**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

** **

 

 

 

 

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

**DECISION**

 

BY:Jordan, Chair; Rajkovich and Baker, Commissioners

 

            Thistemporary reinstatement proceeding arises under the Federal Mine Safety andHealth Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). The Secretaryof Labor filed an Application for Temporary Reinstatement on behalf of JohnCollins against Crimson Oak Grove Resources, LLC, (“Crimson”) pursuant tosection 105(c)(2) of the Mine Act, 30 U.S.C.  § 815(c)(2). On September 18,2023, the Administrative Law Judge issued a Decision and Order Reinstating JohnCollins. 45 FMSHRC __, Docket No. SE 2023-0235 (Sept. 18, 2023) (ALJ). OnSeptember 22, 2023, Crimson filed a Petition for Review of TemporaryReinstatement Order in which it argued that the Judge erred in finding theminer’s complaint was not frivolously brought. It further argued that the MineAct’s and Commission’s procedures governing temporary reinstatement havedeprived it of due process of law. On September 29, 2023, the Secretary filed aresponse. For the reasons which follow, we hereby affirm the Judge’s decision.

 

**I.      **** **

** **

**Factual and Procedural Background**

** **

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

Crimson operatesthe Oak Grove Mine, an underground coal mine near Adger Alabama, which minescoal through room-and-pillar-mining and longwall mining. At the time of hisdischarge John Collins worked as a mobile equipment operator at the surfaceyard. Collins had worked at this mine for 19 years, and as a mobile equipmentoperator since February 2023.

On July 27,2023, Collins filed a discrimination complaint with MSHA alleging that he wasunlawfully discharged from employment with the mine after complaining that itwas not safe to operate a Komatsu 250 front-end loader for the task which hewas assigned, and then allegedly failing to safely operate the equipment.  

The relevantincident occurred on June 14, 2023. Crimson supervisor Paul “Jeff” Jamisonassigned Collins to load pan line[1]onto a haul truck using a Komatsu front-end loader. Collins testified that hewas concerned that the loads were too heavy for the Komatsu; the Cat loader, alarger loader, is normally used for this task. Tr. 28-29.

Collins informed Jamison that he was uncomfortable usingthe Komatsu loader to lift such a heavy load.[2] Jamisonresponded that the Komatsu is regularly used for this task. Collins responded,“I understand that, Jeff, but I’m not comfortable using it.” Tr. 26. Jamisonresponded that the larger loader was not available. Collins then stated, “I’mgoing to tell you again, I don’t feel comfortable doing it, but I will go aheadand do it.” Tr. 26, 30. Collins testified that he reluctantly complied with hissupervisor’s directive despite his concerns because he was worried about losinghis job.[3]

Collinssuccessfully placed the first load onto the haul truck using the Komatsu. Hetestified the heavy pan line caused the loader to rock which was “kind ofscary.” Tr. 28, 30-31. Collins transported the second pan line across the yard.As Collins attempted to raise the load onto the truck, the back end of theKomatsu lifted from the ground. Tr. 31-32. The rear tires lifted more than fivefeet from the ground, as the front of the machine dipped lower. The load slidoff and the rear of the Komatsu crashed back to earth. Collins injured hisback. Tr. 36. Another miner finished loading the haul truck using the heavierCat loader. Collins testified that about five minutes after the incident hetold Jamison that he “knew it was going to happen.” Tr. 35. 

            On June 23, Collinswas called into a meeting with mine manager Jesse Avery, a representative fromhuman resources, and an union representative. Together they jointly watched asecurity video of Collins attempting to load the haul truck on June 14, 2023. Jamisontestified that the video depicted Collins using proper technique during hisinitial lift, but using improper technique on his second loading attempt. Specifically,Jamison believed that the video demonstrated that he failed to tip the forksback and that the load was not safely secured against the mast. Tr. 64. Collinswas suspended after the meeting, pending an investigation into the June 14thincident.

            Avery testified thathe learned from his investigation that after Collins’ recent suspension heroutinely told Jamison that he was uncomfortable with his assigned tasks. Tr.92. Avery testified that Jamison believed that the loader could be safely used.Tr. 92. 

Crimson GeneralManager Eric Koontz testified that Collins recently had two other incidents inwhich he damaged parts and equipment while operating mobile equipment. Koontztestified that he had offered Collins alternative work after becoming concernedthat he was operating equipment carelessly. Tr. 93. In one instance, on March23, 2023, Collins damaged a pump while unloading a truck. Tr. 61. In the otherinstance, on April 13, 2023, Collins damaged the Komatsu loader while operatingit. Tr. 62. 

Koontzdetermined that Collins operated the Komatsu loader dangerously on June 14,2023. Koontz testified that the Komatsu loader was capable of lifting theassigned loads. Specifically, as configured, the Komatsu loader was capable oflifting 15,000 pounds. A scale ticket from August 9, 2023 demonstrated that a panline weighed approximately 11,500 pounds. Tr. 68, 98; R. Exs. E, G. Koontztestified that he made the decision to discharge Collins based on these threeincidents. Tr. 93.  

            On July 21, 2023, anarbitrator found that Crimson did not violate the collective bargainingagreement when it fired Collins. On July 27, 2023, Collins filed the subjectdiscrimination complaint with MSHA. An inspector for the Secretary began hisinvestigation and, thereafter, filed an application for Collins to betemporarily reinstated to his former position pending a decision on the meritsof his complaint. 

**B.    ****The Judge’s Decision**

On September 18,2023, a Commission Administrative Law Judge concluded that Collins’ repeateddeclarations that he was uncomfortable with his assigned task constitutedprotected activities sufficient to meet the Secretary’s burden of proof in atemporary reinstatement proceeding. 

