Secretary of Labor on behalf of Roberto Vega v. Cantera El Tuque, Inc.

Plain-English summary

Roberto Vega supervised work at Cantera El Tuque and testified that he reported unsafe dust and defective mobile equipment to an MSHA inspector and the mine owner before he was terminated. Judge William B. Moran found credible substantial evidence of protected safety complaints, management knowledge, an adverse action, and close timing, which made the discrimination complaint nonfrivolous. The Judge declined to decide the company's competing claim that economic conditions caused the layoff because a temporary-reinstatement proceeding does not resolve conflicting explanations for termination. He denied the company's summary-decision request and ordered Vega immediately reinstated to his former or an equivalent position with the same pay and benefits. The company remained free to seek tolling of economic reinstatement with supporting documentation, and the Secretary was ordered to report on the underlying investigation within 30 days.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(2) and 815(c)(3)
• Outcome: Vega's temporary-reinstatement application was granted, and the company's summary-decision request was denied.
• Key point: A miner need only present a nonfrivolous discrimination claim at the temporary-reinstatement stage; competing explanations for discharge are reserved for later proceedings.

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: 202-434-9933
/ FAX: 202-434-9949

June 24, 2014

SECRETARY
OF LABOR

on behalf of ROBERTO VEGA,    

Complainant,

v.

CANTERA
EL TUQUE, INC.,                                  

Respondent,

TEMPORARY
REINSTATEMENT

PROCEEDING

Docket
No. SE 2014-300-DM

SE-MD
14-19

Mine:
Cantera El Tuque

Mine
ID: 54-00483

DECISION AND
ORDER

Appearances:               Summer
C. Smith, Esq., Office of the Solicitor, U.S. Department of Labor, New York,
New York, for the Secretary of Labor.

Javier
González-Montañez, Esq., Gonzalez, Machado, Roig & Sanchez Ramos, LLC, San
Juan, Puerto Rico, for Respondent

Before:
                       Judge Moran

DECISION AND
ORDER REINSTATING ROBERTO VEGA[1]

A
temporary reinstatement hearing was held in this matter on June 13, 2014, in San
Juan, Puerto Rico. For the reasons which follow, the Court finds that the
application was not frivolously brought and consequently it is ordered that Roberto
Vega be reinstated to his former position, with all attendant benefits,
effective immediately.

Temporary
Reinstatement under the Mine Act

Section
105(c) of the Mine Act prohibits discrimination against miners for exercising
any protected right under the Mine Act. The purpose of the protection is to
encourage miners “to play an active part in the enforcement of the [Mine Act],”
recognizing that, “if miners are to be encouraged to be active in matters of
safety and health, they must be protected against any possible discrimination
which they might suffer as a result of their participation.” S. Rep. No. 181,
95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 623 (1978).

Section
105(c)(2) of the Mine Act provides in relevant part that “Any miner or
applicant for employment or representative of miners who believes that he has
been discharged, interfered with, or otherwise discriminated against by any
person in violation of this subsection may, within 60 days after such violation
occurs, file a complaint with the Secretary alleging such discrimination. . . .
[I]f 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.”

In
adopting section 105(c), Congress indicated that a complaint is not frivolously
brought if it “appears to have merit.” S. Rep. No. 181, 95th Cong., 1st Sess.
36-37 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong. 2nd Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 624-25 (1978). In addition to Congress’ “appears to
have merit” standard, the Commission and the courts have also equated “not
frivolously brought” to “reasonable cause to believe” and “not insubstantial.” Sec'y
of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306
(Aug. 1987), aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990) (“JWR”).
Sec. obo Piper, Complainant, v. Kenamerican Resources, Inc. (June 2013)
(Judge Andrews), 2013 WL 3865343 at *2.

The
Commission itself “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.’ [JWR
supra] It is “not the judge's duty, nor is it the Commission’s, to resolve
the conflict in testimony at this preliminary stage of the proceedings.” Sec'y
on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999) (“Chicopee
Coal”). In reviewing a judge's temporary reinstatement order, the
Commission has applied the substantial evidence standard. See, id. at
719; Sec'y on behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC
2425, 2426 (Dec. 1993). Id. at n. 2.” Sec. obo Rodriguez v. C.R.
Meyer and Sons Co. 2013 WL 2146640 at *5 (May 2013).

