Secretary of Labor obo Ronald D. Collins v. Next Endeavor Ventures, LLC

Plain-English summary

Ronald Collins, a foreman at Next Endeavor Ventures' surface mine, raised concerns about accident reporting, preshift records, employee drug testing and credentials, miner training, and other safety requirements. He testified that supervisor Wilk Renfroe became angry when Collins insisted on compliance and said he needed to get rid of Collins; Collins was discharged shortly afterward. The operator cross-examined Collins and argued that sexual-harassment allegations caused the termination but presented no witnesses to rebut his safety-related testimony. Judge Moran found the complaint plainly nonfrivolous under both the traditional temporary-reinstatement test and any but-for analysis. Collins was ordered reinstated retroactive to March 22, 2023, to his former superintendent/foreman position.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)
• Outcome: Ronald Collins was temporarily reinstated retroactive to March 22, 2023.
• Key point: Multiple safety disputes, management hostility, close timing, and unrebutted testimony readily met the limited nonfrivolous threshold for interim reinstatement.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE N. W., SUITE 520N

WASHINGTON, D.C. 20004-1710

Telephone No.: 202-434-9933

Telecopier No.: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA), on behalf of Ronald D. Collins

Complainant

v.

NEXT
ENDEAVOR VENTURES, LLC

Respondent

TEMPORARY
REINSTATEMENT

Docket
No. VA 2023-0023

Mine:
NEV # 1

Mine
ID: 44-07394

ORDER GRANTING APPLICATION FOR TEMPORARY
REINSTATEMENT

Appearances: Sharon H. McKenna, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, PA, Tony Oppegard, Esq., Lexington, KY, for the Complainant,
Billy R. Shelton, Esq., Lexington, KY for the Respondent

Before: Judge William B. Moran

This case is before the Court upon application
for temporary reinstatement filed pursuant to section 105(c)(2) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (“Mine Act”), and
29 C.F.R. § 2700.45 et seq. On March 1, 2023, the Secretary of Labor
(“Secretary”) filed an Application for Temporary Reinstatement for Ronald D.
Collins, Complainant, to his former position as Superintendent/Foreman for Next
Endeavor Ventures, LLC at Mine NEV #1, a surface mine.

The case was assigned to the Court on
March 3, 2023. Due to schedule conflicts with the parties and the Court, the
parties agreed that the hearing could be set beyond the ten calendar days
provided for by Commission Rule 45 . A virtual hearing,
via Zoom for Government videoconference, was held on March 31, 2023 . The
parties also agreed that, should the Court find that the application was not
frivolously brought, the date for reinstatement would be effective
retroactively to March 22, 2023 . For the reasons
set forth below, the Court grants the application for temporary reinstatement
and retains jurisdiction until final disposition of the complaint on the
merits.

Applicable Law

As noted by Judge Margaret
Miller,

Section 105(c) of the Mine Act, 30
U.S.C. § 815(c) , prohibits discrimination against miners
for exercising any protected right under the Act. 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 (1978).

Grimes Rock, 43
FMSHRC 287, 289, May 2021 (ALJ Margaret Miller) (“ Grimes ALJ dec.”)

A miner that lodges a complaint of
discrimination under section 105(c) is entitled to ‘immediate reinstatement …
pending final order on the complaint’ as long as the complaint was ‘not
frivolously brought.’ 30
U.S.C. § 815(c)(2) . The Commission has stated that the scope
of a temporary reinstatement proceeding is therefore ‘narrow, being limited to
a determination by the judge as to whether a miner’s discrimination complaint
is frivolously brought.’ 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) . This 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., Inc. v. FMSHRC , 920 F.2d 738, 748 (11th Cir. 1990) .

Grimes ALJ , Id.

In a temporary reinstatement hearing,
a judge is tasked with evaluating the evidence of the Secretary’s case and
determining whether the miner’s complaint appears to have merit. Sec’y of
Labor on behalf of Williamson v. CAM Mining, LLC , 31 FMSHRC 1085, 1089
(Oct. 2009). The Secretary must prove only a nonfrivolous issue of
discrimination and need not make a full showing of its prima facie case of
discrimination. Id . at 1088. Nevertheless, it may be ‘useful to review
the elements of a discrimination claim’ when gauging whether a claim is
nonfrivolous. Id . Those elements include (1) that the complainant was
engaged in a protected activity and (2) that the adverse action complained of
was motivated in part by that activity. 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). The Secretary may establish the motivational nexus between the protected
activity and the adverse action with indirect or circumstantial evidence such
as (i) the employer’s knowledge of the protected activity, (ii) hostility or
animus towards the protected activity, (iii) coincidence in time between the protected
activity and the adverse action, and (iv) disparate treatment of the
complainant. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp ., 3
FMSHRC 2508, 2510 (Nov. 1981).

