**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

OFFICE OF ADMINISTRATIVELAW JUDGES

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

WASHINGTON, DC20004-1710

TELEPHONE: 202-434-9956/ FAX: 202-434-9949

 

 

 
| SECRETARY  OF LABOR,

U.S.  DEPARTMENT OF LABOR

on  behalf of ROGER COOK,

                Complainant,

 

              v.

 

ROCKWELL  MINING, LLC,

                Respondent.                                         |   |   | TEMPORARY  REINSTATEMENT

 

Docket No. WEVA 2021-0203

MSHA Case No. HOPE CD  2021-02

 

 

 

Mine:  Eagle #3 Mine

Mine ID: 46-09427

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

 

**DECISION AND ORDEROF REINSTATEMENT**

 

Appearances:              LaShantaHarris, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington,Virginia, for the Petitioner

 

                                    ChristopherD. Pence, Esq. and James P. McHugh, Esq., Hardy Pence, PLLC, Charleston, WestVirginia, for the Respondent

 

Before:                        JudgeRae

 

**I.               ****INTRODUCTION**

 

**A.   ****Statement of theCase**

 

This matter is before me upon anapplication for temporary reinstatement brought by the Secretary of Labor(“Secretary”), on behalf of Roger Cook, under section 105(c) of the FederalMine Safety and Health Act of 1977, against Rockwell Mining, LLC (“Respondent”).30 U.S.C. § 815(c); 29 C.F.R. § 700.45. The application seeks reinstatement of Cookas a fire boss at Respondent’s Eagle #3 Mine pending final disposition of Cook’sdiscrimination complaint. Ex. S-1.[1]Cook filed a discrimination complaint on February 1, 2021, after the Respondentsuspended and terminated him in January 2021. Jt. Ex. 1.

 

A hearing was held via Zoom for Governmentvideoconference on March 29, 2021. The Secretary gave a closing argument duringthe hearing, and the Respondent filed a post-hearing brief. Tr. at 138. For thereasons set forth below, I grant the application for temporary reinstatement andretain jurisdiction until final disposition of the complaint on the merits.

 

**B.   ****Joint Stipulations**

 

The parties have submittedthe following stipulations: 

1.         This proceeding is subjectto the jurisdiction of the Federal Mine Safety and Health Review Commission andits designated Administrative Law Judges pursuant to sections 105 and 113 ofthe Federal Mine Safety and Health Act of 1977 (“the Act”). Accordingly,presiding Administrative Law Judge Priscilla Rae has the authority to hear thiscase and issue a decision regarding this matter. 

 

2.         Respondent is a LimitedLiability Corporation and a “person” within the meaning of section 105(c) andwithin the definition of section 3(f) of the Act. 30 U.S.C. § 802(f). 

 

3.         Respondent is the operatorof the Eagle #3 Mine, MSHA Mine ID #46-09427, located in Wyoming County, WestVirginia. 

 

4.         The products or operationsof the Eagle #3 Mine enter or affect commerce, within the meaning and scope ofsection 4 of the Act. 

 

5.         The Eagle #3 Mine is a“mine” as defined by the Act. 30 U.S.C. § 802(h). 

 

6.         Respondent is engaged inthe operation of a coal mine. It is, therefore, an “operator” as defined insection 3(d) of the Act. 30 U.S.C. § 802(d). 

 

7.         On January 25, 2021,Complainant was terminated by Respondent. 

 

Jt.Ex. 1.

 

**II.            ****STATEMENTOF FACTS**

 

Roger Cook has worked in the miningindustry since 1991 and has been employed by Respondent—or Respondent’s parentcompany, Blackhawk Mining—since approximately April 2016. Tr. at 18–19. At thetime Respondent suspended and terminated Cook, Cook was serving as a fire bossat Respondent’s Eagle #3 Mine. Tr. at 17; Jt. Ex. 1. As a fire boss, Cook wasgenerally responsible for identifying and recording unsafe conditions, and Cookwas also responsible for examining the mine’s airways. Tr. at 17, 19. 

 

Prior to Cook’s suspension andtermination in January 2021, Cook informed management of several safety-relatedincidents. In August 2020, Cook filed an accident report alleging that hesuffered respiratory problems resulting from spraying gunite on stoppingswithout a mask. Tr. 26–28. Additionally, between December 2020 and January2021, Cook voiced concerns about: instructions to build new stoppings to routeair around a roof fall; a flat car being pushed with one motor; and anoverloaded mantrip. Tr. at 30–31, 44–47. Cook also told management in January2021 about a non-functioning panic bar on a scoop.[2]Tr. at 56–58, 60–61.

