**FEDERAL MINE SAFETY ANDHEALTH REVIEW COMMISSION**

OFFICE OFADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA  AVENUE N. W., SUITE 520N

WASHINGTON, D.C. 20004-1710

Telephone No.: 202-434-9933 

Telecopier No.: 202-434-9949

 
| SECRETARY  OF LABOR

MINE  SAFETY AND HEALTH

ADMINISTRATION  (MSHA), on behalf of Ronald D. Collins 

                            Complainant

 

                        v.

 

 

NEXT  ENDEAVOR VENTURES, LLC

                              Respondent                                                                            |   |   | TEMPORARY  REINSTATEMENT

 

Docket  No. VA 2023-0023 

 

 

 

 

 

 

Mine:  NEV # 1

Mine  ID: 44-07394

  |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

 

**ORDER GRANTING APPLICATION FOR TEMPORARYREINSTATEMENT**

 

Appearances: Sharon H. McKenna, Esq., Office of the Solicitor, U.S. Department of Labor,Philadelphia, PA, Tony Oppegard, Esq., Lexington, KY, for the Complainant,Billy R. Shelton, Esq., Lexington, KY for the Respondent

Before: Judge William B. Moran

            This case is before the Court upon applicationfor temporary reinstatement filed pursuant to section 105(c)(2) of the FederalMine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (“Mine Act”), and29 C.F.R. § 2700.45 et seq. On March 1, 2023, the Secretary of Labor(“Secretary”) filed an Application for Temporary Reinstatement for Ronald D.Collins, Complainant, to his former position as Superintendent/Foreman for NextEndeavor Ventures, LLC at Mine NEV #1, a surface mine. 

            The case was assigned to the Court onMarch 3, 2023. Due to schedule conflicts with the parties and the Court, theparties agreed that the hearing could be set beyond the ten calendar daysprovided for by Commission Rule 45. A virtual hearing,via Zoom for Government videoconference, was held on March 31, 2023. Theparties also agreed that, should the Court find that the application was notfrivolously brought, the date for reinstatement would be effectiveretroactively to March 22, 2023. For the reasonsset forth below, the Court grants the application for temporary reinstatementand retains jurisdiction until final disposition of the complaint on themerits. 

**Applicable Law**

As noted by Judge MargaretMiller, 

Section 105(c) of the Mine Act, 30U.S.C. § 815(c), prohibits discrimination against minersfor exercising any protected right under the Act. The purpose of thisprotection is to encourage miners ‘to play an active part in the enforcement ofthe Act,’ in recognition of the fact that ‘if miners are to be encouraged to beactive in matters of safety and health they must be protected against ...discrimination which they might suffer as a result of their participation.’ S.Rep. No. 95-181, 95th Cong. 1st Sess. 35 (1977), *reprintedin* Senate Subcomm. on Labor, Comm. on Human Res., 95th Cong. 2nd Sess., *LegislativeHistory of the Federal Mine Safety and Health Act of 1977*, at 623 (1978). 

*Grimes Rock,*43FMSHRC 287, 289, May 2021 (ALJ Margaret Miller) (“*Grimes*ALJ dec.”)

A miner that lodges a complaint ofdiscrimination under section 105(c) is entitled to ‘immediate reinstatement ...pending final order on the complaint’ as long as the complaint was ‘notfrivolously brought.’ 30U.S.C. § 815(c)(2). The Commission has stated that the scopeof a temporary reinstatement proceeding is therefore ‘narrow, being limited toa determination by the judge as to whether a miner’s discrimination complaintis frivolously brought.’ *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 (11th Cir. 1990). This standard reflects aCongressional intent that ‘employers should bear a proportionately greaterburden of the risk of an erroneous decision in a temporary reinstatementproceeding.’ *JimWalter Res., Inc. v. FMSHRC*, 920 F.2d 738, 748 (11th Cir. 1990).

*Grimes*ALJ*, Id.*

In a temporary reinstatement hearing,a judge is tasked with evaluating the evidence of the Secretary’s case anddetermining whether the miner’s complaint appears to have merit. *Sec’y ofLabor on behalf of Williamson v. CAM Mining, LLC*, 31 FMSHRC 1085, 1089(Oct. 2009). The Secretary must prove only a nonfrivolous issue ofdiscrimination and need not make a full showing of its prima facie case ofdiscrimination. *Id*. at 1088. Nevertheless, it may be ‘useful to reviewthe elements of a discrimination claim’ when gauging whether a claim isnonfrivolous. *Id*. Those elements include (1) that the complainant wasengaged in a protected activity and (2) that the adverse action complained ofwas motivated in part by that activity. *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). The Secretary may establish the motivational nexus between the protectedactivity and the adverse action with indirect or circumstantial evidence suchas (i) the employer’s knowledge of the protected activity, (ii) hostility oranimus towards the protected activity, (iii) coincidence in time between the protectedactivity and the adverse action, and (iv) disparate treatment of thecomplainant. *Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp*., 3FMSHRC 2508, 2510 (Nov. 1981).