While it is true that a judge may
consider these factors, a temporary reinstatement case remains ‘conceptually
different’ than the underlying case of discrimination. Jim
Walter Res., Inc. v. FMSHRC , 920 F.2d at 744 .
The Mine Act envisions an ‘expedited basis’ for a temporary reinstatement
proceeding that does not permit full discovery or complete resolution of
conflicting testimony. 30
U.S.C. § 815(c)(2) ; Sec’y of Labor on behalf of Ward v.
Argus Energy WV, LLC , 34 FMSHRC 1875, 1879 (Aug. 2012). In fact, Commission
case law indicates that resolving credibility issues or conflicts in testimony
is beyond the scope of a temporary reinstatement hearing. Williamson , 31
FMSHRC at 1089. Similarly, a judge is not permitted to weigh the operator’s
evidence against the Secretary’s evidence when determining whether to grant
temporary reinstatement. Id . at 1091.

Grimes
Rock, 43 FMSHRC 287 , 289-290, May 2021 (ALJ Margaret
Miller)

A wrinkle in Temporary Reinstatement
Applications

Judge Miller took note
that “[t]he Ninth Circuit recently rejected the Pasula-Robinette
framework in Thomas v. CalPortland Co ., 993 F.3d 1204 (9th Cir. 2021) .
Specifically, the Court struck down the requirement that the adverse action was
motivated ‘at least partially’ by the protected activity in favor of a but - for
causation standard. Id .
at 1209-11 .” Grimes Rock, 43 FMSHRC 287, n.1. (emphasis
added).

In the same Grimes
Rock case, the Commission subsequently spoke about the “ but-for” standard
in temporary reinstatement applications. Grimes Rock , 43 FMSHRC 299, 301 (June 2021) (Commissioners
Althen and Rajkovich, Chairman Traynor concurring in result only that
the complaint was not frivolously brought). There, the majority, consisting of
Commissioners Althen and Rajkovich, noted:

The Commission has recognized that
the ‘scope of a temporary reinstatement hearing is narrow, being limited to a
determination by the Judge as to whether a miner’s discrimination complaint is
frivolously brought.’ 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) (“ JWR ”); Sec’y of Labor on
behalf of 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. JWR ,
920 F.2d at 748, n.11 .

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.’ JWR ,
920 F.2d 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 of Labor on
behalf of Albu v. Chicopee Coal Co. , 21 FMSHRC 717, 719 (July 1999).

Id.
at 301.

As
the majority, Commissioners Althen and Rajkovich then elaborated about the
scope of temporary reinstatement proceedings in light of the but-for causation
standard articulated by the Ninth Circuit, stating:

Upon adopting the ‘ Marion
approach ’ in Secretary of Labor on behalf of Cook v. Rockwell
Mining, LLC in which the scope of a temporary reinstatement hearing was at
issue, the Commission held that a temporary reinstatement hearing must be a
full evidentiary process. 43 FMSHRC___, slip op. at 9, No. WEVA 2021-0203 (Apr.
23, 2021), citing Sec’y of Labor on behalf of Kevin
Shaffer v. Marion County Coal Co. , 40 FMSHRC 39, 47 (Feb. 2018) (separate
opinion of Acting Chair Althen and Commissioner Young). During the
proceeding, a Judge must consider any evidence which is relevant to the adverse
action. Id . In other words, ‘all evidence relating to the adverse
employment action is relevant in a temporary reinstatement proceeding -- even
that which seems directed to an affirmative defense or rebuttal of the miner’s
claim.’ Id . (emphasis added).

The Marion approach gives operators an
opportunity to provide evidence that the complaint was frivolously
brought. 43 FMSHRC___, slip op. at 9 (emphasis added [by majority]). It is
permissible, therefore, for a Judge to consider evidence regarding allegations
of a miner’s unprotected misconduct to determine if the miner has a viable
case. However, such evidence may not serve as a basis for denial of
reinstatement if it requires resolution of a credibility determination. Id .
at 10. In a temporary reinstatement hearing, the Judge may not resolve
credibility disputes or make rulings on credibility.

Id.
(emphasis added).

The reference
above to the ‘ Marion approach ’ requires some
background in order to appreciate its foundation. As just noted, in Grimes Rock , 43 FMSHRC 299, (June 2021), the
two-members constituting the majority in that case referenced three cases : Sec’y
of Labor on behalf of Kevin Shaffer v. Marion County Coal Co. , 40 FMSHRC
39, 47 (Feb. 2018) (separate opinion of Acting Chair Althen and Commissioner
Young) (“ Marion ”), Thomas
v. CalPortland Co ., 993 F.3d 1204 (9th Cir. April 14, 2021) , (“ CalPortland ”)
and Secretary of Labor on behalf of Cook v. Rockwell
Mining, LLC 43 FMSHRC 157 (Apr. 23, 2021) (“ Cook
v. Rockwell Mining ”).

