Secretary of Labor obo John Collins v. Crimson Oak Grove Resources, LLC

Plain-English summary

John Collins repeatedly told his supervisor that he was uncomfortable using a smaller front-end loader to lift heavy pan line. During the second lift, the loader's rear rose more than five feet, the load slid off, the machine crashed back down, and Collins injured his back. Crimson later discharged Collins, citing that incident and two earlier equipment-damage events. The Commission majority held that Collins presented a non-frivolous claim of a good-faith safety complaint followed closely by suspension and discharge, and that disputed equipment and operating evidence could not be weighed at the temporary-reinstatement stage. It also rejected Crimson's due-process challenge and affirmed temporary reinstatement. Commissioner Althen dissented because he found the loader was proven capable, the discharge followed a third damaging incident, and no evidence connected the safety concern to the termination.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(c)(1) and 815(c)(2)
• Outcome: The ALJ's temporary reinstatement order was affirmed.
• Key point: At the preliminary stage, a plausible good-faith equipment-safety complaint and close timing can support reinstatement despite disputed evidence about machine capacity and operator error.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY OF
LABOR,

MINE SAFETY
AND HEALTH

ADMINISTRATION
(MSHA)

on behalf
of JOHN COLLINS

                    v.

CRIMSON OAK
GROVE RESOURCES,

LLC

:

:

:

:

:

:

:

:

:

Docket No. SE
2023-0235

BEFORE: Jordan, Chair; Althen, Rajkovich and Baker, Commissioners

DECISION

BY:
Jordan, Chair; Rajkovich and Baker, Commissioners

        This

temporary reinstatement proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). The Secretary
of Labor filed an Application for Temporary Reinstatement on behalf of John
Collins against Crimson Oak Grove Resources, LLC, (“Crimson”) pursuant to
section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2). On September 18,
2023, the Administrative Law Judge issued a Decision and Order Reinstating John
Collins. 45 FMSHRC __, Docket No. SE 2023-0235 (Sept. 18, 2023) (ALJ). On
September 22, 2023, Crimson filed a Petition for Review of Temporary
Reinstatement Order in which it argued that the Judge erred in finding the
miner’s complaint was not frivolously brought. It further argued that the Mine
Act’s and Commission’s procedures governing temporary reinstatement have
deprived it of due process of law. On September 29, 2023, the Secretary filed a
response. For the reasons which follow, we hereby affirm the Judge’s decision.

I.

Factual and Procedural Background

A.
Factual Background

Crimson operates
the Oak Grove Mine, an underground coal mine near Adger Alabama, which mines
coal through room-and-pillar-mining and longwall mining. At the time of his
discharge John Collins worked as a mobile equipment operator at the surface
yard. Collins had worked at this mine for 19 years, and as a mobile equipment
operator since February 2023.

On July 27,
2023, Collins filed a discrimination complaint with MSHA alleging that he was
unlawfully discharged from employment with the mine after complaining that it
was not safe to operate a Komatsu 250 front-end loader for the task which he
was assigned, and then allegedly failing to safely operate the equipment.

The relevant
incident occurred on June 14, 2023. Crimson supervisor Paul “Jeff” Jamison
assigned Collins to load pan line [1]
onto a haul truck using a Komatsu front-end loader. Collins testified that he
was concerned that the loads were too heavy for the Komatsu; the Cat loader, a
larger loader, is normally used for this task. Tr. 28-29.

Collins informed Jamison that he was uncomfortable using
the Komatsu loader to lift such a heavy load. [2] Jamison
responded that the Komatsu is regularly used for this task. Collins responded,
“I understand that, Jeff, but I’m not comfortable using it.” Tr. 26. Jamison
responded that the larger loader was not available. Collins then stated, “I’m
going to tell you again, I don’t feel comfortable doing it, but I will go ahead
and do it.” Tr. 26, 30. Collins testified that he reluctantly complied with his
supervisor’s directive despite his concerns because he was worried about losing
his job. [3]

Collins
successfully placed the first load onto the haul truck using the Komatsu. He
testified the heavy pan line caused the loader to rock which was “kind of
scary.” Tr. 28, 30-31. Collins transported the second pan line across the yard.
As Collins attempted to raise the load onto the truck, the back end of the
Komatsu lifted from the ground. Tr. 31-32. The rear tires lifted more than five
feet from the ground, as the front of the machine dipped lower. The load slid
off and the rear of the Komatsu crashed back to earth. Collins injured his
back. Tr. 36. Another miner finished loading the haul truck using the heavier
Cat loader. Collins testified that about five minutes after the incident he
told Jamison that he “knew it was going to happen.” Tr. 35.

        On June 23, Collins

was called into a meeting with mine manager Jesse Avery, a representative from
human resources, and an union representative. Together they jointly watched a
security video of Collins attempting to load the haul truck on June 14, 2023. Jamison
testified that the video depicted Collins using proper technique during his
initial lift, but using improper technique on his second loading attempt. Specifically,
Jamison believed that the video demonstrated that he failed to tip the forks
back and that the load was not safely secured against the mast. Tr. 64. Collins
was suspended after the meeting, pending an investigation into the June 14th
incident.

        Avery testified that

he learned from his investigation that after Collins’ recent suspension he
routinely told Jamison that he was uncomfortable with his assigned tasks. Tr.

92. Avery testified that Jamison believed that the loader could be safely used.
    Tr. 92.

Crimson General
Manager Eric Koontz testified that Collins recently had two other incidents in
which he damaged parts and equipment while operating mobile equipment. Koontz
testified that he had offered Collins alternative work after becoming concerned
that he was operating equipment carelessly. Tr. 93. In one instance, on March
23, 2023, Collins damaged a pump while unloading a truck. Tr. 61. In the other
instance, on April 13, 2023, Collins damaged the Komatsu loader while operating
it. Tr. 62.

Koontz
determined that Collins operated the Komatsu loader dangerously on June 14,
2023. Koontz testified that the Komatsu loader was capable of lifting the
assigned loads. Specifically, as configured, the Komatsu loader was capable of
lifting 15,000 pounds. A scale ticket from August 9, 2023 demonstrated that a pan
line weighed approximately 11,500 pounds. Tr. 68, 98; R. Exs. E, G. Koontz
testified that he made the decision to discharge Collins based on these three
incidents. Tr. 93.

