Secretary of Labor on behalf of Nelson Gregory Bradley v. Climax Molybdenum Company

Plain-English summary

Nelson Gregory Bradley alleged that Climax Molybdenum demoted him from a front-line supervisor job and later fired him after he reported safety concerns and challenged the demotion. He was terminated after refusing a direct-observation drug test ordered during the company's investigation of his compliance-hotline complaint. Judge Richard W. Manning found a nonfrivolous connection based on management's knowledge of Bradley's safety activity, evidence of hostility, the timing of the demotion, and unresolved questions about why the intrusive test was required while Bradley was on leave. The judge stressed that Climax might have a convincing defense on the merits and that mine operators have legitimate reasons to enforce drug-free workplace rules. Applying the lower temporary-reinstatement standard, he ordered Bradley immediately returned, or economically reinstated, to his former or a similar supervisory position at the same pay and benefits.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.45
• Outcome: Nelson Gregory Bradley was ordered immediately or economically reinstated to his former or a similar supervisory position.
• Key point: Unresolved evidence that a direct-observation drug test may have been used during a retaliation campaign can satisfy the low, nonfrivolous threshold for temporary reinstatement.

Full text (FMSHRC public release)

Prehearing-pro

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19TH Street, Suite 443

Denver, CO 80202-2536

303-844-3577/FAX 303-844-5268

October 29, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

on behalf of NELSON GREGORY BRADLEY,

Petitioner

v.

CLIMAX MOLYBDENUM COMPANY,

Respondent

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TEMPORARY REINSTATEMENT PROCEEDING

Docket No. WEST 2013-27-DM

MSHA No. RM-MD-12-11

Henderson Mine

Mine I.D. 05-00790

DECISION AND ORDER GRANTING APPLICATION

FOR TEMPORARY REINSTATEMENT

Appearances:              Francesca Cheroutes, Esq., Office of the Solicitor, U. S. Department of
Labor, Denver, Colorado, for Applicant;

Kristin R.B. White, Esq., and Michelle C. Witter, Esq., Jackson Kelly,
PLLC, Denver, Colorado, for Respondent.

Before:                        Judge Manning

This case is before me on an application for temporary reinstatement brought by the
Secretary of Labor on behalf of Nelson Gregory Bradley (“Bradley”) against Climax
Molybdenum Company (“Climax”) under section 105(c)(2) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(c)(2) (the “Mine Act”). The application was filed by the
Secretary on or about October 4, 2012, and Climax requested a hearing within 10 days of receipt
of the application. The application alleges that Climax

discriminated against Bradley when he
was demoted and then terminated from his employment because he engaged in protected
activities by reporting a supervisor who failed to immediately correct or report hazardous
conditions and for counseling a miner who violated one of the mine’s safety rules. Bradley was
demoted from a supervisory position to an hourly miner on February 21, 2012, and he was
terminated from his employment on June 25, 2012. The application states that the Secretary has
determined that the underlying discrimination complaint filed by Bradley was not frivolously
brought. An evidentiary hearing in this temporary reinstatement proceeding was held in Denver,
Colorado, and the parties presented oral argument in lieu of filing briefs. For the reasons set
forth below, I find that the application for temporary reinstatement must be granted.

I. SUMMARY OF THE EVIDENCE

The parties entered into eight stipulations as follows:

1. Respondent is an operator within the meaning of the Federal Mine
   Safety and Health Act of 1977 (the “Mine Act”), 30 U.S.C. § 801 et seq.

2. Climax Molybdenum Company; Henderson Mine; Mine I.D. No. 05-00790, is subject to the jurisdiction of the Mine Act.

3. At all times relevant to this proceeding, Complainant, Nelson Gregory
   Bradley, was a “miner” within the meaning of §§ 3(g) and 105(c) of the Mine Act,
   30 U.S.C.§§ 802(g) and 815(c).

4. The administrative law judge has jurisdiction in this matter to decide
   whether the complaint of discrimination filed by Nelson Gregory Bradley
   pursuant to § 105(c)(2) of the Mine Act was frivolously brought.

5. On February 21, 2012, Nelson Gregory Bradley was demoted from his
   salaried position as a front line supervisor in the development department to an
   hourly miner assigned to the road crew.

6. On May 4, 2012, Nelson Gregory Bradley called the Freeport
   McMoRan Compliance Line.

7. By letter dated June 25, 2012, the Mine indicated Nelson Gregory
   Bradley’s employment was terminated.

8. On or about June 26, 2012, Nelson Gregory Bradley filed a
   discrimination complaint with MSHA pursuant to § 105(c) of the Mine Act,
   MSHA case No. RM-MD-12-11.

Bradley was employed by Climax between 1978 and 1982 and then again in 1995 until
June 2012, with a few gaps in his employment. (Tr. 17). On or about June 25, 2012, Bradley
was terminated from his employment. The stated reason for his termination was his refusal to
take a drug test. On May 4, 2012, Bradley called the Freeport compliance hotline to raise issues
about a demotion he was given in February 2012. As described in more detail below, during the
company’s investigation into whether his demotion was justified, an hourly miner advised a
management employee and a human resources department (“HR”) employee that he had reason
to believe that Bradley and another Climax employee had been smoking marijuana underground
at work. A drug test was ordered for Bradley and the other employee. Both employees refused
to take the drug test. Because this refusal was in violation of Freeport’s “Guiding Principles,”
they were terminated from their employment. (Ex. R-3, p. 26). Climax maintains that it has an
absolute right to terminate an employee who is using drugs or alcohol at work or who refuses to
take a drug test. Because Freeport has a strict drug and alcohol-free policy and all employees
who fail a drug test or who refuse to take a drug test are terminated for violating this policy, it
had the right to terminate Bradley. Climax also maintains that Bradley did not engage in conduct
protected by the Mine Act and that his demotion and termination were not motivated in any part
by his protected activity. It contends that the complaint of discrimination was frivolously
brought in this case.

