Secretary of Labor obo Alvaro Saldivar vs. Grimes Rock, Inc.

Plain-English summary

Alvaro Saldivar alleged that Grimes Rock terminated him one day after his latest safety complaint and after repeated requests for equipment-specific task training. The Judge found the discrimination complaint was not frivolously brought and ordered temporary reinstatement. Grimes Rock challenged the causation analysis and argued that limits on discovery and evidence denied it a full hearing. The Commission held that the preliminary nonfrivolous standard remained controlling even under the Ninth Circuit's but-for approach, and that the Judge acted within her discretion when limiting broad, credibility-focused, or protected-informant evidence. Because Saldivar's safety complaints, management knowledge, close timing, and alleged hostility supplied substantial support, the Commission affirmed temporary reinstatement. Chair Arthur Traynor concurred in the result.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(c)(2) and 823(d)(2)(A)(ii)(I)
• Outcome: The Judge's temporary-reinstatement order was affirmed.
• Key point: At the preliminary stage, unresolved credibility disputes did not defeat a supported, nonfrivolous discrimination complaint.

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                     :         Docket
No. WEST 2021-0178-DM

ADMINISTRATION (MSHA)                        :

on behalf of ALVARO SALDIVAR               :

:                                

v.                                              
:         Mine ID: 0405432

:          

GRIMES ROCK, INC.                                     :

BEFORE: Traynor,
Chair; Althen and Rajkovich, Commissioners

DECISION

BY: Althen and
Rajkovich, Commissioners

This temporary reinstatement proceeding arises under
section 105(c)(2) of the Federal

Mine Safety and Health
Act of 1977, 30 U.S.C. § 815(c)(2) (2018) (“Mine Act”). [1] On
May 25, 2021, the Commission received from Grimes Rock, Incorporated (“Grimes
Rock”) a petition for review of an Administrative Law Judge’s May 18, 2021
order temporarily reinstating miner Alvaro Saldivar. On June 1, 2021, the
Commission received the Secretary of Labor’s opposition to the petition. For
the reasons that follow, we grant the petition for review and affirm the
Judge’s order requiring the temporary reinstatement of Mr. Saldivar.

I.

Factual and Procedural Background

Complainant Alvaro
Saldivar testified that he was a miner at Grimes Rock, Incorporated on two
separate occasions. He was first employed as a welder from May 2019 through
July 2019, and then employed again from October 5, 2020 to January 15, 2021, as
a service technician. Tr. 16. Saldivar testified that while employed at Grimes
Rock, he reported approximately eight or so safety issues to his direct
supervisor Rene Garcia and general manager Ernie Melendez on multiple
occasions. Saldivar stated that the complaints went unaddressed by mine
management. Tr. 17-27. Most of his complaints involved the water truck he
operated.  All the alleged protected activity occurred during Saldivar’s second
period of employment with Grimes Rock. Tr. 35-36.

Saldivar also testified that he
complained about a lack of proper training. While he signed documents stating
that he received new miner training, Saldivar testified that he did not receive
the required specific task training relating to the large equipment that he was
required to operate. Resp. Ex. C.; Tr. 21, 25-26, 28, 44.  He testified that he
even made his requests in writing on his daily pre-shift reports. Tr. 21. According
to Saldivar, his requests for additional training also went unaddressed. Tr.

22. On cross examination, Saldivar admitted that he received training from the
    Quinn Company, but asserted that the training did not relate to operation of
    the equipment but rather related to the maintenance of certain equipment. Tr.
    46-47, 74.

Grimes Rock issued
five disciplinary warnings to Saldivar during his second period of employment
at the mine, which Saldivar signed. Resp. Ex. K. Saldivar testified that he did
not commit the infractions as written on the disciplinary forms, and that he
signed the forms only to avoid losing his job. Tr. 49-50, 54-56, 59, 62-63, 64,
74-75. He also testified as to his belief that his supervisors were acting in a
“malicious” manner towards him and that the discipline was being issued in
retaliation for his frequent complaints about jobsite safety hazards. Tr. 28,
59.

Saldivar was terminated
on January 15, 2021, one day after he made his last safety complaint. Tr. 30.  