In his writtendecision and order reinstating John Collins, the Judge noted that Crimsonsubmitted evidence in an attempt to demonstrate that the pan lines were withina Komatsu loader’s safe lifting capacity. The Judge found that without experttestimony he was unable to interpret the technical evidence relating to themachine’s capabilities. Regardless, even if evidence demonstrated that the panlines could be safely loaded with a Komatsu 250, so long as the miner has agood faith belief that there is a safety hazard, they are protected in bringingtheir concern to the operator. Slip op. at 14 (*citing Sec’y on behalf ofRobinette*, 3 FMSHRC 803 (Apr. 1981); *Gilbert v. FMSHRC*, 866 F.2d1433 (D.C. Cir. 1989)). The Judge further concluded that his discharge was anadverse employment action and that there was reasonable cause to believe thatthe operator was aware of Collins’ protected activity, showed animus, and that therewas a close connection in time between the protected exercise and the miner’sdischarge. For these reasons, the Judge granted the Secretary’s application forthe temporary reinstatement of Collins. 

 

**II.**

**Disposition**

Under section105(c)(2) of the Mine Act, “if the Secretary finds that [a discrimination]complaint was not frivolously brought, the Commission, on an expedited basisupon application of the Secretary, shall order the immediate reinstatement ofthe miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2). Thepurpose of this protection is to encourage miners “to play an active part inthe enforcement of the Act,” in recognition of the fact that “if miners are tobe encouraged to be active in matters of safety and health they must beprotected against . . . discrimination which they might suffer as a result oftheir 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., *LegislativeHistory of the Federal Mine Safety and Health Act of 1977*, at 623. Temporaryreinstatement is “an essential protection for complaining miners who may not bein the financial position to suffer even a short period of unemployment orreduced income pending the resolution of the discrimination complaint.” *Id*.at 624-25 (1978).  

An operator mayrequest a hearing following receipt of the Secretary’s application fortemporary reinstatement pursuant to Commission Procedural Rule 45(c), 29 C.F.R.§ 2700.45(c). Rule 45(d), 29 C.F.R. § 2700.45(d), provides that in such hearing“the Secretary may limit his presentation to the testimony of the complainant. Therespondent [operator] shall have an opportunity to cross-examine any witnessescalled by the Secretary and may present testimony and documentary evidence insupport of its position that the complaint was frivolously brought.” 

The “scope of atemporary reinstatement hearing is narrow, being limited to a determination bythe Judge as to whether a miner’s discrimination complaint is frivolouslybrought.” *See Sec'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 oboJones v. Kingston Mining, Inc.*, 37 FMSHRC 2519, 2522 (Nov. 2015). The “notfrivolously brought” standard reflects a Congressional intent that “employersshould bear a proportionately greater burden of the risk of an erroneousdecision in a temporary reinstatement proceeding.” *Jim Walter Res.*, 920F.2d at 748, n.11.

Notably, at the hearing, the Judge must determine “whetherthe evidence mustered by the miner[] to date established that [his or her]complaint[] [is] nonfrivolous, not whether there is sufficient evidence ofdiscrimination to justify permanent reinstatement.” *Id.* at 744. Asthe Commission has recognized, “[i]t [is] not theJudge's duty, nor is it the Commission’s, to resolve the conflict in testimonyat this preliminary stage of the proceedings.” *Sec'y obo Albu v.Chicopee Coal C*o., 21 FMSHRC 717, 719 (July 1999). 

The Commission thenreviews a Judge’s temporary reinstatement order to determine whether it issupported by substantial evidence. *See e.g.*, *Sec’y obo Williamson v.Cam Mining, LLC*, 31 FMSHRC 1085, 1088 (Oct. 2009). “While an applicant fortemporary reinstatement need not prove a prima facie case of discrimination, itis useful to review the elements of a discrimination claim in order to assesswhether the evidence at this stage of the proceedings meets the non-frivoloustest. In order to establish a prima facie case of discrimination under section105(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 complainedof was motivated in any part by that activity.” *Id*. at 1088 (citationsomitted).

**A.   ****Substantial Evidence Supports the Judge’s Determination that theSecretary Demonstrated a Non-Frivolous Case that Collins Engaged in ProtectedActivity.**

On review,Crimson argues that the Judge erred by finding that Collins actions wereprotected by the Mine Act. The operator maintains that its undisputed evidencerefutes Collins’ belief that it was hazardous to load pan line with the Komatsu250 loader.[4] 

We disagree. Substantialevidence supports the Judge’s finding that the Secretary demonstrated anon-frivolous case that Collins engaged in activity protected by the Mine Act. Additionally,there is evidence that the complaint was made in good faith.*See Simpson v.FMSHRC*, 842 F.2d 453, 458 (D.C. Cir. 1988) (the Mine Act protects the rightto refuse work under conditions that a miner reasonably and in good faithbelieves to be hazardous). 

Collinstestified that while he regularly operated the Komatsu front-end loader, he hadnever before used it to load pan lines. Tr. 21-22. Collins believed that thepan line was too heavy to be safely lifted with the Komatsu, which is why theheavier Cat loader was regularly used to perform this task at the mine. Tr. 22,28-29, 31. Collins testified that he told Jamison three times that he was notcomfortable using the Komatsu loader for this assignment before eventuallyacquiescing. While Collins was attempting to load the second pan line onto thetruck, the weight of the lifted load caused the back end of his machine to riseapproximately five feet off of the ground and the pan line to slide from theloader’s forks. Collins told Jamison that he “knew it was going to happen”directly thereafter. Tr. 35. Collins testified that he injured his back in thefall. Tr. 36.  

Crimson arguesthat the Judge erred; it contends that it submitted evidence that demonstratesthat the Komatsu can be safely used to lift pan lines. It further argues that itsevidence demonstrates that Collins operated the equipment improperly. 

A review of therecord demonstrates that Crimson’s evidence was in fact disputed. Inparticular, there was a conflict as to whether the Komatsu could be safelyused. Collins testified that it was not possible to safely use the Komatsu toload pan line. When he performed the task the loader became unbalanced. Incontrast, Crimson introduced evidence suggesting that a pan line was within aKomatsu 250’s safe loading capacity. Specifically, it introduced evidence thatthe loader had the capacity to lift approximately 15,000 pounds, Tr. 98; R. Ex.G (Komatsu 250 specification sheet) and evidence that a pan line weighed 11,560pounds.[5]R. Ex. E (August 9, 2023 scale ticket). 