        On July 21, 2023, an

arbitrator found that Crimson did not violate the collective bargaining
agreement when it fired Collins. On July 27, 2023, Collins filed the subject
discrimination complaint with MSHA. An inspector for the Secretary began his
investigation and, thereafter, filed an application for Collins to be
temporarily reinstated to his former position pending a decision on the merits
of his complaint.

B.
The Judge’s Decision

On September 18,
2023, a Commission Administrative Law Judge concluded that Collins’ repeated
declarations that he was uncomfortable with his assigned task constituted
protected activities sufficient to meet the Secretary’s burden of proof in a
temporary reinstatement proceeding.

In his written
decision and order reinstating John Collins, the Judge noted that Crimson
submitted evidence in an attempt to demonstrate that the pan lines were within
a Komatsu loader’s safe lifting capacity. The Judge found that without expert
testimony he was unable to interpret the technical evidence relating to the
machine’s capabilities. Regardless, even if evidence demonstrated that the pan
lines could be safely loaded with a Komatsu 250, so long as the miner has a
good faith belief that there is a safety hazard, they are protected in bringing
their concern to the operator. Slip op. at 14 ( citing Sec’y on behalf of
Robinette , 3 FMSHRC 803 (Apr. 1981); Gilbert v. FMSHRC , 866 F.2d
1433 (D.C. Cir. 1989)). The Judge further concluded that his discharge was an
adverse employment action and that there was reasonable cause to believe that
the operator was aware of Collins’ protected activity, showed animus, and that there
was a close connection in time between the protected exercise and the miner’s
discharge. For these reasons, the Judge granted the Secretary’s application for
the temporary reinstatement of Collins.

II.

Disposition

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 immediate reinstatement of
the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2). The
purpose of this protection is to encourage miners “to play an active part in
the enforcement of the Act,” in recognition of the fact that “if miners are to
be encouraged to be active in matters of safety and health they must be
protected against . . . discrimination which they might suffer as a result of
their participation.” S. Rep. No. 95-181, 95th Cong. 1st Sess. 35 (1977), reprinted
in Senate Subcomm. on Labor, Comm. on Human Res., 95th Cong. 2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977 , at 623. Temporary
reinstatement is “an essential protection for complaining miners who may not be
in the financial position to suffer even a short period of unemployment or
reduced income pending the resolution of the discrimination complaint.” Id .
at 624-25 (1978).

An operator may
request a hearing following receipt of the Secretary’s application for
temporary reinstatement pursuant to Commission Procedural Rule 45(c), 29 C.F.R.
§ 2700.45(c). Rule 45(d), 29 C.F.R. § 2700.45(d), provides that in such hearing
“the Secretary may limit his presentation to the testimony of the complainant. The
respondent [operator] 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.”

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 obo Price v. Jim Walter Res., Inc ., 9 FMSHRC 1305,
1306 (Aug. 1987), aff'd , 920 F.2d 738 (11th Cir. 1990); Sec'y obo
Jones v. Kingston Mining, Inc. , 37 FMSHRC 2519, 2522 (Nov. 2015). The “not
frivolously brought” standard reflects a Congressional intent that “employers
should bear a proportionately greater burden of the risk of an erroneous
decision in a temporary reinstatement proceeding.” Jim Walter Res. , 920
F.2d at 748, n.11.

Notably, at the hearing, the Judge must determine “whether
the evidence mustered by the miner[] to date established that [his or her]
complaint[] [is] nonfrivolous, not whether there is sufficient evidence of
discrimination to justify permanent reinstatement.” Id. at 744. As
the Commission has recognized, “[i]t [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 obo Albu v.
Chicopee Coal C o., 21 FMSHRC 717, 719 (July 1999).

The Commission then
reviews a Judge’s temporary reinstatement order to determine whether it is
supported by substantial evidence. See e.g. , Sec’y obo Williamson v.
Cam Mining, LLC , 31 FMSHRC 1085, 1088 (Oct. 2009). “While an applicant for
temporary reinstatement need not prove a prima facie case of discrimination, it
is useful to review the elements of a discrimination claim in order to assess
whether the evidence at this stage of the proceedings meets the non-frivolous
test. In order to establish a prima facie case of discrimination under section
105(c) of the Act, a complaining miner bears the burden of establishing (1)
that he engaged in protected activity and (2) that the adverse action complained
of was motivated in any part by that activity.” Id . at 1088 (citations
omitted).

A.
Substantial Evidence Supports the Judge’s Determination that the
Secretary Demonstrated a Non-Frivolous Case that Collins Engaged in Protected
Activity.

On review,
Crimson argues that the Judge erred by finding that Collins actions were
protected by the Mine Act. The operator maintains that its undisputed evidence
refutes Collins’ belief that it was hazardous to load pan line with the Komatsu
250 loader. [4]

We disagree. Substantial
evidence supports the Judge’s finding that the Secretary demonstrated a
non-frivolous case that Collins engaged in activity protected by the Mine Act. Additionally,
there is evidence that the complaint was made in good faith. See Simpson v.
FMSHRC , 842 F.2d 453, 458 (D.C. Cir. 1988) (the Mine Act protects the right
to refuse work under conditions that a miner reasonably and in good faith
believes to be hazardous).

Collins
testified that while he regularly operated the Komatsu front-end loader, he had
never before used it to load pan lines. Tr. 21-22. Collins believed that the
pan line was too heavy to be safely lifted with the Komatsu, which is why the
heavier Cat loader was regularly used to perform this task at the mine. Tr. 22,
28-29, 31. Collins testified that he told Jamison three times that he was not
comfortable using the Komatsu loader for this assignment before eventually
acquiescing. While Collins was attempting to load the second pan line onto the
truck, the weight of the lifted load caused the back end of his machine to rise
approximately five feet off of the ground and the pan line to slide from the
loader’s forks. Collins told Jamison that he “knew it was going to happen”
directly thereafter. Tr. 35. Collins testified that he injured his back in the
fall. Tr. 36.

