**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

**1331PENNSYLVANIA AVENUE, NW, SUITE 520N**

**WASHINGTON,D.C. 20004-1710**

 

 

 

SECRETARY OFLABOR,                                                                           :

  MINE SAFETY AND HEALTH                                                                 :

 ADMINISTRATION(MSHA) : Docket No. CENT 2024-0024

on behalf ofJIMMY LEE HOOVER :

                                                                                                                :

v. :

                                                                                                                :

MOSENECAMANUFACTURER                                                          :

  LIMITEDLIABILITY COMPANY d/b/a/                                          :

  AMERICAN TRIPOLI                                                                       :

 

 

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

** **

**DECISION**

** **

BY THE COMMISSION:

 

This temporary reinstatementproceeding arises under the Federal Mine Safety and Health Act of 1977, 30U.S.C. § 801 et seq. (2018) (“Mine Act”). On November 16, 2023, the Secretaryof Labor filed an Application for Temporary Reinstatement on behalf of JimmyLee Hoover (“Hoover”) against MoSeneca Manufacturer Limited Liability Companyd/b/a/ American Tripoli (“MoSeneca”) pursuant to section 105(c)(2) of the MineAct, 30 U.S.C. § 815(c)(2). 

 

On December 13, 2023, theAdministrative Law Judge issued an Order Granting Temporary Reinstatement ofHoover. 45 FMSHRC __**(Docket No. CENT 2024-0024)(Dec. 13, 2023) (ALJ). OnDecember 15, MoSeneca filed a Petition seeking review of the Judge’s order.[1]On December 21, the Judge issued an addendum to his December 13 Order. Subsequently,on December 22, the Commission issued an order stating that any response by theSecretary to the operator’s petition for review shall be filed by January 9,2024. On January 9, the Secretary filed her response. For the reasons thatfollow, we hereby affirm the Judge’s Order Granting Temporary Reinstatement.

 

 

 

**I.              **** **

** **

**Factual andProcedural Background**

** **

This case involves a mill locatedat a mine in Newton, Missouri. The current owner, Russell Tidaback, hasemployed the miner, Jimmy Lee Hoover, at the mill since June 2021. While tryingto start the mill on September 13, 2023, Hoover noticed that an airlock was notrunning properly because of a malfunctioning circuit breaker. Tr. 29. Hoovertried, but failed, to reset the circuit breaker using an external reset buttonon the outside of a breaker box. Sec. Ex. 3 at 2. Hoover testified that he didnot attempt to manually reset the circuit breaker because this would have requiredhim to remove the cover of the breaker box, insert his hand into the box, andswitch on the internal manual reset. The manual reset would expose his hand toan energized 220 volt current. In the past, when the circuit breaker needed tobe reset manually, Hoover had called maintenance staff for their assistance,but there was no maintenance staff present at that time. Sec. Ex. 3 at 3. 

 

Hoover reported the malfunctioningcircuit breaker to Don Hale, his immediate supervisor, and together with Hale,reported it to Operations Manager John Spears. Sec. Ex. 3 at 3. Hoover allegedthat when he reported the malfunction to Spears, Spears responded that “we gotto make Russ[ell Tidaback] money.” Tr. at 33. Hoover testified that heinterpreted this statement as an instruction to do whatever was necessary toreset the circuit breaker, including an internal manual reset. Tr. 59. However,Hoover refused to perform the manual reset because of his fear that he might beelectrocuted if he inserted his hand into the energized breaker box. Tr. 92. Hooveralleges Spears responded to Hoover’s work refusal by saying “is this how you’regoing to play it, really?” Tr. at 121.

 

After this conversation withSpears, Hoover took his lunch break. Tr. 33. It is undisputed that Hoover waslate in returning from his lunch break.  Tr. 16, 228. Hale claims that when heinformed Hoover of this delay, Hoover disrespectfully responded “I don’t care,go ahead and write me up.” Tr. 219. At around 8 p.m. that evening, Haleinformed Russell Tidaback of Hoover’s delay in returning from lunch andHoover’s alleged disrespectful response when Hale informed him of his latereturn. Resp’t Ex. H. Subsequently, Tidaback drafted a letter terminatingHoover. The following morning, when Hoover arrived at the mine to start hisworkday, Spears issued the termination letter to Hoover. Sec’s Ex. 2; Sec’s Ex.3 at 3.

 

 On September 25, 2023, Hooverfiled a complaint with MSHA over his termination. Michael Dillingham, an MSHAinvestigator, investigated Hoover’s discrimination complaint, and concluded ithad not been frivolously brought. Subsequently, on November 16, 2023, theSecretary filed an application for temporary reinstatement of Hoover. After ahearing in this matter, the Judge found that the Secretary had “demonstratedthat the Application for Temporary Reinstatement was not frivolously brought.” ALJDec. at 7. 

