Secretary of Labor on behalf of George Rice v. Nally & Hamilton Enterprises

Plain-English summary

George Rice drove rock trucks for Nally & Hamilton Enterprises and repeatedly reported a broken air conditioner that made one truck dangerously hot. During the shift after an MSHA inspection, he also reported steering and brake problems in another truck and understood his foreman's direction to get off the hill as a discharge. Judge Thomas McCarthy found the discrimination complaint was not frivolously brought because the record supported protected safety complaints, a possible adverse action, operator knowledge, and close timing. He ordered immediate temporary reinstatement to Rice's former or a substantially equivalent position with the same pay and benefits pending a final order on the discrimination complaint. This order was later replaced by the September 26 amended order in kent-2022-0118-alj-3.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(c)(1) and 815(c)(2)
• Outcome: Rice was granted immediate temporary reinstatement; this version was later replaced by an amended order.
• Key point: Safety complaints followed in the same shift by an alleged discharge presented a non-frivolous discrimination claim sufficient for temporary reinstatement.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9900 / FAX: 202-434-9949

SECRETARY
OF LABOR

U.S. DEPARTMENT OF LABOR obo

GEORGE RICE,

Complainant

v.

NALLY
& HAMILTON ENTERPRISES,

Respondent

TEMPORARY
REINSTATEMENT

PROCEEDING

Docket
No. KENT 2022-0118

MSHA
Case No. BARB-CD-2022-03

Mine:
Meadow Branch Mine

Mine
ID: 15-19890

ORDER GRANTING
TEMPORARY REINSTATEMENT

Before:                        Judge
McCarthy

This matter is before the undersigned on the Secretary
of Labor’s Application for Temporary Reinstatement filed on behalf of miner George
Rice pursuant to section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801, et seq., as amended (“Act”), and 29 C.F.R.
§ 2700.45. The Secretary seeks an order temporarily reinstating Rice to
his former position with Nally & Hamilton Enterprises pending the investigation
and disposition of a Discrimination Complaint under section 105(c) of the Act.

On
July 18, 2022, Rice filed a Discrimination Complaint with MSHA. The Secretary found
that the Complaint was not frivolously brought and filed an Application for
Temporary Reinstatement (“Application”) on August 18, 2022.

On
August 24, 2022, Respondent filed a Request for Hearing. The undersigned held a
hearing via Zoom for government on September 2, 2022. Witnesses were not
sequestered as credibility is not at issue in a temporary reinstatement
proceeding. See, e.g. , Sec’y of Labor on behalf of Williamson v. CAM
Mining, LLC , 31 FMSHRC 1085, 1089, 1091 (Oct. 2009).

Given
the expedited nature of this proceeding, the undersigned did not allow
post-hearing briefs in this matter. However, Rice sent an email clarifying his
closing arguments and adding additional support after the hearing. The
undersigned granted Respondent leave to submit—and Respondent submitted—a
response. [1]

I. Statement of the Case

The Application alleges that Respondent violated
section 105(c) when it fired Rice on July 15, 2022 for reporting safety
concerns at the mine. App. at 2.

Rice also alleges that he was fired for refusing to
work in unsafe conditions in violation of section 105(c). Jt. Ex. 4 at 1; Tr.
at 27. However, the Secretary’s Application does not allege that Respondent
fired Rice because of a refusal to work. Because the Secretary demonstrates
that it did not frivolously bring the charge that Respondent fired Rice for
reporting safety concerns—and this basis alone supports a grant of temporary
reinstatement—the undersigned does not need to address this additional alleged
protected activity by Rice.

As a remedy for firing Rice in violation of section
105(c), the Application requests that the undersigned issue an Order of
Temporary Reinstatement to reinstate Rice to the position he held prior to his
firing on July 15, 2022, or to a similar position at the same rate of pay, with
the same benefits, and with the same or equivalent duties assigned to him. App.
at 2.

II. Testimony at
Hearing

At the hearing, the Secretary presented two witnesses:
Rice and Freddie Fugate, the MSHA special investigator who investigated the
Complaint. The Respondent presented one witness: Jake Napier. As explained more
fully below, the undersigned does not make any credibility determinations in
presenting this evidence. The facts as presented here are merely an evaluation
of the evidence to determine if the miner’s complaint was not frivolously
brought.