Additionally,there was a conflict as to whether Collins used proper procedures whenattempting to load the haul truck. Collins testified that he used the samelifting procedure during the first successful lift and the second unsuccessfulattempt. Tr. 40-41. In contrast, Crimson argues that the video and testimonyestablished that Collins used improper technique on his second loading attempt.Jamison testified that the video demonstrated that Collins failed to takeadequate measures to straighten his load or to tip the load backwards toprevent it from sliding off of the forks.[6]Tr. 64-68. 

 The Judge issimply not permitted to resolve these conflicts in the testimony and evidencein a temporary reinstatement decision.*Sec'y of Labor obo Albu*, 21FMSHRC at 719 (“[i]t [is] not the Judge's duty, nor is it the Commission's, toresolve the conflict in testimony at this preliminary stage of theproceedings.”). At the hearing on the merits of the complaint, the operatorwill be provided with the opportunity to attempt to demonstrate the equipmentcould be safely used for the task and to attempt to demonstrate that Collinsfailed to follow correct procedures. The hearing will be conducted after theparties have had the opportunity to engage in appropriate discovery regardingthese technical issues. Despite Crimson’s arguments, the Judge was notpermitted to weigh the evidence submitted by the parties. On review, the onlyinquiry is whether the Judge’s conclusion is supported by substantial evidence.It is.[7]

**B.    ****The Commission’s Procedures Provided Crimson with Due Process.**

Crimson contendsthat the Commission’s temporary reinstatement proceedings are constitutionallydefective. It maintains that principles of due process require that an operatorbe permitted to challenge the complainant’s credibility and for the fact-finderto be able to weigh the evidence before him.  

Crimson’sarguments have been addressed and refuted by the Supreme Court in *Brock v.Roadway Exp.*, 481 U.S. 252 (1987) and by the Court of Appeals for the EleventhCircuit in *Jim Walter Res*., 920 F.2d 738 (11th Cir. 1990).

Due processrequires fair notice and an opportunity to be heard “at a meaningful time andin a meaningful manner.” *Roadway Exp., Inc*., 481 U.S. at 261 (1987)(citing *Mathews v. Eldridge*, 424 U.S. 319, 333 (1976)[8]). In *JimWalter Res*., the Eleventh Circuit found that the Mine Act and theCommission’s Procedural Rules governing temporary reinstatement proceedings“far exceeded” the minimum constitutional requirements. The Eleventh Circuitalso specifically rejected the operator’s argument that the Commission’s “notfrivolously brought” standard in temporary reinstatement hearings was so easilymet by a complaining miner that the operator was deprived of due process oflaw. 

In so ruling theEleventh Circuit relied upon *Roadway Express*, in which the Supreme Courtdetermined that a similar temporary reinstatement provision in the SurfaceTransportation Assistance Act of 1982 provided the employer with due process oflaw. The Supreme Court held that the absence of a pre-deprivation hearing wasnot constitutionally defective, and that the statute’s procedural protectionsmet minimum standards of due process because the employer, prior to temporaryreinstatement, was provided the following:

Notice of the employee’s allegations,notice of the substance of the relevant supporting evidence, an opportunity tosubmit a written response, and an opportunity to meet with the investigator andpresent statements from rebuttal witness. The presentation of the employer’sneed not be formal, and cross-examination of employee’s witnesses need not beafforded [prior to temporary reinstatement].

*Id*. at 264.

            In *Jim Walters Res*.,the Eleventh Circuit extrapolated the same principles and applied them to thetemporary reinstatement procedures under the Mine Act, noting that the caseswere “virtually indistinguishable.” The Eleventh Circuit stated:

Faced with virtually the same balance ofcompeting government and private interests as in this case, the Supreme Courtin *Roadway Express* held that due process does not require that anemployer, who is challenging a temporary reinstatement of an employee, beprovided with a pre-deprivation hearing. Due process is satisfied “[s]o long asthe prereinstatement procedures establish a reliable ‘initial check againstmistaken decisions’ and complete and expeditious review is available.” *Id*.(citation omitted). 

920 F.2d at746-747.

            The Court concludedthat the protections afforded by section 105(c)(2) of the Mine Act and theCommission’s Procedural Rules “far exceeded” the minimum required. *JimWalter Res*., 920 F.2d at 748. Notably, under the procedures upheld in *RoadwayExpress,* the Secretary had sole authority to determine whether the standardhad been met and to issue the reinstatement order. The employer was providedwith a post-deprivation hearing on the merits of the complaint. 

            Although in the caseat hand Crimson argues that the limited nature of the Commission’s due processhearings are constitutionally defective, it is clear that the Supreme Court in *RoadwayExpress* found that a pre-deprivation hearing was not even required in atemporary reinstatement case.

            Crimson also claimsthat the Commission recently further narrowed the scope of temporaryreinstatement hearings by removing a Judge’s ability to make credibilitydeterminations. R. Br. at 11 (citing *Sec’y obo Cook v. Rockwell Mining*,43 FMSHRC 157, 165 (Apr. 2021). This is not true. The Commission has long heldthat under the “not frivolously brought test,” a Judge is prohibited frommaking credibility determinations and weighing evidence. *See e.g., Sec’y oboWilliamson*, 31 FMSHRC at 1089 (Oct. 2009) (finding that the Judge erred ashe “resolved conflicts in the testimony, and made credibility determinations inevaluating the Secretary's prima facie case, which he clearly should not havedone at this stage in the proceeding.”).[9]

Crimson alsoargues that it lacks fair notice of the burden of proof. We disagree. In itsmajority decisions, the Commission has consistently continued to require thatthe Secretary’s burden of proof is to demonstrate that the complaint has notbeen frivolously brought. *See**Sec’y obo Roger Cook v. RockwellMining, LLC*, 43 FMSHRC 157, 161 (Apr. 2021) (*citing Williamson*, 31FMSHRC at 1089). It is well established that at a temporary reinstatementhearing, the Judge must determine “whether the evidence mustered by the miner[]to date established that [his or her] complaint[] [is] nonfrivolous, notwhether there is sufficient evidence of discrimination to justify permanentreinstatement.” *Jim Walter Res.*, 920 F.2d at 744.

