Secretary of Labor on behalf of Reuben Shemwell v. Armstrong Coal Company, Inc. and Armstrong Fabricators, Inc.

Plain-English summary

Welder Reuben Shemwell alleged that affiliated Armstrong companies fired him after he repeatedly complained about respirator protection from welding fumes. Judge Jerold Feldman found the discrimination complaint was not frivolously brought because protected activity was sufficiently alleged, management knowledge could not be avoided through divided corporate functions, and the five-month timing supported the preliminary inference. He treated Armstrong Coal and Armstrong Fabricators as proper parties based on their interrelated operations, common management, shared address, and ability to provide relief. He also declined to dismiss the complaint merely because it was filed about four months late, finding no shown prejudice at this preliminary stage. The Judge ordered immediate temporary reinstatement, but the Commission later vacated this summary ruling because the operators had requested a hearing. After that hearing, a later ALJ order again required reinstatement and the Commission affirmed it.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: Summary decision and temporary reinstatement were granted against both Armstrong entities, with reinstatement due by April 25, 2012.
• Subsequent review: The Commission vacated this order and remanded for a hearing in kent-2012-655-d-commission-2.
• Key point: At the preliminary stage, interrelated corporate operations and a nonfrivolous link between safety complaints and discharge can support temporary relief, but a timely hearing request must be honored.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

Washington, DC 20001

April 20, 2012

SECRETARY OF LABOR,   MSHA 

on behalf of REUBEN SHEMWELL, 

Complainant 

v.

ARMSTRONG COAL COMPANY, INC.,

and 

ARMSTRONG FABRICATORS INC., 

Respondents

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TEMPORARY REINSTATEMENT

PROCEEDING

Docket No. KENT 2012-655-D

MADI CD 2012-08

Parkway Mine Surface Facilities

Mine ID: 15-19356

ORDER GRANTING SECRETARY’S

MOTION FOR SUMMARY DECISION

AND

ORDER GRANTING AMENDED APPLICATION

FOR TEMPORARY REINSTATEMENT

Before: Judge Feldman

This temporary reinstatement proceeding arises under section 105(c)(2) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (“Act” or “Mine Act”). Under
section 105(c)(2) of the Mine Act, “if the Secretary finds that [a discrimination] complaint was not frivolously brought, the Commission, on an expedited basis upon application of the
Secretary, shall order the reinstatement of the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2). The Commission has repeatedly recognized that the “scope of a
temporary reinstatement hearing is narrow, being limited to a determination by the judge as to whether a miner’s discrimination complaint is frivolously brought.” See 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).

I. Background

Before me is the Secretary’s March 21, 2012, motion for summary decision seeking the temporary reinstatement of Reuben Shemwell by Armstrong Coal Company, Inc.
(“Armstrong Coal Company”). Shemwell was employed as a welder at Armstrong Coal
Company’s Parkway Mine Surface Facilities located in Muhlenberg County, Kentucky.
Shemwell’s employment was terminated on September 14, 2011. The Secretary alleges that
Shemwell’s dismissal was motivated by his repeated complaints concerning the need for
respirator protection from fumes that were generated during the welding process. Respirators
were ultimately provided to personnel in April 2011.

Armstrong Coal Company opposed the Secretary’s motion on March 27, 2012. In its
opposition, Armstrong Coal Company argued, inter alia, that although Shemwell was working as
a welder at the Parkway Mine Surface Facilities at the time of the September 14, 2011, discharge,
he was employed by a business entity known as Armstrong Fabricators, Inc. (“Armstrong
Fabricators”). Nevertheless, Armstrong Coal Company asserted Shemwell was discharged on
September 14, 2011, for excessive personal cell phone use during working hours. Significantly,
Armstrong Coal Company does not specifically deny that Shemwell communicated protected
safety and health related complaints concerning the lack of respirator protection.

Armstrong Coal Company’s March 27, 2012, opposition primarily is based on its
assertion that it is not a proper party to this proceeding because, although Shemwell was working as a welder at its surface facilities at the time of the September 14, 2011, discharge,
Shemwell was employed by Armstrong Fabricators. Armstrong Coal Company characterizes
Armstrong Fabricators as a “a sister company.” Resp. Initial Opp. at 7.

