Secretary of Labor obo Jeffrey Pappas v. CalPortland Company

Plain-English summary

Jeffrey Pappas had worked at the Oro Grande cement plant for 16 years and previously settled a discrimination complaint that returned him to work. When CalPortland bought the plant, it retained most of the existing workforce but did not offer Pappas a position after consulting the predecessor's human-resources manager, who knew about his protected activity and harassment complaints. The Commission majority held that Pappas had a nonfrivolous claim that the retention decision was made while he was still a miner and that CalPortland knew of his protected history through the shared manager. Evidence of knowledge, timing, animus, and disparate treatment supported temporary reinstatement without deciding the discrimination merits. Commissioner William I. Althen dissented because Pappas had never worked for CalPortland and, in his view, was an applicant who could not be reinstated to a job he had never held. The Commission affirmed temporary reinstatement and denied a stay.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 802(g), 815(c)(2)
• Outcome: The temporary-reinstatement order was affirmed, and CalPortland's motion for a stay was denied.
• Key point: During a substantially continuous mine acquisition, a worker excluded through a joint retention process may remain a miner eligible for temporary reinstatement against the successor operator.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY
OF LABOR,                             :                                     

MINE
SAFETY AND HEALTH                    :                                                         

ADMINISTRATION
(MSHA)                       :       

on
behalf of JEFFREY PAPPAS                     :

:

v.
                                               :        Docket No. WEST
2016-156-DM

:                         

CALPORTLAND
COMPANY                        :

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

DECISION

BY:
Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners

This temporary reinstatement proceeding
arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (2012) (“Mine Act”). On January 12, 2016, a Commission Administrative Law
Judge issued a decision granting an Application for Temporary Reinstatement filed
by the Secretary of Labor on behalf of Jeffrey Pappas against CalPortland
Company pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2).[1]
38 FMSHRC _____, slip op. at 13, No. WEST 2016-156-DM (Jan. 12, 2016). The operator
subsequently filed a timely petition for review of the Judge’s grant of temporary
reinstatement. For the reasons that follow, we affirm the Judge’s decision, pursuant to Rule
45(f) of the Commission's procedural rules, 29 C.F.R. 2700.45(f).

I.

Factual and
Procedural Background

A.    Factual
Background[2]

Martin Marietta
owned the Oro Grande cement plant in San Bernardino County, California through
a subsidiary named Riverside Cement. Tr. 82–83. On October 1, 2015, Martin
Marietta completed the sale of nearly all the assets of Riverside Cement,
including the Oro Grande Quarry and cement plant, to CalPortland. Slip op. at
3; Tr. 83–84.

Jeffrey Pappas
worked at the Oro Grande cement plant for 16 years. Tr. 24–25. In his time
there, Pappas worked in nearly every hourly-wage position at the plant,
excluding managerial positions. Tr. 25–26. In early 2014, Pappas grew concerned
about a dangerous situation caused by a supervisor’s potentially unsafe
directions. Tr. 26. Pappas brought his concerns to mine management’s attention,
but management dismissed his concerns without fully addressing them. Tr. 26.
Pappas later pointed out the problems to an inspector with the Department of
Labor’s Mine Safety and Health Administration (“MSHA”) who investigated and, in
turn, issued citations to the mine for safety violations and caused changes in
Oro Grande’s safety policy. Tr. 26–27. Pappas’s relationship with his managers
and colleagues deteriorated sharply after MSHA issued the citations, and Martin
Marietta eventually fired Pappas. Tr. 27.

On April 21,
2014, Pappas filed a section 105(c) discrimination complaint with MSHA against
Martin Marietta. Slip op. at 4; Tr. 27. Following depositions in that
discrimination case during December 2014, Martin Marietta and Pappas reached a Commission-approved
settlement permanently reinstating Pappas at the Oro Grande mine; Pappas
returned to work as a laborer at the cement plant in January 2015. Slip op. at
4; Tr. 27, 34–35. Upon Pappas’s return to work, however, Pappas’s direct
supervisor and his coworkers harassed Pappas about his discrimination case and
prior safety complaints. Tr. 29, 33–34. Pappas asked the mine’s upper
management, including human resources manager Jamie Ambrose (née Rowe), to
intervene and stop the harassing behavior. Tr. 28, 29, 34. Ambrose and the
other mine officials did not address Pappas’s repeated complaints about the
harassment. Tr. 30.

In August 2015,
officials from CalPortland began visiting the Oro Grande Quarry to determine
whether CalPortland should purchase the cement plant and three related assets
from Martin Marietta. Slip op. at 4; Tr. 30. In a limited asset sale agreement,
CalPortland agreed to purchase the Oro Grande Quarry, including the cement
plant and other facilities. Slip op. at 4; Tr. 83–84. The asset sale agreement
did not include the labor force at these facilities because CalPortland did not
want to be bound by the collective bargaining agreement Martin Marietta and the
United Steelworkers Union had negotiated at the facilities. Slip op. at 4; Tr.
110–11. CalPortland and Martin Marietta agreed to fire all of the workers at
four locations at 12:00 midnight on September 30, 2015. Tr. 111–12. Immediately
thereafter, on October 1, CalPortland would rehire the employees it wanted at
the cement plant. Slip op. at 4; Tr. 86–87, 112–13, 135–36, 146.

Because
CalPortland wanted to take control of the Oro Grande cement operation without
shutting down the plant’s kiln, the company began the process of staffing the
plant early. Tr. 135–137. In mid-August, CalPortland’s vice president for human
resources, Steve Antonoff, contacted Martin Marietta’s human resources manager Ambrose,
for advice on hiring decisions at the facilities. Tr. 105, 146–47. In a
statement to MSHA Investigator Jackson, Antonoff recalled comments that Ambrose
had made to Antonoff about which workers she would not hire. Tr. 149–50. In
late August, Antonoff offered Ambrose the human resources manager position at
the Oro Grande mine following CalPortland’s takeover. Tr. 147. She accepted
that offer.

In September
2015, CalPortland informed all of the miners at the Martin Marietta facilities
that they would need to reapply for positions at the facilities. Tr. 36–37. Nearly
all of the miners applied to work for CalPortland, including approximately 120
of the roughly 125 miners working at the Oro Grande cement plant. Slip op. at
5; Tr. 45, 112-13; 127. According to Antonoff, CalPortland arranged interviews
for all of the miners applying to work for them. Tr. 112–13. Each miner’s
interview was brief, with some lasting less than five minutes. Slip op. at 5; Tr.

