i 

May 2021 

TABLE OF CONTENTS 

COMMISSION ORDERS 

05-07-21 CONSOL PENNSYLVANIA COAL 

COMPANY, LLC 

SE 2021-0011 Page 268 

05-14-21 ARNOLD HOSKINS KENT 2015-0644 Page 271 

05-14-21 SOUTHWEST ENERGY LLC WEST 2020-0248-M Page 274 

05-14-21 JAMES IRVIN, AGENT OF RHINO 

EASTERN, LLC, EAGLE 3 MINE 

WEVA 2017-0561 Page 278 

05-19-21 AMERICAN SAND COMPANY, LLC SE 2019-0252-M Page 281 

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-18-21 SECRETARY OF LABOR, 

O/B/O ALVARO SALDIVAR 

v. GRIMES ROCK

WEST 2021-0178-

DM 

Page 287 

ADMINISTRATIVE LAW JUDGE ORDERS 

05-11-21 WARRIOR MET COAL COMPANY, 

LLC 

SE 2021-0118 Page 293 

05-11-21 WARRIOR MET COAL COMPANY, 

LLC 

SE-MD 2021-02 Page 296 
ii 

Review was Denied in the Following Case During the Month of May 2021 

Secretary of Labor v. Jones Brothers, Inc., Docket Nos. SE 2016-0218, et al. (Judge Rae, April 

15, 2021) 

COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

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

WASHINGTON, DC 20004-1710 

May 07, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2012) (“Mine Act”). The Commission has received a motion from the operator

seeking to reopen a penalty assessment which had become a final order of the Commission

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he

does not oppose the motion.

Having reviewed movant’s unopposed motion to reopen, we reopen this matter and 

remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine 

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

 v. 

SIKES CONCRETE, INC. 

Docket No. SE 2021-0011 

A.C. No. 08-01429-519727

43 FMSHRC 268
Secretary shall file a petition for assessment of penalty within 45 days of the date of this 

order. See 29 C.F.R. § 2700.28. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

43 FMSHRC 269
Distribution (e-mail): 

Barry K. Curry 

CFO, Sikes Concrete, Inc. 

8030 Hwy 77 

Southport FL, 32409-2674 

barry.curry@sikesconcrete.com 

Kristin R. Murphy, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

61 Forsyth Street, Room 7T10 

Atlanta, GA 30303 

Murphy.kristin.r@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Chief Administrative Law Judge Glynn Voisin 

Federal Mine Safety & Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@DOL.GOV 

43 FMSHRC 270
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

May 14, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018) (“Mine Act”). On July 3, 2018, the Commission received from Arnold 

Hoskins a motion to reopen the above-captioned civil penalty proceeding. In the motion, Hoskins 

explains that he had filed a timely contest of a proposed penalty assessment in the amount of 

$4,800 for an alleged violation related to Citation No. 8400829-00019613A. He states that, 

although he was never afforded an opportunity for a hearing on the contest, he received a notice 

from the Department of Labor’s Mine Safety and Health Administration informing him that he 

was delinquent in paying the $4,800 penalty. 

On November 21, 2017, the Chief Administrative Law Judge issued an Order to Show 

Cause and Dismissal Order. In the order, the Judge directed the Secretary of Labor to submit a 

penalty petition and an explanation stating why he failed to initially submit the penalty petition 

in a timely fashion. The order further stated that if the Secretary failed to do so, on the thirty-first 

day after the November 21 order, the case would be dismissed. The Secretary failed to submit a 

petition, and the case was dismissed on December 22, 2017. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ARNOLD HOSKINS 

Docket No. KENT 2015-0644 

A.C. No. 15-18870-387869A

43 FMSHRC 271
This case has been dismissed; the proposed penalty of $4,800 has not been assessed and 

no penalty is owed or collectible. Therefore, we deny Hoskins’ motion to reopen as moot. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

43 FMSHRC 272
Distribution: 

Arnold Hoskins 

5881 Mt. Zion Road 

East Bernstadt, KY 40729 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@DOL.GOV 

Chief Administrative Law Judge Glynn Voisin 

Federal Mine Safety & Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC 273
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

May 14, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER

BY THE COMMISSION: 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018) (“Mine Act”). On April 21, 2020, the Commission received from Southwest 

Energy (“Southwest”) a motion seeking to reopen a penalty assessment that had become a final 

order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

 Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

 We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on January 24, 2020, and 

became a final order of the Commission on February 23, 2020. Southwest asserts that it timely 

contested the proposed penalty associated with Citation No. 9436503 but that it mistakenly sent 

the contest to P.O. Box 790390, St. Louis, Missouri, rather than to MSHA’s Civil Penalty 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

 v. 

SOUTHWEST ENERGY LLC 

Docket No. WEST 2020-0248-M 

A.C. No. 26-01089-507993 

43 FMSHRC 274
Compliance Office in Arlington, Virginia. Upon discovering the mistake, the operator attempted 

to resend the contest to the correct address but was unable to do so due to mail issues associated 

with the pandemic. The Secretary does not oppose the request to reopen but urges the operator to 

take steps to ensure that future penalty contests are mailed to the correct address or filed 

electronically. 

