Bruce Young and Yogo, Inc.

Plain-English summary

Andy Howard, Jr., a haul truck driver for Yogo, Inc., reported defective brakes on a truck and later alleged retaliation after cooperating with an MSHA investigation. Judge Arthur J. Amchan found that the Secretary’s temporary-reinstatement case was not frivolous and ordered Yogo to reinstate Howard immediately. The employer could satisfy the order through economic reinstatement, with compensation and benefits no worse than if Howard had returned to work. The order did not decide the underlying discrimination case or award back pay on the merits.

Decision snapshot

• Cited provision(s): 30 U.S.C. § 815(c)(2), 30 U.S.C. § 815(c)(3)
• Outcome: Temporary reinstatement was ordered, with economic reinstatement allowed while the discrimination case proceeded.
• Key point: The judge found the Secretary’s case was not frivolous based on Howard’s safety-related activity, alleged animus, and the circumstances of his termination.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                         5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA 22041




                      February 15, 1996

SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT
MINE SAFETY AND HEALTH : PROCEEDING
ADMINISTRATION (MSHA), :
On behalf of ANDY HOWARD, JR., : Docket No. KENT 96-95-D
Complainant : MSHA Case No. PIKE CD 95-21
v. :
: Martiki Surface Mine
BRUCE YOUNG AND YOGO, INC., : Mine I.D. No. 15-07295 BLH
Respondent :

              ORDER OF TEMPORARY REINSTATEMENT

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee;
Tony Oppegard, Esq., Mine Safety Project of the
Appalachian Research and Defense Fund, Inc.,
Lexington, Kentucky; for Complainant;
Billy R. Shelton, Esq., Baird, Baird, Baird &
Jones, P.S.C., Pikeville, Kentucky, for
Respondent.

Before: Judge Amchan

            Facts and Contentions of the Parties

 Complainant, Andy Howard, Jr., began working as a haul

truck driver for Respondent, Yogo, Inc., in late February or
early March, 1995 (Tr. 13-17, 70). Yogo transports coal for
Martiki Coal Company at its surface mine in Martin County,
Kentucky (Tr. 114-16). Howard’s duties entailed the trans-
portation of coal over private dirt roads on Martiki’s property
(Tr. 18-19, 70-71).

 The week prior to working for Yogo, Howard drove a green

Mack truck for BNA Trucking, a company owned by the wife of
Bruce Young (Tr. 15-17). Mr. Young owns 50 percent of Yogo,
Inc. (Tr. 114). This green truck had defective brakes and was
the subject of a section 105(c) discrimination complaint filed
by William Delong, who drove the truck just before Mr. Howard
was hired (Tr. 15-16, 41-45). In July 1995, Howard was inter-
viewed by MSHA special investigator Nancy Bartley. In
Mr. Young’s presence, he told Ms. Bartley that the brakes on
the green Mack truck were defective and would not stop the truck

Page 2

on a hill. According to Howard, Mr. Young’s face turned red
during Howard’s conversation with the investigator (Tr. 41-46).

 In March 1995, when Howard started to work for Yogo, he

drove an orange Mack truck. He continued to drive this vehicle
for approximately three months when he was transferred to a
black Mack truck, model RD-600. The air conditioning unit on
this truck did not work (Tr. 17, 23).

 Due to the summer heat, Mr. Howard operated this truck with

the windows rolled down. The haul roads were often very dusty
and the dust coming into his cab made it difficult for Howard to
breathe, gave him headaches, and sometimes upset his stomach.
Howard complained to Bruce Young, who promised he would have the
air conditioning fixed (Tr. 18-25).

 Employees of Yogo, Inc. were on vacation from June 24, 1995

to July 10, 1995 (Tr. 118). When Mr. Howard returned to work he
discovered that the air conditioning unit of his truck was still
non-functional (Tr. 27-28). Mr. Young contends that he arranged
to have the air conditioning repaired on Howard’s truck and
others, but that the person with whom he made these arrangements
unexpectedly failed to do the work (Tr. 118-20, 148-49, 175).