Crimson argues
that the Judge erred; it contends that it submitted evidence that demonstrates
that the Komatsu can be safely used to lift pan lines. It further argues that its
evidence demonstrates that Collins operated the equipment improperly.

A review of the
record demonstrates that Crimson’s evidence was in fact disputed. In
particular, there was a conflict as to whether the Komatsu could be safely
used. Collins testified that it was not possible to safely use the Komatsu to
load pan line. When he performed the task the loader became unbalanced. In
contrast, Crimson introduced evidence suggesting that a pan line was within a
Komatsu 250’s safe loading capacity. Specifically, it introduced evidence that
the loader had the capacity to lift approximately 15,000 pounds, Tr. 98; R. Ex.
G (Komatsu 250 specification sheet) and evidence that a pan line weighed 11,560
pounds. [5]
R. Ex. E (August 9, 2023 scale ticket).

Additionally,
there was a conflict as to whether Collins used proper procedures when
attempting to load the haul truck. Collins testified that he used the same
lifting procedure during the first successful lift and the second unsuccessful
attempt. Tr. 40-41. In contrast, Crimson argues that the video and testimony
established that Collins used improper technique on his second loading attempt.
Jamison testified that the video demonstrated that Collins failed to take
adequate measures to straighten his load or to tip the load backwards to
prevent it from sliding off of the forks. [6]
Tr. 64-68.

The Judge is
simply not permitted to resolve these conflicts in the testimony and evidence
in a temporary reinstatement decision. Sec'y of Labor obo Albu , 21
FMSHRC at 719 (“[i]t [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.”). At the hearing on the merits of the complaint, the operator
will be provided with the opportunity to attempt to demonstrate the equipment
could be safely used for the task and to attempt to demonstrate that Collins
failed to follow correct procedures. The hearing will be conducted after the
parties have had the opportunity to engage in appropriate discovery regarding
these technical issues. Despite Crimson’s arguments, the Judge was not
permitted to weigh the evidence submitted by the parties. On review, the only
inquiry is whether the Judge’s conclusion is supported by substantial evidence.
It is. [7]

B.
The Commission’s Procedures Provided Crimson with Due Process.

Crimson contends
that the Commission’s temporary reinstatement proceedings are constitutionally
defective. It maintains that principles of due process require that an operator
be permitted to challenge the complainant’s credibility and for the fact-finder
to be able to weigh the evidence before him.

Crimson’s
arguments have been addressed and refuted by the Supreme Court in Brock v.
Roadway Exp. , 481 U.S. 252 (1987) and by the Court of Appeals for the Eleventh
Circuit in Jim Walter Res ., 920 F.2d 738 (11th Cir. 1990).

Due process
requires fair notice and an opportunity to be heard “at a meaningful time and
in a meaningful manner.” Roadway Exp., Inc ., 481 U.S. at 261 (1987)
(citing Mathews v. Eldridge , 424 U.S. 319, 333 (1976) [8] ). In Jim
Walter Res ., the Eleventh Circuit found that the Mine Act and the
Commission’s Procedural Rules governing temporary reinstatement proceedings
“far exceeded” the minimum constitutional requirements. The Eleventh Circuit
also specifically rejected the operator’s argument that the Commission’s “not
frivolously brought” standard in temporary reinstatement hearings was so easily
met by a complaining miner that the operator was deprived of due process of
law.

In so ruling the
Eleventh Circuit relied upon Roadway Express , in which the Supreme Court
determined that a similar temporary reinstatement provision in the Surface
Transportation Assistance Act of 1982 provided the employer with due process of
law. The Supreme Court held that the absence of a pre-deprivation hearing was
not constitutionally defective, and that the statute’s procedural protections
met minimum standards of due process because the employer, prior to temporary
reinstatement, was provided the following:

Notice of the employee’s allegations,
notice of the substance of the relevant supporting evidence, an opportunity to
submit a written response, and an opportunity to meet with the investigator and
present statements from rebuttal witness. The presentation of the employer’s
need not be formal, and cross-examination of employee’s witnesses need not be
afforded [prior to temporary reinstatement].

Id . at 264.

        In Jim Walters Res .,

the Eleventh Circuit extrapolated the same principles and applied them to the
temporary reinstatement procedures under the Mine Act, noting that the cases
were “virtually indistinguishable.” The Eleventh Circuit stated:

Faced with virtually the same balance of
competing government and private interests as in this case, the Supreme Court
in Roadway Express held that due process does not require that an
employer, who is challenging a temporary reinstatement of an employee, be
provided with a pre-deprivation hearing. Due process is satisfied “[s]o long as
the prereinstatement procedures establish a reliable ‘initial check against
mistaken decisions’ and complete and expeditious review is available.” Id .
(citation omitted).

920 F.2d at
746-747.

        The Court concluded

that the protections afforded by section 105(c)(2) of the Mine Act and the
Commission’s Procedural Rules “far exceeded” the minimum required. Jim
Walter Res ., 920 F.2d at 748. Notably, under the procedures upheld in Roadway
Express, the Secretary had sole authority to determine whether the standard
had been met and to issue the reinstatement order. The employer was provided
with a post-deprivation hearing on the merits of the complaint.

        Although in the case

at hand Crimson argues that the limited nature of the Commission’s due process
hearings are constitutionally defective, it is clear that the Supreme Court in Roadway
Express found that a pre-deprivation hearing was not even required in a
temporary reinstatement case.