CHRONOLOGY OF EVENTS

1. November 11, 2011 - In 2011, Bradley was a front line supervisor in the development
department at the Henderson Mine. On November 11, he called Albert Archuleta, a safety
specialist in the Climax safety department, to raise a concern about Joe Hatrick. (Tr. 22). Joe
Hatrick was the superintendent of the development department at the mine. Bradley told
Archuleta that Hatrick was coming underground, visiting the work sites, and observing safety
hazards, but not reporting these hazards to anyone until two to three hours later. Id. Bradley
testified that he was trained to address safety hazards immediately or barricade the affected area
until the hazards could be corrected. Bradley testified that on November 11, Hatrick called a
senior supervisor on the section about two to three hours after he visited the area with
instructions to tell Bradley to “write up certain individuals for violations.” Id. Joe Hatrick’s
actions angered Bradley for several reasons. First, it left alleged safety hazards uncorrected for
several hours. (Tr. 22, 81). Bradley believes that when Joe Hatrick came underground, he
should have immediately pointed out any safety hazards to him so that they could be corrected at
that time. Second, he also believed that Joe Hatrick’s actions undercut his authority as a front
line supervisor. As the miners’ immediate supervisor, Bradley believed that he should determine
how serious any safety infraction is and whether the miner responsible should be formally
disciplined or just coached. Bradley testified that he talked to the safety department because he
believed that Joe Hatrick’s actions perpetuated safety hazards and created an unsafe and hostile
work environment.

2. November 16, 2011 - The following Monday, Joe Hatrick spoke to Bradley and told
him that Rick Sinclair, Bradley’s immediate supervisor, wanted to talk to him. Bradley then
briefly met with Hatrick, Sinclair, and Dave Smith, another senior supervisor.

Bradley testified
that Sinclair asked him who he had been talking to. (Tr. 23). When Bradley told Sinclair that he
had talked to Archuleta, Sinclair asked what it was all about. Bradley testified that after he
responded to Sinclair’s question, Hatrick leaned forward in an agitated manner and told Bradley
that it was “[your] job to manage the stress levels underground, no matter what; and that if [you]
could not manage the stress levels underground, that [you] might ought to seek opportunities
elsewhere.” (Tr. 24). After Hatrick left the area, Sinclair assured Bradley that he had the
authority to manage his crew but that, in effect, he needed to learn how to deal with Hatrick.

3. January 31, 2012 - Will Hatrick, Joe Hatrick’s son, was an hourly miner on Bradley’s
crew. It was reported to Bradley that Will committed a safety infraction. (Tr. 25). There was a
safety rule at the mine that prohibited operators of concrete transports from backing past a safety
cone until that operator had “positive and clear communications from the workers in the area.”
Id. Apparently there had recently been an accident in which a concrete transport backed up to a
shotcrete rig and bumped against a miner. Lenny Juull, an hourly lead man on the crew, told
Bradley that Will Hatrick started backing up while he and another miner were working in the
area without first communicating with them. (Tr. 27). At the end of the shift, Bradley asked
Will Hatrick why he had backed up past a safety cone. (Tr. 29). Bradley testified that Will
immediately became agitated and said that he had been sitting there a long time and he was just
backing up around a corner so he would be in direct line of sight of the workers. Id. Bradley
told Will that backing up beyond a safety cone can put miners in danger unless they know that
you will be doing so.

He told Will Hatrick that he should have set the emergency brake,
chocked the tires, walked over to the miners to see if they needed any help, and then
communicated with miners in the area before he started backing up. (Tr. 29-30).

According to Bradley, Will Hatrick said that he was being treated unfairly and wanted to
know when he could schedule the EMT class he wanted to take. (Tr. 30, 86-87). Bradley
testified that he did not issue any formal discipline to Will Hatrick because he was “a little
nervous about issuing the superintendent’s son more strict discipline.” Id. Bradley testified that
if Will were not Joe’s son, he might have issued a written disciplinary notice. (Tr. 89). Bradley
believed that Will’s actions created a safety hazard. (Tr. 88). Bradley believed that Will was
trying to advance too quickly and he was always asking to receive training on other pieces of
equipment.

Will Hatrick also testified about the events of that day. (Tr. 158-61). He testified that,
because the area had been set up incorrectly with the concrete transport around a corner, he
backed the concrete transport up just enough so he could see the area where he was to dump the
concrete. He said that the back of his transport only passed the safety cone a short distance, but
that Juull started yelling at him. (Tr. 158). Will testified that Bradley agreed with him that the
area had been set up poorly by Juull because it required Will to back around a blind corner when
it was time to dump the concrete. (Tr. 159).

Will testified that when he talked to Bradley at the end of the shift, Bradley did not talk
about the incident underground but started giving Will a hard time because he was getting special
treatment and that he should not be taking EMT training on his days off because it was “bad
morale for the crew.” (Tr. 161). Will testified that every time he sought additional training,
Bradley would respond that “you have to crawl before you can walk.” (Tr. 162-63).