38. CalPortland’s interviewers had a list of six questions for each miner
    regarding the miner’s honesty and workplace relationships but not examining the
    miner’s prior work performance. Tr. 38–40, 53–54. CalPortland did not receive
    Martin Marietta’s personnel files from the four facilities. Tr. 118, 156.

On September 26,
2015, CalPortland extended employment offers for the Oro Grande cement plant to
approximately 115 miners. Tr. 113. Two days later on September 28, 2015,
CalPortland informed the remaining miners that they would not be brought back
to the mine. Tr. 41–42. Pappas was among ten hourly workers who were told that
day they did not receive an offer of employment from CalPortland and were thus
terminated. Tr. 41–42, 63–64. Martin Marietta told those miners to leave the plant
immediately and not return for their shifts the following two days. Tr. 41. The
miners were still paid through September 30, despite not coming to work. Tr.
41-42. As part of the asset purchase agreement, Martin Marietta and CalPortland
arranged severance packages for Oro Grande miners whom CalPortland did not
hire. Tr. 89-90.

Because
CalPortland hired so many of Martin Marietta’s miners, the company did not
advertise the Oro Grande positions to the general public. Tr. 146. CalPortland
renamed a few positions at the mine and changed or combined job
responsibilities for some hourly positions. Tr. 141–42. Most of the job
positions remained unaltered. Slip op. at 6; Tr. 143–45. The plant now mostly
produces the same cement product using the same equipment and the same processes
as Martin Marietta. Tr. 144–45, 171–72. CalPortland continues to sell its
cement to many of Martin Marietta’s former customers with some changes in the
customer base. Slip op. at 6; Tr. 168.

B.     The Judge’s
Decision

Citing Commission caselaw, the Judge
recognized that temporary reinstatement is limited to “miners” and that
“applicants for employment” are not eligible for temporary reinstatement. Slip
op. at 6. The Judge then found, as a threshold matter, that Pappas was a
“miner” for purposes of the temporary reinstatement provision in section
105(c)(2) of the Mine Act. In this regard, the Judge focused on whether Pappas,
when he applied for a job with CalPortland in September 2015 and was denied an
offer of employment, was a “miner” or instead an “applicant for employment.”

The Judge concluded that Pappas was a
“miner” when he applied for a job with CalPortland, finding that:

Pappas was no stranger off the street
applying for a position at the Oro Grande cement plant but had an extensive
employment history at the mine. Pappas’s discrimination complaint relates back
to decisions made while he was still employed at the mine . . . . CalPortland’s
structured termination and application process for the Oro Grande workforce
does not materially alter Pappas’s status as a miner eligible for temporary
reinstatement under section 105(c)(2) of the Mine Act.

Id. at 8 (footnotes omitted).

The
Judge also concluded that CalPortland could be liable for Martin Marietta’s
discriminatory actions as a successor-in-interest. Id. Finally, he ruled
that the Secretary had submitted sufficient evidence to establish that Pappas’s
discrimination claim against CalPortland was not frivolously brought.[3]
Id. at 13.

II.

Disposition

A.    Whether Pappas
was a “miner” or an “applicant for employment?”

The Commission has held that temporary
reinstatement under section 105(c)(2) is limited to “miners,” as defined in
section 3(g) of the Mine Act, 30 U.S.C. § 802(g).[4]
Sec’y of Labor on behalf of Young v. Lone Mountain Processing, Inc., 20
FMSHRC 927, 930 (Sep. 1998). Accordingly, “applicants for employment” are not
eligible for temporary reinstatement under section 105(c)(2). Id.; Sec’y
of Labor on behalf of Piper v. KenAmerican Res. Inc., 35 FMSHRC 1969, 1972
(July 2013). The Commission has considered the question of whether a
complainant is a miner or an applicant as a threshold issue in temporary
reinstatement proceedings. See Lone Mountain, 20 FMSHRC at 932
n.5.

The Judge found that,
during August 2015, Pappas was a “miner” employed by Martin Marietta. Slip op.
at 7, 8. Moreover, the Judge found that CalPortland’s vice president for human
resources, Steve Antonoff, contacted Martin Marietta’s human resources manager,
Jamie Ambrose, for advice on hiring decisions at the mine. Slip op. at 5, Tr.
146–47. In a statement to Investigator Jackson, Antonoff recalled that Ambrose had
made comments about which workers she would not hire. Tr. 149–50; slip op. at

5. Subsequently, CalPortland made the decision not to retain Pappas as an
   employee.

Under the Mine Act, “no person shall discharge
or in any manner discriminate against” any miner because that miner engaged in
protected activity.[5]
Based upon the specific facts in this case, we conclude that there is a
nonfrivolous claim that Pappas was a “miner” for purposes of the temporary
reinstatement provisions of section 105(c)(2) during the time that he was
allegedly being discriminated against. The record indicates that CalPortland
began making its miner retention decisions in August 2015 as part of a process
that lasted until September 26, 2015, when it announced which miners at the Oro
Grande plant would be retained. Slip op. at 5; Tr. 70, 113, 147. Unquestionably,
during this period Pappas was a “miner.”

The hearing testimony establishes that
CalPortland’s decisions were based, at least in part, on the advice of Ambrose,
Martin Marietta’s human resources manager at that time, whose recommendations
were initially made in August 2015. Tr. 70, 147. CalPortland contacted Ambrose
to discuss which miners to retain at the Oro Grande plant a month before the
hourly workers even applied for their positions. Tr. 36-37, 146-47. Ambrose’s
participation in this process was significant because she was aware of Pappas’
previous protected activities and his reinstatement in January 2015, following
settlement of his previous discrimination claim under the Mine Act. Tr. 27-28. Ambrose
was also aware that since his reinstatement, Pappas had alleged a pattern of
harassment by his supervisor and co-workers, and that Pappas had filed
grievances against three management officials, including Ambrose herself,
alleging that they failed to act after he reported the harassment. Tr. 29-31,
34; slip op. at 4.

Ambrose not only provided miner
retention recommendations to CalPortland, but she also accepted CalPortland’s
offer for her to become the human resources manager for CalPortland at the mine.
CalPortland extended the offer to Ambrose towards the end of August. Tr. 147. Therefore,
Ambrose presumably continued to be involved in preparing the September 26 final
list of miners who would not be retained by CalPortland. Under these
circumstances, Ambrose’s knowledge of Pappas’ previous protected activities and
his reinstatement must be imputed to CalPortland. See, e.g., Turner v Nat’l
Cement Co. of CA, 33 FMSHRC 1059, 1067-68 (May 2011); slip op. at 12. Indeed,
the Judge expressly found that “CalPortland, through Ambrose, had full
knowledge of Pappas’s prior discrimination complaint and reinstatement.” Slip
op. at 8.