 

**III.**

**Conclusion**

            In summary,substantial evidence supports the Judge’s finding that the Secretary made anon-frivolous demonstration that the miner engaged in activities protected bythe Mine Act. The operator’s arguments that the Mine Act and the Commission’sProcedural Rules governing temporary reinstatement are constitutionallydefective are unavailing. Similar arguments have previously been addressed anddismissed by federal appellate courts including the Supreme Court. For thesereasons, we affirm the Judge’s order temporarily reinstating miner JohnCollins.   

 

 

 

/s/ Mary Lu Jordan

                                                                                    MaryLu Jordan, Chair

 

 

 

/s/ Marco M. Rajkovich,Jr.

Marco M. Rajkovich, Jr.,Commissioner

 

** **

 

/s/ Timothy J. Baker

Timothy J. Baker,Commissioner

 

 

 

Commissioner Althen dissenting,

The standard ofproof for temporary reinstatement is very low—a nonfrivolous complaint. However,“low” does not mean nonexistent.[10]I respectfully dissent.

**I. SUPPLEMENTAL FACTS**

            Itis helpful to supplement and clarify the majority’s statement of facts. Undisputedevidence demonstrates that Collins’s employment was shaky before he failed toload the pan lines in June 2023. On March 23, 2023, Collins knocked a pump offa truck, damaging it. Tr. 61. On April 13, 2023, he severely damaged a loader. Tr.62-63.

 

After the secondincident, the operator considered discharging Collins. However, pursuant tonegotiations with UMWA representatives, the operator and Collins agreed upon a35-day suspension. Tr. 53, 86. Additionally, contrary to showing animus, theoperator offered Collins other surface jobs at the mine, but he refused themeven at that time. Tr. 85. Collins did a test for one surface job but failedthe test. *Id*.

The thirdincident within three months occurred on June 14, 2023, when Collins dropped apan line from the loader while attempting to load the pan line on the truck. Afterthis third instance of damaging equipment, the operator discharged Collins. Collins’UMWA representative grieved the discharge, and it went to arbitration. Collins’basis for his claim in arbitration was that the operator fired him for filingan accident report. Operator’s Exhibit F. (The Secretary does not pursue thattheory here.) The Arbitrator upheld the discharge. *Id.* In doing so, theArbitrator’s decision finds that Union witnessEddiePinegar,Safety Committeeman, “testifiedthathe loadedthree (3)pieces of panlineona differenttruckthat day withoutincident.” Exhibit F, p. 11.[11] The Arbitrator furtherfound as Collins agreed in this case, that the operator properly task-trainedCollins for loading equipment using the Komatsu 250 front-end loader.

There is no actual dispute about whether the Komatsuloader could safely load the pan lines. We cannot shrug off official documentsshowing the Komatsu’s capability as if they were a lay opinion unless a partypresents a live “expert” witness at the hearing. Moreover, miners had safelyused the Komatsu to load pan lines. To assert Collins’s statement that he wasuncomfortable created a genuine dispute regarding the capabilities of the Komatsuis analogous to asserting that a nervous flier’s fear creates a dispute aboutwhether airplanes can fly. Regardless of an individual’s subjective beliefs,objective evidence proves airplanes can fly and that the Komatsu can load panlines.[12]

 

In response to Collins’ statement that he wasuncomfortable, Jamison, who had tasked trained Collins, first told him, “[W]edo it all the time,” and Collins replied that he knew that. Tr. 26. So, Collinsacknowledged that miners were using the Komatsu safely to load pan lines. Collinsaffirmed that he had bid for the loader operator job and was qualified. Tr. 47.

 

Nonetheless, Collinspressed his lack of comfort to which Jamison replied, “Well, everybody loads itwith it; just -- you’ll be all right; just be careful, watch what you do; takeyour time.” Tr. 63. Thus, rather than showing animus towards Collins’statement, a busy supervisor who knew the capabilities and regular use of the Komatsu,including currently loading pan lines, instructed him to be careful and takehis time.

 

After the failed loadeffort, Jamison asked Collins if he wished to file an accident report. Atfirst, Collins declined but later changed his mind. 

 

In summary, the evidence shows that theoperator task-trained Collins on the use of the Komatsu loader. The Komatsu canobjectively load pan lines on trucks. Another union miner that very day usedthe Komatsu to load pan lines. Collins agreed that the Komatsu was used to loadpan lines. Rather than flaring at Collins’ regular statements ofuncomfortableness, Jamison offered him advice and reassurance. Collins failedto load the pan lines but dropped them short of the truck. After that failure,Jamison asked Collins if he wished to file an accident report.

 

            Here,there is ***no**evidence***—none—that the discharge was motivatedin any part by Collins’s expression of uncomfortableness. The majorityincorrectly focuses upon purportedly disputed evidence regarding whether the Komatsuwas strong enough to load the pan lines and whether Collins used properprocedures. Undisputed evidence and testimony demonstrated that the Komatsucould load pan lines. Even Collins agreed that the operator had used the Komatsufor that task “all the time.” Tr. 26, 47.

 

            However,more importantly, the claim of discrimination does not turn on the capabilitiesof a Komatsu loader or whether Collins used it correctly on the day he failedto load the pan line. The Secretary’s complaint alleged that the operatordischarged Collins for “reporting safety concerns.”[13] Applicationfor Temporary Reinstatement, p. 2. In other words, the issue is not the Komatsuor Collins’s operation of the Komatsu but rather whether the operator fired himafter Collins’s third mishap for his statements about uncomfortableness and notfor his repetitive damaging negligence. The majority does not point to anyevidence on that fundamental issue.

 

            TheSecretary must prove a nonfrivolous case that Collins’s expression ofuncomfortableness caused the operator to discharge him. Moreover, under *Pasula/Robinette*,if the operator was justified for discharged him for his third damage ofequipment, the claim cannot stand. No evidence links Collins’s expression ofuncomfortableness to the discharge, and it is uncontested that he damagedequipment for a third time. The evidence shows only that Collins had a commonhuman reaction when punished for a mistake—self-forgiveness and blame-shifting.We all may experience such feelings when called to task for a failing.