        Crimson also claims

that the Commission recently further narrowed the scope of temporary
reinstatement hearings by removing a Judge’s ability to make credibility
determinations. R. Br. at 11 (citing Sec’y obo Cook v. Rockwell Mining ,
43 FMSHRC 157, 165 (Apr. 2021). This is not true. The Commission has long held
that under the “not frivolously brought test,” a Judge is prohibited from
making credibility determinations and weighing evidence. See e.g., Sec’y obo
Williamson , 31 FMSHRC at 1089 (Oct. 2009) (finding that the Judge erred as
he “resolved conflicts in the testimony, and made credibility determinations in
evaluating the Secretary's prima facie case, which he clearly should not have
done at this stage in the proceeding.”). [9]

Crimson also
argues that it lacks fair notice of the burden of proof. We disagree. In its
majority decisions, the Commission has consistently continued to require that
the Secretary’s burden of proof is to demonstrate that the complaint has not
been frivolously brought. See Sec’y obo Roger Cook v. Rockwell
Mining, LLC , 43 FMSHRC 157, 161 (Apr. 2021) ( citing Williamson , 31
FMSHRC at 1089). It is well established that at a temporary reinstatement
hearing, the Judge must determine “whether the evidence mustered by the miner[]
to date established that [his or her] complaint[] [is] nonfrivolous, not
whether there is sufficient evidence of discrimination to justify permanent
reinstatement.” Jim Walter Res. , 920 F.2d at 744.

III.

Conclusion

        In summary,

substantial evidence supports the Judge’s finding that the Secretary made a
non-frivolous demonstration that the miner engaged in activities protected by
the Mine Act. The operator’s arguments that the Mine Act and the Commission’s
Procedural Rules governing temporary reinstatement are constitutionally
defective are unavailing. Similar arguments have previously been addressed and
dismissed by federal appellate courts including the Supreme Court. For these
reasons, we affirm the Judge’s order temporarily reinstating miner John
Collins.

/s/ Mary Lu Jordan

                                                                                Mary

Lu Jordan, Chair

/s/ Marco M. Rajkovich,
Jr.

Marco M. Rajkovich, Jr.,
Commissioner

/s/ Timothy J. Baker

Timothy J. Baker,
Commissioner

Commissioner Althen dissenting,

The standard of
proof for temporary reinstatement is very low—a nonfrivolous complaint. However,
“low” does not mean nonexistent. [10]
I respectfully dissent.

I.
SUPPLEMENTAL FACTS

        It

is helpful to supplement and clarify the majority’s statement of facts. Undisputed
evidence demonstrates that Collins’s employment was shaky before he failed to
load the pan lines in June 2023. On March 23, 2023, Collins knocked a pump off
a truck, damaging it. Tr. 61. On April 13, 2023, he severely damaged a loader. Tr.
62-63.

After the second
incident, the operator considered discharging Collins. However, pursuant to
negotiations with UMWA representatives, the operator and Collins agreed upon a
35-day suspension. Tr. 53, 86. Additionally, contrary to showing animus, the
operator offered Collins other surface jobs at the mine, but he refused them
even at that time. Tr. 85. Collins did a test for one surface job but failed
the test. Id .

The third
incident within three months occurred on June 14, 2023, when Collins dropped a
pan line from the loader while attempting to load the pan line on the truck. After
this third instance of damaging equipment, the operator discharged Collins. Collins’
UMWA representative grieved the discharge, and it went to arbitration. Collins’
basis for his claim in arbitration was that the operator fired him for filing
an accident report. Operator’s Exhibit F. (The Secretary does not pursue that
theory here.) The Arbitrator upheld the discharge. Id. In doing so, the
Arbitrator’s decision finds that Union witness
Eddie Pinegar, Safety Committeeman, “ testified that he loaded
three (3) pieces of pan line on
a different truck that day without incident.” Exhibit F, p. 11. [11] The Arbitrator further
found as Collins agreed in this case, that the operator properly task-trained
Collins for loading equipment using the Komatsu 250 front-end loader.

There is no actual dispute about whether the Komatsu
loader could safely load the pan lines. We cannot shrug off official documents
showing the Komatsu’s capability as if they were a lay opinion unless a party
presents a live “expert” witness at the hearing. Moreover, miners had safely
used the Komatsu to load pan lines. To assert Collins’s statement that he was
uncomfortable created a genuine dispute regarding the capabilities of the Komatsu
is analogous to asserting that a nervous flier’s fear creates a dispute about
whether airplanes can fly. Regardless of an individual’s subjective beliefs,
objective evidence proves airplanes can fly and that the Komatsu can load pan
lines. [12]

In response to Collins’ statement that he was
uncomfortable, Jamison, who had tasked trained Collins, first told him, “[W]e
do it all the time,” and Collins replied that he knew that. Tr. 26. So, Collins
acknowledged that miners were using the Komatsu safely to load pan lines. Collins
affirmed that he had bid for the loader operator job and was qualified. Tr. 47.

Nonetheless, Collins
pressed his lack of comfort to which Jamison replied, “Well, everybody loads it
with it; just -- you’ll be all right; just be careful, watch what you do; take
your time.” Tr. 63. Thus, rather than showing animus towards Collins’
statement, a busy supervisor who knew the capabilities and regular use of the Komatsu,
including currently loading pan lines, instructed him to be careful and take
his time.

After the failed load
effort, Jamison asked Collins if he wished to file an accident report. At
first, Collins declined but later changed his mind.

In summary, the evidence shows that the
operator task-trained Collins on the use of the Komatsu loader. The Komatsu can
objectively load pan lines on trucks. Another union miner that very day used
the Komatsu to load pan lines. Collins agreed that the Komatsu was used to load
pan lines. Rather than flaring at Collins’ regular statements of
uncomfortableness, Jamison offered him advice and reassurance. Collins failed
to load the pan lines but dropped them short of the truck. After that failure,
Jamison asked Collins if he wished to file an accident report.

        Here,

there is no evidence —none—that the discharge was motivated
in any part by Collins’s expression of uncomfortableness. The majority
incorrectly focuses upon purportedly disputed evidence regarding whether the Komatsu
was strong enough to load the pan lines and whether Collins used proper
procedures. Undisputed evidence and testimony demonstrated that the Komatsu
could load pan lines. Even Collins agreed that the operator had used the Komatsu
for that task “all the time.” Tr. 26, 47.

        However,

more importantly, the claim of discrimination does not turn on the capabilities
of a Komatsu loader or whether Collins used it correctly on the day he failed
to load the pan line. The Secretary’s complaint alleged that the operator
discharged Collins for “reporting safety concerns.” [13] Application
for Temporary Reinstatement, p. 2. In other words, the issue is not the Komatsu
or Collins’s operation of the Komatsu but rather whether the operator fired him
after Collins’s third mishap for his statements about uncomfortableness and not
for his repetitive damaging negligence. The majority does not point to any
evidence on that fundamental issue.

