**           ****FEDERAL MINE SAFETY ANDHEALTH REVIEW COMMISSION**

OFFICE OF THE CHIEFADMINISTRATIVE LAW JUDGE

1331 PENNSYLVANIAAVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202 434-9987/ FAX: 202 434-9949

 

 

 

 

**ORDER GRANTING TEMPORARYREINSTATEMENT**

**OF JORDANKELSER**

 

 

Before:             Judge Young

 

            Pursuantto 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”) seeks an order temporary reinstating miner Jordan Kelser(“Complainant”) to his former position with Respondents Peabody SEMining, LLC (“Peabody”), and Compliance Staffing Agency LLC, d/b/a JennmarServices (“Jennmar”), pending the final hearing and disposition of hisDiscrimination Complaint brought under section 105(c) of the Act.

 

            OnSeptember 6, 2023, Kelser executed a Discrimination Complaint with MSHA. TheSecretary has found that the Complaint was not frivolously brought and filed anApplication for Temporary Reinstatement on November 7, 2023.  TheApplication for Temporary Reinstatement alleges that the Respondents dischargedKelser or otherwise relieved him of his job duties in violation of section105(c) of the Act because Kelser reported an accident in which he was injured.

 

            OnNovember 15, Peabody timely filed a Request for Hearing on the Secretary’sApplication.  On November 16, Jennmar also filed a timely Request for Hearing. The hearing was held via Zoom for Government on November 29, 2023.  Consistentwith Section 105(c)(2) of the Act, the Secretary’s Application for TemporaryReinstatement is granted. 

 

Summaryof Testimony 

 

            Thewitness testimony and evidence presented at hearing provides facts in supportof the Secretary’s conclusion that the Complaint was not frivolously brought.[1] Credibility determinations are not made as to facts presented below. The factsprovided at the hearing include the following:

 

            Kelserwas employed in several mining positions contracted through Jennmar beginningin March 2023.  Tr. at 21.[2]  Jennmar is astaffing agency that hires and trains individuals to work as miners and thencontracts with mine operators including Peabody to provide labor support on anas-needed basis.  Tr. at 127-28.  

 

            FromMarch to approximately June 2023, Jennmar assigned Kelser to work on specialprojects where he would be continually reassigned between multiple mines fortemporary durations.  Tr. at 22­.  Starting around June, Kelser started workingfor Peabody through his employment at Jennmar.  Tr. at 22.  For Peabody, Kelserperformed work as part of a belt crew at Shoal Creek Mine. Tr. at 23.

 

            Kelser testifiedthat on September 1, 2023, he, Colton Harper (Peabody‘s  belt foreman), DakotaHouse (an hourly Peabody miner), Demarcus Tucker (an employee of contractorGMS), Shawn Clements (Peabody’s evening shift mine foreman), and Toby Howell(another Peabody hourly employee) were working together to repair a conveyorbelt that had stopped tracking correctly.  Tr. at 24-28. According to Kelser, Harper instructed Kelser or Tucker to get on top of thebelt to tighten a J bolt.  Tr. at 26-27. 

 

            Kelser climbedup a fence and onto the conveyor belt, which was 8 to 10 feet off the ground,to tighten the bolt.  Tr. at 58. Harper andClements watched Kelser climb the fence onto the belt and did not stop him.  Tr. at 27, 30-32.  While Kelser was on the conveyor belt,Howell started the belt motor, and the belt began to move.  Tr. at 38.  Kelserheard the conveyer belt start and Tucker told him to jump off.  Tr. at 32.Kelser grabbed a chain to pull himself off the belt, injuring his ankle andlower back. Tr. at 32-33.

 

Properlockout-tagout procedures were not followed to prevent the conveyor belt frombeing energized.  Tr. at 36-37.  Kelser said that he was not offered theopportunity to lock and tag the belt motor to prevent its operation while hewas working on the belt.  Tr. at 36-37.  No other mine worker or foreman tookany steps to ensure that the belt was not energized while he was on top of it. Tr. at 59.  

 

            Other safety measureswere also neglected that might have prevented the injury.  Mincey testifiedthat the J-bolt could be safely accessed from the ground by using a ladder orby standing on a bucket or concrete blocks.  Tr. at 109-10.  Kelser testified,however, that nobody told him to use a ladder, and there was not one readilyavailable.  Tr. at 65.  Peabody also suggested that Kelser should have beenaware of the need to use fall protection while he was working atop the belt,but Kelser said nobody provided him with fall protection, either.  Tr. at 15,98.