 

**II.  ANALYSIS**

** **

In the context of thisproceeding, the Mine Act provides,

 

No person shall discharge . . . any miner, representative of miners or applicant for employment in any coal or other mine subject to this chapter because . .. of the exercise by such miner, representative of miners or applicant for employment on behalf ofhimself or others of any statutory right afforded by this chapter

 

30 U.S.C. § 815(c)(1). In turn, section 105(c)(2) providesfor the temporary reinstatement of a complainant if the Secretary determinesthe miner’s complaint was “not frivolously brought.”

 

            In *Jim Walter Res*., 920 F.2d 738 (11thCir. 1990), cited approvingly by the majority, the Eleventh Circuit upheld theconstitutionality of the nonfrivolous standard. It is analogous to the SupremeCourt decision in *Brock v. Roadway Exp.*, 481 U.S. 252 (1987). In doingso, the circuit court synchronized the temporary reinstatement standard to thestandard considered in *Brock*. Specifically, the circuit court found,

 

We find that the “notfrivolously brought” standard is not so low and easily met by a miner seekingtemporary reinstatement as to violate due process. Indeed, there is virtuallyno rational basis for distinguishing between the stringency of this standardand the “reasonable cause to believe” standard that was implicitly upheldin *Roadway Express*.

 

920 F.2d at 747.

 

            The circuit court’s finding puts at least ascrap of meat on the bones of “nonfrivolous.” In a temporary reinstatementhearing, the question is whether the Secretary has presented sufficientevidence so that there is reasonable cause to believe the operatordiscriminated against the complainant.

 

            Traditionally, the Commission applies the *Pasula-Robinette*test. *Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co.,*2FMSHRC 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.,*3FMSHRC 803 (Apr. 1981).***[14]***That test contains three elements. A miner or the Secretary must provediscrimination by showing that: (1) the miner engaged in protected activity,(2) was subject to an adverse action, and (3) that such adverse action was atleast partially motivated by that protected activity. Operators may defendaffirmatively by proving that the adverse action was also motivated by theminer’s unprotected activity and that it would have taken the action for theunprotected activity alone. *Sec’y of Labor o/b/o**Smitherman v. Warrior Met Coal Mining, LLC*, 45 FMSHRC ___, (June 20, 2023).

 

            Here,Collins’s discharge constitutes adverse action. However, insuperable problemsarise for the Secretary’s case on the issue of protected activity and from theabsence of any evidence whatsoever that Collins’ discharge after his severethird failure in four months was motivated in any way by an expression ofdiscomfort especially when Jamison reassured Collins rather than rebuked him. Finally,in this unusual fact pattern, the operator undoubtedly would prevail with anaffirmative defense. There is no reason to reinstate Collins briefly before theSecretary drops the action for Collins. If Collins wishes to pursue a hopelesscase, he may do so on his own.

 

1.      **Protected Activity**

** **

Unquestionably, the Mine Act gives miners essential rights toprotect their safety. A miner may refuse to work if he has a good faith beliefthat a hazard exists and communicates his belief to the operator. In*Simpson v. FMSHRC*,842 F.2d 453 (D.C. Cir. 1988), the Court of Appeals for the District ofColumbia Circuit considered the issue ofconstructive discharge of a miner who refuses to work in intolerably dangerousconditions. The circuit adopted an objective test of whether “the conditions[were] so intolerable that a reasonable miner would have felt compelled toresign.” *Id*.**at 461. The circuit court cited *Clark v. Marsh,* 665F.2d 1168 (D.C. Cir. 1981), in which the court characterized the standard testin discrimination cases as an “objective test.”

 

*National Cement Co. v. FMSHRC*, 27 F.3d 526 (11th Cir. 1994) supports this objectivetest. In *National Cement*, the circuit court stated, “If the work refusalis not objectively reasonable, there is no protected activity. [T]he [work]stoppage must be reasonable, as well as motivated by a genuine belief that itis necessary to protect safety or health.” 27 F.3d at 533, (citing*Miller v.FMSHRC*, 687 F.2d 194, 195 (7th Cir.1982)). A good faith belief, standingalone, does not create protected activity. The stoppage must be “reasonable.” Thismeans the work stoppage must be a rational “reason” rather than a fearunsupported by any reasonable basis.

 

In this case, Collins cannot support aclaim that feeling “uncomfortable” with using a Komatsu loader constituted anobjectively reasonable belief that the Komatsu was unsafe. An unexplained andunfounded assertion of fright (even assuming that was the actual cause of anyuncomfortableness) does not rise to the realm of protected action, especiallyconsidering other miners’ regular safe use of the equipment and Collins alsoregularly used the Komatsu. Tr. 21-22. Indeed, Collins himself safely loaded apan line with it, and, as the Arbitrator found, at least one other miner alsoperformed such pan line loading work the same day Collins only said that he was“uncomfortable.” Collins did not testify to any knowledge of the Komatsu thatobjectively would create fear; he did not testify to any experience with the Komatsuthat would objectively create fear.

 

Collins expressly acknowledged that heknew miners used the Komatsu to load pan lines “all the time.” Tr. 26. Regardingthe reasonableness of his position, Collins never expressed to Jamison anyreason for a lack of comfort. Indeed, in the face of vigorouscross-examination, Jamison testified that he did not interpret Collins’sstatements as exercising a right to express safety concerns. Tr. 73. Instead,Jamison testified that Collins’ expression of being uncomfortable was a patternof conduct that Collins used regularly. *Id*. The most Collins’ssupervisor understood was that Collins was again saying without explanationthat he did not feel comfortable doing a job that other miners, with Collins’sknowledge, performed “all the time” with the same equipment.

 

The absolute most that can be said isthat, although Collins was an experienced machine operator who had used the Komatsumany times before, he personally and without any basis said he was“uncomfortable” about using it to perform a task that the Komatsu clearly couldperform and had performed. He expressed only “uncomfortableness” and wasreassured that he would be fine—just going ahead and taking his time.