Given these representations, during a March 28, 2012, telephone conference, the
Secretary was given the opportunity to file an amended application for temporary reinstatement
adding Armstrong Fabricators as a party to this proceeding. Armstrong Coal Company and
Armstrong Fabricators are represented by the same counsel.

During the telephone conference,
counsel for these entities represented that they would not object, on procedural grounds to the
Secretary’s filing of an amended reinstatement application. Accordingly the Secretary’s request
for leave to file an amended application for temporary reinstatement HAS BEEN GRANTED.

II. Proper Parties in this Matter

On April 2, 2012, the Secretary filed her motion to amend her temporary reinstatement
application by seeking to add Armstrong Fabricators as a party. At the outset, I note that it

is not disputed that Armstrong Fabricators is a proper party to this proceeding. In this regard,
Oscar Ramsey, Armstrong Fabricators’ shop manager, admits Reuben Shemwell was employed
by Armstrong Fabricators until his September 14, 2011, termination. Resp. Initial Opp., Ex. 3.
The Secretary argues that Armstrong Coal Company should be estopped from denying that it
employed Shemwell, or, that Armstrong Coal Company and Armstrong Fabricators are “joint
employers” named as proper parties in this proceeding. Sec’y mem. in support of amend. app., at
2-5. In support of the Secretary’s amended application, the Secretary notes that Shemwell’s
September 14, 2011, termination letter, which was written on Armstrong Coal Company
stationery, states:

Reuben [W. Shemwell],

This letter is to inform you that your employment with Armstrong Coal Company
has been terminated effective 9/14/11.

Respectfully,

[/s]

Gary Phillips

Director of Human Resources [for Armstrong Coal Company]

Sec’y Mot. for Summ. Dec., Ex. A; Sec’y Amended App., Ex. A (emphasis added).

The Secretary’s amended application also relies on several additional written statements
by Phillips stating that Shemwell was an employee of Armstrong Coal Company. In a letter to Jonathan S. King dated September 19, 2011, and, in responses to the Commonwealth of
Kentucky’s Unemployment Insurance Office, dated October 4, 2011, Phillips represented that
Shemwell was employed by Armstrong Coal Company. See Sec’y Amended App., Exs. B and C.

Armstrong Coal Company filed a supplemental response on April 12, 2012, again
opposing its inclusion as a party. Armstrong Coal Company’s opposition is primarily based on
Shemwell’s pay stubs and 2011 W-2 tax forms that reflect his employer was Armstrong
Fabricators, Inc., at the address of 407 Brown Road, Madisonville, Kentucky 42431. It is
noteworthy that the address of Armstrong Fabricators is the same as the address for Armstrong
Coal Company as reflected in its official correspondence letterhead. Sec’y Amended App., Ex. A.
 Moreover, Armstrong Coal Company’s attempt to extricate itself at this early preliminary stage despite its status as an admitted “sister corporation” of Armstrong Fabricators
is unavailing. The Commission has addressed the issue of when a parent corporation and its
subsidiary corporations constitute a “unitary operator” subjecting the affiliated corporations to
liability under the Mine Act. Berwind, 21 FMSHRC 1284, 1316-17 (Dec. 1999). In Berwind,
the Commission stated:

Accordingly, we will consider the following factors in determining whether
entities will be treated as a unitary operator for purposes of the Mine Act: (1)
interrelation of operations, (2) common management, (3) centralized control over
mine health and safety, and (4) common ownership. To demonstrate unitary
operator status, not every factor need be present, and no particular factor is
controlling. Instead, we will weigh the totality of the circumstances to determine
whether one corporate entity exercised such pervasive control over the other that
the two entities should be treated as one.