Having reviewed Southwest’s request and the Secretary’s response, we find that 

Southwest failed to timely contest the penalties through inadvertence or mistake, and that such 

inadvertence or mistake constitutes good cause to reopen the penalty proceeding. In the interest 

of justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for 

further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. 

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment 

of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

43 FMSHRC 275
Distribution: 

Richard Cass 

Safety & Training Manage 

Southwest Energy LLC 

2040 W, Gardner Ln 

Tucson, AZ 85705 

rcass@swenergy.com 

John M. McCracken, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

Kristin R. Murphy, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

61 Forsyth Street, Room 7T10 

Atlanta, GA 30303 

Murphy.kristin.r@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@DOL.GOV 

43 FMSHRC 276
Chief Administrative Law Judge Glynn Voisin 

Federal Mine Safety & Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC 277
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

May 14, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018) (“Mine Act”). On July 3, 2018, the Commission received from James Irvin, 

Agent of Rhino Eastern, LLC, Eagle 3 Mine (“Irvin”), a motion seeking to reopen a penalty 

assessment proceeding and relieve Irvin from the Default Order entered against him. 

On November 7, 2017, the Chief Administrative Law Judge issued an Order to Show 

Cause in response to Irvin’s perceived failure to answer the Secretary of Labor’s September 21, 

2017 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was 

deemed a Default Order on December 14, 2017, when it appeared that Irvin had not filed an 

answer within 30 days. 

Irvin explains that the reason that he did not send a contest of the proposed penalty 

assessment is that he received a letter from the Department of Labor’s Mine Safety and Health 

Administration (“MSHA”) stating that all charges had been dropped. He disregarded subsequent 

letters as an oversight and mistakenly believed that the matter had settled. The Secretary does not 

oppose the request to reopen, but states that Irvin should take steps to ensure that any future 

penalty contests are timely filed and should take seriously all show cause orders issued by the 

Judge. 

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. § 

2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s 

decision may be sought by filing a petition for discretionary review within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct 

review within 40 days of a decision’s issuance, it becomes a final decision of the Commission. 

30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the 

Commission. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

JAMES IRVIN, AGENT OF RHINO 

EASTERN, LLC, EAGLE 3 MINE 

Docket No. WEVA 2017-0561 

A.C. No. 46-09427-442620A

43 FMSHRC 278
In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party 

from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or 

other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall 

be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and 

that, if the defaulting party can make a showing of good cause for a failure to timely respond, the 

case may be reopened and appropriate proceedings on the merits will be permitted. See Coal 

Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed Irvin’s request and the Secretary’s response, we find that Irvin has 

sufficiently explained his failure to timely contest the citations at issue as the result of mistake, 

inadvertence, and excusable neglect. In the interest of justice, we hereby reopen this matter and 

remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine 

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

43 FMSHRC 279
Distribution: 

James L. Irvin 

638 Givens Run Road 

Upper Glade, WV 26266 

Kristin R. Murphy, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

61 Forsyth Street, Room 7T10 

Atlanta, GA 30303 

Murphy.kristin.r@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@DOL.GOV 

Chief Administrative Law Judge Glynn Voisin 

Federal Mine Safety & Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC 280
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

May 19, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER 

BY: Althen and Rajkovich, Commissioners 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act”). On September 19, 2019, the Commission received from 

American Sand Company, LLC (“American Sand”) a request to reopen a penalty assessment that 

had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 

U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). We have held, however, that in 

appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have 

become final Commission orders under section 105(a). Jim Walter Res., Inc., 15 FMSHRC 782, 

786-89 (May 1993) (“JWR”).

In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party 

from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or 

other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall 

be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy 

and that, if the defaulting party can make a showing of good cause for a failure to timely 

respond, the case may be reopened and appropriate proceedings on the merits will be permitted. 

See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

AMERICAN SAND COMPANY, LLC 

Docket No. SE 2019-0252-M 

A.C. No. 40-00798-492842

43 FMSHRC 281
The assessment at issue consists of four violations and their corresponding penalties.1

 

The assessment was delivered to the operator on June 10, 2019. Subsequently, MSHA received 

a contest (a marked assessment form) from the operator for three of the penalties on June 28, 

2019.2 However, allegedly the fourth penalty, assessed for Citation No. 94228055, was not 

timely contested and therefore became a final order on July 10, 2019. 

On August 15, 2019, the operator detailed its reasons for challenging the fourth penalty in 

a letter to the Commission; the letter was received by the Commission on August 23, 2019. 

Soon after, on August 26, 2019, MSHA mailed a delinquency notice to the operator; the 

delinquency notice was received by the operator on August 30, 2019. 

The operator filed a motion to reopen the final order on September 19, 2019. The 

operator claims that the penalty at issue was timely contested. In support, the operator attaches a 

copy of the marked assessment form allegedly returned by the operator to MSHA. The Secretary 

filed an opposition to the motion to reopen on September 25, 2019, claiming that the operator 

failed to timely contest the penalty at issue, and that the operator informed MSHA that it would 

pay the penalty. In support, the Secretary attaches a different copy of the marked assessment 

form allegedly returned by the operator to MSHA. 