        The

Secretary must prove a nonfrivolous case that Collins’s expression of
uncomfortableness caused the operator to discharge him. Moreover, under Pasula/Robinette ,
if the operator was justified for discharged him for his third damage of
equipment, the claim cannot stand. No evidence links Collins’s expression of
uncomfortableness to the discharge, and it is uncontested that he damaged
equipment for a third time. The evidence shows only that Collins had a common
human reaction when punished for a mistake—self-forgiveness and blame-shifting.
We all may experience such feelings when called to task for a failing.

II. ANALYSIS

In the context of this
proceeding, the Mine Act provides,

No person shall discharge . . . any miner, representative of miners or applicant for employment in any coal or other mine subject to this chapter because . .
. of the exercise by such miner, representative of miners or applicant for employment on behalf of
himself or others of any statutory right afforded by this chapter

30 U.S.C. § 815(c)(1). In turn, section 105(c)(2) provides
for the temporary reinstatement of a complainant if the Secretary determines
the miner’s complaint was “not frivolously brought.”

        In Jim Walter Res ., 920 F.2d 738 (11th

Cir. 1990), cited approvingly by the majority, the Eleventh Circuit upheld the
constitutionality of the nonfrivolous standard. It is analogous to the Supreme
Court decision in Brock v. Roadway Exp. , 481 U.S. 252 (1987). In doing
so, the circuit court synchronized the temporary reinstatement standard to the
standard considered in Brock . Specifically, the circuit court found,

We find that the “not
frivolously brought” standard is not so low and easily met by a miner seeking
temporary reinstatement as to violate due process. Indeed, there is virtually
no rational basis for distinguishing between the stringency of this standard
and the “reasonable cause to believe” standard that was implicitly upheld
in Roadway Express .

920 F.2d at 747.

        The circuit court’s finding puts at least a

scrap of meat on the bones of “nonfrivolous.” In a temporary reinstatement
hearing, the question is whether the Secretary has presented sufficient
evidence so that there is reasonable cause to believe the operator
discriminated against the complainant.

        Traditionally, the Commission applies the Pasula-Robinette

test. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2
FMSHRC 2786 (Oct. 1980), rev’d on other grounds, 663 F.2d 1211 (3d Cir.
1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803 (Apr. 1981). [14]
That test contains three elements. A miner or the Secretary must prove
discrimination by showing that: (1) the miner engaged in protected activity,
(2) was subject to an adverse action, and (3) that such adverse action was at
least partially motivated by that protected activity. Operators may defend
affirmatively by proving that the adverse action was also motivated by the
miner’s unprotected activity and that it would have taken the action for the
unprotected activity alone. Sec’y of Labor o /b/o Smitherman v. Warrior Met Coal Mining, LLC , 45 FMSHRC ___, (June 20, 2023).

        Here,

Collins’s discharge constitutes adverse action. However, insuperable problems
arise for the Secretary’s case on the issue of protected activity and from the
absence of any evidence whatsoever that Collins’ discharge after his severe
third failure in four months was motivated in any way by an expression of
discomfort especially when Jamison reassured Collins rather than rebuked him. Finally,
in this unusual fact pattern, the operator undoubtedly would prevail with an
affirmative defense. There is no reason to reinstate Collins briefly before the
Secretary drops the action for Collins. If Collins wishes to pursue a hopeless
case, he may do so on his own.

1. Protected Activity

Unquestionably, the Mine Act gives miners essential rights to
protect their safety. A miner may refuse to work if he has a good faith belief
that a hazard exists and communicates his belief to the operator. In Simpson v. FMSHRC ,
842 F.2d 453 (D.C. Cir. 1988), the Court of Appeals for the District of
Columbia Circuit considered the issue of
constructive discharge of a miner who refuses to work in intolerably dangerous
conditions. The circuit adopted an objective test of whether “the conditions
[were] so intolerable that a reasonable miner would have felt compelled to
resign.” Id . at 461. The circuit court cited Clark v. Marsh, 665
F.2d 1168 (D.C. Cir. 1981), in which the court characterized the standard test
in discrimination cases as an “objective test.”

National Cement Co. v. FMSHRC , 27 F.3d 526 (11th Cir. 1994) supports this objective
test. In National Cement , the circuit court stated, “If the work refusal
is not objectively reasonable, there is no protected activity. [T]he [work]
stoppage must be reasonable, as well as motivated by a genuine belief that it
is necessary to protect safety or health.” 27 F.3d at 533, (citing Miller v.
FMSHRC , 687 F.2d 194, 195 (7th Cir.1982)). A good faith belief, standing
alone, does not create protected activity. The stoppage must be “reasonable.” This
means the work stoppage must be a rational “reason” rather than a fear
unsupported by any reasonable basis.

In this case, Collins cannot support a
claim that feeling “uncomfortable” with using a Komatsu loader constituted an
objectively reasonable belief that the Komatsu was unsafe. An unexplained and
unfounded assertion of fright (even assuming that was the actual cause of any
uncomfortableness) does not rise to the realm of protected action, especially
considering other miners’ regular safe use of the equipment and Collins also
regularly used the Komatsu. Tr. 21-22. Indeed, Collins himself safely loaded a
pan line with it, and, as the Arbitrator found, at least one other miner also
performed such pan line loading work the same day Collins only said that he was
“uncomfortable.” Collins did not testify to any knowledge of the Komatsu that
objectively would create fear; he did not testify to any experience with the Komatsu
that would objectively create fear.

Collins expressly acknowledged that he
knew miners used the Komatsu to load pan lines “all the time.” Tr. 26. Regarding
the reasonableness of his position, Collins never expressed to Jamison any
reason for a lack of comfort. Indeed, in the face of vigorous
cross-examination, Jamison testified that he did not interpret Collins’s
statements as exercising a right to express safety concerns. Tr. 73. Instead,
Jamison testified that Collins’ expression of being uncomfortable was a pattern
of conduct that Collins used regularly. Id . The most Collins’s
supervisor understood was that Collins was again saying without explanation
that he did not feel comfortable doing a job that other miners, with Collins’s
knowledge, performed “all the time” with the same equipment.