While it is true that a judge mayconsider these factors, a temporary reinstatement case remains ‘conceptuallydifferent’ than the underlying case of discrimination. *JimWalter Res., Inc. v. FMSHRC*, 920 F.2d at 744.The Mine Act envisions an ‘expedited basis’ for a temporary reinstatementproceeding that does not permit full discovery or complete resolution ofconflicting testimony. 30U.S.C. § 815(c)(2); *Sec’y of Labor on behalf of Ward v.Argus Energy WV, LLC*, 34 FMSHRC 1875, 1879 (Aug. 2012). In fact, Commissioncase law indicates that resolving credibility issues or conflicts in testimonyis beyond the scope of a temporary reinstatement hearing. *Williamson*, 31FMSHRC at 1089. Similarly, a judge is not permitted to weigh the operator’sevidence against the Secretary’s evidence when determining whether to granttemporary reinstatement. *Id*. at 1091. 

*GrimesRock,*43 FMSHRC 287, 289-290, May 2021 (ALJ MargaretMiller)

**A wrinkle in Temporary ReinstatementApplications**

Judge Miller took notethat “[t]he Ninth Circuit recently rejected the *Pasula-Robinette*framework in *Thomas v. CalPortland Co*., 993 F.3d 1204 (9th Cir. 2021).Specifically, the Court struck down the requirement that the adverse action wasmotivated ‘at least partially’ by the protected activity in favor of a **but**-**for**causation standard. *Id*.at 1209-11.” *Grimes Rock,*43 FMSHRC 287, n.1. (emphasisadded).

In the same *GrimesRock* case, the Commission subsequently spoke about the “**but-for”**standardin temporary reinstatement applications. *Grimes Rock*, 43 FMSHRC 299, 301 (June 2021) (CommissionersAlthen and Rajkovich, Chairman Traynor *concurring in result only* thatthe complaint was not frivolously brought). There, the majority, consisting ofCommissioners Althen and Rajkovich, noted: 

The Commission has recognized thatthe ‘scope of a temporary reinstatement hearing is narrow, being limited to adetermination by the Judge as to whether a miner’s discrimination complaint isfrivolously brought.’ *See 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 (11th Cir. 1990) (“*JWR*”); *Sec’y of Labor onbehalf of Jones v. Kingston Mining, Inc*., 37 FMSHRC 2519, 2522 (Nov. 2015).The ‘not frivolously brought’ standard reflects a Congressional intent that ‘employersshould bear a proportionately greater burden of the risk of an erroneousdecision in a temporary reinstatement proceeding. *JWR*,920 F.2d at 748, n.11.

At a temporary reinstatement hearing, the Judge mustdetermine ‘whether the evidence mustered by the miner[] to date establishedthat [his or her] complaint[] [is] nonfrivolous, not whether there issufficient evidence of discrimination to justify permanent reinstatement.’ *JWR*,920 F.2d at 744. As the Commission has recognized, ‘[i]t[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. *Sec’y of Labor onbehalf of Albu v. Chicopee Coal Co.*, 21 FMSHRC 717, 719 (July 1999).

*Id.*at 301.

            Asthe majority, Commissioners Althen and Rajkovich then elaborated about thescope of temporary reinstatement proceedings in light of the **but-for**causationstandard****articulated by the Ninth Circuit, stating:****

Upon adopting the ‘*Marionapproach*’ in *Secretary of Labor on behalf of Cook v. RockwellMining, LLC* in which the scope of a temporary reinstatement hearing was atissue, the Commission held that a temporary reinstatement hearing must be afull evidentiary process. 43 FMSHRC___, slip op. at 9, No. WEVA 2021-0203 (Apr.23, 2021), citing *Sec’y of Labor on behalf of KevinShaffer v. Marion County Coal Co.*, 40 FMSHRC 39, 47 (Feb. 2018) (separateopinion of Acting Chair Althen and Commissioner Young). **During theproceeding, a Judge must consider any evidence which is relevant to the adverseaction. *Id*. In other words, ‘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.’***Id*. (emphasis added).

The *Marion approach* gives operators anopportunity to provide evidence that the complaint *was* frivolouslybrought. 43 FMSHRC___, slip op. at 9 (emphasis added [by majority]). **It ispermissible, therefore, for a Judge to consider evidence regarding allegationsof a miner’s unprotected misconduct to determine if the miner has a viablecase. However, such evidence may not serve as a basis for denial ofreinstatement if it requires resolution of a credibility determination. *Id*.at 10. In a temporary reinstatement hearing, the Judge may not resolvecredibility disputes or make rulings on credibility.**

*Id.*(emphasis added).