4. Late January 2012 - David Long, another senior supervisor in the development
department who reported to Joe Hatrick, testified that David Smith approached him in late
January 2012 and said that an hourly employee came to him and complained about a “hostile
work environment.” (Tr. 165). After he talked to Tom Green, an investigation into this
allegation was started. They talked to six or seven hourly employees in development, including
Will Hatrick. Long testified that it was clear that many employees on Bradley’s crew were upset
and complained that he was not fair with them. (Tr. 167). Long testified that the miners told him
that Bradley hollered at them to such an extent that they “didn’t want to come to work.” (Tr.
167). Long also testified that the miners told him that Bradley spent a lot of his time operating
equipment. Long testified that supervisors should not be operating equipment because you
cannot be both a supervisor and an equipment operator. (Tr. 168). The miners also complained
that Bradley would not give them time to eat lunch or get a drink of water.

5. February 17, 2012 - While Bradley was in North Dakota attending his father-in-law’s
funeral, he received a phone message on his voice mail from David Smith saying that he had
been reported for harassment and mismanagement, and that he was to report to the mine on
February 21 for a hearing. Bradley suspected that Will Hatrick complained about him and that
this complaint was the reason why he had to attend a hearing on this issue. (Tr. 34).

6. February 21, 2012 - Bradley attended the hearing, which was more in the nature of a
meeting, to discuss the matter. Dave Long, HR specialist Matt Stones, and Dave Smith attended
the meeting. Long started the meeting by listing the allegations against Bradley. It was reported
that he had screamed at an employee for getting a concrete truck stuck in a ditch. (Tr. 35). It was
reported that he told an employee that he had to “crawl before he could walk” and he was making
it difficult for this employee to obtain EMT training. Bradley testified that he attempted to
address each of the allegations. The truck incident involved Will Hatrick. Bradley testified that
Will was driving a concrete truck and he got a flat tire. Rather than calling the shop so that
someone could come and fix it, he continued driving with the tire totally flat, which caused the
accident that damaged the truck. (Tr. 36). Bradley testified that when he found out about the
accident, he asked Will how the accident happened and Will replied that Tim Cork told him to
drive the truck to the shop despite the flat. Bradley testified that he did not yell at Will but
simply told him that sometimes he should make his own decisions when things were not working
out. (Tr. 37). The incident involving the EMT training also concerned Will Hatrick.

At the meeting, there was also a discussion about Bradley spending too much time
operating equipment. (Tr. 83, 167-68). He also admitted that he would sometimes talk to his
crew in an “elevated tone,” but he said that he never screamed at them. (Tr. 84). The meeting
lasted about 15 minutes. Bradley was told to leave the room and when he returned he was
advised that he was being demoted to an hourly position on the road crew. (Tr. 38). His direct
supervisor, Rick Sinclair, was in Canada at the time of the meeting.

Long testified that Bradley was asked a lot of questions at the meeting about the
allegations that the miners had raised. (Tr. 169). Bradley admitted that he operated equipment.
When the EMT course that Will Hatrick wanted to take came up, Long testified that Bradley said
that he told Will that he might not give him vacation time to take the EMT course. After Bradley
left the room, his situation was discussed and several options were considered including
terminating Bradley, giving him a written warning, and giving him additional training. (Tr. 171).
Long testified that he recommended that Bradley be offered an hourly position in a different
department where he could run equipment. (Tr. 171, 173).

7. February 21 through March 22, 2012 - Bradley met with several managers and HR
employees to discuss his demotion to try to get the decision reversed. The managers he
discussed it with included Tom Green, Craig Filkins, and Matt Stones. Bradley believed that the
demotion was not made in good faith and that it related to his complaints about Joe and Will
Hatrick relating to safety issues. (Tr. 46-47).

8. March 23, 2012 - Bradley met with Lee Fronapfel, the Henderson Mine Manager, to
discuss his demotion. He was accompanied by Mike Aguilar, his immediate supervisor at that
time, and Matt Stones. Bradley testified that Fronapfel told Bradley that if he did not stop trying
to get his supervisory position back, he was “going down another road,” which Bradley
interpreted to mean he would be fired. (Tr. 43, 94). Fronapfel indicated that he was demoted
because he had an intimidating management style and he could not handle the stress of being a
front line supervisor. (Tr. 98-99; Ex. R-4). At the reinstatement hearing, Bradley testified that
he could deal with the pressure of meeting production and safety goals and that any stress in the
work environment was a result of Joe Hatrick’s management style. Id. He also stated that he had
never been previously counseled concerning his communication skills or his management style
since he became a front line supervisor in 2005 or 2006. (Tr. 21).

9. May 4, 2012 - Bradley called the Freeport compliance hotline to complain about his
demotion. After Bradley made this call, he talked to Fred Menzer, who he described as the vice-president of Climax Molybdenum North America. (Tr. 45). Menzer said that he had just
received the hot line complaint. His complaint caused Freeport to start an investigation of the
demotion.

10. June 4, 2012 - On or about June 4, 2012, Bradley was placed on investigatory leave
with pay so he would not “influence the interviews.” (Tr. 49).

11. May and June 2012 - In order to avoid the appearance of impropriety, Erich Bower,
the manager of the Henderson Mill, conducted the investigation. As the mill manager, Bower
did not generally interact with the miners or supervisors of the development or road crews at the
Henderson Mine or their supervisors.