The record reflects additional evidence
that the decision-making process relating to CalPortland’s rehiring of the
miners was done in conjunction with Martin Marietta and occurred while Pappas
was still a miner. For example, on September 28, prior to the transfer of mine
assets, Martin Marietta instructed miners who CalPortland did not rehire to in
effect “clean out their lockers,” requiring them to leave the mine immediately
and not return for their shifts the following two days (although Martin
Marietta continued to pay them). Tr. 41-42. Thus, Martin Marietta
differentiated between the miners who would be retained by CalPortland and those
who would not. Hence, Pappas experienced the effect of CalPortland’s decision
not to hire him while he was still a miner working for Martin Marietta.

In addition, although CalPortland
contends that “[t]here was no transfer of the labor force,” PTR at 3, it
arranged with Martin Marietta, pursuant to the asset purchase agreement, to
provide severance packages for miners whom CalPortland did not hire. Tr. 89-90.
The miners who continued to work at the mine for CalPortland did not receive
severance pay. This calls into question the assertion that they were actually
terminated by Martin Marietta, while it is clear that those who received
severance packages (including Pappas) certainly were.

We reject our dissenting colleague’s
central point that Pappas was an applicant because he had no legal relationship
(and thus no legal rights) vis-a-vis CalPortland. Longstanding principles of
labor law rebut this contention.

In NLRB v. Burns International Security Services, Inc.,
406 U.S. 272 (1972), relied upon by our dissenting colleague, the
Supreme Court upheld the right of union employees to be able to bargain with a
successor company. Id. at 279. In subsequent cases since Burns was
decided, the
National Labor Relations Board has also routinely upheld the principle that a
successor employer inherits the collective bargaining obligation of its
predecessor if a majority of the successor’s employees in an appropriate
bargaining unit were employed by the predecessor, and if there exists ‘“substantial
continuity between the enterprises.”’ Specialty Hosp. of Washington-Hadley,
LLC, 357 N.L.R.B. No. 77 (2011) (citations omitted). This is true even when
a predecessor’s bargaining unit has been changed or diminished in size. Id.;
see also Golden State Bottling Co., Inc. v. NLRB, 414 U.S. 168, 180 (1973)
(ordering purchaser of a business to reinstate an employee with backpay in
order to remedy the seller’s unfair labor practice). [6]

Thus,
in the context of federal labor law, the courts have rejected the stark
distinction our colleague attempts to make between an asset seller and
purchaser. Instead, the courts have taken a realistic view of these
transactions, and acknowledged that employees caught up in these corporate
changes nevertheless may be protected. These concepts are especially pertinent
in this case, where the transition from Martin Marietta to CalPortland was
almost seamless. Most of the CalPortland employees were working at the same
mine, and at the same jobs that they held when Martin Marietta owned the
assets, and the human relations director remained the same.[7]

Lone Mountain, relied upon by
our dissenting colleague, is clearly distinguishable. In that case, the
complainant had no prior relationship with the operator who was alleged to have
committed the discriminatory act, nor had he ever worked at the mine at which
the discrimination was alleged to have occurred.

Here, in contrast, Pappas has alleged
that he was the victim of a joint decision-making process involving Martin
Marietta and CalPortland. Under that process, CalPortland relied upon the
advice of Ambrose (human resources manager for Martin Marietta and subsequently
human resources manager for CalPortland) regarding which miners should not be
retained.

Although the Commission concluded it was
not appropriate to order temporary reinstatement in Lone Mountain, here
we deem such relief to be warranted. Temporary reinstatement was designed to
maintain the status quo while miners proceed with their discrimination claims. Permitting
Pappas, who had worked at the Oro Grande cement plant for 16 years, to continue
working at that plant pending the resolution of this matter, is consistent with
this underlying Congressional intent. The purchase by CalPortland under the
totality of the circumstances described herein does not merit depriving Pappas
of this remedy.

In
summary, we conclude that the record establishes that there is a nonfrivolous
claim that CalPortland’s decision not to retain Pappas at the Oro Grande cement
plant was made while Pappas was working as a miner at that same
operation,
prior to the October 1 transfer of assets. We further conclude that there is a
nonfrivolous claim that CalPortland’s decision not to retain Pappas as a miner
at the same plant was based at least in part on unfavorable recommendations
made by Ambrose as human resources manager for Martin Marietta and then human
resources manager for CalPortland. As a result, CalPortland was aware of
Pappas’ previous protected activity and reinstatement. Because CalPortland was
aware of Pappas’ employment history and allegedly decided not to retain him
during the time that he was still working as a “miner,” we conclude that Pappas
is a “miner” for purposes of the temporary reinstatement provisions of section
105(c)(2). The fact that Pappas’s employment was officially terminated on
September 30 and he was not “rehired” the next day does not alter the fact that
he was a miner when these decisions were made.

B.     Whether Pappas’
discrimination claim was not frivolously brought?

Under section 105(c)(2) of the Mine Act,
“if the Secretary finds that [a discrimination] complaint was not frivolously
brought, the Commission, on an expedited basis upon application of the
Secretary, shall order the immediate reinstatement of the miner pending final
order on the complaint.” 30 U.S.C. § 815(c)(2). 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), (citations
omitted) aff’d, 920 F.2d 738 (11th Cir. 1990) (“JWR”). The Mine
Act’s legislative history defines the “not frivolously brought” standard as
indicating that a miner’s “complaint appears to have merit.” S. Rep. No. 95-181,
at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 624 (1978). 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 proceedings.” Chicopee, 21 FMSHRC at 719.