 

            Kelser testifiedthat, later during the same shift, he sought to make a report related to hisinjury. Tr. at 39. According to Kelser, Harpertold him he should not tell anyone what really happened and that he shouldmisrepresent how the injury occurred, because Harper and Clements would get introuble.  Tr. at 37, 38.  Kelser informedHarper that he wanted to file a truthful accident report. Tr. at 42.  Harper then told him that he would haveto take a drug test and asked if he was sure if filing a report is what hewanted to do.  Tr. at 41.  Kelser proceeded tofill out an accident report.  Tr. at 42.  

 

            Peabody then placedHarper, the belt foreman who had directed the work and then, according toKelser, watched as it was performed unsafely, in charge of collectingstatements from witnesses and conducting the accident report.  Tr. at 86,104-06.  After the investigation, Peabody then told Jennmar it did not wantKelser to work at the mine and said it was because Complainant had actedunsafely and violated its safety policies.  Tr. at 89.

            

            On September 2,2023, Kelser emailed a statement to Greg Neil describing the events thatresulted in Kelser’s accident and injury.  Tr. at 45. On September 5, 2023, Neil informed Kelser not to go back to Peabody’s mine.  Tr. at 46.  Neil also informed Kelser that no otherwork was available through Jennmar at the time, and that Greg Neil needed tofinish investigating Kelser’s accident. Tr. at46.  On September 11, 2023, Peabody informed Neil that Kelser would not beallowed back to the Shoal Creek Mine to work.  Tr. at142.

 

            From the date ofinjury through the date of this hearing, Kelser hasnot been capable of returning to work, because his injuries prevented him fromperforming the tasks necessary to work as a miner.  Tr. at 76.  Kelsertestified that he believes he is now physically able to work.  Tr. at 53. Kelser subsequently submitted documentation of a physician clearing himmedically to return to work without restrictions, as of December 2.[3]

 

Standards Governing TemporaryReinstatement

 

            Section105(c) of the Mine Act prohibits discrimination against miners for exercisingany protected right under the Mine Act and provides that a miner may file acomplaint with the Secretary alleging discrimination. 30 U.S.C. §815(c)(1-2). The plain language of the Act provides that “if the Secretary finds that suchcomplaint was not frivolously brought, the Commission, on an expedited basisupon application of the Secretary, *shall*order the immediatereinstatement of the miner pending final order on the complaint.” 30 U.S.C.§815(c)(2) (emphasis added).  

            

The scopeof temporary reinstatement proceedings is narrow and limited to determiningwhether the evidence establishes that the complaint is nonfrivolous, notwhether the complainant can establish a prima facie case of discrimination.  *Sec’yof Labor on behalf of Saldivar v. Grimes Rock, Inc.*, 46 FMSHRC    , slipop. at 4 No. WEST 21-178 (Nov. 28, 2023); *Sec’y of Labor on behalf of Pricev. Jim Walter Res., Inc.*, 9 FMSHRC 1305, 1306 (Aug. 1987).  TheCommission has held that the Secretary can establish that the complaint isnon-frivolous when the complainant’s evidence shows that the complainantengaged in activity protected by the Act and suffered adverse action as aresult of the protected activity.  *Sec’y of Labor on behalf of Cook v.Rockwell Mining*, 43 FMSHRC 157, 161 (Apr 2021).  Protected activitiesinclude a miner’s reporting of injuries to anoperator, even if there is no safety complaint associated with thereport. *Swift v. Consolidation Coal Co.*, 16 FMSHRC 201, 205 (Feb. 1994).

 

            The causal nexusbetween the protected activity and the adverse action can be demonstrated bythe operator’s knowledge of the protected activity and its temporal proximityto the adverse action.  *Sec’y of Labor on behalf of Stahl v. A&K EarthMovers Inc.*, 22 FMSHRC 323, 325-26 (Mar. 2000).  

 

During a temporary reinstatementproceeding, a judge does not make credibility determinations, resolve testimonialconflicts, or weigh the operator’s evidence against the Secretary’s evidence.* Rockwell Mining*, 43 FMSHRC at 162.  Rather, the judge simply evaluatesthe Secretary’s evidence and determine whether the miner’s complaint appears tohave merit.  *Id.* at 161 (citing *Sec'y of Labor on behalf ofWilliamson v. Cam Mining, LLC*, 31 FMSHRC 1085, 1089 (Oct. 2009)).