 On the morning of July 11, 1995, Howard and four other

drivers refused to drive their trucks (Tr. 28-29). Two of the
other drivers, one who worked for Yogo and the other who worked
for another company owned by Larry Goble, the other partner in
Yogo, also had non-functioning air conditioners (Tr. 151-52).
The five drivers demanded that the air conditioning be repaired
on the three trucks. They also demanded that Yogo provide them
with medical insurance, and Howard asked or demanded an increase
in his salary (Tr. 31).

 Mr. Howard contends that Mr. Young’s response was that the

drivers could go back to work or be fired (Tr. 29). Young says
he merely told them that if they refused to work, everybody at
Yogo would lose their jobs, and that he would try to get the air
conditioners fixed. Young was apparently inferring that if the
drivers refused to work that Martiki might replace Yogo with
another contractor (Tr. 120-21).

 Mr. Young says he contacted Worldwide Equipment Company the

day before when he discovered that the air conditioners had not
been fixed over the vacation. Worldwide was not able to repair
the vehicles until July 14. The repairs performed on that date
cost Yogo $1,020 (Tr. 123-24, Exh. R-1).

Mr. Howard claims that Bruce Young never indicated that he

                           2

Page 3

would fix the air conditioners. He states that the five drivers
continued their strike against Yogo for 13 hours. Then, on the
morning of July 12, Larry Goble promised them he would get the
vehicles fixed if they returned to work (Tr. 30-31). Howard also
claims that after this incident Bruce Young would not speak to
him (Tr. 29-32, 35)1.

 The air conditioner on Complainant’s truck worked for about

two weeks following the July 14 repairs. Howard drove the truck
for a few weeks after it broke again. The dust entering his
cab made him feel ill. Howard’s headaches got worse. At the
beginning of his shift on August 15, 1995, he informed Bruce
Young that he would not drive the truck until the air conditioner
had been repaired (Tr. 33-35).

 Mr. Young assigned Howard to a truck usually used to trans-

port mud and other debris. Howard transported coal in the mud
truck while a Yogo mechanic repaired the air conditioner on his
truck. On August 16, Howard drove his own truck until about noon
when the air conditioner stopped working again (Tr. 36-39, 127-
29).

 When Howard told Young that his truck’s air conditioner was

broken, Howard claims that Young became angry and told him that
he had stabbed Young in the back ever since he had come to work
for him2. Then Young told Howard to go home and that he either
would call him when he needed him, or when the air conditioner
was fixed (Tr. 39-41, 48-49, 64, 85).

 Young denies making the “stab in the back” remark. He says

he merely sent Howard home because the mud truck was being used
by another miner and therefore he had no vehicles for Howard to
drive that had operational air conditioning (Tr. 129).

 Respondent contends that Mr. Howard called Larry Goble on

August 21, 1995. Goble told him that his truck’s air conditioner
was not fixed yet. Howard asked Goble if he could come in to
wash the truck so that he could earn some money. Goble told
Howard that he could not use the vehicle until the air
conditioner was fixed (Tr. 198-99).

1
 Other than Howard, the three drivers who worked for Yogo

are still employed by Respondent (Tr. 73-74).
2
It is not clear from Howard’s testimony whether he claims
these statements were made on August 15 or 16, or on both days
(Tr. 39, 64).

                           3

Page 4

 The next day Howard, who lives close to the Martiki mine,

heard on his CB radio that another miner was driving his truck.
He called Goble again and was told he could return to work.
Howard claims that Goble said to him that somebody had called
the Mine Safety and Health Administration and indicated that
this would hurt Yogo (Tr. 49-53).

 Respondent claims it intended to recall Howard as soon as

the air conditioning was fixed (Tr. 130). Goble states that on
August 22 he became tired of waiting for a contractor and
repaired the air conditioning compressor himself. He was then
able to get the contractor to come to the site simply to add
freon, which neither he nor any other Yogo employee was licensed
to do (Tr. 199, 211, Exh. R-3).

 Respondent further contends that the truck was driven by

another miner on the afternoon of August 22, only to make sure
that the air conditioner worked before recalling Howard. On
August 23, Howard returned to work and his air conditioner
functioned properly (Tr. 53, 130).

