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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

May 18, 2021 

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. 
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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 rollover 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. 
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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 

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.
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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 

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. 
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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 

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.
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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. 

Margaret A. Miller

Administrative Law Judge
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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