Marion, the
source for the ‘ Marion approach, ’ involved
a temporary reinstatement proceeding. It is noteworthy because, though four
Commissioners were involved in that decision, separate opinions were issued – Commissioners
Jordan and Cohen in one and Acting Chairman Althen and Commissioner Young in
the other.

By
dubbing the views of two commissioners as the ‘ Marion approach, ’
Commissioners Rajkovich and Althen in effect elevated the opinion of two
commissioners over the equally viable opinions of Commissioners Jordan and
Cohen. This is significant because the two sets of Commissioners expressed very
different views about what is needed to establish that an application is not
frivolously brought.

For
their part, Commissioners Jordan and Cohen expressed that the ‘non-frivolously
brought standard’ in a section 105(c)(2) action may be likened to the
“reasonable cause to believe” standard applied in other statutes. Marion
at 41-42. They added that “[a]n important point to remember in reviewing a
district court’s determination of reasonable cause is that the district judge
need not resolve conflicting evidence between the parties.
Id . at 42 (emphasis added).

Speaking
to the temporary reinstatement hearing itself, they noted that “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. …
[and that] [i]t [is] not the [J]udge’s duty, nor is it the Commission’s, to
resolve the conflict in testimony at this preliminary stage of
proceedings. Id. (emphasis added).

Last,
those Commissioners remarked that evidence that the miner “was discharged for
unprotected activity relates to the operator’s rebuttal or affirmative defense.
The Judge will need to resolve the conflicting evidence in the
context of the full discrimination proceeding . Id. at 44.

In contrast,
Commissioners Althen and Young agreed that the Secretary’s burden was to show
that the claim is not frivolous, but they added that to make that showing it is
necessary to prove it by a preponderance of the evidence. Id. at 46. From
their perspective that translated to the Secretary showing that that “the
Secretary has demonstrated that it is more probable than not that the claim is
not frivolous.” Id. Under that view, those Commissioners added to the previously
required showing, expressly stating that “[t]he burden of proof in a temporary
reinstatement case, therefore, contains two legal standards : “ preponderance
of the evidence” and “non-frivolous . ” Id. (emphasis added).

Commissioners
Althen and Young expanded upon the application of their view, stating that “all
evidence relating to the adverse employment action is relevant in a temporary
reinstatement proceeding -- even that which seems directed to an affirmative
defense or rebuttal of the miner’s claim. While we agree that the Judge
should not make credibility and value determinations of the operator’s rebuttal
or affirmative defense, if the totality of the
evidence or testimony admits of only one conclusion , there is no
conflict to resolve. It is the Judge’s duty to determine whether the claim is
frivolous, in light of undisputed or conclusively-established facts and
inescapable inferences.” Id. at 47. (emphasis added).

The second of
the three cases cited by Commissioners Althen and Rajkovich in Grimes
was Thomas v. CalPortland Co ., 993 F.3d 1204
(9th Cir. April 14, 2021). It should be recalled that Grimes was a
temporary reinstatement case. In contrast, CalPortland was not a
temporary reinstatement case. Instead, the Ninth Circuit’s decision was a
105(c)(3) proceeding, often distinguished as a ‘full’ discrimination
proceeding. [1]
In matters of discrimination, the Mine Act clearly distinguishes between
temporary reinstatement and full discrimination proceedings. See, 30
U.S.C. § § 815 (c)(2) and (c)(3).

It
is certainly true that the Ninth Circuit rejected the Pasula-Robinette
framework in a full discrimination action . [2] However,
nowhere in that decision will one find the words frivolous, temporary, or
reinstatement or remedial. Again, the reason those words are absent is simple –
that case did not involve temporary reinstatement. As such, any ‘ but-for ’
references, are applicable only in a full discrimination proceeding, and
therefore inapplicable in the very distinct temporary reinstatement proceeding.

The last of
the three decisions referenced by the two-members constituting the majority in Grimes
Rock , 43 FMSHRC 299, (June 2021) was Sec . obo Cook v. Rockwell
Mining , 43 FMSHRC 157 (April 2021). That case involved a temporary
reinstatement decision by the Commission, which produced an interesting result.
Two Commissioners, Chairman Traynor and Commissioner Rajkovich, found that the
complaint was not frivolous. Commissioner Althen voted to remand the matter
“for the full hearing to which [Rockwell Mining] was entitled.” Id . at

171. In that respect, Commissioner Rajkovich agreed with Commissioner Althen
     that the judge failed “to conduct a full hearing by excluding evidence offered
     by the respondent to prove it terminated the complainant as a result of a gross
     safety violation. Such evidence was relevant to the respondent’s claim of no
     showing of animus and that unprotected activity supported the termination. The
     evidence was relevant and admissible. The failure to hear this evidence was an
     error.” Id . at 169. Though Commissioner Rajkovich’s decision appeared to
     have duality, agreeing with the conclusion that the complaint was not
     frivolous, while also agreeing with Commissioner Althen about the proper scope
     of a temporary reinstatement proceeding, he determined that the failure
     regarding the scope of the hearing was ‘harmless.’ Id. at 158, 167.