 

On January 20, 2021, Cook wasinvolved in an incident concerning a “jumpered” ground monitor on a “cathead”cable plug for a return pump. Tr. at 19–20, 76. Cook testified that thiscondition created a shock hazard, and that he locked and tagged out the pieceof equipment to prevent injury. Tr. at 20–22; Ex. S-2. Cook then left the areato continue his examination of the return airway. Tr. at 22. Shortly after Cookleft the area, MSHA Inspector John Stone[3]witnessed the locked and tagged-out equipment. Tr. at 76–77. After noticingCook’s name on the tag, Inspector Stone requested that mine management summonCook so that Inspector Stone could question Cook. Tr. at 77–80. Superintendent TravisHartsog and foreman Brad Bunch found Cook and informed him that Inspector Stonewanted to speak with him. Tr. at 121–22. Cook then spoke with Inspector Stoneabout the cathead in front of Hartsog, Bunch, and other individuals who werestanding nearby. Tr. at 23–25, 81, 123. Inspector Stone issued a section 104(d)(2)order with respect to the condition Cook identified. Tr. at 83–84; Ex. S-3. 

 

The following day, Cook wassuspended from his position at the mine. Tr. at 32. Respondent terminated Cook fromhis employment four days later on January 25, 2021. *Id.* Cook had neverreceived any disciplinary action from Respondent prior to his suspension. *Id.*

 

**III.          ****APPLICATIONOF LAW**

 

Section 105(c) of the Mine Actprohibits discrimination against miners for exercising any protected rightunder the Act. The purpose of the protection is to encourage miners “to play anactive part in the enforcement of the Act” and recognizes 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).

 

Unlike a trial on the merits of adiscrimination complaint brought by the Secretary—where the Secretary bears theburden of proof by the preponderance of the evidence—the scope of a temporary reinstatementproceeding is statutorily limited. Section 105(c) of the Mine Act and CommissionRule 45(d) limit the issue in an application for temporary reinstatement towhether the subject discrimination complaint was “frivolously brought.” 30U.S.C. § 815(c); 29 C.F.R. § 700.45(d). 

 

The United States Court of Appealsfor the Eleventh Circuit has noted that the “not frivolously brought” standardis entirely different from the scrutiny applicable to a trial on the merits ofthe underlying discrimination complaint. *Jim Walters Res., Inc. v. FMSHRC*,920 F.2d 738, 744 (11th Cir. 1990). The standard is whether a miner’s complaintappears to have merit. *Id.* at 747. The Commission has set forth theelements to be considered under this standard: 1) that the miner has engaged in some protected activity under the Act, and 2)that the adverse action identified in the complaint was at least in partmotivated by the protected activity. *Sec’y of Labor on behalf of Baier v.Durango Gravel*, 21 FMSHRC 953, 957 (Sept. 1999). The motivation can beestablished by showing knowledge of the protected activity, hostility or animustowards the protected activity, and coincidence in time between the activityand the adverse action. *Sec’y of Labor on behalf of Stahl v. A&K EarthMovers, Inc.*, 22 FMSHRC 323, 326 (Mar. 2000). The nexus in time between theprotected activity and the adverse action may be sufficient to find impropermotive without a showing of animus or hostility. *Durango Gravel*, 21 FMSHRCat 957; *see also A&K Earth Movers, Inc.*, 22 FMSHRC at 325 n.2 (“[W]ehave never held that hostility is a prerequisite to a finding that a complaintis not frivolous.”). A temporary reinstatement hearing is not the appropriateforum for a determination of credibility between competing versions of eventsin evaluating whether a complaint appears to have merit. *Sec’y of Labor onbehalf of Williamson v. CAM Mining LLC*, 31 FMSHRC 1085, 1090 (Oct. 2009).

 

In this matter, there is sufficientevidence under the “not frivolously brought” standard to find that Cook engagedin protected activity. Cook testified that he witnessed or complained aboutseveral safety incidents between August 2020 and January 2021. The most recent suchincident occurred on January 20, 2021, when Cook locked and tagged out thecathead. Cook then cooperated with Inspector Stone’s inquiry regarding thecondition. Cook’s actions—including cooperating with Inspector Stone—are protectedactivity under the Act. *See Thomas v. CalPortland Co.*, 42 FMSHRC 43, 51(Jan. 2020) (cooperation with MSHA inspection was protected activity); *Sec’yof Labor on behalf of Knotts v. Tanglewood Energy, Inc.*, 19 FMSHRC 833, 837(May 1997). 