On February 21, 2021,
Saldivar filed a discrimination complaint with the Department of Labor’s Mine
Safety and Health Administration (“MSHA”) over his termination. The Secretary
of Labor subsequently filed an application for temporary reinstatement on
behalf of Saldivar on April 12, 2021. A hearing was held on the matter on May
11, 2021. On May 18, the Judge issued a decision granting the Secretary’s
application for temporary reinstatement and issued an order directing temporary
reinstatement of the miner. Sec’y of Labor on behalf of Alvaro Saldivar v.
Grimes Rock, Inc. , Unpublished Decision and Order at 1-6 (May 18, 2021). On
May 25, 2021, the Commission received the operator’s petition for review of the
Judge’s temporary reinstatement decision and order. [2]
The Secretary responded to the operator’s petition on June 1, 2021.

II.

Applicable Law

A. Temporary Reinstatement

The Commission has recognized that the
“scope of a temporary reinstatement hearing is narrow, being limited to a
determination by the Judge as to whether a miner’s discrimination complaint is
frivolously brought.” See Sec’y of Labor on behalf of Price v. Jim Walter
Res., Inc. , 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d , 920 F.2d 738
(11th Cir. 1990) (“ JWR ”); Sec’y of Labor on behalf of Jones v.
Kingston Mining, Inc ., 37 FMSHRC 2519, 2522 (Nov. 2015). The “not
frivolously brought” standard reflects a Congressional intent that “employers
should bear a proportionately greater burden of the risk of an erroneous
decision in a temporary reinstatement proceeding.” JWR , 920 F.2d at 748,
n.11.

At a temporary
reinstatement hearing, the Judge must determine “whether the evidence mustered
by the miner[] to date established that [his or her] complaint[] [is]
nonfrivolous, not whether there is sufficient evidence of discrimination to
justify permanent reinstatement.” JWR , 920 F.2d at 744. As the
Commission has recognized, “[i]t [is] not the Judge’s duty, nor is it the
Commission’s, to resolve the conflict in testimony at this preliminary stage of
the proceedings.” Sec’y of Labor on behalf of Albu v. Chicopee Coal Co. ,
21 FMSHRC 717, 719 (July 1999).  

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

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

B. Standards of Review

The Commission applies the substantial
evidence standard when reviewing a Judge’s factual determinations. 30 U.S.C. §
823(d)(2)(A)(ii)(I); 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 Consol. Edison Co. of New York,
Inc. v. NLRB , 305 U.S. 197, 229 (1938)); Sec’y of Labor on behalf of Norman
Deck v. FTS Int’l Proppants, LLC , 34 FMSHRC 2388, 2392 (Sep. 2012).

When reviewing a Judge’s evidentiary
rulings, the Commission applies an abuse of discretion standard. Pero v.
Cyprus Plateau Mining Corp ., 22 FMSHRC 1361, 1366 (Dec.

2000). “Applying an
abuse of discretion standard is consistent with the discretion accorded judges
in matters related to the conduct of a trial.” Marfork Coal Co ., 29
FMSHRC 626, 634 (Aug. 2007) (citation omitted). Abuse of discretion may be
found when there is no evidence to support the decision or if the decision is
based on an improper understanding of the law. Pero , 22 FMSHRC at 1366
(citations omitted).  

III.

Disposition

In its Petition, the operator
essentially sets forth two alleged errors by the Judge. First, it claims the
Judge erred in applying the Pasula-Robinette standard instead of the new
“but-for” causation standard articulated by the Ninth Circuit Court of Appeals
in Thomas v. CalPortland Co ., 993 F.3d 1204 (9th Cir. 2021). PTR at 2-3,
4-5, 10. Second, it argues that the Judge’s pretrial rulings and preclusion of
evidence at the hearing improperly narrowed the scope of the proceeding and
deprived the operator of a robust evidentiary hearing in violation of its right
to due process. PTR at 2-3, 10. It cites to at least five examples of
evidentiary error.  

We conclude that the Judge did not abuse
her discretion and that substantial evidence supports her finding that the
miner’s claim was not frivolously brought.  

A.     Grimes
Rock argues that the Judge erred in applying the Pasula-Robinette
standard instead of the new “but-for” causation standard mandated by the Ninth
Circuit in Thomas v. CalPortland .  