21 FMSHRC at 1317.

During the March 28, 2012, telephone conference, Respondents’ counsel represented that
Armstrong Energy, Inc., is the parent company of “sister companies” Armstrong Coal Company
and Armstrong Fabricators. Thus, the appearance of interrelated ownership is sufficient in light
of the Secretary’s minimal burden of proof at this early stage of the proceeding to satisfy the
fourth element of Berwind. The fact that “sister corporation” Armstrong Fabricators was
providing services at Armstrong Coal Company’s surface facilities, and that these affiliated
corporations share the same business address, provide further evidence of common ownership, as well as an interrelation of operations satisfying the first Berwind criterion. Additionally, the
notification of Shemwell’s discharge by the Director of Human Resources for Armstrong Coal
Company demonstrates common mine management. Phillips’ role also reflects centralized
control over personnel matters that could impact mine safety and health demonstrating the
second and third indicia for a “unitary operator” enunciated in Berwind.

Furthermore, with respect to “unitary operator” status, it is significant that Armstrong
Fabricators has failed to comply with the reporting requirements of 30 C.F.R. Part 41 of the
Secretary’s regulations because it has not registered as a mine operator. Sec’y mem. in support of amend. app., at 1 n. 1. Thus, the only entity of the subject affiliated corporations that
acquiesced to Mine Act jurisdiction was Armstrong Coal Company by virtue of its Mine ID No.
of 15-19356. Under the “alter ego” theory of corporation law, a business entity cannot seek to
escape liability arising out of the operation of one business entity that was conducted for the
benefit of the affiliated enterprise. Berwind, 21 FMSHRC at 1314-15. Simply put, Armstrong
Coal Company may not now escape exposure to liability for mining related operations at its
Parkway Mine Surface Facilities by seeking to shift liability to an affiliated corporation when
Armstrong Coal Company was the only relevant authorized mine operator at the time of
Shemwell’s discharge.

In addition, it should be noted parenthetically that corporations may be liable, as
successors, for relief under section 105(c)(2) of the Mine Act even if the management and
ownership of the corporation is different and distinct from that of the mine operator that
discriminated. Clifford Meek v. Essroc Corp., 15 FMSHRC 606, 609 (Apr. 1993). In
discrimination cases involving successorship, the Commission looks to such factors as notice of the alleged discriminatory action, the ability of the successor to provide relief, whether the
substitute employer uses the same mine site with a similar workforce, and, whether the successor
company has the same management (human resource) personnel. Id. at 610 (citations omitted).

All of these indicia are present in this case. It is undisputed that Armstrong Coal
Company had notice of the alleged underlying facts that support the application for temporary
reinstatement by virtue of the termination letter and the information provided to the Kentucky
State Unemployment Insurance Office. It obviously has the ability to provide reinstatement of
Shemwell to his former position as a welder/laborer given its continuing mining operations.
With regard to the remaining issue of successorship, there is a commonality of employment
location and management, as reflected by the active participation of Armstrong Coal Company’s
Human Resources Director in the decision to terminate Shemwell.

The decision to hold Armstrong Coal Company and Armstrong Fabricators subject to
joint and several liability for relief under the antidiscrimination provisions of section 105(c)(2) of the Mine Act is essential at this stage of the proceeding. The Secretary asserts that Armstrong
Fabricators is not registered to do business in the State of Kentucky. Sec’y mem. in support of
amend. app., at 1 n. 1. Regardless of whether Armstrong Fabricators is authorized to operate in
Kentucky, Mine Safety and Health Administration records reflect that Armstrong Fabricators has failed to comply with the reporting requirements in 30 C.F.R. § 41.10 of the Secretary’s
regulations because it has not registered as an operator performing services at a mine. Id. Also,
it is significant that counsel represented during the March 28, 2012, telephone conference that
Armstrong Fabricators is not actively engaged in business, and, that it may not have the ability

to reinstate Shemwell.

It is instructive that the legislative history of the Mine Act reflects Congress’ concern that
effective relief must be afforded to victims of discrimination. The Commission has noted this
congressional concern:

It is the Committee’s intention that the Secretary propose, and that the
Commission require, all relief that is necessary to make the complaining party
whole and to remove the deleterious effects of the discriminatory conduct
including, but not limited to[,] reinstatement with full seniority rights, back-pay
with interest, and recompense for any special damages sustained as a result of the
discrimination. The specified relief is only illustrative.

Consolidation Coal, 20 FMSHRC 1293, 1307 (Dec. 1998) citing S. Rep. No. 95-181, at 37 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 625 (1978).

