Secretary of Labor obo Lawrence D. Hagene v. Prairie State Generating Co., LLC and GMS Mine Repair & Maintenance, Inc.

Plain-English summary

Lawrence Hagene worked for contractor GMS as an electrician at Prairie State's Lively Grove Mine. After a roof fall damaged a 995-volt trailing cable, Hagene removed his personal lock and approved tag near the end of his shift and left a makeshift paper warning on the cable cathead. GMS terminated him after Prairie State barred him from the mine, and the Secretary sought temporary reinstatement on the theory that his handling and reporting of the hazard were protected activity. Judge Jerold Feldman found no nonfrivolous connection between protected activity and the termination because management accepted removal of the damaged equipment from service and the record showed that Hagene alone failed to maintain the required lockout and tagout protection. The application was denied and the temporary-reinstatement proceeding was dismissed.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.45(d)
• Outcome: The temporary-reinstatement application was denied as frivolously brought, and the proceeding was dismissed.
• Key point: Reporting or removing damaged equipment from service did not support interim relief when the unrebutted reason for discharge was the miner's separate failure to keep the hazardous cable locked and tagged out.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC 20004

February 22, 2016

SECRETARY OF LABOR

MINE SAFETY AND HEALTH     

ADMINISTRATION (MSHA),

on behalf of LAWRENCE D. HAGENE,

Complainant

v.

PRAIRIE STATE GENERATING CO.    LLC, and GMS MINE REPAIR &
MAINTENANCE, INC.,

Respondents

TEMPORARY REINSTATEMENT PROCEEDING

Docket
No. LAKE 2016-101-D

Lively
Grove Mine

Mine ID: 11-03193

DECISION DENYING TEMPORARY REINSTATEMENT

Appearances:   Travis
Gosselin, Esq., U.S. Department of Labor, Office of the Solicitor,

Chicago,
Illinois, on behalf of the Complainant.

R.
Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania,

on behalf of Respondent Prairie
State Generating Co., LLC.

R. Lance Witcher, Esq., Ogletree,
Deakins, Nash, Smoak & Stewart PC,      St. Louis, Missouri, on behalf of
Respondent GMS Mine Repair & Maint., Inc.

Before:                        Judge Feldman

This
matter is before me based on an application for temporary reinstatement filed
by the Secretary of Labor on December 8, 2015, pursuant to section 105(c)(2) of
the Federal Mine Safety and Health Act of 1977 (the “Mine Act”), as amended, 30 U.S.C. §
815(c)(2), against Prairie State Generating
Co., LLC (“Prairie State”) and GMS Mine Repair & Maintenance, Inc. (“GMS”),
on behalf of Lawrence D. Hagene. Hagene was employed by GMS as a contract
electrician. GMS is a contractor performing services at Prairie State’s Lively
Grove Mine. Section 105(c)(2) of the Mine Act
authorizes the Secretary to apply to the Commission for the temporary
reinstatement of a miner’s employment pending the full resolution of the merits
of his discrimination complaint. A hearing was held in St. Louis, Missouri, on February
9, 2016.[1] 
The parties’ post-hearing briefs were filed on February 17, 2016.

I.                  
Statement of the Case

This
temporary reinstatement proceeding is analogous to a preliminary hearing. Under section 105(c)(2) of the Mine Act,
“if the Secretary finds that [a discrimination] complaint   was not
frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the reinstatement of the miner pending final
order on the complaint.”    30
U.S.C. § 815(c)(2) (emphasis added). Courts and the
Commission have concluded that the “not frivolously brought” standard in
section 105(c)(2) is satisfied when there is a “reasonable cause to believe”
that the discrimination complaint “appears to have merit.” Centralia Mining
Co., 22 FMSHRC 153, 157 (Feb. 2000) (citations omitted). Thus, the
Commission has repeatedly recognized that 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.” See Sec’y of Labor o/b/o Price v. Jim
Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 738 (11th Cir. 1990).  

Hagene last worked for GMS during the second shift from 3:00
pm to 11:00 pm on September 3, 2015. Tr. 66-67. Late in that shift, at
approximately 10:30 pm, a roof fall significantly damaged a 995 volt trailing
cable of a continuous miner. Tr. 67. While troubleshooting the damaged trailing
cable, Hagene affixed an approved laminated warning tag and lock to the cathead
of the damaged cable at the power center. Tr. 72, 75. However, in preparation
to leave at the end of his shift, Hagene replaced his approved personal warning
tag with a makeshift warning note on a discarded wax-like piece of white paper,
and removed his personal lock from the cathead, thus enabling him to take his
personal tag and lock with him when he departed the mine. Tr. 78-81; Resp.
Ex. 2. Hagene was suspended the next day on September 4, 2015, and ultimately
terminated on September 8, 2015, for his failure to
ensure that the damaged trailing cable was continuously locked and tagged out
of service. Tr. 99, 110. Hagene was terminated by GMS after Prairie State
informed GMS that it would no longer allow Hagene to work at its Lively Grove
Mine. Tr. 110-11.