 

Disposition

 

The Secretary has providedsufficient evidence to show that the Complaint in this matter was notfrivolously brought.  The facts provided by the Secretary, if true, wouldestablish that the Complainant engaged in a protected activity and suffered an adverse action close in time to the protectedactivity, under circumstances that provide a reasonable cause to believe thatthere was a causal nexus.

 

First,the Secretary has sufficiently demonstrated that Kelser engaged in a protectedactivity.  Kelser’s reporting the accident that injured him to the mineoperator, by itself, constitutes a protected activity, even if there is nosafety complaint associated with the report.  *Swift,* 16 FMSHRC at205.   

 

However,the protected activity goes further, as his report implicates other mineworkers, supervisors, and the operator in safety violations at Shoal CreekMine.  As Kelser climbed onto the belt representatives of mine management andother miners observed him, without attempting to stop him.  Further, he said thathe was not offered the opportunity to lock and tag the belt motor to preventits operation while he was working on the belt.  Nor did anybody in minemanagement – representatives of which were at the scene – take any steps toensure that the belt was not energized while he was on top of it.  

 

Thisevidence must be taken as true under the law, but it was essentiallyunrebutted.  Peabody produced no witness who was at the scene when Kelser wasinjured.  The uncontradicted record evidence is that Kelser was assigned a taskbut was not provided with the tools or training to perform it safely.  

 

Mr.Mincey testified that the J-bolt could be safely accessed from the ground byusing a ladder or by standing on a bucket or concrete blocks.  But nobody toldKelser to use a ladder, and there was not one readily available.  Instead, theuncontradicted testimony of the only witness who was at the scene was thatrepresentatives of mine management and other miners then watched as he climbedon top of the belt without locking or tagging it out – an action all partiescharacterized as unsafe.  

 

Peabodyalso suggested, on cross-examination, that Kelser should have been aware of theneed to use fall protection while he was working atop the belt, but nobodyprovided him with fall protection, either.   

 

Additionally,Kelser says his supervisor tried to dissuade him from filing a true report ofthe nature and cause of his injuries.  Peabody then assigned the investigationof Kelser’s incident to Harper, the belt foreman who had directed the work andthen, according to Complainant, watched as it was performed unsafely.  Afterthe investigation, Peabody then told Jennmar that it did not want Kelser towork at the mine and said it was because Complainant had acted unsafely and violatedits safety policies.  

 

Thecausal nexus between Kelser’s reporting his injury and his discharge is alsosupported by the temporary proximity.  On September 5, four days after the reported incident, Jennmar’s regionalmanager, Greg Neil, first told Kelser not to return to the Shoal Creek Mine. On September 11, Greg Neil told Kelser that he would not be allowed to returnto work for Peabody at Shoal Creek Mine permanently. The justification thatRespondent’s provide for the discharge is closely tied to the incident whichKelser reported, although Respondent’s contend that Kelser was dischargedbecause of his own unsafe conduct.  

 

At thisstage of the proceedings, the evidence establishes none of this conclusively. In a full proceeding on the Complaint, Respondents will doubtless providewitnesses and other evidence that could affect the outcome.  But at this stage,the Secretary has provided facts, which must be accepted as true, and whichestablish a close causal nexus between the protected activity and the adverseaction Kelser suffered.  

 

Itherefore find that a non-frivolous claim has been made that on September 11,Peabody discharged Kelser’s from his work at the Shoal Creek Mine and thedecision was based on the underlying incident which Kelser reported. Additionally, Jennmar is contemplating further adverse action against Kelserupon his return to work when he has medically recovered.  This, too, is basedentirely on the incident which resulted in the Complainant’s injury andPeabody’s response to it.  

 

Respondentshave argued that Kelser was not terminated.  But there is no difference betweena miner being discharged as a direct employee and a miner being told, throughan employment agency, that the contract employer no longer wishes to have theminer work at the mine.  On September 1, Kelser had regular employment of 48hours per week at the Shoal Creek Mine.  After Kelser was injured and reportedhis injury, that was no longer the case.  Thus, there has been an adverseaction, whether or not Kelser was “terminated” in any narrow sense of theterm.  

 

Prior to the hearing, Peabody andJennmar moved to dismiss the application, claiming that there was no reliefavailable because complainant’s injury makes him unavailable for work, andclaimed he was receiving workers’ compensation benefits.  The motions weredenied because they rested on evidentiary matters that were not presented priorto the hearing.  At hearing, Respondents did not renew the motions, and theevidence introduced showed that Complainant was receiving benefits to pay forhis medical care, not compensation for lost wages, injury, or disability.  