 

In this case, we consider an unexplainedassertion of uncomfortableness in performing an ordinary mining task. Collinswas trained in using the Komatsu and loaded other equipment. An unexplaineddeclaration of lack of comfort in using equipment on which the miner has beentrained, has used to load other equipment, and was being used to perform thesame task the same day by other miners is not a protected activity.

 

2.      ** Motivation**

** **

In *Secretaryon behalf of Chacon v. Phelps Dodge Corp.*, 3 FMSHRC 2508, 2510-11 (Nov.1981), *rev’d on other grounds*, 709 F.2d 86 (D.C. Cir. 1983),the Commission identified several indicia of discriminatory intent,including (1) disparate treatment of the complainant (2) hostility or animustowards protected activity; (3) knowledge of the protected activity; and (4)coincidence in time between the protected activity and the adverse action. 3FMSHRC at 2510.

 

           Even were we to find that Collins’s unreasoned andunexplained claim of uncomfortableness was protected activity, the Secretarypresented no evidence that the operator greeted Collins’s expression of suchdiscomfort with hostility, animus, or other action indicative ofdiscrimination. There is no evidence whatsoever that Collins’s dischargeoccurred “because” of statements about being uncomfortable before destroyingcompany property. Indeed, when an employer discharges an employee after threeincidents of the negligent destruction of company property in four months, itis laughable to suggest the motivation was an unexplained expression of beinguncomfortable with using a machine to perform an ordinary work task.

 

                       **a. Disparate Treatment**

 

           Thereis no evidence of disparate treatment. There was no evidence that any otherminer ever expressed discomfort in loading pan lines with the Komatsu. Contraryto disparate treatment, other classified employees used the Komatsu to load panlines. Similarly, there was no evidence that the operator would not havedischarged other miners who committed multiple performance errors, resulting indamage to company property.

 

                       **b.****Hostility/Animus**

 

           Thereis no evidence of hostility or animus. To the contrary, Jamison informedCollins that other miners were doing the work, which Collins acknowledged. Jamisonreassured him to go slow and take his time. The record does not indicatedisparagement, critical remarks, or hostility to Collins’ comments. Theresponse was simply a business-like reply that he would be okay performing thework.

 

                       **c.****Knowledge of Protected Activity.**

 

           Asexplained above, Collins did not engage in protected activity. He did not havea reasonable basis to think the Komatsu could not perform the task safely. Collinsacknowledged that he routinely used the Komatsu and that the operator used itregularly to load pan lines. He did not express a safety concern but said hewas “uncomfortable” doing the work.

 

While Collins expressed that he was not comfortable usingthe Komatsu to perform the task, it was not sufficiently clear—in the contextof the facts of this case—for the operator to reasonably infer that hiscomplaint was related to safety. Collins did not claim he lacked training orassert any problem with the Komatsu that would have contributed to a diminutionof his safety or the safety of other miners on the site. Moreover, Jamison hadlittle reason to think that the vague statement was safety-related when,according to Jamison, it was a pattern of conduct that Collins used regularlywhen assigned tasks. It is uncontested that, at the time, Jamison did notinterpret Collins’ statements as exercising a right to express a safetyconcern. *See Pendley v. Fed. Mine Safety & Health Review Comm’n*, 601F.3d 417, 426–28 (6th Cir. 2010) (finding that the motivation inquiry turns “onwhat the operator actually believed at the time, not what the Commission laterreasons the operator could have relied upon in making its disciplinary decision”).

 

                       **d.****Timing of the Adverse Action**

 

           Theoperator discharged Collins soon after he committed a third error, destroyingthe operator’s property. The discharge arose from a third and final act ofdestruction of property by mishandling operator equipment. When else would anemployer discharge an employee for destroying property than soon after thedestruction? It would be more suspicious if an operator took months todischarge an employee for repeated destruction of property; anyone, including theemployee, would expect immediate action. Thus, from a timing perspective, thediscipline makes complete sense for a third act of incompetently destroyingcompany property rather than retribution for a statement about the miner’scomfort.

 

            Theevidence at the hearing does not support any disparate treatment, theoccurrence of protected activity, hostility toward Collins, a discriminatorilyhasty discharge, or a reasonable belief of protected activity.[15]

 

**3. Affirmative Defense**

 

           Supposea complainant establishes a prima facie case of discrimination. In that case,the operator will nonetheless prevail if it demonstrates that it would havedischarged the miner for unprotected activity without regard to the protectedactivity. *Pasula-Robinette*, *supra*. 

 

           In*Jim Walter Res*., *supra*at 747, the Eleventh Circuit stated thatthe employer has:

 

The opportunity for a full evidentiary hearing *prior*to a temporary reinstatement. 29 C.F.R. § 2700.44(b). At this hearing, theemployer can test the credibility of any witnesses supporting the miner’scomplaint through cross-examination and may present his own testimony anddocumentary evidence contesting the temporary reinstatement.

 

            Theright for an operator to have a full hearing at which it may present itsevidence contesting temporary reinstatement must encompass a right to prove toa level of summary decision that it would have discharged the employee forunprotected actions. Such an occurrence at a temporary reinstatement hearingmust be extremely rare because it ordinarily must be based upon undisputedevidence and must not require a meaningful credibility determination. However, supposean operator conclusively establishes at a temporary reinstatement hearing thatit will be entitled to summary judgment based upon an affirmative defense. Inthat case, the complainant’s case is hopeless—frivolous. This unique casewarrants such an outcome.

 

            Inthis case, the Secretary claims the operator discharged Collins due toprotected activity – namely, that the operator discharged Collins for hisdeclaration of unexplained uncomfortableness in using a Komatsu. For thissection of the dissent only, we assume that there is some way that an ALJ couldfind Collins’s speculation could warrant a finding that his uncomfortablenesswas a reason for his discharge. However, we cannot neglect the operator’s claimthat it discharged Collins due to repetitive damaging negligence. If theoperator establishes that claim to a level of summary decision, it negates anyclaim of entitlement to reinstatement.

