**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

**1331PENNSYLVANIA AVE., N.W., SUITE 520N**

**WASHINGTON,DC 20004-1710**

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| SECRETARY OF  LABOR,

  MINE SAFETY  AND HEALTH        

  ADMINISTRATION  (MSHA)

  on behalf  of VICTOR TORRES

                        v.

 

W.G. YATES  & SONS

  CONSTRUCTION  COMPANY                                       | :

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Docket No. WEST  2023-0256-DM

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BEFORE:  Jordan, Chair; Althen, Rajkovich and Baker, Commissioners 

**DECISION**

 

BYTHE COMMISSION: 

 

            Thistemporary reinstatement proceeding arises under the Federal Mine Safety andHealth Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”). TheSecretary of Labor filed an Application for Temporary Reinstatement on behalfof Victor Torres against W.G. Yates & Sons Construction Company (“Yates”)pursuant to section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2). On July 6,2023, the Administrative Law Judge issued an Order Granting Application forTemporary Reinstatement and Order Tolling Temporary Reinstatement, in which hefound that Torres’s complaint was non-frivolous but the remedy of temporaryreinstatement was not available due to layoffs at the facility. 45 FMSHRC __,No. WEST 2023-0256-DM (July 6, 2023) (ALJ). The Secretary subsequently filed atimely petition for review of the Judge’s order, directed at the tolling issue.For the reasons that follow, we grant the petition, and vacate and remand thepart of the Judge’s order addressing tolling. 

 

**I.     **** **

** **

**Factual and Procedural Background**

** **

**A.   ****Factual Background**

** **

Victor Torresworked as a journeyman millwright and welder for W.G. Yates and SonsConstruction Company, which had been contracted by MP Materials Corporation tobuild a rare earth minerals processing facility in Mountain Pass, CA. Due tothe secretive nature of the project, unauthorized photos were prohibited on themine site. Torres testified that on April 10, 2023, his crew was tasked withusing a manlift to bring pipe down from an elevated track. Torres believed thiswas unsafe and requested the use of a crane instead. The crew was instructed toproceed with the manlift. When Torres refused, he states that he was threatenedwith removal. The crew proceeded with the manlift, and Torres took photos toinclude in a report regarding the incident. Mine management informed Torresthat taking photos was against policy, but he was not disciplined at that time.He was subsequently laid off on April 13, 2023. *See*45 FMSHRC __, slipop. at 2-5 (summary of Torres’s testimony).

Around this time(April 2023) construction began to slow and the operation began downsizing. Bythe time of the hearing (June 2023) construction was nearly complete and thenumber of employees had decreased significantly. Testimony from variouswitnesses indicates that the project employed over 100 millwrights at its peak,which decreased to approximately 14 millwrights by April 2023 and three to fivemillwrights (and no welders) by June 2023. *Id.* at 2, 6, 7, 9.  Yates’switnesses testified that personnel decisions regarding the layoffs were basedon the millwright superintendent’s working knowledge of the employees ratherthan an objective formula or ranking system. They stated that Torres wasincluded in the April 13 layoff because there was no more structural weldingwork, he did not have the qualifications for the remaining millwright work, andthe other millwrights did not have his issues with absenteeism. *Id*. at6-11.

Torres filed adiscrimination complaint with the Department of Labor’s Mine Safety and HealthAdministration (“MSHA”) alleging that he was discharged due to his safetycomplaint and work refusal. App. for Temp. Reinstatement, Ex. A. The Secretarydetermined that Torres’s complaint was not frivolous, and on June 2, 2023,filed an application requesting that an Order of Temporary Reinstatement beissued directing Yates to reinstate Torres to the same or similar position heoccupied prior to his discharge. App. for Temp. Reinstatement at 3. A hearingwas subsequently scheduled for June 28, 2023. 

On June 27, theday prior to the scheduled hearing, Yates filed a Hearing Brief stating that itwould rely on the “affirmative defense of changed circumstances, such aslayoffs . . . as part of the hearing on Applicant’s Application for TemporaryReinstatement.” Yates’s Hr’g  Br. at 1. The Secretary filed a Response inOpposition, arguing in part that affirmative defenses should not be weighed attemporary reinstatement hearings and that the brief was untimely because it didnot provide the Secretary with adequate time to respond. Sec’y Opp. at 2.

The hearing washeld on June 28, 2023. The Judge made a preliminary ruling allowing in evidenceregarding layoffs. Tr. 13. Both parties addressed tolling in their closingarguments. Tr. 208-09, 212-14.

**B.   ****The Judge’s Order and Arguments on Appeal**

 

In a July 6,2023 Order, the Judge granted the Secretary’s application for temporaryreinstatement. He found that Torres engaged in protected activity, that Yates’smanagement knew of the protected activity on the day it occurred, and that Torreswas discharged three days later. The Judge also found indications of animustoward Torres due to his protected activity. Given management’s knowledge ofthe protected activity, the temporal proximity between the activity and Torres’sdischarge, and the evidence of animus, the Judge concluded that the Secretary’ssection 105(c)(2) complaint was not frivolously brought.  Slip op. at 13. 