In reaching
agreement with Commissioner Althen on the scope of a temporary reinstatement
proceeding, Commissioner Rajkovich looked to Sec’y
of Labor on behalf of Shaffer v. Marion County Coal Co. , 40 FMSHRC 39 (Feb.
2018) as the law of the Commission. As discussed above, in that decision two Commissioners, Acting Chair Althen
and Commissioner Young, held that “all evidence relating to the adverse
employment action is relevant in a temporary reinstatement proceeding -- even
that which seems directed to an affirmative defense or rebuttal of the miner’s
claim.” Id. at 47.

As
also noted above, there were two separate opinions issued in Marion. Commissioners
Jordan and Cohen did not buy into the views regarding the proper scope of the
temporary reinstatement proceeding, as expressed by Commissioners Althen and Young . Thus, on the scope issue, there was
no definitive Commission decision in Marion . It was in Cook v. Rockwell Mining , 43 FMSHRC 157 (Apr. 23, 2021) that
Commissioner Rajkovich dubbed the views of Commissioners Althen and Young as
“the Marion approach.” Id . at 165. Accordingly,
in Rockwell Mining, the views of Commissioners Althen and Rajkovich,
adopted “the Marion approach” which then became the law of the
Commission. Id . at 158.

The
Court notes that the Application for Temporary Reinstatement in this matter, Secretary
obo Ronald Collins , involves a mine located in Virginia. As such, apart
from Commission law, when consulting decisions from the United States Courts of
Appeals, it is the Fourth Circuit Court of Appeals that one looks to for
applicable law. Nevertheless, this decision encompasses both the Ninth
Circuit’s expression as well as the Fourth Circuit’s and follows the
Commission’s decision in Grimes Rock , 43 FMSHRC
299 , (June 2021), instructing application of the but-for review

Here, out of an abundance
of caution, the Court applies the traditional test [3] for
determining if an application for temporary reinstatement is frivolous, but in
addition applies the but-for standard expressed in Thomas. Both
applications produce the same result: the Secretary’s Application for temporary
reinstatement of Ronald D. Collins is not frivolously brought.

JOINT STIPULATIONS

Next Endeavor Ventures, Inc., is and was at all
relevant times through this proceeding, the operator of Mine #1, Mine ID
number 44-07394, located in Keokee, Virginia.

Mine #1 is a mine as defined in Section 3(h) of
the Mine Act, 30 U.S.C. § 802(h).

At all times relevant to this proceeding,
products of Next Endeavor Ventures, Inc., Mine #1 entered commerce, are
the operations of products thereof of affecting commerce, within the means
and scope of Section 4 of the Mine Act, 30 U.S.C. § 803.

Next Endeavor Ventures, Inc., is an operator as
defined in Section 3(d) of the Mine Act, 30 U.S.C. § 802(d), and is person
as defined Section 3(f) of the Mine Act, 30 U.S.C. § 802(f).

Ronald Collins was previously employed by Next
Endeavor Ventures, Inc. Ronald Collins is a miner within the meaning of
Section 3(g), Mine Act, 30 U.S.C. § 302(g).

Ronald Collins was terminated from Next Endeavor
Ventures, Inc., on November 19, 2022.

Next Endeavor Ventures, Inc., is subject to the
jurisdiction of the federal mine safety and health review Commission. The
presiding administrative law judge has the authority to hear this case and
issue a decision regarding this case, pursuant to § 105 of the Act, 30
U.S.C. § 815, as amended.

SUMMARY OF THE TESTIMONIAL EVIDENCE

As mentioned above, a virtual hearing, via
videoconference, was held on March 31, 2023. The hearing had but one witness,
the Applicant/Complainant Ronald Dwayne Collins. He was last employed on
November 19, 2022 and his employer was Next Endeavor Ventures (“NEV”). Tr. 36. The
mine is a surface coal mine and is nonunion. Tr. 144. Collins has worked as a
miner for 37 years and holds various certifications related to mining,
including a first-class mine foreman, service foreman and an MSHA instructor
card. Tr. 37. His employment with NEV began on August 29, 2022 at the NEV #1
mine. He was employed as a foreman. Tr. 39. As foreman his responsibilities
included compliance with all MSHA and Virginia Energy safety regulations, the
latter encompassing the Virginia Division of Mines, Minerals and Energy. Tr.