The absolute most that can be said is
that, although Collins was an experienced machine operator who had used the Komatsu
many times before, he personally and without any basis said he was
“uncomfortable” about using it to perform a task that the Komatsu clearly could
perform and had performed. He expressed only “uncomfortableness” and was
reassured that he would be fine—just going ahead and taking his time.

In this case, we consider an unexplained
assertion of uncomfortableness in performing an ordinary mining task. Collins
was trained in using the Komatsu and loaded other equipment. An unexplained
declaration of lack of comfort in using equipment on which the miner has been
trained, has used to load other equipment, and was being used to perform the
same task the same day by other miners is not a protected activity.

2. Motivation

In Secretary
on behalf of Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508, 2510-11 (Nov.
1981), rev’d on other grounds , 709 F.2d 86 (D.C. Cir. 1983) ,
the Commission identified several indicia of discriminatory intent,
including (1) disparate treatment of the complainant (2) hostility or animus
towards protected activity; (3) knowledge of the protected activity; and (4)
coincidence in time between the protected activity and the adverse action. 3
FMSHRC at 2510.

       Even were we to find that Collins’s unreasoned and

unexplained claim of uncomfortableness was protected activity, the Secretary
presented no evidence that the operator greeted Collins’s expression of such
discomfort with hostility, animus, or other action indicative of
discrimination. There is no evidence whatsoever that Collins’s discharge
occurred “because” of statements about being uncomfortable before destroying
company property. Indeed, when an employer discharges an employee after three
incidents of the negligent destruction of company property in four months, it
is laughable to suggest the motivation was an unexplained expression of being
uncomfortable with using a machine to perform an ordinary work task.

                   a. Disparate Treatment

       There

is no evidence of disparate treatment. There was no evidence that any other
miner ever expressed discomfort in loading pan lines with the Komatsu. Contrary
to disparate treatment, other classified employees used the Komatsu to load pan
lines. Similarly, there was no evidence that the operator would not have
discharged other miners who committed multiple performance errors, resulting in
damage to company property.

                   b.

Hostility/Animus

       There

is no evidence of hostility or animus. To the contrary, Jamison informed
Collins that other miners were doing the work, which Collins acknowledged. Jamison
reassured him to go slow and take his time. The record does not indicate
disparagement, critical remarks, or hostility to Collins’ comments. The
response was simply a business-like reply that he would be okay performing the
work.

                   c.

Knowledge of Protected Activity.

       As

explained above, Collins did not engage in protected activity. He did not have
a reasonable basis to think the Komatsu could not perform the task safely. Collins
acknowledged that he routinely used the Komatsu and that the operator used it
regularly to load pan lines. He did not express a safety concern but said he
was “uncomfortable” doing the work.

While Collins expressed that he was not comfortable using
the Komatsu to perform the task, it was not sufficiently clear—in the context
of the facts of this case—for the operator to reasonably infer that his
complaint was related to safety. Collins did not claim he lacked training or
assert any problem with the Komatsu that would have contributed to a diminution
of his safety or the safety of other miners on the site. Moreover, Jamison had
little reason to think that the vague statement was safety-related when,
according to Jamison, it was a pattern of conduct that Collins used regularly
when assigned tasks. It is uncontested that, at the time, Jamison did not
interpret Collins’ statements as exercising a right to express a safety
concern. See Pendley v. Fed. Mine Safety & Health Review Comm’n , 601
F.3d 417, 426–28 (6th Cir. 2010) (finding that the motivation inquiry turns “on
what the operator actually believed at the time, not what the Commission later
reasons the operator could have relied upon in making its disciplinary decision”).

                   d.

Timing of the Adverse Action

       The

operator discharged Collins soon after he committed a third error, destroying
the operator’s property. The discharge arose from a third and final act of
destruction of property by mishandling operator equipment. When else would an
employer discharge an employee for destroying property than soon after the
destruction? It would be more suspicious if an operator took months to
discharge an employee for repeated destruction of property; anyone, including the
employee, would expect immediate action. Thus, from a timing perspective, the
discipline makes complete sense for a third act of incompetently destroying
company property rather than retribution for a statement about the miner’s
comfort.

        The

evidence at the hearing does not support any disparate treatment, the
occurrence of protected activity, hostility toward Collins, a discriminatorily
hasty discharge, or a reasonable belief of protected activity. [15]

3. Affirmative Defense

      Suppose
   

   a complainant establishes a prima facie case of discrimination. In that case,
   the operator will nonetheless prevail if it demonstrates that it would have
   discharged the miner for unprotected activity without regard to the protected
   activity. Pasula-Robinette , supra .

      In
   

   Jim Walter Res ., supra at 747, the Eleventh Circuit stated that
   the employer has:

The opportunity for a full evidentiary hearing prior
to a temporary reinstatement. 29 C.F.R. § 2700.44(b). At this hearing, the
employer can test the credibility of any witnesses supporting the miner’s
complaint through cross-examination and may present his own testimony and
documentary evidence contesting the temporary reinstatement.

        The

right for an operator to have a full hearing at which it may present its
evidence contesting temporary reinstatement must encompass a right to prove to
a level of summary decision that it would have discharged the employee for
unprotected actions. Such an occurrence at a temporary reinstatement hearing
must be extremely rare because it ordinarily must be based upon undisputed
evidence and must not require a meaningful credibility determination. However, suppose
an operator conclusively establishes at a temporary reinstatement hearing that
it will be entitled to summary judgment based upon an affirmative defense. In
that case, the complainant’s case is hopeless—frivolous. This unique case
warrants such an outcome.

