**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

OFFICE OF ADMINISTRATIVELAW JUDGES

721 19TH STREET, SUITE443

DENVER, CO 80202-2500

TELEPHONE: 303-844-5266/ FAX: 303-844-5268

 

 

SECRETARYOF LABOR,                                 :     APPLICATION FOR 

 MINESAFETY AND HEALTH                        :     TEMPORARY REINSTATEMENT 

 ADMINISTRATION(MSHA),                          :     

 on behalfof ALVARO SALDIVAR,                  :     Docket No. WEST 2021-0178-DM

                                    Complainant,                    :     

                                                                              :

                        v.                                                   :

                                                                              :

GRIMESROCK, INC.,                                        :     Mine: Grimes Rock,Inc.

                                    Respondent.                      :     MineID: 04-05432

** **

** **

**DECISION AND ORDER OF REINSTATEMENT**

** **

****

Appearances: Karla Malagon, Jessica Flores, and Bruce Brown, Office of the Solicitor,

U.S. Department of Labor, LosAngeles, California, for the Complainant 

                        PeterGoldenring and Mark Pachowicz, Pachowicz & Goldenring PLC, 

Ventura, California, for theRespondent 

 

Before:           Judge Miller

 

 

This case is before meupon an application for temporary reinstatement filed 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 et seq. On April 12, 2021, the Secretaryfiled the application on behalf of Alvaro Saldivar seeking his reinstatement asa lube and water truck/equipment operator at the Grimes Rock, Inc. Mine inFillmore, California, pending the final disposition of Saldivar’sdiscrimination complaint. 

 

This case wasoriginally assigned to Judge Richard Manning on April 13, 2021. Two days later,the Respondent requested a hearing on the application for temporaryreinstatement. The parties agreed that the hearing could be set beyond the tencalendar days provided for by Commission Rule 45, and Judge Manning set thehearing for May 11, 2021. 

 

The case was reassignedto my docket on May 4, 2021. A hearing was held via Zoom for Governmentvideoconference on May 11, 2021. The parties presented witnesses and exhibitsand each filed a brief following the hearing.  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. 

 

**I.               ****SUMMARYOF THE EVIDENCE**

 

Alvaro Saldivar, aminer under the Mine Act, testified that he worked for Grimes Rock on twoseparate occasions. He was first employed as a welder from May 2019 throughJuly 2019. Tr. 16. After leaving, Saldivar was hired again as a servicetechnician and an operator on October 5, 2020. Tr. 15-16. His employment wasterminated on January 15, 2021.

 

Saldivar testifiedthat, during his most recent stint of employment, he reported several safetyissues to his direct supervisor as well as mine management. Many of the issues involvedthe water truck that he was tasked with operating. Saldivar was concerned withthe condition of the tires on the truck, which he claims were “bad,” “balding,”and missing tread. Tr. 17. He stated that, as a result of the worn tires, hewas involved in an accident on December 10, 2020 in which the truck losttraction as it drove uphill, ultimately sliding down the incline and hitting acinder block. Tr. 19. Saldivar was also concerned about mechanical issues withthe truck, including a long-term oil leak, leaking antifreeze, and a missingshock absorber. Tr. 20.  According to Saldivar, he reported all of these issuesto his direct supervisor Rene Garcia and general manager Ernie Melendez onmultiple occasions. Tr. 18, 20. Saldivar testified his supervisors took noaction to remedy these issues, and that he was required to continue using thetruck in its poor condition. Tr. 18, 21. 

 

Saldivar explained thathe made reports regarding a variety of faulty equipment. He testified that headvised management of the bad brakes on an outdated motor grader, missingroll-over protection system (ROPS) labels on the DAL #1 and #2 dozers, andleaking diesel on service truck #40 at the mine. Tr. 22, 24, 26. 

 

Saldivar also testifiedthat he had complained about the lack of proper training received. While hesigned documents stating that he received new miner training, Saldivar believedthat he did not receive the required specific task training relating to thelarge equipment that he was required to operate. Tr. 21, 25-26, 28, 44; *see*Ex. R-C. He testified that he had continually asked for task training on thewater truck, the motor grader, the dozers, and the service truck. Tr. 21,25-26, 28. He said that he even made his requests in writing on his dailypre-shift reports. According to Saldivar, his requests for additional training wentunaddressed. Tr. 22. On cross examination, Saldivar admitted that he receivedtraining from the Quinn Company, but asserted that the training did not relateto operation of the equipment but rather maintenance of certain equipment. Tr. 46-47,74. 

 

Grimes Rock issued fivedisciplinary warnings to Saldivar during his second tenure of employment at themine. *See* Ex. K. For each warning, Saldivar testified that he did notcommit the infraction as written on the discipline form, and that he signed theforms only to avoid losing his job. Tr. 49-50, 54-56, 59, 62-63, 64, 75. Saldivaralso testified as to his belief that his supervisors were acting in a“malicious” manner towards him and that the discipline was being issued inretaliation for his frequent complaints about jobsite safety hazards. Tr. 28,59. 