41. His supervisor was Wilk Renfroe. On August 29, 2022, Collins first day on
    the job, he had an accident, crushing one of his fingers. It required treatment
    at a medical facility, but he did not miss work because of it. Subsequently, a
    state inspector contacted Collins, asking if the accident had been reported. Eventually
    it was reported but, as it was filed late, the mine received both a state and
    federal violation. Tr. 46. About two to three days after Collins’ accident, the
    State closed the mine for not having liability insurance. Tr.47. [4] Collins
    stated that as of the date of the hearing, the mine has yet to pay the medical
    bills arising from his workplace injury. Tr.49.

Collins then was asked
about an MSHA inspection subsequent to his injury. This involved Brandon and Jonas
Fleming. The two had been hired to run an auger at the mine. Tr. 52. Collins
terminated the Flemings because, he alleged, the mine did not have an approved
State and Federal ground control plan. Tr. 53-54. Collins stated that Renfroe
was upset with him over the auger issue and the termination of the Flemings. Tr.
56-57. Significantly, Collins testified that Renfroe told him “that he needed
that [work for] coal [ ] production, that [Collins] was gonna cost everybody
their jobs, and that he was highly upset. If [Collins] didn't get with his
program, [he’d] be terminated.” Id . Collins stated that from that point
on Renfroe was hostile towards him. Tr. 57.

Around October 28, 2022, Renfroe
and Collins had a conversation about a new employee, Jeff Patterson, who would
be operating an excavator. Tr. 58. Renfroe advised Collins that he needed
Patterson to work on that weekend. Collins inquired if Patterson had his MSHA
and State training and Renfroe advised he, Renfroe, would worry about that but
that Patterson had the certifications. Renfroe had a similar response to
Collins’ inquiring about whether Patterson had his preemployment drug test. Tr.

58. Without showing him documentation on those issues, which included showing
    that MSHA and state training had been done, Collins advised that he would not
    be signing that the employee was safe to work. Tr. 58-59. When Renfroe advised
    that he was going to work the Patterson anyway, Collins informed that he would
    not be a part of that and would not physically remain on the mine site. Tr. 63,
59. Renfroe and Collins had a heated exchange over these issues, and Collins
    maintained that Renfroe told him that he “was hindering his production ability
    with safety regs -- he said I was too strict on safety, and he was very
    belligerent about it. And I told Mr. Renfroe I was just trying to follow the letter
    of the law. He didn't like that.” Tr. 72. Thus, Collins had multiple objections
    to allowing Patterson to work – he didn’t have his Virginia miners’ card, nor
    his drug test, nor his new employee miner training, nor his hazard and task
    training. Tr. 76. Because of those failings, Collins did not report for work on
    November 4, 2022 . Id.

Following that, Collins
received a telephone call from a state mine official, inquiring if he was aware
that an employee was working at the mine illegally and that Collins’ signature
was on the pre-shift book. Collins informed that he had not been at the mine on
that date and had not signed the pre-shift book. Tr. 79. Mr. Patterson was then
removed from the mine site. Tr. 80. The state also issued a closure order at
that time. Tr. 81.

On November 7, 2022,
Collins went to the mine site and at that time read the alleged violation
connected with the closure order. Tr. 84. The Virginia inspectors informed
Collins that they were lifting the closure order but that stipulations were
associated with the reopening. [5]
Id. Collins alleged that on November 7 th Renfroe’s reaction
to Collins’ contacting the State mining agency about the preshift book issue as
“the straw that broke the camel’s back.” Tr. 89, 95, 97. Collins reiterated to
Renfroe that he would not be coming to work if Patterson was working. Tr. 97.

Collins and Renfroe had
several heated conversations during the days in issue for this matter. In one,
Collins asserted that Renfroe advised him that “listen you're [i.e. Collins] trying
to be work safe is not going to work with this organization. I'm going to have
to wash my hands of you. I'm going to have to move on. It's just getting to
where it's unbearable.” Tr. 101.

Collins also asserted
that on November 17, 2022, [6]
he had a conversation with JD Harrison, who was identified as a future foreman,
along with Kelly Willis. Tr. 102. On that day, Collins asked Harrison if he had
all his paperwork in order. According to Collins, Harrison responded that
Renfroe said he was good to go. Tr. 103. Collins determined that Harrison did not
have any of that paperwork. Tr. 104. Though Harrison maintained that inspector
Herschel Fleming, a state inspector, informed that no additional drug test was
needed. Tr. 104, 107. Upon checking with the inspector, Harrison’s contention
was rejected, and he had to leave the mine property. Tr. 105. Renfroe was angry
with Collins requiring that Harrison have a drug test. Collins stated that
during this exchange, Refroe uttered expletives and that he had to get rid of
Collins. Tr. 106. Harrison did leave the mine to get a drug test. Tr.108. The
following day Collins saw Harrison doing his training with Gary Whisman. Tr.
115.