            The referenceabove to the ‘*Marion approach*’ requires somebackground in order to appreciate its foundation. As just noted, in *Grimes Rock*, 43 FMSHRC 299, (June 2021), thetwo-members constituting the majority in that case referenced three cases: *Sec’yof Labor on behalf of Kevin Shaffer v. Marion County Coal Co.*, 40 FMSHRC39, 47 (Feb. 2018) (separate opinion of Acting Chair Althen and CommissionerYoung) (“*Marion*”), *Thomasv. CalPortland Co*., 993 F.3d 1204 (9th Cir. April 14, 2021), (“*CalPortland*”)and *Secretary of Labor on behalf of Cook v. RockwellMining, LLC* 43 FMSHRC 157 (Apr. 23, 2021) (“*Cookv. Rockwell Mining*”). 

*Marion,*thesource for the ‘*Marion approach,*’**involved**a temporary reinstatement proceeding. It is noteworthy because, though fourCommissioners were involved in that decision, separate opinions were issued – CommissionersJordan and Cohen in one and Acting Chairman Althen and Commissioner Young inthe other. 

Bydubbing the views of two commissioners as the ‘*Marion approach,*’Commissioners Rajkovich and Althen in effect elevated the opinion of twocommissioners over the equally viable opinions of Commissioners Jordan andCohen. This is significant because the two sets of Commissioners expressed verydifferent views about what is needed to establish that an application is notfrivolously brought. 

Fortheir part, Commissioners Jordan and Cohen expressed that the ‘non-frivolouslybrought standard’ in a section 105(c)(2) action may be likened to the“reasonable cause to believe” standard applied in other statutes. *Marion*at 41-42. They added that “[a]n important point to remember in reviewing adistrict court’s determination of reasonable cause is that the district judgeneed not resolve conflicting *evidence*between the parties.*Id*. at 42 (emphasis added). 

Speakingto the temporary reinstatement hearing itself, they noted that “the Judge mustdetermine ‘whether the evidence mustered by the miner to dateestablished that [his or her] complaint [is] nonfrivolous, not whether there issufficient evidence of discrimination to justify permanent reinstatement. ...[and that] [i]t [is] not the [J]udge’s duty, nor is it the Commission’s, toresolve the conflict in *testimony* at this preliminary stage ofproceedings. *Id.* (emphasis added).

Last,those Commissioners remarked that evidence that the miner “was discharged forunprotected activity relates to the operator’s rebuttal or affirmative defense.The Judge will need to resolve *the conflicting evidence in thecontext of the full discrimination proceeding*. *Id.* at 44. 

            In contrast,Commissioners Althen and Young agreed that the Secretary’s burden was to showthat the claim is not frivolous, but they added that to make that showing it isnecessary to prove it by a preponderance of the evidence. *Id.* at 46. Fromtheir perspective that translated to the Secretary showing that that “theSecretary has demonstrated that it is more probable than not that the claim isnot frivolous.” *Id.*  Under that view, those Commissioners added to the previouslyrequired showing, expressly stating that “[t]he burden of proof in a temporaryreinstatement case, therefore, contains ***two legal standards*: “*preponderanceof the evidence” and “non-frivolous*.**” *Id.*(emphasis added).

CommissionersAlthen and Young expanded upon the application of their view, stating that “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.* at 47. (emphasis added).

            The second ofthe three cases cited by Commissioners Althen and Rajkovich in *Grimes*was *Thomas v. CalPortland Co*., 993 F.3d 1204(9th Cir. April 14, 2021). It should be recalled that *Grimes* was atemporary reinstatement case. In contrast, *CalPortland*was not atemporary reinstatement case. Instead, the Ninth Circuit’s decision was a105(c)(3) proceeding, often distinguished as a ‘full’ discriminationproceeding.[1]In matters of discrimination, the Mine Act clearly distinguishes betweentemporary reinstatement and full discrimination proceedings. *See,* 30U.S.C. §§ 815 (c)(2) and (c)(3). 

Itis certainly true that the Ninth Circuit rejected the *Pasula-Robinette*framework *in a full discrimination action*.[2] However,nowhere in that decision will one find the words frivolous, temporary, orreinstatement or remedial. Again, the reason those words are absent is simple –that case did not involve temporary reinstatement. As such, any ‘**but-for**’references, are applicable only in a full discrimination proceeding, andtherefore inapplicable in the very distinct temporary reinstatement proceeding.