Bower interviewed about 20 people during his investigation, both management and
hourly, including Bradley. (Tr. 116, 153). During his interview on June 8, Bradley was asked
about specific incidents. Bradley described the interview as follows:

They asked me about some of the statements being made. They
asked me about some ear plugs being pulled out of Will's ears in
the training process. And there was some line of questions more
about me, about screaming until I was red in the face, and there
were other issues. And about half that interview seemed like they
were investigating me instead of my compliance hot line report.

(Tr. 51). He also described his problems with Joe Hatrick. Bradley provided a written statement
to Bower, as well. (Tr. 96; Ex. R-4).

Erich Bower testified that he understood that the complaint was that Bradley had been
verbally harassed and unjustly demoted. (Tr. 109). Bradley told him that Joe Hatrick and other
senior managers in the development department would come underground on a “witch hunt” and
it was causing the miners to “look over their shoulder and therefore [they were] not able to work
safely.” (Tr. 110). Bradley was also concerned about nepotism in the development department.
He felt that Will was getting special treatment, that he was “untouchable,” and he could not
properly supervise him. (Tr. 111). Bradley also told him that Will was asking to operate a lot of
different pieces of equipment and Bradley felt that he was being moved along too quickly. (Tr.
86, 112).

The last person Bower interviewed was an hourly miner on the development crew who
was not identified at the hearing.

Tom Green was present during this interview. (Tr. 138). At
the end of the interview, Bower asked the miner if he would like to add anything. (Tr. 119). The
miner hesitated and then said that he believed that Bradley and Lenny Juull had been using
marijuana underground at the mine while on duty. Id. Bower testified that this miner told him
that “he had actually seen [Lenny Juull] smoke marijuana and said [he] believes Greg [Bradley]
is involved in it as well.” (Tr. 119). When Bower asked why he thought Bradley was involved,
Bower testified that the miner said that Bradley and “Lenny would go down the drift and there
would be a distinct smell and they would return with markedly changed demeanor, were his
words, a mood shift from aggressive and agitated to mellow and relaxed, is what he said.” (Tr.
119-20). The unidentified miner did not report that he actually saw Bradley smoking marijuana.
(Tr. 128). Bower testified that he pushed this miner because Bradley has worked at the mine a
long time and the company has a random drug testing policy. Bower believed it was a stretch
that they would be smoking marijuana at the mine. In response, Bower testified that the
unidentified miner told him that he “actually saw Lenny Juull carrying a clean urine sample and
that is how they passed the tests.” (Tr. 120).

Bower said that after the unidentified miner mentioned the clean urine sample, Bower
“hit the brakes on everything” and asked HR to schedule a drug test for both Bradley and Juull.
(Tr. 120-21). Bower testified that he had no choice but to order that these employees be given
direct observation drug tests. Id. Green also testified that a direct observation drug test was
absolutely necessary in this instance “because there was a credible safety concern that the
employee had raised.” (Tr. 139-41). Green testified that the fact that Bradley had phoned the
compliance hotline did not have any bearing on his decision to order the drug test. (Tr. 146).
Bower testified that he would have ordered the same type of drug test for any miner if it were
reported that the miner had been using marijuana at the mine. (Tr. 122). Joe Hatrick did not play
any role in requesting a drug test. (Tr. 131). He also testified that Bradley would still be
working at the mine if he had taken the drug test and passed. (Tr. 122). Green’s testimony with
respect to this interview was consistent with Bower’s. (Tr. 153-55).

At the conclusion of the investigation, Bower determined that Bradley’s demotion was
justified. Although he determined that Bradley was a good miner, he did not “fit the mold of a
supervisor and . . . he was not performing those tasks well.” (Tr. 118). Bower’s investigation
concluded that when senior supervisors discovered safety infractions, Bradley would often not
write miners up for the infractions because he believed that these supervisors should have done
so. (Tr. 132). Bower said that this was a red flag for him. He concluded that Bradley’s
complaint about Joe Hatrick was not a safety complaint, it was a “management style complaint
given to the safety department.” (Tr. 133).

12. June 21, 2012 - Bradley received a message at home to call Tom Green. When he
returned the call, he was advised to report to the mine on June 22 at 1:30 p.m.

13. June 22, 2012 - When Bradley arrived at the mine, he was told by Tom Green that it
had been reported that he was a drug user. (Tr. 53). The tests were to be performed at the mine
offices by an independent alcohol and drug testing company. The test was to be performed using
a guideline established by the Substance Abuse and Mental Health Services Administration of
the Department of Health and Human Services. (Tr. 136-37; Ex. R-3, p. 24). Climax first
inspected his locker. (Tr. 141). No prohibited substances were found in his locker. There were,
however, about eleven alligator clips in Bradley’s locker. (Tr. 65). Bradley testified that these
clips were used when performing electrical work, but he admitted that he did not perform any
electrical work at the mine. He also admitted that alligator clips can be used when smoking
marijuana. He was asked to take a breathalyser test and he did not object. The results were
negative. Green told Bradley that he was going to be given a standard DOT drug test (Direct
Observations Test) in the men’s room. Green asked him to lift up his shirt and to drop his pants
to his knees. (Tr. 54). He was also advised that Green would observe him when he provided a
urine sample. Green offered him water to drink. (Tr. 67). Bradley testified that he was stunned
by this and had never heard of that kind of test being conducted at the mine. (Tr. 55). He did not
take the drug test and said that he “needed representation.” (Tr. 57 )

Bradley testified that he did not take the drug test because he did not trust management’s
motive for conducting the test, he felt uncomfortable performing the test, he viewed the test as
management’s way of trying to getting rid of him, and he had a tape recorder taped to his
stomach. (Tr. 56). He told Green that the test was unfounded and the report must have come
from the investigation of his complaint to the compliance hot line. After telling Green that he
needed representation, Bradley walked out of the mine office to get in his truck. At Bradley’s
truck Green asked him if he knew what this means and Bradley handed Green his security gate
card/identification badge and left the property. (Tr. 57, 68-69, 143-44).