At the hearing, the Secretary acknowledged
that “the question in this proceeding is essentially whether or not putting the
tag on [the damaged trailing cable] was a protected activity and whether the
termination was motivated by that protected activity.” Tr. 32. Similarly, in
his brief, the Secretary asserts that Hagene was terminated as a consequence of his purported protected
activity, identified by the Secretary as Hagene’s “place[ment of] a tag on the
cathead of the damaged cable warning [other miners] that the cable was a
serious safety hazard.” Sec’y Br., at 11-12. In other words, the Secretary
contends that Hagene was terminated “for flagging the hazard.” Tr. 168; 170. The
Secretary further asserts in his brief that Hagene also engaged in protected
activity when he “removed the continuous miner from service after discovering
that its trailing cable was damaged” and when he “informed his Section
Supervisor about the damaged cable.” Sec’y
Br., at 11. Finally, the Secretary contends that Hagene was the victim
of disparate treatment because another contract electrician, who also plugged
the damaged cable into the power center, was not disciplined. See id. at
17-18.

In contrast, the Respondents maintain that Hagene did
not, in essence, “flag enough.”   In this regard, the Respondents contend that
Hagene was terminated for failing to follow company policy, which requires that
damaged equipment, such as a high-powered defective trailing cable, must be effectively
locked and suitably tagged out of service without interruption. See Prairie
State Br., at 6, 18-19.

With regard to the Secretary’s assertion that Hagene’s
removal of the continuous miner from service was a motivating factor in his
termination, it is significant that the Respondents did not object to Hagene’s
removal of the trailing cable’s cathead from the power center because the
damaged trailing cable rendered the continuous miner unusable. Tr. 30-32. In
fact, energizing the damaged cable had tripped circuit breakers, causing a loss
of power in a substantial portion of the mine. Tr. 45. Thus, although Hagene’s
removal of the continuous miner from service constitutes protected activity,
any suggestion by the Secretary that Hagene’s termination could have been
motivated by its removal is indisputably frivolous. In addition, as discussed
below, there is no evidence of disparate treatment as it was only Hagene who
violated the company’s lock out/tag out procedure.

The Secretary has the burden of demonstrating that his
application for temporary reinstatement has not been frivolously brought. 29
C.F.R. § 2700.45(d). However, the Secretary has failed to identify any
protected activity that can serve as a basis for Hagene’s temporary
reinstatement. To the contrary, as discussed below, the evidence reflects that
Hagene was terminated for his failure, by his own admission, to protect miners
from the significant hazards posed by an energized high-powered continuous
miner trailing cable by insufficiently locking and tagging it out after it
sustained damage. Accordingly, the Secretary’s application for Hagene’s temporary
reinstatement must be denied.

II.               
Findings of Fact

As previously noted, Hagene was employed by
GMS as a contract electrician at Prairie State’s Lively Grove mine site. GMS is
a contractor providing staffing and performing services at the Lively Grove
Mine. There are three production shifts at the Lively Grove Mine: 7:00 am to
3:00 pm, 3:00 pm to 11:00 pm, and 11:00 pm to 7:00 am. Tr. 85. Hagene worked
the second shift, 3:00
pm to 11:00 pm. Tr. 66-67. The Lively Grove Mine follows a
“hot seat” procedure, whereby miners must remain in the mine until they are relieved by their
replacement in the oncoming shift. Tr. 67. It is not uncommon for miners to
wait past the end of their shift to be relieved by the oncoming miner. Under
such circumstances, these miners are paid overtime.  Tr. 85.

During Hagene’s shift on September 3, 2015, at approximately
10:30 pm, the Joy Continuous Miner lost power when a rock fall occurred,
damaging its trailing cable. At the time of the roof fall, the continuous miner
was under unsupported roof. Soon thereafter, Hagene was summoned to the power
center to troubleshoot the damaged cable by metering each phase of the cable to
ground to determine the nature and location of the damage. Tr. 69. The power
center was located four crosscuts from the continuous miner. Tr. 70.

Before
work could be done on the damaged cable, the continuous miner had to either be
moved out from under unsupported roof, or timbers had to be installed around
the continuous miner’s location. Tr. 144. In an attempt to move the continuous
miner out from under unsupported roof, Hagene initially energized the
continuous miner, at which time the operator was able to move the continuous miner
approximately two feet before the breaker was tripped and power was lost. Tr.