The proposed assessment sent by MSHA contained four blank boxes, placed next to each 

corresponding violation and penalty. An operator could indicate a contest for any penalty by 

marking the corresponding blank box. The operator’s version shows that all four boxes in the 

assessment were marked, indicating that all the penalties were timely contested. 

In contrast, the Secretary’s version shows that only three of the boxes were marked. In 

the Secretary’s version, the fourth box for the penalty at issue remained unmarked, indicating 

that the fourth penalty was not timely contested. 

However, only the Secretary’s version included a page with the operator’s signature, and 

a stamp which indicated the date and time of MSHA’s receipt of the marked assessment. This 

shows that the Secretary’s version is an accurate copy of the contest received by MSHA. 

Consequently, we find that the penalty at issue was not timely contested and therefore, became a 

final order of the Commission. 

After reviewing the evidence, we nevertheless decide to reopen the final order because 

the operator implicitly provides a reasonable explanation for its delinquency and because it acted 

1

 Assessment No. 000492842 consists of Citation Nos. 9428055, 9428056, 9428057, and 

9428058. Despite this, the Secretary erroneously seems to imply that the assessment only covers 

two of these four citations (“MSHA’s records show that Case Number 000492842 is for Citation 

Nos. 9428055 and 9428056, that were issued on June 6, 2019 (Attachment A)”). Sec’s Opp. at 

3. 

2

 The Secretary mistakenly claims that MSHA received the operator’s contest (the 

marked assessment form), which the Secretary characterizes as a hearing request, on July (rather 

than June) 28, 2019. 

43 FMSHRC 282
promptly after receiving the delinquency notice. In Highland Mining Co., 31 FMSHRC 1313, 

1317 (Nov. 30, 2009), the Commission required the operator to provide a reasonable explanation 

for its delinquency. The August 15 letter by American Sand to the Commission provides just 

such an explanation. The letter highlighted the operator’s reasons for challenging the penalty for 

Citation No. 9428055, and was marked for Docket No. SE 2019-178, which was the related 

contest docket containing the other three violations. 

The letter was sent after the assessment became a final order on July 10, 2019 but before 

the operator received the delinquency notice on August 30, 2019. The operator prepared the 

letter challenging the penalty and listed the letter under the related contest docket (SE 2019-178) 

because it was unaware that the penalty had become a final order. Therefore, the operator 

demonstrated a lack of knowledge of the final order and of the need to prepare a reopening 

request until it received the delinquency notice. 

In Pinnacle Mining Co., 38 FMSHRC 422 (Mar. 2016), we determined that the 

operator’s unawareness that the penalty assessment was delinquent constituted a sufficient 

explanation for the operator’s delay in filing a request to reopen. Similarly, here we determine 

that the operator’s unawareness of the final order constitutes a reasonable explanation for its 

delinquency. 

Moreover, under our precedent in Highland, 31 FMSHRC at 1316-1317, a motion to 

reopen is presumptively considered as having been filed within a reasonable amount of time if it 

is filed within 30 days of an operator’s receipt of its first notification from MSHA of its failure to 

contest the penalty. As set forth above, the operator was unaware of the final order until it 

received the delinquency notice on August 30, 2019. The operator filed its motion to reopen on 

September 19, 2019. Therefore, the operator’s motion to reopen was filed well within 30 days of 

the operator’s receipt of its first notification from MSHA of the failure to contest the penalty. 

Consequently, we find that the operator filed its motion to reopen within a reasonable 

amount of time. Having reviewed American Sand’s request and the Secretary’s response, we 

find that the operator’s reasonable explanation for the delinquency and its request to reopen, filed 

fewer than 30 days after it received the delinquency notice, demonstrate the operator’s good 

faith, and merit reopening of the case. 

In the interest of justice, we hereby reopen the proceeding and vacate the Default Order. 

Accordingly, this case is remanded to the Chief Administrative Law Judge for further 

43 FMSHRC 283
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 

2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of 

penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

43 FMSHRC 284
Chair Traynor, dissenting: 

I must conclude that the operator has failed to demonstrate that granting its motion would 

be in the interest of justice. The operator’s filings do not indicate any reason the operator 

introduced what it purported to be the proposed assessment form it transmitted to the Secretary – 

a form showing the fourth box was ‘checked’ indicating the operator’s intent to contest the 

citation at issue. The apparently authentic form provided by the Secretary - which includes the 

operator’s signature and the Secretary’s file stamp indicating the date the form was received - 

clearly shows the fourth box is not checked. The operator does not supply and I cannot see on 

the record before me a plausibly benign explanation for this discrepancy between the document 

the operator put forward and the authentic document provided by the Secretary. 

Our adversary system for the resolution of disputes rests on the 

unshakable foundation that truth is the object of the system’s 

process which is designed for the purpose of dispensing justice. 