 

The short amount of time between theJanuary 20, 2021 incident and Cook’s suspension—in addition to the fact thatmanagement witnessed Cook’s discussion with Inspector Stone—sufficiently establishesa nexus in time and motivation for the purposes of this hearing. After Cooklocked and tagged out the cathead, he talked to Inspector Stone about the conditionin front of superintendent Hartsog and foreman Bunch—members of Respondent’smanagement. Because of this, I find that there is at least a non-frivolousissue that management was aware of the incident and that Respondent hadknowledge of Cook’s protected activity. *CAM Mining LLC*, 31 FMSHRC at1090 (“The Secretary need not prove that the operator has knowledge of the complainant’sprotected activity in a temporary reinstatement proceeding, only that there isa non-frivolous issue as to knowledge.”). Further, Respondent suspended andterminated Cook only days after speaking with Inspector Stone; thisdemonstrates a temporal nexus between the protected activity and adverse action.*See Turner v. Nat’l Cement Co. of Calif.*, 33 FMSHRC 1059, 1071 (2011) (complainant’stermination days after his most recent complaint could support inference ofimproper motivation for termination); *Sec’y of Labor on behalf of Shaffer v.Marion Cty. Coal Co.*, 40 FMSHRC 39, 43 (Feb. 2018) (“[T]here is no disputethat . . . termination from employment was an adverse action.”). In light of thisclear temporal nexus and management’s knowledge, there is sufficient evidencethat Cook’s protected activity motivated, at least in part, his suspension andtermination—the adverse actions identified in the complaint. In sum, I find thatCook’s complaint is not frivolously brought.

 

**ORDER**

** **

Respondent is hereby **ORDERED**to immediately reinstate Roger Cook to his duties as a fire boss or equivalentposition as of the date of his suspension and termination at the same rate ofpay and number of weekly hours with restoration of all other benefits to whichhe was then entitled.

 

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. Counsel for the Secretary **SHALL** also immediatelynotify my office of any settlement or of any determination that Respondent didnot violate section 105(c) of the Act.

 

 

 

 

/s/ Priscilla M. Rae

Priscilla M. Rae

Administrative LawJudge

 

 

 

 

Distribution:

 

LaShantaHarris, Office of the Solicitor, U.S. Department of Labor, 201 12th StreetSouth, Suite 401, Arlington, VA, 22202 (harris.LaShanta@dol.gov) 

 

ChristopherD. Pence, James P. McHugh, Hardy Pence, PLLC, 10 Hale Street, 4th Floor, P.O.Box 2548, Charleston, WV 25329 (cpence@hardypence.com; jmchugh@hardypence.com) 

 

RogerCook, 3264 Mud River Road, Danville, WV 25053 (DustyCook1234@gmail.com) 

----

[1] In this decision,“Tr.” refers to the transcript from the hearing. The Secretary’s exhibits arenumbered Ex. S-1 to S-3. The Respondent’s exhibit is numbered Ex. R-2. The parties’ jointstipulations are abbreviated “Jt. Ex. 1.”

 

[2] Respondent soughtto argue that it suspended and terminated Cook because he knew about thedeactivated panic bar on the scoop but did not inform management. RegardingRespondent’s proposed exhibits and testimony concerning that incident, theSecretary filed a Motion in Limine and Objections to Respondent’s hearing exhibits.On March 26, 2021, I granted the Secretary’s Motion and Objections because theproposed evidence concerned an affirmative defense and raised issues ofcredibility—and was therefore beyond the limited scope of a temporary reinstatementhearing. Respondent filed a Motion to Reconsider my March 26, 2021 Order, whichI denied. Respondent also made several proffers at hearing regarding thetestimony and exhibits I excluded in my March 26, 2021 Order. Tr. at 127–29. 

 

[3] Inspector Stonehas been employed by MSHA for approximately 14 years and is currently a coalmining inspector and electrical specialist. Tr. at 73. On the day in question,Inspector Stone was present at the mine to terminate outstanding citations andto perform his regular inspection of the mine. Tr. at 74–75.