Rice began working for Respondent as a rock-truck
driver at Meadow Branch Mine in January 2022. Tr. at 20, 34, 59. Usually, Rice
drove truck #1427. Id. at 35. Sometime during the spring of 2022, the
air conditioning in truck #1427 began malfunctioning. Id. at 37. Rice
repeatedly informed his foreman, Napier, that the air conditioning was not
working. Id. A mechanic worked on the air conditioning in truck #1427,
but, each time, it would break again. Id. at 40-43. Each time the air
conditioning was not working, Rice would report the broken air conditioning. Id.
at 41-42.

Even
though Rice worked the night shift, the truck would get so hot without air
conditioning that on at least one occasion Rice had to stop the truck because
he was close to passing out. Id . at 38, 43. On another occasion, the
truck was so hot that Rice became nauseated and vomited. Id. at 43. At
one point in June 2022, Rice recorded a temperature of 110º in the truck. Id.
at 44. Napier admitted that such a temperature would represent a health
hazard. Id. at 137.

Rice
testified that, at a certain point, Napier told Rice to tie open the door of
truck #1427 to mitigate the rising temperature. Tr. at 45. Napier denied this
but admitted that doing so would not be safe. Id. at 121.

On
or around July 13, 2022, Rice asked someone to call into the MSHA hotline to
report the broken air conditioning. Id. at 45-46. On July 14, 2022, MSHA
inspected the mine and issued several citations. Id. at 94-96, 127. One
citation was for the air conditioning in truck #1427. Id. at 95.

Thereafter,
on the same day as the MSHA inspection, Rice showed up for the night shift and
repeated his safety concerns about the air conditioning in truck #1427. Id.
at 47. Napier assigned him to drive truck #235. Id. at 48. While driving
truck #235, Rice experienced steering that would break free to the point that
Rice was unable to steer it around curves, and brakes that did not completely
stop the truck. Id. at 49-51; id. at 53-54 (Rice could not get up
the hill in the truck and the brakes would not fully stop the truck as he
backed down the hill.). When Rice reported these safety concerns to Napier over
the CB radio, Napier responded in an unusual, mad tone and told Rice to “[j]ust
go on and get off the hill.” Id. at 55-56. Based on his 11- to 12-years’
experience as a miner and knowledge of similar expressions in the mining
industry, Rice interpreted Napier’s response as a statement that Napier had
discharged him. Id. at 56-57, 83, 84-85.

In
opposition to the Application, Respondent alleged that Rice had voluntarily quit
and that there was no adverse action. Napier denied having told Rice to get off
the hill and stated that he would not have fired Rice over the CB radio. Tr. at
116, 127. Napier also testified that an employee, whom Napier had hired, told
him that Rice had quit. Id. at 123, 126. Napier waited a week before reporting
that Rice was no longer working at the mine. Id. at 118-19. [2]

Respondent
also noted that, after he was allegedly fired, Rice texted Napier about the
truck. Id. at 86. However, Napier testified that he did receive that text
message. Id. at 130.

III. Legal Principles
and Analysis

Section 105(c)(2) of the Mine Act provides
that, as to claims of discrimination, “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.” During a temporary
reinstatement proceeding, a judge should not make credibility determinations,
resolve testimonial conflicts, or weigh the operator’s evidence against the
Secretary’s evidence. Sec’y of Labor on behalf of Cook v. Rockwell Mining ,
43 FMSHRC 157, 162 (Apr. 2021) (citations omitted). Rather, a judge in a
temporary reinstatement proceeding should simply evaluate the Secretary’s
evidence and determine whether the miner’s complaint appears to have merit. Id.
at 161 (quoting Williamson , 31 FMSHRC at 1089).

During a temporary reinstatement
proceeding, the Secretary need not prove a prima facie case of discrimination but
must simply prove a non-frivolous issue of discriminatory motivation for
adverse action taken because of protected activity. Rockwell Mining ,
43 FMSHRC at 161. The Commission has held that the Secretary can establish
such a non-frivolous causal nexus by showing operator knowledge of the
protected activity and temporal proximity between the protected activity and
the adverse action. Sec’y of Labor on behalf of Stahl v. A&K Earth
Movers Inc. , 22 FMSHRC 323, 325-26 (Mar. 2000).

