Secretary of Labor obo Victor Torres v. W. G. Yates & Sons Construction Company

Plain-English summary

Victor Torres alleged that W.G. Yates & Sons laid him off after he raised a safety concern, refused work he believed was unsafe, and photographed the incident for a report. A Judge found the discrimination complaint non-frivolous but tolled temporary reinstatement because layoffs had left no suitable work. Yates first identified its changed-circumstances defense in a brief filed less than 24 hours before the hearing. The Commission held that the Secretary lacked a meaningful opportunity to investigate, prepare cross-examination, or locate contrary witnesses on the tolling issue. It vacated the tolling order and remanded for both sides to develop the record, without deciding how the Judge should rule after remand.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.45
• Outcome: The order tolling temporary reinstatement was vacated and the tolling issue was remanded for further proceedings.
• Key point: A party must receive meaningful notice and an opportunity to respond before a changed-circumstances defense is used to toll temporary reinstatement.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY OF
LABOR,

MINE SAFETY
AND HEALTH       

ADMINISTRATION
(MSHA)

on behalf
of VICTOR TORRES

v.

W.G. YATES
& SONS

CONSTRUCTION
COMPANY           

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Docket No. WEST
2023-0256-DM

BEFORE:  Jordan, Chair; Althen, Rajkovich and Baker, Commissioners

DECISION

BY
THE COMMISSION:

This
temporary reinstatement proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”). The
Secretary of Labor filed an Application for Temporary Reinstatement on behalf
of Victor Torres against W.G. Yates & Sons Construction Company (“Yates”)
pursuant to section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2). On July 6,
2023, the Administrative Law Judge issued an Order Granting Application for
Temporary Reinstatement and Order Tolling Temporary Reinstatement, in which he
found that Torres’s complaint was non-frivolous but the remedy of temporary
reinstatement was not available due to layoffs at the facility. 45 FMSHRC __,
No. WEST 2023-0256-DM (July 6, 2023) (ALJ). The Secretary subsequently filed a
timely petition for review of the Judge’s order, directed at the tolling issue.
For the reasons that follow, we grant the petition, and vacate and remand the
part of the Judge’s order addressing tolling.

I.      

Factual and Procedural Background

A.    
Factual Background

Victor Torres
worked as a journeyman millwright and welder for W.G. Yates and Sons
Construction Company, which had been contracted by MP Materials Corporation to
build a rare earth minerals processing facility in Mountain Pass, CA. Due to
the secretive nature of the project, unauthorized photos were prohibited on the
mine site. Torres testified that on April 10, 2023, his crew was tasked with
using a manlift to bring pipe down from an elevated track. Torres believed this
was unsafe and requested the use of a crane instead. The crew was instructed to
proceed with the manlift. When Torres refused, he states that he was threatened
with removal. The crew proceeded with the manlift, and Torres took photos to
include in a report regarding the incident. Mine management informed Torres
that taking photos was against policy, but he was not disciplined at that time.
He was subsequently laid off on April 13, 2023.  See 45 FMSHRC __, slip
op. at 2-5 (summary of Torres’s testimony).

Around this time
(April 2023) construction began to slow and the operation began downsizing. By
the time of the hearing (June 2023) construction was nearly complete and the
number of employees had decreased significantly. Testimony from various
witnesses indicates that the project employed over 100 millwrights at its peak,
which decreased to approximately 14 millwrights by April 2023 and three to five
millwrights (and no welders) by June 2023. Id. at 2, 6, 7, 9.  Yates’s
witnesses testified that personnel decisions regarding the layoffs were based
on the millwright superintendent’s working knowledge of the employees rather
than an objective formula or ranking system. They stated that Torres was
included in the April 13 layoff because there was no more structural welding
work, he did not have the qualifications for the remaining millwright work, and
the other millwrights did not have his issues with absenteeism. Id . at
6-11.

Torres filed a
discrimination complaint with the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) alleging that he was discharged due to his safety
complaint and work refusal. App. for Temp. Reinstatement, Ex. A. The Secretary
determined that Torres’s complaint was not frivolous, and on June 2, 2023,
filed an application requesting that an Order of Temporary Reinstatement be
issued directing Yates to reinstate Torres to the same or similar position he
occupied prior to his discharge. App. for Temp. Reinstatement at 3. A hearing
was subsequently scheduled for June 28, 2023.

On June 27, the
day prior to the scheduled hearing, Yates filed a Hearing Brief stating that it
would rely on the “affirmative defense of changed circumstances, such as
layoffs . . . as part of the hearing on Applicant’s Application for Temporary
Reinstatement.” Yates’s Hr’g  Br. at 1. The Secretary filed a Response in
Opposition, arguing in part that affirmative defenses should not be weighed at
temporary reinstatement hearings and that the brief was untimely because it did
not provide the Secretary with adequate time to respond. Sec’y Opp. at 2.

The hearing was
held on June 28, 2023. The Judge made a preliminary ruling allowing in evidence
regarding layoffs. Tr. 13. Both parties addressed tolling in their closing
arguments. Tr. 208-09, 212-14.

