Jim Walter Resources, Inc.

Plain-English summary

Jim Walter Resources suspended and moved to discharge safety committeemen Michael L. Price and Joe John Vacha after they did not provide urine samples under the company's substance-abuse program. The Secretary alleged that the discharges were discriminatory, and an ALJ ordered temporary reinstatement after finding that the complaints were not frivolous. The Commission majority affirmed that order, holding that the evidence raised a non-frivolous question about disparate treatment, retaliation, or interference connected to protected safety activity, while declining to decide the ultimate merits. The Commission denied a stay and remanded the matter to the judge for further proceedings.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c) and § 815(c)(2), and 29 C.F.R. § 2700.44
• Outcome: The temporary-reinstatement order was affirmed, the request for a stay was denied, and the matter was remanded.
• Key point: At the temporary-reinstatement stage, the question is whether a discrimination complaint is frivolous, not whether the ultimate discrimination claim has been proved.

Full text (FMSHRC public release)

FMSHRC-WDC
August 3, 1987

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on
behalf of MICHAEL L. PRICE
and JOE JOHN VACHA

  v.                 Docket No. SE 87-87-D

JIM WALTER RESOURCES, INC.

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka, and Nelson
Commissioners

                   ORDER

BY: Backley, Lastowka and Nelson, Commissioners

 In this discrimination proceeding arising under the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (1982), we review Commission Administrative Law Judge
James A. Broderick's order of temporary reinstatement issued
under Commission Procedural Rule 44, 29 C.F.R. § 2700.44 (1986).
For the reasons that follow, we affirm.

 On January 1, 1987, Jim Walter Resources, Inc. ("JWR")

inaugurated a "Substance Abuse Rehabilitation and Control Program"
for its employees. Section II E of the program provides for random
urine testing of "employees whose duties ... involve safety...."
On March 2, 1987, JWR conducted urine testing of certain employees
covered by this provision. Among the employees included in the test
group were the complainants, Michael L. Price and Joe John Vacha,
who were elected United Mine Workers of America ("UMWA") safety
committeemen. Both employees failed to provide the requested urine
samples, assertedly by reason of physical incapacity, and that same
day were suspended with intent to discharge. JWR's stated reason

for discharge was insubordinate conduct.

Following their terminations, Price and Vacha on March 9,

1987, filed discrimination complaints with the Secretary of Labor
pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C.§ 815(c)(2),
alleging that JWR had discharged them discriminatorily in violation
of section 105(c) of the Act. 30 U.S.C. § 815(c). On May 14, 1987,
after commencing the required investigation of the complaints and
determining that they were not frivolous, the Secretary filed with
this independent Commission an application for the temporary
reinstatement of Price and Vacha. 30 U.S.C. § 815(c)(2). JWR filed
a request for a hearing on the application.

pursuant to 29 C.F.R. § 2700.44(a). Subsequently, the
parties engaged in discovery. On June 29, 1987, a hearing was
held before Judge Broderick. At the outset of the hearing, the
judge permitted the UMWA to intervene.

Following the hearing, on July 7, 1987, the judge issued

an order directing JWR to reinstate the complainants temporarily.
The judge determined that the discrimination complaints "were not
clearly without merit, were not fraudulent or pretextual" and that
"the evidence establishes a reasonable cause to believe that the
discharge of Price and Vacha was in violation of section 105(c)."
Accordingly, the judge concluded that the complaints were not
frivolously brought. On July 17, 1987, JWR filed with the Commission
a petition for review of the judge's order and a motion for stay of
the order. 29 C.F.R. § 2700.44(e). Both the Secretary and UMWA
have filed oppositions.

We have carefully reviewed the evidence, pleadings, and

briefs, and conclude that the judge's order is supported by the
record and is consistent with applicable law. 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. 30 U.S.C. § 815(c)(2); 29 C.F.R.
§ 2700.44(c). The judge properly found that the testimony and other
evidence raises a non-frivolous issue as to whether the terminations
of the complainants were in violation of the Mine Act.

 We are not prepared at this preliminary juncture to

conclude from the evidence and findings of record that section II E
of JWR's drug testing program itself contravenes section 105(c)(1)
of the Mine Act, as alleged by the complainants. However, although
the complainants' precise theories of discrimination have not been
presented with the utmost clarity, we find in the Secretary's
pleadings, in the evidence, and in the closing arguments before the
judge a claim that the specific manner of application of the drug
testing program to Price and Vacha constituted discriminatorily
disparate treatment, retaliation, or interference because of their
prior protected activities. Evidence has been introduced tending
to show that the complainants were active safety committeemen who
had filed numerous safety complaints; that there may have been some
hostility on the part of some JWR management officials towards that
protected activity; and that the manner of testing the complainants
and their resultant discharge may have been tainted by
discriminatorily disparate treatment, retaliation, or interference.
We make no determination at this point as to the ultimate merits of

a case of discrimination on this evidence. We hold only that the
evidence presented to date is sufficient to support the judge's
conclusion that the complaints are non-frivolous.

