Manalapan Mining Company

Plain-English summary

Vernon Daniels worked as a mobile bridge carrier operator at Manalapan Mining Company's RB No. 7 Mine. The Secretary alleged that Manalapan laid him off because he made himself available to testify, and later testified, in protected Mine Act proceedings. Manalapan waived a hearing, denied discrimination, and attributed the layoff to the depressed coal market, qualifications, work records, and Daniels's refusal of offers to return. Judge Jacqueline R. Bulluck applied the lower "not frivolously brought" standard and found that the timing of the alleged adverse actions, management's knowledge of Daniels's protected activity, and the alleged replacement of participating miners by less senior workers were enough to support temporary relief. The judge ordered reinstatement retroactive to December 29, 1999, to Daniels's former position or a similar position with the same pay and benefits, without deciding the discrimination claim on its merits.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c), 30 U.S.C. § 815(c)(2), and 29 C.F.R. § 2700.45(c)
• Outcome: Temporary reinstatement was granted retroactive to December 29, 1999, pending resolution of the underlying discrimination claim.
• Key point: A temporary reinstatement application need only be shown to be not frivolous, not proven by a preponderance of the evidence.

Full text (FMSHRC public release)

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                                      January 7, 2000

SECRETARY OF LABOR, MSHA, : TEMPORARY REINSTATEMENT
on behalf of : PROCEEDING
VERNON DANIELS, :
Complainant : Docket No. KENT 2000-44-D
v. : BARB CD 99-21
:
MANALAPAN MINING COMPANY, : R.B. No. 7 Mine
Respondent :
:
:
: Mine ID 15-17701

                   ORDER GRANTING TEMPORARY REINSTATEMENT

Before: Judge Bulluck

     This matter is before me upon application, filed by the Secretary on November 29, 1999,

pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§815(c)(2), for an order requiring Manalapan Mining Company, Incorporated (“Manalapan”), to
temporarily reinstate Vernon Daniels to his former position as a mobile bridge carrier operator,
day shift, at Manalapan’s RB No. 7 mine, or to a similar position at the same rate of pay. Section
105(c) prohibits operators from discharging or otherwise discriminating against miners who have
engaged in safety related protected activity, and authorizes the Secretary to apply to the
Commission for temporary reinstatement of miners, pending full resolution of the merits of their
complaints. The application is supported by declaration of MSHA Special Investigator Gary
Harris, and a copy of the discrimination complaint filed by Daniels with MSHA on September
17, 1999. The application alleges that Daniels was laid-off by Manalapan, because he made
himself available to testify at a temporary reinstatement hearing, and because, subsequently, he
testified at the related discrimination hearing.

    Manalapan elected to waive its right to a hearing and on December 9, 1999, filed its

response, therein denying that Daniels had been laid-off for any discriminatory reason, and
asserting that Daniels refused three offers to return to work. The Secretary filed a reply to
Manalapan’s response on December 27, 1999, noting that any post lay-off offers made by
Manalapan to Daniels were for a different position, with less pay, or for a different shift at
another mine.

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   Procedural Framework

   The scope of this proceeding is governed by the provisions of Commission Rule 45(c),

29 C.F.R. § 2700.45(c), which limits the inquiry to a “not frivolously brought” standard, by
providing that “If no hearing is requested, the Judge assigned 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, he shall issue immediately a written order of
temporary reinstatement.”

    It is well settled that the “not frivolously brought” standard is entirely different from the

scrutiny applicable to a trial on the merits of the underlying discrimination complaint. In Jim
Walter Resources v. FMSHRC, 920 F.2d 738 (11th Cir. 1990), the Court explained the standard as
follows:

           The legislative history of the Act defines the ‘not frivolously brought
   standard’ as indicating whether a miner’s ‘complaint appears to have merit’-- an
   interpretation that is strikingly similar to a reasonable cause standard. [Citation
   omitted]. In a similar context involving the propriety of agency actions seeking
   temporary relief, the former 5th Circuit construed the ‘reasonable cause to believe’
   standard as meaning whether an agency’s ‘theories of law and fact are not
   insubstantial or frivolous.’ 920 F.2d at 747 (emphasis in original) (citations
   omitted).

           . . . Congress, in enacting the ‘not frivolously brought’ standard, clearly
   intended that employers should bear a proportionately greater burden of the risk of
   an erroneous decision in a temporary reinstatement proceeding. Any material loss
   from a mistaken decision to temporarily reinstate a worker is slight; the employer
   continues to retain the services of the miner pending a final decision on the merits.
   Also, the erroneous deprivation of the employer’s right to control the makeup of
   his work force under section 105(c) is only a temporary one that can be rectified
   by the Secretary’s decision not to bring a formal complaint or a decision on the
   merits in the employer’s favor. Id. at 748, n. 11 (emphasis in original).


   Ruling

    The Mine Act accords to miners and miners’ representatives protection from discharge or

other discriminatory acts, based on their exercise of any statutory right under the Act. 30 U.S.C.
§ 815(c). The Commission has consistently held a miner seeking to establish a prima facie case
of discrimination to proving that he engaged in activity protected by the Act, and that he suffered
adverse action as a result of the protected activity. Secretary on behalf of Pasula v.
Consolidation Coal Company, 2 FMSHRC 2786, 2797-2800 (October 1980), rev’d on other
grounds sub nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3rd Cir. 1981);

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Secretary on behalf of Robinette v. United Coal Company, 3 FMSHRC 803, 817-18 (April
1981).