In yet another incident,
this time on November 18 th , Collins observed an employee running a
dozer with no one else present. Tr. 119. When Collins inquired of the employee
whether he had his training and certifications, and drug test, the employee
answered that he did not. Tr. 120. Collins had this employee leave the mine
site as well. Tr. 120-121. However, not long after, Collins saw the same
employee at the site. Not long after the second confrontation, the employee was
back again, but on this occasion another employee was watching the miner
operate the dozer. Tr. 121. Renfroe told Collins to leave the employee alone
and if Collins didn’t like it, Renfroe told him he could “go to the house,”
mine parlance for being fired. Tr. 121. [7]

On Saturday, November 19,
2022, Collins had a phone conversation with Jeff Patterson, at which time he
was informed that the mine didn’t need his services anymore. Tr. 129. Collins
was also asked about one of the mine’s owners, whom he identified as Emma. He
was unsure if her last name was Vasquez or Marquez. Tr. 132. In any event,
Collins met her at the mine on one occasion sometime in the middle of October
that year when a State inspector was present as a complaint had been called
regarding the mine. Collins recounted that Emma remarked that in her view there
was a ‘mole’ at the mine and if she found out who it was, that individual would
be fired. Tr.133. Renfroe too, Collins asserted, made a similar remark – if the
mine found out “who was tipping the inspectors off on the safety issues” that
person would be terminated. Tr. 134. Later, Renfroe told Collins that he
suspected Collins was the person making the complaint. Tr. 135.

During the hearing there was
also a reference to a Ms. Kayleigh Mulkey. Collins knows her. Tr. 140. Ms.
Mulkey was never employed at the Respondent’s mine during the time of Collins
employment there. Id. Instead, she was employed with a nearby mine,
A&G Coal Corp. Tr. 140-141. This subject arises in the context of
the Respondent’s Answer to the reinstatement application wherein it alleges
that Collins sexually harassed a woman in violation of the mine’s sexual
harassment policy. Respondent’s Answer, Sixth Defense.

In that connection, Collins
was asked about his employment packet when he began working for the Respondent.
He contended that he never saw a sexual harassment policy as part of that
packet. Tr. 141. He also denied ever having any conversations with the
Respondent’s ownership or management about that subject. Tr. 141-142. Later,
Collins stated, he received the employment packet again via e-mail. One was
sent to him by an administrative assistant with the mine, Amy Cutshaw. Tr. 142.
Collins stated that when he was terminated by the Respondent, Mr. Patterson
never told him that he was fired because of sexual harassment. Tr. 147.

On cross-examination,
Collins agreed that Renfroe does not need a miner’s card because he doesn’t
work on the site and because he is part of management. Tr. 151. Respondent’s
attorney questioned Collins about the particulars of the mine’s ground control
plan vis-à-vis the excavator and its proximity to the wall. Tr. 151-153. However,
the Court would comment that such questions are extraneous in the context of a
temporary reinstatement application because Collins was at least raising a
safety issue. There is no indication in the record that his concern was
pretextual or made in bad faith.

Collins was also
questioned by Respondent’s counsel about his first discrimination report and
the subsequent discrimination report he signed some three weeks later. Tr. 156-

158. Respondent’s counsel noted that the second report (i.e. Collins’ amended
     complaint) added claims that were not made in his initial complaint. It is true
     that Collins filed an amended complaint on December 22, 2022, and that he added
     grounds for his complaint in that document. At the hearing, Collins testified
     to the grounds listed in his initial complaint and those asserted in his
     amended complaint. The Court would note that it is guided by the testimony at
     the hearing with regard to its assessment of Mr. Collins’ testimony about his alleged
     safety issues, which assessment does not involve credibility determinations. Some
     areas of cross-examination, such as whether Collins submitted bills regarding
     his finger injury to Next Endeavor are not pertinent to the frivolous issue
     here.

Respondent’s counsel also
questioned Collins regarding his issues concerning employee training
certifications and whether, for those tasks he could act as an instructor, he
could’ve conducted the training himself. Two observations are made about this
line of inquiry. First, Collins denied that he was certified to do all of the
required training. Second, according to Collins’ testimony, the dispute was
connected with Renfroe’s irritation that Collins was raising the training
issues. At least on its face, that relates to the issue of whether Renfroe was
upset with Collins’ safety concerns, an issue not to be resolved in the
temporary reinstatement proceeding.

