Secretary of Labor v. Black River Coal, LLC

Plain-English summary

The Secretary sought temporary reinstatement for miner Raymond McKinney and moved to exclude his personnel file, equipment checklists, and testimony from five proposed company witnesses before the hearing. Judge Jerold Feldman recognized that a temporary-reinstatement hearing is limited to whether the discrimination complaint was frivolously brought and does not resolve testimonial conflicts. He nevertheless held that due process entitled Black River Coal to offer evidence supporting its position. The Judge denied the motion in limine and motion to strike, leaving relevance and admissibility rulings for the hearing.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: The Secretary's motion to exclude documents and witness testimony before the temporary-reinstatement hearing was denied.
• Key point: Even in a narrow temporary-reinstatement proceeding, the operator may present evidence against the claim, with relevance and admissibility decided at the hearing.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue NW, Suite 520N

Washington, D.C. 
20004

August 13, 2015

SECRETARY OF LABOR, MSHA,

on behalf of RAYMOND MCKINNEY,

Complainant,

v.

BLACK RIVER COAL, LLC,

Respondent.

TEMPORARY REINSTATEMENT PROCEEDING

Docket No.  VA 2015-261-D

MSHA Case No.: NORT-CD 2015-02

War Creek No. 1 Mine

Mine ID: 44-06859

ORDER DENYING SECRETARY’S

MOTION IN
LIMINE AND MOTION TO STRIKE

This matter is before me based on
the Secretary of Labor’s Application for Temporary Reinstatement filed on
behalf of miner Raymond McKinney pursuant to section 105(c)(2)         of the Federal
Mine Safety and Health Act of 1977, as amended (“the Mine
Act”).                      30 U.S.C. § 815(c)(2).  The temporary reinstatement
hearing is scheduled for August 18, 2015, in Abingdon, Virginia. 

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).  The scope of a temporary
reinstatement hearing is narrow and limited to a determination by the judge as
to whether a miner’s discrimination complaint is frivolously brought.  See
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 (11th Cir. 1990). 

On August 7, 2015, the Respondent
provided Secretary’s counsel with a prehearing report reflecting that the
Respondent intended to introduce into evidence in this proceeding McKinney’s
personnel file and pre-operation checklists for a relevant scoop.  The
Respondent’s prehearing report also reflected that it planned to call Mark
Huffman, Patrick Graham, Raymond Simpson, Kriss Proffit, and Joe Price, as
witnesses.  On August 12, 2015, the Secretary filed a Motion in Limine and
Motion to Strike that seeks to preclude introduction of the aforementioned
documents and the testimony of the named witnesses.

The Respondent’s counsel, who is experienced
appearing in mine safety matters, is well aware of the narrow scope of a
temporary reinstatement proceeding.  It is true that it is not the judge’s duty
to resolve conflicts in testimony in deciding the temporary reinstatement
issue.  Sec’y of Labor o/b/o Albu v. Chicopee Coal Co., 21 FMSHRC 717,
719 (July 1999).  However, due process requires that the Respondent is given the
opportunity to introduce evidence it

believes supports its claim that McKinney’s discrimination
complaint has been frivolously brought.  Whether such evidence is relevant, and
as such, admissible, can only be determined at the hearing, at which time I
will rule on any evidentiary objections proffered by the Secretary.  See 29
C.F.R. § 2700.55(c), (e) (Commission judges are authorized to regulate the
course of the hearing by ruling on offers of proof and receiving relevant
evidence). 

ORDER

In view of the above, IT IS ORDERED that the
Secretary’s a Motion in Limine and Motion to Strike IS DENIED.

/s/ Jerold
Feldman

Jerold Feldman

Administrative
Law Judge    

Distribution:

Melanie A. Stratton, Esq., U.S. Department of Labor, Office
of the Solicitor, 201 12th Street South, Suite 500, Arlington, VA
22202-5450

Mark Huffman, Black River Coal, LLC, 818 North Eisenhower
Drive, Beckley, WV 25801

Michael A. Olivio, Esq., Olivio Law Firm, 813 Quarrier
Street, Charleston, WV 25301

Billy Shelton, Esq., Jones, Walters, Turner & Shelton,
PLLC, 2452 Sir Barton Way, Suite 101, Lexington, KY 40509

/acp