                           4

Page 5

 On or about August 29, 1995, Howard encountered Mr. Young

at the scale house where Yogo’s trucks were weighed by Martiki.
According to Howard, Young begged him to quit, told him again
that Howard had stabbed him in the back and hurt him (Tr. 55-56).
Young denies having any heated discussions with Howard. He
states that he had been told by two people that Howard was
planning to quit and merely asked if this was true and told
Howard he would appreciate being given notice. Both men agree
that Howard told Young that he planned to quit as soon as he
found another job (Tr. 92, 133-36, 168).

 On August 30, the radiator hose on Howard’s truck broke.

He took his truck to Respondent’s repair shop to fix it. There
he encountered Mr. Young again. Howard says Young became very
angry. With his face only four or five inches from Mr. Howard’s,
Young asked Howard if he thought he “owned the place.” He then
told Howard not to get out of the truck until Young told him to
get out (Tr. 56-59).

 Young claims that he merely asked Howard to move his truck

because it was in the way of Yogo’s mechanics. Young also claims
that Howard refused to move the truck. He denies that he was
four to five inches from Howard and says the distance between
them was two to three feet (Tr. 170-72).

 The radiator hose was fixed and Howard resumed driving.

Later on August 30, Howard returned to the shop area to get oil.
He claims Young opened the door to the truck cab and told him
he was either going to fire him or force him to quit. Howard
believed that Young was trying to provoke him into starting a
fist fight (Tr. 60-61, 95-97).

 Young says he merely told Howard that he should have called

the shop on his CB radio and had the oil brought out to him.
This apparently would have taken Howard’s truck out of production
for significantly less time. Young denies that he slammed the
door to Howard’s truck, as claimed by Howard (Tr. 173-75).

 On August 31, 1995, despite the fact that he had not found

another job, Howard did not report for work. He did not call
Respondent to inform it that he was quitting. He picked up his
last pay check on September 1, and filed a discrimination com-
plaint with MSHA on September 5. On September 13, Respondent
sent Howard a letter formally discharging him (Tr. 57, 97-99,
136-38, 142-43, 220).

 Howard’s complaint was investigated by MSHA and an

application for temporary reinstatement was received by the
Commission on January 16, 1996. Respondent requested a hearing

                           5

Page 6

on the application. This hearing was held on February 8, 1996,
in Prestonsburg, Kentucky.

               Evaluation of the Evidence

 Section 105(c)(1) of the Federal Mine Safety and Health Act

provides that:

No person shall discharge or in any manner
discriminate against or cause to be discharged
or cause discrimination 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
... or because such miner ... has instituted
or caused to be instituted any proceeding
under or related to this Act ... or because of
the exercise by such miner ... of any statutory
right afforded by this Act.

 The Federal Mine Safety and Health Review Commission has

enunciated the general principles for analyzing discrimination
cases under the Mine Act in Sec. ex rel. Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3d Cir. 1981), and Sec. ex rel. Robinette v. United Castle Coal
Co., 3 FMSHRC 803 (April 1981). In these cases, the Commission
held that a complainant establishes a prima facie case of dis-
crimination by showing 1) that he engaged in protected activity
and 2) that an adverse action was motivated in part by the
protected activity.

 The operator may rebut the prima facie case by showing

either that no protected activity occurred, or that the adverse
action was in no part motivated by the protected activity. If
the operator cannot thus rebut the prima facie case, it may still
defend itself by proving that it was motivated in part by the
miner's unprotected activities, and that it would have taken the
adverse action for the unprotected activities alone.

 In a temporary reinstatement proceeding, the Secretary need

not establish that it will, or is even likely to, prevail in the
discrimination proceeding. Pursuant to the procedural rules of
the Commission, 29 C.F.R.§ 2700.45(d), the issue in a temporary
reinstatement hearing is limited to whether the miner's complaint
was frivolously brought. The Secretary of Labor has the burden

                           6

Page 7

of proving that the complaint was not frivolous.

 The legislative history of the Act provides that the

Secretary shall seek temporary reinstatement, "[u]pon determining
that the complaint appears to have merit." The Eleventh Circuit,
in Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738, 747
(11th Cir. 1990), concluded that "not frivolously brought" is
indistinguishable from the "reasonable cause to believe" standard
under the whistleblower provisions of the Surface Transportation
Assistance Act. Further, that court equates "reasonable cause to
believe" with a criteria of "not insubstantial or frivolous" and
"not clearly without merit" 920 F.2d 738, at 747 and n. 9.