14. June 26-27, 2012 - Bradley received a letter of termination from Climax dated June
25, 2012. (Tr. 58; Ex. R-7). He filed his complaint of discrimination with MSHA on June 26,
2012. (Tr. 77; Ex. G-1). Bradley testified that on June 26, 2012, he went to an independent lab
and obtained a drug test and the results were negative.  

II. BRIEF SUMMARY OF THE PARTIES’ ARGUMENTS

A. Secretary of Labor and Nelson Gregory Bradley

Temporary reinstatement hearings before this Commission impose a low burden of proof
and the Secretary must only show that “things could possibly have happened in the way that the
claimant claims.” (Tr. 177). Conflicts of testimony are not to be resolved in a temporary
reinstatement hearing. (Tr. 180).

Bradley participated in protected activity under the Mine Act on November 11, 2011
when he complained to the safety department that Joe Hatrick would wait several hours to
address safety violations. (Tr. 178). Protected activity, under the Act, is “very broadly defined
. . . on purpose” to protect miners. (Tr. 194). Moreover, Bradley’s coaching of Will Hatrick to
enforce a rule that had already injured another miner was an attempt to enforce the safety rules of
the Mine Act. Id.

On November 16, Joe Hatrick, Rick Sinclair and Dave Smith held a “coaching session”

with Bradley where they told him that he should bring his complaints to someone within the
developmental department and not to the safety department. (Tr. 178). These managers
informed Bradley that if he disagreed with airing grievances within the department, he could
“look for other employment, or might seek hourly employment.” Id. In addition to showing
animus on the part of Climax Mine management toward safety complaints, the proximity in time
between Bradley’s complaint and the “coaching session” exhibits a nexus in time. Id.

On January 31, 2012, Bradley coached Will Hatrick after Will broke a safety rule by
backing behind a cone. (Tr. 179). On February 17, Bradley was supposedly demoted for
mismanagement or for having an aggressive and harassing management style, despite the fact
that he had always received exemplary evaluations. Id. Once again, these events show a nexus
in time between Bradley’s actions concerning safety and management acting retributively against
Bradley.

Any delay Bradley took in filing his discrimination complaint with MSHA was justified.
Throughout the month subsequent to February 17, Bradley continued to complain about his
demotion and the “retaliatory action that he believes he was subjected to.” (Tr. 179). On March
23, two members of Climax management threatened Bradley that he would be fired if he did not
cease his complaints. Id. Climax knew that Bradley continued to question the legitimacy of his
demotion and management was not happy that Bradley did so; they also “threatened additional
adverse action if he continued” to do so. Id. Any delay in filing on Bradley’s part stemmed from
the threatening actions of Climax management.

On May 4, Bradley called the Freeport compliance hotline. On June 4 he was placed on
investigatory leave. Eighteen days later he was asked to take a drug test and was terminated
when he refused. (Tr. 180).

Although refusing a drug test is usually legitimate grounds for termination, in this
situation the drug test was the final act by a management that had escalated its adverse actions
against Bradley in hopes that he would quit since they could not legally terminate his
employment. (Tr. 181). The cases cited by Respondent where miners were rightfully terminated
for refusing a drug test are not applicable in this situation. (Tr. 195). In both the Maynes

and
Perry

cases, the miners in question were endangering themselves and other miners with their
drug use by being intoxicated while working. Id. Even if Bradley were taking drugs at the time
of the test, he could not possibly have endangered anyone because he was on investigatory leave.
(Tr. 196). This test was not done to protect miner safety, but rather was a form of retaliation for
Bradley’s safety complaints. Id.

The drug test represented another escalated step in a saga of threats and actions toward
Bradley on the part of management. Climax management’s goal with these efforts was to make
Bradley’s work environment intolerable enough for him to quit his job and abandon his safety
complaints. (Tr. 197). The question of constructive discharge, whether a reasonable person
would feel compelled to resign under the circumstances, is a question for the trier of fact and is
therefore not appropriate to decide in this temporary reinstatement case. Id. That determination,
however, does involve the cumulative effect that conditions have on a reasonable employee
according to the Commission. Id. In Ramsey,

the Commission held that a finding of
constructive discharge can be based upon “aggravating factors such as a continuous pattern of
discriminatory treatment.”

Climax has clear animosity toward safety complaints and a nexus in time exists between
Bradley’s complaints and his refusal to take a retaliatory drug test. (Tr. 197). Bradley should
immediately be reinstated as a front-line supervisor. (Tr. 198). If necessary, the Secretary is
amenable to economic reinstatement. (Tr.181).

