Misty Mountain Mining, Inc.

Plain-English summary

The Commission reviewed four discrimination complaints brought for miners who said they were discharged after reporting mine safety problems, including defective brakes and roof support equipment. The ALJ found that Misty Mountain Mining and its supervisors violated the Mine Act by discharging the miners twice, awarded back pay, and ordered reinstatement subject to the miners accepting suitable work. The Commission affirmed the ALJ's decision after finding that the miners turned down suitable offers to return to work or transfer to other Misty Mountain mines. The decision also addresses the relationship between temporary reinstatement and the remedies available in a discrimination case.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: The ALJ's decision was affirmed, including the back-pay and reinstatement rulings.
• Key point: A suitable, bona fide offer of reinstatement can end or limit further back-pay accumulation when the miner declines the offer.

Full text (FMSHRC public release)

MISTY MOUNTAIN MINING, INC. -- June 28, 2006

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW,

Suite 9500

Washington, DC 20001

June 28, 2006

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

on behalf of

WENDELL McCLAIN, COY McCLAIN,

WADE DAMRON, and GARY CONWAY

v.

MISTY MOUNTAIN MINING, INC.,

STANLEY OSBORNE, and

SIMON RATLIFF

:

:

:

:

:

:

:

:

:

:

:

:

Docket Nos. KENT 2005-96-D
KENT 2005-97-D
KENT 2005-98-D
KENT 2005-99-D

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners

DECISION

BY: Duffy, Chairman; Suboleski and Young, Commissioners

This consolidated proceeding involves discrimination complaints filed by
the Secretary of Labor’s Mine
Safety and Health Administration (“MSHA”) on behalf of Wendell McClain, Coy
McClain, Wade Damron, and Gary Conway (collectively referred to as “the complainants” or “the miners”) under section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (2000) (“Mine Act” or “Act”),[1] against Misty Mountain Mining, Inc. (“Misty Mountain”), Stanley Osborne, and Simon
Ratliff.[2]
Administrative Law Judge T. Todd Hodgdon determined that the miners were
discharged twice in violation of the Mine Act. However, he awarded back
pay in an amount lower than that proposed by MSHA and concluded that the
miners’ right to reinstatement
had ended once they turned down offers of reemployment following their
second discharge. 27 FMSHRC 690, 697-98, 701-03 (Oct. 2005) (ALJ). The
miners appealed the judge’s
reduction in their back pay and his conclusion that they had no further
right of reinstatement; the Commission granted review. The Secretary
filed, and the Commission granted, a motion to intervene in the
proceeding before the Commission. For the reasons that follow, we affirm
the judge’s decision.

I.

Factual and Procedural Background

Misty Mountain was owned by Stanley Osborne. 27 FMSHRC at 691. Misty
Mountain operated Mine No. 5, which was located in Letcher County,
Kentucky, from July to November 13, 2004. Id. From July until
October 14, superintendent Simon Ratliff was in charge of day-to-day
operations at the mine. Id.

On August 1, 2004, Ratliff hired Gary Conway as an equipment operator.
Id. Conway worked as a shuttle car operator for 3 days, and then
was assigned to operate a roof bolter. Id. When he operated the
shuttle car, he complained about the lack of brakes. Id. at 693.
While assigned to the roof bolter, Conway complained to Ratliff about the
need for new dust filters in the dust boxes and the failure of the
automatic temporary roof support (“ATRS”) to extend to the roof. Id.
at 693-94.

In mid-August, Wade Damron was hired to assist Conway on the roof bolter.
Id. at 691. Damron told Ratliff that the dust filters on the roof
bolter did not work. Id. at 694. Also in mid-August, Coy McClain
was hired to operate the shuttle car and a scoop. Id. at 691. He
complained to Ratliff about the lack of brakes on both the scoop and the
shuttle car. Id. at 694. In addition, he reported that the ATRS on
the roof bolter did not reach the roof in some places. Id.
Following Coy McClain’s
employment at Misty Mountain, Wendell McClain, Coy’s brother, was hired as a shuttle
car operator. Id. at 691. Wendell also informed Ratliff that the
shuttle car did not have any brakes and that the ATRS did not reach the
roof. Id. at 694.

On August 30, Ratliff removed Conway and Damron from operating the roof
bolter and assigned Coy and Wendell McClain to operate it. Id. at

691. Damron was then assigned to the scoop. Id. at 691. When the
     roof bolter became stuck in the No. 3 entry, Damron brought in the scoop
     to free it. Id. As the scoop approached the roof bolter, Damron
     was unable to stop by applying the brakes. Id.; Tr. 74-75. Damron
     began yelling, “No brakes!” and signaling with his helmet light
     to Rafliff, and Coy and Wendell McClain, who were standing in the entry.
     27 FMSHRC at 691. Damron was able to stop the scoop by steering it into
     the rib about 20 feet from where Ratliff and the other miners were
     standing. Id.

Wendell McClain told Ratliff that “someone was going to be killed” if the brakes on the scoop were not
fixed. Id. Ratliff responded that he was not going to let anyone
disrespect him like that and told Wendell McClain that he would not be
needed anymore. Id. Ratliff told Coy McClain to go with him.
Id. Wendell and Coy McClain understood that to mean that they were
fired. Id. That same day, they filed
discrimination complaints with MSHA. Id. Also on August 30,
superintendent Ratliff told Wade Damron and Gary Conway that they
were “deadbeats”and to get their
buckets and leave. Id. Damron and Conway understood this to mean
that they were fired. Id. They filed discrimination complaints
with MSHA on August 31. Id.

