**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

721 19th Street, Suite443

Denver, CO 80202-2536

303-844-3577/rmanning@fmshrc.gov

 

 
| SECRETARY  OF LABOR, MSHA,

 on  behalf of VICTOR TORRES,

                            Applicant

 

                        v.

W.  G. YATES & SONS

 CONSTRUCTION  COMPANY,

                            Respondent                                                                            |   |   | APPLICATION  FOR TEMPORARY

 REINSTATEMENT

 

Docket  No. WEST 2023-0256-DM

MSHA  Case No. VACA MD 2023-06

 

Mt.  Pass Mine & Mill

Mine  ID 04-02542 G556  |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

**ORDER GRANTINGAPPLICATION FOR TEMPORARY REINSTATEMENT**

**& ORDERTOLLING TEMPORARY REINSTATEMENT**

 

Appearances:              NatashaMagness, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle,Washington for Applicant;

McCord Wilson, Esq., Rader & Campbell,Dallas, Texas for Respondent

 

Before:                                    JudgeManning

This case is before me on an Applicationfor Temporary Reinstatement (the “Application”) filed by the Secretary of Laboron behalf of Victor Torres (“Torres”) against W.G. Yates & Son’sConstruction Co., and all successors in interest (“Yates”) pursuant to section105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(c)(2) (the “Mine Act”).[1]The Secretary’s Application alleges that on or about April 13, 2023, Yatesterminated Torres from his position as a journeyman millwright in retaliationfor “raising safety concerns including exercising his stop work authority.” App.Temp. Reinstatement 2-3. The Secretary requests an order directing Yates totemporarily reinstate Torres “to the position of Journeyman Millwright, or to asimilar position at the same rate of pay and benefits and with all of the sameseniority or other perquisites of the job, and with the same or equivalentduties assigned to him” pending final hearing and disposition on thediscrimination complaint. *Id*. 1, 3. 

 

The undisputed evidence establishes that MPMaterials Corp. is restarting a surface rare earth mine in California near theNevada border at a location known as Mountain Pass. A different operator minedrare earths at the mine in the past but it went out of business. Because of thestrategic importance of rare earths, the Department of Defense is involved inrestarting operations, presumably by providing at least some of the funding. Thecritical work to restart operations is to build a facility to separate thetargeted rare earths from the mined material. This facility, known as the processingfacility (the “facility’), is being built from the ground up. Due to thesecretive nature of the equipment being installed and the processes to be used,taking photos at the facility is prohibited except by authorized personnel.

 Yates was a major contractor hired toconstruct the facility. The construction of the facility was put on a fasttrack and at the time of the hearing work was virtually complete. All thatremained was testing the facility by running product through the facility and thecommissioning of the facility. At the beginning of 2023, Yates employed between800 and 1,000 people at the facility. About 110 of these employees werejourneymen millwrights. On the date of Torres’s termination, about 270 peopleworked for Yates including 15 millwrights. On the day of the hearing in thiscase, about 22 people worked for Yates at the facility, including twomillwrights and a millwright supervisor. The millwrights and millwrightsupervisor were primarily on standby in case repairs needed to be made duringtesting and commissioning. As discussed below, Torres was assigned weldingduties for much of his employment at Yates. There were no welders employed onthe date of the hearing. 

 

The Secretary contends that Torres wasselected for termination on April 13 because of his safety complaint. Yatescontends Torres was laid off along with other millwrights because hisdemonstrated skills were no longer needed at the facility. 

 

The parties stipulated that (1) Yates is amine operator under the Mine Act; (2) the Mountain Pass Mine & Mill, whichincludes the subject facility, is a mine under the Mine Act; (3) Torres is a minerunder the Mine Act, and (4) the Commission has jurisdiction over this case. Tr.10-11.

 

The parties presented testimony anddocumentary evidence at a hearing held via the Commission’s secure videoconferencing system. For the reasons set forth below, I find that theapplication for temporary reinstatement must be **GRANTED**, but thattemporary reinstatement is **TOLLED**.

 

**I.  SUMMARY OF THEEVIDENCE**

 

            Eachparty offered two witnesses. A summary of each witnesses’ testimony follows.

 

**VictorTorres**

 

            Torreswas hired by Yates on September 8, 2022, as a journeyman millwright at thefacility.[2]Tr. 17. Torres’s job duties as a millwright included making equipment layoutsand aligning, assembling, and installing equipment. Tr. 20. According toTorres, millwrights normally bring their own tools to job sites, and he broughthis own tools to the job at the facility. Tr. 50.

 

Although Torres’s job title never changedwhile he was with Yates, at some point after he was hired, at Yates’s request,Torres took a test to become a structural welder. Tr. 18-19. At that time therewere only four other certified welders.[3]Tr. 19. As a structural welder for Yates, Torres was tasked with fabricatingequipment and making needed modifications. Tr. 20. Torres worked as astructural welder until that part of the project was completed and thenswitched back to being a millwright. Tr. 53-54.

 

            Eachday at the job began with a meeting of the crews and foremen during whichTorres received his assigned tasks for the day. Tr. 21. Generally, Torresworked in one location on an assigned task until it was completed before movingto another location for his next task. Tr. 21.

 

            OnApril 10, 2023, Torres was tasked with using a manlift to bring down pipe froman elevated rack. Tr. 26. According to Torres, the manlift manual says the liftshould not be used as crane.[4]Tr. 30. Torres believed it was not safe to bring down a pipe with the manlift. Tr.30. Torres’s crew requested a crane to safely complete the task, but therequest was denied by Tyler Towns, an engineer with Yates and Torres’s foremanat the time. Tr. 26-27. Towns instead instructed the crew to use the manliftfor the task. Tr. 27. At that point Torres refused to complete the task andexercised his “stop work authority.” Tr. 27-28. “Stop work authority” allowsanyone to stop all work when they see something unsafe.[5] Tr. 28. According toTorres, Towns said if Torres would not do the job as instructed then Townswould find someone else to do so and Torres would be removed. Tr. 28. Torresunderstood Towns’s comment to mean that Torres would be fired. Tr. 28-29.