 

The Judge found that Hoover engagedin protected activity on September 13, 2023, when he refused to perform a manualinternal reset of the malfunctioning circuit breaker. The Judge usedcircumstantial indicia of discriminatory intent to find that there was anon-frivolous issue as to a motivational nexus between Hoover’s protected workrefusal and his termination. *Id.* at 7-9. The Judge noted that theoperator was “permitted to present evidence and testimony throughout thehearing in support of [its] position” that Hoover was terminated solely forunprotected activity. *Id*. at 8. However, the Judge found that whileevidence of Hoover’s unprotected activity “may be relevant or dispositive in alater discrimination proceeding,” for purposes of temporary reinstatement, suchevidence simply provided an alternative theory as to why Hoover was terminatedand was insufficient to demonstrate “that the Complainant brought forth afrivolous complaint.” *Id* at 8. 

** **

On December 15, 2023, the operator fileda petition seeking review of the Judge’s order. The operator claims that theJudge erroneously found protected activity because the “ALJ’s conclusion isbased more on subjective interpretation than on objective factual evidence.” Pet.at 2. Moreover, the operator maintains that the protected activity played norole in Hoover’s termination, asserting that “this is not a case in which thecomplainant was . . . terminated due to . . . [a] protected act; rather, thetermination was due to . . . legitimate non-discriminatory reasons.” *Id.*at 4. 

 

**II.           **** **

** **

**Disposition**

** **

Under section 105(c)(2) of the MineAct, “if the Secretary finds that [a discrimination] complaint was notfrivolously brought, the Commission, on an expedited basis upon application ofthe Secretary, shall order the immediate reinstatement of the miner pendingfinal order on the complaint.” 30 U.S.C. § 815(c)(2). The “scope of a temporaryreinstatement hearing is narrow, being limited to a determination by the Judgeas to whether a miner’s discrimination complaint is frivolously brought.” *SeeSec’y obo Price v. Jim Walter Res., Inc*., 9 FMSHRC 1305, 1306 (Aug. 1987),*aff’d*, 920 F.2d 738 (11th Cir. 1990); *Sec’y obo Jones v. KingstonMining, Inc.*, 37 FMSHRC 2519, 2522 (Nov. 2015). The Commission reviews a Judge’stemporary reinstatement order under the substantial evidence standard. *Sec’yobo Williamson v. Cam Mining, LLC*, 31 FMSHRC 1085, 1088 (Oct. 2009). As theCommission has recognized, “[i]t [is] not the Judge'sduty, nor is it the Commission’s, to resolve the conflict in testimony at thispreliminary stage of the proceedings.” *Sec’y obo Albu v. Chicopee Coal C*o.,21 FMSHRC 717, 719 (July 1999). 

 

            “While an applicantfor temporary reinstatement need not prove a prima facie case ofdiscrimination, it is useful to review the elements of a discrimination claimin order to assess whether the evidence at this stage of the proceedings meetsthe non-frivolous test. In order to establish a prima facie case ofdiscrimination under section 105(c) of the Act, a complaining miner bears theburden of establishing (1) that he engaged in protected activity and (2) thatthe adverse action complained of was motivated in any part by that activity.” *Sec’yobo Williamson,*31 FMSHRC at 1088. 

 

Discriminatory motive may be shown by indirect evidenceestablishing a motivational nexus between the miner’s protected activity andthe adverse action. *Sec’y of Labor on behalf of Chacon v. Phelps Dodge**Corp.*,3 FMSHRC 2508, 2510 (Nov. 1981) (citing *NLRB v. Melrose ProcessingCo.*, 351 F.2d 693, 698 (8th Cir. 1965)). TheCommission has held that discriminatory motive can be established bycircumstantial evidence of: (1) knowledge of the protected activity, (2) hostilityor animus towards the miner regarding the protected activity, (3) temporalproximity, *i.e.* coincidence in time between the protected activity andthe adverse action, and (4) disparate treatment of the complainant. *Id.*at2510-12. 

** **

In his decision,the Judge found that the miner had engaged in protected activity by allegedlyrefusing unsafe work. ALJ Dec. at 7. Hoover testified he was aware of a minerreceiving an electrical shock after touching an Allen wrench located in abreaker box which was supposed to have been de-energized. Tr. 91-92 (“Dongrabbed a Allen wrench that was in a breaker box and said it was shut off andhe grabbed that and it lit him up. And it was supposed to be dead. That was inmy head, too, while I was looking at this breaker box.”). Additionally, Hoover’s testimony that Spears told him “wegot to make Russ [Tidaback] money” (Tr. 33), while contested, could reasonablybe construed as an instruction to Hoover. 