Thus, the Commission possesses broad remedial power in fashioning relief in
discrimination cases that is appropriate for varied and diverse circumstances. See Consolidation
Coal, 20 FMSHRC at 1306-07. This is especially true in this situation where only one of several
relevant business entities may be capable of providing such relief.

It is not the judge’s duty to resolve real party-in-interest issues on the merits at this
preliminary stage of a temporary reinstatement proceeding. Sec’y o/b/o Albu v. Chicopee Coal,
21 FMSHRC 717, 719 (July 1999). Given the Commission’s broad remedial authority, it is clear
that the Secretary’s assertion that Armstrong Coal Company is a proper party to this proceeding
as an affiliated corporate entity is not frivolous. Armstrong Coal Company has the ability to
temporarily reinstate Shemwell. Armstrong Coal Company may contest its party status at a
hearing on the merits if the Secretary elects to bring a discrimination case on behalf of Shemwell.
Consequently, the Secretary’s motion to amend its application for temporary reinstatement to
include both Armstrong Coal Company and Armstrong Fabricators as parties to this proceeding
IS GRANTED.

III. Timeliness

Section 105(c)(2) of the Mine Act provides that a miner alleging to be the victim of
discriminatory discharge “. . . may, within 60 days after such violation occurs, file a complaint
with the Secretary alleging such discrimination.” 30 U.S.C. § 815(c)(2). Armstrong Coal
Company asserts that Shemwell’s complaint must be dismissed as untimely because it was filed
on January 23, 2012, a period of 131 days after his September 2011 termination, which I construe
as a motion to dismiss. Resp. Initial Opp. at 8.

Dismissal is a harsh remedy. Moreover, Commission case law is clear that the 60-day
period for filing a discrimination complaint under section 105(c)(2) is not jurisdictional. Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), aff’d mem, 750 F.2d 1093
(D.C. Cir. 1984). An analysis of the facts “on a case-by-case basis, taking into account the
unique circumstances of each situation” is required in order to determine whether a miner’s late
filing should be excused. Id. For example, “a miner’s genuine ignorance of applicable time
limits may excuse a late filed discrimination complaint.” Gary D. Morgan v. Arch of Illinois, 21 FMSHRC 1381, 1386 (Dec. 1999) citing Schulte v. Lizza Indus., Inc., 6 FMSHRC 8, 13

(Jan. 1984).

Absent a showing of prejudice, a reasonable delay in filing a discrimination complaint
should not disqualify a miner from exercising his statutory right to seek relief from adverse
action that he believes was motivated by his protected activity. An approximate four month
filing delay does not significantly undermine the recollection of witnesses, or otherwise interfere
with the Respondents’ ability to defend themselves. Consequently, a reasonable filing delay,
absent prejudice, does not confer rights or defenses on an opposing party. Accordingly, the
Respondent’s request to dismiss this matter because the underlying discrimination complaint was
not filed in a timely manner IS DENIED.

IV. Not Frivolously Brought Standard

While the Secretary is not required to present a prima facie case in a temporary
reinstatement proceeding, it is helpful to review the ultimate proof to support a discrimination
claim to determine whether the nonfrivolous test in this matter has been met. In order to
demonstrate a prima facie case of discrimination under section 105(c) of the Act, the Secretary
must establish that Shemwell: (1) engaged in protected activity and (2) that the adverse action
complained of, in this case Shemwell’s termination, 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 (3rd Cir. 1981); Sec’y of Labor on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981).

Direct evidence of a discriminatory motive is rarely encountered. 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). Rather the Commission has identified several
circumstantial indicia of discriminatory intent, namely: (i) hostility or animus toward the
protected activity; (ii) knowledge of the protected activity; and (iii) coincidence in time between
the protected activity and adverse action. Id.

The Respondents, in essence, assert that Shemwell’s termination was motivated solely by his unauthorized cell phone use, and, that his discharge was not motivated, in any part, by
protected activity. The Secretary contends that Shemwell’s termination was motivated by his
repeated requests for respirator protection. As previously noted, given the narrow scope of a
temporary reinstatement proceeding, it is premature to resolve issues regarding the underlying
motivation for Shemwell’s termination at this preliminary stage of the proceeding. Chicopee Coal, supra, at 21 FMSHRC 719.