 

            AfterTorres exercised “stop work authority” a group of supervisors came to thelocation and two other miners used the manlift to complete the task. Tr. 29.Torres used his phone camera to take photos of the miners completing the workfor inclusion in a “stop work authority” report. Tr. 34; Sec’y Ex. 2 p. 1-3.According to Torres, he needed to take the photos for use as evidence whenraising the safety concern so that this type of incident would not happenagain. Tr. 34, 77-78. The photos show two individuals in an elevated manbasketwith a length of pipe laying across the top rails of the basket. Tr. 29-32; Sec’yEx. 2 p. 1-3. The pipe appears to be tied to the railing. Tr. 31. According toTorres, the procedure used by the miners was unsafe because the manlift shouldnot have been used as a crane and the pipe could have exceeded the lift’sweight limit and caused the lift to tip or hydraulics to fail, which could inturn cause an injury. Tr. 30.

 

At some point Torres traveled with RumegusEaton, the general foreman, to Yates’s office to fill out a report about themanlift incident. Tr. 35; Sec’y Ex. 3. Torres met with Bryan French, who Torresdescribed as the project manager, Jimmy Hayes, the millwright superintendent,and others. Tr. 58-59. Torres testified that neither French nor Hayes said itwas wrong for Torres to use his “stop work authority,” but both talked toTorres about how using the phone to take photos was against policy.[6] Tr. 59, 63. Oncross-examination Torres acknowledged employees had been terminated in the pastfor taking photos and that he could have been terminated for that reason. Tr.64. However, Torres received no discipline that day. Tr. 64-65. Torresultimately left the office and went back to work on a task at a differentlocation than where the manlift incident occurred. Tr. 67.

 

            Duringthe morning task meeting on April 11, the day after the manlift incident, JoseSegovia, a Yates foreman, gave Torres a written list[7] of tasks to complete in adifferent area of the facility than where Torres had worked on April 10. Tr.36-38, 68; Sec’y Ex. 4. Torres’s crew included two employees that had workedwith Torres on April 10 and had been involved in the manlift incident. Tr.66-67. According to Torres, the task list surprised him because it includedtasks not normally undertaken by millwrights, tasks which only certain othercrews were allowed to complete, and tasks for which Torres was overqualified. Tr.38-39. Moreover, when speaking to a coworker during his lunch break that day,Torres learned that other employees were performing tasks that normally would havebeen performed by Torres. Tr. 39-40.

 

            Duringthe morning task meeting on April 12, two days after the manlift incident,Torres was surprised to learn that he was again assigned tasks outside of hisnormal duties and was not provided the necessary materials to complete thosetasks.[8]Tr. 41-42. However, on cross-examination, Torres conceded the missing materialswere things a millwright would use to install equipment and some of the tasksassigned on both April 11 and 12 were typical for a millwright. Tr. 73-74. 

 

Torres testified that at some point onApril 12 a coworker informed Torres that Eaton had told that coworker thatpeople involved in taking photos of the manlift incident were going to be laidoff. Tr. 44-45.

 

On April 13 Eaton pulled Torres andanother individual from the morning task meeting and told them to gather theirbelongings because they were being laid off. Tr. 43. Both Torres and the otherindividual had exercised their “stop work authority” on April 10. Tr. 46. Eatondid not provide Torres with a reason for the layoff. Tr. 46.

 

At hearing, Torres stated he believed hewas assigned tasks outside of his craft on April 11 and 12 and ultimatelyterminated because he raised safety concerns about the manlift and exercisedhis “stop work authority” on April 10. Tr. 42-43, 46-47. According to Torres, noone from Yates ever told him why he was laid off. Tr. 46. Torres filed hiscomplaint of discrimination on April 19. Tr. 23; Sec’y Ex. 1.

 

Torres testified he was never told thathis work was deficient, and he had no reason to believe Yates was dissatisfiedwith his work. Tr. 47. On cross-examination Torres acknowledged he had beendisciplined by Yates in the past after multiple instances ofabsenteeism/tardiness. Tr. 59-62; Yates Ex. R2. Still, Torres testified hewants to return to work for Yates, and, based on seeing the car of one of hisformer millwright coworkers at the facility on June 19, believes there is stillmillwright work to be done at the facility. Tr. 48. However, oncross-examination Torres acknowledged that, given that he did not know whatmillwrights were still at the facility, he could not compare his skillset tothe skillsets of those individuals. Tr. 70-71.

 

Torres acknowledged he knew the governmentwas involved in the Mountain Pass project and Yates was building facilities forprocessing rare earth metals. Tr. 52-53. Further, he understood that the jobwas temporary and was approaching completion at the time of his layoff.[9] Tr. 52, 68. Althoughhe was aware many millwrights and structural welders were laid off prior to histermination, he did not expect to be laid off on April 13 because he was stillgetting millwright work.[10]Tr. 74-75.

 

Torres testified he is not from the areaand only relocated to the area when he started the job in September. Tr. 48-49.He has had difficulty meeting financial obligations since being terminated. Tr.49.

 

**KyleJackson**

 

            KyleJackson[11]was the MSHA Special Investigator charged with investigating Torres’scomplaint. Tr. 87-88; Sec’y Ex. 1. As part of his investigation, he contactedboth Torres and personnel from Yates. Tr. 88. Based on his investigation,Jackson determined that Torres’s complaint was made in good faith and notfrivolously brought.[12]Tr. 88.

