**FEDERAL MINESAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OFADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC20004-1710

TELEPHONE:202-434-9900 / FAX: 202-434-9949

 

 

# December 31, 2020

 
| SECRETARY  OF LABOR   U.S. DEPARTMENT OF LABOR obo   KENNETH R. HAWKINS,

                          Complainant

 

                        v.

 

 

NEW  POINT STONE COMPANY,

                          Respondent                                                                            |   |   | TEMPORARY  REINSTATEMENT    PROCEEDING

 

Docket  No. LAKE 2021-0036

MSHA  Case No. VINC-CD-2021-01

 

 

 

Mine:  St. Paul Stone

Mine  ID: 12-00115

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

**ORDER GRANTINGTEMPORARY REINSTATEMENT**

 

Before:                        JudgeMcCarthy

 

This matter is before the undersigned on theSecretary of Labor’s Application for Temporary Reinstatement filed on behalf ofminer Kenneth R. Hawkins pursuant to section 105(c) of the Federal Mine Safetyand Health Act of 1977, 30 U.S.C. § 801, et seq., as amended (“Mine Act”), and29 C.F.R. § 2700.45. The Secretary seeks an order temporarily reinstating Hawkinsto his former position with New Point Stone Company pending the investigation anddisposition of a Discrimination Complaint under section 105(c) of the Act. 

OnOctober 19, 2020, Hawkins filed a Discrimination Complaint with MSHA. TheSecretary found that the Complaint was not frivolously brought and filed anApplication for Temporary Reinstatement (“Application”) on December 21, 2020. 

Inan email on December 30, 2020, the Respondent indicated that it was waiving itsright to a temporary reinstatement hearing and its intention, following myorder of temporary reinstatement, to file a motion to toll the temporaryreinstatement order supported by documentation and affidavits.

 

**I. Statement of the Case**

The Application alleges the following facts. Hawkinswas a miner working at the St. Paul Stone quarry mine for New Point StoneCompany, a mine operator within the meaning of the Mine Act. Application at1-2, ¶¶ 3-5. On September 15, 2020, Hawkins was involved in a haul truckaccident at the mine. *Id.* at 2, ¶ 6. On October 8, 2020, Dan Wanstrath,the mine owner and plant manager, held a meeting where he read a site-specific,hazard-training document and then asked the miners, including Hawkins, to signa training form. Hawkins refused, believing that signing the document “was notright” and that he should have received the training prior to the accident. Wanstraththen informed Hawkins that he no longer had a job for Hawkins. *Id.*

Hawkins then started to leave the room and, whenquestioned by Wanstrath, stated that he was going to call MSHA. Wanstrath then puthis hands on Hawkins and asked him to “[s]it down and we will talk about it.” *Id.*at 3, ¶ 6. After another miner told Hawkins that he had a right to call MSHA,Wanstrath backed away and Hawkins left the room. *Id.*

Hawkins returned to the room after calling MSHA. Wanstraththen told Hawkins that Hawkins had already received the required training. Wanstraththen produced a training document dated July 20, 2020. The training documentwas not initialed by Hawkins, and Hawkins insisted that he had never had thattraining. Wanstrath told Hawkins to get in the truck and he would drive Hawkinsaround mine property to explain the training and then Hawkins could sign thedocument dated July 20, 2020. Hawkins again refused, stating that he was notgoing to “cover [Wanstrath’s] ass” by falsifying a document. Wanstrath thenfired Hawkins, stating, “[t]hen, like I said earlier, I have no work for you.” *Id.*

Based on the above allegations, theApplication states that Hawkins engaged in protected activity when he refusedto sign the training document, believing that Wanstrath was asking him tofalsify a document, and when he called MSHA. *Id.*at 2, ¶ 6. As a remedy,the Application requests 

 

that an Order of Temporary Reinstatementbe issued directing the Respondent to reinstate [Hawkins] to the position heheld immediately prior to his termination or to a similar position at the samerate of pay and with the same or equivalent duties assigned to him.

 

*Id.* at 3, ¶ 7.

**II. Legal Principlesand Analysis**

** **

Section 105(c)(2) of the Mine Actprovides that, as to claims of discrimination, “if the Secretary finds thatsuch complaint was not frivolously brought, the Commission, on an expeditedbasis upon application of the Secretary, shall order the immediatereinstatement of the miner pending final order on the complaint.” When nohearing is requested, the determination that the complaint is not frivolouslybrought is based on the contents of the Secretary’s application. 29 C.F.R.2700.45(c) (2017).

