**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

7 PARKWAY CENTER, SUITE290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240/ FAX: 412-928-8689

 

 
| SECRETARY OF LABOR

  MINE SAFETY AND HEALTH     

  ADMINISTRATION (MSHA), 

  on behalf of RYAN S. LEMLEY,

                           Complainant,

 

                        v.

 

MONONGALIA COUNTY COAL

 RESOURCES INC.,

                           Respondent                                                                                     |   |   | TEMPORARY REINSTATEMENT

PROCEEDING

 

Docket No. PENN 2021-0087

MSHA Case No.: MORG-CD-2021-05

 

 

 

 

Mine: Monongalia County Mine

Mine ID: 46-01968 |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

 

**ORDER GRANTING TEMPORARY REINSTATEMENT**

**OF Ryan S. Lemley**

 

Before:             Judge Lewis

 

            Pursuantto Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Act”),30 U.S.C. § 801, *et. seq.*, and 29 C.F.R. § 2700.45, the Secretary ofLabor (“Secretary”) on June 8, 2021, filed an Application for TemporaryReinstatement of miner Ryan S. Lemley (“Complainant”) to his former positionwith Monongalia County Coal Resources Inc. (“Respondent”) at Respondent’s minepending final hearing and disposition of the case.

 

            Accordingto Commission Rule 45, a request for hearing must be filed within 10 daysfollowing receipt of the Secretary’s application for temporary reinstatement.29 C.F.R. § 2700.45(c). The Secretary’s certificate of service states thatthe Application for Temporary Reinstatement of Complainant was served onRespondent by electronic mail on June 8, 2021. The Respondent has not filed atimely Request for Hearing. The parties submitted on June 23, 2021, a JointMotion to Approve Settlement, which I approve herein.

 

            TheSecretary has found that the Complaint was not frivolously brought and, asexplained below, has provided evidence supporting that determination.Therefore, consistent with Section 105(c)(2) of the Act, the temporaryreinstatement of Ryan S. Lemley is granted.

 

Lawand Regulations

 

            Section105(c) of the Mine Act prohibits discrimination against miners for exercisingany protected right under the Mine Act and provides that a miner may file acomplaint with the Secretary alleging discrimination. 30 U.S.C. § 815(c)(1-2).The plain language of the Act also provides that “if the Secretary finds thatthe complaint was not frivolously brought, the Commission, on an expeditedbasis upon application by the Secretary, *shall*order the immediatereinstatement of the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2)(emphasis added).

            TheCommission’s regulations control the temporary reinstatement procedures. Oncean application for temporary reinstatement is served on the person against whomrelief is sought, 

thatperson shall notify the Chief Administrative Law Judge or his designee within10 calendar days whether a hearing on the application is requested. 29 C.F.R. § 2700.45(c).If no hearing is requested, the Judge assigned to the matter shall reviewimmediately the Secretary’s application and, if based on the contents thereof,the Judge determines that the miner’s complaint was not frivolously brought,[1]shall issue immediately a written order of temporary reinstatement. *Id.*

 

             Ifthere is a hearing, the Judge must determinewhether the complaint of the miner “is supported by substantial evidence and isconsistent with applicable law.”[2]*Sec’y of Labor on behalf of Peters v. Thunder Basin Coal Co.*, 15 FMSHRC2425, 2426 (Dec. 1993). In the instant case, however,the Respondent has not timely filed a request for hearing. Thus, CommissionProcedural Rule 45(c) compels me to review the Secretary’s determination thatthe complaint in this matter was not frivolously brought. *See*29 C.F.R.§ 2700.45(c).

 

Disposition

 

            TheSecretary has provided the evidentiary basis for his determination that thecomplaint in this matter has not been frivolously brought. The Act requires theSecretary to investigate the miner’s complaint of discrimination. 30 U.S.C. § 815(c)(2).The Secretary’s application includes the Complaint filedby Complainant (Exhibit “A” to the Application) and the Declaration ofSpecial Investigator Clarence Moore indicating that this was done (Exhibit“B.”) 

 

            Mr.Moore’s Declaration provides facts in support of the Secretary’s conclusionthat the complaint was not frivolously brought, including:

 

    - At all relevant     times, Monongalia County Coal Resources Inc. was a Corporation and is a “person”     as defined in section 3(f) of the Mine Act.
    - Complainant was     employed as a belt cleaner at MCCR’s Monongalia County Mine (46-01968),     and therefore, was a “miner” within the meaning of section 3(g) of the     Mine Act.

3.     Complainantwas employed at the Mine for approximately seven years, from 2014 until MCCRdischarged him from employment on April 19, 2021.