Coy McClain went back to the mine on August 31 and
was allowed to return to work. Id. at 692. On September 27, the
Secretary of Labor filed applications for temporary reinstatement for
Wendell McClain, Damron, and Conway.[3] Id. Before a hearing could be held on
the applications, Misty Mountain agreed to reinstate the three miners on
October 4. Id. Wendell McClain returned to work that day, and
Damron and Conway returned to work on October 11. Id.

After the complainants went back to work, they were
only permitted to work a few hours each day before Ratliff sent them
home, while other miners continued working. Id. On October 14,
Ratliff told the complainants that he could not work with them anymore.
Id. Believing that to mean they were fired, they left the mine.
Id. The same day, Ratliff quit his position as superintendent at
Misty Mountain, and Mine No. 5 was closed until October 25, when a new
superintendent was hired. Id.

On October 22, the Secretary filed an application for
temporary reinstatement on behalf of Coy McClain. Id.; Appl. for
Temp. Reins’t, Docket No. KENT 2005-28-D. That same day, the Secretary
also filed a Motion to Enforce Order to Temporarily Reinstate Wendell
McClain, Gary Conway and Wade Damron. Docket Nos. KENT 2005-02-D; KENT
2005-03-D; KENT
2005-04-D. Shortly thereafter, Stanley Osborne spoke
with MSHA special investigator Ricky Hamilton and told him that the
complainants could return to work when the mine reopened. 27 FMSHRC at
692; Tr. 403-04; 528-29.

On October 24, Coy McClain called Osborne at home and
told him that he had another job.[4] 27 FMSHRC at 692. Neither Conway nor Damron
returned to work on October 25 when the mine reopened. Id. On
October 26 and 27, Osborne again spoke with the MSHA office and stated
that he could place one of the miners at another mine. Id. On
October 28, the secretary of MSHA investigator Hamilton called Osborne
and told him that Conway and Damron had other jobs and would not be
returning.[5]
Id.

Wendell McClain returned to work at Misty Mountain on
October 25 and continued to work at Mine No. 5 until it closed on
November 14, 2004. Id. When the mine closed, Osborne offered
Wendell McClain a job at Misty Mountain Mine No. 2. Id. McClain
turned down the offer on the grounds that it was too far from his home
and that he had no money for gas to drive there. Id.

The Secretary filed discrimination complaints on
behalf of the miners in which she sought reinstatement, back pay, and
other damages related to their discharges. Id. at 693. The
Secretary also sought civil penalties of $20,000 against Misty Mountain,
$10,000 against Stanley Osborne, and $10,000 against Simon Ratliff.
Id. Thereafter, a hearing was held before the judge in which Misty
Mountain, Osborne, and Ratliff appeared pro se. Id. at
690.

Based on these credited facts,[6] the judge found that the complainants engaged
in protected activity by making various safety complaints regarding the
equipment at Misty Mountain Mine No. 5. Id. at 693-94. The judge
further found that the complainants were fired on August 30 because of
their safety complaints. Id. at 694-98. The judge also found that,
following their reinstatements during the week of October 11, the
complainants worked fewer hours than other miners. Id. at 698.
Finally, the judge found that on October 14 the complainants were fired
for a second time as a result of their discrimination complaints.[7] Id.

The judge held that the complainants were entitled to some back pay, but
not to reinstatement and other monetary damages. Id. at 693, 699,

707. He determined that, following the October 14 terminations, “Osborne made a suitable offer of
     reinstatement to the four [c]omplainants. . . . [T]he fact that the offer
     was first made to settle the temporary reinstatement applications does
     not mean the offer was not suitable.” Id. at 700. Accordingly, the
     judge concluded that, once the complainants refused reinstatement, they
     were not entitled to it again. Id. at 701 n.3. He also concluded
     that they were entitled to back pay only until the date when they refused
     reinstatement.[8]
     Id. at 701. He rejected the Secretary’s position that Midguard Mining,
     which was owned by Stanley Osborne’s son and took over some of the
     Misty Mountain mines, was liable as a successor operator. Id. at
708. The judge also rejected liability for back pay by former
     superintendent Simon Ratliff because he was acting only as an agent of
     Misty Mountain. Id. at 704-05. However, the judge held that Misty
     Mountain owner Stanley Osborne was jointly and severally liable for back
     pay. Id. at 704.

Finally, the judge imposed a penalty of $10,000, which was reduced from a
proposed penalty of $20,000 against Misty Mountain and its owner,
Osborne. Id. at 705-06. The judge rejected the Secretary’s further penalty proposals of
$10,000 against Ratliff and Osborne individually because there was no
basis for their liability under section 110(c), 30 U.S.C. § 820(c), in this proceeding.
Id.[9]
The complainants filed a petition for review limited to the judge’s reduction in their back pay
resulting from their rejection of Misty Mountain’s reinstatement offers and his
determination that they had no further right of reinstatement once they
had rejected those offers.

II.

Disposition

The petition for discretionary review, filed on behalf of the
complainants, challenges the judge’s determination that they “were not entitled to
reinstatement.” PDR at
1.[10] More
specifically, the petition appeals the judge’s determination that Wendell
McClain’s entitlement to back
pay ended on November 15, 2004; that Coy McClain’s entitlement to back pay ended on
October 24, 2004; and that Damron’s and Conway’s entitlement to back pay ended on
October 25, 2004. Id. at 1-2. With regard to Wendell McClain,
Damron, and Conway, the petition asserts that they were under no
obligation to accept temporary reinstatement after their second
discharge. Id. at 13. Further, the petition argues that Wendell
McClain was not required to accept a transfer to another mine, when Misty
Mountain No. 5 closed, because he was in temporary status. Id.
With regard to Coy McClain, the petition challenges the judge’s determination that McClain was not
entitled to back pay and reinstatement once he took a job at another
mine, because there is no evidence that Stanley Osborne made an
unqualified offer of permanent reinstatement. Id. at 13-14. The
petition argues that the judge’s conclusion that Osborne made a
suitable offer of reinstatement to the complainants is incorrect as a
matter of law. Id. at 15. Finally, the petition concludes that the
judge’s finding that a bona
fide offer of reinstatement was made and communicated to the complainants
is not supported by substantial evidence. Id. at 15-16.