B. Climax Molybdenum Company

The Secretary did not meet her burden of showing that a causal nexus existed between
protected activity cited by Bradley and his subsequent termination by Climax. When legitimate
reasons to discharge an employee exist at the same time as protected activity, an inference that a
termination occurred due to the protected activity “should not necessarily be drawn.” (Tr. 183).
While pursuing an investigation begun at Bradley’s request, Bower and Green testified that they
ordered a drug test to be performed on Bradley because an unidentified hourly miner indicated
that Bradley and Lenny Juull had been using drugs underground and carrying clean urine to pass
drug tests. Id. For the sake of safety, Climax management had no other choice before them
except to order the test. (Tr. 184). A direct observation test was necessary due to the hourly
miner’s allegation that he had seen Juull carrying clean urine. (Tr. 183-184). A miner violates
the drug policy by having drugs in his system at any time, regardless of how long ago those drugs
were taken. (Tr. 185). The allegations made by an hourly miner, not management hostility
toward safety complaints, necessitated Climax to perform a drug test on Bradley and Juull. (Tr.
187).

Once Bradley refused the direct observation test permitted by the drug and alcohol policy,
the company’s Guiding Principles required that Bradley be terminated. (Tr. 185). Bradley was
aware that the drug policy was a condition of his employment and he had signed the drug policy.
(Tr. 185-186). If the test had been negative, Bradley would have returned to work. (Tr. 185).
The company followed its drug policy which, including the administration of a direct observation
drug test, is in accordance with federal guidelines. (Tr. 186). Bradley was aware that refusing a
drug test would result in termination and he and Juull were both terminated. (Tr. 187). Bradley
chose not to take the test, which resulted in his termination; there was no nexus between
Bradley’s complaints and his termination.

Furthermore, Bradley did not engage in protected activity because his grievances were not
safety complaints, but rather personnel complaints. Bradley’s complaints that Joe Hatrick
searched for safety problems in the mine is a complaint about management style and actually
stems from the fact that Joe Hatrick was tougher on enforcing safety issues than Bradley was.
(Tr. 189). Complaining about a demotion is also clearly a personnel issue. Id. As for Bradley’s
coaching of Will Hatrick, the incident is not documented and amounts to a supervisor performing
a normal task and is not protected activity. (Tr. 189-190). Bradley did not participate in
protected activity under the Mine Act.

Dave Long testified that Joe Hatrick was not involved in Bradley’s demotion and that
Bradley’s complaint about Joe Hatrick in November had nothing to do with his demotion. (Tr.
190). Dave Long did not even know of the complaint. (Tr. 191). The complaint and subsequent
demotion, furthermore, have no nexus in time; as one judge has stated in Oasis Contracting,

“two and a half months is too far removed” to provide a nexus. (Tr. 190). A demotion,
moreover, does not allow for the remedy of temporary reinstatement. (Tr. 191).

Lastly, the demotion is time-barred under the 60-day time limit. (Tr. 191). Bradley was
not intimidated by management to drop his complaints, but rather chose other remedies besides
filing a complaint with MSHA. Id. He filed a hotline complaint and approached the company’s
VP of operations. (Tr. 192). When Bradley was finally terminated, it was not a culmination of a
chain of events linked to his demotion, but simply the result of his own choice to refuse a drug
test. Id. The first priority of the Mine Act is the health and safety of miners. Allowing a miner
who refused or failed a drug test to return to work is repugnant to the Mine Act.

III. DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

Section 105(c)(2) of the Mine Act prohibits discrimination against miners for exercising
any protected right under the Mine Act. The purpose of the protection is to encourage miners “to
play an active part in the enforcement of the [Mine] Act” recognizing that, “if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation.” S. Rep. No.
181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 623 (1978) (“Legis. Hist.”).

Section 105(c)(2) provides, in pertinent part, that the Secretary shall investigate each
complaint of discrimination “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.” The Commission
established a procedure for making this determination at 29 C.F.R. § 2700.45, which provides in
subsection (d) that the “scope of a hearing on an application for temporary reinstatement is
limited to a determination as to whether the miner’s complaint was frivolously brought.”

“The scope of a temporary reinstatement proceeding is narrow, being limited to a
determination by the judge as to whether a miner’s discrimination complaint is frivolously
brought.” Secretary of Labor on behalf of Price v. Jim Walter Resources, Inc., 9 FMSHRC
1305, 1306 (Aug. 1987), aff’d sub nom. Jim Walter Resources Inc. v. FMSHRC, 920 F.2d 738
(11th Cir. 1990). Courts and the Commission have equated the “not frivolously brought”
standard contained in section 105(c)(2) of the Mine Act with the “reasonable cause to believe
standard” at issue in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987). It has also been
equated with “not insubstantial.” Jim Walter Resources, 920 F.2d at 747. Congress indicated
that a complaint is not frivolously brought if it “appears to have merit.” (Legis. Hist. at 624-25).
The Commission has held that the judge should not undertake to resolve disputes of fact or
credibility that arise in a temporary reinstatement hearing. Sec’y of Labor on behalf of Albu v.
Chicopee Coal Co., 21 FMSHRC 717,719 (July 1999); Sec’y of Labor on behalf of Stahl v. A &
K Earth Movers, Inc., 22 FMSHRC 323, 325-26 (2000).

Although an applicant for temporary reinstatement need not prove a prima facie case of
discrimination, I must consider the elements of a discrimination claim. In order to establish
prima facie case in a discrimination proceeding, 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). The Commission has frequently acknowledged that it is often difficult to
establish a “motivational nexus between protected activity and the adverse action that is the
subject of the complaint.” Sec’y of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC
953, 957 (Sept. 1999).