            Oncross-examination Jackson agreed that during his inspection he learned Yates’swork at the facility was temporary and originally scheduled for completion inMay of 2023. Tr. 95-96. Further, he agreed the number of Yates employees haddrastically decreased in recent months, including a reduction in the number ofmillwrights from over 100 to less than five, a reduction to zero structuralwelders, and a reduction in the total number of employees from roughly onethousand to less than 25. Tr. 96, 99, 102, 25. Jackson further acknowledgedthat four millwrights were laid off the week after Torres’s layoff, and onlyone of those individuals was involved in the manlift incident on April 10. Tr.105-106. Jackson agreed those layoffs indicated that millwrights were notneeded by Yates at that time. Tr. 106.

 

Jackson conceded he had no knowledgeregarding the skillsets of the few remaining millwrights and did not try tocompare Torres’s skillset as a millwright or structural welder to the skillsetsof those individuals still onsite. Tr. 99-101. Moreover, although Jacksontestified he was aware of the of the general duties of millwrights in otherindustries, he acknowledged he was not aware of the typical duties ofmillwrights for Yates, including whether raising and lowering pipe was a normalmillwright duty. Tr. 103.

 

On cross-examination Jackson agreed Yateshad in place a policy against taking photos and Yates had terminated other employeesfor violating that policy. Tr. 97. Moreover, he agreed Torres violated thatpolicy on April 10. Tr. 98.

 

            DuringJackson’s investigation Yates provided him with a list of laid off employees. Tr.93-94; Yates Ex. R4. At hearing, Jackson testified the list did not change hisdetermination that Torres’s complaint was not frivolously brought. Tr. 94, 106.Although Jackson agreed Yates was conducting mass layoffs, he testifiedTorres’s layoff on April 13 could nevertheless have been discriminatory becauseit occurred within three days of Torres’s protected activity. Tr. 107.Moreover, according to Jackson, Torres brought his claim to MSHA in good faithand believed the layoff was a result of his protected activity. Tr. 109.

 

**JimmyHayes**

 

            JimmyHayes was Yates’s millwright superintendent at the facility until June 8, atwhich point he was taken off the project due to downsizing.[13] Tr. 113.

 

Hayes explained that Yates was contractedto build a rare earth mineral processing facility at the mine. Tr. 114.According to Hayes, the rare earth mineral processing facility will be only thesecond in the world, with the other being in China. Tr. 114. The Department ofDefense runs the facility and, given the need to keep information about thefacility from getting out, taking photos with phones is prohibited unless aperson has proper clearance to do so. Tr. 114, 118. Hayes testified thatemployees have been terminated for violating this policy. Tr. 117.

 

Hayes explained that Yates’s project wasoriginally scheduled to be completed in April of 2023.[14] Tr. 115. Although theproject has not yet been completed it has been winding down throughout 2023. Tr.115. Hayes testified that, at the project’s peak, Yates employed roughly 110millwrights. Tr. 126. As of April 13, only 14 millwrights remained. Tr. 126. Asof June 8, there were no structural welders and only four millwrights and onemillwright foreman working on the project. Tr. 125-126. According to Hayes, themillwrights remaining on June 8 were “exceptional” and capable of doing everytask. Tr. 126-127. Although Hayes is no longer working at the mine, he is awarethat only two millwrights currently remain and there is no millwright work. Tr.136-137. The remaining millwrights are essentially on “standby” in case thereis an issue with a pump and are not doing true millwright work. Tr. 135-137. Hayestestified that Yates’s contract ends on July 1, 2023, and, although extensionsare possible, the plan is for all Yates employees to be gone on that date. Tr.128, 160.

 

Hayes testified that on April 10 when helearned about the manlift incident he was not concerned about Torres’s use of“stop work authority” but was concerned about Torres taking photos at thefacility. Tr. 116. As a result, he had Torres come to the office to write astatement. Tr. 116-117.

 

Hayes and Bryan French, the projectsuperintendent, met with Torres at the office. Tr. 119. Both Hayes and Frenchagreed with Torres’s use of “stop work authority.” Tr. 119-120. According toHayes, no one involved with the manlift incident was disciplined for exercisingtheir “stop work authority.” Tr. 119. Hayes explained that Torres was notterminated on April 10 for taking photos because the photos were taken in theinterest of safety and did not show any processes. Tr. 117.

 

Following the meeting, Torres went back towork but was assigned tasks in a different area. Tr. 148-149. Hayes testifiedhe did not want conflict among the employees and the job Torres was moved to,i.e., tank cleaning closures, was more important than the pipe task Torres hadbeen assigned to at the time of the manlift incident.[15] Tr. 149. Torres nevercomplained about his assignments after the manlift incident. Tr. 133.

 

Hayes described the layoff process. Accordingto Hayes, layoffs occur in rounds. Tr. 137. French is responsible fordetermining how many man hours of work remain at the job and then determiningthe number of workers needed to complete that work. Tr. 120-121. French thendetermines the number of employees that must be laid off that round andprovides the number to Hayes. Tr. 120. Hayes, as the millwright superintendent,in turn decides which millwrights should be laid off. Tr. 120. Hayes makes hisdetermination who to lay off based on the working knowledge of the remainingmillwrights, whether those individuals have the tools necessary to complete theremaining work, and whether those individuals have issues with absenteeism ortardiness. Tr. 121, 142-143. According to Hayes, there is no written list ofcriteria or performance evaluation to determine an employee’s skillset and mostof that determination is made by Hayes when observing the millwrights work inthe field. Tr. 144-145. Employees are not given advance notice of layoffs. Tr.162. Rather, the general foreman notifies the employees that they are beinglaid off the same day. Tr. 161. The laid off employees then complete thenecessary paperwork before warehouse personnel conduct a toolbox check, andthen the employees clock out and leave. Tr. 161-162.

 

            Hayesexplained that Torres was laid off on April 13 as part of a reduction in forcedue to a decrease in work for Yates at the facility. According to Hayes, Torres’slack of the necessary skillset, lack of tools, and issues involvingabsenteeism/tardiness played a part in the decision to include Torres in thatround of layoffs.[16]Tr. 123-125, 143. Hayes acknowledged that the factors he considered were notweighted in any way and that, ultimately, it was his decision based on his ownexperience. Tr. 148.

