Secretary of Labor on behalf of Joshua D. Burkhart v. Peabody Midwest Mining, LLC (ALJ decision, April 24, 2014)

Plain-English summary

Before Joshua Burkhart's temporary-reinstatement hearing, the Secretary moved to exclude evidence that Peabody Midwest Mining offered to justify the discharge and establish affirmative defenses. Judge Priscilla M. Rae explained that the preliminary hearing asks only whether the discrimination complaint appears to have merit and does not resolve testimonial conflicts or decide whether permanent relief is warranted. She held that evidence offered to prove rebuttal defenses or require witness credibility findings fell outside that narrow scope. The motion was granted, and the temporary-reinstatement hearing proceeded under the nonfrivolous-complaint standard.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: The Secretary's motion to exclude evidence beyond the temporary-reinstatement inquiry was granted.
• Key point: An operator may contest whether a complaint is frivolous, but the preliminary hearing does not decide full merits defenses or witness credibility.

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:
202-434-9958 / FAX: 202-434-9949

April
24, 2014

SECRETARY OF
LABOR,

MINE SAFETY
AND HEALTH

ADMINISTRATION (MSHA) on behalf of

JOSHUA D.
BURKHART

Applicant

v.

PEABODY
MIDWEST MINING, LLC,

Respondent

TEMPORARY
REINSTATEMENT

PROCEEDING

Docket
No. LAKE 2014-342-D

VINC
CD 2014-01

Mine
ID 12-02295

Mine:
Francisco Underground Pit

ORDER GRANTING SECRETARY'S MOTION TO
EXCLUDE EVIDENCE OUTSIDE THE SCOPE OF TEMPORARY REINSTATEMENT HEARING

Before:            Judge
Rae

This case is before me upon an
application for temporary reinstatement under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977,30 U.S.C. § 815(c). The Respondent has requested a hearing on the application for temporary reinstatement and a hearing date of April 29, 2014 has been set. On April 22, 2014, the Secretary filed a motion in limine to exclude Respondent's evidence extending beyond the scope of the temporary reinstatement hearing.

Pursuant to section 105(c)(2), if
the Secretary finds that a complaint of discrimination was not frivolously brought, the Commission shall, upon an expedited basis on application, order the immediate reinstatement of the miner pending a final order on the complaint. 30 U.S.C. § 815(c)(2).  The scope of a temporary reinstatement hearing is limited to a determination by the judge  as to whether a miner's discrimination complaint was frivolously brought; it is not the judge's duty to resolve conflict in testimony. Sec y o/b/o Ward v. Argus Energy WV, LLC, 34 FMSHRC 1875, 1877 (Aug. 2012); Secyo/b/o Billings v. Proppant  Specialists, 33 FMSHRC 2383, 2384 (Oct. 2011); Sec y o/b/o Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1088 (Oct. 2009).  In determining whether the discrimination complaint was frivolously brought, the judge  should evaluate evidence of the Secretary's prima facie case to determine whether it appears to have merit and that a non-frivolous issue exists. CAM Mining, LLC, 31 FMSHRC at 1089, 109l;Argus Energy  WV, LLC, 34 FMSHRC at 1877; S. Rep. 95-181, at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 624 (1978). The Commission has found that a judge errs by assigning a greater burden of proof than required when weighing the operator's affirmative defense and rebuttal evidence against the Secretary's evidence of a prima facie case in a temporary reinstatement proceeding. CAM Mining, LLC, 31 FMSHRC at 1091. It has also stated that the temporary reinstatement hearing determines "whether the evidence mustered by the miners ...established that their complaints are nonfrivolous, not whether there is sufficient evidence of discrimination to justify permanent reinstatement." Sec yof Labor o/blo Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999); Argus Energy WV, LLC, 34 FMSHRC at 1878.

The Secretary argues that in its
request for hearing, Respondent offers evidence to justify Burkhart's termination and an affirmative defense and that such evidence for the purpose of creating testimonial conflict or establishing a rebuttal or affirmative defense should be excluded.

Based on the case law discussed
above, evidence that tends to show a rebuttal or affirmative defense and evidence that requires a determination of credibility of a witness will not be admitted for the purpose of the hearing on temporary reinstatement.

It is hereby ORDERED that the
Secretary's motion to exclude evidence beyond the scope of the temporary reinstatement hearing is GRANTED.

/s/ Priscilla M. Rae

Priscilla M. Rae

Administrative Law Judge

Distribution:

Travis W.
Gosselin, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604

Arthur M.
Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500,401 Liberty Avenue, Pittsburgh, PA  15222

Joshua D.
Burkhart, 4642 W. Street Road 64, Princeton, IN 47670