Eagle Coal Company, Inc.

Plain-English summary

Raymond Roman alleged that Eagle Coal Company constructively discharged him after he complained about excessive dust, met with an MSHA investigator, and observed an unsafe electrical condition. Judge Gary Melick found that the temporary-reinstatement application was not frivolous because the theories of liability were not clearly without merit. He ordered Eagle to immediately reinstate Roman as a continuous miner operator or in a similar position with equivalent pay and duties.

Decision snapshot

• Cited statute: 30 U.S.C. § 815(c)
• Outcome: Temporary reinstatement was ordered.
• Key point: At this preliminary stage, the judge determines whether a discrimination complaint is nonfrivolous, not whether permanent reinstatement has been proven.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

                                      March 10, 2000

SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT
: PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2000-88-D
on behalf of Raymond Ramon, : MSHA Case No. PIKE CD-99-04
Complainant :
v. : Mine No. 10
: Mine ID No. 15-17977
EAGLE COAL COMPANY, INC., :
Respondent :

                   ORDER OF TEMPORARY REINSTATEMENT

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of Complainant;
Michael J. Schmitt, Esq., Wells, Porter, Schmitt & Jones, Paintsville,
Kentucky, on behalf of Respondent.

Before: Judge Melick

    This case is before me pursuant to Section 105(c)(2) of the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. § 801 et seq., the “Act,” and Commission Rule 45, 29 C.F.R.
§ 2700.45, upon the application of the Secretary of Labor to temporarily reinstate Raymond
Roman to his former position with the Eagle Coal Company Inc., (Eagle). The Secretary alleges
in her application that Mr. Roman had been employed by Eagle as a continuous miner operator
and that on or about August 7, 1999, he was constructively discharged because representatives of
Eagle believed he had been cooperating with the Secretary’s investigation under Section 110(c) of
the Act. The Secretary seeks to have Roman temporarily reinstated to the position he held
immediately before his constructive discharge or to a similar position at the same rate of pay and
with the same or equivalent duties.

    Section 105(c)(1) of the Act prohibits discrimination against miners for exercising any

protected right under the Act. The purpose of the protection is to encourage miners “to play an
active part in the enforcement of the Act” recognizing that, “if miners are to be encouraged to be
active in matters of safety and health, they must be protected against any possible discrimination
which they might suffer as result of their participation.” S. Rep. No. 181, 9th Cong., 1st Sess. 35
(1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 9th Cong.

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2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977 at 623 (1978).
The scope of a temporary reinstatement proceeding is narrow, being limited to a
determination by the judge as to whether a miner’s discrimination complaint is frivolously
brought. Secretary of Labor on behalf of Price v. Jim Walter Resources, Inc., 9 FMSHRC 1305,
1306 (August 1987), aff’d sub nom. Jim Walter Resources Inc. v. FMSHRC, 920 F.2d 738 (11th
Cir. 1990). It is “not the judge’s duty . . . to resolve . . . conflict[s] in testimony at this
preliminary stage of proceedings.” Secretary of Labor on behalf of Albu v. Chicopee Coal Co.,
Inc., 21 FMSHRC 717, 719 (July 1999). At a temporary reinstatement hearing the judge must
determine “whether the evidence mustered” by the miner to date establishes that his complaint is
nonfrivolous,” not whether there is sufficient evidence of discrimination to justify permanent
reinstatement.” Jim Walter Resources, 920 F.2d at 747.

    The “not frivolously brought” standard contained in section 105(c)(2) of the Act has been

equated with a “reasonable cause to believe standard.” See Brock v. Roadway Express, Inc., 481
U.S. 252 (1987). It has also been equated with “not insubstantial” and “not clearly without
merit.” Jim Walter Resources, 920 F.2d at 747. The legislative history of the Mine Act defines
the “not frivolously brought standard” as whether a miner’s complaint “appears to have merit.” S.
Rep. No. 181, 9th Cong., 1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor,
Committee o Human Resources, 9th Cong., 2nd Sess. Legislative History of the Federal Mine
Safety and Health Act of 1977 at 624-25 (1978).

    At hearings held March 6, 2000, Mr. Roman testified that he first began working in coal

mines in 1993. He last worked at the Eagle No. 10 Mine on August 7, 1999, as a continuous
miner operator. Over the previous two years there had been what Roman characterized as
excessive dust at the face - - so much so that he was unable to see. As a result, Roman and, at
other times, two other miners complained to Foreman Tony Armstrong and asked that a curtain
be hung to remedy the problem. According to Roman the curtain was never hung and the
operator in fact never complied with the requirements to hang curtains.

    Roman also maintains that after he acknowledged to Eagle officials that he had met with

an investigator for the Mine Safety and Health Administration (MSHA) he was harassed. He was
purportedly told by Armstrong not to tell the truth to the MSHA investigator about the
company’s failure to use dust pumps. Armstrong purportedly reminded Roman two or three
times a week that he did not want to go to jail, presumably for dust sampling violations.

   Roman claims he was also harassed by management because, when the continuous miner

was down for repairs, he was required to perform such undesirable tasks as shoveling the belt and
picking up garbage. Before his complaint about excessive dust and before the operator learned of
his meeting with the MSHA investigator he claims he was permitted to assist in repairing the
continuous miner rather than shovel the belt or pick up garbage.

    Finally, on August 7, 1999, Roman observed, after the “breaker” kept "knocking out,"

that there was a wire on the cat head presumably illegally and unsafely jumping the circuit

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breaker. Testifying that he was tired of the unsafe conditions and presumably believing, based on
past experience, that it would be futile to complain, he decided to quit. As he left the mine he told
only the outside man, Earl Cook, that he was quitting.

    A miner’s work refusal is protected by the Act under conditions he reasonably and in good

faith believes to be hazardous. See Miller v. FMSHRC, 687 F2d 194, 195-96 (7th Cir. 1982).
While the miner must ordinarily communicate his reasons for a work refusal to the operator, that
is not critical when such notice would be futile. Secretary v. Northern Coal Co.
4 FMSHRC 126, 133 (1982). A constructive discharge is protected under the Act if conditions
faced by the miner are so intolerable that a reasonable person would feel compelled to resign.
Simpson v. FMSHRC, 842 F.2d 453, 463 (D.C. Cir. 1988). Recognizing that it is not the judge’s
duty to resolve the conflicts in testimony at this preliminary stage of proceedings and noting that
the Secretary’s theories of liability herein are “not clearly without merit,” I find, based on the
evidence presented, that the Secretary’s application for temporary reinstatement is not frivolously
brought.

                                         ORDER

    Eagle Coal Company, Inc., is hereby ordered to immediately reinstate Raymond Roman to

the position of continuous miner operator or to a similar position at the same rate of pay and with
the same or equivalent duties assigned to him before his departure from Eagle Coal Company,
Inc., on August 7, 1999.

                                          Gary Melick
                                          Administrative Law Judge

Distribution: (Certified Mail)

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

Michael J. Schmitt, Esq., Wells, Porter, Schmitt & Jones, 327 Main Street, P.O. Drawer 1767,
Paintsville, KY 41240-1767

\mca

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