Gulf Transport, L.L.C.

Plain-English summary

Gulf Transport, L.L.C. employed Robert C. Gould as a truck driver at the Newmont Gold Quarry operation. After an MSHA investigation of an accident involving a vehicle Gould operated, Gulf terminated his employment, and the Secretary sought his temporary reinstatement under section 105(c) of the Mine Safety and Health Act. Judge Irwin Schroeder found Gulf's request for a hearing was two days late and that it had not shown good cause for the delay. Applying the "not frivolous" standard, the judge found that the close timing between Gould's discussions with the Secretary about the accident and his termination was enough to support temporary reinstatement. Gulf was ordered to return Gould to his truck-driver position at his previous pay and benefits until the Secretary completed its investigation.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.45 and 30 U.S.C. § 815(c)
• Outcome: Gulf Transport was ordered to reinstate Robert C. Gould as a truck driver at his previous pay and benefits while the Secretary investigated his discrimination complaint.
• Key point: A temporary reinstatement application meets the "not frivolous" standard when the record supports a reasonable connection between protected activity and a near-term termination.

Full text (FMSHRC public release)

GULF TRANSPORT, L.L.C. -- September 24, 2003

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001

September 24, 2003

SECRETARY OF LABOR, MSHA, on : TEMPORARY REINSTATEMENT
behalf of ROBERT C. GOULD, JR., : PROCEEDING
Complainant :
: Docket No. WEST 2003-405-DM
v. : WE MD 2003-12
:
GULF TRANSPORT, L.L.C., : Mine ID 26-00500 F176
Respondent : Newmont Gold Quarry

ORDER FOR TEMPORARY REINSTATEMENT`

Before:  Judge Schroeder

This case is before me on an application filed on September 4, 2003, by the Secretary of
Labor on behalf of Robert C. Gould, Jr., pursuant to Section 105(c) of the Mine Safety and
Health Act of 1977. The application seeks the temporary reinstatement of Mr. Gould to his prior
employment by Gulf Transport, L.L.C. , as a miner employed to drive a truck. According to the
affidavit filed with the application, Mr. Gould's employment by Gulf was terminated on July 24,
2003, following an MSHA investigation of an accident that involved a vehicle operated by
Mr. Gould. The Secretary asks that Mr. Gould be reinstated to his employment pending
completion of the investigation by the Secretary of Mr. Gould's complaint of discrimination
under Section 105.

Under the procedural rules of the Commission, particularly 29 C.F.R.� 2700.45, the
respondent in an application for temporary reinstatement has ten days from respondent's receipt
of the application to request a hearing on the application. The application includes a certificate
of service that indicates a copy of the application was delivered to the respondent by electronic
facsimile on September 4, 2003, and by physical delivery on September 5, 2003. Delivery by
facsimile is effective under the Commission's procedures. A request for a hearing was due no
later than the close of business on Monday, September 15, 2003. I assume without deciding that
the ten day period is subject to enlargement on a showing of "good cause" even though I have
been unable to find any authority stating that the time period is subject to enlargement.

On September 17, 2003, I received an electronic mail message from Mr. Jamie Cooper,
Chief Executive of Gulf Transport, requesting a hearing. I consider his message to also be an
application for enlargement of time to request a hearing since it was then two days late. As I
understand the message from Mr. Cooper, he makes two claims of "good cause" for relief from
the time limitation on a request for a hearing. First, he claims to have only recently understood
the procedures for consideration of a request for temporary reinstatement. Second, he claims that
his distance from the scene (he apparently spends most of his time in Australia) made it difficult
to make a timely request for a hearing. I find both of these arguments unpersuasive.

First, any person or organization in the business of mining in the United States should be
held responsible for being familiar with the employee protections afforded by Section 105 of the
Mine Safety Act. Second, upon being assigned this case on September 5, 2003, I telephoned the
office of Gulf Transport in Elko, Nevada to verify service of the application. I spoke to the local
manager and offered to answer any questions the manager had about the procedures used by the
Commission to consider such applications. The manager indicated he would be in contact with
Mr. Cooper in Australia concerning the matter. I also telephoned counsel for the Secretary to
advise him of my conversation with the Gulf Transport manager and to encourage immediate
communication between the parties concerning the possibility of a hearing. I find as a matter of
fact that Gulf Transport had knowledge of the opportunity for a hearing (a fact also described in
the moving papers by which the Secretary sought reinstatement of Mr. Gould) well before the
deadline for making a hearing request. The availability of electronic transmission of information,
including actual documents by facsimile, undercuts the argument based on distance of upper
management from the scene. I find Gulf Transport, L.L.C., has not demonstrated good cause for
its failure to request a hearing within the ten day period for making such requests. It is, therefore,
my responsibility to determine the application on the basis of the record now before me that
includes a brief statement from Mr. Gould along with an affidavit from the Department of Labor
investigator, Mr. Horn.

The legal standard for evaluating an application for temporary reinstatement is whether
the application is "not frivolous." Secretary v. Perry Transport, Inc., 14 FMSHRC 2086
(December 1992). It is clear to me that this standard is far less demanding than the standard
applied in the District Courts to applications for temporary restraining orders, i.e. the probability
of success on the merits combined with a balance of harm to the respective parties. In providing
this interim relief procedure under the Mine Safety Act, the Congress demonstrated that its
concern was only for the harm to a worker not receiving a pay cheque. For the period necessary
for the Secretary to complete an investigation into a claim of discrimination (a whistle blower
protection designed to encourage disclosure of safety problems) the Congress wanted miners to
feel secure in keeping food on the table. Under the Mine Safety Act, the Secretary has 90 days to
complete an investigation of the complaint of discrimination.

The record in this case indicates the miner was terminated within a few days of the miner
engaging in conversations with representatives of the Secretary concerning an accident that
occurred during mine operations. The close proximity in time of the two events provides
sufficient basis to imply a connection for purposes of the "not frivolous" test for temporary
reinstatement. Secretary v. A & K Earth Movers, Inc., 22 FMSHRC 3232 (March 2000). The
standard has been satisfied in this case based on this record.

ORDER

It is ORDERED that Mr. Robert C. Gould be reinstated in his position as truck driver for
Gulf Transport, L.L.C., in its Elko, Nevada operations at his previous rate of pay and with his
previous benefits. This order is effective as of the date given above and will remain effective
until completion by the Secretary of an investigation of Mr. Gould's complaint of discrimination
filed with the Secretary on August 4, 2003.

Irwin Schroeder

Administrative Law Judge

Distribution: (Certified Mail)

Christopher B. Wilkinson, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson
St., Suite 1110, San Francisco, CA 94105

Robert C. Gould, Jr., 1182 Sewell Drive, Elko, NV 89801

James Cooper, Gulf Transport, L.L.C., 975 5th Street, Elko, NV 89801