The Secretary asserts that the judge erred when he failed to explain how
he determined that Misty Mountain’s second offer of reinstatement was
“bona fide.” S. Br. at 1, 15-17. The Secretary
further argues that, assuming the reinstatement offers were bona fide,
the judge failed to explain how he determined that the complainants’ rejection of the offers constituted
rejection of any further reinstatement with Misty Mountain. Id. at
1-2, 20-23. In support of her position, the Secretary asserts that a
miner has no obligation to accept temporary reinstatement in order to
preserve his right to permanent reinstatement. Id. at 23 n.14.
Contrary to the complainants’
position on appeal, the Secretary argues that the offers of
reinstatement, following the second discharge, were effectively
communicated. Id. 17-19.

In challenging the judge’s
determination that the complainants were not entitled to
reinstatement and that their back pay was cut off by Misty
Mountain’s offer of
reinstatement following the second discharges, the complainants have
placed squarely before the Commission the adequacy of those reinstatement
offers.

A. Reinstatement Offers and Mitigation of Back Pay

The Commission applies the abuse of discretion standard when reviewing a
judge’s remedial order. See
Sec’y of Labor on
behalf of Reike v. Akzo Nobel Salt Inc., 19 FMSHRC 1254, 1257-58
(July 1997). “Abuse of
discretion may be found when >there is no evidence to support
the decision or if the decision is based on an improper understanding of
the law.’” Id. at 1258 n.3 (quoting
Mingo Logan Coal Co., 19 FMSHRC 246, 249-50 n.5 (Feb. 1997),
aff’d,
133 F.3d 916 (4th Cir. 1998) (unpublished)). “A litigant seeking to establish . .
. abuse of discretion bears a heavy burden.” Mingo Logan, 19 FMSHRC at
249-50 n.5 (citing In re: Contests of Respirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1844 (Nov. 1995)).

Under section 105(c), the Commission is authorized to “require a person committing a
violation of this subsection to take such affirmative action to abate the
violation as the Commission deems appropriate, including, but not limited
to, the rehiring or reinstatement of the miner to his former position
with back pay and interest.” 30
U.S.C. § 815(c)(2).[11] Accordingly, the
Commission endeavors to make miners whole and to return them to their
status before the illegal discrimination occurred. Sec’y of Labor on behalf of
Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2056 (Dec. 1983).
“Our concern and duty is to
restore the discriminatees, as nearly as we can, to the enjoyment of the
wages and benefits they lost as a result of their illegal
terminations.” Sec’y of Labor on behalf of
Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126, 143 (Feb.
1982). “>Unless compelling reasons point
to the contrary, the full measure of relief should be granted to’” a discriminatee. Bailey, 5
FMSHRC at 2049 (quoting Sec’y of Labor on behalf of
Gooslin v. Kentucky Carbon Corp., 4 FMSHRC 1, 2 (Jan. 1982)).

The Commission recognized in Dunmire and Estle that the
failure of a discriminatee to mitigate his damages is a compelling reason
that could warrant less than complete relief. 4 FMSHRC at 144. Thus, the
Commission has held that “back
pay may be reduced in appropriate circumstances where an employee incurs
a >willful loss of
earnings’ (fails to mitigate
damages).” Id. (quoting
OCAW v. NLRB, 547 F.2d 598, 602-03 (D.C. Cir. 1976)). Finally, the
operator bears the burden of proof with respect to willful loss.
Metric Constructors, Inc., 6 FMSHRC 226, 233 (Feb. 1984),
aff’d, 766
F.2d 469 (11th Cir. 1985).
Disposition of the appeal in this proceeding turns on whether Misty
Mountain made a suitable offer of reinstatement to the complainants
following their second discharge. An offer of unconditional reinstatement
to their jobs at Misty Mountain would toll the accumulation of back pay.
Munsey v. Smitty Baker Coal Co., Inc., 2 FMSHRC 3463, 3464 (Dec.
1980); Bryant v. Dingess Mine Service, Inc., 10 FMSHRC 1173, 1180
(Sept. 1988). Thus, it is “only
in >exceptional’ circumstances that a
discriminatee’s rejection of an
unqualified job offer [will] not end the back pay period.” Bryant, 10 FMSHRC at
1180-81. Finally, if a suitable offer of employment was made and refused,
then the need to offer reinstatement is moot. Munsey, 2 FMSHRC at
3464.

B. Validity of Osborne’s Reinstatement Offers

Following the complainants’
second discharge on October 14, the mine was shut down from October 15
until October 25, when a new superintendent was hired to replace Simon
Ratliff. 27 FMSHRC at 699. Sometime before October 25, Stanley Osborne,
owner of the mine, conveyed an offer of reinstatement to the complainants
through MSHA investigator Ricky Hamilton. Tr. 403-04; 528-29.[12] According to Osborne,
he “told all four employees
that there would be work for them.” Tr. 528. Only Wendell McClain
returned to work on October 25. He continued working there until November
13, when the mine closed. 27 FMSHRC at 699.