 

            Hayestestified that Torres lacked the necessary skillset and tools to remainemployed at the project. According to Hayes, Torres was classified as a structuralwelder and all structural welding work had been completed.[17] Tr. 121. Hayes explainedthat, although there had been no structural welding work for some time, becauseTorres had been hired as a millwright, Torres was kept on to completemillwright tasks associated with the startup portion of the job. Tr. 121,140-141. However, once the project entered the startup and commissioningphases, which Hayes described as “fast-paced[,]” “precision” work, Hayes didnot believe Torres had the necessary knowledge or skillset to complete theremaining tasks. Tr. 124. Hayes did not believe Torres knew how to use a laseror indicator. Tr. 124. Hayes testified that, even if Torres had the necessaryknowledge and skillset, he did not have the necessary tools[18] and even if he did, it mayonly have helped Torres last another week given that there was very littlemillwright work and the millwrights that remained were having to work othercrafts.[19]Tr. 125, 146.

            Hayesalso testified that over the course of Torres’s employment Hayes generallyselected other millwrights for work on critical tasks due to Torres’s lack ofknowledge. Tr. 141-142. Hayes knew Torres lacked knowledge in certain areasbecause of conversations with foremen and other employees, and the types of toolsTorres had and did not have. Tr. 141-142. Further, Hayes testified that Yatesoffered voluntary training opportunities for employees to expand theirskillsets, but Torres chose not to participate in those sessions. Tr. 142,154-155.

 

            Hayestestified that even if Torres had the necessary skills and tools, Torres wouldnot have been kept on past April 13 because the remaining millwrights, all ofwhom had the necessary skills and tools, did not have the absenteeism/tardinessissues Torres had. Tr. 147-148.

 

            Hayestestified that the week after he laid off Torres he had to lay off an entirecrew of millwrights, as well as a millwright foreman, due to lack of millwrightwork. Tr. 123, 130-131; *See* Yates Ex. R4 p. 8. On cross-examinationHayes explained that Torres was not terminated with that group of millwrightsbecause that group had been working with a vendor on a task involvingconveyors, and Torres had never worked with that group on that task. Tr. 139. However,Hayes conceded he never asked Torres if he had the skillset for that task. Tr.140.

 

**BryanFrench**

 

            BryanFrench was, and currently is, Yates’s job superintendent at the facility. Tr.164. French described his position as “high level” and stated he is notinvolved in crew assignments. Tr. 169-170, 195. 

 

French, like Hayes, testified that thefacility is a Department of Defense job meant to compete with China. Tr. 165.Yates was contracted by the mine operator to put in new processes andprocedures to extract rare earth minerals. Tr. 165.

 

French echoed Hayes’s testimony thatYates’s work at the facility is winding down because the project scope has beencompleted and Yates is now just waiting on the mine operator to deliver productthrough each part of the processing facility. Tr. 178. According to French,while there were between 800 and 1000 Yates employees at the facility at thebeginning of 2023, that number has dwindled to 20 current employees, none ofwhich are structural welders, and only three of which are millwrights, with oneof those three being a supervisor.[20]Tr. 175-178; *See* Yates Exs. R3 (graph depicting total workforce) and R5(job reports showing decline in number of millwrights during June 2023). Frenchacknowledged that Yates is still performing limited work at the facility andestimated that the three remaining millwrights are working approximately 20hours per week at present. Tr. 178, 183-184. 

 

On April 10 French met with Torres in thesafety office to discuss the manlift incident. Tr. 167. According to French, noone was disciplined for use of “stop work authority” and he even told Torres heagreed with the decision to exercise “stop work authority.” Tr. 168-169.Although French agreed he could have terminated or disciplined Torres for takingphotos,[21]he ultimately decided not to do so because the photos were just of the pipe,and not the process, and had been taken in the interest of safety. Tr. 168-169.At some point after meeting with Torres, French made the decision to swap outthe crew working on the pipe project because a crane was being called over tocomplete the task. Tr. 170, 186-187. According to French, Torres was not acertified rigger or signal person and, as a result, was not qualified to workwith the crane. Tr. 186-187. Instead, Torres was assigned cleaning and closingtasks that needed to be completed for commissioning.[22] Tr. 170, 186. Frenchexplained that one of the reasons he swapped out the crew was becauseconstruction workers can be difficult at times, and occasionally workers needto be moved to a different task to get the most out of them and so that no onegets hurt. Tr. 186-187.

 

French explained that Yates starteddownsizing in March. Tr. 171. His role in that process involved evaluating thebudget and man hours required and then determining how many people were neededin each craft to complete the work. Tr. 171-173, 189. French would then tellhis craft superintendents how many of their employees needed to be laid off. Tr.173. The superintendent then determined who needed to be laid off and justifiedthat decision to French. Tr. 173-174, 189. On cross-examination French concededthere was no objective ranking or measuring system of employees. Tr. 190.French testified that advance notice of layoffs was not provided to hourlyemployees. Tr. 181. 

 

Here, at some point prior to April 13,French provided the number of needed millwright layoffs to Hayes but did nottell Hayes who to lay off. Tr. 173. Hayes then evaluated his needs in the fieldand determined that Torres and another millwright should be laid off. Tr. 175,191. According to French, Hayes justified Torres’s inclusion in the layoffbecause there was no more welding work and what work was left involvedprecision commissioning tasks that, as far as French knew, Torres did not havethe skillset for. Tr. 174-175. Because Hayes worked closely with the employeesin the field, French relied on Hayes’s evaluation of Torres’s skillset. Tr.191. Although French did not know Torres’s skillset for millwright work, he wasaware that when Torres was hired he did not have all the tools necessary formillwright work. Tr. 192. Like other hourly employees, Torres was not givenadvance notice of being laid off. Tr. 181-182. French testified that Torres’suse of “stop work authority” played no role in the layoff decision. Tr. 171.