 

The operator did not dispute that Hoover had a good faith reasonable belief that performing amanual internal reset of the circuit breaker would expose him to a perceivedhazard. We note that the Commission hasrecognized a miner’s protected right to refuse work in the face of a perceivedsafety or health danger. *Dykhoff v. U.S. Borax,*22 FMSHRC 1194, 1198(Oct. 2000) (citing*Price v. Monterey Coal Co.,*12 FMSHRC 1505, 1514(Aug. 1990)). In order to be protected, “work refusals must be basedupon the miner’s good faith, reasonable belief in a hazardous condition.” *Dykhoff,*22 FMSHRC at1198. As a result, the Judge appropriately determined that Hoover’salleged refusal to perform an alleged unsafe act – a manual internal reset ofthe circuit breaker – raised a non-frivolous claim that he engaged in protectedactivity. Therefore, we find that substantial evidence demonstrates anon-frivolous claim that Hoover, by refusing to perform the unsafe act, engagedin protected activity.

 

In its petitionseeking review of the Judge’s order, the operator claims that the Judge’sdetermination that the miner engaged in protected activity was not based on anydirect orders or explicit actions, but on circumstantial evidence. In supportof this position, Respondent cited evidence that it submitted at hearing thatno member of Respondent’s management ordered Hoover to place his hand insidethe energized breaker box. However, the ALJ addressed this evidence, noting theexistence of countervailing “circumstantial evidence that it is management’sexpectation that a miner do whatever is necessary, when maintenance is notavailable, to get the mill up and running.” ALJ Dec. at 7. The Judge noted thisconflict in the testimony, but appropriately did not resolve the conflict ormake credibility determinations. *Id*. at 8 *(citing Sec’y of Labor obo**Williamson*, 31 FMSHRC at 1089) (Resolving conflicts in the testimony,and making credibility determinations in evaluating the Secretary’s prima faciecase are simply not appropriate “at this stage in the proceeding.”). Conflictsin the evidence should be resolved at the hearing on the merits.

 

In addition tofinding protected activity, the Judge also found that it is undisputed that theminer suffered an adverse employment action, in that he was discharged. ALJDec. at 7. Substantial evidence supports this finding as well. 

 

The Judgedetermined that the Secretary had raised a non-frivolous issue as to whetherthere was a motivational connection between the protected activity and theadverse employment action. The Judge found that it was undisputed that theminer suffered an adverse employment action the day after he alleged to haveengaged in protected activity. ALJ Dec. at 7. Finally, the Judge determinedthat Secretary raised non-frivolous issues as to whether Respondent hadknowledge of Hoover’s alleged protected activity and whether Respondentdisplayed animus towards that alleged protected activity. *Id*. at 7-8. Onappeal, the operator does not challenge the Judge’s findings regarding temporalproximity and knowledge. Pet. at 1-5. The Judge’s undisputed findings “can be sufficient by themselves to establish a nexusbetween the protected activity and the adverse action.” *Sec’y oboRoger Cook v. Rockwell Mining, LLC,*43 FMSHRC 157, 163 (Apr. 2021) (*citingSec'y of Labor on behalf of Stahl v. A&K Earth Movers Inc*., 22 FMSHRC323, 325-26 (Mar. 2000))*.*

** **

In response to the Secretary’spresentation regarding discrimination, Respondent asserted that it hadterminated Hoover solely for unprotected activity – misconduct and poorperformance. Pet. at 2. However, the Judge appropriately declined to rule onthe operator’s theory that Hoover was terminated solely for his unprotectedactivity. As noted previously, the Judge’s role during temporary reinstatementproceedings is to simply determine whether substantial evidence establishedthat the discrimination complaint was nonfrivolous. *Jim Walter,*920 F.2dat 744. In this case, ruling on the operator’s theory would have required theJudge to go beyond the nonfrivolous standard to impermissibly weigh evidenceand/or render credibility determinations. *CAM Mining, LLC*, 31 FMSHRC at1089. Therefore, the Judge appropriately declined to consider Respondent’sargument at the temporary reinstatement stage. 

 

**III.         **** **

** **

**Conclusion**

** **

Substantial evidence supports theJudge’s finding that the Secretary demonstrated that the Application forTemporary Reinstatement was not frivolously brought. Therefore, the Judge’sorder granting temporary reinstatement is affirmed. 

 

 

 

/s/ Mary LuJordan

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:

 

Russell Tidaback

American Tripoli

222 Oneida Street

Seneca, MO 64865

RTidaback@deedyco.com

 

Jimmy Lee Hoover

1630 Cottage Ln.

Seneca, MO 64865

Hooverj9233@gmail.com

 

Alexandra J. Gilewicz, 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

Gilewicz.alexandra.j@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

 

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 

 

Melanie Garris

Civil Penalty Compliance Division Chief

U.S. Department of Labor

Office of Assessments

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202

Garris.Melanie@dol.gov 

 

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety & Health Review Commission

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW, Suite 520 N

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

 

Administrative Law Judge David Simonton

Federal Mine Safety and Health Review Commission

Office of the Chief Administrative Law Judge

721 19th St. Suite 443

Denver, CO 80202-2536 

dsimonton@fmshrc.gov

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[1] MoSeneca filed what it termed a petition fordiscretionary review, which the Commission construed as a petition seekingreview of the Judge’s reinstatement order pursuant to 29 C.F.R. § 2700.45.