 

While the Commission has found thatcertain circumstances affecting the availability of work may justify tolling oftemporary reinstatement, Kelser has been cleared by a physician to resumeworking without restrictions and therefore circumstances no longer are presentthat affect the availability of work.  *Sec’y on behalf of Gatlin v. KenAmerican Res., Inc.*, 31 FMSHRC 1050, 1054-56 (Oct. 2009).  In any event,Complainant is now available to return to work, and any such argument would bemoot.  

 

Conclusion

 

            Forthe foregoing reasons, I find that the Complaint for discrimination has notbeen frivolously brought, and that Complainant Jordan Kelser is entitled toTemporary Reinstatement under Section 105(c)(2) of the Act. 

 

Order

** **

It is hereby **ORDERED**that **JordanKelser**be **immediately TEMPORARILY REINSTATED**to his former job atPeabody’s Shoal Creek Mine at his former rate of pay, overtime, and allbenefits he was receiving at the time of his discharge.[4] Thereby, Jennmar is **ORDERED** to place Kelser on available status andassign him to his former contracted position at the Shoal Creek Mine or to asubstantially equivalent position.  Peabody is **ORDERED** to reinstateKelser to his former work at Shoal Creek Mine, unless or until Jennmarreassigns Kelser to a substantially equivalent position, providing him with thepay and benefits he would have received but for the termination of hisemployment relationship with Respondents.[5]

 

This Order **SHALL**remain ineffect until such time as there is a final determination in this matter byhearing and decision, approval of settlement, or other order of this court orthe Commission.

 

I retain jurisdiction over thistemporary reinstatement proceeding. 29 C.F.R. § 2700.45(e)(4). The Secretary **SHALL**provide a report on the status of the underlying discrimination complaint **assoon as possible**. Counsel for the Secretary **SHALL**also **immediately**notify my office of any settlement or of any determination that Peabody orJennmar, did not violate Section 105(c) of the Act.

 

 

 

 

/s/ Michael G. Young

Michael G. Young

Administrative Law Judge

 

 

Distribution: (electronicmail)

 

Vanessa L. Kinney, Esq., U.S. Department of Labor, Office ofthe Solicitor, 618 Church Street, Suite 230 Nashville, TN 37219-2456, Kinney.vanessa.l@dol.gov

 

John R. Jacobs, Esq., Attorney for Jordan Kelser, Maples,Tucker & Jacobs, LLC 2001 Park Place North, Suite 1325 Birmingham, Alabama35203 jack@mtandj.com  

 

D. Craig Allred, Esq., Hill Hill Carter Franco Cole &Black P.C. 425 S. Perry Street Montgomery, AL 36104, callred@hillhillcarter.com

 

Shawn Junkins Cole, Esq., Hill Hill Carter Franco Cole &Black P.C. 425 S. Perry Street Montgomery, AL 36104, scole@hillhillcarter.com

 

Arthur Wolfson, Esq. Fisher & Phillips LLP Six PPGPlace, Suite 830 Pittsburgh, PA 15222, awolfson@fisherphillips.com

 

R. Henry Moore, Esq. Fisher & Phillips LLP Six PPGPlace, Suite 830 Pittsburgh, PA 15222, hmoore@fisherphillips.com

 

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            [1]At the hearing, the Secretary presented as a witnessJordan Kesler, the complainant.  Respondents each presented one witness. Peabody presented Jamie Mincey, who is a continuous improvement manager forShoal Creek Mine and Peabody, and Jennmar presented Greg Neil, who is aregional manager and regional safety manager for Jennmar.  Additionally, theparties admitted documents into evidence.  

 

[2] There was no evidenceintroduced to establish whether Kelser was an employee or an independentcontractor, and the nature of that relationship is not relevant to theseproceedings.  

[3] At hearing, the recordwas left open for subsequent evidence pertaining to Kelser’s medicalexamination scheduled for December 2, 2023. 

[4] Kelser, according toExhibit B to the Secretary’s Application for Temporary Reinstatement, worked 48hours per week on average, prior to his discharge, at $25.00 an hour regularpay and $37.50 for overtime.  This calculates to $1,300.00 per week.

 

[5] Temporary reinstatementis designed to maintain the status quo while miners proceed with theirdiscrimination claims.  *Sec’y on behalf of Jeffrey Pappas c. CalportlandCompany*, 38 FMSHRC 137, 144 (Feb. 2016).