Secretary of Labor on behalf of Jeremy Coots v. Yellow Rose Coal Co., LLC

Plain-English summary

Yellow Rose Coal hired Jeremy Coots as a roof-bolter operator after its owner praised his work during an observed shift. The next day, the owner learned that Coots had filed a discrimination case against a previous employer and discharged him because he feared Coots would file a complaint against Yellow Rose. Yellow Rose did not request a hearing on the Secretary's temporary-reinstatement application. Judge William Steele found the complaint was not frivolously brought and ordered Coots immediately returned to his former job, pay, overtime, and benefits while the merits case proceeded.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: Jeremy Coots was ordered immediately temporarily reinstated with his former compensation and benefits.
• Key point: A discharge expressly tied to a miner's prior discrimination case easily clears the nonfrivolous threshold for temporary reinstatement.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

on behalf of JEREMY COOTS,

Complainant,

v.

YELLOW ROSE COAL CO., LLC,

Respondent

TEMPORARY REINSTATEMENT PROCEEDING

Docket No. KENT 2016-320-D

MSHA Case No.: BARB-CD-2016-06

Mine: No. 3

Mine ID: 15-18277

ORDER GRANTING TEMPORARY REINSTATEMENT

OF JEREMY COOTS

Before:            Judge Steele                          

Pursuant
to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Act”),
30 U.S.C. §801, et. seq., and 29 C.F.R. §2700.45, the Secretary of Labor
(“Secretary”) on April 13, 2016, filed an Application for Temporary
Reinstatement of miner Jeremy Coots (“Complainant”) to his former position with
Yellow Rose Coal Co. (“Respondent”) at Mine No. 3 pending final hearing and
disposition of the case.

According
to Commission Rule 45, a request for hearing must be filed within 10 days
following receipt of the Secretary’s application for temporary reinstatement.
29 C.F.R. §2700.45(b). By email, the Respondent’s counsel notified the court
that they would not be requesting a hearing. The Respondent has not filed a
timely Request for Hearing. For the following reasons, the temporary
reinstatement of Jeremy Coots is hereby GRANTED.

Section
105(c) of the Mine Act prohibits discrimination against miners for exercising
any protected right under the Mine Act. The purpose of the protection is to
encourage miners “to play an active part in the enforcement of the [Mine 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 a result of their participation.” S. Rep. No. 181,
95th Cong., 1 Sess. 35 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd
Sess., Legislative History of the Federal Mine Safety and Health Act of 1977,
at 623 (1978).

The
Commission’s regulations control the temporary reinstatement procedures. Once
an application for temporary reinstatement is served on the person against whom
relief is sought, that person shall notify the Chief Administrative Law Judge
or his designee within 10 calendar days whether a hearing on the application is
requested. 29 C.F.R. §2700.45(b). If no hearing is requested, the Judge
assigned to 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. Id. In the instant case, the
Respondent has not timely filed a request for hearing.

In adopting section 105(c), Congress indicated that a
complaint is not frivolously brought if it “appears
to have merit.” S. Rep. No. 181, 95th Cong.,
1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong. 2nd Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In addition
to Congress’ “appears to have merit” standard, the Commission and the courts have also equated “not frivolously brought” to “reasonable
cause to believe” and “not insubstantial.” 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, 747 & n.9 (11th Cir. 1990). The
plain language of the Act states that “if the Secretary finds that such
complaint was not frivolously brought, the Commission, on an expedited basis
upon application of the Secretary, shall order the immediate reinstatement of
the miner pending final order on the complaint.” 30 U.S.C. §815(c)(2). The
judge must determine whether the complaint of the miner “is supported by
substantial evidence and is consistent with applicable law.”[1] Sec’y of Labor on behalf
of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993).

The
Declaration of Special Investigator Kenneth McClung was filed with the
Complainant’s Application for Temporary Reinstatement asserting the following:

1.     
Prior to his
discharge on February 23, 2016, Jeromy Coots (Coots) was employed by Yellow
Rose Coal Co., LLC (Yellow Rose). Yellow Rose operates the No. 3 mine. The No.
3 mine is a "coal or other mine" as defined by Section 3(h) of the
Mine Act, 30 U.S.C. § 802(h). The No. 3 mine is located in Lejunior, Harlan
County, Kentucky.

2.     
Coots began
working for Yellow Rose on February 22, 2016. Coots worked as roof bolter
operator at the No. 3 mine.

3.     
On February
22, 2016, Coots spoke with Yellow Rose mine owner Randall Fleming (Fleming)
about a job at Yellow Rose. Fleming told Coots he had an opening for a roof
bolter and that he would observe Coots operate the roof bolting machine before
he would be hired. Fleming observed Coots operate the roof bolter and stated
that Coots was the best bolt machine operator he had seen. Coots was left
underground to work the 10 hour shift. On February 23, 2016, Fleming received
two phone calls regarding Coots. Both callers informed Fleming that Coots was
represented by attorney Tony Oppegard and that Coots had filed a lawsuit
against his previous employer, Lone Mountain. Fleming was warned to be careful
around Coots.

4.     
Coots was
terminated on February 23, 2016 by Fleming. Fleming stated that he could not
continue to employee Coots for fear that Coots would file a complaint against Yellow
Rose.

5.     
On October 7,
2014, the Secretary filed a Discrimination Complaint against Lone Mountain
Processing on behalf of Jeromy Coots. An order was issued settling the case on August
17, 2015.

6.     
Based upon my
investigation of these matters, I have concluded that Coots' complaint of
discrimination was not frivolously brought. Pursuant to 28 U.S.C. § 1746, I
declare under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct.

Based upon the affidavit of the Special Investigator and
the asserted facts therein, I find that the Secretary’s complaint was not
frivolously brought. WHEREFORE, it is hereby ORDERED that Jeremy
Coots be immediately TEMPORARILY REINSTATED to his former job at his
former rate of pay, overtime, and benefits pending final decision on the
complaint.

/s/
William Steele

William
Steele

Administrative
Law Judge

Distribution (Certified Mail):

LaTasha T. Thomas, Office of the Solicitor, US Dept. of
Labor, 618 Church Street, Suite 230, Nashville, TN 37219

Randall Fleming, 2328 Thistle Park, Lexington, KY 40509

Yellow Rose Coal Co., LLC, Mr. Randall Fleming, Owner, 1160
Jackson Drive,

Paris, TN 38242

Tony Oppegard, P. O. Box 22446, Lexington, KY 40522

Wes Addington, Esq., 317 Main Street, Whitesburg, KY 41858

/mzm

[1] “Substantial evidence” means “such
relevant evidence as a reliable 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)).