While testimony in the record regarding the
reinstatement offers is terse, there is nothing to suggest that the
offers were conditional. See Tr. 403. Further, there is nothing in
the record that would support the conclusion that acceptance of the
offers would be futile, as the Secretary has argued. S. Br. at 15-16.
Significantly, Ratliff, the principal source of friction who had
initiated the prior terminations, had, by that time, quit his employment
with the mine, resulting in the mine’s closing until
a new superintendent could be hired and leaving Osborne to convey job
offers to the complainants. Compare Sec’y of
Labor on behalf of Hyles, etc. v. All American Alphalt, 21 FMSHRC
119, 141 n.28 (Jan. 1999) (operator’s placement of
miner in a job before it was posted indicates that efforts of
discriminatorily laid off miners to bid on the job when it was posted
would have been futile). Thus, there is no circumstance that alters the
plain words of Osborne’s reinstatement
offers. Under these facts, once a suitable offer of reinstatement was
made, that tolled the accumulation of back pay, and there is no further
requirement to offer reinstatement. See Munsey, 2
FMSHRC at 3464.

Before the judge, the Secretary argued that a reinstatement offer made to
settle a temporary reinstatement complaint could never be “suitable.” The judge rejected the
Secretary’s argument.[13] 27 FMSHRC at 700.
Now, before the Commission, the complainants argue that the judge’s conclusion was incorrect and
inconsistent with the Commission’s decision in Bryant. In
further support of their position, the complainants argue that temporary
reinstatement can never be “unconditional” and is “contingent” and “places a condition upon one’s employment status.” PDR at 15.

These arguments must be rejected because they are at odds with the plain
language of the Mine Act. In this regard, section 105(c)(2), 30 U.S.C.
§ 815(c)(2), makes no
distinction between the “immediate reinstatement” which the Commission shall order
following the Secretary’s
determination that a discrimination complaint is not “frivolously brought,” and the reinstatement ordered by
the Commission following a hearing and a determination of a violation. In
other words, until a Commission judge has issued a ruling on the validity
of the complaint, it is unknown whether the “immediate reinstatement” called for in section 105(c)(2) is
temporary or permanent in nature. Thus, an operator’s offer of reinstatement should be
regarded as unconditional unless its terms expressly indicate
otherwise.[14]

Nor does Commission case law support the position of the Secretary or the
complainants that a reinstatement offer should be
interpreted to mean something other than its plain language. In
Bryant, cited by the complainants, the Commission held that an
operator’s offer to place a
discriminatee on a recall panel coupled with the operator’s guarantee that the discriminatee
would be called back to work within two or three days was a bona fide
offer of reemployment. 10 FMSHRC at 1180-82. The Commission further held
that once the discriminatee turned down the offer, the right to back pay
terminated. Id. at 1182. In this proceeding, Osborne’s offer of work was unconditional.
27 FMSHRC at 699-700. On cross examination of Osborne, the Secretary’s counsel tried to show that Osborne
limited his offers of reemployment because they were made in the context
of the Secretary’s having filed
temporary reinstatement complaints. Tr. 531-33. When asked if the
reinstatement offers were made “pursuant to the temporary
reinstatement cases,” Osborne
responded, “I don’t know . . . . I didn’t temporarily give them a job. I
would have given them a job . . . .” Tr. 532. Indeed, Osborne’s offer of reinstatement is more
absolute and open-ended than the one that the Commission found acceptable
in Bryant.[15]

The complainants further cite Dunmire and Estle andBowling
to support their argument that a discriminatee is not required to accept
an offer of temporary reinstatement to mitigate damages. In Dunmire
and Estle, a discriminatee, who had not sought a temporary
reinstatement application, was nevertheless found to have made the
necessary reasonable efforts to mitigate his damages when he found
alternative but lower paying employment. 4 FMSHRC at 144. The Commission
refused to hold that the discriminatee had failed to mitigate his damages
because he would have earned more by obtaining temporary reinstatement to
the position from which he had been discharged. See id. In
Bowling, the Commission concluded that a discriminatee had not
failed to mitigate his damages when he did not seek reopening of his
temporary reinstatement application, where there was no evidence that he
was aware that he had a right to ask the Secretary to refile his
application. 21 FMSHRC at 284-85. Neither case can be read to support the
Secretary’s and
complainants’ position that an
offer of reemployment, made pursuant to a temporary reinstatement
application, cannot constitute an unconditional offer to return to work.

In sum, the positions of the complainants and the Secretary on appeal
must be rejected.

C. Substantial Evidence Supports the Judge’s Findings

When Misty Mountain Mine No. 5 closed, Osborne offered to transfer
Wendell McClain to Mine No. 2, and he agreed to take the position. 27
FMSHRC at 699. However, he never showed up at the mine, because,
according to McClain, it was too far to drive or he did not have the
money for gas. Id. The judge found that McClain’s excuses for not accepting the job
at the mine were “inconsistent
and nonsensical.” Id.
The judge noted in particular that Osborne had paid McClain $800,
purportedly in settlement of his MSHA complaint, which he used to pay for
Christmas gifts on lay-away, rather than for gas to go to work.
Id. The judge concluded that Wendell McClain’s failure to report at the No. 2
mine was “not justified.” Id. Therefore, the judge
further concluded that McClain was not entitled to reinstatement because
he chose not to accept the offer of work at the No. 2 mine “without articulating a legitimate
reason for doing so.”
Id. at 701. The judge also held that McClain’s back pay should not run beyond the
time he turned down the offer of work at the No. 2 mine. Id. at

702. We hold that substantial evidence supports the judge’s findings.[16]

Additionally, the decision clearly rests on credibility determinations
made by the administrative law judge. See slip op. at 4 n.6,
supra. We will not disturb these determinations except in
extraordinary circumstances not found here. Farmer v. Island Creek
Coal Co., 14 FMSHRC 1537, 1540-41 (Sept. 1992) (quoting Hollis v.
Consolidation Coal Co., 6 FMSHRC 21, 25 (Jan. 1984), aff’d mem. 750 F.2d 1093
(D.C.Cir. 1984)).