 In the instant case the primary question is whether the

Secretary and Mr. Howard have established that it is not
frivolous to contend that adverse action was taken against Mr.
Howard. More specifically, the issue is whether the Secretary’s
claim that Mr. Howard was constructively discharged in August
1995 is clearly without merit. It is uncontroverted that Howard
quit and was not fired by Respondent.

 It determining whether the Secretary and Mr. Howard have met

this burden, I conclude it would be inappropriate for me to make
the ultimate credibility resolutions that I would make in a
discrimination proceeding. Commission Rule 45(d) allows the
Secretary to limit his presentation to the testimony of the
Complainant. Thus, unless I find there is no conceivable way

                           7

Page 8

that I could credit the complainant’s version of events in a
discrimination proceeding, I believe I must take his testimony
3
at face value in a temporary reinstatement proceeding.

 For example, there are sharp differences in the accounts

of Mr. Howard and Mr. Young regarding their conversations in
August, 1995. It is quite conceivable that there may be
corroborative evidence presented in a discrimination hearing
that would allow a far more reliable resolution of the
credibility of these witnesses than I am able to make at the
present time.

The Secretary has established that his claim that
Mr. Howard was constructively discharged is “not
frivolous.”

 Under Commission law, a constructive discharge is proven

when a miner engaged in protected activity shows that an operator
created or maintained conditions so intolerable that a reasonable
miner would have felt compelled to resign, Secretary on behalf of
Nantz v. Nally & Hamilton Enterprises, Inc., 16 FMSHRC 2208, 2210
(November 1994); Also see, Simpson v. FMSHRC, 842 F.2d 453 (D.C.
Cir. 1988); Yates v. Avco Corp., 819 F. 2d 630, 636-8 (6th Cir.
1987) [a similar test is applied by the 6th Circuit under the
Civil Rights Act].

 Mr. Howard’s testimony indicates that Mr. Young, half-owner

of the operator, became upset at him when he insisted that his
air conditioner be repaired on July 11 and on August 15 and 16.
Howard claims Young approached him in an extremely hostile manner
on August 29 and 30, 1995, to the point of provoking a fight.

 At this juncture, I conclude that it is not frivolous for

the Secretary to argue that Howard’s insistence of having his
air conditioner repaired and his conversation with MSHA special
investigator Nancy Bartley constituted activities protected by
section 105(c) of the Act. Further, I find the Secretary’s
allegations of animus on the part of Mr. Young towards these
activities to be not clearly without foundation. This alleged
animus may establish a nexus between Howard’s protected
activities and the termination of his employment with Respondent.

3
   This is analogous to determinations made in deciding a

motion for summary decision under Commission rule 69(b) and (c).
Such motions can only be granted if there is no genuine issue
as to any material fact and the moving party is entitled to
summary decision as a matter of law.

                           8

Page 9

  Finally, I conclude that it is at least arguable that

Mr. Young’s alleged behavior in July and August 1995 with respect
to Mr. Howard created conditions so intolerable that a reasonable
miner would have felt compelled to quit. Therefore, I conclude
that the Secretary’s decision to seek the temporary reinstatement
of Mr. Howard is not frivolous.

                         ORDER

 Respondent is hereby ORDERED to reinstate Andy Howard, Jr.,

immediately. The purpose of temporary reinstatement is to render
Complainant financially secure during the pendency of his
discrimination case, Legislative History of the Federal Mine
Safety and Health Act of 1977, at page 625. Respondent may
satisfy this order through the means of “economic reinstatement.”
Complainant’s position, including financial compensation and
benefits, must be no worse than it would have been had he
returned to work on August 31, 1995, and continued to work for
Respondent up to the present date4.

                           Arthur J. Amchan
                           Administrative Law Judge

Distribution:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail)

Tony Oppegard, Esq., Mine Safety Project of the
Appalachian Research & Defense Fund of Kentucky, Inc.,
630 Maxwelton Court, Lexington, KY 40508 (Certified Mail)

Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S.C.,
415 Second Street, P.O. Box 351, Pikeville, KY 41502-0351
(Certified Mail)

/lh

  4
 This refers to current payments and working conditions, it

does not require Respondent to give Complainant back pay, which
he would be entitled to only if he prevailed in a discrimination
proceeding.

                           9