I find that Bradley’s contention that he engaged in protected activity was not frivolously
brought. When Bradley talked to safety specialist Archuleta on November 11, 2011, about the
failure of Joe Hatrick to take steps to immediately correct the safety problems he found, Bradley
was engaging in an activity protected under section 105(c) of the Mine Act. He was concerned
that Hatrick was leaving uncorrected, for a period of at least an hour, conditions that affect the
safety of miners on his shift. Climax disputes Bradley’s motivation for “reporting” Hatrick. That
Bradley had other concerns about Hatrick’s method of managing the development section does
not negate the fact that he also raised safety concerns. He also engaged in protected activity
when he spoke to Will Hatrick about his failure to adhere to the policy about backing up the
concrete truck beyond the safety cones. Will Hatrick, however, disputed Bradley’s description of
what happened on January 31. The Commission has held that it is “not the judge’s duty, nor is it
the Commission’s, to resolve the conflict in testimony at the preliminary stage of the
proceedings.” Sec’y of Labor on behalf of Williamson v. CAM Mining, LLC, 31 FMSHRC 1085,
1088 (Oct. 2009) (citation omitted). For purposes of this temporary reinstatement case, I will
accept Bradley’s description of the events that occurred in November 2011 and on January 31,
2012.

There is no question that Bradley suffered two adverse actions. He was demoted on
February 21 and he was terminated on June 25. In a temporary reinstatement case, the Secretary
is not required to establish a causal nexus between the protected activity and the adverse action.
She needs only to establish that there is a non-frivolous issue as to the causal nexus. To put it
another way, she must simply demonstrate that evidence was presented to show that the adverse
actions could have been motivated at least in part by the protected activity.

Climax argues that Bradley’s complaint about his demotion is time-barred because more
than 60 days passed before he filed his discrimination complaint with MSHA. I disagree. The
60-day time limit is not jurisdictional and I hold that justifiable circumstances may excuse a
miner’s delay in filing a discrimination complaint. “[A] miner’s reasonable fear of retaliation
may be considered in determining whether there are justifiable circumstances for the late filing of
a discrimination complaint.” Holden v. Ross Island Sand & Gravel Co., 27 FMSHRC 400, 405
(April 2005) (ALJ). I find that the evidence establishes that Bradley believed he was being
threatened with retaliation for raising safety concerns with mine management. The record also
shows that his fear of retaliation was not entirely frivolous. Although he continued to try to get
his demotion reversed, filing a complaint with MSHA would have raised the entire issue to a
much higher level. There has been no showing that Climax has been prejudiced by the delay.
Moreover, he filed his complaint of discrimination within a few days after he was fired.

I find that, although the Applicant did not establish that Bradley’s demotion was a direct
result of his protected activity, his protected activity could have been one of the motivating
factors that led to his demotion, for purposes of this temporary reinstatement proceeding. Climax
management had knowledge of his protected activities. Indeed, one of his protected activities
was directed to his immediate supervisor. There was hostility displayed by management when he
complained to the safety department about what he considered to be Joe Hatrick’s unsafe actions.
There was also some coincidence in time between his protected activities and his demotion. His
first protected activity occurred on November 11 and his other protected activity occurred on
January 31 the following year. Bradley was on leave in North Dakota for two weeks between
January 31 and the date of his demotion on February 21. Bradley testified that he believes that
his demotion was “direct revenge for the January 31 infraction and everything that happened
before that.” (Tr. 47). He felt that the safety concerns he raised were interrelated, in part,
because they involved a supervisor and his supervisor’s son. Joe Hatrick did not testify at the
hearing. I find that a non-frivolous link was established between Bradley’s safety activities and
his demotion. More would be required to establish this nexus in a discrimination case.

The fundamental issue in this case is whether there is reasonable cause to believe that
Bradley was terminated for his protected activities or, to put it another way, does the complaint
concerning the termination appear to have merit. I hold that if a mine operator orders an
employee to undergo a drug test in retaliation for making a safety complaint, such an action
would be a form of harassment that must be taken into consideration when evaluating the merits
of a discrimination complaint. On the other hand, if an operator has a reasonable, good faith
belief that an employee is using drugs, ordering him to take a drug test would generally not be
considered harassment even if the employee had engaged in protected activities.

The circumstances under which Bradley was ordered to take a drug test are not entirely
clear. Bower testified that an unidentified miner said that he observed Juull smoke marijuana.
As detailed above, the unidentified miner did not tell Bower that he observed Bradley smoking
marijuana; he only saw him leave the work area and come back in a more mellow mood. Bower
also testified that the miner told him that there was a “distinct smell.” (Tr. 119). Bower testified
that this unidentified miner saw Juull carrying a clean urine sample but he did not observe
Bradley doing so. The evidence presented at the hearing as to Bradley’s use of marijuana is
circumstantial and it is based entirely on Bower’s hearsay testimony. The unidentified miner
may have been confused as to what he observed or he could have been less than totally honest
during the interview.

As stated above, the Applicant must demonstrate that his complaint “appears to have
merit.” It appears that Climax has a reasonable basis to order Bradley to take a drug test because
a miner on his crew alleged that he may have been were using drugs while at work. The
evidence presented by Applicant shows, however, that Climax may have had other motives for
giving him a direct observation drug test. The unidentified miner did not tell Bower or Green
that he observed Bradley with a clean urine sample, yet a direct observation test was ordered for
Bradley. Bradley was on investigative leave on June 22, the date of the drug test, and he had
been on such leave since June 4. Thus, Bradley was not working at the mine operating
equipment and he had no reason to believe that he would be given a drug test when he was told
to come to the mine on June 22. Consequently, Climax could not have had any reasonable
expectation that Bradley would be carrying a clean urine sample when he arrived at the mine on
the afternoon of June 22.