Further, the complainants argue that the
reinstatement offer was not effectively communicated.[17] However, the record indicates
and the judge found that the offer was made by Osborne to MSHA
investigator Ricky Hamilton and the Secretary’s counsel. 27
FMSHRC at 699; Tr. 403; 529. Moreover, that the offer was made and
communicated was borne out by Wendell McClain’s return to
work.

With regard to Coy McClain, Gary Conway, and Wade Damron, the judge
found, as noted above, that Stanley Osborne made an offer of
reinstatement, through Hamilton and the Secretary’s counsel, following the second
discharge. 27 FMSHRC at 699. The judge found that Coy McClain turned down
the reinstatement offer because he had found a higher paying job.[18] Id. at 700.
The judge further found that Osborne made a similar offer of
reinstatement to Conway and Damron but that they had found other jobs.
Id. Neither the Secretary nor the complainants challenge the
judge’s findings. In light of
these uncontested findings, the judge’s conclusion that “Osborne made a suitable offer of
reinstatement” to the
complainants, and “[a]ll four
were offered a chance to return to Mine No. 5 or to transfer to other
Misty Mountain mines and all four turned [the offers] down,” is supported by substantial
evidence. Id. at 700, 699.

III.

Conclusion

For the foregoing reasons, we affirm the judge’s decision.

Michael F. Duffy, Chairman

Stanley C. Suboleski, Commissioner

Michael G. Young, Commissioner

Commissioner Jordan, dissenting:

Both the judge and my colleagues avoid the central issue in this case:
were the job offers from Stanley Osborne to the miners offers of
temporary reinstatement, or permanent job offers? The majority concludes
that substantial evidence supports the judge’s finding that Osborne made a
suitable offer of reinstatement, but the key question determining the
adequacy of the offer was not addressed, much less answered, in his
opinion. Therefore, I would vacate the judge’s decision and remand the case to
him.

The Commission requires that a judge analyze and weigh all probative
record evidence, make appropriate findings, and explain the reasons for
his or her decision. Mid-Continent Res., 16 FMSHRC 1218, 1222
(June 1994). The D.C. Circuit has further explained that, “[p]erhaps the most essential purpose
served by the requirement of an articulated decision is the facilitation
of judicial review.”
Harborlite Corp. v. ICC, 613 F.2d 1088, 1092 (D.C. Cir. 1979).
Without findings of fact and adequate justification for the conclusions
reached by a judge, we cannot perform our review function effectively.
Anaconda Co., 3 FMSHRC 299, 299-300 (Feb. 1981) (citations
omitted). In this case, the question of whether Osborne’s job offer was “suitable,” hinges in large part on the factual
issue of whether the offer was for temporary or permanent employment.
Without such a finding, I am unable to determine whether the judge’s ultimate holding that a suitable
job offer was made should be sustained.

According to the judge, “the
fact that the offer was first made to settle the temporary reinstatement
applications does not mean the offer was not suitable,” 27 FMSHRC 690, 700 (Oct. 2005)
(ALJ), but it is unclear what he meant by this statement. As the judge,
noted, after the first firing, the miners went back to work in the same
positions and at the same pay as they originally earned. Id. While
these factors are generally a necessary component of a suitable offer,
they do not equate to a permanent job offer. When the miners were fired a
second time, “Osborne made it
known to them that they could return to Mine No. 5 or to other mines that
he operated.” Id. The
judge points to no evidence that would lead one to reasonably conclude
that this second offer was any more permanent than the first.

The judge also relies on the fact that “after October 14, Ratliff, who seems
to have been the catalyst for all of the problems at the mine, had
resigned.” Id. at
700-01. While this may be an appropriate factor to consider in making a
determination as to whether a permanent job offer is suitable, it does
not transform a temporary offer into a permanent one.

In any event, regardless of whether Osborne intended to offer a
permanent, as opposed to a temporary job, it is unclear whether the
miners would have any reason to think something other than
temporary reinstatement was being offered. The offer at issue (the
one after the second firing), was apparently made on October 22 (27
FMSHRC at 692, 699), the same day the Secretary filed a Motion to Enforce
Order to Temporarily Reinstatement Wendell McClain, Gary Conway and Wade
Damron. Docket Nos. KENT 2005-02-D: KENT 2005-03-D; KENT 2005-04-D. The
Secretary also filed an Application for Temporary Reinstatement for Coy
McClain on that day. 27 FMSHRC at 692. Why should an offer to return the
miners to work that day be viewed as anything more than an effort to
comply with the judge’s order
requiring only temporary reinstatement? Why is it reasonable to
conclude, without compelling evidence in support, that an operator who
fired miners on two occasions in violation of section 105(c), and who, in
between those firings illegally reduced their wages, was now offering to
take action above and beyond what was required under the statute? Because
the judge failed to address these key questions, I cannot affirm his
decision. I would remand the case to him so that he could take these
issues into account in deciding whether the job offer was temporary or
permanent.

On remand, I would also ask the judge, in making a finding as to whether
the offers were for temporary or permanent employment, to review the
scant record testimony on this issue, including the testimony from
Stanley Osborne (the only evidence relied on by my colleagues to support
their finding that the offers were unconditional) wherein he states “I didn’t temporarily give them a job. I
would have given them a job . . . .” Slip op. at 10 (quoting Tr.
532);[1] see
also Tr. 394. On the other hand, I would also ask the judge to
consider Osborne’s
acknowledgment that before he made the job offers at issue, counsel for
the Secretary had informed him that as part of the temporary
reinstatement, he had to “put
those four people back to work.” Tr. 527.

