FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240 / FAX: 412-928-8689

January 6, 2023 

 

ORDER GRANTING TEMPORARY REINSTATEMENT 

OF GEORGE PORTER

Before: Judge Lewis 

Pursuant to Section 105(c) 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”) on 

December 15, 2022, filed an Application for Temporary Reinstatement of miner Frank George 

Porter (“Complainant”) to his former position as a heavy equipment operator with Pacer 

Minerals, LLC, (“Respondent”) at Respondent’s mine pending final hearing and disposition of 

the case.

According to Commission Rule 45, a request for hearing must be filed within 10 days 

following receipt of the Secretary’s application for temporary reinstatement. 29 C.F.R. 

§ 2700.45(c). The Application for Temporary Reinstatement was served on Respondent by 

electronic mail on December 14, 2022. The Respondent has not filed a timely Request for 

Hearing. 

The Secretary has found that the Complaint was not frivolously brought and, as explained 

below, has provided evidence supporting that determination. Therefore, consistent with Section 

105(c) of the Act, the temporary reinstatement of George Porter is granted. 

Law and Regulations

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act and provides that a miner may file a complaint with the 

Secretary alleging discrimination. 30 U.S.C. § 815(c)(1-2). The plain language of the Act also 

provides that “if the Secretary finds that the complaint was not frivolously brought, the 

Commission, on an expedited basis upon application by the Secretary, shall order the immediate 

reinstatement of the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2) 

(emphasis added). 

SECRETARY OF LABOR,

 MINE SAFETY AN D HEALTH

 ADMINISTRATION (MSHA) obo 

 GEORGE PORTER

 Complainant, 

 v. 

PACER MINERALS, LLC, 

 Respondent

TEMPORARY REINSTATEMENT

Docket No. CENT 2023-0058 

MSHA No.: DENV-CD-2023-01 

Mine: Pink Monster

Mine ID: 39-01653 
2 

The Commission’s regulations control the temporary reinstatement procedures. Once an 

application for temporary reinstatement is served on the person against whom relief is sought, 

that person shall notify the Chief Administrative Law Judge or his designee within 10 calendar 

days whether a hearing on the application is requested. 29 C.F.R. § 2700.45(c). If no hearing is 

requested, the Judge assigned to the matter shall review immediately the Secretary’s application 

and, if based on the contents thereof, the Judge determines that the miner’s complaint was not 

frivolously brought,1 shall issue immediately a written order of temporary reinstatement. Id. 

 If there is a hearing, the Judge must determine whether the complaint of the miner “is 

supported by substantial evidence and is consistent with applicable law.”2 Sec’y of Labor on 

behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). In the instant 

case, however, the Respondent has not timely filed a request for hearing. Thus, Commission 

Procedural Rule 45(c) compels me to review the Secretary’s determination that the complaint in 

this matter was not frivolously brought. See 29 C.F.R. § 2700.45(c). 

Disposition

The Secretary has provided the evidentiary basis for his determination that the complaint 

in this matter has not been frivolously brought. The Act requires the Secretary to investigate the 

miner’s complaint of discrimination. 30 U.S.C. § 815(c)(2). The Secretary’s application includes 

the Complaint filed by Complainant (Exhibit “2” to the Application) and the Declaration of

Special Investigator Daniel Scherer indicating that this was done (Exhibit “1.”) 

Mr. Scherer’s Declaration provides facts in support of the Secretary’s conclusion that the 

complaint was not frivolously brought: 

3. My investigation of this case, which included witness interviews and a review 

of documents that Pacer provided, disclosed the following:

A. At all relevant times, Pacer operated the Pink Monster Mine near Pringle, 

S.D. (the “Mine”). MSHA has inspected Pacer’s operations on numerous 

occasions and Pacer is an “operator” under Section 3(d) of the Mine Act.

B. Pacer’s products, which include feldspar and mica, enter commerce, or 

its operations or the Mine’s products affect commerce.

