety complaint he could have told him directly. Tr. 103-104.Koontz did not believe that Collins “invoked his rights” to Jamison. Tr. 104.

[15]The list of Employee Conduct Rules at the mine were admitted into the Record asRespondent’s Exhibit D. Tr. 87. Rule Number 2 formed the basis for thediscipline for the March and April incidents. The rule states: “In order tominimize the occasions for discipline or discharge, each employee should avoidconduct which violates reasonable standards of an employer-employeerelationship including: Neglect or carelessness in the performance of assignedduties or in care or use of company property.” Tr. 88; Resp. Ex. D.

[16]The arbitration decision wasadmitted into evidence as Respondent’s Exhibit F. Tr. 95.

[17]Collins’ July 27, 2023,Charge of Discrimination to the Equal Employment Opportunity Commission wasadmitted into evidence as Respondent’s Exhibit B. Tr. 51.

[18] Though this Courtfollows the Commission’s lead, it wonders whether this practice is indeed usefulor if it inadvertently leads parties to conclude that the law requires theSecretary to make a prima facie case of discrimination in a TemporaryReinstatement proceeding. 

[19]This approach cited a brief section of a separate non-majority opinion writtenby two Commissioners in *MSHA on behalf of Kevin Shaffer v. The Marion CountyCoal Co.*, 40 FMSHRC 39 (Feb. 2018).

[20] In hisconcurrence in part and dissent in part, Commissioner Althen asserts through anenumerated list what the majority holdings of the case are “to ensure ourJudges do not miss the crucial rulings of law.” 43 FMSHRC at 168 (CommissionerAlthen, concurring in part and dissenting in part). However, CommissionerAlthen’s enumerated rulings of law go much further than what is stated inCommissioner Rajkovich’s decision, such that substantial portions of them—includingthe preponderance of the evidence standard imported from merits discriminationcases—are not part of the majority holding. *See Marks v. U.S*., 430 U.S.188, 193 (1977) (“When a fragmented Court decides a case and no singlerationale explaining the result enjoys the assent of five Justices, ‘theholding of the Court may be viewed as that position taken by those Members who concurredin the judgments on the narrowest grounds.”)

[21] As defined in theseparate decision, “preponderance of the evidence means the greater weight ofthe evidence.” 40 FMSHRC at 46. Therefore, this Court could not determinewhether the preponderance of the evidence standard raised or lowered the not-frivolously-broughtburden.

[22]The separate opinion in *Marion County Coal* cited to a dissent byCommissioner Althen in *Sec'y of Labor on behalf of Pappas v. Calportland Co.*,38 FMSHRC 137, 154 (Feb. 2016), for the proposition that the secretary has theburden of proving by a preponderance of the evidence only that the claim is notfrivolous. However, the cited dissent in no way discusses the burdens of proofand the only mention of the preponderance of the evidence standard is inreference to a merits discrimination case.

[23]Respondent essentially argued that the video was the type of scenario describedby Commissioner Rajkovich in his exposition of the *Marion* approach, butthis Court disagrees. Though there was no dispute that the video was genuine,it simply showed the incident. On its own, it did not show in any way if theminer handled the equipment incorrectly or if he was correct in his assertionthat the pan line was too heavy for the Komatsu loader. 

[24] It is certainlyrelevant how weight that is being hauled is balanced on the forks and how themachinery was maintained. See Tr. 101-102.

[25]However, in this case there was some direct evidence that Collins’ protectedactivity played a role in his termination. Koontz, who made the ultimatedecision to terminate Collins, was asked whether the “statements [Collins] madeto Mr. Jamison [had] any impact on your decision to terminate him from his position.”Tr. 98. Koontz responded: “I looked at all aspects of the investigation, *thingsthat he had said**and all relative points coming in from managersinvolved* and, ultimately based on this incident, previous incidents andentire body of work there, made a decision to move forward to discharge.” Tr.98-99 (emphasis added). 

[26]If the parties mutually agree, Collins may be reinstated to a job on thesurface that does not require him to operate the Komatsu loader.