            The last ofthe three decisions referenced by the two-members constituting the majority in *GrimesRock*, 43 FMSHRC 299, (June 2021) was *Sec*. obo *Cook v. RockwellMining*, 43 FMSHRC 157 (April 2021). That case involved a temporaryreinstatement decision by the Commission, which produced an interesting result.Two Commissioners, Chairman Traynor and Commissioner Rajkovich, found that thecomplaint was not frivolous. Commissioner Althen voted to remand the matter“for the full hearing to which [Rockwell Mining] was entitled.” *Id*. at171. In that respect, Commissioner Rajkovich agreed with Commissioner Althenthat the judge failed “to conduct a full hearing by excluding evidence offeredby the respondent to prove it terminated the complainant as a result of a grosssafety violation. Such evidence was relevant to the respondent’s claim of noshowing of animus and that unprotected activity supported the termination. Theevidence was relevant and admissible. The failure to hear this evidence was anerror.” *Id*. at 169. Though Commissioner Rajkovich’s decision appeared tohave duality, agreeing with the conclusion that the complaint was notfrivolous, while also agreeing with Commissioner Althen about the proper scopeof a temporary reinstatement proceeding, he determined that the failureregarding the scope of the hearing was ‘harmless.’ *Id.*at 158, 167.

            In reachingagreement with Commissioner Althen on the scope of a temporary reinstatementproceeding, Commissioner Rajkovich looked to *Sec’yof Labor on behalf of Shaffer v. Marion County Coal Co.*, 40 FMSHRC 39 (Feb.2018) as the law of the Commission. As discussed above, in that decision two Commissioners, Acting Chair Althenand Commissioner Young, held that “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.” *Id.* at 47. 

Asalso noted above, there were two separate opinions issued in *Marion.*CommissionersJordan and Cohen did not buy into the views regarding the proper scope of thetemporary reinstatement proceeding, as expressed by Commissioners Althen and Young. Thus, on the scope issue, there wasno definitive Commission decision in *Marion*. It was in *Cook v. Rockwell Mining*, 43 FMSHRC 157 (Apr. 23, 2021) thatCommissioner Rajkovich dubbed the views of Commissioners Althen and Young as“the *Marion* approach.” *Id*. at 165. Accordingly,in *Rockwell Mining,*the views of Commissioners Althen and Rajkovich,adopted**“the *Marion* approach” which then became the law of theCommission. *Id*. at 158.

TheCourt notes that the Application for Temporary Reinstatement in this matter, *Secretaryobo Ronald Collins*, involves a mine located in Virginia. As such, apartfrom Commission law, when consulting decisions from the United States Courts ofAppeals, it is the Fourth Circuit Court of Appeals that one looks to forapplicable law. Nevertheless, this decision encompasses both the NinthCircuit’s expression as well as the Fourth Circuit’s and follows theCommission’s decision in *Grimes Rock*, 43 FMSHRC299, (June 2021), instructing application of the **but-for** review

Here, out of an abundanceof caution, the Court applies the traditional test[3] fordetermining if an application for temporary reinstatement is frivolous, but inaddition applies the **but-for**standard expressed in *Thomas.*Bothapplications produce the same result: the Secretary’s Application for temporaryreinstatement of Ronald D. Collins is not frivolously brought. 

**JOINT STIPULATIONS**
    - Next Endeavor Ventures, Inc., is and was at all     relevant times through this proceeding, the operator of Mine #1, Mine ID     number 44-07394, located in Keokee, Virginia.
    - Mine #1 is a mine as defined in Section 3(h) of     the Mine Act, 30 U.S.C. § 802(h).
    - At all times relevant to this proceeding,     products of Next Endeavor Ventures, Inc., Mine #1 entered commerce, are     the operations of products thereof of affecting commerce, within the means     and scope of Section 4 of the Mine Act, 30 U.S.C. § 803.
    - Next Endeavor Ventures, Inc., is an operator as     defined in Section 3(d) of the Mine Act, 30 U.S.C. § 802(d), and is person     as defined Section 3(f) of the Mine Act, 30 U.S.C. § 802(f).
    - Ronald Collins was previously employed by Next     Endeavor Ventures, Inc. Ronald Collins is a miner within the meaning of     Section 3(g), Mine Act, 30 U.S.C. § 302(g).
    - Ronald Collins was terminated from Next Endeavor     Ventures, Inc., on November 19, 2022.
    - Next Endeavor Ventures, Inc., is subject to the     jurisdiction of the federal mine safety and health review Commission. The     presiding administrative law judge has the authority to hear this case and     issue a decision regarding this case, pursuant to § 105 of the Act, 30     U.S.C. § 815, as amended.

**SUMMARY OF THE TESTIMONIAL EVIDENCE**

            As mentioned above, a virtual hearing, viavideoconference, was held on March 31, 2023. The hearing had but one witness,the Applicant/Complainant Ronald Dwayne Collins. He was last employed onNovember 19, 2022 and his employer was Next Endeavor Ventures (“NEV”). Tr. 36. Themine is a surface coal mine and is nonunion. Tr. 144. Collins has worked as aminer for 37 years and holds various certifications related to mining,including a first-class mine foreman, service foreman and an MSHA instructorcard. Tr. 37. His employment with NEV began on August 29, 2022 at the NEV #1mine. He was employed as a foreman. Tr. 39. As foreman his responsibilitiesincluded compliance with all MSHA and Virginia Energy safety regulations, thelatter encompassing the Virginia Division of Mines, Minerals and Energy. Tr.41. His supervisor was Wilk Renfroe. On August 29, 2022, Collins first day onthe job, he had an accident, crushing one of his fingers. It required treatmentat a medical facility, but he did not miss work because of it. Subsequently, astate inspector contacted Collins, asking if the accident had been reported. Eventuallyit was reported but, as it was filed late, the mine received both a state andfederal violation. Tr. 46. About two to three days after Collins’ accident, theState closed the mine for not having liability insurance. Tr.47.[4] Collinsstated that as of the date of the hearing, the mine has yet to pay the medicalbills arising from his workplace injury. Tr.49. 