Apparently, my colleagues believe that, when ascertaining whether an
operator’s job offer is “suitable,” it does not matter whether the
offer is for temporary or permanent employment. Slip op. at 9-10.
According to the majority, whenever an operator offers immediate
reinstatement following Commission agreement that a discrimination
complaint is not frivolously brought, that reinstatement “should be regarded as unconditional
unless its terms expressly indicate otherwise.” Id. at 9. Put another way,
my colleagues have deemed a job offer issued pursuant to the
Commission’s temporary
reinstatement proceedings to be the equivalent of a permanent job offer.
Such a ruling defies logic as well as the ordinary meaning of the term
temporary reinstatement.

The majority relies on the language of section 105(c)(2) of the Mine Act,
30 U.S.C.
§ 815(c)(2), which it
contends does not distinguish between “the immediate reinstatement,” that the judge must order if he or
she affirms the Secretary’s
determination that a discrimination complaint “is not frivolously brought,” and the reinstatement ordered by
that judge following a hearing and a determination that a violation of
section 105(c) occurred.[2] Slip op. at 9. It points out that if the judge
ultimately upholds the miner’s
section 105(c) complaint, the previously ordered immediate reinstatement
becomes permanent in nature. Id. Because we do not know at the
outset whether the immediate reinstatement will ultimately prove to be of
a temporary or permanent nature, my colleagues conclude that this offer
must be deemed unconditional unless its terms expressly indicate the
contrary. Id.[3]

I disagree that the plain language of section 105(c) leads to the
conclusion that offers of temporary reinstatement are unconditional
offers to return to work. Section 105(c)(2) of the Mine Act provides that
when a miner files a discrimination complaint deemed not frivolous, the
Commission “shall order the
immediate reinstatement of the miner pending final order on the
complaint.” 30 U.S.C. § 815(c)(2) (emphasis added). In
contrast, when the miner ultimately prevails on the complaint, the
Commission is authorized to order whatever relief the Commission deems
appropriate including “the
rehiring or reinstatement of the miner to his former position, with back
pay and interest.” Id.
There is no conditional language regarding the pendency of this
reinstatement. Thus, the drafters of the Mine Act clearly recognized the
important difference between these two concepts, a difference that for
some reason my colleagues are attempting to blur.

Although the majority acknowledges that it is the operator who bears the
burden of proof with respect to willful loss of earnings, slip op. at 7
(citing Metric Constructors, Inc., 6 FMSHRC 226, 233 (Feb. 1984),
aff’d, 766
F.2d 469 (11th Cir. 1985)), its analysis turns this burden upside down.
In effect, the majority has created a presumption that any job offer
rendered by an operator is unconditional, and therefore cuts off a back
pay award, unless the operator has taken care to clearly indicate that it
is conditional.[4]
This is troubling because it significantly reduces the operator’s burden of proof in establishing a
willful loss of earnings. It is especially worrisome in a context such as
the one presented in this case, where an offer of employment is made at
the same time that the Secretary seeks a temporary reinstatement order
from the judge. Why an operator’s job offer at this juncture should
be presumed unconditional (and permanent) is simply not explained by the
majority.

My colleagues are correct, however, that until a judge issues a ruling on
the validity of the discrimination complaint, it is impossible to know
whether the “immediate” reinstatement is temporary or
permanent. Slip op. at 9. That is precisely why a rigid rule truncating a
miner’s back pay recovery if he
or she refuses temporary reinstatement is ill-founded: in a practical,
rather than a merely theoretical world, a miner who has found alternative
employment may be reluctant to discard it for a temporary job with a
former employer, because at the time of the offer it is impossible to
know whether the temporary job will, in fact, become permanent. Giving up
steady, permanent employment and job security for a temporary job that
may or may not become permanent after a period of litigation provides
little solace for a miner. I doubt that the drafters of the Mine Act
contemplated that a miner bringing a discrimination claim would be forced
to gamble on his or her chances of litigation success in order to
preserve back pay rights. fails to cite one Commission case directly in
support of the novel principle that a refusal of a temporary job offer
(which they consider to be “unconditional”) automatically tolls a back pay
award. The Commission has made it emphatically clear that a miner is not
required to seek temporary reinstatement in the first place in order to
mitigate his or her damages. See Sec’y of Labor on behalf of
Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126, 144 (Feb.
1982);Sec’y of
Labor on behalf of Bowling v. Mountain Top Trucking Co., 21 FMSHRC
265, 284 (Mar. 1999). If a miner cannot be penalized for failing to seek
temporary reinstatement in the first instance, why should he or she
automatically suffer a reduction in back pay for failing to accept a
subsequent offer of temporary reinstatement?[5]

Furthermore, a holding that a refusal to accept a temporary job always
extinguishes a miner’s right to
back pay directly contravenes well-established case law under the
National Labor Relations Act.[6] For example, in Oil, Chemical and Atomic
Workers International Union v. NLRB, 547 F.2d 598 (D.C. Cir.
1976), the Court held that a willful loss of earnings was not incurred by
workers’ rejection of an
employer’s offer of temporary
reinstatement. 547 F.2d at 604.[7] Although the Court acknowledged that an “unreasonable rejection of a valid,
interim offer might in some circumstances constitute a willful loss of
earnings,” it emphasized that
the purpose of section 10(j), the provision of the National Labor
Relations Act providing “appropriate temporary relief,” 29 U.S.C. § 160(j) (2004), “might be undercut if a discharged
employee’s refusal of an offer
of temporary reinstatement is found to constitute a willful loss of
earnings.” 547 F.2d at 604 n.7;
see also Morvay v. Maghielse Tool and Die Co., 708 F.2d
229, 232 (6th Cir. 1983) (“an
offer is insufficient to terminate back pay liability . . . if the job
which [an employee] is offered is temporary”).