However, because no one has an exclusive insight into truth, the 

process depends on the adversarial presentation of evidence, 

precedent and custom, and argument to reasoned conclusions—all 

directed with unwavering effort to what, in good faith, is believed to 

be true on matters material to the disposition. Even the slightest 

accommodation of deceit or a lack of candor in any material respect 

quickly erodes the validity of the process. As soon as the process 

falters in that respect, the people are then justified in abandoning 

support for the system in favor of one where honesty is preeminent. 

Hanover Ins. Co. v. United States, 146 Fed. Cl. 447, 450 (2019) (quoting United States v. Shaffer 

Equipment Co., 11 F.3d 450, 457 (4th Cir. 1993)). 

Though the operator filed its motion in a timely fashion and might otherwise be entitled 

to the relief sought, the apparent attempt to introduce an inauthentic document prevents me from 

concluding the motion is made in good faith or that the interests of justice are served by granting 

the motion. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

43 FMSHRC 285
Distribution (e-mail): 

Steven Chambers 

Safety & Compliance Coordinator 

American Sand Company LLC 

6210 Rutledge Pike 

Knoxville TN 37924 

steven@claibornehauling.com 

John M. McCracken, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

Archith Ramkumar 

Appellate Counsel 

U.S. Department of Labor 

Office of the Solicitor 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC 286

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

May 18, 2021 

DECISION AND ORDER OF REINSTATEMENT 

 

Appearances: Karla Malagon, Jessica Flores, and Bruce Brown, Office of the Solicitor, 

U.S. Department of Labor, Los Angeles, California, for the Complainant 

 

 Peter Goldenring and Mark Pachowicz, Pachowicz & Goldenring PLC, 

Ventura, California, for the Respondent 

Before: Judge Miller 

This case is before me upon an 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 April 12, 2021, the Secretary filed the 

application on behalf of Alvaro Saldivar seeking his reinstatement as a lube and water 

truck/equipment operator at the Grimes Rock, Inc. Mine in Fillmore, California, pending the 

final disposition of Saldivar’s discrimination complaint. 

This case was originally assigned to Judge Richard Manning on April 13, 2021. Two 

days later, the Respondent requested a hearing on the application for temporary reinstatement. 

The parties agreed that the hearing could be set beyond the ten calendar days provided for by 

Commission Rule 45, and Judge Manning set the hearing for May 11, 2021. 

The case was reassigned to my docket on May 4, 2021. A hearing was held via Zoom 

for Government videoconference on May 11, 2021. The parties presented witnesses and exhibits 

and each filed a brief following the hearing. For the reasons set forth below, I grant the 

application for temporary reinstatement and retain jurisdiction until final disposition of the 

complaint on the merits. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of ALVARO SALDIVAR, 

 Complainant, 

 v. 

GRIMES ROCK, , 

 Respondent. 

 APPLICATION FOR 

TEMPORARY REINSTATEMENT 

Docket No. WEST 2021-0178-DM 

Mine: Grimes Rock, Inc. 

Mine ID: 04-05432

43 FMSHRC 287
I. SUMMARY OF THE EVIDENCE 

Alvaro Saldivar, a miner under the Mine Act, testified that he worked for Grimes Rock 

on two separate occasions. He was first employed as a welder from May 2019 through July 

2019. Tr. 16. After leaving, Saldivar was hired again as a service technician and an operator on 

October 5, 2020. Tr. 15-16. His employment was terminated on January 15, 2021. 

Saldivar testified that, during his most recent stint of employment, he reported several 

safety issues to his direct supervisor as well as mine management. Many of the issues involved 

the water truck that he was tasked with operating. Saldivar was concerned with the condition of 

the tires on the truck, which he claims were “bad,” “balding,” and missing tread. Tr. 17. He 

stated that, as a result of the worn tires, he was involved in an accident on December 10, 2020 in 

which the truck lost traction as it drove uphill, ultimately sliding down the incline and hitting a 

cinder block. Tr. 19. Saldivar was also concerned about mechanical issues with the truck, 

including a long-term oil leak, leaking antifreeze, and a missing shock absorber. Tr. 20. 

According to Saldivar, he reported all of these issues to his direct supervisor Rene Garcia and 

general manager Ernie Melendez on multiple occasions. Tr. 18, 20. Saldivar testified his 

supervisors took no action to remedy these issues, and that he was required to continue using 

the truck in its poor condition. Tr. 18, 21. 

Saldivar explained that he made reports regarding a variety of faulty equipment. He 

testified that he advised management of the bad brakes on an outdated motor grader, missing 

roll-over protection system (ROPS) labels on the DAL #1 and #2 dozers, and leaking diesel on 

service truck #40 at the mine. Tr. 22, 24, 26. 

Saldivar also testified that he had complained about the lack of proper training received. 

While he signed documents stating that he received new miner training, Saldivar believed that 

he did not receive the required specific task training relating to the large equipment that he was 

required to operate. Tr. 21, 25-26, 28, 44; see Ex. R-C. He testified that he had continually 

asked for task training on the water truck, the motor grader, the dozers, and the service truck. 

Tr. 21, 25-26, 28. He said that he even made his requests in writing on his daily pre-shift 

reports. According to Saldivar, his requests for additional training went unaddressed. Tr. 22. On 

cross examination, Saldivar admitted that he received training from the Quinn Company, but 

asserted that the training did not relate to operation of the equipment but rather maintenance of 

certain equipment. Tr. 46-47, 74. 