 

            Theoperator’s affirmative defense would build upon the indisputable facts ofCollins’s repetitious negligence. Thus, the operator claims that it dischargedCollins for severe repetitive negligence. Of course, discharge for repetitiveasset-damaging negligence does not imply protected rights or activity. Therefore,given the burden-shifting under *Pasula-Robinette*, if the operator showsunprotected actions were a reason for the discharge, the Secretary must provethat the asserted reason for discharge was pretextual. In the *Pasula-Robinette*context, damaging negligence does not have to be “the” reason for discharge. Itonly needs to be “a” reason for discharge.

 

            Rarelycould summary judgment standards be met at a temporary reinstatement hearing. However,they are met in this case. The Secretary does not dispute the acts ofnegligence. The Secretary does not/cannot assert that damaging negligence is aprotected activity. Thus, to prevail against the affirmative defense at ahearing, the Secretary must prove that the discharge for three undisputed actsof damaging negligence was pretextual. In other words, the Secretary must showthe operator did not discharge Collins even partially for such damagingnegligence but only for the complaint of uncomfortableness.

 

            Wesuppose the Secretary could make the argument, although not with a straightface, that the operator’s discharge of Collins for repetitive acts ofnegligence (upheld by an arbitrator) was a pretext for assertedly theoperator’s only genuine problem with Collins—a comfort complaint that precededthe last act of negligence. The Secretary must contend that the operator wasnot partially motivated by the repetitive negligent destruction of its propertyfor which it had previously imposed a 35-day suspension—that is, that thedischarge for the third negligent act damaging company property was pretextual.Presumably, to the Secretary, this third failure was not even part of thereason for the discharge; the discharge was solely because the operator couldnot abide a comfort complaint. Based on the evidence, such an argument iscomplete nonsense. The Commission does not have to, and should not, act uponnonsense.

 

            Itis undisputed that Collins twice negligently destroyed the operator’s propertybefore the third negligent act. It is undisputed that the operator attempted todischarge Collins for such negligence after the second instance and imposed a35-day suspension. It is undisputed that Collins was again negligent anddestroyed the operator’s property only a few days after the suspension ended. Itis undisputed that Collins knew the Komatsu had performed such loading work. Anarbitrator upheld the discharge against a charge that the discharge occurred. Collinsfiled an accident report with the operator’s assistance—a claim not even madein this case. For Collins to prevail, an ALJ would have to reject these factsand find the motivating reason for discharge was an expression ofuncomfortableness.[16] Neither the Mine Act nor our case lawrequire us to reduce legal positions to absurdity.

 

            Letus make it simple. The operator proves, and Collins agrees, that Collinscommitted three destructive acts of negligence in four months. It attempted todischarge Collins after the second act. The Secretary implicitly but notexplicitly argues, “Collins’s third act of destructive negligence was not anyreason for the discharge; the only reason was his statement that he wasuncomfortable. We do not have any evidence to support that claim, but becausehe was uncomfortable, he must get his job back.” Stunningly, the majorityagrees with the Secretary.

 

            Themajority requires the operator to restore a former employee to a position wherehe has repeatedly demonstrated that he will negligently destroy property andpresent a danger to himself and others. It does so because it says it cannotbelieve, at this stage, that the operator discharged Collins, at least in partfor multiple acts of demonstrated destructive negligence after suspending himfor such failures. Reduction of the Mine Act to an absurd credibility rulingtrivializes the dignity and importance of the essential anti-discriminationprovision of the Act.[17]

 

**III.  CONCLUSION**

** **

**          **Theevidence demonstrates that Collins only said he was “uncomfortable” performingwork with a Komatsu loader. The evidence also demonstrates conclusively thatthe Komatsu loader could perform the work. Indeed, on the same day, anotherworker was using that type of loader for the very tasks asked of Collins. Atthe time of Collins’s “uncomfortable” statement, the operator exhibited nohostility. Indeed, after Collins’s prior costly failures, the operatorattempted to find him another position. In discharging Collins, the operatordealt immediately with a severe third act of destruction of equipment byCollins in four months. The majority concedes there was not any disparatetreatment.

 

           Theremust be some minimal requirements for temporary reinstatement. This case doesnot meet those requirements. I respectfully dissent.

 

 

 

/s/ William I. Althen

William I. Althen,Commissioner 

 

 

 

Distribution:

 

Susannah M.Maltz, Esq.

U.S. Departmentof Labor, Office of the Solicitor

Division of MineSafety & Health 

201 12th StreetSouth, Suite 401 

Arlington,VA 22202 

maltz.susannah.m@dol.gov

 

Christopher D. Pence, Esq.

Hardy Pence PLLC

10 Hale Street, 4th Floor

Charleston, WV 25329

cpence@hardypence.com

 

Samuel Maples

Maples, Tucker& Jacobs LLC

2001 Park PlaceNorth, Suite 1325

Birmingham, AL35203

sam@mtandj.com

 

AdministrativeLaw Judge John Kent Lewis

Office of theChief Administrative Law Judge

Federal MineSafety and Health Review Commission

7 ParkwayCenter

875 GreentreeRoad, Suite 290

Pittsburgh, PA15220

jlewis@fmshrc.gov

----

[1] The pan lineappears to refer to a pan conveyor, which is “[a] conveyor comprising one ormore endless chains or other linkage to which usually overlapping orinterlocking pans are attached to form a series of shallow, open-toppedcontainers.” *See* Pan Conveyor, *Dictionary of Mining, Mineral, andRelated Terms* (2d Ed. 1996). 

[2] Collinstestified that while he regularly operated the Komatsu 250, he had never beforeused it to load pan lines onto a haul truck. Tr. 21-22. He had previouslyloaded pan lines onto a haul truck approximately five or six times, each timeusing a heavier Cat loader. Tr. 22. Conversely, Jamison testified that theoperator used the Komatsu 250 to load pan lines ever since Jamison started withthem, and he had personally used it to load pan lines. Tr. 68.  

[3] Collins hadrecently been suspended from employment for damaging the loader. 

[4] Crimson alsocontends that Collins failed to make a safety complaint. Collins stated that hewas uncomfortable using the Komatsu 250 to complete the assigned task. Tr. 28. Substantialevidence supports the Judge’s finding of a safety complaint. The fact that theloader became unbalanced during an attempted lift demonstrates the plausible reasonablenessof his stated concerns.