4.     On April 21,2021, Complainant filed a discrimination complaint alleging that MCCR dischargedhim on April 19, 2021 in response to Complainant engaging in protectedactivity.

5.     Complainantserved on the Mine safety committee from June of 2016 through June of 2018, andor four months, Complainant held a belt examiner certification. During theseand other times, and while conducting belt examinations, he discovered andreported safety issues. On several occasions, he filled out an entire page inan examination book with safety concerns and hazards. In several instances, hefiled complaints with MSHA under section 103(g) of the Mine Act.

6.     During hisemployment at the Mine, Complainant frequently accompanied federal and statemine inspectors as a Miners’ Representative during their inspections. Duringone such examination by a state inspector, Complainant pointed out an area ofinadequate roof support for which the inspector issued the Mine a citation. Onanother occasion, Complainant advised an MSHA inspector that an emergency sledwas not in the required location with the required equipment, and the MSHAinspector issued a citation to the Mine.

7.     Complainantobserved a “hot trolley hanger” in the Mine to which someone had run a hose tospray water to keep it cool. If the water was turned off for more than 30seconds, the hanger would start smoking and the plates in the top would turnred. Complainant noted that the Mine did not take any other steps to abate thisobvious condition during the day shift and afternoon shift, and so he calledthe dispatcher to contact the UMWA and let them know of the situation.Following this report, the UMWA and MCCR worked out a suitable solution to addressthe hot hanger.

8.     Complainantreported that MCCR engaged in a years-long pattern of harassing him due to hissafety reporting and cooperation with government inspectors.

9.     In an August14, 2018 letter from the late Bob Murray to UMWA President, Murray identifiedComplainant as one of several out of control individuals at Murray Energy ownedmines who used “constant safety allegations and 103(g) complaints” to “harass[the] company and its management.” 

10.  Complainantwas generally known by MCCR as a miner that would cooperate with governmentinspectors. Following a number of anonymous 103(g) complaints called in to MSHA,management began referring to Lemley as “‘G’ Lemley.” 

11.  MCCR raisedfalse allegations against Complainant for allegedly destroying a contractor’sbelt equipment while working underground at the mine. Complainant was subsequentlywritten up for poor work performance and suspended on the grounds that he allegedlyfailed to report an area of unsupported roof for which the Mine was cited by astate inspector. Complainant maintains that he, in fact, reported theunsupported roof to the inspector. The suspension eventually proceeded toarbitration, and Complainant was restored to his position with back pay.

12.  During a beltmove in which Complainant reported several safety issues, a foreman encouragedComplainant to ignore the safety concerns. Complainant’s work was impeded and sloweddue to the safety concerns, but he was able to complete the belt move. Thefollowing day, a foreman told Complainant that the Assistant Superintendent wantedto write Complainant up for poor work performance, impeding production, and notfollowing safety protocols. However, the foreman purportedly refused to do sobecause Complainant’s safety concerns were accurate.

13.  AfterComplainant’s report of the mis-located emergency sled to an MSHA inspector, a MCCRsafety representative told him he would no longer be able to serve as a Miners’Representative on inspections with him if Complainant was going to continue topoint out safety concerns to inspectors.

14.  Following ananonymous 103(g) complaint about non-compliant hardhat liners that MSHAsubstantiated and MCCR believed Complainant called in, a member of the Safety Departmentapproached him daily for the next two weeks to ensure he had the proper hardhat liner.

15.  Complainantalso reported that MCCR assigned him to an especially hostile foreman who repeatedlythreatened him and attempted to write Complainant up for taking equipment outof service, purposefully making mistakes, and creating a hostile workplace.Complainant also complains of being assigned to several less desirablepositions during that time.

16.  On March 20,2021, Complainant reported five 103(g) safety complaints to MSHA which MSHAinvestigated on March 22 and issued citations substantiating all fivecomplaints. While underground, Complainant asked a foreman, “What’s new?” towhich the foreman responded, “Other than you calling in all these complaints?”The foreman informed Complainant that MCCR was not happy, and he showedComplainant the list of violations. Complainant stated that the complaints musthave been legitimate because of the citations issued.

17.  The Mine’sattendance policy distinguishes between personal and sick days, and provides formultiple levels of discipline for violations.

18.  On April 2,2021, the UMWA and MCCR reached a local agreement to use the miners’ secondweek of vacation this year as personal days, due to the mine ceasing operationsand permanently closing late in 2021.

19.  On April 9and 10, 2021, Complainant missed work, apparently without management consentand without proving an illness with a doctor’s note.

