**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

 

 
| SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 on behalf of FRANK CAFEGO,

                           Complainant,

 

                        v.

 

CIVIL, LLC,

                           Respondent                                                                             |   |   | TEMPORARY REINSTATEMENT

 

Docket No. WEVA 2022-0317

MSHA Case No.: HOPE CD 2022-04

 

 

 

 

Mine: CV #2 Surface Mine

Mine ID: 46-09105 |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

**ORDER GRANTING TEMPORARY REINSTATEMENT**

**OF FRANK CAFEGO**

 

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 April 28, 2022, filed an Application for TemporaryReinstatement of miner Frank Cafego (“Complainant”) to his former position asan equipment operator and truck driver with Civil, 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 April 29, 2022. My managementanalyst provided Respondent with Commission Rule 45 on May 4, 2022. TheRespondent has not filed a timely Request for Hearing. The Secretary proposedon May 11, 2022, an Order of Temporary Reinstatement, which I approve herein. 

 

            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 Frank Cafego 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). 

                        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 “A” to the Application) and the Declaration ofSpecial Investigator Russell Richardson indicating that this was done (Exhibit“B.”) 

 

            Mr.Richardson’s Declaration provides facts in support of the Secretary’sconclusion that the complaint was not frivolously brought:

 

1.       At all relevant times, Civil, LLC,(“Civil”) was a Limited Liability corporation and is a “person” as defined in §3(f) of the Mine Act.

2.       Applicant was employed as an equipmentoperator and truck driver at Civil, LLC, and therefore, was a “miner” withinthe meaning of § 3(g) of the Mine Act.

3.       Applicant was employed at the minefor approximately three months, from January 2022 until he was discharged fromhis employment on March 25, 2022.

4.       On April 7, 2022, Cafego filed adiscrimination complaint with MSHA for being fired on March 25, 2022.

5.       Applicant alleges that he was firedbecause he engaged in protected activities.

6.       Applicant alleges that hecomplained to management about the condition of the equipment that he wasassigned to operate on numerous occasions prior to his being discharged. Forinstance, Mr. Cafego complained to management repeatedly during his employmentof an anti-freeze leak and lack of air conditioning in the truck he wasassigned to operate, which required him to operate the truck with the windowsopen and exposed him to excessive amounts of dust being generated at theworksite.

7.       The investigation into Cafego’scomplaint is ongoing. To this point, I have interviewed several employees andmanagement personnel at the mine. Employees and management corroborated thatCafego complained about the condition of the equipment on numerous occasions.Management personnel admitted that they were aware of Cafego’s complaints.Management personnel stated that the reason Mr. Cafego was discharged was inpart because he complained too much.

 

Dec. of RussellRichardson, April 28, 2022 (Ex. “B” 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.

 

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

 

**ORDER**

 

It is hereby **ORDERED** that **Frank Cafego** be **immediately****TEMPORARILY REINSTATED**to the position he held on the date of hisdischarge from Civil, 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. 

 

 

 

 

/s/John Kent Lewis

                                                                                    JohnKent Lewis

                                                                                    AdministrativeLaw Judge

 

 

Distribution: 

 

Cole Quintrell, Superintendent, 799 Highway 3459, Harlan,KY, 40831 (cole@civilllc.us)

 

Andrea M. Milyko, Esq., Office of the Solicitor, U.S.Department of Labor, 201 12th Street South, Suite 401, Arlington, VA 22202 (milyko.andrea.m@dol.gov)

 

Frank Cafego, P.O. Box 293, Kincaid, WV 25119 (cafegofrank@gmail.com) 

----

[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)).