Grimes Rock issued five disciplinary warnings to Saldivar during his second tenure of 

employment at the mine. See Ex. K. For each warning, Saldivar testified that he did not commit 

the infraction as written on the discipline form, and that he signed the forms only to avoid losing 

his job. Tr. 49-50, 54-56, 59, 62-63, 64, 75. Saldivar also testified as to his belief that his 

supervisors were acting in a “malicious” manner towards him and that the discipline was being 

issued in retaliation for his frequent complaints about jobsite safety hazards. Tr. 28, 59. 

On January 15, 2021, Saldivar was terminated by Grimes Rock. Tr. 27. He testified that 

his termination occurred just one day after he last reported a safety issue on January 14. Tr. 40. 

43 FMSHRC 288
II. DISCUSSION 

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). 

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). 

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).1

 The Secretary may establish the 

1

 The 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. The Commission has not articulated a new 

standard in the wake of Thomas, but the case may require an examination of elements different 

than those set forth in current Commission case law. However, the standard for temporary 

reinstatement would not be affected. A miner shall be reinstated if the complaint was not 

frivolously brought, and the elements of a discrimination claim are merely “useful” guideposts 

under that standard. Williamson, 31 FMSHRC at 1088. Here I look 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 . . . 

(continued...) 

43 FMSHRC 289
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. 

Here, I find that Saldivar’s complaint of discrimination was not frivolously brought. 

Saldivar testified that he made several safety complaints to both his immediate supervisor and 

the mine manager from October 2020 until the time he was terminated in January 2021. These 

complaints concerned the safety of several pieces of equipment that Saldivar was obliged to use 

on a daily basis, as well as the lack of task-specific training necessary to operate the equipment 

safely. Lodging these complaints constitutes a protected activity under section 105(c)(1) of the 

Mine Act, 30 U.S.C. § 815(c)(1). Saldivar also testified that he was fired by Grimes Rock on 

January 15, 2021, the day after he made a complaint about the safety of the truck he was told to 

drive. It is clear that Saldivar engaged in protected activity and that he suffered an adverse 

action. 

There is also a sufficient motivational nexus between the protected activity and the 

adverse action to support Saldivar’s temporary reinstatement. Saldivar testified that he made a 

final safety complaint on January 14, 2021 and that his employment was terminated the 

following day. The coincidence in time between the protected activity and the adverse action is 

evidence of a discriminatory motive. Sec'y on behalf of Stahl v. A&K Earth Movers, Inc., 22 

FMSHRC 323, 325 (Mar. 2000). Saldivar also testified that he had continuously made mine 

management aware of his safety complaints. The employer’s knowledge of the protected 

activity is another factor that may establish a motivational nexus. Chacon, 3 FMSHRC at 2510. 

Additionally, Saldivar claimed that his supervisor treated him badly after he made complaints, 

and that he was ultimately fired in response to the number of complaints that he made, 

suggesting hostility towards the protected activity. See id. The Respondent, while disputing 

these points in its brief, did not introduce a witness to disprove Saldivar’s claims or offer an 

1

 (...continued) 

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). If I were to use the but-for standard articulated in Thomas, 

the outcome does not change here. 

43 FMSHRC 290
alternative reasoning for his termination.2

 Regardless, it is not necessary to resolve conflicts 

between the parties’ accounts at this stage in the proceedings. Sec'y on behalf of Albu v. 

Chicopee Coal Company, Inc., 21 FMSHRC 717, 719 (July 1999). The Secretary has therefore 

introduced sufficient evidence to show that Saldivar’s complaint was not frivolously brought. 

See 29 C.F.R. § 2700.45(d) (“[T]he Secretary may limit his presentation to the testimony of the 

complainant.”). 

The Respondent argues that it was denied a full hearing on the issue of temporary 

reinstatement, relying heavily on the recent Commission decision in Secretary of Labor on 

behalf of Cook v. Rockwell Mining, LLC, 42 FMSHRC __, slip op., No. WEVA 2021-0203 (Apr. 

23, 2021). In Rockwell, the Commission determined that a judge must conduct a “full hearing” 

during the temporary reinstatement case, and that judges should admit any relevant evidence that 

is offered at hearing. Id. In this case, the Court issued an order that specifically approved two 

witnesses that the Respondent wished to call (one of whom was expected to be called to discuss 

animus) and repeatedly advised the Respondent at hearing that it was free to call witnesses to 

testify on relevant issues, such as the mine’s motivation for terminating Saldivar. See, e.g., tr. 53, 

81. The Respondent elected not to call any witnesses. Further, no evidence that the Respondent 

presented at hearing was excluded.3

 There is therefore no indication that the Respondent was 

denied a full hearing. 

The Respondent also contends in its brief that the exhibits showing disciplinary write-ups 

are enough to show that his claim is frivolous. I disagree. For one, the Respondent was asked at 

hearing whether the write-ups (Exhibit K) were being used to demonstrate that his employment 

was terminated based on those write-ups. The Respondent said no: 

Judge Miller: So you have submitted a number of exhibits that are disciplinary – 

are write-ups. So is it your position – your client’s position that Mr. Saldivar was 

terminated based – because he received these write-ups? Is that your position?