In this regard, we address the Judge’s
finding that Pappas’ complaint was not frivolously brought. The elements of a
discrimination claim are that (1) the complainant engaged in protected activity
and (2) 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, 2799 (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, 817 (Apr. 1981). The Commission applies the substantial
evidence standard in reviewing a Judge’s factual determinations.[8]

Indisputable evidence supports a finding
that Pappas engaged in protected activity when he filed his section 105(c)
discrimination complaint against Martin Marietta in April 2014, and when, as a
result of settlement of that complaint, he was reinstated by Martin Marietta in
January 2015. Tr. 26-27, 34-35, 68. Pappas has additionally made the
nonfrivolous claim that after he was reinstated, he was harassed by his
supervisor and co-workers as a result of his prior safety complaints, and that
management officials, including Ambrose, failed to respond when he reported the
harassment. Tr. 29, 30, 33-34; Slip op. at 4. Making complaints about
harassment due to a previous safety complaint is itself protected activity.  See
E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015) (in a
Title VII case involving sexual harassment of female workers by a male
supervisor, where a male co-worker of the harassed female workers
complains about their treatment to the supervisor and is then fired, his
complaint about the harassment of his co-workers constitutes protected activity).
Furthermore, as stated above, we find that Pappas has made a nonfrivolous claim
of an “adverse action” by CalPortland, specifically the decision not to
continue his employment as a miner at the Oro Grande plant. Thus, the only
remaining issue is whether substantial evidence supports the Judge’s conclusion
that Pappas asserted a nonfrivolous “nexus” between the protected activity and
the adverse action.

The Commission recognizes that discriminatory
motive may be shown by indirect evidence establishing a nexus between the
miner’s protected activities and the adverse actions. Sec’y of Labor on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981)
(citing NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir.
1965)), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). The
Commission in Chacon stated that discriminatory intent can be
established by circumstantial evidence of: (1) knowledge of the protected
activity, (2) hostility or animus toward the protected activity, (3)
coincidence in time between the protected activity and the adverse action, and
(4) disparate treatment of the complainant. Id. at 2510.

In its petition, CalPortland continues
to deny that it had any knowledge of Pappas’s protected activity. However, as
the Judge found, a supervisor’s knowledge of the protected activity may be
imputed to the operator where knowledgeable supervisors are consulted regarding
the miner’s employment. See Nat’l Cement, 33 FMSHRC at 1067–68
(imputing knowledge and animus of miner’s direct supervisors to official
making disciplinary decision); Metric Constructors, Inc., 6 FMSHRC 226,
230 n.4 (Feb. 1984) (stating that “[a]n operator may not escape responsibility
by pleading ignorance due to the division of company personnel functions”). The
Secretary presented evidence that in August 2015, CalPortland’s vice president
for human resources, Antonoff, consulted with Martin Marietta’s Ambrose about
whom CalPortland should hire after taking over the Oro Grande cement plant. Tr.
146–47, 149–50. Moreover, Ambrose received an employment offer from CalPortland
in August 2015 which she subsequently accepted. Tr. 147. Therefore, we agree
with the Judge that the Secretary has raised a nonfrivolous claim that CalPortland
had imputed knowledge of Pappas’s protected activities and has thus met his
evidentiary burden.

We also consider
whether the Secretary provided sufficient evidence of a close temporal
relationship between Pappas’s protected activities – the April 2014 section 105(c)
complaint and his subsequent reinstatement to the mine, and his subsequent
complaints about harassment – and CalPortland’s allegedly discriminatory
decision not to retain him. As a result of the settlement of his discrimination
complaint against Martin Marietta, it reinstated Pappas to the mine in January
2015, and the alleged harassment continued through August 2015. Tr. 27, 29, 33,

35. In August 2015, Ambrose advised CalPortland on hiring decisions at the mine,
    and the decision not to continue Pappas’ employment was made in September. Tr.
    41-42, 63-64, 146-47, 149-50. The Judge found that CalPortland, through
    Ambrose, knew of Pappas’ prior discrimination complaint and reinstatement. Slip
    op. at 8. Accordingly, we find that the Secretary’s evidence demonstrates a satisfactory
    coincidence in time under the standard of review for these limited proceedings
    between Pappas’ protected activities and CalPortland’s decision not to retain
    him.

Next, we
consider whether animus existed because of Pappas’ prior section 105(c)
complaint and subsequent reinstatement. The Secretary presented evidence that Pappas
was harassed by his direct supervisor and co-workers after his prior reinstatement
at the mine. Tr. 29, 33-34. Moreover, the Secretary presented evidence that
Martin Marietta’s managers were indifferent to Pappas’s complaints about this
harassment. Tr. 30. Animus may be shown by evidence suggesting supervisors were
indifferent to or angered by a miner’s protected activity. See Nat’l Cement,
33 FMSHRC at 1069 (discussing supervisors’ negative reactions to miner’s safety
complaints); Sec’y of Labor on behalf of Williamson v. CAM Mining, LLC,
31 FMSHRC at 1085, 1089–90 (Oct. 2009). We therefore determine that sufficient
evidence exists that Martin Marietta’s management, in failing to address the
regular harassment of Pappas, signaled a distinct animus toward his section 105(c)
complaint and subsequent reinstatement. Because CalPortland’s retention
decisions were allegedly based on Ambrose’s recommendations, that animus can be
attributed to CalPortland as well.

Finally, we consider whether
Pappas was subjected to disparate treatment. We determine that the Secretary
has presented sufficient evidence to sustain a nonfrivolous claim that Pappas
was treated disparately from other miners when CalPortland decided not to
retain Pappas at the cement plant. The fact that 120 miners sought positions at
the mine and Pappas was one of only ten miners who were not retained, strongly
suggests that CalPortland’s decision was based on unfavorable information
concerning his employment history.

We conclude that
Pappas’ discrimination complaint was not frivolously brought, and that Pappas
is eligible for temporary reinstatement at the Oro Grande cement plant. We note
that the question of whether Pappas was discriminated against in connection
with the firing and hiring of miners at the plant, and whether he is entitled
to permanent reinstatement, has yet to be resolved. We express no view
regarding the merits of Pappas’ discrimination claim.

III.

Conclusion

For the reasons stated above, we affirm
the Judge’s decision. We also deny CalPortland’s motion to stay the Judge’s
temporary reinstatement order.         

/s/ Mary Lu
Jordan

Mary
Lu Jordan, Chairman

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

Commissioner
Althen dissenting:

Prior
to today’s decision, the line between a “miner” and an “applicant for
employment” for purposes of section 105(c) was clear. If a miner’s employer discharged
him and the miner had a non-frivolous claim that the discharge was
motivated by protected activity, the miner was entitled to temporary
reinstatement. If an operator refused to hire an applicant for
employment based on protected activities in which the individual had engaged,
the individual was entitled to file a complaint and receive relief under
section 105(c). However, an applicant for employment with an operator,
not having any employment relationship, could not obtain temporary
reinstatement – he simply has not had a job with the potential new employer to
which he may be “reinstated.” With today’s ill-considered decision, the
Commission makes a muddled mess of the distinction between a miner and an
applicant for employment for purposes of temporary reinstatement proceedings. The
only guarantee from the Commission’s decision is that we will now spend years
trying to differentiate decisions on an issue that, until today, was in accord
with the plain language and obvious purpose of section 105(c) and was perfectly
clear. I respectfully dissent.