The “but-for” causation standard
established by the Ninth Circuit Court of Appeals in Thomas v. CalPortland
now governs section 105(c) discrimination cases brought within the Ninth
Circuit. The Judge initially looked to the Commission’s longstanding Pasula-Robinette
standard in reaching her decision. Sec’y of Labor on behalf of Pasula v.
Consolidation Coal Co ., 2 FMSHRC 2786 (Oct. 1980), rev’d on other
grounds , 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette
v. United Castle Coal Co ., 3 FMSHRC 803 (Apr. 1981). However, contrary to
Grimes Rock’s assertion that she “failed to consider” the CalPortland
holding, the Judge specifically looked to the Ninth Circuit test, acknowledging
that the instant case arises in the Ninth Circuit.

The Judge concluded that the same
outcome would have been reached under the “but-for” causation standard for
discrimination proceedings within the Ninth Circuit. Grimes Rock, Inc. , Unpublished
Decision and Order at 1-6; PTR at 10. The Judge correctly pointed out that the requirements
for a full discrimination proceeding do not affect the “not frivolously brought”
standard in a temporary reinstatement case such as this. 

Grimes has not shown that the Judge
erred in concluding that, under either standard, the complainant met the “not
frivolously brought” test applicable to temporary reinstatement proceedings. Accordingly,
it is neither necessary nor useful to identify the full scope of the “but-for”
causation standard in this temporary reinstatement proceeding. [3]

B.     Grimes
Rock argues that the Judge’s pretrial rulings and preclusion of evidence at the
hearing improperly narrowed the scope of the proceeding and deprived the
operator of a robust evidentiary hearing in violation of its right to due
process.  

Specifically, Grimes Rock contends that
the Judge erred in the following discovery and evidentiary rulings when
considering the relevance of the available evidence.  

1. The
   Judge denied the operator’s Application for Discovery.

The
Mine Act envisions an “expedited basis” for a temporary reinstatement
proceeding that does not permit full discovery or complete resolution of
conflicting testimony. 30 U.S.C. § 815(c)(2); Sec’y of Labor on behalf of
Ward v. Argus Energy WV, LLC , 34 FMSHRC 1875, 1879 (Aug. 2012). Furthermore,
in reviewing claims that a Judge erred in a discovery dispute, the Commission
cannot merely substitute its judgment for that of the Judge. Asarco, Inc .,
12 FMSHRC 2548, 2555 (Dec. 1990) (“ Asarco I ”). A Commission Judge is
granted wide discretion in discovery matters. In Re: Contests of Respirable
Dust Sample Alteration Citations , 14 FMSHRC 987, 1005 (June 1992) (“ Dust
Sample Cases ”); Gray v. North Fork Coal Corp ., 35 FMSHRC 2349,
2359-60 (Aug. 2013).

We conclude that the Judge did not err
in denying the broad discovery request. Grimes Rock’s discovery request was
extraordinarily broad, consisting of a demand for the production of sixty
documents, many of which were likely in the possession of Grimes Rock. Additionally,
the application for discovery was filed only 7 days before hearing. As stated
by the Judge, the request was overbroad, many of the requested documents were
not relevant to a temporary reinstatement proceeding, and admission of much of
the requested information would have required the Judge to make credibility
determinations. Ord. Denying Resp. App. for Disc. at 2 (May 10, 2021). Resolving
credibility issues is beyond the scope of a temporary reinstatement proceeding.
See Sec’y of Labor on behalf of Williamson v. Cam Mining, LLC , 31 FMSHRC
1085, 1089 (Oct. 2009).

2. The
   Judge rejected Grimes Rock’s request to admit evidence of Saldivar’s criminal
   history.

The operator’s counsel argued that Saldivar’s criminal past should be
admitted as evidence relevant to Saldivar’s credibility as a witness. PTR at 7.

The Judge did not abuse her discretion in denying admission of evidence
regarding Saldivar’s criminal history. Due to the limited nature of a temporary
reinstatement proceeding, a “Judge can only consider evidence which does not
require any credibility . . . determinations.” Rockwell Mining , 43
FMSHRC ___, slip op. at 9, No. WEVA 2021-0203 (April 23, 2021). Thus, evidence
regarding Saldivar’s credibility is not relevant at this stage of the
proceedings.