75. After power was restored, the operator made a second attempt to move the
    miner, again causing a loss of power. Tr. 77.

Throughout the entire troubleshooting process, unless
Hagene was plugging in the cable cathead in an attempt to enable the continuous
miner to be moved, Hagene tagged and locked out the cable with his personal
lock and tag. Tr. 72, 75. Hagene acknowledged that a failure to do so would
expose him and other miners in proximity to the power center or cable to
potential injury from shrapnel from an exploding breaker or burns from the
damaged cable. Tr. 86. When the lock was affixed to the cathead, the miner
could not be re-energized until Hagene removed his lock. Tr. 79-80, 93, 96.

At about 11:50 pm, after two attempts to move the
continuous miner had failed, Hagene removed his personal lock and tag from the
cable cathead in preparation to depart the mine to return home, despite the
fact that he had not encountered his “hot seat” replacement, Caleb Bowsher, on
the section. Tr. 136. Bowsher was also employed by GMS. Tr. 101. Hagene did not
want to leave his personal tag and lock on the cathead after the end of his
shift, as they could only be removed by him personally, or with his
authorization. Tr. 87. Consequently, Hagene replaced his personal lock and tag
with a makeshift tag made of discarded paper. Tr. 78-81;  see Resp.
Ex. 2. Hagene testified that he wrote with a black
permanent marker “Danger, 2 phases grounded, do not plug up” on the piece of
paper, and affixed the paper to the cathead with a piece of wire. Tr. 78. The
makeshift tag attached to the cathead by wire could be easily removed and did
not prevent the cathead from being plugged in. Tr. 79-80. Hagene testified that
he then left the power center and walked to the tool sled to retrieve an
approved company danger tag, which he intended to affix to the cable cathead. Tr.
82, 90. Hagene claims that he did not want to leave his personal lock and tag
on the cathead while fetching an approved company danger tag in case he was
called out of the mine in the interim. Tr. 86-87.

Before Hagene reached the tool sled, he received a radio
call, summoning him back to the power center. Tr. 90-91. When he returned,
Bowsher and Prairie State shift supervisor, Jeremy Coleman, were present at the
power center. Tr. 91. Bowsher was in the process of plugging the cathead into
the power center, which again tripped the breakers causing an interruption of
power in the mine. Tr. 91. Coleman, holding the makeshift tag, told Hagene
“This is unacceptable.” Tr. 91. Hagene reportedly responded to Coleman, saying
that he had left the makeshift tag on the cathead because no work was being
performed on the cable, and because the mine’s     lock out/ tag out policy for
shift changes only required miners “to take and put a tag on it [with] the
description of the hazard.” Tr. 90.

Both Hagene and the Respondents agree that miners had raised the issue of the mine’s lock out/tag
out policy during shift changes at an August 2015 safety meeting. Tr. 88-90; 201-02.
Given the mine’s “hot seat” procedure, miners raised concerns about the need
for “community locks” that can be used to replace the personal locks and tags
of miners departing at the end of their shift. Tr. 67; 87-90. Although the
issue of community locks illustrates the importance of the continuity of
locking and tagging out damaged equipment, at the meeting, mine management opined
that the current policy requiring miners who had installed locks and tags to
wait for their “hot seat” replacement was not a problem that needed to be
addressed.   Tr. 90.

The following day, on September 4, 2015, Hagene was
informed by mine management that he was suspended and under investigation for a
violation of the mine’s lock out/tag out policy. Tr. 100-01. On September 8,
2015, Hagene was informed by GMS management that he had been terminated from
work at the Lively Grove Mine. Tr. 110.

III.            
Procedural Framework

As
previously noted, unlike a trial on the merits, in a discrimination complaint
brought by the Secretary, where the Secretary bears the burden of proof by the
preponderance of the evidence, the scope of a temporary reinstatement
proceeding is limited by statute. Section 105(c) of the Mine Act, as well as
Commission Rule 45(d), 29 C.F.R. § 2700.45(d), limit the issue in an
application for temporary reinstatement to whether the subject discrimination
complaint has been “frivolously brought.” Rule 45(d) provides:

The
scope of a hearing on an application for temporary reinstatement is limited to
a determination as to whether the miner’s complaint was frivolously brought. The
burden of proof shall be upon the Secretary to establish that the complaint was
not frivolously brought. In support of his application for temporary
reinstatement, the Secretary may limit his presentation to the testimony of the
complainant. The respondent shall have an opportunity to cross-examine any
witnesses called by the Secretary and may present testimony and documentary
evidence in support of its position that the complaint was frivolously
brought. 