C. Porter was, at all relevant times, employed as a heavy equipment operator 

by Pacer and was, therefore, a “miner” under Section 3(g) of the Mine 

Act.

1 The Act’s legislative history suggests that a complaint is not frivolously brought if it “appears 

to have merit.” S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate 

Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In addition to 

Congress’ “appears to have merit” standard, the Commission and the courts have also equated 

“not frivolously brought” to “reasonable cause to believe” and “not insubstantial.” 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, 747 & n.9 (11th Cir. 1990). 

2

 “Substantial evidence” means “such relevant evidence as a reliable mind might accept as 

adequate to support [the judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 11 FMSHRC 

2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).
3 

D. On October 24, 2022, Porter timely filed a discrimination complaint with

MSHA alleging that Pacer discharged him in violation of section 105(c) 

of the Mine Act.

4. Porter’s discrimination complaint arose from the following circumstances:

A. Porter worked for Pacer as a safety manager beginning in August 2021. 

At the time of his discharge, he worked 40 hours per week and earned 

$25.00 per hour as a heavy equipment operator.

B. In the fall of 2022, Pacer assigned Porter to work at the Mine after he had

worked at another of the company’s mines, the White Elephant, that 

Pacer subsequently closed.

C. On September 15, 2022, Porter and a colleague, Mark Hughes 

(“Hughes”), used heavy equipment to clear blasted overburden out of the 

Mine’s pit. Unbeknownst to them, they worked near where Pacer’s 

blasting contractor, Century Blasting Service, LLC (“Century”), had set 

explosives in six holes for blasting. Mine Manager Tony Boggs 

(“Boggs”) knew that the explosives were present but did not tell Porter. 

Instead, he directed them to work away from the explosives’ location 

without explaining why. Porter unwittingly worked near undetonated 

charges for several hours.

D. The explosives remained from an earlier blast on Pink Monster’s upper 

level. Century drilled and loaded holes for two shots, one above the other. 

However, the lower level holes – near where Porter and Hughes worked 

– were not tied into the blast sequence of the upper level holes. Neither 

Pacer nor Century noticed that this had occurred.

E. Porter reported this incident to Pacer General Manager Ryan Fredsall

(“Fredsall”) on September 22, 2022.

F. Fredsall and the company’s human resources director/accountant, 

Tamera Sutherland, investigated the incident but did not discipline 

anyone. 

G. On September 30, 2022, Pacer laid off Porter.

H. Porter did not work at the Mine again.

Dec. of Daniel Scherer, December 14, 2022 (Ex. “1” to App. For Temp. Reinst.)

The facts provided in support of the agency’s decision, if true, would establish 

jurisdiction, a timely complaint of discrimination, and that Complainant engaged in protected 

activity and suffered an adverse action close in time to the protected activity, under 

circumstances that provide a reasonable cause to believe that there was a causal nexus between 

his participation in an MSHA investigation and his termination.
4 

Findings and Conclusion

At this stage, the facts alleged by the Secretary are undisputed. Therefore, I find that the 

complaint for discrimination has not been frivolously brought, and that Complainant George 

Porter is entitled to Temporary Reinstatement under the provisions of Section 105(c) of the Act. 

ORDER

It is hereby ORDERED that George Porter be immediately TEMPORARILY 

REINSTATED to the position he held on the date of his discharge from Pacer Minerals, LLC, 

or a comparable position within the same commuting area and at the same rate of pay and 

benefits he received prior to his discharge. 

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. 

 

John Kent Lewis

 Administrative Law Judge

Distribution: 

Ryan Fredsall, General Manager, Pacer Minerals, 25429 U.S. Highway 385 Custer, S.D. 57730 

(ryan@pacerminerals.com) 

Matthew B. Finnigan. Esq., Office of the Solicitor, 1244 Speer Blvd., Suite 515 Denver, CO 80204-

3516 (finnigan.matthew@dol.gov) 

George Porter, 12066 Hoover Court, Custer, SD 57730, (georgeporter502@yahoo.com)