In any event, a prior criminal
conviction does not definitively prove that a person is untruthful in every
situation and cannot be used to reject an applicant’s statements unless the
conviction shows factually that a statement relative to the specific proceeding
is untrue. Thus, a criminal conviction in no way contradicts Saldivar’s
assertion that he made safety complaints, nor does it support Grimes Rock’s
alleged legitimate business reason for terminating him. Additionally, there is
no evidence that Saldivar withheld knowledge of his conviction from Grimes
Rock. In fact, by its own admission, the operator was fully aware of Saldivar’s
past and still chose to rehire him in October 2020. Resp. Opp. To Sec’y Mot. in
Limine to Exclude Resp. Evidence at 1.

3. Grimes Rock argues that the
   Judge refused to allow questioning about Saldivar’s new miner training.

During the hearing, the Judge eventually
asked Counsel for the operator to move on from his line of questioning
concerning the new miner training that Saldivar had received. Tr. 42-45.  

The Judge did not abuse her discretion
in making this evidentiary ruling. Commission Procedural Rule 55(e) provides
that Commission Judges have the power to “[r]egulate the course of the
hearing,” while Commission Procedural Rule 55(c) provides that Commission
Judges have the power to “[r]ule on offers of proof and receive relevant
evidence.” 29 C.F.R. §§ 2700.55(c), (e) (emphasis added). Commission Procedural
Rule 63(a) states that “[r]elevant evidence, including hearsay evidence, that
is not unduly repetitious or cumulative is admissible.” 29 C.F.R. § 2700.63(a).
The Administrative Procedure Act, in turn, states that “the agency as a matter
of policy shall provide for the exclusion of irrelevant, immaterial, or unduly
repetitious evidence.” 5 U.S.C. § 556(d). See Shamokin Filler Co .,
34 FMSHRC 1897, 1907 (Aug. 2012).

Grimes Rock’s allegation that the Judge
did not allow cross-examination on Saldivar’s training is not accurate. During
cross-examination, the operator’s counsel focused heavily on trying to prove
that Saldivar was provided training during his first period of employment with
the operator. Tr. 34-36. However, Saldivar’s safety complaints, including his
requests for training, occurred during his second period of employment with
Grimes Rock, not during his first. Tr. 21. Additionally, Saldivar alleged that
he requested task training on the specific equipment he was asked to operate
during his second period of employment. Tr. 21-22. However, operator’s counsel
repeatedly questioned Saldivar about new miner training during his first period
of employment. The Judge allowed Counsel to explore this line of questioning
sufficiently before she asked him to move on.  

The operator’s line of questioning
regarding new miner training during Saldivar’s first period of employment was
not relevant to the miner’s claim, involving in part his failure to receive
task training. The Judge was well within her authority to limit the time spent
on questioning that does not support or disprove a material fact. Counsel also
sought to use the line of questioning to show that Saldivar was not credible,
which again, is not proper in a temporary reinstatement proceeding. Tr. 37.

4. The Judge declined to order
   the disclosure of the names of other miners who Saldivar alleged expressed
   similar safety concerns.  

The Secretary
asserted the informer’s privilege at the hearing. Tr. 77-78. The informer’s
privilege is codified in Commission Procedural Rules 61 and 62. Commission
Procedural Rule 61 states that “[a] Judge shall not, except in extraordinary
circumstances, disclose or order a person to disclose to an operator or his
agent the name of an informant who is a miner.” 29 C.F.R. § 2700.61. Commission
Procedural Rule 62 states that “[a] Judge shall not, until 2 days before a
hearing, disclose or order a person to disclose to an operator or his agent the
name of a miner who is expected by the Judge to testify or whom a party expects
to summon or call as a witness.” 29 C.F.R. § 2700.62.

The informer’s
privilege is the well-established right of the government to withhold from
disclosure the identity of persons furnishing information of violations of the
law to law enforcement officials. Roviaro v. United States , 353 U.S. 53,
59 (1957); see generally Thomas J. Oliver, Annotation, Application,
in Federal Civil Action, of Governmental Privilege of Nondisclosure of Identify
of Informer , 8 ALR Fed. 6 (1971). The purpose of the privilege is to
protect the public interest by maintaining a free flow of information to the
government concerning possible violations of the law and to protect persons
supplying such information from retaliation. Sec’y of Labor on behalf of
Logan v. Bright Coal Co ., 6 FMSHRC 2520, 2523 (Nov. 1984); cf. Hodgson
v. Charles Martin Inspectors of Petroleum, Inc ., 459 F.2d 303, 305 (5th
Cir.1972); Warrior Coal, LLC , 38 FMSHRC 913, 920 (May 2016).  