“Temporary
Reinstatement is a preliminary proceeding, and narrow in scope. The plain
language of the Act states that ‘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.’ 30 U.S.C. § 815(c)(2). The judge must determine
whether the complaint of the miner ‘is supported substantial evidence and is
consistent with applicable law.’ Sec'y of Labor on behalf of Peters v.
Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). Neither the judge
nor the Commission is to resolve conflicts in testimony at this stage of the
case. Chicopee Coal at 719. A temporary reinstatement hearing is held
for the purpose of determining ‘whether the evidence mustered by the miners to
date established that their complaints are nonfrivolous, not whether there is
sufficient evidence of discrimination to justify permanent reinstatement.’ JWR,
920 F.2d at 744. “Congress intended that the benefit of the doubt should be
with the employee, rather than the employer, because the employer stands to
suffer a lesser loss in the event of an erroneous decision since he retains the
services of the employee until a final decision on the merits is rendered.” Sec'y
of Labor, on behalf of Curtis Stahl v. A&K Earth Movers Inc., 22 FMSHRC
233, 237 (ALJ) (Feb. 2000).” Sec. obo Piper, Complainant, v. Kenamerican
Resources, Inc. (June 2013) (Judge Andrews), 2013 WL 3865343 at *2.

Findings
of Fact and Conclusions of Law

At
the hearing, the Complainant, Roberto Vega, testified. Mr. Vega stated,
credibly,   in the Court’s estimation, that he was employed by the Respondent,
Cantera El Tuque, from December 1, 2012 until April 17, 2014, as a supervisor. In
that capacity, he reported to Mr. Enrique Golderos, the owner of the Respondent
Mine. Tr. 9-10. Mr. Vega stated that he spoke with MSHA Inspector Villahermosa
during February 2014 and that the conversation included Mr. Vega’s remarks to
the inspector about certain unsafe conditions at the mine. Tr. 18. Citations
were issued by the Inspector during that time and presented to Mr. Vega. Mr.
Vega then informed Mr. Golderos about the citations that were issued. Mr. Vega
affirmed during his testimony that he identified safety hazards at the mine. These
included fugitive dust, equipment with defects, such as a non-functioning
emergency brake and back-up alarm on a loader, among other issues. Mr. Vega
stated that he identified these safety issues to the inspector and as a consequence,
citations were issued to the mine. Tr. 19-21.  

Subsequently, the same Inspector
returned to the mine during March 2014 to follow-up on the citations he had
previously issued. Tr. 25. The loader which had been cited during the February
inspection was still unrepaired and the Inspector issued an Order, barring
future use of it until the violative condition was abated. Id. During
the March follow-up inspection, Mr. Vega spoke with the Inspector about other
safety concerns he had about the mine.  The Court finds that these safety
concerns were communicated to the MSHA Inspector and that those concerns were
not negligible.

Upon questioning by the Court, Mr. Vega
testified that he had discussions with Mr. Golderos about these, and other
identified safety concerns, on several occasions. Tr. 26. These conversations
occurred after the citations had been issued and Mr. Vega stated that Mr.
Golderos never took any action regarding those concerns. Tr. 27.  Beyond this,
Mr. Vega asserted that, in conversation with Mr. Golderos, he was advised that
he needed to “learn” how to speak with MSHA inspectors. In the context
presented, Mr. Vega stated, he construed this to mean that he was to lie to the
inspectors.

During cross-examination and repeatedly
during the proceeding, Counsel for the Respondent attempted to interject
testimony regarding its claim that Mr. Vega was actually fired due to economic
reasons at the mine. See, for e.g. Tr. at 37.

The Court found that the government
established, through the testimony of Mr. Vega, its prima facie case that the
claim was not frivolously brought.  This was based upon the Court’s conclusion
from that testimony, finding that the witness was credible, that he made safety
complaints, both to the MSHA Inspector and to the owner, and that, in close
proximity in time, he was fired from his job with the mine. The Court added
that it was not aware of any Commission level decision in support of
considering the Respondent’s claim that Mr. Vega was discharged for economic
reasons. Tr. 45-47. In fact, case law points to the opposite conclusion. As
noted by the Secretary in its Motion in Limine, the decisions regarding Secretary
of Labor on behalf of Joseph M. Ondreako v. Kennecott Utah Copper Corp.,
2003 WL 23416466 (Oct. 9, 2003), aff’d 25 FMSHRC 585, make this
conclusion clear.