However, theJudge also found that temporary reinstatement was not an immediately availableremedy. Slip op. at 14. The Judge overruled the Secretary’s objection toYates’s evidence regarding layoffs. Slip op. at 13-14 n.27. He found that Yates’switnesses provided credible, undisputed testimony that Torres would not havebeen one of the remaining millwrights still working as of the date of thehearing, that one of the currently employed millwrights would have to be laidoff to accommodate Torres’s reemployment, and that there was no work forstructural welders at the time of the hearing. Slip op. at 15-16. He concludedthat the operator “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.” Slip op. at16. Accordingly, he ordered that Torres’s temporary reinstatement be tolled.  

On appeal, theSecretary seeks review of the part of the Judge’s order tolling temporaryreinstatement. The Secretary claims the Judge erred by considering Yates’s tollingargument, both because tolling is outside the proper scope of a temporaryreinstatement hearing and because the Secretary was prejudiced by the shorttime frame. Alternatively, the Secretary claims the Judge applied the wrongstandard of review to the tolling argument. The Secretary requests that theCommission reverse and remand for further proceedings.

**II.  **** **

** **

**Disposition**

** **

            TheCommission has long recognized that the “fundamental requirement of due processis the opportunity to be heard ‘at a meaningful time and in a meaningfulmanner.’” *Matthews v. Eldridge*, 424 U.S. 319, 333 (1976), *cited in,e.g.*,***Scott, emp. By Mill Branch Coal Corp.*, 42 FMSHRC 481,488-89 (Aug. 2020); *Jones v. D&R Contractors*,**8 FMSHRC 1045,1051-52 (July 1986). For the reasons below, we find that the Secretary wasdenied a meaningful opportunity to respond to Yates’s tolling argument.  

 

             Applicationsfor temporary reinstatement are handled on an expedited schedule. *See*    29 C.F.R. § 2700.45. Here, the Secretary filed the application for temporaryreinstatement on June 2, 2023, and Yates requested a hearing on June 12. TheJudge informed the parties that  the primary issue at the hearing would be “whetherMr. Torres’s complaint of discrimination was frivolously brought,” directed theparties to provide names of any witnesses by June 21,  and scheduled thehearing for June 28. Unpublished Order dated June 14, 2023.  

On June 27, Yatesfiled a brief stating that the Commission has recognized changed circumstancesas a defense that can toll temporary reinstatement, and that it would rely onthis affirmative defense to show at hearing that there was no job for Torres toreturn to because the construction project for which he was hired was largelycomplete.[1]Yates Hr’g Br. at 1-2.  

The Secretary fileda same-day objection, claiming in part that she did not have adequate time torespond to the tolling argument. Sec’y Opp. at 2. The hearing occurred the nextday as scheduled. The Judge overruled the Secretary’s objection to theintroduction of evidence regarding Yates’s defense (Tr. 11-14) and subsequentlyissued an order finding that Torres was entitled to temporary reinstatement,but that temporary reinstatement should be tolled because no work was availablefor Torres. 

In summary,until Yates’s filing on June 27, the Secretary reasonably expected the June 28hearing to focus on whether Torres’s underlying discrimination complaint wasfrivolously brought. By permitting Yates to address its affirmative defense atthe hearing, the Judge gave the Secretary less than 24 hours to marshalarguments and evidence regarding a new issue. 

Generally, toshow a due process violation, a party must show that he or she has sustainedprejudice, i.e., that the party would have litigated the matter differently ifadequate notice had been received. *Brody Mining, LLC*,37 FMSHRC 1914, 1927 (Sept. 2015); *Cumberland Coal Res., LP*,32 FMSHRC 442, 447-49 (May 2010). Here, the Secretary identifies one area ofthe case that would have been litigated differently with adequate notice; sheindicates that with more time, she could have introduced evidence to counterYates’s claim that a millwright would have to be laid off for Torres to bereinstated. Sec’y Pet. at 16. Beyond this, the Secretary is unable to identifyspecific witnesses or lines of argument. However, this seems to be an inevitableresult of the specific harm caused by the lack of time. With less than 24hours’ notice, the Secretary simply did not have the time to locate witnessesor prepare a litigation strategy.[2]*See Sec’y on behalf of Overfield v. Highland Mining Co. LLC*, 36 FMSHRC1659, 1675 (June 2014) (ALJ) (finding the Secretary had no reasonable time tocall into question the objectivity of a layoff where Secretary’s counsel didnot receive copies of the layoff documentation until the hearing).

Significantly,the Judge’s order tolling temporary reinstatement relies almost exclusively onthe “undisputed” testimony of Yates’s two witnesses, Jimmy Hayes and BryanFrench. Slip op. at 15-16. We question whether testimony is truly “undisputed” whenthe Secretary had less than 24 hours to prepare for cross-examination on therelevant issue and no practical opportunity to locate additional witnesses whomay have been able to provide contrary testimony. Yates’s tolling evidence wasundisputed essentially by default, because the Secretary had no meaningfulopportunity to dispute it.[3]

The Commissionstresses that it takes no position on what conclusions the Judge should reachregarding the evidence presented on remand. Instead, we simply note that thisis a case where providing the Secretary with a meaningful opportunity to addressthe tolling issue *could* have impacted the weight of evidencesufficiently to change the outcome of the Judge’s order.