Collins then was askedabout an MSHA inspection subsequent to his injury. This involved Brandon and JonasFleming. The two had been hired to run an auger at the mine. Tr. 52. Collinsterminated the Flemings because, he alleged, the mine did not have an approvedState and Federal ground control plan. Tr. 53-54. Collins stated that Renfroewas upset with him over the auger issue and the termination of the Flemings. Tr.56-57. Significantly, Collins testified that Renfroe told him “that he neededthat [work for] coal [ ] production, that [Collins] was gonna cost everybodytheir jobs, and that he was highly upset. If [Collins] didn't get with hisprogram, [he’d] be terminated.” *Id*. Collins stated that from that pointon Renfroe was hostile towards him. Tr. 57.

Around October 28, 2022, Renfroeand Collins had a conversation about a new employee, Jeff Patterson, who wouldbe operating an excavator. Tr. 58. Renfroe advised Collins that he neededPatterson to work on that weekend. Collins inquired if Patterson had his MSHAand State training and Renfroe advised he, Renfroe, would worry about that butthat Patterson had the certifications. Renfroe had a similar response toCollins’ inquiring about whether Patterson had his preemployment drug test. Tr.58. Without showing him documentation on those issues, which included showingthat MSHA and state training had been done, Collins advised that he would notbe signing that the employee was safe to work. Tr. 58-59. When Renfroe advisedthat he was going to work the Patterson anyway, Collins informed that he wouldnot be a part of that and would not physically remain on the mine site. Tr. 63,75. Renfroe and Collins had a heated exchange over these issues, and Collinsmaintained that Renfroe told him that he “was hindering his production abilitywith safety regs -- he said I was too strict on safety, and he was verybelligerent about it. And I told Mr. Renfroe I was just trying to follow the letterof the law. He didn't like that.” Tr. 72. Thus, Collins had multiple objectionsto allowing Patterson to work – he didn’t have his Virginia miners’ card, norhis drug test, nor his new employee miner training, nor his hazard and tasktraining. Tr. 76. Because of those failings, Collins did not report for work onNovember 4, 2022*. Id.*

Following that, Collinsreceived a telephone call from a state mine official, inquiring if he was awarethat an employee was working at the mine illegally and that Collins’ signaturewas on the pre-shift book. Collins informed that he had not been at the mine onthat date and had not signed the pre-shift book. Tr. 79. Mr. Patterson was thenremoved from the mine site. Tr. 80. The state also issued a closure order atthat time. Tr. 81.

On November 7, 2022,Collins went to the mine site and at that time read the alleged violationconnected with the closure order. Tr. 84. The Virginia inspectors informedCollins that they were lifting the closure order but that stipulations wereassociated with the reopening.[5]*Id.* Collins alleged that on November 7th Renfroe’s reactionto Collins’ contacting the State mining agency about the preshift book issue as“the straw that broke the camel’s back.” Tr. 89, 95, 97. Collins reiterated toRenfroe that he would not be coming to work if Patterson was working. Tr. 97. 

Collins and Renfroe hadseveral heated conversations during the days in issue for this matter. In one,Collins asserted that Renfroe advised him that “listen you're [i.e. Collins] tryingto be work safe is not going to work with this organization. I'm going to haveto wash my hands of you. I'm going to have to move on. It's just getting towhere it's unbearable.” Tr. 101.

Collins also assertedthat on November 17, 2022,[6]he had a conversation with JD Harrison, who was identified as a future foreman,along with Kelly Willis. Tr. 102. On that day, Collins asked Harrison if he hadall his paperwork in order. According to Collins, Harrison responded thatRenfroe said he was good to go. Tr. 103. Collins determined that Harrison did nothave any of that paperwork. Tr. 104. Though Harrison maintained that inspectorHerschel Fleming, a state inspector, informed that no additional drug test wasneeded. Tr. 104, 107. Upon checking with the inspector, Harrison’s contentionwas rejected, and he had to leave the mine property. Tr. 105. Renfroe was angrywith Collins requiring that Harrison have a drug test. Collins stated thatduring this exchange, Refroe uttered expletives and that he had to get rid ofCollins. Tr. 106. Harrison did leave the mine to get a drug test. Tr.108. Thefollowing day Collins saw Harrison doing his training with Gary Whisman. Tr.115. 