2

 The Respondent did file a list of witnesses to be called at hearing as well as a lengthy 

list of exhibits, but chose not to call any witnesses in the end. Instead, the Respondent filed a 

“Post Hearing Griefing” (sic) that was combative, inflammatory, and relied solely on Saldivar’s 

testimony on cross-examination and on evidence not in the record. 

3

 Respondent did provide a list of exhibits, some of which were rejected prior to hearing 

because they either contained personal identifying information such as social security numbers, 

or they included reference to a criminal record of Saldivar which I deemed prejudicial. In its 

brief, the Respondent contends, for the first time, that evidence of Saldivar’s criminal record 

should have been admitted under Federal Rule of Evidence 609. This rule allows the use of a 

felony record to impeach a witness for his character of truthfulness. The Federal Rules do not 

control evidentiary issues in front of the Commission, but they can be helpful when the policy 

supporting a rule is relevant. See Leeco, Inc., 38 FMSHRC 1634, 1639 (July 2016). However, a 

rule about attacking a witness’s truthfulness is inapposite here because credibility is not at issue 

in a temporary reinstatement case. Since Respondent indicated that Saldivar was hired with full 

knowledge of his criminal background, there was no need to include such records and the 

inclusion would have been prejudicial. 

43 FMSHRC 291
Mr. Goldenring: So it wasn’t because he received the write-ups. He was terminated 

because he placed himself, others, and equipment at risk and damaged equipment 

and not for any animus or motivation about complaints about anything, Your 

Honor, and he has . . . no documents to substantiate that. 

 

Tr. 51-52. In any event, Saldivar disputed what was written in those write-ups, and Grimes 

Rock presented no evidence to demonstrate that Saldivar was terminated for damaging 

equipment or that a certain number of disciplinary actions results in an employee’s termination 

at its mine. The write-ups alone do not constitute proof that Saldivar’s claim is frivolous. 

III. ORDER 

The application for temporary reinstatement is hereby GRANTED. Respondent is 

ORDERED to, immediately upon receipt of this decision, reinstate Mr. Saldivar to his former 

position at the mine effective as of the date of this decision. The employment of Mr. Saldivar 

shall be at the same rate of pay and with all benefits, including any raises, that he received prior 

to discharge, pending a final Commission order on the complaint of discrimination. 

 /s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: (Electronic Mail and Certified U.S. First Class Mail) 

Karla Malagon, U.S. Department of Labor, Office of the Solicitor, 350 S. Figueroa Street, Suite 

370, Los Angeles, CA 90071, malagon.karla@dol.gov 

Jessica M. Flores, U.S. Department of Labor, Office of the Solicitor, 350 S. Figueroa Street, 

Suite 370, Los Angeles, CA 90071, Flores.Jessica@dol.gov 

Bruce L. Brown, U.S. Department of Labor, Office of the Solicitor, 350 S. Figueroa Street, Suite 

370, Los Angeles, CA 90071, Brown.Bruce.L@dol.gov 

Peter Goldenring, Pachowicz & Goldenring PLC, 6050 Seahawk Street, Ventura, CA 93003, 

peter@pglaw.law 

Mark R. Pachowicz, Pachowicz & Goldenring PLC, 6050 Seahawk Street, Ventura, CA 93003, 

mark@pglaw.law 

Alvaro Saldivar, 1241 Lookout Drive, Oxnard, CA 93035, saldivarwelding@icloud.com 

43 FMSHRC 292
ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 Pennsylvania Ave. NW, Suite 520N 

TELEPHONE: (202)434-9958 / FAX: (202)434-9949 

May 11, 2021 

ORDER GRANTING TEMPORARY REINSTATEMENT 

OF BRANDON HALL

Before: Judge Sullivan 

 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, on April 30, 2021, the Secretary of 

Labor (“Secretary”) filed an Application for Temporary Reinstatement of miner Brandon Hall 

(“Complainant”) to his former position as a longwall operator with Warrior Met Coal Company, 

LLC (“Respondent”) at its Mine No. 7. Here, the Secretary’s application satisfies the procedural 

requirements of Commission Procedural Rule 45(b), as, among other things, it timely “states the 

Secretary’s finding that the miner’s discrimination complaint was not frivolously brought[,] 

accompanied by an affidavit setting forth the Secretary’s reasons supporting his finding[,] and 

includes a copy of the miner’s complaint to the Secretary . . .” 29 C.F.R. §2700.45(b).1

 According to Commission Rule 45(c), 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 application’s certificate of service states that it was served on Respondent by 

electronic mail on April 30. On May 10, 2021, Respondent contacted the Court and stated that it 

does not intend to request a hearing on temporary reinstatement. Consequently, I review the 

contents of the Secretary’s application to determine whether the complaint in this instance “was 

not frivolously brought.” Id. 