 

On January 15, 2021,Saldivar was terminated by Grimes Rock. Tr. 27. He testified that histermination occurred just one day after he last reported a safety issue onJanuary 14. Tr. 40. 

 

**II.            ****DISCUSSION**

 

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).

 

A miner that lodges acomplaint of discrimination under section 105(c) is entitled to “immediatereinstatement . . . pending final order on the complaint” as long as thecomplaint was “not frivolously brought.” 30 U.S.C. § 815(c)(2). 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). This standard reflects a Congressional intentthat “employers should bear a proportionately greater burden of the risk of anerroneous decision in a temporary reinstatement proceeding.” *Jim WalterRes., Inc. v. FMSHRC*, 920 F.2d 738, 748 (11th Cir. 1990).

 

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 nonfrivolousissue of discrimination and need not make a full showing of its prima faciecase of discrimination. *Id*. at 1088. Nevertheless, it may be “useful toreview the elements of a discrimination claim” when gauging whether a claim isnonfrivolous. *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).[1] 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). 

 

While it is true that ajudge may consider these factors, a temporary reinstatement case remains“conceptually different” than the underlying case of discrimination. *JimWalter Res., Inc. v. FMSHRC*, 920 F.2d at 744. The Mine Act envisions an“expedited basis” for a temporary reinstatement proceeding that does not permitfull discovery or complete resolution of conflicting testimony. 30 U.S.C. §815(c)(2); *Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC*, 34FMSHRC 1875, 1879 (Aug. 2012). In fact, Commission case law indicates that resolvingcredibility issues or conflicts in testimony is beyond the scope of a temporaryreinstatement hearing. *Williamson*, 31 FMSHRC at 1089. Similarly, a judgeis not permitted to weigh the operator’s evidence against the Secretary’sevidence when determining whether to grant temporary reinstatement. *Id*.at 1091. 

 

Here, I find thatSaldivar’s complaint of discrimination was not frivolously brought. Saldivartestified that he made several safety complaints to both his immediatesupervisor and the mine manager from October 2020 until the time he wasterminated in January 2021. These complaints concerned the safety of severalpieces of equipment that Saldivar was obliged to use on a daily basis, as wellas the lack of task-specific training necessary to operate the equipmentsafely. Lodging these complaints constitutes a protected activity under section105(c)(1) of the Mine Act, 30 U.S.C. § 815(c)(1). Saldivar also testified thathe was fired by Grimes Rock on January 15, 2021, the day after he made acomplaint about the safety of the truck he was told to drive. It is clear thatSaldivar engaged in protected activity and that he suffered an adverse action.

 

There is also asufficient motivational nexus between the protected activity and the adverseaction to support Saldivar’s temporary reinstatement. Saldivar testified thathe made a final safety complaint on January 14, 2021 and that his employmentwas terminated the following day. The coincidence in time between the protectedactivity and the adverse action is evidence of a discriminatory motive. *Sec'yon behalf of Stahl v. A&K Earth Movers, Inc.*, 22 FMSHRC 323, 325 (Mar.2000). Saldivar also testified that he had continuously made mine managementaware of his safety complaints. The employer’s knowledge of the protectedactivity is another factor that may establish a motivational nexus. *Chacon*,3 FMSHRC at 2510. Additionally, Saldivar claimed that his supervisor treatedhim badly after he made complaints, and that he was ultimately fired inresponse to the number of complaints that he made, suggesting hostility towardsthe protected activity. *See id*. The Respondent, while disputing thesepoints in its brief, did not introduce a witness to disprove Saldivar’s claimsor offer an alternative reasoning for his termination.[2]  Regardless, it is not necessaryto resolve conflicts between the parties’ accounts at this stage in theproceedings. *Sec'y on behalf of Albu v. Chicopee Coal Company, Inc.*, 21FMSHRC 717, 719 (July 1999). The Secretary has therefore introduced sufficientevidence to show that Saldivar’s complaint was not frivolously brought. *See*29 C.F.R. § 2700.45(d) (“[T]he Secretary may limit his presentation to thetestimony of the complainant.”). 

 

The Respondent argues that it wasdenied a full hearing on the issue of temporary reinstatement, relying heavilyon the recent Commission decision in *Secretary of Labor on behalf of Cook v.Rockwell Mining, LLC*, 42 FMSHRC __, slip op., No. WEVA 2021-0203 (Apr. 23,2021). In *Rockwell,*the Commission determined that a judge must conducta “full hearing” during the temporary reinstatement case, and that judgesshould admit any relevant evidence that is offered at hearing. *Id*. Inthis case, the Court issued an order that specifically approved two witnesses thatthe Respondent wished to call (one of whom was expected to be called to discussanimus) and repeatedly advised the Respondent at hearing that it was free tocall witnesses to testify on relevant issues, such as the mine’s motivation forterminating Saldivar. *See, e.g.*, tr. 53, 81. The Respondent elected notto call any witnesses. Further, no evidence that the Respondent presented athearing was excluded.[3]There is therefore no indication that the Respondent was denied a full hearing.

