Secretary of Labor obo Aaron Lee Anderson v. A&G Coal Corporation and Chestnut Land Holdings, LLC

Plain-English summary

A haul truck driver at a Virginia surface coal mine complained over the CB radio that dust was blocking his visibility, then collided with another truck he said he could not see. The company fired him three days later, and he filed a discrimination complaint. An ALJ ordered him temporarily reinstated and refused to toll that order even though the mine was later idled and most miners were laid off or transferred. A&G appealed only the tolling question, arguing the miner would have been laid off anyway because he lacked seniority. The Commission affirmed. An operator seeking to toll reinstatement after a layoff must show the transfer decisions were made on terms that expose the miner's claim as frivolous, and A&G's own employee list undercut its seniority explanation, since 20 more senior miners were laid off while a miner hired the same month as the complainant was kept. The case was sent back to the judge to set the rate of pay and decide where the miner should work.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 815(c)(2) (temporary reinstatement on a non-frivolous discrimination complaint)
• Outcome: The petition for review was granted and the judge's refusal to toll temporary reinstatement was affirmed, with a remand on pay rate and work location.
• Key point: A later economic layoff does not automatically end temporary reinstatement; the operator must prove the miner would have been let go for reasons unrelated to protected activity.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY
OF LABOR,                             :                                     

MINE
SAFETY AND HEALTH                    :                                                         

ADMINISTRATION
(MSHA),                      :       

on
behalf of AARON LEE ANDERSON       :

:

v.
                                               :        Docket No. VA 2017-69-D

:                         

A
& G COAL CORPORATION                      :

and
CHESTNUT LAND HOLDINGS, LLC  :

BEFORE:
Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners

DECISION

BY
THE COMMISSION:

This temporary reinstatement proceeding
arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (2012) (“Mine Act”). On January 19, 2017, the Administrative Law Judge
issued a decision granting an Application for Temporary Reinstatement filed by the
Secretary of Labor on behalf of Aaron Lee Anderson against A & G
Coal Corporation (“A & G”) pursuant to section
105(c)(2) of the Mine Act, 30 U.S.C.

§ 815(c)(2). [1]
39 FMSHRC    , slip op. at 14, No. VA 2017-69-D (Jan.
19, 2017) (ALJ). The Judge further found that temporary reinstatement should
not be tolled by the partial layoff which occurred at the mine subsequent to
Anderson’s termination. The operator subsequently filed a timely petition for
review of the Judge’s grant of temporary reinstatement, directed at the tolling
issue. For the reasons that follow, we ­­­­­grant the petition and affirm the
Judge’s decision.

I.

Factual and
Procedural Background

A.     Factual
Background

A
& G operates the Strip No. 12 Mine, a surface coal mine located in Virginia.
Aaron Lee Anderson was employed at the mine, primarily as a truck driver hauling
rock, for approximately three months. He was hired on August 26, 2016, and discharged
from his position on November 21, 2016.

On November 29, 2016, Anderson filed a
discrimination complaint with the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) against A & G. App. for Temp. Reinstatement, Ex. B
at 1-2. MSHA conducted a preliminary investigation of Anderson’s discrimination
complaint and on January 3, 2017, the Secretary filed an Application for
Temporary Reinstatement, requesting an order requiring A & G to temporarily
reinstate Anderson to his former position as haul truck driver or to a
comparable position. Id . at 4. The Secretary alleges that the discharge was
motivated by the fact that Anderson raised safety concerns regarding dusty
conditions and compromised visibility in the pit area.

The Judge held a hearing on temporary
reinstatement on January 12, 2017. At the hearing, Anderson testified [2]
that on November 18, 2016, he was working night shift at the mine. Anderson
testified that when he arrived at the mine pit at the start of the shift, he
noticed a large amount of dust in the air. Using his truck’s CB radio, Anderson
communicated his safety concerns to his supervisor, Danny Orrick. He informed
Orrick that the dust in the air was impairing his vision while he was operating
his truck. Tr. 28-29. According to Anderson, Orrick stated that he would send a
water truck to clear the air. Tr. 25, 27. After Anderson hauled his first load
to the dump site, he saw that the water truck had not been brought in to
control the dust. While hauling his second load of rock, Anderson repeated his
concern about the dust impairing visibility over the CB radio. Orrick did not
respond to the second complaint. Anderson heard two other truck drivers voice
similar concerns about the dust impairing visibility. Tr. 28, 29, 31, 37. Anderson
testified that he continued working for fear of losing his job. Tr. 27.