B.    
The Judge’s Order and Arguments on Appeal

In a July 6,
2023 Order, the Judge granted the Secretary’s application for temporary
reinstatement. He found that Torres engaged in protected activity, that Yates’s
management knew of the protected activity on the day it occurred, and that Torres
was discharged three days later. The Judge also found indications of animus
toward Torres due to his protected activity. Given management’s knowledge of
the protected activity, the temporal proximity between the activity and Torres’s
discharge, and the evidence of animus, the Judge concluded that the Secretary’s
section 105(c)(2) complaint was not frivolously brought.  Slip op. at 13.

However, the
Judge also found that temporary reinstatement was not an immediately available
remedy. Slip op. at 14. The Judge overruled the Secretary’s objection to
Yates’s evidence regarding layoffs. Slip op. at 13-14 n.27. He found that Yates’s
witnesses provided credible, undisputed testimony that Torres would not have
been one of the remaining millwrights still working as of the date of the
hearing, that one of the currently employed millwrights would have to be laid
off to accommodate Torres’s reemployment, and that there was no work for
structural welders at the time of the hearing. Slip op. at 15-16. He concluded
that the operator “demonstrated by a preponderance of the evidence, almost all
of which was undisputed, that Torres would have been properly included in one
of the many rounds of layoffs that occurred after April 13, 2023.” Slip op. at

16. Accordingly, he ordered that Torres’s temporary reinstatement be tolled.  

On appeal, the
Secretary seeks review of the part of the Judge’s order tolling temporary
reinstatement. The Secretary claims the Judge erred by considering Yates’s tolling
argument, both because tolling is outside the proper scope of a temporary
reinstatement hearing and because the Secretary was prejudiced by the short
time frame. Alternatively, the Secretary claims the Judge applied the wrong
standard of review to the tolling argument. The Secretary requests that the
Commission reverse and remand for further proceedings .

II.   

Disposition

The
Commission has long recognized that the “fundamental requirement of due process
is the opportunity to be heard ‘at a meaningful time and in a meaningful
manner.’” Matthews v. Eldridge , 424 U.S. 319, 333 (1976), cited in,
e.g. , Scott, emp. By Mill Branch Coal Corp. , 42 FMSHRC 481,
488-89 (Aug. 2020); Jones v. D&R Contractors , 8 FMSHRC 1045,
1051-52 (July 1986). For the reasons below, we find that the Secretary was
denied a meaningful opportunity to respond to Yates’s tolling argument.

Applications
for temporary reinstatement are handled on an expedited schedule. See     
29 C.F.R. § 2700.45. Here, the Secretary filed the application for temporary
reinstatement on June 2, 2023, and Yates requested a hearing on June 12. The
Judge informed the parties that  the primary issue at the hearing would be “whether
Mr. Torres’s complaint of discrimination was frivolously brought,” directed the
parties to provide names of any witnesses by June 21,  and scheduled the
hearing for June 28. Unpublished Order dated June 14, 2023.  

On June 27, Yates
filed a brief stating that the Commission has recognized changed circumstances
as a defense that can toll temporary reinstatement, and that it would rely on
this affirmative defense to show at hearing that there was no job for Torres to
return to because the construction project for which he was hired was largely
complete. [1]
Yates Hr’g Br. at 1-2.  

The Secretary filed
a same-day objection, claiming in part that she did not have adequate time to
respond to the tolling argument. Sec’y Opp. at 2. The hearing occurred the next
day as scheduled. The Judge overruled the Secretary’s objection to the
introduction of evidence regarding Yates’s defense (Tr. 11-14) and subsequently
issued an order finding that Torres was entitled to temporary reinstatement,
but that temporary reinstatement should be tolled because no work was available
for Torres.

In summary,
until Yates’s filing on June 27, the Secretary reasonably expected the June 28
hearing to focus on whether Torres’s underlying discrimination complaint was
frivolously brought. By permitting Yates to address its affirmative defense at
the hearing, the Judge gave the Secretary less than 24 hours to marshal
arguments and evidence regarding a new issue.

Generally, to
show a due process violation, a party must show that he or she has sustained
prejudice, i.e., that the party would have litigated the matter differently if
adequate notice had been received. Brody Mining, LLC ,
37 FMSHRC 1914, 1927 (Sept. 2015); Cumberland Coal Res., LP ,
32 FMSHRC 442, 447-49 (May 2010). Here, the Secretary identifies one area of
the case that would have been litigated differently with adequate notice; she
indicates that with more time, she could have introduced evidence to counter
Yates’s claim that a millwright would have to be laid off for Torres to be
reinstated. Sec’y Pet. at 16. Beyond this, the Secretary is unable to identify
specific witnesses or lines of argument. However, this seems to be an inevitable
result of the specific harm caused by the lack of time. With less than 24
hours’ notice, the Secretary simply did not have the time to locate witnesses
or prepare a litigation strategy. [2]
See Sec’y on behalf of Overfield v. Highland Mining Co. LLC , 36 FMSHRC
1659, 1675 (June 2014) (ALJ) (finding the Secretary had no reasonable time to
call into question the objectivity of a layoff where Secretary’s counsel did
not receive copies of the layoff documentation until the hearing).