 

We find theJudge erred when he considered Yates’s motion to toll at the initial temporaryreinstatement hearing, prior to providing the Secretary a meaningfulopportunity to investigate and respond to the tolling issue raised in Yates’sJune 27 Brief.[4]Accordingly, we vacate the Judge’s order tolling temporary reinstatement andremand for further proceedings, where the Secretary will have the opportunityto present further argument and evidence on the tolling issue, including the properstandard of review. Yates shall also have the opportunity to present rebuttalevidence in the event of further development of the record. 

**III.**

** **

**Conclusion**

For the reasons discussed above, we vacate the Judge’sorder tolling Torres’s temporary reinstatement and remand for furtherproceedings consistent with this decision.

 

 

 

/s/ Mary Lu Jordan

                                                                                    MaryLu Jordan, Chair

 

 

 

/s/ William I. Althen

William I. Althen,Commissioner

** **

 

 

/s/ Marco M. Rajkovich,Jr.

Marco M. Rajkovich, Jr.,Commissioner

 

** **

 

/s/ Timothy J. Baker

Timothy J. Baker,Commissioner

 

 

 

Distribution:

 

McCord Wilson,Esq.

Rader andCampbell

2777 N.Stemmons Freeway, Suite 1125

Dallas, TX75207

mwilson@radercampbell.com

 

SusannahM. Maltz, Esq.

Office of theSolicitor

U.S. Departmentof Labor

Division ofMine Safety and Health

201 12th StreetSouth, Suite 401

Arlington, VA22202

Maltz.susannah.m@dol.gov

 

NatashaMagness, Esq.

Office of theSolicitor

U.S. Departmentof Labor

300 FifthAvenue, Suite 1120

Seattle, WA98104

Magness.natasha.a@dol.gov

 

AprilNelson, Esq.

AssociateSolicitor

Office of theSolicitor

U.S. Departmentof Labor

Division ofMine Safety and Health

201 12th StreetSouth, Suite 401

Arlington, VA22202

Nelson.April@dol.gov

 

Emily TolerScott, Esq.

Counsel forAppellate Litigation

Office of theSolicitor

U.S. Departmentof Labor

Division ofMine Safety and Health

201 12th StreetSouth, Suite 401

Arlington, VA22202

scott.emily.t@dol.gov

 

Melanie Garris 

Civil PenaltyCompliance Division Chief

USDOL/MSHA,OAASEI/CPCO 

201 12th StreetSouth, Suite 401

Arlington,VA 22202

Garris.Melanie@DOL.GOV

 

ChiefAdministrative Law Judge Glynn F. Voisin

Office of the Chief Administrative Law Judge

Federal MineSafety Health Review Commission 

1331Pennsylvania Avenue, NW Suite 520N

Washington, DC20004-1710

GVoisin@fmshrc.gov

 

AdministrativeLaw Judge Richard W. Manning

Office of theChief Administrative Law Judge

Federal MineSafety Health Review Commission

721 19thStreet, Suite 443

Denver, CO80202-2536

RManning@fmshrc.gov

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[1] We note that the cited changed circumstance was not aparticularly recent development. Yates’s witnesses indicated that downsizinghad been underway for months. If Yates had raised the tolling issue when itfiled a hearing request on June 12, or even by the Judge’s June 21 deadline,this could have been a different case. *See**Sec’y on behalf of Anderson v. A&G Coal Corp.*, 39 FMSHRC 165, 169 (Jan. 2017) (ALJ), *aff’d*39FMSHRC 315 (Feb. 2017) (no issue of prejudice raised where the operator filed amotion to toll eight days before the hearing). 

[2] We also note that the Secretary had only fivebusiness days to file her petition for review. 29 C.F.R. § 2700.45(f). 

 

[3] As a comparison, there may have been no due processconcerns if the Judge had based his tolling order on facts contained in jointstipulations. 

[4] The Secretary claims it is *always*inappropriateto consider tolling arguments at an initial temporary reinstatement hearing,because Procedural Rule 45(d) limits the scope of such hearings to whether theminer’s complaint was frivolously brought. We note that we have previously rejectedthis argument. *Sec’y on behalf ofRatliff v. Cobra Natural Res., LLC*,35 FMSHRC 394, 397 (Feb 2013). Regardless, as we are remanding on differentgrounds, thus providing the parties with the opportunity to present evidence ontolling outside of the initial temporary reinstatement hearing as well as theopportunity to present further legal arguments regarding tolling in thetemporary reinstatement context, we neednot address this legal argument here. As a practical matter, however, we notethat in this instance separating the tolling issue from the temporaryreinstatement hearing would have provided the Secretary with a meaningfulopportunity to respond.