The dust was still significantly
impairing visibility when Anderson returned to the pit to receive a third load.
Anderson saw one of the front-end loaders raise its shovel above the dust, and
believed that the loader’s operator was signaling to him to position his truck
to be loaded. Anderson attempted to back his truck into position, but collided
with another truck which was already being loaded.  Anderson testified that he
could not see the other truck because of the dust. The collision caused more
than $50,000 in damage to the other truck. Tr. 29-31, 51-55, 120. After the
accident, A & G tested Anderson for drugs and sent him home. Tr. 31-33. The
test results were negative. Tr. 33.

Prior to the November 18 accident, Anderson
had raised other safety concerns. He had made three complaints to Orrick
concerning berm heights, and how they needed to be raised. According to
Anderson, Orrick would become agitated at these complaints, and in one instance
Orrick responded that Anderson should do his job and Orrick would do his. Tr.

39. Anderson had also complained many times about the handrail on his truck
    being broken. Tr. 29, 55-56. A & G fixed the handrail, but never in a
    manner that prevented it being broken again. As of November 18, the handrail
    had remained unrepaired for approximately 10 days. Tr. 29, 56.  

A & G terminated Anderson on
November 21, asserting that the accident three days earlier was the reason. Anderson
filed a complaint with MSHA pursuant to section 105(c) of the Mine Act eight
days later. The Secretary subsequently investigated, and then filed his
Application for Temporary Reinstatement.

While the Secretary was investigating
Anderson’s complaint, A & G idled operations at the Strip No. 12 Mine due
to economic conditions. On December 28, 2016, the mine was placed in
“nonproducing” status with MSHA. As a result of the idling of the mine, approximately
29 miners were laid off and approximately 19 were transferred to the Bishop Coal
Mine, a mine two hours away which was owned by A & G’s parent company. Eight
miners either refused transfer or resigned. Tr. 90-91; PTR, Ex. A.  

Shortly after the Secretary filed his
request to have Anderson reinstated to his former position with A & G, the
operator filed a motion with the Judge asking that any reinstatement order be
tolled due to the layoff. A & G asserted that it would not have transferred
Anderson to the Bishop Coal Mine because Anderson did not have enough
seniority. In support of its tolling motion, A & G submitted a list of its employees
at the Strip No. 12 Mine showing which ones had been offered and accepted a
transfer to the Bishop Mine, which had been offered and declined a transfer,
and which miners were laid off and not offered a transfer. PTR, Ex. A. According
to the employee list, all employees who were offered transfers to the Bishop
Mine had more seniority than Anderson.

The Secretary opposed tolling of
Anderson’s temporary reinstatement and challenged the system which A & G
used to determine which employees would be laid off and which employees would
be offered the opportunity to transfer.

On January 19, the Judge issued an order
requiring temporary reinstatement of Anderson and denying A & G’s tolling
motion. A & G subsequently reinstated Anderson to a position that it
created for him as a truck driver hauling rock at one of A & G’s
reclamation projects.

B.      The Judge’s Order

The Judge found that
the Secretary’s section 105(c)(2) complaint was not frivolous. Specifically,
the Judge found that the Secretary had made a non-frivolous claim that Anderson
engaged in protected activity and suffered an adverse action. The Judge further
found A & G had knowledge of Anderson’s safety complaints made over the CB
radio, and that Anderson’s discharge closely followed his safety complaints. The
Judge further found that A& G displayed animus toward Anderson’s protected
activity in that its responses to the safety complaints ranged “from inaction
to outright hostility.” Slip op. at 11. Accordingly, the Judge concluded that the
Secretary had made a non-frivolous claim that a nexus existed between
Anderson’s protected activity and his subsequent discharge.

In denying the
operator’s tolling motion, the Judge reasoned that the operator had failed to demonstrate
that Anderson would not
have been transferred to Bishop Coal had he not been discharged following the accident . The
Senior Vice President of A & G’s corporate parent (Southern Coal
Corporation), Patrick Graham, testified that three factors were used to
determine whether a miner would be laid off or transferred to the Bishop Mine –
seniority, skills, and willingness to travel to the Bishop Mine. However, the
Judge found that each of those three factors was problematic with respect to
Anderson:

1)       The
Judge observed that, according to the operator’s own employee list, a miner who
was hired the same month as Anderson had been transferred to the Bishop Mine,
and another miner who had a decade more seniority than that miner was laid off.