JWR also raises due process objections to the temporary

reinstatement procedures employed below. The Supreme Court's
decision in Brock v. Roadway Express, Inc., 481 U.S. , 95 L.Ed. 2d
239, 248.254 (1987), approved temporary reinstatement without prior
hearing under comparable reinstatement provisions of the Surface
Transportation Act of 1982. The Commission's temporary reinstatement
procedures exceed the constitutional minimum sanctioned in Roadway
Express. JWR has been

fairly heard in a pre-deprivation hearing in which it was allowed
to present witnesses and to cross-examine the government's witnesses.

We also note that the Commission does not sit as a super

grievance board to judge the industrial merits, fairness,
reasonableness, or wisdom of JWR's drug testing program apart from
the scope and focus appropriate to analysis under section 105(c) of
the Mine Act. Finally, the Secretary is reminded of the imperative
requirement and need to complete his investigation of the complaints
pursuant to section 105(c)(2). Secretary on behalf of Donald R. Hale
v. 4-A Coal Co., Inc., 8 FMSHRC 905, 907-08 (June 1986).

 No view is intimated in this order as to the ultimate merits

of this case. The only issue decided is that the complainants'
discrimination complaints were not frivolously brought. JWR's request
for a stay is denied and the judge's order is affirmed. This matter
is remanded to the judge.
Richard V. Backley, Commissioner

             James A. Lastowka, Commissioner

            L. Clair Nelson, Commissioner

Chairman Ford, dissenting:

A temporary reinstatement proceeding is limited to deciding

whether or not the miner's complaint has been "frivolously brought."
The judge, correctly in my view, has cast the frivolousness test
in terms of whether there is "reasonable cause to believe" that a
violation of section 105(c), 30 U.S.C. § 815(c), has occurred.
I agree with my colleague in dissent, Commissioner Doyle, however,
that before the frivolousness issue can be addressed, the burden
is on the Secretary to establish the elements of a section 105(c)
claim. The record, here, fails to establish a causal nexus between
the adverse action complained of (discharge for failure to provide a
urine sample) and the protected activity of Messrs. Price and Vacha
(engaging in safety activities in their capacities as safety
committeemen).

The majority states that the Secretary's theories of

discrimination have not been presented with the "utmost clarity."
I find that those theories lack coherence and are not congruent
with established bases for asserting a violation of section 105(c).

The Secretary argues that the Petitioner's drug abuse program

is per se discriminatory apparently because complainants reasonably
believed it to be so. As noted by the majority, this Commission
does not sit in judgment on the relative merits or demerits of a drug
testing program. More importantly, to accept such a discrimination
theory requires one to believe that Petitioner, solely for the purpose
of discharging the complainants, established an elaborate and
expensive drug testing and rehabilitation program and then predicted
that these particular employees (out of a tested workforce of 232)
would be unable or unwilling to provide urine samples after being on
notice to provide them for several hours. Alternatively, the
Secretary argues that section 105(c) can somehow be read to grant a
miner the "right to refuse to comply with a discriminatory work order"
even when such an order involves no safety or health hazard. Without
further amplification this newly propounded theory of discrimination
does not surmount the frivolousness test. In any event, under either
theory the Secretary does not establish a colorable nexus between the
discharges and the protected activity.

The majority suggests that discrimination may lie in the
disparate treatment of the complainants in the application of the
drug abuse program, but the Secretary has not so argued and the judge
did not so find. My review of the record does not reveal evidence
that would support this theory.

Accordingly, I would vacate the judge's order of reinstatement
but would join with my colleagues in urging the Secretary to expedite
his investigation in this matter.

              Ford B. Ford, Chairman

Commissioner Doyle, dissenting:

Although a temporary reinstatement proceeding is limited

to resolving whether the miner's complaint is frivolous, that
issue cannot be addressed unless the basic elements of a claim
of discrimination are offered. Without some evidence of these
elements first being presented, one cannot advance to a
determination of whether a claim is non-frivolous.

In my view, the judge did not determine that there was

any evidence tending to establish that adverse action was taken
against the complainants in consequence of their engaging in
protected activity. Absent this underlying determination, the
issue of frivolousness could not be addressed. Accordingly, I
would vacate the judge's order of temporary reinstatement.

              Joyce A. Doyle, Commissioner

Distribution

Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

James P. Alexander, Esq.
Robert K. Spotswood, Esq.
John W. Hargrove, Esq.
Bradley, Arant, Rose & White
1400 Park Place Tower
Birmingham, Alabama 35203

Robert H. Stropp. Esq.
2121 City Federal Building
Birmingham, Alabama 35203

Mary Lu Jordan, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005