Saldivar testified that other miners had
made similar safety complaints. During the hearing, the operator repeatedly
sought to learn the identity of the unnamed miners, to which the Judge refused
to permit testimony. Tr. 47, 60-61, 73, 77-79.  

We conclude that the
Judge did not abuse her discretion in her ruling. Forcing the

Secretary or Complainant
to reveal a miner’s identity who might have made safety complaints against the
company and who might later become a witness in a subsequent discrimination
proceeding could potentially lead to a miner who is still employed becoming a
victim of retaliation. Revealing a miner’s identity prematurely could also be particularly
devastating for a miner who ultimately is not called as a witness.  

5. Grimes Rock contends that
   the Judge precluded questioning about disciplinary warnings received by
   Saldivar, which was evidence relevant to its rebuttal and affirmative
   defense.    

Grimes Rock is incorrect in its
assertion that the Judge precluded questioning about disciplinary warnings
received by Saldivar. The Judge, in full compliance with Rockwell Mining ,
43 FMSHRC ___, slip op. at 16-18, allowed Counsel to question Saldivar about
the disciplinary warnings and also admitted the documentation into the record. Tr.
49-54, 67. However, Counsel for Grimes Rock made a tactical decision not to
offer witnesses regarding activities that the operator claimed would have shown
the applicant could not meet the not frivolously brought standard under the
“but-for” causation standard.

C. Substantial evidence supports
the Judge’s decision to temporarily reinstate Saldivar.

Substantial evidence supports the
Judge’s finding that the Secretary sufficiently demonstrated that the miner’s
complaint was not frivolously brought and that the Order of Temporary
Reinstatement should be affirmed.

The hearing consisted of testimony from
one witness, the Petitioner Alvaro Saldivar. Saldivar testified that he made
roughly eight safety complaints, including requests for task training on
specific equipment, to his direct supervisor Rene Garcia and the Mine Manager
Ernie Melendez. Tr. 17-27. He also indicated that he wrote down some of the
issues on the preoperational sheets that he filled out daily. [4]
Tr. 73.  

In contrast, Grimes Rock’s case
consisted of cross-examining Saldivar and entering three exhibits (Resp. Exs.
C, K, and M) into the record, which were meant to serve as proof of training
and of numerous disciplinary warnings to Saldivar. Tr. 67. The evidence relates
only to the operator’s rebuttal and affirmative defense. It does not speak to
Saldivar’s claim that he engaged in protected activity. Grimes Rock declined to
introduce any witnesses of its own, including the two supervisors who had
direct knowledge of Saldivar’s alleged complaints. Tr. 81. This refusal by the
operator essentially left undisputed Saldivar’s claims of safety complaints and
that mine management had knowledge of those complaints. It also left Grimes
Rock’s exhibits uncorroborated. Furthermore, even though Saldivar signed the
disciplinary warnings, he disclaimed the content of them and claimed that he
only signed them to keep his job.

Saldivar’s disagreement with the content
of the warnings creates an evidentiary dispute requiring credibility
determinations, which cannot be resolved in a temporary reinstatement
proceeding.  

Thus, considering all the evidence
adduced at this preliminary stage of the proceeding, it is undisputed that
Saldivar engaged in protected activity when he made safety complaints to the
operator. Saldivar suffered an adverse action when he was terminated. It is
undisputed that there was a close temporal proximity between Saldivar’s final
safety complaint and his termination one day later. It is undisputed that
Grimes Rock management was aware of the safety complaints, and Saldivar’s
allegation that his supervisor was being malicious to him suggests hostility
towards Saldivar’s safety complaints. Therefore, substantial evidence supports
the Judge’s determination that the available evidence established a sufficient
link between the protected activity and adverse action, even considering
“but-for” causation.  

IV.

Conclusion

For
the foregoing reasons, we conclude that the Judge did not abuse her discretion
in making evidentiary rulings, and that substantial evidence supports the
Judge’s determination that Saldivar’s complaint alleging discrimination was not
frivolously brought.  