2)       The
Judge further observed that the employee list did not list the skills or
certifications of the miners, but only listed the hourly wages. He found that
hourly wages were not a “suitable proxy” for determining skills, thus making it
impossible to determine whether Anderson’s skills would have qualified him for
transfer.

3)       Finally,
the Judge found that because Anderson had already been terminated at the time the
transfers were offered, his willingness to travel to the Bishop Mine was not
considered.

As a result, the Judge
found not frivolous Anderson’s assertion that, had he been working at the mine
at the time of the layoff, including him in the layoff rather than providing a
transfer would have been at least in part because of his protected activities. Accordingly,
the Judge denied the operator’s tolling motion.

II.

Disposition

The operator does not challenge
the Judge’s conclusions regarding Anderson’s underlying temporary reinstatement
claim. Rather, the operator argues that the Judge erred in denying A & G’s
tolling motion. The operator asserts that it presented clear evidence that
Anderson would have been included in the layoffs that resulted from the idling
of the mine. [3]

The Commission has recognized that the
occurrence of certain events, such as a layoff for economic reasons, may toll
an operator’s reinstatement obligation or the time for which an operator is
required to pay back pay to a discriminatee. See Sec’y of Labor on behalf of
Gatlin v. KenAmerican Resources, Inc., 31 FMSHRC 1050, 1054-56 (Oct. 2009) ; Sec’y of
Labor on behalf of Ratliff v. Cobra Natural
Res., LLC , 35 FMSHRC 394, 397-99 (Feb.
2013); Sec’y of Labor on behalf of Rodriguez v. C.R. Meyer & Sons Co. ,
35 FMSHRC 1183, 1187-88 (May 2013); see also Simpson v. Kenta
Energy, Inc ., 11 FMSHRC 1638, 1639 (Sept. 1989) (holding that back pay is
due to a discriminatee from the date of the unlawful discharge until the time
of reinstatement or “the occurrence of an event tolling the reinstatement
obligation”); Wiggins v. E. Assoc. Coal Corp ., 7 FMSHRC 1766, 1772-73
(Nov. 1985) (concluding that the back pay award ended upon the date of layoff).

Proof of a non-frivolous claim of
discrimination in a discharge that precedes a subsequent partial layoff,
standing alone, does not foreclose tolling due to the subsequent partial
layoff. To prevail on such a tolling claim, however, the operator must prove that
the layoff justifies tolling temporary reinstatement. Gatlin , 31 FMSHRC
at 1055. If the Secretary challenges the objectivity of the layoff, the
Commission applies the “not frivolously brought” standard contained in section
105(c)(2) of the Mine Act to the Secretary’s challenge. Here, the operator
discharged the miner prior to the layoff. Therefore, the Judge must evaluate
the tolling claim as if the miner was employed at the time of the partial
layoff and was laid off rather than transferred to the sister mine. In such circumstances,
once the complainant establishes a non-frivolous basis for a claim of a violative
discharge, temporary reinstatement should not be tolled by a partial layoff unless
the operator shows that the transfers were determined and carried out on terms
that expose as frivolous the miner’s claim that he would have been transferred
to the sister mine, but for his improper discharge.  

We find unavailing the
operator’s argument that, absent evidence that a miner with less seniority than
Anderson was transferred, A & G had no burden to produce any further evidence
in support of its tolling motion. Such a finding would eliminate the Judge’s
ability to review the totality of the evidence in determining whether the
operator carried its burden of proving that the employee would have been included
in the layoff for reasons wholly unrelated to protected activity. The Judge
must examine the entire record to determine if the proof of the criteria for the
layoff, at least insofar as it would have affected the complainant, makes application
of the discrimination claim to the layoff frivolous.

We also reject the
operator’s argument that Graham’s testimony and the employee list positively establish
that the operator would not have transferred Anderson to the Bishop Mine. PTR
at 3-5. The Judge carefully explained his reasons for finding that the
testimony and list did not demonstrate that Anderson would not
have been transferred to Bishop Coal had he not been discharged following the accident. In
short, the Judge found that the operator did not show as frivolous the miner’s
claim that his inclusion in the layoff, had he been employed, would have
resulted at least in part from protected activities.