29 C.F.R. § 2700.45(d).

In
its decision in Jim Walter Res., Inc., v. FMSHRC, 920 F.2d 738 (11th
Cir. 1990), the court noted the “frivolously brought” standard is entirely
different from the scrutiny applicable to a trial on the merits of the
underlying discrimination complaint. In this regard, the court stated:

The
legislative history of the Act defines the ‘not frivolously brought standard’
as indicating whether a miner’s ‘complaint appears to have merit’ – an
interpretation that is strikingly similar to a reasonable cause standard. [Citation
omitted]. In a similar context involving the propriety of agency actions
seeking temporary relief, the former 5th Circuit construed the ‘reasonable
cause to believe’ standard as meaning whether an agency’s ‘theories of law and
fact are not insubstantial or frivolous.’

920 F.2d at 747 (emphasis
in original) (citations omitted).

While
the Secretary is not required to present a prima facie case of discrimination
to prevail in a temporary reinstatement proceeding, it is helpful to review the
elements of a discrimination claim to determine if the evidence at this stage
satisfies the “not frivolously brought” standard. As a general proposition, to
demonstrate a prima facie case of discrimination under section 105(c) of the
Mine Act, the Secretary must establish that the complainant participated in
safety related activity protected by the Mine Act, and, that the adverse action
complained of was motivated, in some part, by that protected activity. See
Sec’y o/b/o Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(Oct. 1980) rev’d on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec’y o/b/o Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). Thus, identification of
a miner’s protected safety related activity is the essential element of
a successful discrimination complaint.

IV.            
Disposition

As a
threshold matter, the evidence in this preliminary temporary reinstatement
proceeding must be viewed in a light most favorable to Hagene because it is not
the judge’s duty to resolve conflicts in testimony at this preliminary stage of
the proceedings. Sec’y o/b/o Albu v. Chicopee Coal Co., Inc., 21
FMSHRC 717, 719 (July 1999). While resolution of credibility conflicts goes
beyond the scope of this proceeding, Hagene’s
own testimony fails to demonstrate that he engaged in any relevant protected
activity. In fact, his decision to leave the cable cathead unattended with
merely a makeshift tag, in and of itself, was hazardous. By way of
illustration, Hagene testified:

Counsel:          Now,
you also said that there are dangers with this cable being plugged in if
there’s a short in it?

Hagene:           Yes.

Counsel:          I
believe your testimony was that the power center could blow up, or an employee
could be burned, or there could be shrapnel if a breaker exploded and the
shrapnel would fly?

Hagene:           Correct.

Counsel:          So
despite those – and you said that you locked it out when you were first
apprised of the problem with the continuous miner, you locked it out because
you didn’t know what was happening and you wanted to make sure that you didn’t
get injured?

Hagene:           That is right.

Counsel:          Yet,
rather than waiting as you’re supposed to for the next crew to come on and have
that conversation with Caleb Bowsher, who himself could be subject to blowing
up, shrapnel, or being burned, you chose to just write a note on the back of a
piece of paper, a piece of garbage, that was left on the transformer? Is that
correct?

Hagene:           Yes.

Counsel:          Because you wanted to go
home?

Hagene:           [inaudible]

Judge:              Excuse me, that was a
yes, Mr. Hagene?

Hagene:           Yes it was, Your Honor.

Judge:              Okay. Thank you.

Counsel:          And that was because you
wanted to go home?

Hagene:           That
was because I was not—he did not relieve me at the proper time.

Counsel:          So
rather than use a proper lock, rather than use a proper tag, rather than try
and find [Bowsher] or radio him to tell him, hey, this is dangerous over here,
you better be concerned about it, you wanted to go home?

Hagene:           I put the note on there
because of safety issues.

Tr.
145-47. Thus, the thrust of the above-quoted testimony is that Hagene conceded
that the priority he gave to his desire to go home, rather than to his
responsibility to await his replacement from the oncoming shift for the purpose
of directly communicating the details of the hazard, exposed Bowsher, the oncoming
electrician, to injury.

Hagene
asserts that he believed that company safety policy permitted him to remove his
lock at the end of his shift, as long as a danger tag was attached to the
cathead, regardless of whether Hagene’s replacement on the oncoming shift had
arrived. Tr. 90. On the other hand, Prairie State maintains that its relevant
policy was to both lock and tag out during shift changes.     Tr. 202, 208. Prairie
State’s desire to see that its lock out procedure is followed is evidenced by
its December 12, 2010, Lock Out/Tag Out Standard Operating Procedure (SOP)
memo, which states “WHEN IN DOUBT, LOCK IT OUT!!” Gov. Ex.
3, at 2 (emphasis in original).