As the Court noted, “So what I have here
is Mr. Vega's testimony, which I deem to be credible upon observing him, that
he is an employee of this mine, or was; that he made safety complaints to an
MSHA inspector, which I found to have been credible testimony; and then that
adverse action followed within a reasonable period of time following those
complaints.” Tr. 56.

In the face of the Respondent’s
contention that its defense “has to do with, that on prior occasions, both the
witness as well other employees, brought safety issues before the respondent
and the consequence was never employee termination. And at the end of the day
this court will have the opportunity to see, in this proceeding that's being
held, that there were other motivations that have nothing to do with safety,
which were the ones that moved this employee to request this remedy,” the Court
tried to explain that such weighing of competing versions for the employee’s
termination is outside the scope of a temporary reinstatement proceeding. Tr.
60-61.

The Respondent, in defense, called one
witness, Ms. Magda Marie Rivera. Ms. Rivera, declared to be an employee of the
Respondent, stated that the mine had approximately 25 employees in early 2013
but today has only 14 employees. Tr. 70. Again, the Respondent attempted to
show, this time through the testimony of Ms. Rivera, the “real reasons, the
true reasons, why [Mr. Vega] was fired,” and again the Court advised that
consideration of such testimony would necessarily involve a weighing of
competing stories, and that this would be outside of the proper scope of the
temporary reinstatement proceeding. Tr. 73-74.

At the conclusion of the testimony, the
Respondent asked that the Court take “judicial notice” that, under Puerto
Rico’s labor law, during layoffs an employer must terminate the employee with
the least seniority. The Court advised that it did not believe that such
considerations were material to the proceeding but that the parties could
submit cases in support of their respective positions on that point, if such
case law existed. The Respondent has not identified such case law to support
its contention.

On June 16, 2014, the Secretary, via
email, noted the Court’s “request at the close of hearing on June 13, 2014, to
identify any case law supporting the proposition that state law could affect a
temporary reinstatement proceeding.” The Secretary advised that it “found no
case law supporting such a proposition. Furthermore, Section 506 of the MSH Act
states that the MSH Act preempts state law where it conflicts with the ‘[MSH]
Act or with any order issued or any mandatory health or safety standard. 30 USC
955.’” Based upon that response, the Secretary asserted that “the Puerto Rico
statutes that Respondent’s counsel alluded to during the hearing are not
relevant to this temporary reinstatement proceeding.”  

Respondent’s
Motion for Summary Decision

The Secretary noted that the Respondent
filed a summary judgment motion at the time it responded to the Secretary’s
Motion in Limine. The Respondent’s “Request for Summary Judgement” [sic],
asserts that “[t]he decision to separate Mr. Vega from his work duties
responded to an adverse financial condition of Respondent, a fact that has not
been disputed by Applicant.” Motion at 1. The Motion goes on to assert that Mr.
Vega was one of a number of employees that were laid off as a result of the
Respondent Mine’s “adverse financial condition,” and that he was so informed by
the mine’s President, Mr. Golderos, that the mine’s economic condition was the
basis for the termination. Id. at 2.[2]

As that motion was filed just two days
before the temporary reinstatement proceeding, the Secretary had not filed a
response at the time of the hearing. The Secretary elected to respond to the Respondent’s
motion orally, at the close of the hearing. It contended that the Respondent’s
motion was premature as it goes to the merits of the underlying discrimination
proceeding and therefore is outside of the “frivolously brought” issue to be
decided at this juncture. Further, the Secretary contended that, even assuming
for the sake of argument that the motivation for Mr. Vega’s termination could
be raised, there are factual disputes involved, and therefore that summary
judgment is not appropriate. Tr. 83-84. The Court agrees with the Secretary’s
arguments.

As referenced earlier in this decision,
the scope of a temporary reinstatement proceeding is very limited. Considering
that the basis advanced in the Request for summary judgment goes beyond the
scope of this proceeding, as it would entail a weighing of different narratives
as to the basis for the Complainant’s termination, summary decision is not
appropriate. Accordingly, the Request is DENIED.