Here, the Secretary has demonstrated that Rice’s
Complaint was not frivolously brought. For purposes of this temporary
reinstatement proceeding, the Secretary has demonstrated a non-frivolous case
of discriminatory discharge, that is, protected activity by Rice, adverse
action taken against him by Respondent, and a causal nexus between the two. First,
the Secretary has sufficiently demonstrated that Rice engaged in protected
activity when he made safety and health complaints about the air conditioning
in truck #1427 and safety complaints about the steering and brakes in truck

235. Tr. at 41-42, 49-51. Such complaints are protected under section

105(c)(1).

Second, the Secretary has sufficiently
demonstrated that the Complaint was not frivolously brought as to the issue of
adverse action. Based on his years of experience and knowledge of the mining
industry, Rice testified that he interpreted Napier’s intemperate directive to
“[j]ust go on and get off the hill”—which was issued right after Rice complained
about the steering and brakes in truck #235 and refused to drive that truck—as a
pronouncement that he had been discharged. Tr. at 56-57, 83, 84-85. Similar
phrases have been found sufficient for finding an adverse action in
discrimination proceedings. See e.g., Moses v. Whitley Dev. Corp. ,
4 FMSHRC 1475, 1479 (Aug. 1982) (upholding judge’s finding, as supported by complainant
and supervisor testimony, that “go on to the house” was “commonly used in coal
fields as a synonym for discharge”). Consequently, Rice’s testimony that Foreman
Napier told him in a mad and unusual tone to “[j]ust go on and get off the hill,”
immediately after Rice complained about safety issues with truck #235, is sufficient
to demonstrate a non-frivolous claim of adverse action. Pennypower Shopping
News, Inc., v. N.L.R.B. , 726 F.2d 626, 629 (10th Cir.1984) (“The test of
whether an employee has been discharged depends on the reasonable inferences
that the employee could draw from the statements or conduct of the
employer.”).

Finally, the Secretary has also established
a non-frivolous causal nexus between Rice’s protected activity and his discharge.
Rice made repeated complaints about the air conditioning in truck #1427,
including the complaint he made at the start of the shift during which he was allegedly
fired. Tr. at 47. Rice also made complaints during that same shift about the
steering and brakes in truck #235. Id. at 49-51. The Respondent was
aware of Rice’s repeated safety complaints, and the alleged adverse action
occurred during the very same shift that Rice engaged in protected activity. Such
knowledge of protected activity and close temporal proximity between the
protected activity and alleged discharge are sufficient to establish a
non-frivolous causal nexus that Rice was fired because of his protected activity.
Stahl , 22 FMSHRC at 325-26.

The Secretary has demonstrated that the complaint
was not frivolously brought.

IV. Order

For the foregoing reasons, Respondent Nally
& Hamilton Enterprises is ORDERED to immediately reinstate George
Rice to the position he held immediately prior to his termination on or about July
15, 2022, or, if that position is no longer available, to a substantially
equivalent position at the same rate of pay, with the same benefits, and with
the same or equivalent duties assigned to him.

This Order of
Temporary Reinstatement is not open-ended. It will end upon final order on the
underlying discrimination complaint as set forth in section 105(c)(2) of the
Act. 30 U.S.C. § 815(c)(2). Therefore, the Secretary must promptly
determine whether he will file a complaint with the Commission under section
105(c)(2) of the Act and so advise Rice, the Respondent, and this administrative
tribunal.

/s/
Thomas P. McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

Thomas Hamilton

Nally & Hamilton
Enterprises

Saltsman Willett Deton &
Hamilton, PSC

212 E. Stephen Foster Avenue

Bardstown, KY 40004

[email protected]

Tony Oppegard

P.O. Box 22446

Lexington, KY 40522

[email protected]

Wes Addington

Appalachian Citizens’ Law
Center

317 Main Street

Whitesburg, KY 41858

[email protected]

Jennifer M. Tag

Office of the Solicitor

U. S. Department of Labor

618 Church Street

Suite 230

Nashville, Tennessee 37219

[email protected]

[1] Complainant also filed
a reply to Respondent’s reply. The undersigned did not consider this additional
filing as the Commission’s procedural rules do not provide a basis for a reply
to a reply, and no leave was given by the undersigned for such a filing.

[2] Because of the
standards for evaluating an application for temporary reinstatement, the undersigned
does not need to address the merits of Respondent’s case in defense. Rockwell
Mining , 43 FMSHRC at 162 (“[T]he Judge is not obligated to resolve
testimonial conflicts . . . . In addition, the Judge should not
weigh the operator’s evidence against the Secretary’s evidence when determining
whether to grant temporary reinstatement.”).