The “Commission
does not sit as a super grievance board to judge the industrial merits,
fairness, reasonableness, or wisdom of an operator’s employment policies except
insofar as those policies may conflict with rights granted under section 105(c)
of the Act.” Delisio v. Mathies
Coal Co., 12 FMSHRC 2535, 2544 (Dec. 1990) (citations omitted). Rather,
Commission judges must “analyze the merits of a mine operator’s alleged
business justification for the challenged adverse action.” Sec’y of Labor
o/b/o Chacon v.
Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). A mine operator’s
interest in seeing that damaged high-powered cables are properly tagged and
locked out is self-evident. Whether Hagene’s apparent failure to properly tag
and lock out warranted his termination is not an appropriate matter for the
Commission to decide.

Thus, the extent to which Hagene violated company policy
goes beyond the scope of this proceeding, unless it is being used by the
Respondents to mask their discriminatory intent, an ulterior motive not
demonstrated by the facts of this case.[2] In this regard, in
determining whether or not a mine operator is attempting to mask discriminatory
intent, the Commission looks to factors such as hostility or animus, or
disparate treatment. Chacon, 3 FMSHRC at 2510.

With
regard to animus, as previously noted, the
Respondents did not object to Hagene’s removal of the trailing cable’s cathead
from the power center because the damaged trailing cable rendered the
continuous miner unusable, and energizing it caused a loss of power in a
substantial portion of the mine. Tr. 30-32. With regard to disparate
treatment, although both Hagene and Bowsher were initially under investigation,
Bowsher was not disciplined because he did not violate the mine’s lock out/tag
out policy. Thus, there are no circumstantial indicia that can be relied upon
by the Secretary to infer a discriminatory motive. In the final analysis, Hagene’s failure to
adequately lock and tag out a damaged 995 volt trailing cable cannot be
reasonably construed to constitute protected activity under the Mine Act.

Additionally, it is noteworthy that the mandatory
standard in 30 C.F.R. § 75.512 requires that “potentially dangerous . . .
electrical equipment . . . shall be removed from service until such condition
is corrected.” Given the Secretary’s failure to identify any relevant protected
activity, I need not address whether Hagene’s failure to ensure that the damaged
trailing cable remained continuously locked and tagged out of service until it
is repaired constitutes a violation of section 75.512, which may provide an
additional basis for the disciplinary action taken by the Respondents in this
matter. See also 30 C.F.R. § 75.511.

ORDER

In
view of the above, considering the evidence in a light most favorably to the
Secretary, the Secretary has failed to identify any protected activity that can
serve as a basis for the grant of the application for Hagene’s temporary
reinstatement. Consequently, the Secretary’s temporary reinstatement
application must be deemed to have been frivolously brought.

Accordingly,
IT IS ORDERED that the Secretary’s application for temporary reinstatement
of Lawrence D. Hagene IS DENIED. IT IS FURTHER ORDERED that the
temporary reinstatement proceeding in Docket No. LAKE 2016-101 IS DISMISSED.

/s/ Jerold
Feldman

Jerold Feldman

Administrative
Law Judge

Distribution:

Travis W. Gosselin, Esq., U.S. Department of Labor, Office
of the Solicitor, 203 S. Dearborn Street, Room 844, Chicago, IL 60604

R. Henry Moore, Esq., Jackson Kelly PLLC, 401 Liberty
Avenue, Pittsburgh, PA 15222-1000

R. Lance Witcher, Esq., Ogletree Deakins, Nash, Smoak &
Stewart, 7700 Bonhomme Avenue, Suite 650, St. Louis, MO 63105

/acp

[1]
Commission Rule 45(c) provides that a temporary
reinstatement hearing shall be held within ten calendar days following Prairie
State’s December 8, 2015, hearing request. 29 C.F.R.         § 2700.45(c). The
hearing in this matter was delayed due to the holidays, scheduling conflicts of
counsel, and the significant January 23, 2015, snowstorm and resulting travel
disruptions.  

[2] The Secretary apparently desires the Commission to
determine whether Hagene’s conduct was “adequate enough.” On this point, the
Secretary argues:

Putting
aside the question of whether Hagene’s actions were the best means of
addressing the hazard associated with the damaged cable, the evidence
demonstrates that Hagene took affirmative steps to identify and flag a hazard.

Sec’y Br., at 18. Absent
evidence of an underlying discriminatory motive, the determination of whether
Hagene’s “affirmative steps” adequately addressed the hazard is for the mine
operator, not the Commission, to decide.