As the foregoing discussion illustrates, both the language of the Mine
Act and cogent policy considerations require the judge in this case to
determine whether Osborne’s
offers were for temporary or permanent reinstatement. But the judge’s inquiry should not necessarily end
there. Granted, if he were to conclude that the offers were for permanent
employment, then his work would be completed, as his finding that the
offers were “suitable” would be an appropriate one in this
case. However, if he were to determine that the offers were only for
temporary reinstatement, I would instruct him to take into account
additional factors in deciding if the refusal of the temporary jobs
constituted a failure on the part of the miners to mitigate their
damages.[8] This
could include the fact that they had other jobs at the time of the
offers, and the rate of pay at those jobs compared to their salary at
Misty Mountain. See, e.g., OCAW, 547 F.2d at 604-05. If the judge
were to determine that the miners did not fail to mitigate their damages,
I would instruct him to recalculate their backpay awards accordingly.

In sum, for the foregoing reasons I would vacate the judge’s decision and remand the case to
the judge for a finding of whether a suitable job offer was made, and if
necessary, for a recalculation of the back pay award.

Mary Lu Jordan, Commissioner

Distribution

Simon Ratliff

P.O. Box 343

Lookout, KY 41542

Wes Addington, Esq.

Appalachian Citizens Law Center

207 West Court Street, Suite 202

Prestonsburg, KY 41653-7725

Stanley Osborne, Vice President

Misty Mountain Mining, Inc.

P.O. Box 165

Jonancy, KY 41538

Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209

Administrative Law Judge T. Todd Hodgdon

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021

[1] Section 105(c)(1)
of the Mine Act, 30 U.S.C. § 815(c)(1), provides in
pertinent part:

No person shall discharge or in any manner discriminate against . . . or
otherwise interfere with the exercise of the statutory rights of any
miner . . . because such miner . . . has filed or made a complaint under
or related to this Act, including a complaint notifying the operator or
the operator’s agent . . . of
an alleged danger or safety or health violation in a coal or other mine .
. . .

[2] Both mine owner
Stanley Osborne and mine superintendent Simon Ratliff were individually
named in the complaint as “persons” under the Mine Act, rather than
charged as agents under section 110(c), 30 U.S.C. § 820(c).

[3] At that time, no
temporary reinstatement application was filed on behalf of Coy McClain
because he had returned to work. See Docket No. KENT 2005-28-D.

[4] Subsequently, the
Secretary moved to dismiss Coy McClain’s temporary reinstatement
application because he was working at another mine. 27 FMSHRC at 692;
Order of Dismissal (Dec. 6, 2004), Docket No. KENT 2005-28.

[5] The judge noted
that Osborne’s conversations
with the MSHA office contained hearsay but that they were not disputed by
the other parties. Osborne was not cross examined about them, and they
were corroborated by MSHA investigator Hamilton. 27 FMSHRC at 700.

[6] The judge stated
the following with regard to the credibility of the witnesses:

On the whole, I found the main protagonists in this episode, Simon
Ratliff, the McClains, Conway and Damron to be of doubtful credibility.
Not only did they have obvious interests in the outcome of these cases,
but their testimony, in addition to the specific instances already noted,
was characterized by selective memory, inconsistencies and self-serving
statements. I have tried to rely on their testimony only when it was
supported or corroborated by other evidence.

27 FMSHRC at 705.

[7] There has been no
appeal from the judge’s
determination that the complainants were discharged twice as a result of
their protected activity in violation of the Mine Act.

[8] The judge awarded
back pay to the complainants in the following amounts: Gary Conway B $2,660; Wade Damron B $2,660; Coy McClain B $238; and Wendell McClain B $1,860. 27 FMSHRC at 701-03, 707.

[9] Both Osborne and
Ratliff timely filed briefs with the Commission. However, to the extent
that their briefs addressed issues not raised in the PDR, the Commission
did not consider them in deciding this case. See Sec’y of Labor on behalf of
Bowling v. Mountain Top Trucking Co., Inc., 21 FMSHRC 265, 284-85
n.25 (Mar. 1999) (“because
these contentions were not raised by [a timely-filed petition for
review], were not ordered by the Commission sua sponte for review, and
attack the judge’s orders . . .
, they are not properly before the Commission.”). Further, both Osborne and Ratliff
refer to evidence that is not part of the record, including the recanting
of testimony by a witness after trial and the results of a polygraph
test, attached to Ratliff’s
brief. Because this evidence is not part of the record on review, it
cannot be considered by the Commission. Id.; see 30 U.S.C.
823(d)(2)(A)(iii) (“no
assignment of error by any party shall rely on any question of fact or
law upon which the administrative law judge had not been afforded an
opportunity to pass.”). In
addition, Ratliff filed two briefs with the Commission well after the
expiration date of the briefing period, which ended on March 27, 2006.
Briefing Order (Jan. 5, 2006). Those briefs have not been considered by
the Commission.

[10] The
complainants designated their petition for discretionary review as their
brief to the Commission. Letter (Feb. 3, 2006).

[11] Under section
105(c)(2), upon investigating a miner’s complaint of discriminatory
discharge and finding that the complaint has not been “frivolously brought,” the Secretary must apply to the
Commission for an order for “the immediate reinstatement of the
miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2). The Commission is
required to grant the application if it finds the statutory standard has
been met. Id.; see generallySec’y of Labor on behalf of
Ondreako v. Kennecott Utah Copper Corp., 25 FMSHRC 585, 586-87 (Oct.
2003).