1

 The Discrimination Complaint (“Complaint”) filed with the Secretary’s Mine Safety 

and Health Administration by the Complainant is dated March 24, 2021. It was filed within 60 

days of the Complainant’s March 15 termination of employment. Section 105(c)(3) directs the 

Secretary to determine whether a section 105(c) violation occurred within 90 days, which in this 

instance would be no later than June 22, 2021. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of BRANDON HALL, 

 Complainant, 

 v. 

WARRIOR MET COAL COMPANY, 

 LLC, 

 Respondent 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. SE 2021-0118 

MSHA Case No.: SE-MD 2021-01 

Mine: No. 7 Mine 

Mine ID: 01-01401 

43 FMSHRC 293
Section 105(c)(1) of the Mine Act provides that “[n]o person shall discharge . . . any 

miner . . . because such miner . . . has filed or made a complaint under or related to this Act, 

including a complaint notifying the operator . . . of an alleged danger or safety or health violation 

in a . . . mine . . . .” 30 U.S.C. § 815(c)(1). In his Application, as supported by his investigator’s 

affidavit, the Secretary alleges the following to establish the Complaint as having been not 

frivolously brought under section 105(c)(1) & (2): 

(1) During his January 25, 2021 shift, the Complainant raised with Respondent’s agents a 

number of safety issues with respect to the operation of the longwall that day, such as the 

lack of a required fire extinguisher, shearer bits that needed to be replaced, elevated 

methane levels, and thick gob in the pathway of the section where he worked. The 

foregoing adversely impacted the progress of the longwall shearer during the shift; 

(2) Respondent’s agents subsequently reacted negatively to the speed at which the 

Complainant was working throughout the shift; and 

(3) At the end of the shift, Complainant was suspended for five days, with intent to 

discharge, for having “stopp[ed] coal production.” That punishment was later reduced to 

a two-week suspension to be followed by a 30-working day probationary period. After 

returning to work on February 8, 2021, Complainant, on March 15, 2021 (thus apparently 

prior to the end of his probation), was fired for failing, at the end of a shift, to follow 

orders and personally clean a bus he and two other miners had been using. 

There being no opposition to the Application, I agree with the Secretary that it establishes 

the Complaint to have been “not frivolously brought” in this instance. See Jim Walters Res., Inc. 

v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990) (in light of Mine Act legislative history and the 

Supreme Court’s treatment of a similar whistleblower protection provision, interpreting the “not 

frivolously brought” standard to be the equivalent of a “reasonable cause to believe” standard 

and to be met when a miner’s “complaint appears to have merit”). Accordingly, the Application 

is granted. I reach no conclusion beyond that regarding the merits of the Complaint. 

ORDER 

It is hereby ORDERED that BRANDON HALL be immediately TEMPORARILY 

REINSTATED to his former job at his former rate of pay, overtime, and all benefits he was 

receiving at the time of his termination. 

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). Given that that the Mine Act directs that both the Secretary and the Commission 

act expeditiously in section 105(c) proceedings, the Secretary SHALL provide a report on the 

status of the underlying discrimination complaint as soon as possible. Counsel for the 

43 FMSHRC 294
Secretary SHALL also immediately notify my office of any settlement or of any determination 

that the Respondent did not violate Section 105(c) of the Act. 

 /s/ John T. Sullivan 

John T. Sullivan 

 Administrative Law Judge 

Distribution: 

Nicholas C. Hall, Esq., Office of the Solicitor, U. S. Department of Labor 61 Forsyth Street, 

S.W., Room 7T10, Atlanta, GA 30303 (hall.nicholas.c@dol.gov) 

Gregory Willis, Special Investigator, U.S. Department of Labor, MSHA, Birmingham, AL 

(willis.gregory.c@dol.gov) 

Guy W. Hensley, Esq., Warrior Met Coal Mining, LLC, 16243 Highway 216, Birmingham, AL 

3544 (guy.hensley@warriormetcoal.com) 

 

Allen B. Bennett, Esq., Maynard Cooper, Gale, PC, 2400 Regions/Harbert Plaza, 1901 6th 

Avenue North, Birmingham, AL 35203 (jbennett@maynardcooper.com) 

Jack Jacobs, Esq., Maples, Tucker, and Jacobs LLC, 2001 Park Place North, Suite 1325, 

Birmingham, AL 35203 (jack@mtandj.com) 

Brandon Hall, 1121 48th Street Birmingham, Alabama 35208 (viking.4life@hotmail.com)

43 FMSHRC 295
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 Pennsylvania Ave. NW, Suite 520N 

TELEPHONE: (202)434-9958 / FAX: (202)434-9949 

May 11, 2021 

 

ORDER GRANTING TEMPORARY REINSTATEMENT 

OF TIMOTHY BARNES

Before: Judge Sullivan 

 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, on April 30, 2021, the Secretary of 

Labor (“Secretary”) filed an Application for Temporary Reinstatement of miner Timothy 

Barnes (“Complainant”) to his former position as a longwall operator with Warrior Met Coal 

Company, LLC (“Respondent”) at its Mine No. 7. Here, the Secretary’s application satisfies the 

procedural requirements of Commission Procedural Rule 45(b), as, among other things, it 

timely “states the Secretary’s finding that the miner’s discrimination complaint was not 

frivolously brought[,] accompanied by an affidavit setting forth the Secretary’s reasons 

supporting his finding[,] and includes a copy of the miner’s complaint to the Secretary . . .” 29 

C.F.R. §2700.45(b).1

 According to Commission Rule 45(c), 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 application’s certificate of service states that it was served on Respondent by 

electronic mail on April 30. On May 10, 2021, Respondent contacted the Court and stated that it 

does not intend to request a hearing on temporary reinstatement. Consequently, I review the 

contents of the Secretary’s application to determine whether the complaint in this instance “was 

not frivolously brought.” Id. 