DISCUSSION

My
disagreement with the majority is easily stated. The majority finds that, for
purposes of an application for temporary reinstatement under section 105(c) of
the Mine Act, Mr. Pappas was a miner for CalPortland. Of course, in reality, it
is undisputed that Mr. Pappas was not a miner for CalPortland. Mr. Pappas was
not working for CalPortland. He never worked for CalPortland. He was an
applicant for employment and was not entitled to temporary “reinstatement” to a
position he had never occupied.

Section
105(c) of the Mine Act delineates three classes of individuals entitled to the
protection of the section – “miners,” “applicants for employment,” and “miners’
representatives.” The section also clearly provides two types of procedures for
resolution of discrimination complaints – regular processing of complaints and
an application for temporary reinstatement. There are distinct differences
between the processes.

First,
only the Secretary may file an application for reinstatement. Although an
individual may press a discrimination case on his own behalf, the individual
may not seek temporary reinstatement on his own behalf. Second, and of ultimate
importance here, the Secretary may not maintain an “application for
reinstatement” on behalf of an individual who claims she was denied employment
on the basis of protected activity. Sec’y of Labor on behalf of Young v.
Lone Mountain Processing, Inc. 20 FMSHRC 927 (Sept. 1998) (“Lone
Mountain”).[9]

The majority and I agree that whether
the complaint was an “applicant for hire” is a threshold decision under an
application for temporary reinstatement. Here, there is essentially no
question. Clearly, Mr. Pappas was an applicant for employment.

The majority cannot and does not contend
that CalPortland ever employed Mr. Pappas. Commission law and labor law case
law make that completely clear. The Commission can incorrectly order
CalPortland to hire Mr. Pappas; it cannot order CalPortland to reinstate him at
CalPortland. He never had a position with it. Indeed, the majority recognizes
that the transaction did not include the labor forces at the acquired facility,
saying that CalPortland “extended offers of employment.” Slip op. at 3.[10]

Lone Mountain is directly on
point. There, the Commission ruled that “applicant[s] for employment” are not
eligible for temporary reinstatement under section 105(c)(2) of the Act. In
that case, the complainant, as here, was actively working for a
different coal operator. In anticipation of a layoff from his current active
employment as a miner with a different employer, he applied for a job with Lone
Mountain. Lone Mountain gave him a roof-bolting test as part of the employment
application process. Subsequently, Lone Mountain did not extend a job offer to
the complainant alleging that he had failed to meet the minimum requirements of
the roof-bolting test. The complainant filed a non-frivolous complaint. He
alleged that he failed to meet the minimum requirements of the test because he
encountered unsafe conditions during the test that he brought to the attention
of the operator. Therefore, the complainant claimed that the operator’s failure
to hire him was a result of discrimination prohibited under the Mine Act. The
Secretary filed an application for temporary reinstatement on his behalf. The
Commission found that the complainant was an “applicant for employment.” 20
FMSHRC at 927-32. On that basis, it denied the application for temporary
reinstatement.

The Commission based its decision on a
careful and sound reading of the plain language of section 105(c). It noted
that the temporary reinstatement clause is one of
only two instances in which “miner” is used as a stand-alone term in section
105(c)(1) and (2). Further, Congress recited versions of the phrase “miner, applicant
for employment, or representative of miners” eight times – in six instances before mentioning temporary reinstatement
and two instances afterward.

Obviously, the applicant in Lone
Mountain was a “miner” in the sense he was actively working as a miner for
a different coal operator. However, the unmistakable purpose of the
reinstatement provision in section 105(c) is to prevent employers from
discriminating against their miner employees. If they do discriminate to the
point of discharge, an immediate remedy is imperative. The former employee is
entitled to reinstatement upon a non-frivolous showing of discrimination. The
reinstatement provision and the extraordinarily low threshold of proof arise
from Congress’ reasonable demand that operators not discharge their miners in
retaliation for protected activities.

In Lone Mountain, the
Commission correctly observed that, if a prospective employer denies employment
based on protected activity, section 105(c) provides relief to the applicant,
but an applicant for employment is not entitled to force the prospective
employer to hire her temporarily. There is no previously held position to which
the prospective employer may reinstate the applicant. The clear distinction for
an application for temporary reinstatement is that it is an immediate remedy
for an unwarranted discharge.

Indeed, the plain language
of section 105(c) makes it obvious that the “reinstatement” provision does not
apply to hiring individuals that did not, and do not, have an employment relationship
with the operator. The remedy is not an “application for temporary employment.”
It is an “application for temporary reinstatement. The word
“reinstatement” means “To place again in a former state or position; to restore.” Webster’s
Third New International Dictionary 1915 (1993) defines
“reinstatement” as “the action of reinstating (as in a post or position
previously held but relinquished).”  The Random House Webster’s Unabridged
Dictionary 1625 (2d ed. 1998) defines “reinstate” as “to put back or establish
again, as in a former position or state.”

Going
further, the Commission frequently turns to decisions of the National Labor
Relations Board and labor cases generally for assistance in resolving issues,
including cases of alleged discrimination. Sec’y on behalf of Gray v. North
Star Mining, Inc., 27 FMSHRC 1, 7-11 (Jan. 2005); Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2542-43 (Dec. 1990). In this case, labor
cases dealing with asset transfers amply demonstrate that, in the context of an
asset transfer, employees of the seller are not “transferred” as employees by
the buyer. The employees of the seller are not employees of the buyer. The buyer
may offer them an opportunity to apply for jobs and, then, they are either
offered or not offered jobs.

The Judge here cited, but misconstrued, the importance
of NLRB
v. Burns International Security Services, Inc.,
406 U.S. 272 (1972). Burns dealt with whether the obligations of a labor
agreement apply to an unrelated company that purchases the assets of a company
signatory to a union contract. Under Burns¸ if an asset purchaser does
not take the terms of the existing labor contract, then it is free to establish
its own initial terms and conditions of employment. That principle is
significant here because it establishes that employees hired to work at the
same facility in an asset transaction have a new employment relationship. In
every factual and legal sense, they apply for employment and then are hired or
not hired by the new owner. The employees fill out employment applications and
the buyer makes individualized decisions whether to hire each former employee
of the seller. The applicants may choose to work for the new employer under the
new terms or may decline an offer of employment. In fact, here, ten to 15 of
the applicants to whom CalPortland offered employment refused to accept it. Tr.