[12] Counsel for
the Secretary initially objected to testimony regarding the reinstatement
offers because, as a matter of law, the complainants could refuse an
offer of temporary reinstatement and, therefore, the testimony was
irrelevant. Tr. 401-04 (Hamilton). Subsequently, counsel further objected
to testimony regarding the reinstatement offers because they were part of
settlement discussions. Tr. 528 (Osborne). The judge overruled the
objections.

[13] The dissenting
opinion rests on the mistaken premise that the judge did not make a
finding of suitability regarding Osborne’s reinstatement offer. However, the
judge clearly did so, noting in particular that the reinstatement offers
were made to settle the Secretary’s reinstatement applications. 27
FMSHRC at 700. Thus, although our dissenting colleague would have the
judge further review the record testimony on remand to determine whether
the offers were for “temporary” or “permanent” reinstatement, slip op. at 14, such
a remand would be groundless and unnecessary. Moreover, even if one could
conclude that the judge had not made such a suitability finding,
Osborne’s testimony is the only
probative evidence on this issue, and it can only be read to support the
conclusion that he made an unconditional offer of reemployment.

[14] If events
indicate that the offer of reinstatement is not bona fide, e.g., the
complainant is treated adversely after reinstatement, the remedy is for
the Secretary to seek additional relief from the judge.

[15] The
dissent’s transformation of
Osborne’s unconditional offer
of work to a conditional “temporary job offer,” slip op. at 16-17, is without basis
in the record and appears to be a thinly veiled attempt to apply the
holdings of cases decided under the National Labor Relations Act (“NLRA”). See slip op. at 17.
However, those cases are readily distinguishable because there is no
provision in the NLRA comparable to the immediate reinstatement provision
in section 105(c)(2) of the Mine Act.

[16] When reviewing
an administrative law judge’s
factual determinations, the Commission is bound by the terms of the Mine
Act to apply the substantial evidence test. 30 U.S.C.

§ 823(d)(2)(A)(ii)(I).
“Substantial evidence” means “>such relevant evidence as a
reasonable 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)).

[17] The Secretary disagrees with the complainants that the
reinstatement offer was not effectively communicated. See S. Br.
17-19 and PDR at 15-16. More specifically, the complainants assert that
Osborne never told them directly that they could come back to work. We
agree with the Secretary’s position that
there is nothing inherently improper with an operator’s
conveying a reinstatement offer through MSHA representatives.
Indeed, in this case it appears that Osborne believed that
he was required to communicate with the complainants through MSHA. Tr.
529.

[18] The judge
noted that Coy McClain “professed not to recall this
incident and . . . was very evasive when questioned about it.” Id. (citing Tr. 173-75).
However, the judge indicated that MSHA investigator Hamilton testified
that Osborne had told him that Coy had quit to take a higher paying job
(Tr. 397-98), and the payroll records in evidence showed that Coy was
making more during his employment at McPeaks Energy during the period of
October 17 to November 12. 27 FMSHRC at 700; Gov’t Ex. 24.

[1] The fact that
the majority relies on this testimony implies that it believes that, in
calculating a back pay award, a judge should take into account whether a
job offered to a miner was for temporary or permanent work. Otherwise,
this testimony would not be relevant to the majority’s determination of whether the job
offer was “suitable.” But see slip op. at 14-15,
infra.

[2] The majority
thus appears to disregard the Commission’s own procedural rules, which
explicitly recognize temporary reinstatement. Comm Proc. Rule 45, 29
C.F.R.

§ 2700.45.

[3] My colleagues
correctly rely on Bryant v. Dingess Mine Service, Inc., 10 FMSHRC
1173 (Sept. 1988), for the proposition that a bona fide offer of
reinstatement tolls the accumulation of back pay. Slip op. at 8. Notably,
though, in that case, the Commission, in its discussion of “unconditional” and “bona fide” job offers, was referring to a
permanent job rather than a job of shorter duration. This is demonstrated
by its reference to an employment law treatise (10 FMSHRC at 1180), in
which the authors stated that:

termination of the back pay period normally occurs when the discriminatee
is unconditionally and in a bona fide fashion offered the employment,
reinstatement, or promotion at issue. This can occur pursuant to a
final court decree or pursuant to a voluntary bona fide offer of
employment, reinstatement, or promotion to the position at issue.

B. Schiei and P. Grossman, Employment Discrimination Law 1432 (2d
ed. 1983) (emphasis added) (footnotes omitted).

[4] The majority
dismisses the harsh consequences that could result from its presumption
that offers are unconditional by stating that if an offer is in fact not
bona fide, the Secretary may request relief from the judge. Slip op.
n.14. This affords small comfort to a minor who has quit a job in
reliance on an operator’s
presumably unconditional offer.

[5] My colleagues
assert that Dunmire and Bowling do not support the position
that “an offer of reemployment,
made pursuant to a temporary reinstatement application, cannot constitute
an unconditional offer to return to work.” Slip op. at 10. It is true that
this precise question was not at issue in these cases. However, in both
cases the Commission held that failure to seek a temporary job does not
affect a miner’s back pay
award. The natural extension of this logic is that failure to accept a
temporary job does not necessarily affect a miner’s back pay award.

[6] As the
Commission has acknowledged, “[b]ecause the Mine Act’s provisions for remedying
discrimination are modeled largely upon the National Labor Relations Act,
[the Commission] ha[s] sought guidance from settled cases implementing
that Act in fashioning the contours within which a judge may exercise his
discretion in awarding back pay.” Metric, 6 FMSHRC at 231.

[7] The Court also
took into account factors involving salary and job location. 547 F.2d at
604.

[8] The factual
analysis on remand would be different for Wendell McClain than for the
other three miners, because he returned to the mine to work on October 25
until it closed on November 13, but did not report to work at a different
Misty Mountain mine when he was subsequently offered a job there. 27
FMSHRC at 699.