Secretary of Labor o/b/o Bowling v. Perry Transport, Inc.

Plain-English summary

Donald Bowling, a truck driver for Stevie Caldwell Trucking, alleged that he was discharged after reporting safety violations to MSHA. The Secretary investigated and found that his discrimination complaint was not frivolous, so the ALJ ordered temporary reinstatement. The Commission affirmed that order because the evidence showed a sharp factual dispute and Bowling's testimony was not so incredible as to make the complaint frivolous. The Commission did not decide whether discrimination ultimately occurred, and it declined to rule on a separate timeliness issue that had not been raised before the ALJ.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(2) and 29 C.F.R. § 2700.44
• Outcome: The petition for review was granted, but the ALJ's temporary reinstatement order was affirmed.
• Key point: At a temporary reinstatement hearing, the question is only whether the miner's discrimination complaint is frivolous, not whether the complaint will ultimately succeed.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N. W., SIXTH FLOOR
WASHINGTON, D.C. 20006

February 4, 1993

SECRETARY OF LABOR, on behalf :
of DONALD BOWLING, :
Complainant :
:
and :
:
DONALD BOWLING, :
Intervenor :
:
v. :Docket No. KENT
92-1052-D
:
PERRY TRANSPORT, INC., a :
corporation; STEVIE CALDWELL :
TRUCKING, INC., a corporation; and :
STEVIE CALDWELL, an Individual, :
:
Respondents

                            DECISION

 In this discrimination proceeding arising under the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. Sec. 801 et seq.
(1988) ("the Mine Act"), respondents Perry Transport, Inc.,
Stevie Caldwell Trucking, Inc., and Stevie Caldwell have filed a
petition for review of Administrative Law Judge William Fauver's
December 28, 1992, order of temporary reinstatement issued
pursuant to Commission Procedural Rule 44, 29 C.F.R. Sec. 2700.44
(1986). We grant respondents' petition for review and, for the
reasons that follow, affirm the judge's order requiring the
temporary reinstatement of Donald Bowling.

 Complainant Donald Bowling was employed by Stevie Caldwell

Trucking, Inc., as a truck driver from February 1990 to February
7, 1992, when his employment terminated.

 On April 13, 1992, Bowling filed a discrimination complaint

with the Secretary of Labor (Secretary) pursuant to Sec.
105(c)(2) of the Mine Act.1/ Following an investigation, the
Secretary determined that the discrimination complaint filed by
Bowling was not frivolous. On September 15, 1992, the Secretary
filed an application for temporary reinstatement. On October 20,
1992, an evidentiary hearing on the application for temporary
reinstatement was held. Sixty-nine days later, 2/ on December
28, 1992, the judge issued his decision concluding that the
complaint was not frivolous.

 The Secretary and intervenor Donald Bowling allege that

Bowling was discharged from his job in retaliation for reporting
safety violations to the Mine Safety and Health Administration
(MSHA) on two separate occasions. Respondents contend that
Bowling was not discharged and that he voluntarily terminated his
employment.

 As we have previously stated, "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." Secretary of Labor o.b.o. Price and Vacha
v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (August 1987),
aff'd, Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th
Cir. 1990).

1/ Respondents seek now to challenge Bowling's discrimination
complaint on the additional ground that it is time barred. This
issue was not raised before the judge. The typewritten
discrimination complaint attached to the Secretary's application
for temporary reinstatement is signed by Donald Bowling and dated
April 13, 1992. Thus, the complaint would appear to have been
filed six days beyond the sixty day statutory time period for
such filing. However, in response to this challenge, the
Secretary has furnished a copy of Bowling's handwritten
discrimination complaint, signed by Donald Bowling and dated
April 2, 1992, which the Secretary maintains was submitted
timely. (Exhibit B, Response in Opposition to Petition for
Review) Because the judge has not had an opportunity to pass on
this issue, we decline to rule on it.

2/ While we recognize that each case is unique, we perceive no
basis in this record for the protracted delay and failure to
adhere to Rule 44(d), which requires that "Within 5 days
following the close of a hearing on an application for temporary
reinstatement the Judge shall issue an order granting or denying
the application."

 After conducting an evidentiary hearing and considering the

testimony of the complainant and two witnesses for the
respondents, the judge concluded:
The hearing evidence shows a sharp dispute of
the facts concerning the termination of Mr.
Bowling's employment.. . . I do not find
that Mr. Bowling's testimony is so incredible
or unworthy of belief as to amount to a
"frivolous" complaint.

      I therefore conclude that the special concern
      Congress has shown to require temporary
      reinstatement of a miner unless his claim is
      frivolous requires temporary reinstatement in
      this case.

Slip op. at 3.

 After careful review of the evidence and pleadings, we

conclude that the judge's determination that the complaint is not
frivolous is supported by the record and is consistent with
applicable law. The only issue before us is whether Bowling's
discrimination complaint was frivolously brought. We intimate
no view as to the ultimate merits of this case. 3/

 Respondents have additionally requested that we "stay the

effect of the decision of the Administrative Law Judge pendente
lite." Petition at 4. To the extent that respondents sought
relief pending our consideration of the instant matter, their
motion was considered and is denied. To the extent that
respondents seek a stay of the temporary reinstatement order
pending a final determination of whether a violation of Section
105(c)(1) of the Mine Act has occurred, their motion is denied.
Absent some extraordinary circumstance, yet to be advanced, the
granting of such a motion would eviscerate the temporary
reinstatement provision of the Mine Act.

3/ No other issues raised by respondents, including the judge's
back-pay order, are final and, thus, they are not before the
Commission at this time.

 Accordingly, the judge's order requiring the temporary

reinstatement of Donald Bowling is affirmed.

                     ARLENE HOLEN, Chairman

                     RICHARD V. BACKLEY, Commissioner

                     JOYCE A. DOYLE, Commissioner