**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

1331 Pennsylvania Ave.NW, Suite 520N

TELEPHONE: (202)434-9958/ FAX: (202)434-9949

 

 
| SECRETARY OF LABOR

  MINE SAFETY AND HEALTH     

  ADMINISTRATION (MSHA), 

  on behalf of BRANDON HALL,

                           Complainant,

 

                        v.

 

WARRIOR MET COAL COMPANY, 

  LLC,

                           Respondent                                                                                      |   |   | TEMPORARY REINSTATEMENT

PROCEEDING

 

Docket No. SE 2021-0118

MSHA Case No.: SE-MD 2021-01

 

 

 

 

Mine: No. 7 Mine

Mine ID: 01-01401 |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

**ORDER GRANTING TEMPORARY REINSTATEMENT**

**OF BRANDON HALL**

 

Before:             Judge Sullivan

 

            Pursuantto Section 105(c)(2) 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, on April 30, 2021, theSecretary of Labor (“Secretary”) filed an Application for TemporaryReinstatement of miner Brandon Hall (“Complainant”) to his former position as alongwall operator with Warrior Met Coal Company, LLC (“Respondent”) at its MineNo. 7. Here, the Secretary’s application satisfies the proceduralrequirements of Commission Procedural Rule 45(b), as, among other things, ittimely “states the Secretary’sfinding that the miner’s discrimination complaint was not frivolouslybrought[,] accompanied by an affidavit setting forth the Secretary’s reasonssupporting his finding[,] and includes a copy of the miner’s complaint to theSecretary . . .” 29 C.F.R. §2700.45(b).[1]

 

            Accordingto Commission Rule 45(c), 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’s certificate of service states that itwas served on Respondent by electronic mail on April 30. On May 10, 2021, Respondentcontacted the Court and stated that it does not intend to request a hearing ontemporary reinstatement. Consequently, I review the contents of the Secretary’sapplication to determine whether the complaint in this instance “was notfrivolously brought.” *Id.*

 

Section 105(c)(1) of the Mine Actprovides that “[n]o person shall discharge . . . any miner . . . because suchminer . . . has filed or made a complaint under or related to this Act,including a complaint notifying the operator . . . of an alleged danger orsafety or health violation in a . . . mine . . . .” 30 U.S.C. § 815(c)(1). Inhis Application, as supported by his investigator’s affidavit, the Secretaryalleges the following to establish the Complaint as having been not frivolouslybrought under section 105(c)(1) & (2):

 

(1)  During his January 25, 2021 shift, the Complainant raised withRespondent’s agents a number of safety issues with respect to the operation ofthe longwall that day, such as the lack of a required fire extinguisher,shearer bits that needed to be replaced, elevated methane levels, and thick gobin the pathway of the section where he worked. The foregoing adversely impactedthe progress of the longwall shearer during the shift;

 

(2)  Respondent’s agents subsequently reacted negatively to the speed atwhich the Complainant was working throughout the shift; and

 

(3)   At the end of theshift, Complainant was suspended for five days, with intent to discharge, forhaving “stopp[ed] coal production.” That punishment was later reduced to atwo-week suspension to be followed by a 30-working day probationary period. Afterreturning to work on February 8, 2021, Complainant, on March 15, 2021 (thusapparently prior to the end of his probation), was fired for failing, at theend of a shift, to follow orders and personally clean a bus he and two otherminers had been using.

 

There being no opposition to theApplication, I agree with the Secretary that it establishes the Complaint tohave been “not frivolously brought” in this instance. *See Jim Walters Res.,Inc. v. FMSHRC*, 920 F.2d 738, 747 (11th Cir. 1990) (in light of Mine Actlegislative history and the Supreme Court’s treatment of a similarwhistleblower protection provision, interpreting the “not frivolously brought”standard to be the equivalent of a “reasonable cause to believe” standard andto be met when a miner’s “complaint appears to have merit”). Accordingly, theApplication is granted. I reach no conclusion beyond that regarding the meritsof the Complaint.

 

**ORDER**

 

It is hereby **ORDERED** that **BRANDON HALL** be **immediately****TEMPORARILY REINSTATED** to his former job at his former rate of pay,overtime, and all benefits he was receiving at the time of his termination. 

 

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). Given that that the Mine Act directs that both the Secretary andthe Commission act expeditiously in section 105(c) proceedings, the Secretary **SHALL**provide a report on the status of the underlying discrimination complaint **assoon as possible**. Counsel for the Secretary **SHALL** also **immediately**notify my office of any settlement or of any determination that theRespondent did not violate Section 105(c) of the Act.

 

 

 

 

/s/John T. Sullivan

                                                                                    JohnT. Sullivan

                                                                                    AdministrativeLaw Judge

 

 

 

Distribution:

 

NicholasC. Hall, Esq., Office of the Solicitor, U. S. Department of Labor 61 ForsythStreet, S.W., Room 7T10, Atlanta, GA 30303 (hall.nicholas.c@dol.gov)

 

GregoryWillis, Special Investigator, U.S. Department of Labor, MSHA, Birmingham, AL (willis.gregory.c@dol.gov) 

 

GuyW. Hensley, Esq., Warrior Met Coal Mining, LLC, 16243 Highway 216, Birmingham,AL 3544 (guy.hensley@warriormetcoal.com)            

AllenB. Bennett, Esq., Maynard Cooper, Gale, PC, 2400 Regions/Harbert Plaza, 19016th Avenue North, Birmingham, AL 35203 (jbennett@maynardcooper.com)

 

JackJacobs, Esq., Maples, Tucker, and Jacobs LLC, 2001 Park Place North, Suite 1325,Birmingham, AL 35203 (jack@mtandj.com)

 

BrandonHall, 1121 48th Street Birmingham, Alabama 35208 (viking.4life@hotmail.com)

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[1]The Discrimination Complaint (“Complaint”) filed with the Secretary’s MineSafety and Health Administration by the Complainant is dated March 24, 2021. Itwas filed within 60 days of the Complainant’s March 15 termination ofemployment. Section 105(c)(3) directs the Secretary to determine whether asection 105(c) violation occurred within 90 days, which in this instance wouldbe no later than June 22, 2021.