 

The Respondent also contends in itsbrief that the exhibits showing disciplinary write-ups are enough to show thathis claim is frivolous. I disagree. For one, the Respondent was asked athearing whether the write-ups (Exhibit K) were being used to demonstrate thathis employment was terminated based on those write-ups. The Respondent said no:

 

Judge Miller: So youhave submitted a number of exhibits that are disciplinary – are write-ups. Sois it your position – your client’s position that Mr. Saldivar was terminatedbased – because he received these write-ups? Is that your position?

 

Mr. Goldenring:So it wasn’t because he received the write-ups. He was terminated because heplaced himself, others, and equipment at risk and damaged equipment and not forany animus or motivation about complaints about anything, Your Honor, and hehas . . . no documents to substantiate that.

Tr. 51-52. In any event, Saldivardisputed what was written in those write-ups, and Grimes Rock presented noevidence to demonstrate that Saldivar was terminated for damaging equipment or thata certain number of disciplinary actions results in an employee’s terminationat its mine. The write-ups alone do not constitute proof that Saldivar’s claimis frivolous.

 

**III.          ****ORDER**

 

The application fortemporary reinstatement is hereby **GRANTED**. Respondent is **ORDERED**to, immediately upon receipt of this decision, reinstate Mr. Saldivar to hisformer position at the mine effective as of the date of this decision. Theemployment of Mr. Saldivar shall be at the same rate of pay and with all benefits,including any raises, that he received prior to discharge, pending a finalCommission order on the complaint of discrimination. 

 

 

 

 

/s/Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

 

 

 

 

Distribution:(Electronic Mail and Certified U.S. First Class Mail)

 

Karla Malagon, U.S. Department of Labor, Office of theSolicitor, 350 S. Figueroa Street, Suite 370, Los Angeles, CA 90071, malagon.karla@dol.gov

 

Jessica M. Flores, U.S. Department of Labor, Office of theSolicitor, 350 S. Figueroa Street, Suite 370, Los Angeles, CA 90071, Flores.Jessica@dol.gov

 

Bruce L. Brown, U.S. Department of Labor, Office of the Solicitor,350 S. Figueroa Street, Suite 370, Los Angeles, CA 90071, Brown.Bruce.L@dol.gov

 

Peter Goldenring, Pachowicz & Goldenring PLC, 6050Seahawk Street, Ventura, CA 93003, peter@pglaw.law

 

Mark R. Pachowicz, Pachowicz & Goldenring PLC, 6050Seahawk Street, Ventura, CA 93003, mark@pglaw.law

 

Alvaro Saldivar, 1241 Lookout Drive, Oxnard, CA 93035, saldivarwelding@icloud.com

----

[1] The Ninth Circuitrecently rejected the *Pasula-Robinette* framework in *Thomas v.CalPortland Co*., 993 F.3d 1204 (9th Cir. 2021). Specifically, the Courtstruck down the requirement that the adverse action was motivated “at leastpartially” by the protected activity in favor of a but-for causation standard. *Id*.at 1209-11. The Commission has not articulated a newstandard in the wake of *Thomas*, but the case may require an examinationof elements different than those set forth in current Commission case law. However,the standard for temporary reinstatement would not be affected. A miner shallbe reinstated if the complaint was not frivolously brought, and the elements ofa discrimination claim are merely “useful” guideposts under that standard. *Williamson*,31 FMSHRC at 1088. Here I look to whether the alleged adverse action occurred “because[a] miner . . . filed or made a complaint . . . including a complaint notifyingthe operator . . . of an alleged danger or safety or health violation in a . .. mine . . . or because of the exercise by such miner . . . of any otherstatutory right afforded by this chapter.” 30 U.S.C. § 815(c)(1). If I were touse the but-for standard articulated in *Thomas,*the outcome does notchange here.

[2] The Respondentdid file a list of witnesses to be called at hearing as well as a lengthy listof exhibits, but chose not to call any witnesses in the end. Instead, theRespondent filed a “Post Hearing Griefing” (*sic*) that was combative,inflammatory, and relied solely on Saldivar’s testimony on cross-examinationand on evidence not in the record.  

[3] Respondent didprovide a list of exhibits, some of which were rejected prior to hearingbecause they either contained personal identifying information such as socialsecurity numbers, or they included reference to a criminal record of Saldivarwhich I deemed prejudicial. In its brief, the Respondent contends, for thefirst time, that evidence of Saldivar’s criminal record should have beenadmitted under Federal Rule of Evidence 609. This rule allows the use of afelony record to impeach a witness for his character of truthfulness. TheFederal Rules do not control evidentiary issues in front of the Commission, butthey can be helpful when the policy supporting a rule is relevant. *SeeLeeco, Inc*., 38 FMSHRC 1634, 1639 (July 2016). However, a rule about attackinga witness’s truthfulness is inapposite here because credibility is not at issuein a temporary reinstatement case. Since Respondent indicated that Saldivar washired with full knowledge of his criminal background, there was no need toinclude such records and the inclusion would have been prejudicial.