[5] We note thata scale ticket from August 9, 2023, is not dispositive proof of the weight ofthe load on June 14, 2023. 

[6] Even if thevideo undisputedly demonstrated improper technique (which it does not), itwould not resolve whether the Komatsu became unbalanced solely because ofoperator error or because of the weight of the load. Any error on the part ofCollins does not mean his safety concerns were not genuine.  

[7]  CommissionerAlthen dissents, concluding that the Secretary failed to provide any evidence ofa non-frivolous motivational nexus between the protected activity and theadverse action. That is incorrect. The Commission has held that the Secretarymay establish a non-frivolous motivational nexus simply through the operator'sknowledge of protected activity and temporal proximity between the protectedactivity and the adverse action. *Sec’y obo Roger Cook v. Rockwell Mining,LLC,* 43 FMSHRC 157, 162 (Apr. 2021) (*citing Sec'y of Labor on behalf ofStahl v. A&K Earth Movers Inc*., 22 FMSHRC 323, 325-26 (Mar. 2000)). Collinswas suspended and then discharged less than two weeks after the occurrence ofthe event. 

[8] In *Mathewsv. Eldridge*, 424 U.S. 319 (1976), the Supreme Court articulated athree-part test to determine what due process requires:

First, the private interest that will beaffected by the official action; second, the risk of an erroneous deprivationof such interest through the procedures use, and the probable value, if any, ofadditional or substitute procedural safeguards; and finally, the Government’sinterest, including the function involved and the fiscal and administrativeburdens that the additional or substitute procedural requirement would entail.

*Id*. at 334-35. 

[9] As theSecretary identified in her brief, “[p]er *Roadway Express*, parties arenot constitutionally entitled to “test the credibility of opposing witnesses”during an initial investigation because this added procedural protection “wouldnot increase the reliability of the preliminary decision sufficiently tojustify the additional delay.” S. Br. at 12 (*citing* 481 U.S. at 266).  

[10]Or, maybe to the Commission, it does. A review of Commission records for fiscalyears 2018 through 2022 shows 56 motions for temporary reinstatement: forty-sixwere granted seven were withdrawn, two settled, none were denied. Indeed,Administrative Law Judges wonder why they must go through hearings to reach aforegone conclusion as the Administrative Law Judge in this case demonstratesin a wonderfully ingenuous exclamation, “Well, that’s why -- jeez, I’ve beenhere a long time. I’ve had very few temporary instatement hearings because thethreshold was so low that the Secretary had to meet.” Tr. 116. 

 

            [11] The Arbitratordoes not expressly write that Pinegar used a Komatsu. However, there would beno relevance if he were not using a Komatsu. Moreover, Collins testified thaton the day of the incident, Jamison reiterated that Crimson used Komatsu’s forthis purpose “all the time.” Tr. 26. His response was, “I understand that,Jeff.” *Id*. No one disputes the fact that Crimson regularly used the Komatsuto load pan liners.

            [12] The ALJ foundthat authoritative documents showing the strength of the Komatsu and prior usesof the Komatsu for that purpose were insufficient to prove it could handle panlines. He needed an expert witness. Obviously, that is an error.

            [13] In fact, Collinstestified that his concern was that he was “uncomfortable” using the Komatsu toload pan lines. Of course, a lack of comfort could arise from safety concernseven though Collins knew the Komatsu had loaded pan lines. It might also havebeen an expression that he would be uncomfortable using it because he doubtedhis ability to use it properly. At the hearing, he naturally testified that hemeant safety concerns. However, in recounting the events of the day, hetestified that he said he was “uncomfortable” three times. However, even if hehad a subjective fear the Komatsu could not do the job with him at thecontrols, that subjective feeling does not create protected activity.

[14] In *Thomas v. CalPortlandCo.*, 993 F.3d 1204(9th Cir. 2021), the Ninth Circuit rejected the *Pasula-Robinette* standard and held theplain meaning of section 105(c) requires a “but-for” causation standard fordiscrimination determinations under the Mine Act. Thus far, no othercircuit has followed the ninth circuit’s approach and the operator in this casedid not challenge the standard. Therefore, although we may anticipate futuresuccessful challenges to *Pasula-Robinette*, no challenge exists here.

           [15]Inaffirming the temporary reinstatement, the majority relies almost wholly on thetiming of the discharge. If discharging an employee quickly for damagingcompany when that employee is coming off a 35-days suspension for damagingcompany property is proof of discrimination meriting temporary reinstatement,there really is no standard for temporary reinstatement.

            [16]I note again that the operator did not react badly to Collins expression ofuncomfortableness. Jamison assured Collins that the Komatsu had performed thework. Collins agreed with this assurance. Jamison then told Collins to becareful and take his time. Collins claim of animus, therefore, is not supportedby any expression of animus to his uncomfortableness but by reassurances. Collinsdoes not have any “evidence” to support his claim. His claim is purely anunsupported “I think” claim. Finally, it is absurd to assert the timing of adischarge immediately after an employee destroys property displays that thereal and only reason for discharge was Collins’s expression ofuncomfortableness. Such a clam is a fanciful makeweight to support anunsupportable proposition—an irrational, willful decision rather than an objectiveadjudication.

            [17] It is notentirely clear what the Commission has meant by not permitting “credibility”determinations. Surely, it must not mean the Commission must accept proven liesor that it must accept allegations not supported by evidence but only theimagination and desires of a witness. Does it mean that anything a claimantsays must be believed but testimony of other witnesses must be disbelieved orneither believed nor disbelieved? If it is crucial to a claim whether a minecar broke loose and rolled downward and ten witnesses say it did not while onewitness says it did, must the ALJ not make a finding on such critical factor? Doesit depend upon who the one witness is—claimant or company representative? Doesit mean that in a case such as this where there were uncontested acts of grossand harmful negligence by the complainant, we must not accept that suchnegligence was a reason for the discharge because complainant suggests anunexplained and unsupported suspicion without evidence that his negligence wasnot a reason for discharge? Surely, not.