20.  On April 16,2021, Complainant suffered an adverse action when MCCR suspended him with theintent to discharge him under the attendance policy. Complainant received nowarning before his suspension and discharge, and he was not afforded anopportunity to use personal days or a combination of a personal day and a sickday for his two absences.

21.  On April 19,2021, Complainant suffered an adverse action when MCCR discharged him from hisemployment at the Mine.

22.  MCCR treatedComplainant more harshly than another similarly situated miner who has nevercalled in a 103(g) complaint and has never been accused of doing so. In March2021, that miner missed work, and attempted to use a personal day, but he didnot have any personal days left to use. The miner had previously received awarning for missing work. As this was an additional unexcused absence within a180 day time frame, MCCR issued a letter suspending the miner for two days.Subsequently, the miner was again absent from work without an excuse. Yet, althoughMCCR initially moved to discharge him, it did not do so. Instead, MCCR issuedhim a second suspension and allowed him miner to use a personal day for hisMarch absence. In addition, the miner had previously violated the attendancepolicies more than once.

23.   Based on my investigation to thisdate, I have concluded that there is reasonable cause to believe that MCCRdischarged Ryan S. Lemley because he engaged in protected activities. MCCR hadknowledge of Complainant’s protected activities, it demonstrated animus towardsComplainant regarding his protected activities, it disparately treatedComplainant, and there was a short time between the latest protected activityand the adverse action. Thus, there is reason to believe that MCCR’s decisionto discharge Complainant was based, at least in part, upon his protectedactivity, and I have concluded that the complaint filed by Ryan S. Lemley isnot frivolous.

 

Dec. of Clarence W. Moore, June 8, 2021 (Ex. “B” to App.For Temp. Reinst.)

 

            Thefacts provided in support of the agency’s decision, if true, would establishjurisdiction, a timely complaint of discrimination, and that Complainantengaged in protected activity and suffered an adverse action close in time tothe protected activity, under circumstances that provide a reasonable cause tobelieve that there was a causal nexus between his participation in an MSHAinvestigation and his termination.

 

Findingsand Conclusion

 

            Atthis stage, the facts alleged by the Secretary are undisputed. Therefore, Ifind that the complaint for discrimination has not been frivolously brought,and that Complainant Ryan S. Lemley is entitled to Temporary Reinstatementunder the provisions of Section 105(c) of the Act.

 

**ORDER**

 

It is hereby **ORDERED** that **Ryan S. Lemley** be **immediately****TEMPORARILY REINSTATED** according to the terms submitted by the partiesin their Joint Motion to Approve Settlement.

 

This Order **SHALL** remain in effect until such time asthere is a final determination in this matter by hearing and decision, approvalof settlement, or other order of this court or the Commission.

 

            I retain jurisdiction over this temporaryreinstatement proceeding. 29 C.F.R. § 2700.45(e)(4). The Secretary shallprovide a report on the status of the underlying discrimination complaint assoon as possible.

 

 

 

 

/s/John Kent Lewis

                                                                                    JohnKent Lewis

                                                                                    AdministrativeLaw Judge

 

 

Distribution (Via Certified Mail & E-mail)

 

Ryan M. Kooi, Esq., U.S. Dept. of Labor, Office of RegionalSolicitor, 1835 Market St., Mailstop SOL/22, Philadelphia, PA 19103-2968, Kooi.ryan.m@dol.gov

 

Timothy J. Baker, Esq., UMWA, 18354 Quantico Gateway Dr.,Suite 200, Triangle, VA 22172, tjbaker@umwa.org

 

Philip K. Kontul, Esq., Ogletree, Deakins, Nash, Smoak &Stewart PC, One PPG Place, Suite 1900, Pittsburgh, PA 15222, Philip.kontul@ogletree.com

----

[1] The Act’slegislative history suggests that a complaint is notfrivolously brought if it “appears to have merit.” S. Rep. No. 181, 95th Cong.,1st Sess. 36-37 (1977), *reprinted in* Senate Subcommittee on Labor,Committee on Human Resources, 95th Cong. 2nd Sess., *Legislative History ofthe Federal Mine Safety and Health Act of 1977*, at 624-25 (1978). Inaddition to Congress’ “appears to have merit” standard, the Commission and thecourts have also equated “not frivolously brought” to “reasonable cause tobelieve” and “not insubstantial.”*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, 747 & n.9 (11th Cir. 1990). 

[2]“Substantial evidence” means “such relevant evidence as a reliable mind mightaccept as adequate to support [the judge’s] conclusion.” *Rochester & PittsburghCoal Co.,* 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting *Consolidated EdisonCo. V. NLRB*, 305 U.S. 197, 229 (1938)).