113. Apparently, the new terms of employment were not sufficient for those
     former employees of Martin Marietta to accept employment offers from
     CalPortland.

As applied to the mining industry, NLRB case law makes
it evident that if a seller has a contract with the union and a buyer purchases
the assets of the seller and is careful not to take the union contract, the
buyer is free of all existing employment obligations to employees. Indeed, it
need not hire any of the employees.[11]
Of course, the buyer may not discriminate in making hiring decisions but no
employment relationship or obligation to hire any employee arises from the sale
of the mine. The point here is that the rights of employees run with the
employer not with the land.

CalPortland made it clear in the terms of the purchase
agreement that it was not taking any obligations to the existing employees of
Martin Marietta and was not “transferring” any of Martin Marietta’s employees
to CalPortland. Each person discharged by Martin Marietta had a right to apply
for employment but there was no guarantee CalPortland would hire the applicant.
An applicant for hire may obtain a job at CalPortland if, after a hearing, the
Commission determines the applicant was refused employment for discriminatory
reasons. However, Congress chose not to provide applicants for employment with
temporary “reinstatement” to jobs they never had.

The
majority makes an unavailing effort to turn directly adverse labor law to its
favor. To do so, the majority notes the well-known principle that if an asset
purchaser has hired a majority of its workforce from the discharged employees
of the predecessor when it has hired a substantial and representative
complement of employees, it takes on a bargaining obligation. Fall River
Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987). Fall River
and many other asset transaction cases demonstrate beyond question, that
employees hired by the asset buyer are first applicants and, then, if hired,
employees. The majority even goes so far as to quote a passage from John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964), a case decided eight years before Burns.[12] Indeed, Burns distinguished
the Wiley case in terms meaningful for this case. The Court said, “Burns merely hired enough of Wackenhut's
employees to require it to bargain with the union as commanded by § 8(a)(5) and
§ 9(a).” 406 U.S. at 286. Notice the precise wording of the Court,
“merely hired enough of Wackenhut’s employees.”[13] Here, there is no
doubt that labor law cases confirm that CalPortland was making hiring decisions
with respect to Martin Marietta’s workforce. This is not the “stark
distinction” pejoratively proclaimed by the majority. It is the legal
distinction between hiring and reinstating. It is a distinction made by the
Supreme Court in Burns and numerous other labor cases for over fifty
years.

Finding
nothing of use in labor law cases that are, in fact, contrary to its position,
the majority turns to an ill-conceived attempt to distinguish the Commission’s Lone
Mountain decision. It does not overrule Lone Mountain. Lone Mountain
is clearly correct and precedential regarding the plain meaning and purpose of
temporary reinstatement under section 105(c). The attempted distinction is
baffling. The majority bases its attempted distinction on the ground that Ms.
Ambrose was an employee of Martin Marietta when she provided some unknown input
about the Martin Marietta employees. [14]

The
majority attaches decisive importance to the fact that subsequently CalPortland
hired Ms. Ambrose. The majority provides no cogent explanation of why Ms.
Ambrose change of employment changes the status of Mr. Pappas as an applicant
for employment with CalPortland. If anything, the majority’s analysis that
Martin Marietta employed Ms. Ambrose and that she subsequently left to become a
new employee of CalPortland confirms that Martin Marietta employees were
applying for work with CalPortland.

Indeed,
Lone Mountain, where the Commission established that the plain meaning
of section 105(c) meant that the temporary reinstatement did not apply to
applicants for hire, presented a more favorable set of facts for the claimant.
In Lone Mountain, Lone Mountain both gave the test where the alleged
protected activity occurred and made the decision not to hire Mr. Young.
Therefore, in Lone Mountain, there was never a question that, if
discrimination occurred, a then current employee of Lone Mountain made such
discriminatory decision. The Commission found that Mr. Young was an applicant
for hire with respect to Lone Mountain rather than a miner. If an employee of
Mr. Young’s current employer had called to suggest not hiring him because he
was active in safety matters, that advice, which would be similar to what the
majority says is non-frivolously claimed here, would not have changed his
status as an applicant for hire. “Temporary reinstatement” to Lone Mountain was
not available.

In Lone Mountain, the miner could
cite test conditions at Lone Mountain as evidence of discrimination; here, Mr.
Pappas may cite his work for Martin Marietta. In neither case, does such
evidence give Mr. Young or Mr. Pappas any legal relationship other than an
applicant for hire.

Going
further, Mr. Young was a working miner. However, he was not, and had not been,
a working miner for Lone Mountain. This also is Mr. Pappas’ situation. As we
have noted, repeatedly, the purpose of temporary reinstatement under section
105(c) is to prevent a miner’s employer from terminating him because of
protected activity. As a legal matter, Mr. Pappas had no closer relationship to
CalPortland than Mr. Young had to Lone Mountain.

Going
another step further, as we have explained, the fact that Mr. Pappas was
applying for a job with a new employer who had purchased the assets of his
former employer certainly makes Mr. Pappas’ status an applicant for employment.
The majority cites no case for the proposition that a purchaser of assets must
decide to employ all or even any employee of the former owner.

Indeed,
in the coal industry, when an employer’s current coal reserve is nearing
exhaustion, it is not uncommon at all for a productive operator to purchase the
assets of a less productive operator and move its workforce to the newly purchased
assets. Obviously, such transactions do not present overtones of
discrimination, but they do fully illustrate that asset buyers hire their own
employees whether those employees are existing employees of the buyer, workers
hired from the street, or workers whom the seller previously employed. To find
otherwise, would be essentially to find that employees
are encumbrances that run with the land. Working at a particular location does
not create employment rights; working with an employer creates and protects
employment rights. Burns, supra, and many other NLRA cases firmly
establish that principle. If the Secretary files a complaint claiming
CalPortland discriminated against Mr. Pappas and if the Secretary or Mr. Pappas
on his own prevails, Mr. Pappas will be compensated fully for his damages.