 

Ultimately, French signed paperwork thatindicates Torres was laid off as part of a reduction in force. Tr. 196; YatesEx. R1. The same paperwork indicates that Torres’s job performance was rated as“good” and that Torres was recommended for rehire. Tr. 196-198.

 

In addition to Torres, another millwrightand a group of employees on the night shift were laid off together. Tr,194-195. French described that round of layoffs as “tough” because he knew Yateswas laying off “good help.” Tr. 195.

 

On cross-examination French acknowledgedthat millwrights can do a wide range of work. Tr. 183. However, he testifiedthat the only millwright work currently left at the facility involves pumps,and he has not seen Torres work on pumps, nor does he know if Torres has theskillset to do so. Tr. 193.

 

**II.  DISCUSSIONWITH FINDINGS OF FACT AND CONCLUSIONS OF LAW**

 

Section 105(c) of the Mine Act prohibitsdiscrimination against miners for exercising any protected right under the Act.[23] 30 U.S.C. §815(c). A miner who believes they have been discriminated against may “file acomplaint with the Secretary alleging such discrimination.” 30 U.S.C. §815(c)(2). “[I]f the Secretary finds that such complaint was not frivolouslybrought, the Commission, on an expedited basis upon application of theSecretary, shall order the immediate reinstatement of the miner pending finalorder on the complaint.” 30 U.S.C. § 815(c)(2). The person against whom reliefis sought may request a hearing on the Secretary’s application for temporaryreinstatement. 29 C.F.R. § 2700.45(c). 

 

The Commission’s procedural rules and caselaw are clear that the scope of a hearing on an application for temporaryreinstatement is narrow and “limited to a determination as to whether theminer’s complaint was frivolously brought.”[24]29 C.F.R. § 2700.45(d); *Sec’y of Labor on behalf of Price v. Jim WalterResources, Inc.*, 9 FMSHRC 1305, 1306 (Aug. 1987), *aff’d sub nom. JimWalter Resources Inc. v. FMSHRC*, 920 F.2d 738 (11th Cir. 1990) (“*JWR*”).

 

The “not frivolously brought” standarddoes not require a judge to determine whether sufficient evidence ofdiscrimination exists to justify permanent reinstatement. *JWR* at 744.Rather, under the standard, the judge is tasked with evaluating the evidence ofthe Secretary’s case to determine whether the miner’s complaint ofdiscrimination appears to have merit, i.e., a non-frivolous issue ofdiscriminatory motivation. *Sec'y of Labor on behalf of Williamson v. CAMMining, LLC*, 31 FMSHRC 1085, 1089 (Oct. 2009). 

 

Although the Secretary need not prove aprima facie case of discrimination in a temporary reinstatement proceeding, “itis useful to review the elements of a discrimination claim in order to assesswhether the evidence at this stage of the proceedings meets the non-frivoloustest.” *Id*. at 1088. In order to prove a prima facie case ofdiscrimination the Secretary has traditionally been required to establish that(1) a complaining miner engaged in protected activity and (2) that the adverse actioncomplained of was motivated in part by that activity.[25]*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). Althoughdirect evidence of a motivational nexus between a protected activity andadverse action is rarely available, the Secretary may establish discriminatorymotive by circumstantial evidence such as (1) the operator’s knowledge of theprotected activity, (2) hostility or animus toward the protected activity, (3)coincidence in time between the protected activity and the adverse action, and(4) disparate treatment of the miner. *Sec'y of Labor on behalf of Chacon v.Phelps Dodge Corp.*, 3 FMSHRC 2508, 2510-12 (Nov. 1981). 

 

Unlike a discrimination proceeding inwhich a judge is tasked with resolving conflicting evidence, in a temporaryreinstatement proceeding the judge should not make credibility determinationsor weigh the operator’s evidence against that of theSecretary’s when determining whether to grant the application for temporaryreinstatement.*Sec’y of Labor on behalf of Billings v. ProppantSpecialists, LLC*, 33 FMSHRC 2383, 2385 (Oct. 2011); *Sec’y of Labor onbehalf of Albu v. Chicopee Coal Co.*, 21 FMSHRC 717, 719 (July 1999) (It is“not the judge’s duty, nor is it the Commission’s, to resolve the conflict intestimony at this preliminary stage of the proceedings.”). Moreover, althoughevidence directed at an affirmative defense or rebuttal is permitted at atemporary reinstatement hearing, that “evidence may not serve as a basis fordenial of reinstatement if it requires resolution of a credibilitydetermination.” *Sec’y of Labor on behalf of Saldivar v. Grimes Rock, Inc.*,43 FMSHRC 299, 301 (June 2021).

 

**A.The Secretary Established that the Complaint Was Not Frivolously Brought**

 

            The“not frivolously brought” standard imposes a low standard of proof upon theSecretary. Here, I find that the Secretary met that standard and that Torres’s complaintinvolves a non-frivolous issue of discriminatory motivation.

 

The Commission has held that if theSecretary shows that the mine operator had knowledge of protected activity and thatthe time between the protected activity and the adverse action was short, she hasmet her burden in most temporary reinstatement cases.[26] Here, the Secretaryintroduced evidence that Torres engaged in protected activity when he raisedsafety concerns to Towns, a foreman, and exercised his “stop work authority.” NeitherHayes nor French, both members of Yates management, disputed that Torresengaged in that activity, and both confirmed they had knowledge of thatactivity on the day it occurred. Moreover, there is no dispute Torres wasdischarged three days after that activity. Given management’s knowledge of thealleged protected activity and the temporal proximity between that activity andTorres’s discharge, I cannot find that the discrimination complaint filed byTorres was frivolously brought. Rather, I find that Torres’s complaint appearsto have merit. 