 

The elements of a discrimination claimprovide a useful framework to assess whether an allegation is frivolous. *Sec’yof Labor on behalf of Williamson v. CAM Mining, LLC*, 31 FMSHRC 1085,1088 (Oct. 2009). To establish a prima facie case of discrimination under section105(c) of the Act, a complainant must establish (1) that he or she engaged inprotected activity and (2) that the adverse action complained of was motivatedin any part by that activity. *Sec’y of Labor on behalf of Pasula v.Consolidation Coal Co.*, 2 FMSHRC 2786 (Oct. 1980), *rev’d on othergrounds*, 663 F.2d 1211 (3d Cir. 1981); *Sec’y of Labor on behalf ofRobinette v. United Castle Coal Co.*, 3 FMSHRC 803 (Apr. 1981). 

 

For a temporary reinstatement proceeding,the Secretary need not prove a causal nexus exists between the protectedactivity and the adverse action; the Secretary need only demonstrate that thereis a non-frivolous issue as to the causal nexus. As explained by Judge Manning,a Commission judge should determine the issue of causal nexus was notfrivolously brought if “evidence was presented to show that the adverse actionscould have been motivated at least in part by the protected activity.” *Sec’yof Labor on behalf of Bradley v. Climax Molybdenum Co.*, 34 FMSHRC 2808,2821 (Oct. 2012) (ALJ). The Commission has recognized that direct evidence ofmotivation is rarely encountered and that the only available evidence is oftenindirect. *See, e.g., Sec’y of Labor on behalf of Chacon v. Phelps DodgeCorp.*, 3 FMSHRC 2508, 2510 (Nov. 1981)., *rev’d on other grounds*, 709F.2d 86 (D.C. Cir. 1983). The Commission has identified the following indiciaof discriminatory intent to establish a nexus between the protected activityand the alleged discrimination: (1) hostility or animus toward the protectedactivity, (2) knowledge of the protected activity, and (3) coincidence in timebetween the protected activity and adverse action. *Id*. 

 

The Secretary has sufficientlydemonstrated that the Application was not frivolously brought as to the issueof protected activity. The Application alleges that Hawkins refused to falsitya training document and contacted MSHA. Application at 2, ¶ 6. Section 105(c)of the Act, protects miners against retaliation for refusing to violate the Actor any safety or health regulation promulgated under it, including the refusalto falsify training documents. 

 

Additionally, the Application allegesthat Hawkins engaged in protected activity when he contacted MSHA. 30 U.S.C.§ 815(c)(1) (“[n]o person shall discharge or in any other manner discriminateagainst...because such miner...has filed or made a complaint under or relating tothis Act, including a complaint notifying the operator or the operator’sagent...of an alleged danger or safety or health violation”).**

* *

The Secretary has sufficientlydemonstrated that the Application was not frivolously brought as to the issueof adverse action. The Application alleges that New Point Stone Companyterminated Hawkins on October 8, 2020. Application at 3, ¶ 6. 

 

Furthermore, the Secretary has alsosufficiently demonstrated that the Application was not frivolously brought asto the nexus between the protected activity and the adverse action. The terminationoccurred on the same date and amid Hawkin’s repeated refusals to falsifytraining documents—a protected activity that appears to be based on reasonable,good-faith belief.

 

**III. Order**

 

For the foregoing reasons, Respondent NewPoint Stone Company is **ORDERED**to immediately reinstate Kenneth R.Hawkins to the position he held immediately prior to his termination on orabout October 8, 2020, or to a substantially equivalent position at the samerate of pay, with the same benefits, and with the same or equivalent dutiesassigned to him.

 

This Order of Temporary Reinstatement isnot open-ended. It will end upon final order on the underlying discriminationcomplaint as set forth in section 105(c)(2) of the Act. 30 U.S.C. §815(c)(2). Therefore, the Secretary must promptly determine whether or not hewill file a complaint with the Commission under section 105(c)(2) of the Actand so advise Hawkins, the Respondent, and this administrative tribunal. 

 

 

 

/s/Thomas P. McCarthy

                                                                        ThomasP. McCarthy

                                                                        AdministrativeLaw Judge

 

 

 

Distribution:

 

Barbara M. Villalobos

U.S. Department of Labor

Office of the Solicitor

230 S. Dearborn St., Room 844

Chicago, IL 60604

villalobos.barbara@dol.gov

sol-chi@dol.gov

 

Tony Oppegard

P.O. Box 22446

Lexington, KY 40522

tonyoppegard@gmail.com

 

Wes Addington

Appalachian Citizens’ Law Center

317 Main Street

Whitesburg, KY 41858

wes@aclc.org

 

Michael Peelish, Esq. 

Law Office of Adele L. Abrams, P.C. 

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

mpeelish@aabramslaw.com

 

Sarah Ghiz Korwan, Esq. 

Law Office of Adele L. Abrams, P.C. 

1035 Bridge Road 

Charleston, WV 25314 

skorwan@aabramslaw.com