Even though he was not working at the time, Bradley was an employee of Climax when
he was ordered to take the drug test. Climax witnesses testified that anyone who tests positive
for drugs or alcohol or who refuses to take a drug or alcohol test is automatically terminated from
his employment. Freeport’s Guiding Principles, however, simply state that possession or use of
drugs on company premises will subject an employee to “disciplinary action up to and including
discharge.” (Ex. R-3, p. 24). It also provides, however, that any employee who refuses to submit
to or cooperate fully with the administration of a drug test will be discharged. Id. at 26. It is
clear that Bradley was aware of these policies. At the hearing, Bradley admitted that he was
terminated for not taking the drug test: 

Q Mr. Bradley, do you agree that you were discharged because
you refused to take the drug test?

A Yes.

(Tr. 70).

Whether the complaint was frivolously brought with respect to the termination is the
pivotal issue in this case. As stated above, courts and the Commission have equated the “not
frivolously brought” standard with the “reasonable cause to believe” standard set forth in Brock
v. Roadway Express, Inc., 481 U.S. 252 (1987). Based on the evidence presented at the hearing,
I hold that non-frivolous issues exist regarding the reasons why a direct observation drug test was
ordered. Bradley testified that he did not take the drug test because, in part, he did not trust
management’s motive for the test, he felt uncomfortable performing the test in the manner
mandated by Climax, and he viewed the test as a continuation of the acts of harassment that were
being directed at him for his protected activities including his efforts to reverse his demotion.

The Commission recently held that a judge may not weigh “the operator’s rebuttal or
affirmative defense evidence against the Secretary’s evidence of a prima facie case.” CAM
Mining, 31 FMSHRC at 1091. The Commission stated that if a judge does so, he errs “by
assigning a greater burden of proof than is required.”

Id.

The issue here is very close, but it is also very narrow. Based on the record evidence, I
am unable to hold that Bradley’s claim with respect to his termination is entirely frivolous or
without any merit. I recognize that Bradley refused to take a drug test and he acknowledged that
he was terminated for that refusal. Nevertheless, Applicant presented evidence that Climax had
knowledge of the protected activities and exhibited some degree of hostility toward the protected
activities. Although there was no close coincidence in time between Bradley’s protected
activities and his termination, he was continuing to press the issue of his demotion with
management. Applicant presented evidence that his demotion bore some relationship to his
protected activities. He was terminated during the investigation into his compliance hotline
complaint. I find that there is some circumstantial evidence that one of the reasons Bradley may
have been ordered to take the direct observation drug test was to harass him for his protected
activities and his efforts to reverse the demotion that resulted, in part, from those activities. I
recognize that this evidence is rather tenuous at this point and such evidence would be
insufficient to establish such motivation in a discrimination case.

In Sec’y of Labor on behalf of Price and Vacha v. Jim Walter Resources, Inc., the
Commission, by a three-to-two vote, upheld the temporary reinstatement of two miners who
would not take a drug test. 9 FMSHRC 1305 (Aug. 1987). In upholding the temporary
reinstatement, the Commission reasoned:

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.

Id. at 1306. The present case has some similarities with that case.

I reach this result with a great deal of trepidation because a mine operator has a legitimate
safety reason to employ only those miners who are alcohol and drug free. The only way a mine
operator can attain this goal is to have a drug and alcohol testing program in place and to
consistently enforce the program. Under the facts of this case, however, Bradley was not
working at the mine and was, therefore, not in a position to endanger his fellow miners. In
addition, the unidentified miner’s report of drug use related back to a time before Bradley was
demoted in February.

Although Climax’s evidence shows that it may be able to present a convincing defense to
Bradley’s complaint in the underlying discrimination case, the purpose of a temporary
reinstatement proceeding is to determine whether the evidence presented establishes that the
discrimination complaint is not frivolous. It was not demonstrated "that things could not have
happened the way the [applicant] alleges that they did. . . ." Sec'y of Labor on behalf of Stahl v.
A & K Earth Movers Inc., 22 FMSHRC 233, 237 (Feb. 2000); aff'd 22 FMSHRC 323 (March
2000).

IV. ORDER

For the reasons set forth above, Climax Molybdenum Company is hereby ORDERED to
immediately reinstate Nelson Gregory Bradley to the position he held immediately prior to the
time he was demoted on February 22, 2012, at the same rate of pay and benefits for that position,
or to a similar position at the same rate of pay and benefits.

Economic reinstatement would also
comply with the terms of this order.

I retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R §
2700.45(e)(4). The Secretary SHALL COMPLETE her investigation of the underlying
discrimination complaint as quickly as possible, if she has not already done so. On or before
November 9, 2012, counsel for the Secretary shall advise me and counsel for Climax, in writing,
whether the Secretary has determined that Climax violated section 105(c) of the Mine Act.

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Francesca Cheroutes, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5708 ([email protected] and Certified Mail)

Kristin R.B. White, Esq., and Michelle C. Witter, Esq., Jackson Kelly PLLC, 1099 18th Street,
Suite 2150, Denver, CO 80202-1958 ([email protected], [email protected],
and Certified Mail)

RWM