 

In addition to the circumstantial evidenceof discriminatory motivation discussed above, the Secretary introduced evidencethat Torres was assigned undesirable tasks after engaging in protectedactivity. Namely, Torres testified he, among other things, was assigned tasksoutside of his craft in a different area of the facility than where he had beenworking, was assigned tasks for which he was overqualified, and was notprovided with materials necessary to complete some tasks. Further, Torrestestified that prior to April 13 he heard from another employee that Yatesplanned to lay off employees involved in the April 10 manlift incident. In herclosing argument the Secretary asserted that the events described by Torres“showed clear animus” toward Torres because of his protected activity. Tr.205-207. Although Hayes and French offered testimony that disputes Torres’sassertions and provides possible justifications for the work assignment, I amprohibited from weighing that evidence against the Secretary’s evidence whendetermining whether to grant the application for temporary reinstatement.Accordingly, I find that the Secretary’s evidence on Yates’s alleged animastoward Torres further establishes that the complaint was not frivolouslybrought. 

 

The Secretary did not discuss or attemptto establish that Torres was subject to disparate treatment. Nevertheless, I findthat the circumstantial evidence discussed above establishes that the applicationfor temporary reinstatement was not frivolously brought and that Torres must be**REINSTATED**.[27]However, for reasons set forth below, I find that Yates’s reinstatementobligation is tolled.

**B.Immediate Reinstatement is Not an Available Remedy**

** **

            Thepresent case is rather unusual because Yates was rapidly downsizing prior toTorres’ discharge, at the time of his discharge, and after his discharge. AlthoughI cannot weigh the evidence presented by the parties when determining whetherto grant the application for temporary reinstatement, I can evaluate undisputedevidence concerning events that occurred at the facility in 2023 to determinewhether Yates’s reinstatement obligation should be tolled. 

 

The Commission hasheld that certain types of events affect the availability of relevant work at amine for the miner at issue and may toll an operator’s temporary reinstatementobligation. *Sec’y of Labor on behalf of McGoughran v. Lehigh Cement CompanyLLC,*42 FMSHRC 467, 470 (July 2020). For example, “changing circumstances,”such as layoffs that result in a reduction of the work force, may toll theobligation. *Sec'y of Labor on behalf of Gatlin v. KenAmerican Res., Inc.,*31 FMSHRC 1050, 1054-56 (Oct. 2009). “Operators bear the burden of showing by apreponderance of the evidence that tolling is justified.” *McGoughran* at470 (citing *Sec'y of Labor on behalf of Ratliff v. Cobra Natural Res.*,LLC, 35 FMSHRC 394, 397 (Feb. 2013)). “[I]n order for an operator to establishthat temporary reinstatement should be tolled based on a subsequent layoff, theoperator must demonstrate that ‘the layoff properly included’ the miner whofiled the complaint of discrimination.” *Ratliff* at 397 (citing *Gatlin*at 1055).

 

It is undisputed that the work beingperformed by Yates at the Mountain Pass Mine & Mill was winding down startingin March-April 2023. I credit the undisputed testimony of Hayes and French thatwork for welders was mostly completed at the time of Torres’s termination andthat there was no remaining work for structural welders at the time of histermination. Torres had been a structural welder for much of his employment in2023 and he was listed as a structural welder in Yates’s list of laid offemployees, Yates Ex. R4, and on a disciplinary form, Yates Ex. R2 p. 2 

 

            Ialso credit the testimony of Hayes and French as to the method used whenselecting people for layoff. Most importantly, I credit their testimony that,in any event, Torres would not have been one of the two millwrights that werestill working as of the date of the hearing in this case. That is, if Torreshad never complained about using the manlift to move the pipe or exercised his“stop work authority,” he would have been laid off prior to the date of thehearing.  *See Sec’y of Labor on behalf of Anderson v. A&G Coal Corp.*,39 FMSHRC 315 (Feb. 2017) (discussing a judge’s “ability to review the totalityof the evidence in determining whether the operator carried its burden ofproving that the employee would have been included in the layoff for reasonswholly unrelated to protected activity.”). I specifically credit Hayes’stestimony that Torres lacked the skillset to be performing work at the facilityduring the testing and commissioning phase. The two millwrights who remained asof the date of the hearing had more experience and possessed the specific typeof skills that were necessary during this phase. Further, according to Hayes,none of the remaining millwrights had the absenteeism/tardiness issues thatTorres had. Hayes described the millwrights who remained after June 8 as“exceptional.” Moreover, it is highly likely the two remaining millwrights willbe laid off soon because Yates’s work at the facility is almost completed. Indeed,Hayes, the millwright superintendent, became a victim of downsizing at the facilityon June 8, 2023. 

 

            Finally,I credit the testimony of French that one of the currently employed millwrightswould have to be laid off to accommodate Torres’s reemployment. The remainingmillwrights are working about 20 hours a week on standby in case they areneeded during testing and commissioning. The undisputed evidence establishesthat Hayes and French honestly believed that Torres was not as qualified to dothat work as other employees. Once material from the mine has been successfullyprocessed by the facility and commissioning is complete, Yates will apparently nolonger have any presence at the mine. If that work has not been completed bythe date of this decision, it will be completed very soon.

 

            In*Sec’y of Labor on behalf of Ratliff v. Cobra Natural Resources, LLC*, 35FMSHRC 394, 396 (Feb. 2013), the Commission held that “[w]hile the scope oftemporary reinstatement proceedings is limited to determining whether thecomplaint is frivolously brought, we have permitted a limited inquiry todetermine whether the obligation to reinstate a miner may be tolled.” There theCommission “reject[ed] the Secretary's argument that the judge . . . exceededthe scope of the temporary reinstatement hearing by considering whether thelayoff tolled . . . [the operator’s] obligation to temporarily reinstate” theapplicant, and instead held that during a temporary reinstatement hearing a“judge may appropriately consider evidence offered by an operator seeking toaffirmatively show that reinstatement should be tolled because of a layoff dueto business contractions or similar conditions.” *Id*. at 397. 