Under Burns, after an
asset transfer employees hired by the buyer still work at the facility but they
have no employment relationship with the seller of the assets; they have a
newly-hired employment relationship with the buyer. The site at which a person
is working or desires to work does not determine if the person is an applicant
for hire. That determination depends solely upon whether the person has any
existing work relationship with the employer from whom he seeks employment.

Status as an applicant for employment is
a legal matter that is a prerequisite for maintaining an application for
temporary reinstatement. The Judge and Commission make that decision to
determine whether the application for temporary reinstatement may be
considered. Is the Commission saying that we must first reinstate an applicant
for employment who claims to be a miner and then determine whether the person
can pursue reinstatement? Although the standard of proof is low at a temporary
reinstatement hearing, the Secretary bears the burden of proof. Part of that
burden is to establish that the applicant for reinstatement has a right to file
the petition for temporary reinstatement. In any event, the majority’s
assertion that Mr. Pappas has a non-frivolous claim of having had an employment
relationship with CalPortland is flat out wrong. As has been repeatedly
demonstrated above, Mr. Pappas never had any such relationship. Any claim
otherwise is indeed wholly frivolous.

The majority cannot and does
not articulate the basis for any employment relationship between Mr. Pappas and
CalPortland. Because it is impossible to find any principled basis for the
majority’s decision, it is also impossible to imagine the possible ramifications
of the decision regarding future cases where an applicant has never worked for
an operator to whom he applies for a job. The majority throws the law related
to temporary reinstatement into an unnecessary, unwarranted, and unfathomable
state of confusion. If Ms. Ambrose had quit Martin Marietta and found other
employment but voluntarily agreed to speak to CalPortland, would Mr. Pappas be
“entitled” to reinstatement? If CalPortland had not asked for her comments
until she worked for it, would that make a difference? If CalPortland called a
former employee of Martin Marietta about candidates for hire and that person,
who knew of Pappas protected activity at Martin Marietta, gave a negative
reference (for unknown reasons) would Pappas be entitled to reinstatement? What
if a fellow employee of Mr. Pappas made an unsolicited call to CalPortland and
said he did not want to work with him? Would CalPortland be compelled to hire
him on a temporary basis through a “reinstatement” proceeding? What if
CalPortland spoke with some person completely unrelated to Martin Marietta but
who knew of Mr. Pappas protected activity at another mine, would
“reinstatement” follow?

In all those examples,
employees of Martin Marietta would have worked at the facility until the
closing date of the purchase. In none of the above examples would the timing of
the sale or the timing of the job offers determine whether a person was an
applicant for employment with CalPortland.

Of
course, avoiding confusion within the law cannot be a driving factor in a
decision affecting individual rights. However, prior to this decision, the
Commission was clear, precise, and correct in its interpretation. The
Commission based temporary reinstatement upon an employment relationship
between the individual and the affected employer – that is why it is
“reinstatement.” This case presents no basis for muddling the law.[15]

The
majority attempts to muster every fact in the record that might support a
discrimination claim by Mr. Pappas. With all respect to the majority, it needs
to be clear that allegations supporting possible discrimination have nothing
whatsoever to do with whether Mr. Pappas was an applicant for employment. Surely,
the Secretary will use such facts, if he chooses eventually to file a
discrimination complaint, in support of his case. They are not relevant to the
applicant for hire question.

Finally, the concluding paragraph in the
section of the majority’s opinion dealing with the applicant for employment
issue manages to recapitulate virtually all the errors of its decision. The
majority first states, “there is a non-frivolous claim Cal Portland’s decision
not to retain Pappas at the Oro Grande Cement Plant was made while Pappas was
working as a ‘miner’ at the Oro Grande plant, prior to the October 1 transfer
of assets.” Thus, the majority again mistakenly refers to CalPortland’s hiring
decisions through the term “retain.” More importantly, it actually is
undisputed that CalPortland made its hiring decisions while Martin Marietta’s
employees were still working for Martin Marietta. As demonstrate above, that is
not relevant to the fact that these were hiring decisions by CalPortland
regarding applicants for employment. Certainly, the majority cannot be
suggesting seriously that it makes a difference whether a new employer makes a
job offer while the applicant is working for his/her current employer. If
CalPortland had waited until closing to offer jobs to the new employees that
would make no difference to the employment issue upon this case turns and only
would cause disruption of operations and loss of income to the newly hired
workers.

The majority also states that the
decision not to hire Mr. Pappas may have resulted from knowledge that he had
engaged in protected activity. As repeatedly stated here and as established in Lone
Mountain, the possibility that the hiring decision was discriminatory is
not relevant to whether the applicant is eligible to seek reinstatement. Perhaps
in the Lone Mountain case, Lone Mountain’s decision not to hire its
applicant, Mr. Young, may have been discriminatory; that was not relevant to a
temporary reinstatement petition. Young did not, and had not, worked for Lone
Mountain. Therefore, he could not be “reinstated” at Lone Mountain. He was an
applicant for hire.[16]
The same conclusion should apply here.

CONCLUSION

As
demonstrated, the majority’s decision conflicts with the plain language and
obvious purpose of section 105(c); it conflicts with established Commission
case law; it conflicts with basic labor law principles governing the
termination and commencement of employment relationships in asset transfers;
and, it conflicts with the public interest in the clear and understandable
application of Mine Act provisions. Congress was properly mindful of the right
of applicants for employment in mining positions to be free from discrimination
based upon protected activities by empowering and directing the Secretary to
pursue claims the Secretary determines to be valid. Congress, however,
understandably and intentionally stopped short of forcing employers to hire
applicants for employment without a full hearing. Mr. Pappas was an applicant
for employment with CalPortland and, therefore, in accordance with Congress’
purpose and the express terms of section 105(c), he was not eligible for
reinstatement to a position with an employer for whom he had never worked.

Result driven decisions are not
necessarily wrong, and they need not create bad and confusing law. Unfortunately,
the Commission’s decision in this case is both wrong and harmful to the proper
administration of section 105(c) of the Mine Act. I respectfully dissent.

/s/ William I.
Althen

William I.
Althen, Commissioner

[1] 30 U.S.C. §
815(c)(2) provides in pertinent part:

Any miner or applicant for employment or representative of miners who
believes that he has been discharged, interfered with, or otherwise
discriminated against by any person in violation of this subsection may, within
60 days after such violation occurs, file a complaint with the Secretary
alleging such discrimination. . . . [I]f 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 . . .

(emphases added).