        In

this case, the Secretary claims the operator discharged Collins due to
protected activity – namely, that the operator discharged Collins for his
declaration of unexplained uncomfortableness in using a Komatsu. For this
section of the dissent only, we assume that there is some way that an ALJ could
find Collins’s speculation could warrant a finding that his uncomfortableness
was a reason for his discharge. However, we cannot neglect the operator’s claim
that it discharged Collins due to repetitive damaging negligence. If the
operator establishes that claim to a level of summary decision, it negates any
claim of entitlement to reinstatement.

        The

operator’s affirmative defense would build upon the indisputable facts of
Collins’s repetitious negligence. Thus, the operator claims that it discharged
Collins for severe repetitive negligence. Of course, discharge for repetitive
asset-damaging negligence does not imply protected rights or activity. Therefore,
given the burden-shifting under Pasula-Robinette , if the operator shows
unprotected actions were a reason for the discharge, the Secretary must prove
that the asserted reason for discharge was pretextual. In the Pasula-Robinette
context, damaging negligence does not have to be “the” reason for discharge. It
only needs to be “a” reason for discharge.

        Rarely

could summary judgment standards be met at a temporary reinstatement hearing. However,
they are met in this case. The Secretary does not dispute the acts of
negligence. The Secretary does not/cannot assert that damaging negligence is a
protected activity. Thus, to prevail against the affirmative defense at a
hearing, the Secretary must prove that the discharge for three undisputed acts
of damaging negligence was pretextual. In other words, the Secretary must show
the operator did not discharge Collins even partially for such damaging
negligence but only for the complaint of uncomfortableness.

        We

suppose the Secretary could make the argument, although not with a straight
face, that the operator’s discharge of Collins for repetitive acts of
negligence (upheld by an arbitrator) was a pretext for assertedly the
operator’s only genuine problem with Collins—a comfort complaint that preceded
the last act of negligence. The Secretary must contend that the operator was
not partially motivated by the repetitive negligent destruction of its property
for which it had previously imposed a 35-day suspension—that is, that the
discharge for the third negligent act damaging company property was pretextual.
Presumably, to the Secretary, this third failure was not even part of the
reason for the discharge; the discharge was solely because the operator could
not abide a comfort complaint. Based on the evidence, such an argument is
complete nonsense. The Commission does not have to, and should not, act upon
nonsense.

        It

is undisputed that Collins twice negligently destroyed the operator’s property
before the third negligent act. It is undisputed that the operator attempted to
discharge Collins for such negligence after the second instance and imposed a
35-day suspension. It is undisputed that Collins was again negligent and
destroyed the operator’s property only a few days after the suspension ended. It
is undisputed that Collins knew the Komatsu had performed such loading work. An
arbitrator upheld the discharge against a charge that the discharge occurred. Collins
filed an accident report with the operator’s assistance—a claim not even made
in this case. For Collins to prevail, an ALJ would have to reject these facts
and find the motivating reason for discharge was an expression of
uncomfortableness. [16] Neither the Mine Act nor our case law
require us to reduce legal positions to absurdity.

        Let

us make it simple. The operator proves, and Collins agrees, that Collins
committed three destructive acts of negligence in four months. It attempted to
discharge Collins after the second act. The Secretary implicitly but not
explicitly argues, “Collins’s third act of destructive negligence was not any
reason for the discharge; the only reason was his statement that he was
uncomfortable. We do not have any evidence to support that claim, but because
he was uncomfortable, he must get his job back.” Stunningly, the majority
agrees with the Secretary.

        The

majority requires the operator to restore a former employee to a position where
he has repeatedly demonstrated that he will negligently destroy property and
present a danger to himself and others. It does so because it says it cannot
believe, at this stage, that the operator discharged Collins, at least in part
for multiple acts of demonstrated destructive negligence after suspending him
for such failures. Reduction of the Mine Act to an absurd credibility ruling
trivializes the dignity and importance of the essential anti-discrimination
provision of the Act. [17]

III. CONCLUSION

       The

evidence demonstrates that Collins only said he was “uncomfortable” performing
work with a Komatsu loader. The evidence also demonstrates conclusively that
the Komatsu loader could perform the work. Indeed, on the same day, another
worker was using that type of loader for the very tasks asked of Collins. At
the time of Collins’s “uncomfortable” statement, the operator exhibited no
hostility. Indeed, after Collins’s prior costly failures, the operator
attempted to find him another position. In discharging Collins, the operator
dealt immediately with a severe third act of destruction of equipment by
Collins in four months. The majority concedes there was not any disparate
treatment.

       There

must be some minimal requirements for temporary reinstatement. This case does
not meet those requirements. I respectfully dissent.

/s/ William I. Althen

William I. Althen,
Commissioner

Distribution:

Susannah M.
Maltz, Esq.

U.S. Department
of Labor, Office of the Solicitor

Division of Mine
Safety & Health

201 12th Street
South, Suite 401

Arlington,
VA 22202

[email protected]

Christopher D. Pence, Esq.

Hardy Pence PLLC

10 Hale Street, 4th Floor

Charleston, WV 25329

[email protected]

Samuel Maples

Maples, Tucker
& Jacobs LLC

2001 Park Place
North, Suite 1325

Birmingham, AL
35203

[email protected]

Administrative
Law Judge John Kent Lewis

Office of the
Chief Administrative Law Judge

Federal Mine
Safety and Health Review Commission

7 Parkway
Center

875 Greentree
Road, Suite 290

Pittsburgh, PA
15220

[email protected]

[1] The pan line
appears to refer to a pan conveyor, which is “[a] conveyor comprising one or
more endless chains or other linkage to which usually overlapping or
interlocking pans are attached to form a series of shallow, open-topped
containers.” See Pan Conveyor, Dictionary of Mining, Mineral, and
Related Terms (2d Ed. 1996).

[2] Collins
testified that while he regularly operated the Komatsu 250, he had never before
used it to load pan lines onto a haul truck. Tr. 21-22. He had previously
loaded pan lines onto a haul truck approximately five or six times, each time
using a heavier Cat loader. Tr. 22. Conversely, Jamison testified that the
operator used the Komatsu 250 to load pan lines ever since Jamison started with
them, and he had personally used it to load pan lines. Tr. 68.

[3] Collins had
recently been suspended from employment for damaging the loader.