1

 The Discrimination Complaint (“Complaint”) filed with the Secretary’s Mine Safety 

and Health Administration by the Complainant is dated March 24, 2021. It was filed within 60 

days of the Complainant’s March 15 termination of employment. Section 105(c)(3) directs the 

Secretary to determine whether a section 105(c) violation occurred within 90 days, which in this 

instance would be no later than June 22, 2021. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of TIMOTHY BARNES, 

 Complainant, 

 v. 

WARRIOR MET COAL COMPANY, 

 LLC, 

 Respondent 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. SE 2021-0119 

MSHA Case No.: SE-MD 2021-02 

Mine: No. 7 Mine 

Mine ID: 01-01401 

43 FMSHRC 296
Section 105(c)(1) of the Mine Act provides that “[n]o person shall discharge . . . any 

miner . . . because such miner . . . has filed or made a complaint under or related to this Act, 

including a complaint notifying the operator . . . of an alleged danger or safety or health violation 

in a . . . mine . . . .” 30 U.S.C. § 815(c)(1). In his Application, as supported by his investigator’s 

affidavit, the Secretary alleges the following to establish the Complaint as having been not 

frivolously brought under section 105(c)(1) & (2): 

(1) During his January 25, 2021 shift, the Complainant raised with Respondent’s agents a 

number of safety issues with respect to the operation of the longwall that day, such as the 

lack of a required fire extinguisher, shearer bits that needed to be replaced, elevated 

methane levels, and thick gob in the pathway of the section where he worked. The 

foregoing adversely impacted the progress of the longwall shearer during the shift; 

(2) Respondent’s agents subsequently reacted negatively to the speed at which the 

Complainant was working throughout the shift; and 

(3) At the end of the shift, Complainant was suspended for five days, with intent to 

discharge, for having “stopp[ed] coal production.” That punishment was later reduced to 

a two-week suspension to be followed by a 30-working day probationary period. After 

returning to work on February 8, 2021, Complainant, on March 15, 2021 (thus apparently 

prior to the end of his probation), was fired for failing, at the end of a shift, to follow 

orders and personally clean a bus he and two other miners had been using. 

There being no opposition to the Application, I agree with the Secretary that it establishes 

the Complaint to have been “not frivolously brought” in this instance. See Jim Walters Res., Inc. 

v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990) (in light of Mine Act legislative history and the 

Supreme Court’s treatment of a similar whistleblower protection provision, interpreting the “not 

frivolously brought” standard to be the equivalent of a “reasonable cause to believe” standard 

and to be met when a miner’s “complaint appears to have merit”). Accordingly, the Application 

is granted. I reach no conclusion beyond that regarding the merits of the Complaint. 

 

ORDER 

It is hereby ORDERED that TIMOTHY BARNES be immediately TEMPORARILY 

REINSTATED to his former job at his former rate of pay, overtime, and all benefits he was 

receiving at the time of his termination. 

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). Given that that the Mine Act directs that both the Secretary and the Commission 

act expeditiously in section 105(c) proceedings, the Secretary SHALL provide a report on the 

status of the underlying discrimination complaint as soon as possible. Counsel for the 

43 FMSHRC 297
Secretary SHALL also immediately notify my office of any settlement or of any determination 

that the Respondent did not violate Section 105(c) of the Act. 

 /s/ John T. Sullivan 

John T. Sullivan 

 Administrative Law Judge 

Distribution: 

Nicholas C. Hall, Esq., Office of the Solicitor, U. S. Department of Labor 61 Forsyth Street, 

S.W., Room 7T10, Atlanta, GA 30303 (hall.nicholas.c@dol.gov) 

Gregory Willis, Special Investigator, U.S. Department of Labor, MSHA, Birmingham, AL 

(willis.gregory.c@dol.gov) 

Guy W. Hensley, Esq., Warrior Met Coal Mining, LLC, 16243 Highway 216, Birmingham, AL 

3544 (guy.hensley@warriormetcoal.com) 

 

Allen B. Bennett, Esq., Maynard Cooper, Gale, PC, 2400 Regions/Harbert Plaza, 1901 6th 

Avenue North, Birmingham, AL 35203 (jbennett@maynardcooper.com) 

Jack Jacobs, Esq., Maples, Tucker, and Jacobs LLC, 2001 Park Place North, Suite 1325, 

Birmingham, AL 35203 (jack@mtandj.com) 

Timothy Barnes, 65 Junior Avenue, Barry, AL 35546 (t.rich.barnes85@gmail.com)

43 FMSHRC 298