[2] The facts in
this temporary reinstatement proceeding are based on the Judge’s
findings, which accept the
allegations made by the complainant as true, unless otherwise controverted by
irrefutable evidence. As the Commission has noted, it 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) (citation
omitted). In reviewing a judge’s temporary reinstatement order, we apply the
substantial evidence standard. See id.; Sec’y of Labor on behalf of
Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993).

[3] On January 18,
2016, CalPortland filed a motion to stay the Judge’s reinstatement order. The
Secretary filed an opposition to that motion on January 20, 2016.

[4] Section 3(g) of
the Mine Act defines a “miner” as “any individual working in a coal or other
mine.” 30 U.S.C. § 802(g).

[5] Section
105(c)(1) of the Mine Act provides, in relevant part:

No person shall discharge or in any
manner discriminate against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the statutory rights of any
miner, representative of miners or applicant for employment in any coal or
other mine subject to this [Act] because such miner, representative of miners
or applicant for employment has filed or made a complaint under or related to
this [Act] . . . .

30 U.S.C. § 815(c)(1).

[6] For example, in
John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964), the
Supreme Court ruled that a corporate employer was required to arbitrate with a
union pursuant to a collective bargaining agreement between the union and
another corporation which had merged with the corporate employer. The Court
reasoned:

Employees, and the union which
represents them, ordinarily do not take part in negotiations leading to a
change in corporate ownership. The negotiations will ordinarily not concern the
wellbeing of the employees, whose advantage or disadvantage, potentially great,
will inevitably be incidental to the main considerations. The objectives of
national labor policy, reflected in established principles of federal law, require
that the rightful prerogative of owners independently to rearrange their
businesses and even eliminate themselves as employers be balanced by some
protection to the employees from a sudden change in the employment
relationship.

Id. at 549.

[7] This type of
continuity, wherein most employees could probably discern very little
difference between working conditions in their jobs under their former employer
and their current employer, was relied on by the 4th Circuit in Overnite
Transportation Company v. NLRB, (cited by the Supreme Court in Burns, 406
U.S. at 293), which noted that “[t]he record shows that Overnite [the
new employer] continued Rutherford’s [the old employer’s] business and, with
respect to the pertinent . . . terminals, made no significant changes in their
operation. The . . . drivers, who punched in on a Rutherford time card the
morning of November 19, punched out on an Overnite time card that afternoon.” 372
F.2d 765, 768 (4th Cir. 1967), cert. denied, 389 U.S. 838 (1967).

[8] E.g., Sec’y
of Labor on behalf of Bussanich v. Centralia Mining Co., 22 FMSHRC 153, 157
(Feb. 2000). “Substantial evidence” means “‘such relevant evidence as a
reasonable mind might accept as adequate to support [the Judge’s] conclusion.’”
Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989)
(quoting Consolidation. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

[9] I emphasize
that, if the Secretary or Mr. Pappas can prove by a preponderance of evidence
that CalPortland refused to hire him based on protected activity, he will be
entitled to full relief under section 105(c). In its present posture, this case
has nothing to do with the right of an applicant for employment to the
protection of section 105(c). It only involves whether an individual who
clearly was an applicant for employment may require a new employer to provide a
position to him via a purported “reinstatement.”

[10] Elsewhere, the
majority mischaracterizes to the point of tediousness CalPortland’s hiring
decisions as “retention” decisions or a decision to “retain.” The majority
knows and should deal with the fact that they were “hiring” decisions. For
example, the majority states, “CalPortland informed all of the miners at the Martin
Marietta facilities that they would need to reapply for positions at the
facilities.” Slip op. at [3] (citing Tr. 36–37). In fact, Mr. Pappas testified
that he was told, “You should be receiving applications any day. Fill them out, and do what the application says. Call -- there's a number for you to call and set up the interview
for the following
week.” Tr. 37. Fortunately,
as set forth above, at other points the majority properly recognizes the true
nature of CalPortland’s hiring decisions.

[11] Of course, the
failure to hire any employees would create a strong likelihood of anti-union
animus. If that were the case, the terminated employees could be awarded jobs
after a full hearing.

[12] Wiley involved
a merger; the case bears no resemblance to the asset transfer involved in this
case. In any event, Burns clearly establishes that an asset buyer hires
or does not hire employees of the seller.

[13] The majority
cites, without argument, Golden State Bottling Co., Inc. v. NLRB, 414
U.S. 168 (1973). Ultimately, that case involved a successor-in-interest theory,
a theory the majority cannot and does not embrace as having relevance to this
case where there has been no showing at this point of any misconduct by the
predecessor. It is notable, however, that the Court did provide instructions on
the due process concerns of attempting to apply liability for wrongs by one
party upon a third party saying,

Moreover, procedures were announced in Perma Vinyl which
provide the necessary procedural safeguards. There will be no adjudication of
liability against a bona fide successor ‘without affording (it) a full
opportunity at a hearing, after adequate notice, to present evidence on the
question of whether it is a successor which is responsible for remedying a
predecessor’s unfair labor practices.

Id. at 180.

[14] At the outset
of its attempted justification, the majority makes a number of suggestions that
truly are frivolous. It suggests that the fact that miners whom CalPortland
hired did not get severance “calls into question that they were actually
terminated by Martin Marietta . . . .” Slip op. at 7. Is the majority kidding?
What employer gives employees severance when it knows the employee is
immediately moving to a new job. The majority also states that there may be
some importance to the fact that Martin Marietta fully paid the 17 employees
not hired by CalPortland but did not require them to report to work on the 29th
or 30th. Again, has the majority no business experience whatsoever?
You have informed 17 workers that after the asset transfer, the new owner has
not decided not to hire them. Out of concern for those workers and reasonable
concern for having potentially disgruntled workers present, they were not
required to work. That is not evidence of anything with regard to the applicant
for employment issue. It is merely a good business practice.

[15] I do not
understand why the Secretary could not and/or did not actually pursue Mr.
Pappas’ former employer if it took an adverse action against him (perhaps an
adverse employment review), based upon protected activity, that resulted in
loss of employment. Obviously, Martin Marietta could not obtain employment for
Mr. Pappas with CalPortland as CalPortland made its hiring decisions. However,
the Commission recognizes, accepts, and orders economic reinstatement in
temporary reinstatement proceedings.

[16] The majority
makes the inconsequential and obvious observation by footnote that Martin
Marietta coordinated with CalPortland to make a smooth change of ownership of
the purchased facilities. That is not meaningful. Any other actions by
sophisticated entities would be surprising.