In yet another incident,this time on November 18th, Collins observed an employee running adozer with no one else present. Tr. 119. When Collins inquired of the employeewhether he had his training and certifications, and drug test, the employeeanswered that he did not. Tr. 120. Collins had this employee leave the minesite as well. Tr. 120-121. However, not long after, Collins saw the sameemployee at the site. Not long after the second confrontation, the employee wasback again, but on this occasion another employee was watching the mineroperate the dozer. Tr. 121. Renfroe told Collins to leave the employee aloneand if Collins didn’t like it, Renfroe told him he could “go to the house,”mine parlance for being fired. Tr. 121.[7]

On Saturday, November 19,2022, Collins had a phone conversation with Jeff Patterson, at which time hewas informed that the mine didn’t need his services anymore. Tr. 129. Collinswas also asked about one of the mine’s owners, whom he identified as Emma. Hewas unsure if her last name was Vasquez or Marquez. Tr. 132. In any event,Collins met her at the mine on one occasion sometime in the middle of Octoberthat year when a State inspector was present as a complaint had been calledregarding the mine. Collins recounted that Emma remarked that in her view therewas a ‘mole’ at the mine and if she found out who it was, that individual wouldbe fired. Tr.133. Renfroe too, Collins asserted, made a similar remark – if themine found out “who was tipping the inspectors off on the safety issues” thatperson would be terminated. Tr. 134. Later, Renfroe told Collins that hesuspected Collins was the person making the complaint. Tr. 135. 

During the hearing there wasalso a reference to a Ms. Kayleigh Mulkey. Collins knows her. Tr. 140. Ms.Mulkey was never employed at the Respondent’s mine during the time of Collinsemployment there. *Id.* Instead, she was employed with a nearby mine,A&G Coal Corp. Tr. 140-141.**This subject arises in the context ofthe Respondent’s Answer to the reinstatement application wherein it allegesthat Collins sexually harassed a woman in violation of the mine’s sexualharassment policy. Respondent’s Answer, Sixth Defense.

In that connection, Collinswas asked about his employment packet when he began working for the Respondent.He contended that he never saw a sexual harassment policy as part of thatpacket. Tr. 141. He also denied ever having any conversations with theRespondent’s ownership or management about that subject. Tr. 141-142. Later,Collins stated, he received the employment packet again via e-mail. One wassent to him by an administrative assistant with the mine, Amy Cutshaw. Tr. 142.Collins stated that when he was terminated by the Respondent, Mr. Pattersonnever told him that he was fired because of sexual harassment. Tr. 147.

On cross-examination,Collins agreed that Renfroe does not need a miner’s card because he doesn’twork on the site and because he is part of management. Tr. 151. Respondent’sattorney questioned Collins about the particulars of the mine’s ground controlplan vis-à-vis the excavator and its proximity to the wall. Tr. 151-153. However,the Court would comment that such questions are extraneous in the context of atemporary reinstatement application because Collins was at least raising asafety issue. There is no indication in the record that his concern waspretextual or made in bad faith. 

Collins was alsoquestioned by Respondent’s counsel about his first discrimination report andthe subsequent discrimination report he signed some three weeks later. Tr. 156-158. Respondent’s counsel noted that the second report (i.e. Collins’ amendedcomplaint) added claims that were not made in his initial complaint. It is truethat Collins filed an amended complaint on December 22, 2022, and that he addedgrounds for his complaint in that document. At the hearing, Collins testifiedto the grounds listed in his initial complaint and those asserted in hisamended complaint. The Court would note that it is guided by the testimony atthe hearing with regard to its assessment of Mr. Collins’ testimony about his allegedsafety issues, which assessment does not involve credibility determinations. Someareas of cross-examination, such as whether Collins submitted bills regardinghis finger injury to Next Endeavor are not pertinent to the frivolous issuehere. 

Respondent’s counsel alsoquestioned Collins regarding his issues concerning employee trainingcertifications and whether, for those tasks he could act as an instructor, hecould’ve conducted the training himself. Two observations are made about thisline of inquiry. First, Collins denied that he was certified to do all of therequired training. Second, according to Collins’ testimony, the dispute wasconnected with Renfroe’s irritation that Collins was raising the trainingissues. At least on its face, that relates to the issue of whether Renfroe wasupset with Collins’ safety concerns, an issue not to be resolved in thetemporary reinstatement proceeding. 