Accordingly, the
Judge’s decision is affirmed.

/s/ William I.
Althen

William I. Althen,
Commissioner

/s/ Marco M. Rajkovich,
Jr.

Marco M. Rajkovich,
Jr., Commissioner

Chair
Traynor, concurring in result only:

I
concur in result only. My position and views on certain legal issues addressed
in this majority opinion are adequately expressed in my dissenting opinion in Sec’y
of Labor on behalf of Cook v. Rockwell Mining , 43 FMSHRC , slip op. at
16-18, No. WEVA 2021-0203 (Apr. 23, 2021) (Traynor, concurring in result only
and addressing the scope of temporary reinstatement proceedings), and my most
recent concurring opinion in the Order of Remand, Thomas v. CalPortland Co. ,
43 FMSHRC , slip op. at 3, No. WEST 2018-402-DM (June 11, 2021) (Traynor,
concurring in result only and addressing the Ninth Circuit’s opinion in Thomas
v. CalPortland Co ., 993 F. 3d 1204 (9th Cir. 2021).

I conclude that
the Judge did not abuse her discretion in making evidentiary rulings, and that
substantial evidence supports the Judge’s determination that Saldivar’s
complaint alleging discrimination was not frivolously brought.

Accordingly, I
would affirm the Judge.

/s/ Arthur R. Traynor, III

Arthur R. Traynor, III, Chair

Distribution:

Karla Malagon

U.S. Department of
Labor

Office of the Solicitor

350 S. Figueroa Street,
Suite 370

Los Angeles, CA 90071

[email protected]

Jessica M. Flores

U.S. Department of
Labor

Office of the Solicitor

350 S. Figueroa Street,
Suite 370

Los Angeles, CA 90071

[email protected]

Bruce L. Brown

U.S. Department of
Labor

Office of the Solicitor

350 S. Figueroa Street,
Suite 370

Los Angeles, CA 90071

[email protected]

Peter Goldenring

Pachowicz &
Goldenring PLC

6050 Seahawk Street

Ventura, CA 93003

[email protected]

Mark R. Pachowicz

Pachowicz &
Goldenring PLC

6050 Seahawk Street

Ventura, CA 93003

[email protected]

Alvaro Saldivar

1241 Lookout Drive

Oxnard, CA 93035

[email protected]

Administrative Law
Judge Margaret Miller

Federal Mine Safety and
Health Review Commission

Office of Administrative
Law Judges

721 19th Street, Suite
443

Denver, CO 80202-2536

[email protected]

Archith Ramkumar, Esq.

Office of the Solicitor

U.S. Department of
Labor

201 12th Street South,
Suite 401

Arlington, VA 22202

[email protected]

April Nelson, Esq.

Office of the Solicitor

U.S. Department of
Labor

Mine Safety and Health
Division

201 12th Street South,
Suite 401

Arlington, VA
22202-5452

[email protected]

Melanie Garris

U.S. Department of
Labor

Office of Civil Penalty
Compliance

Mine Safety and Health
Administration

201 12th Street South,
Suite 401

Arlington, VA
22202-5452

[email protected]

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

Any
miner … who believes that he has been discharged, interfered with, or otherwise
discriminated against by any person in violation of this subsection may, within
60 days after such violation occurs, file a complaint with the Secretary
alleging such discrimination. Upon receipt of such complaint, the Secretary
shall forward a copy of the complaint to the respondent and shall cause such
investigation to be made as he deems appropriate. Such investigation shall
commence within 15 days of the Secretary’s receipt of the complaint, and if the
Secretary finds that such complaint was not frivolously brought, the
Commission, on an expedited basis upon application of the Secretary, shall
order the immediate reinstatement of the miner pending final order on the
complaint.

[2]
On May 27, 2021, the Commission received a Settlement Agreement and Joint
Motion for Temporary Economic Reinstatement from the parties. The Judge
approved the motion for temporary economic reinstatement on May 28, 2021.

[3] To date,
the Commission has not yet issued a decision applying the Ninth Circuit’s
holding in a section 105(c) discrimination proceeding. 

[4] These
forms were not introduced into evidence. However, this is likely because such
documentation is the property of Grimes Rock. Thus, the Secretary could request
them through discovery, which does not usually occur until the discrimination
proceeding has commenced.