 

            Forthe reasons stated above, I find that Yates demonstrated by a preponderance of theevidence, almost all of which was undisputed, that Torres would have beenproperly included in one of the many rounds of layoffs that occurred afterApril 13, 2023, even if he did not raise the safety issue involving the manliftor exercise his “stop work authority.” Given the rapidly dwindling Yatesworkforce at the facility, and the undisputed evidence that Torres lacked theskillset to be one of the remaining millwrights at the facility, I find thattolling is justified. I credit the testimony of Hayes and French on thesefacts. Their testimony was internally consistent, and they projected an honestdemeanor. 

 

            Consequently,the obligation of Yates to reinstate Torres is **TOLLED**. If Yates recalls oneor more journeyman millwrights or structural welders to work at the facility,Torres must be placed at the top of the recall list.[28]

 

**ORDER**

            Forthe reasons set forth above, I find that the Secretary established thatTorres’s complaint of discrimination was “not frivolously brought,” as thatterm is understood in section 105(c)(2) of the Mine Act and, accordingly, theApplication for Temporary Reinstatement is **GRANTED**. For the reasonsdiscussed above, Torres’s reinstatement is **ORDERED** to be **TOLLED**until further notice. If Yates determines that it needs to rehire one or morejourneyman millwrights or structural welders at the facility it **SHALL** giveTorres the right of first refusal for the position. Both the Secretary and thiscourt shall be notified if Yates determines that it needs to reinstate anyoneto those positions. The Secretary **SHALL COMPLETE** her investigation ofthe underlying discrimination complaint as quickly as possible.[29]I retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R §2700.45(e)(4).

 

 

 

/s/Richard W. Manning

                                                                        RichardW. Manning

                                                                        AdministrativeLaw Judge

 

 

Distribution:(Certified Mail and email)

 

NatashaMagness, Esq., Office of the Solicitor, United States Department of Labor, 300Fifth Avenue, Suite 1120, Seattle, WA 98104 (magness.natasha.a@dol.gov)

 

McCordWilson, Esq., Rader and Campbell, 2777 N. Stemmons Freeway, Suite 1125 

Dallas,TX 75207 (mwilson@radercampbell.com)

----

[1] The applicationwas filed by the Secretary on June 2, 2023. Yates timely requested a hearingwithin 10 days of receipt of the application. 29 C.F.R. § 2700.45(c). At therequest of the parties, the hearing was held on June 28, 2023.

[2] Torres testifiedhe had eight years of experience as a millwright. Tr. 16. Prior to being hiredby Yates, Torres was a 1099 independent contractor and spent time working forboth Casey Industrial and Phoenix Industrial. Tr. 16. Torres earned $35 perhour and worked approximately 60 hours per week for Yates. Tr. 18, 21. Accordingto Torres, roughly 18 other millwrights were hired around the same time as him,and an additional 12 millwrights after he was hired. Tr. 18.

 

[3] Only one othercertified welder was left at the facility after April 13. Tr. 19.

 

[4] Oncross-examination Torres acknowledged there is an attachment approved by themanlift manufacturer that can be used to safely raise and lower pipe with thelift. Tr. 65-66. However, the attachment could not be found on April 10. Tr.65.

 

[5] Torres acknowledgedthat he was trained how to use “stop work authority.” Tr. 72.

 

[6] At hearing,Torres conceded that he was aware there was a policy against taking photos atthe facility and that he violated that policy on April 10. Tr. 53, 63-64.

 

[7]Torres didnot know who wrote the list. Tr. 68.

[8] Some of the April12 assigned tasks were included on the written list provided to Torres on April11. Tr. 41-42. Torres testified that the tasks assigned on April 12 requiredbolts, hardware, flanges, and hoses that were not provided. Tr. 42, 73-74

[9] Torres concededthat at the time of the hearing he did not know the state of the project or ifthe equipment and machinery were in working order. Tr. 80-81.

 

[10] Torresacknowledged there was not much welding work available at the time of histermination. Tr. 75. Torres was also aware that four millwrights were laid offthe week after his termination, one of whom was involved in the manliftincident and three of whom were not. Tr. 75-76.

 

[11] Jackson has beenwith MSHA for 22 years. Tr. 85. As a special investigator, part of his job isto investigate discrimination cases brought under section 105 of the Mine Act. Tr.86-87.

 

[12] Jackson testifiedregarding two citations issued to Yates for alleged violations of mandatorystandards during a hazard complaint inspection. Tr. 89-93; Sec’y Ex. 5.According to Jackson, the condition or practice described in the two citationswas the same as that which Torres used to justify exercising his “stop workauthority” during the manlift incident. Tr. 92. Jackson explained that thefirst citation was issued to address the hazard of raising and lowering pipewith the manlift when the pipe is only tied off to the basket, while the secondcitation was issued to address the hazard of the person directing the work notbeing task trained on safe operation of the manlift. Tr. 93.

 

[13] Hayes is currentlyemployed by Yates as a project superintendent, presumably at a different Yatesjob site. Tr. 112. Hayes has been with Yates for approximately 13 years and hasworked in construction for 28 years. Tr. 112.

 

[14] At the time Hayesleft the project on June 8 Yates had assembled and tested everything and wasjust waiting on the mine operator to move product through all areas of thefacility. Tr. 115.

 

[15] Hayes testifiedthe pipe task Torres was assigned to on April 10 was completed around April 15or 16, and all pipe work, including fixing leaks, was completed at some pointin April. Tr. 149-150. Although Torres was qualified to raise and lower pipeand fix leaks, Hayes testified that those tasks were not typical millwrightduties but could be completed by a millwright. Tr. 150. However, because therewas not enough millwright work at the time, Hayes was assigning millwrightstasks outside of their craft. Tr. 151.