Significantly,
the Judge’s order tolling temporary reinstatement relies almost exclusively on
the “undisputed” testimony of Yates’s two witnesses, Jimmy Hayes and Bryan
French. Slip op. at 15-16. We question whether testimony is truly “undisputed” when
the Secretary had less than 24 hours to prepare for cross-examination on the
relevant issue and no practical opportunity to locate additional witnesses who
may have been able to provide contrary testimony. Yates’s tolling evidence was
undisputed essentially by default, because the Secretary had no meaningful
opportunity to dispute it. [3]

The Commission
stresses that it takes no position on what conclusions the Judge should reach
regarding the evidence presented on remand. Instead, we simply note that this
is a case where providing the Secretary with a meaningful opportunity to address
the tolling issue could have impacted the weight of evidence
sufficiently to change the outcome of the Judge’s order.

We find the
Judge erred when he considered Yates’s motion to toll at the initial temporary
reinstatement hearing, prior to providing the Secretary a meaningful
opportunity to investigate and respond to the tolling issue raised in Yates’s
June 27 Brief. [4]
Accordingly, we vacate the Judge’s order tolling temporary reinstatement and
remand for further proceedings, where the Secretary will have the opportunity
to present further argument and evidence on the tolling issue, including the proper
standard of review. Yates shall also have the opportunity to present rebuttal
evidence in the event of further development of the record.

III.

Conclusion

For the reasons discussed above, we vacate the Judge’s
order tolling Torres’s temporary reinstatement and remand for further
proceedings consistent with this decision.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chair

/s/ William I. Althen

William I. Althen,
Commissioner

/s/ Marco M. Rajkovich,
Jr.

Marco M. Rajkovich, Jr.,
Commissioner

/s/ Timothy J. Baker

Timothy J. Baker,
Commissioner

Distribution:

McCord Wilson,
Esq.

Rader and
Campbell

2777 N.
Stemmons Freeway, Suite 1125

Dallas, TX
75207

[email protected]

Susannah
M. Maltz, Esq.

Office of the
Solicitor

U.S. Department
of Labor

Division of
Mine Safety and Health

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

Natasha
Magness, Esq.

Office of the
Solicitor

U.S. Department
of Labor

300 Fifth
Avenue, Suite 1120

Seattle, WA
98104

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office of the
Solicitor

U.S. Department
of Labor

Division of
Mine Safety and Health

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

Emily Toler
Scott, Esq.

Counsel for
Appellate Litigation

Office of the
Solicitor

U.S. Department
of Labor

Division of
Mine Safety and Health

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

Melanie Garris

Civil Penalty
Compliance Division Chief

USDOL/MSHA,
OAASEI/CPCO

201 12th Street
South, Suite 401

Arlington,
VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Office of the Chief Administrative Law Judge

Federal Mine
Safety Health Review Commission

1331
Pennsylvania Avenue, NW Suite 520N

Washington, DC
20004-1710

[email protected]

Administrative
Law Judge Richard W. Manning

Office of the
Chief Administrative Law Judge

Federal Mine
Safety Health Review Commission

721 19th
Street, Suite 443

Denver, CO
80202-2536

[email protected]

[1] We note that the cited changed circumstance was not a
particularly recent development. Yates’s witnesses indicated that downsizing
had been underway for months. If Yates had raised the tolling issue when it
filed a hearing request on June 12, or even by the Judge’s June 21 deadline,
this could have been a different case. See Sec’y on behalf of Anderson v. A&G Coal Corp. , 39 FMSHRC 165, 169 (Jan. 2017) (ALJ), aff’d 39
FMSHRC 315 (Feb. 2017) (no issue of prejudice raised where the operator filed a
motion to toll eight days before the hearing).

[2] We also note that the Secretary had only five
business days to file her petition for review. 29 C.F.R. § 2700.45(f).

[3] As a comparison, there may have been no due process
concerns if the Judge had based his tolling order on facts contained in joint
stipulations.

[4] The Secretary claims it is always inappropriate
to consider tolling arguments at an initial temporary reinstatement hearing,
because Procedural Rule 45(d) limits the scope of such hearings to whether the
miner’s complaint was frivolously brought. We note that we have previously rejected
this argument. Sec’y on behalf of
Ratliff v. Cobra Natural Res., LLC ,
35 FMSHRC 394, 397 (Feb 2013). Regardless, as we are remanding on different
grounds, thus providing the parties with the opportunity to present evidence on
tolling outside of the initial temporary reinstatement hearing as well as the
opportunity to present further legal arguments regarding tolling in the
temporary reinstatement context, we need
not address this legal argument here. As a practical matter, however, we note
that in this instance separating the tolling issue from the temporary
reinstatement hearing would have provided the Secretary with a meaningful
opportunity to respond.