It is sufficient that Armstrong Coal Company has directly, and indirectly, acknowledged
Shemwell’s protected activity. As a threshold matter, during the March 13, 2012, conference call, counsel for Armstrong Coal Company acknowledged Shemwell’s complaints concerning
respirators. Moreover, in its opposition to the Secretary’s motion for summary decision,
Armstrong Coal Company states “[it] assumes arguendo for the purposes of the Secretary’s
present Motion [for Summary Decision] that Shemwell has engaged in protected activity.” Resp.
Initial Opp. at 11. However Armstrong Coal Company reserved the right to later dispute any
allegation that Shemwell in fact engaged in protected activity. Id. at n. 5.  

Turning to the Chacon indicia for discriminatory intent, a temporary reinstatement
proceeding also is not the appropriate vehicle for resolving credibility conflicts. Chicopee Coal,
supra, at 21 FMSHRC 719. Thus as Armstrong Coal Company apparently recognizes, it is
appropriate to assume for the purposes of this proceeding that Shemwell engaged in protected
activity culminating in the provision of respirators in April 2011, particularly in the absence of an explicit denial that protected activity occurred. With respect to coincidence in time, the
approximate five month period between the asserted April 2011 response to Shemwell’s
complaints and the September 2011 termination is of sufficiently short duration to satisfy the
Secretary’s not frivolously brought evidentiary burden. 

Even if Shemwell engaged in protected activity, Armstrong Coal contends that mine management personnel who participated in the decision to terminate Shemwell were
unaware of such activity. The Commission has long held that “[a]n operator may not escape
responsibility by pleading ignorance due to the division of company personnel functions.”
Jayson Turner v. Nat’l Cement Co. of California, 33 FMSHRC 1059, 1067 (May 2011)

citing Metric Constructors, Inc., 6 FMSHRC 226, 230 n. 4 (Feb. 1984). In any event, such a defense cannot be relied upon to defeat reinstatement during this preliminary proceeding.

Finally, the ultimate issue of whether there was hostility or animus towards Shemwell for
his purported protected activity must await a full evidentiary hearing on the merits of the
discrimination complaint. At this time the Secretary continues to investigate.

ORDER

Disposition by summary decision is appropriate provided (1) the entire record establishes
that there is no genuine issue as to any material fact; and (2) the moving party is entitled to
summary decision as a matter of law. 29 C.F.R. § 2700.67(b). See Missouri Gravel Co., 3
FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). To
prevail in this preliminary matter, the Secretary must only demonstrate that the application for
temporary reinstatement is not frivolous. As discussed above, the record, consisting of the
appearance of interrelated corporate ownership; protected activity uncontested for the purposes of
this proceeding; and coincidence in time between the reported protected activity and Shemwell’s
termination establishes that the application for temporary reinstatement has not been frivolously
brought. Accordingly, IT IS ORDERED that the Secretary’s amended motion for summary
decision with respect to her application for temporary reinstatement IS GRANTED. 

Consequently, IT IS FURTHER ORDERED that Armstrong Coal Company, Inc., and/or Armstrong Fabricators, Inc., immediately reinstate Reuben Shemwell, no later than
Wednesday, April 25, 2012, to the position he immediately held prior to his September 14,
2011, termination, or, to a similar position as a laborer at the same rate of pay and benefits, and
with the same or equivalent duties assigned to him.            

/s/ Jerold Feldman

Jerold Feldman

Administrative Law Judge

Distribution: (Electronic and Certified Mail)

Matt S. Shepherd, Esq., U.S. Department of Labor, Office of the Solicitor,

618 Church Street, Suite 230, Nashville, TN 37219-2440

Adam Spease, Esq. and Adam Scutchfield, Esq., Miller Wells, PLLC, 710 West Main Street,

4th Floor, Louisville, KY 40202 - Counsel for Armstrong Coal Company and Armstrong
Fabricators Inc.

Dan Zuluski, Esq., Armstrong Coal Company, Inc., 407 Brown Road, Madisonville, KY 42431

/jel