It is true enough, asRespondent’s Counsel noted, that Collins’s complaint, per the Secretary’s ExhibitB, did not contain his allegations that Mr. Renfroe told him that this was the“last straw, or Wilk Renfroe cussing you, or Wilk Renfroe doing this or WilkRenfroe bringing people to the mine site that weren't properly trained, or WilkRenfroe bringing people to the site that didn't have their drug test,” Tr. 164-165. The Court is again guided by Collins’ testimony at the hearing, which waseffectively augmented by the absence of any rebuttal testimony, as theRespondent did not present any witnesses.[8]

In what the Court viewsas a subject that is not and cannot be resolved at this stage of Collins’safety complaint, Respondent’s Counsel’s foray into whether Collins wasterminated for sexual harassment, it is noted that much time was expendedconcerning the location of *another*mine, which mine, it was conceded, wasnot part of Next Endeavor Ventures’ operations. This was an attempt to somehowlink Ms. Kaleigh Milkey, an employee of that *other*mine, with the sexualharassment claim Respondent was making against Collins. Tr. 165- 192. Beinggenerous, the Court would say that, at least for the purposes of the temporaryreinstatement application, this whole line of questioning went nowhere.   

**SUMMARY AND ADDITIONAL FINDINGS**

The followingobservations are made about the detailed testimony from Mr. Collins, as setforth above. None of these observations involve credibility determinations bythe Court. Instead, they are made strictly in the context of whether Collins’application for temporary reinstatement was frivolously brought. To be clear,the Court finds, without reservation or hesitation, that Collins application isnot frivolous. Stated another way, the *totality of the evidence or testimonyadmits of only one conclusion* – Collins’ complaint is not frivolous.

Collins raised severalhealth and safety concerns to management. Each constituted protected activity. Someof these issues were also brought to the attention of the mine safety divisionwithin the state of Virginia as well as with MSHA. A miner’s raising a safetyor health issue of any sort is protected, whether tied to a particularprovision under state or federal mining law or not. For example, as detailedabove, Collins raised a safety concern with Wilk Renfroe concerning: anemployee who did not have a pre-employment drug screening; the failure of anemployee to have a Virginia miners card; and an alleged failure to have therequisite miner training before starting work.

There was also an issuerelated to the safety concerns Collins raised. This relates to whether Collinsin fact signed the book on a given day or whether his signature was forged. Thatissue has not been resolved but it does tend to show possible employer animustowards Collins attributable to his refusal to sign the books. There was alsoan issue over the mine’s alleged failure to file an accident report with MSHAin connection with an injury Collins incurred on the job.

Further, was alsotestimony from Collins that, on more than one occasion, he was admonished fornot going along with the mine’s wish that certain safety or health requirementsbe overlooked. Chiefly, these disputes involved Collins and Mr. Renfroe.  TheCourt notes that Renfroe was present during the entire temporary reinstatementhearing, as the Respondent’s designated company representative. This means thatRenfroe heard nearly all of the testimony from Collins.[9] Yet, at theconclusion of the testimony from Collins, and noting that Collins was the solewitness for the Secretary, the Respondent elected to forego presentingtestimony from any other witness, limiting its effort to cross-examination ofCollins.  

The Court notes and findsthat the safety and health issues Collins testified about all occurred during ashort period of time before Collins was terminated from employment with themine.  Therefore, a nexus established between Collins’ protected activity andthe adverse action – termination of his employment with NEV. Respondent’scontentions are in the nature of claimed affirmative defenses and do not impactthe issue in a temporary reinstatement proceeding. 

Respondent contended thatthe Secretary didn’t carry its burden of proof in this Application fortemporary reinstatement.****In making that argument, Respondent assertsthat based on Mr. Collins first complaint he asserted only two grounds – thathis hospital bills were not paid and the issue of whether his signature wasfraudulently in the preshift book. The Court notes that nothing prohibits acomplaint from being amended. 

Respondent also contendsthat failure to have drug testing or the certificate to show the testing wasdone, is not a safety issue and that Collins other safety issues, as set forthabove, are not cognizable. With regard to the latter, the Court notes that aminer need only have a reasonable, good faith belief in a safety hazard. *See,**e.g*, *Secretary of Labor on behalf ofRobinette v. United Castle Coal Co.,* 3FMSHRC 803, Apr. 1981), *Gilbert v. FMSHRC*, 866 F.2d 1433 (D.C. Cir.1989). Respondent further maintains that Collins’ text messages to Ms.Mulkey, an employee at *another*mine, constituted sexual harassment andconstituted the basis for his termination. 

**CONCLUSION**

Upon consideration of thetestimony of Ronald D. Collins, the Court finds that the testimony and exhibitsin support of this application for temporary reinstatement amply support that itis not frivolously brought. The Court finds that the Complainanthas raised a non-frivolous issue as to each element of the prima facie case andfinds that, under the traditional non-frivolous test as well as any **but-for**analysis that may be applied, Complainant more than met his burden of proof. 

**ORDER**

The Application forTemporary Reinstatement is hereby**GRANTED.**It is **ORDERED**thatRonald D. Collins be temporarily reinstated, retroactive to **March 22, 2023**tothe position he held on the date of his discharge from Next Endeavor Ventures,LLC at the NEV #1 mine. 