Conclusion

The Court has noted that the testimony
on the subject of protected activity, and whether adverse action was motivated
in any part by such activity, came solely from the Complainant, Mr. Vega. Against
this was the Respondent’s attempt to show that the miner’s discharge was due to
economic conditions at the mine. However, the fundamental problem with that
approach is that the temporary reinstatement application is not the proceeding
for the resolution of such competing narratives. Rather, the Court must
focus upon whether there is credible substantial evidence presented to show
that protected activity occurred, that adverse action resulted, and that there
was evidence of a nexus between those events.  Here, as noted, the Court finds
that: the record at the application proceeding provided substantial evidence of
the Complainant’s engaging in protected activity, voicing his concerns over
several safety matters; that management was made aware of these concerns; and
that an adverse action, in the form of termination, occurred within a time
frame thereafter which was sufficiently close in time to establish, on this
record, and within the context of temporary reinstatement, that the application
was not frivolously brought.    

While the Court has found that Mr.
Vega’s complaint of discrimination was not frivolously brought, it is fully
recognized that the Commission has noted that the period of reinstatement may
be tolled in some circumstances. A layoff for economic reasons may provide
such a basis for tolling, but that is a very fact-specific inquiry.  See,
e.g., Sec. obo Gatlin v. Kenamerican Resources, 31 FMSHRC 1050,
2009 WL 3412973 (Oct. 2009), Sec. obo Ratliff v. Cobra Natural Resources,
35 FMSHRC 394, 2013 WL 865606 (Feb. 2013). The Respondent may initiate this
process by filing a motion to toll the economic reinstatement, which motion
must fully set forth the basis for that relief. Of course, the motion must
provide documentation in support of the claim for tolling. The Secretary will
need to timely respond to the motion and then seek discovery in order to
make its own evaluation of the bona fides of the Respondent’s claim for relief.
As the Court explained in a conference call with the parties on June 24, 2014,
various scenarios may ensue upon the completion of the discovery and the
evaluation of that information by the Secretary. It is possible, for example,
that the Secretary may concede that tolling is appropriate or that it is not
justified. On the other hand, it may be that the Respondent may step back from
its motion and withdraw its claim that tolling should be applied. It is also
possible that a hearing may be required to resolve factual disputes about the
Respondent’s employment situation and the appropriateness of Mr. Vega’s
inclusion in that layoff, given the finding that his claim was not frivolously
brought.

Regardless of the outcome of any
potential motion to toll the period of economic reinstatement, the Secretary
continues to have the obligation, following the issuance of this Decision and Order,
to complete its investigation of the underlying discrimination complaint as
soon as possible. Section 105(c)(3) of the Mine Act requires the Secretary to
notify the complainant of whether it intends to file a discrimination complaint
on the complainant’s behalf within 90 days of receiving the miner’s initial
complaint. If the parties settle the underlying discrimination case, counsel
for the Secretary is directed to promptly notify the Court. Similarly, prompt
notification to the Court is required if the Secretary determines that the
Respondent did not violate section 105(c) of the Mine Act.                            

ORDER

On the basis of the foregoing, the Court finds that the Secretary presented
sufficient evidence at the hearing in Puerto Rico to establish that this
discrimination complaint was not frivolously brought. Accordingly, it is ORDERED
that the Respondent immediately reinstate the Complainant, Roberto Vega, as of
the date of this ORDER, to his former position, or its equivalence, at the same
rate of pay and benefits that he was receiving at the time of his termination. The
Secretary is directed to provide a status report of its discrimination
investigation within 30 days of this decision. The Court retains jurisdiction
over this temporary reinstatement proceeding.

/s/
William B. Moran   

William
B. Moran

Administrative
Law Judge

Distribution:

Summer C. Smith,
Esq., Office of the Solicitor, U.S. Department of Labor, 201 Varick St., Room
983, New York, NY 10014

Javier
Gonzalez, Esq., Citibank Tower, Suite 601, 252 Ponce de Leon Avenue, San Juan,
Puerto Rico 00918

Enrique
Golderos, President, Cantera El Tuque, Inc., P.O. Box 801354, Coto Laurel, PR
00780

[1] This decision also disposes of the Respondent’s
Motion for Summary Decision. See infra at 4.

[2] Respondent
submitted a “Memorandum of Law in Support of Summary Judgement” [sic] on June
19, 2014. Because the Court denies the Respondent’s Motion, there is no need to
await a Response from the Secretary.