    The Secretary’s allegations are based, in part, on Inspector Harris’s investigation of

Daniels’ discrimination claims. Based on his investigation, Harris found: 1) that Daniels had
been employed at the RB No. 7 mine (J&C Mining prior to May 1999) from February 1997, until
July 29, 1999; 2) that on January 19, 1999, day shift miners Vernon Daniels, William Daniels,
Jeff Craig, Dwayne Hubbard, Grant Noe and Carl Runyon engaged in protected activity, when
they testified in the wrongful discharge proceeding of Middleton v. J&C Mining, L.L.C., 21
FMSHRC 217 (February 1999) (ALJ); 3) that on March 2, 1999, Manalapan discharged Noe; 4)
that in May 1999, Manalapan took over J&C Mining, renamed the mine RB No. 7, and continued
to employ all J&C Mining employees on one maintenance and two production shifts; 5) that
during a day shift in June 1999, the foreman sent Daniels and Hubbard home early; 6) that on
July 29, 1999, due to the depressed coal market, Manalapan laid-off 14 miners at the RB No. 7
mine, including Daniels, Hubbard and Donnie Adkinson, and transferred Runyon, Craig and
William Daniels to another mine; 7) that Manalapan retained seven day shift miners at the RB
No. 7 mine, who did not participate in the Middleton hearing; 8) that Manalapan replaced
Daniels, Craig, Hubbard, and William Daniels with second shift miners, who have less seniority
and mining experience; 9) that mine superintendent Earl Hensley, upon the advice of day shift
foreman George Saylor, decided which miners to lay-off; 10) that foreman Saylor had knowledge
of the miners’ protected activity; and 11) that all day shift miners who testified in the Middleton
hearing have suffered adverse action within six months of the protected activity. Based on these
findings, Harris concluded that Daniels’ allegation that he was laid-off because of his
participation in the January 1999, Middleton hearing was not frivolous.

     Manalapan’s response seeks to establish that the discrimination complaint was frivolously

brought by asserting, in part: 1) that on June 29, 1999, Manalapan shut down operations, by
placing the miners on one week without pay, in addition to their paid vacation week; 2) that, due
to the depressed coal market, Manalapan owner Duane Bennett decided to eliminate the second
shift, and delegated the decision-making authority to mine superintendent Hensley; 3) that
Hensley received recommendations from foreman Saylor, as to the best qualified and most
reliable miners; 4) that, for reasons concerning production, Hensley determined that other miners
were more dependable than Daniels, and Hensley also believed that the lay-off would only last
for a couple of months; 5) that Jessie Saylor, foreman Saylor’s son, was also involved in the
Middleton proceeding, as well as the pending Noe wrongful discharge proceeding; 6) that Daniels
was absent nine days, and left work early two days, between January and May 1999; 7) that
Daniels refused three opportunities to return to work, one at his previous position; and 8) that, of
38 miners laid-off, 11 of which were bridge operators, only 8 bridge operators had been called
back to work, as of December 9, 1999. Manalapan concludes, therefore, that the decision to
downsize was motivated by a depressed coal market, that decisions on retention and placement of
miners were based solely on job qualifications and work records, and that Daniels was not laid-
off because he gave testimony in the Middleton wrongful discharge hearing.

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Page 4

    While I have carefully considered Manalapan’s response, because it has waived its right

to a hearing on the Secretary’s application, I must accept as true, the events, as alleged. The
Secretary has set forth allegations of adverse treatment, close in proximity to protected activity so
as to create a nexus, sufficient to raise an inference of discrimination. Manalapan has conceded
the protected activity and has not challenged the Secretary’s position that, at the time Daniels was
laid-off, company officials responsible for the action had knowledge of Daniels’ participation in
the Middleton discrimination proceeding. At best, Manalapan has shown an intent to defend its
actions at hearing, on the basis of legitimate business-related, non-discriminatory reasons. At
this juncture, it is emphasized that, at hearing, the Secretary ultimately bears the burden of
proving discrimination by a preponderance of the evidence, in order to sustain a violation under
section 105(c). Accordingly, since the allegations of discrimination, as set forth in the
Secretary’s application, have not been shown to be clearly lacking in merit, it must be concluded
that they are not frivolous and, therefore, satisfy the lesser threshold in this proceeding.

                                          ORDER

    For the reasons set forth above, it is ORDERED that Manalapan Mining Company,

Incorporated, reinstate Vernon Daniels, retroactive to December 29, 1999, by agreement of the
parties, to the position he held prior to his lay-off on July 29, 1999, at the same rate of pay and
benefits for that position, or to a similar position with the same or equivalent duties, at the same
rate of pay and benefits.

                                          Jacqueline R. Bulluck
                                          Administrative Law Judge

Distribution: (Certified Mail)

Brian W. Dougherty, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, TN 37215

Richard D. Cohelia, Representative, Manalapan Mining Company, Route 1, P.O. Box 374,
Evarts, KY 40828

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