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. The Court retains 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/William B. Moran

William B. Moran

Administrative LawJudge

 

 

 

 

Distribution,via email:

 

SharonMcKenna, Esq.

U.S.Dept. of Labor

Officeof the Regional Solicitor 

1835Market Street

MailstopSOL /22

Philadelphia,PA 19103-2968

Mckenna.sharon.h@dol.gov

 

 

RonaldCollins, Claimant

Ronc379@gmail.com

 

 

BillyShelton, Esq.

2452Sir Barton Way, Suite 200

Lexington,KY 40509

bshelton@sbhlegal.net

 

TonyOppegard, Esq, 

P.O.Box 22446

Lexington,KY 40522

tonyoppegard@gmail.com.

 

WesAddington, Esq.

317Main Street

Whitesburg,KY 41858

wes@aclc.org

----

[1] The ‘fulldiscrimination proceeding, also referred to as the “full evidentiary hearing” and‘the later discrimination proceeding,’ are all terms used to distinguish suchproceeding from the temporary reinstatement proceeding. *See, e.g., Sec'y ofLabor on behalf of Billings v. Proppant Specialists, LLC*, 33 FMSHRC 2383,2385 (Oct. 2011) and *Sec’y of Labor on behalf of Kevin Shaffer v. MarionCounty Coal Co*., 40 FMSHRC 39, 44 (Feb. 2018)

 

[2] The Ninth Circuitdescribed the *Pasula-Robinette* framework as one where “a miner proves aprima facie case of discrimination by showing that: (1) he engaged in protectedactivity and (2) was subject to an adverse action motivated “at least partially... by his protected activity. ... ” The mine operator may then rebut the primafacie case by showing: “(1) the miner was not engaged in any protectedactivity, or (2) the adverse employment action was not even partially motivatedby the miner’s protected activity.” Or, if the mine operator cannot rebut theprima facie case, it may assert an affirmative defense by demonstrating—by apreponderance of evidence—that: (1) the adverse action was also motivated bythe miner’s unprotected activity; and (2) the adverse action would have beentaken in response to the unprotected activity alone.”  citing *Secretary exrel. Pasula v. Consolidation Coal Co.,* 2 FMSHRC 2786, 2799 (1980), *rev’don other grounds sub nom.,**Consolidation Coal Co. v. Marshall*, 663 F.2d 1211 (3d Cir. 1981). *CalPortland*at 1208.

[3] The elements of adiscrimination claim are useful guideposts in temporary reinstatement cases. Accordingly,the Court looks to whether the alleged adverse action occurred “because [a]miner ... filed or made a complaint ... including a complaint notifying theoperator ... of an alleged danger or safety or health violation in a ... mine ... orbecause of the exercise by such miner ... of any other statutory right affordedby this chapter.” 30 U.S.C. §815(c)(1).Stated differently, a prima facie case of discrimination under section 105(c)of the Act, a complaining miner bears the burden of establishing (1) that heengaged in protected activity and (2) that the adverse action complained of wasmotivated in any part by that activity. *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 (3rdCir. 1981); *Sec'yof Labor on behalf of Robinette v. United Castle Coal Co.*, 3 FMSHRC803 (April 1981).

 

[4] There werequestions involving the mine’s workers’ compensation and whether the mine had alapse in coverage and whether that impacted Collins’ coverage for his injury. TheCourt considers this to be tangential to the issues in this proceeding.

[5] There were allegationsswirling about the issue of whether Collins or someone else signed the preshiftbook. It is unnecessary to resolve this issue in the context of the temporaryreinstatement application, as the central issue remains – is this applicationfor reinstatement frivolous? 

 

[6] Collins andRenfroe had another dispute on November 17. This related to whether anexcavator required a cage to be installed on the machine. Tr. 116. Whether theexcavator in fact required a cage was not resolved at the reinstatement hearingnor was the issue necessary to resolve. The only purpose in the context of theproceeding is to show yet another safety-related dispute between Collins andRenfroe. 

 

[7] It is noted thatduring the hearing there were a few occasions when the exact date of an eventwas unclear. The Court has two observations about this. First, the exact dateswere not crucial to the determination in this hearing – whether Collins’ claimwas non-frivolous.  Second, of far greater importance, is that Mr. Collins hada number of safety issues while employed with the mine. The Respondent offeredno witnesses to contradict Mr. Collins claims in that regard, leaving itschallenges solely to the cross-examination of the Applicant.

[8] Respondent’s WitnessList identified four individuals: Michael Hughes, the MSHA investigator for thismatter, the Complainant, Mr. Collins, Wilk Renfroe and Jeff Patterson. Asnoted, the only witness at the hearing was Ronald Collins. 

[9] There was a verybrief period of time, involving only minutes, when Mr. Renfroe was not presentduring the virtual hearing, but Respondent’s Counsel did not request that thehearing testimony pause until Renfroe returned.