[4] Crimson also
contends that Collins failed to make a safety complaint. Collins stated that he
was uncomfortable using the Komatsu 250 to complete the assigned task. Tr. 28. Substantial
evidence supports the Judge’s finding of a safety complaint. The fact that the
loader became unbalanced during an attempted lift demonstrates the plausible reasonableness
of his stated concerns.

[5] We note that
a scale ticket from August 9, 2023, is not dispositive proof of the weight of
the load on June 14, 2023.

[6] Even if the
video undisputedly demonstrated improper technique (which it does not), it
would not resolve whether the Komatsu became unbalanced solely because of
operator error or because of the weight of the load. Any error on the part of
Collins does not mean his safety concerns were not genuine.

[7] Commissioner
Althen dissents, concluding that the Secretary failed to provide any evidence of
a non-frivolous motivational nexus between the protected activity and the
adverse action. That is incorrect. The Commission has held that the Secretary
may establish a non-frivolous motivational nexus simply through the operator's
knowledge of protected activity and temporal proximity between the protected
activity and the adverse action. Sec’y obo Roger Cook v. Rockwell Mining,
LLC, 43 FMSHRC 157, 162 (Apr. 2021) ( citing Sec'y of Labor on behalf of
Stahl v. A&K Earth Movers Inc ., 22 FMSHRC 323, 325-26 (Mar. 2000)). Collins
was suspended and then discharged less than two weeks after the occurrence of
the event.

[8] In Mathews
v. Eldridge , 424 U.S. 319 (1976), the Supreme Court articulated a
three-part test to determine what due process requires:

First, the private interest that will be
affected by the official action; second, the risk of an erroneous deprivation
of such interest through the procedures use, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement would entail.

Id . at 334-35.

[9] As the
Secretary identified in her brief, “[p]er Roadway Express , parties are
not constitutionally entitled to “test the credibility of opposing witnesses”
during an initial investigation because this added procedural protection “would
not increase the reliability of the preliminary decision sufficiently to
justify the additional delay.” S. Br. at 12 ( citing 481 U.S. at 266).

[10]
Or, maybe to the Commission, it does. A review of Commission records for fiscal
years 2018 through 2022 shows 56 motions for temporary reinstatement: forty-six
were granted seven were withdrawn, two settled, none were denied. Indeed,
Administrative Law Judges wonder why they must go through hearings to reach a
foregone conclusion as the Administrative Law Judge in this case demonstrates
in a wonderfully ingenuous exclamation, “Well, that’s why -- jeez, I’ve been
here a long time. I’ve had very few temporary instatement hearings because the
threshold was so low that the Secretary had to meet.” Tr. 116.

        [11] The Arbitrator

does not expressly write that Pinegar used a Komatsu. However, there would be
no relevance if he were not using a Komatsu. Moreover, Collins testified that
on the day of the incident, Jamison reiterated that Crimson used Komatsu’s for
this purpose “all the time.” Tr. 26. His response was, “I understand that,
Jeff.” Id . No one disputes the fact that Crimson regularly used the Komatsu
to load pan liners.

        [12] The ALJ found

that authoritative documents showing the strength of the Komatsu and prior uses
of the Komatsu for that purpose were insufficient to prove it could handle pan
lines. He needed an expert witness. Obviously, that is an error.

        [13] In fact, Collins

testified that his concern was that he was “uncomfortable” using the Komatsu to
load pan lines. Of course, a lack of comfort could arise from safety concerns
even though Collins knew the Komatsu had loaded pan lines. It might also have
been an expression that he would be uncomfortable using it because he doubted
his ability to use it properly. At the hearing, he naturally testified that he
meant safety concerns. However, in recounting the events of the day, he
testified that he said he was “uncomfortable” three times. However, even if he
had a subjective fear the Komatsu could not do the job with him at the
controls, that subjective feeling does not create protected activity.

[14] In Thomas v. CalPortland
Co. , 993 F.3d 1204
(9th Cir. 2021), the Ninth Circuit rejected the Pasula-Robinette standard and held the
plain meaning of section 105(c) requires a “but-for” causation standard for
discrimination determinations under the Mine Act. Thus far, no other
circuit has followed the ninth circuit’s approach and the operator in this case
did not challenge the standard. Therefore, although we may anticipate future
successful challenges to Pasula-Robinette , no challenge exists here.

       [15] In

affirming the temporary reinstatement, the majority relies almost wholly on the
timing of the discharge. If discharging an employee quickly for damaging
company when that employee is coming off a 35-days suspension for damaging
company property is proof of discrimination meriting temporary reinstatement,
there really is no standard for temporary reinstatement.

        [16]

I note again that the operator did not react badly to Collins expression of
uncomfortableness. Jamison assured Collins that the Komatsu had performed the
work. Collins agreed with this assurance. Jamison then told Collins to be
careful and take his time. Collins claim of animus, therefore, is not supported
by any expression of animus to his uncomfortableness but by reassurances. Collins
does not have any “evidence” to support his claim. His claim is purely an
unsupported “I think” claim. Finally, it is absurd to assert the timing of a
discharge immediately after an employee destroys property displays that the
real and only reason for discharge was Collins’s expression of
uncomfortableness. Such a clam is a fanciful makeweight to support an
unsupportable proposition—an irrational, willful decision rather than an objective
adjudication.

        [17] It is not

entirely clear what the Commission has meant by not permitting “credibility”
determinations. Surely, it must not mean the Commission must accept proven lies
or that it must accept allegations not supported by evidence but only the
imagination and desires of a witness. Does it mean that anything a claimant
says must be believed but testimony of other witnesses must be disbelieved or
neither believed nor disbelieved? If it is crucial to a claim whether a mine
car broke loose and rolled downward and ten witnesses say it did not while one
witness says it did, must the ALJ not make a finding on such critical factor? Does
it depend upon who the one witness is—claimant or company representative? Does
it mean that in a case such as this where there were uncontested acts of gross
and harmful negligence by the complainant, we must not accept that such
negligence was a reason for the discharge because complainant suggests an
unexplained and unsupported suspicion without evidence that his negligence was
not a reason for discharge? Surely, not.