It is true enough, as
Respondent’s Counsel noted, that Collins’s complaint, per the Secretary’s Exhibit
B, did not contain his allegations that Mr. Renfroe told him that this was the
“last straw, or Wilk Renfroe cussing you, or Wilk Renfroe doing this or Wilk
Renfroe bringing people to the mine site that weren't properly trained, or Wilk
Renfroe bringing people to the site that didn't have their drug test,” Tr. 164-

165. The Court is again guided by Collins’ testimony at the hearing, which was
     effectively augmented by the absence of any rebuttal testimony, as the
     Respondent did not present any witnesses. [8]

In what the Court views
as a subject that is not and cannot be resolved at this stage of Collins’
safety complaint, Respondent’s Counsel’s foray into whether Collins was
terminated for sexual harassment, it is noted that much time was expended
concerning the location of another mine, which mine, it was conceded, was
not part of Next Endeavor Ventures’ operations. This was an attempt to somehow
link Ms. Kaleigh Milkey, an employee of that other mine, with the sexual
harassment claim Respondent was making against Collins. Tr. 165- 192. Being
generous, the Court would say that, at least for the purposes of the temporary
reinstatement application, this whole line of questioning went nowhere.

SUMMARY AND ADDITIONAL FINDINGS

The following
observations are made about the detailed testimony from Mr. Collins, as set
forth above. None of these observations involve credibility determinations by
the Court. Instead, they are made strictly in the context of whether Collins’
application for temporary reinstatement was frivolously brought. To be clear,
the Court finds, without reservation or hesitation, that Collins application is
not frivolous. Stated another way, the totality of the evidence or testimony
admits of only one conclusion – Collins’ complaint is not frivolous.

Collins raised several
health and safety concerns to management. Each constituted protected activity. Some
of these issues were also brought to the attention of the mine safety division
within the state of Virginia as well as with MSHA. A miner’s raising a safety
or health issue of any sort is protected, whether tied to a particular
provision under state or federal mining law or not. For example, as detailed
above, Collins raised a safety concern with Wilk Renfroe concerning: an
employee who did not have a pre-employment drug screening; the failure of an
employee to have a Virginia miners card; and an alleged failure to have the
requisite miner training before starting work.

There was also an issue
related to the safety concerns Collins raised. This relates to whether Collins
in fact signed the book on a given day or whether his signature was forged. That
issue has not been resolved but it does tend to show possible employer animus
towards Collins attributable to his refusal to sign the books. There was also
an issue over the mine’s alleged failure to file an accident report with MSHA
in connection with an injury Collins incurred on the job.

Further, was also
testimony from Collins that, on more than one occasion, he was admonished for
not going along with the mine’s wish that certain safety or health requirements
be overlooked. Chiefly, these disputes involved Collins and Mr. Renfroe. The
Court notes that Renfroe was present during the entire temporary reinstatement
hearing, as the Respondent’s designated company representative. This means that
Renfroe heard nearly all of the testimony from Collins. [9] Yet, at the
conclusion of the testimony from Collins, and noting that Collins was the sole
witness for the Secretary, the Respondent elected to forego presenting
testimony from any other witness, limiting its effort to cross-examination of
Collins.

The Court notes and finds
that the safety and health issues Collins testified about all occurred during a
short period of time before Collins was terminated from employment with the
mine. Therefore, a nexus established between Collins’ protected activity and
the adverse action – termination of his employment with NEV. Respondent’s
contentions are in the nature of claimed affirmative defenses and do not impact
the issue in a temporary reinstatement proceeding.

Respondent contended that
the Secretary didn’t carry its burden of proof in this Application for
temporary reinstatement. In making that argument, Respondent asserts
that based on Mr. Collins first complaint he asserted only two grounds – that
his hospital bills were not paid and the issue of whether his signature was
fraudulently in the preshift book. The Court notes that nothing prohibits a
complaint from being amended.

Respondent also contends
that failure to have drug testing or the certificate to show the testing was
done, is not a safety issue and that Collins other safety issues, as set forth
above, are not cognizable. With regard to the latter, the Court notes that a
miner need only have a reasonable, good faith belief in a safety hazard. See,
e.g , Secretary of Labor on behalf of
Robinette v. United Castle Coal Co., 3
FMSHRC 803, Apr. 1981), Gilbert v. FMSHRC , 866 F.2d 1433 (D.C. Cir.
1989). Respondent further maintains that Collins’ text messages to Ms.
Mulkey, an employee at another mine, constituted sexual harassment and
constituted the basis for his termination.

CONCLUSION

Upon consideration of the
testimony of Ronald D. Collins, the Court finds that the testimony and exhibits
in support of this application for temporary reinstatement amply support that it
is not frivolously brought. The Court finds that the Complainant
has raised a non-frivolous issue as to each element of the prima facie case and
finds that, under the traditional non-frivolous test as well as any but-for
analysis that may be applied, Complainant more than met his burden of proof.

ORDER

The Application for
Temporary Reinstatement is hereby GRANTED. It is ORDERED that
Ronald D. Collins be temporarily reinstated, retroactive to March 22, 2023 to
the position he held on the date of his discharge from Next Endeavor Ventures,
LLC at the NEV #1 mine.