[16] At least oneother millwright and three pipe workers were included in the round of layoffsthat included Torres. Hayes testified that the decision to lay off Torres andthe other employees in that round was made at the same time even though themillwrights were laid off on the April 13 and the others were laid off on April14. Tr. 152. The individuals laid off on April 14 were laid off on that datebecause they worked the night shift. Tr. 152; *See* Yates Ex. R4 p. 8. Moreover,according to Hayes the other millwright laid off the same day as Torres lackedthe necessary skillset. Tr. 158.

[17] Although onewelder remained employed at the facility after Torres was laid off, thatindividual had much better welding qualifications than Torres, could readdrawings, and had the ability to fabricate most anything. Tr. 122. That welderhas since been laid off. Tr. 122.

 

[18] Hayes testifiedthere is a list of millwright tools. Tr. 146. 

 

[19] Hayes agreed thatmillwrights performed a wide range of tasks and were consistently asked to workon tasks outside of their craft, including changing pipes. Tr. 136.

[20] French testifiedthat on April 13 only a couple hundred Yates employees remained at thefacility, with only 15 of those employees being millwrights. Tr. 176-177. Atone point there were approximately 120 millwrights working for Yates at thefacility. Tr. 179. The only remaining welder at the facility is a pipe weldercapable of both pipe welding and structural welding. Tr. 180. Torres wasdesignated as a structural welder and did not weld pipe. Tr. 180.

 

[21] French testifiedthat photos cannot be taken at the facility. Tr. 165. French has had toterminate employees for taking photos. Tr. 166. According to French, thedecision to terminate an employee for taking photos is “immediate.” Tr. 166.

 

[22] According toFrench, Torres was not given less desirable jobs because of his use of “stopwork authority.” Tr. 170. Moreover, Torres never complained about theassignments he was given. Tr. 170-171.

[23] The purpose ofthe protection is to encourage miners “to play an active part in theenforcement of the [Mine] Act” recognizing that, “if miners are to beencouraged to be active in matters of safety and health, they must be protectedagainst any possible discrimination which they might suffer as a result oftheir participation.” S. Rep. No. 95-181, at 35 (1977), *reprinted in*Senate Subcomm. on Labor, Comm. on Human Res., *Legislative History of theFederal Mine Safety and Health Act of 1977* at 623 (1978) (“Legis. Hist.”).

 

[24] Although narrowin scope, a temporary reinstatement hearing must be a “full evidentiaryprocess,” during which the judge “must consider any evidence which is relevantto the adverse action[,] -- even that which seems directed to an affirmativedefense or rebuttal of the miner’s claim.” *Sec’y ofLabor on behalf of Saldivar v. Grimes Rock, Inc.*, 43 FMSHRC 299, 301 (June2021) (citing *Sec’y of Labor on behalf of Cook v. Rockwell Mining, LLC*,43 FMSHRC 157 (Apr. 2021)).

[25] In 2021 the NinthCircuit Court of Appeals rejected the Commission’s longstanding *Pasula-Robinette*framework and instead adopted a “but-for” causation standard for discriminationcases brought in the Ninth Circuit. *Thomas v. CalPortland Co.*, 993 F.3d1204 (9th Cir. 2021). Although the standard for proving discrimination cases inthe Ninth Circuit has undoubtedly changed, the Commission has recognized that“the requirements for a full discrimination proceeding do not affect the ‘notfrivolously brought’ standard in a temporary reinstatement case such as this.” *Sec’yof Labor on behalf of Saldivar v. Grimes Rock, Inc.*, 43 FMSHRC 299, 303(June 2021).

 

[26] “The Commissionhas held that the Secretary may establish a non-frivolous motivational nexussimply through the operator's knowledge of protected activity and temporalproximity between the protected activity and the adverse action.” *Sec’y ofLabor on behalf of Cook v. Rockwell Mining, LLC*, 43 FMSHRC 157, 162 (Apr.2021) (citing *Sec'y of Labor on behalf of Stahl v. A&K Earth Movers Inc.*,22 FMSHRC 323, 325-26 (Mar. 2000)).

 

[27]In *Sec’y ofLabor on behalf of Kevin Shaffer v. Marion County Coal Co*., 40 FMSHRC 39,47 (Feb. 2018), Commissioner Althen and former Commissioner Young held that a“Judge need 

not accepttestimony if it is demonstrably false, patently incredible, or obviouslyerroneous, 

because suchevidence fails to qualify as “substantial evidence” upon which a reasonableperson 

might rely.” Theopinion went on to state:

 

            Thus,all evidence relating to the adverse employment action is relevant in atemporary reinstatement proceeding — even that which seems directed to anaffirmative defense or rebuttal of the miner’s claim. While we agree that theJudge should not make credibility and value determinations of the operator’srebuttal or affirmative defense, if the totality of the evidence or testimonyadmits of only one conclusion, there is no conflict to resolve. It is theJudge’s duty to determine whether the claim is frivolous, in light ofundisputed or conclusively-established facts and inescapable inferences.

 

*Id.*In addition, theopinion stated:

 

            We maydefine a “non-frivolous” case as one that is “viable.” At the conclusion of atemporary reinstatement proceeding, the Secretary must have shown *by a**preponderanceof the evidence the existence a claim of discrimination or interference that iscapable of succeeding* — that is, a case which is not foreclosed by theevidence available and one for which there is a reasonable cause to believe thecomplainant may prevail.

 

*Id.* at 48 (emphasisadded). 

 

TheSecretary objected to the evidence presented by Yates regarding the changedcircumstances presented by the layoffs at the facility. I overruled theSecretary’s objection and allowed Yates to present all of its evidence on thisissue as supported by *Sec’y of Labor on behalf of Cook v. Rockwell Mining,LLC*, 43 FMSHRC 157 (Apr. 2021) and other decisions. Based on therecord as a whole I cannot say that the testimony of Torres was“demonstrably false, patently incredible, or obviously erroneous.”

 

 

[28] There is noevidence that Yates is performing work at any other location that is subject toMSHA jurisdiction.

 

[29] Under section105(c)(3), the Secretary is required to complete her investigation within 90days of receipt of the complaint of discrimination.