The Judge found that the
operator’s assertion of seniority as the “primary factor” in its transfer
decisions was not dispositive. A miner who was hired earlier in the same month
as Anderson was transferred to the Bishop Mine, and another miner who had a
decade more seniority than that miner was laid off. The record supports these
findings. In fact, A & G’s own employee list shows that 20 miners with more
seniority than the miner who was hired in the same month as Anderson, and
retained, were laid off, and one of those laid off miners had 13 years more
seniority than the retained miner. The operator failed to adduce any evidence
explaining why seniority, a factor the operator had asserted as the primary
determinant for its decision, carried so little weight in the decisions not to
offer transfer to so many miners who had been employed by the company for
longer than the least-senior miner offered a transfer. Without further
explanation, the evidence supports a conclusion that A & G may have relied
upon subjective factors in determining which of the Strip No. 12 miners would
be offered the opportunity to transfer to the sister mine. As a result, we conclude that
substantial evidence supports the finding that A
& G did not prove that it would have included Anderson in the subsequent
layoff for reasons entirely unrelated to any protected activity.

I II.

Conclusion

For the reasons stated above , we ­­­­­grant the petition, and affirm the Judge’s
decision. [4]
We remand the matter to the Judge to determine the rate of pay due to the complainant
and whether the operator may continue to employ the complainant at the A &
G reclamation site or must transfer him to the Bishop Mine. [5]

/s/
William I. Althen

William
I. Althen, Acting Chairman

/s/ Mary Lu Jordan

Mary
Lu Jordan, Commissioner

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/ Robert F.
Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

[1] Section 105(c)(2)
of the Mine Act provides in pertinent part:

Any miner . . . 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. Upon
receipt of such complaint, the Secretary shall forward a copy of the complaint
to the respondent and shall cause such investigation to be made as he deems
appropriate. Such investigation shall commence within 15 days of the
Secretary’s receipt of the complaint, and 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).

[2] The Commission
has noted that in temporary reinstatement proceedings, it is “not the [J]udge’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) (citation omitted). 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
non-frivolous, not whether there is sufficient evidence of discrimination to
justify permanent reinstatement.” Jim Walter Res., Inc. , 920 F.2d 738,
744 (11th Cir. 1990). Thus, the Judge here correctly accepted Anderson’s
testimony as accurate.

[3] We reject the
Secretary’s argument that A & G’s temporary reinstatement of Anderson as a
truck driver hauling rock forecloses its tolling claim. The Judge ordered the operator to reinstate Anderson
immediately. The operator complied with the Judge’s order by creating a rock truck
position for Anderson at an A & G reclamation site. We are not persuaded by
the Secretary’s argument that the creation of Anderson’s new position somehow
undermines the fact that the mine needed to lay off a certain number of miners
for economic reasons. The Secretary’s approach, in effect, would penalize an
operator for complying with the Judge’s order for temporary reinstatement. Such
an outcome defies logic and runs counter to the goals of the Act by potentially
resulting in delays of compliance with temporary reinstatement orders for
miners. See , e . g ., Sec’y of Labor on behalf of Gatlin
v. KenAmerican Res., Inc. , 31 FMSHRC 1050, 1053, 1054 n.4 (Oct. 2009) (rejecting
the Secretary’s argument that the operator is estopped from asserting a tolling
claim when it had economically reinstated the miner without receiving job
services from him).

[4] Commissioner
Young disagrees with the Judge’s observation in footnote 17, which expressed
concern about the operator’s counsel noting that another, more senior miner
named by the counsel might be laid off as a result of Anderson’s temporary
reinstatement. While naming a specific miner should be avoided in the future,
it seems obvious that counsel was attempting to remind the Court that there is
a human cost when a miner included in an economic layoff must be reinstated.

[5] While this
appeal was pending, the parties submitted supplemental briefing requesting that
the Judge clarify his Order of Temporary Reinstatement to specify whether the
operator may continue to employ Anderson at the A & G mine or must transfer
him to the Bishop Mine at a higher rate of pay. The Judge should address this
issue on remand.