This ORDER shall
remain in effect until such time as there is a final determination in this
matter by hearing and decision, approval of settlement, or other order
of this court or the Commission. The Court retains jurisdiction over this
temporary reinstatement proceeding. 29 C.F.R. § 2700.45(e)(4). The Secretary
shall provide a report on the status of the underlying discrimination complaint
as soon as possible.

/s/
William B. Moran

William B. Moran

Administrative Law
Judge

Distribution,
via email:

Sharon
McKenna, Esq.

U.S.
Dept. of Labor

Office
of the Regional Solicitor

1835
Market Street

Mailstop
SOL /22

Philadelphia,
PA 19103-2968

[email protected]

Ronald
Collins, Claimant

[email protected]

Billy
Shelton, Esq.

2452
Sir Barton Way, Suite 200

Lexington,
KY 40509

[email protected]

Tony
Oppegard, Esq,

P.O.
Box 22446

Lexington,
KY 40522

[email protected] .

Wes
Addington, Esq.

317
Main Street

Whitesburg,
KY 41858

[email protected]

[1] The ‘full
discrimination proceeding, also referred to as the “full evidentiary hearing” and
‘the later discrimination proceeding,’ are all terms used to distinguish such
proceeding from the temporary reinstatement proceeding. See, e.g., Sec'y of
Labor on behalf of Billings v. Proppant Specialists, LLC , 33 FMSHRC 2383,
2385 (Oct. 2011) and Sec’y of Labor on behalf of Kevin Shaffer v. Marion
County Coal Co ., 40 FMSHRC 39, 44 (Feb. 2018)

[2] The Ninth Circuit
described the Pasula-Robinette framework as one where “a miner proves a
prima facie case of discrimination by showing that: (1) he engaged in protected
activity and (2) was subject to an adverse action motivated “at least partially
... by his protected activity. … ” The mine operator may then rebut the prima
facie case by showing: “(1) the miner was not engaged in any protected
activity, or (2) the adverse employment action was not even partially motivated
by the miner’s protected activity.” Or, if the mine operator cannot rebut the
prima facie case, it may assert an affirmative defense by demonstrating—by a
preponderance of evidence—that: (1) the adverse action was also motivated by
the miner’s unprotected activity; and (2) the adverse action would have been
taken in response to the unprotected activity alone.” citing Secretary ex
rel. Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (1980), rev’d
on other grounds sub nom., Consolidation Coal Co. v. Marshall , 663 F.2d 1211 (3d Cir. 1981) . CalPortland
at 1208.

[3] The elements of a
discrimination claim are useful guideposts in temporary reinstatement cases. Accordingly,
the Court looks to whether the alleged adverse action occurred “because [a]
miner … filed or made a complaint … including a complaint notifying the
operator … of an alleged danger or safety or health violation in a … mine … or
because of the exercise by such miner … of any other statutory right afforded
by this chapter.” 30 U.S.C. §
815(c)(1) .
Stated differently, 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. 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 (3rd
Cir. 1981) ; Sec'y
of Labor on behalf of Robinette v. United Castle Coal Co. , 3 FMSHRC
803 (April 1981).

[4] There were
questions involving the mine’s workers’ compensation and whether the mine had a
lapse in coverage and whether that impacted Collins’ coverage for his injury. The
Court considers this to be tangential to the issues in this proceeding.

[5] There were allegations
swirling about the issue of whether Collins or someone else signed the preshift
book. It is unnecessary to resolve this issue in the context of the temporary
reinstatement application, as the central issue remains – is this application
for reinstatement frivolous?

[6] Collins and
Renfroe had another dispute on November 17. This related to whether an
excavator required a cage to be installed on the machine. Tr. 116. Whether the
excavator in fact required a cage was not resolved at the reinstatement hearing
nor was the issue necessary to resolve. The only purpose in the context of the
proceeding is to show yet another safety-related dispute between Collins and
Renfroe.

[7] It is noted that
during the hearing there were a few occasions when the exact date of an event
was unclear. The Court has two observations about this. First, the exact dates
were not crucial to the determination in this hearing – whether Collins’ claim
was non-frivolous. Second, of far greater importance, is that Mr. Collins had
a number of safety issues while employed with the mine. The Respondent offered
no witnesses to contradict Mr. Collins claims in that regard, leaving its
challenges solely to the cross-examination of the Applicant.

[8] Respondent’s Witness
List identified four individuals: Michael Hughes, the MSHA investigator for this
matter, the Complainant, Mr. Collins, Wilk Renfroe and Jeff Patterson. As
noted, the only witness at the hearing was Ronald Collins.

[9] There was a very
brief period of time, involving only minutes, when Mr. Renfroe was not present
during the virtual hearing, but Respondent’s Counsel did not request that the
hearing testimony pause until Renfroe returned.