**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

1331 Pennsylvania Ave.NW, Suite 520N

TELEPHONE: (202)434-9958/ FAX: (202)434-9949

 

 
| SECRETARY OF LABOR

  MINE SAFETY AND HEALTH        

  ADMINISTRATION (MSHA), 

  on behalf of LARRY ANDERSON,

                           Complainant,

 

                        v.

 

KALAMAZOO MATERIALS, INC., and    ROCK PROS USA LLC, and any and all   successors in interest,

                           Respondent                                                                                         |   |   | TEMPORARY REINSTATEMENT

PROCEEDING

 

Docket No. WEST 2023-0238

MSHA Case No. RM-MD-2023-05

 

 

 

 

Mine: Silver Bell 

Mine ID: 02-02848 |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

**ORDER OF TEMPORARY REINSTATEMENT**

 

Before:             Judge Sullivan                       

 

            This case isbefore me upon an Application for Temporary Reinstatement filed by theSecretary of Labor pursuant to section 105(c)(2) of the Federal Mine Safety andHealth Act of 1977, 30 U.S.C. § 801 et seq. (“Mine Act”), and 29 C.F.R. § 2700.45.On May 15, 2023, the Secretary filed the application on behalf of miner LarryAnderson (“Complainant”) seeking his reinstatement to his former position ofSafety and Compliance Manager at the Silver Bell mine and other mines operatedby Kalamazoo Materials, Inc., Rock Pros USA LLC, and any successors in interest.The certificate of service states that the application was served onRespondents by e-mail that same day. The application also satisfies the otherprocedural requirements of Commission Rule 45(b) in that, among other things,it timely “states the Secretary’s finding thatthe miner’s discrimination complaint was not frivolously brought[,] accompaniedby an affidavit setting forth the Secretary’s reasons supporting his finding[,]and includes a copy of the miner’s complaint to the Secretary . . . .” 29C.F.R. § 2700.45(b).[1]

 

            On May 25, 2023,the Respondents made a timely request for hearing in accordance with CommissionRule 45(c). Upon filing this request, the Respondents conveyed to the Courtthat the parties were engaged in good faith efforts to settle the temporaryreinstatement matter. 

On May 26, 2023, theSecretary filed a Settlement Agreement and Joint Motion for TemporaryReinstatement. The terms of the agreement provide for the Complainant toreceive economic reinstatement with Kalamazoo in lieu of immediately returningto work for Respondents. 

Section 105(c)(1) of the Mine Actprovides that “[n]o person shall discharge . . . any miner . . . because suchminer . . . has filed or made a complaint under or related to this Act,including a complaint notifying the operator . . . of an alleged danger orsafety or health violation in a . . . mine . . . .” 30 U.S.C. § 815(c)(1). Inthe application, as supported by his investigator’s affidavit (Exhibit Bthereto), the following allegations of the Secretary establish the Complaint ashaving been not frivolously brought under sections 105(c)(1) and (2):

 

(1)  Complainant began work as asafety and compliance official for Kalamazoo Materials in June 2022.~~~~

(2)  In January 2023, Complainantmade safety complaints to Respondents’ management. The Complaint referencesseveral emails with safety complaints that were sent to a Safety Manager, whowas listed in the Complaint as responsible for discriminatory action. 

 

(3) Complainant also notified management of his selection to serve as aminers’ representative at several of the Respondents’ mines. The Complaintalleges that management told Complainant to “not speak with miners about theirrights.” Application for Temporary Reinstatement (“App.”), Ex. A at 3. 

 

(4)  Complainant was“discriminatorily terminated” on January 23, 2023. App. at 4.

 

I agree with the Secretary that theComplaint was “not frivolously brought” in this instance. *See Jim WaltersRes., Inc. v. FMSHRC*, 920 F.2d 738, 747 (11th Cir. 1990) (relying upon MineAct legislative history and the Supreme Court’s treatment of a similarwhistleblower protection provision to conclude that the “not frivolouslybrought” standard is the equivalent of a “reasonable cause to believe” standardand is met when a miner’s “complaint appears to have merit”). 

 

In addition, I have reviewed theterms of the Agreement and find that they do not appear to reduce Complainant’srights under section 105(c)(2). The Agreement shall remain on file in thisproceeding. I reach no conclusion beyond that regarding the merits of theComplaint.

 

Finally, Section 105(c)(3) of theAct directs the Secretary to notify a complainant whether a section 105(c)violation occurred within 90 days of the filing of a complaint, which in thisinstance would have been no later than Tuesday, May 2, 2023. *See* 30U.S.C. § 815(c)(3). The Secretary shall provide an update regarding the statusof the Secretary’s investigation of the Complaint within seven days.

 

**WHEREFORE**, the Application is **GRANTED**, and itis **ORDERED** that reinstatement shall remain in effect until such timethat the Secretary provides notification that he will not be bringing adiscrimination case in chief on behalf of the Complainant, or such a case isbrought and there is a final determination on it by decision, approval ofsettlement, or other order of this court or the Commission. I retainjurisdiction over this temporary reinstatement proceeding for such purposes asare necessary, as provided by 29 C.F.R. § 2700.45(e)(4).

 

**WHEREFORE**, the Secretary is further **ORDERED** toprovide an update regarding the status of the Secretary’s investigation of theComplaint no later than seven days from the date of this Order.

 

 

 

 

/s/John T. Sullivan

                                                                                    JohnT. Sullivan

                                                                                    AdministrativeLaw Judge

 

 

 

 

Distribution (Electronic Mail): 

 

Andrew M. Katz, U.S. Departmentof Labor, Office of the Solicitor, 350 South Figueroa Street, Suite 370, LosAngeles, CA 90071-1202, Katz.Andrew.M@dol.gov

 

Dana M. Svendsen, Perkins Coie LLP, 1900 Sixteenth Street,Suite 1400, Denver, CO 80202, (dsvendsen@perkinscoie.com)

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[1]The Discrimination Complaint (“Complaint”) filed with the Secretary’s MineSafety and Health Administration by the Complainant is dated February 1, 2023,thus well within 60 days of the Complainant’s January 23 termination ofemployment. *See* 30 U.S.C. § 815(c)(2).