Secretary of Labor, MSHA on behalf of Clinton Ray Ward v. Argus Energy WV, LLC

Plain-English summary

Clinton Ray Ward had remained temporarily reinstated while his discrimination case proceeded against Argus Energy. Argus closed Deep Mine No. 8 amid a regional coal-market collapse, laid off 56 of 62 employees, and retained only workers selected for the skills and certifications needed to close the mine. Judge William S. Steele found that Argus proved the closure and layoffs were legitimate and that no suitable work remained available for Ward. The Secretary offered no contrary evidence after receiving expedited discovery. The judge therefore tolled Ward's temporary reinstatement retroactively to the mine's December 27, 2013 closure date.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: Ward's temporary reinstatement was tolled effective December 27, 2013.
• Key point: A mine closure and objectively supported mass layoff may toll temporary reinstatement when the operator proves that no work is available for the miner.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-920-8689

January
16, 2014

SECRETARY OF LABOR

MINE SAFETY AND HEALTH     

ADMINISTRATION (MSHA),

Petitioner

v.

ARGUS ENERGY WV, LLC,

Respondent

TEMPORARY REINSTATEMENT PROCEEDING

Docket No. WEVA 2012-1448-D

MSHA Case No. PINE-CD-2012-02

Mine: Deep Mine No. 8

ORDER TOLLING
TEMPORARY REINSTATEMENT

OF CLINTON RAY
WARD

Appearances:               John
M. Strawn, Esq. and Jodeen M. Hobbs, Esq., Office of the Solicitor, U.S.
Department of Labor, Suite 630 E, The Curtis Center, 170 S. Independence Mall
West, Philadelphia, PA on behalf of Clinton Ray Ward

Mark E. Heath, Esq., and
Dennise R. Smith, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd,
East, P.O. Box 273, Charleston, WV for the Respondent

Before:                        Judge Steele

This matter is before me on Respondent’s December
12, 2013 Motion to Dissolve Temporary Reinstatement.[1]
In the Motion, Respondent argued that the mine where Clinton Ray Ward worked
would be closed on December 27, 2013, and Ward’s position would be eliminated. The
Secretary opposed the Motion, arguing that the Respondent has not met its
burden of proof in arguing that the Temporary Reinstatement should be tolled.

Ward has been temporarily reinstated since August
21, 2012. A discrimination hearing was held on June 27-28, 2013 in South
Charleston, West Virginia. On December 12, 2013, Respondent filed a Motion to
Dissolve the Temporary Reinstatement due to the December 27, 2013 closure of
Deep Mine No. 8. I issued a Decision and Order Denying the Discrimination
Complaint and Dissolving the Temporary Reinstatement on December 27, 2013. In
the decision,

I did not rule on the pending Motion to Dissolve the
Temporary Reinstatement because I found the matter to be moot.

Respondent requested that the Motion to Dissolve
the Temporary Reinstatement be ruled upon in order that the temporary
reinstatement be dissolved on the date of the mine closure, rather than after
it becomes a final order on the complaint.[2]
The parties briefed their respective positions, expedited discovery was
permitted, and a hearing was scheduled for January 16, 2014 in South
Charleston. On January 09, 2014, the Secretary communicated that a hearing was
unnecessary, and that they would oppose the motion through briefing. For the
following reasons, I order that Ward’s temporary reinstatement be tolled,
effective December 27, 2013.

FINDINGS OF FACT

The only evidence submitted in
support or opposition to this motion was the affidavit of Charles Leonard, the
General Manager of Argus Energy’s West Virginia properties, and notices
required under the Worker Adjustment Retraining Notification (“WARN”) Act,
including notice issued to all employees, notice to the State of West Virginia
Dislocated Worker Unit, notice to the Mayor of Kenova, and notice to the Wayne
County Commission.[3]

The reason for the closure of these
facilities was due to, among other things, “the collapse of the Central
Appalachian coal market. Sec. Supp. Aff. Leonard ¶ 2. According to the
affidavit, Leonard was involved in the business decision to close Argus’ mining
complex in West Virginia, which included, among other facilities, Mine #8. Sec.
Supp. Aff. Leonard ¶ 2; WARN Notice. There was a “complete and total
cessation of coal production at the mine complex” on December 27, 2013, and
“there were no extensions of the layoffs and no persons were transferred to any
other Argus facilities.” Id. at ¶ 3. The closure of the facilities is
expected to be permanent. WARN Notice. The only work being performed at
the mine complex is removal and transportation of equipment, and the only coal
being transported is for clean-up purposes. Id. at ¶ 4, 5. Of the
original 62 employees at the mine, 56 were laid off. Id. at ¶ 7.

Six underground employees have been
retained at Mine No. 8, where Ward was employed, and four have been retained at
Mine No. 7. Id. at ¶ 6. The individuals were chosen to assist in the
process of closing down the mine on the basis of seniority, experience,
certifications, and skills. Id. Their tasks included examinations of the
mine and its airways, as well as EMT services, during the equipment removal, as
required by law. Id. at ¶ 7, 8. There were no persons from the second
shift or the third shift crew retained. Id. at ¶ 6.

At the time of Ward’s discharge,
Ward had 4.5 years of underground experience, 2 years of experience as an
electrician, and 8 months of experience at Argus No. 8 Mine. He had an
underground miner certification and electrical cards. He did not have his
foreman papers and was not an EMT, and therefore is unable to perform
examinations other than electrical examinations. Id. at ¶ 9.

The six individuals retained to
assist in closing Mine No. 8 were the following:

·        
Grover Meade—Mine Superintendent. Meade has worked as mine
superintendent of No. 8 Mine for three years and has 16 years of experience as
a coal miner. Meade is certified as a foreman in West Virginia and Kentucky, has underground surface mining cards for West Virginia and Kentucky, and is a
federal limited instructor and EMT. Id. at ¶ 7.

·        
Lloyd Mann—Mine Foreman. Mann worked for 1.5 years at Argus, has
been a certified mine foreman since 2002, and has 24 years of underground
mining experience. Id.

·        
Jake Bowen—Chief Electrician for all shifts. Bowen worked for
Argus for 3 years and four months, has 7 years of experience as a chief
electrician, 15 years of experience as an electrician, and 27 years of
experience as a coal miner. He has electrical and EMT certifications for West
Virginia and Kentucky, has mine foreman’s certification, MSHA certification in
dust, is an approved Kentucky and MSHA mine safety instructor. Id.

·        
John Dingess—Master Electrician, Plumber, and Examiner. Dingess
worked for Argus for 11 years and has 32 years of experience as a coal miner. He
is a certified plumber and airways examiner, has a mine foreman’s and
electrician’s card, and is an EMT. Id.

·        
Kay Adkins—Outby Mine Foreman and Examiner. Adkins worked for
Argus for 11 years, two of which were as mine foreman. He has 33 years of
experience as a coal miner. Adkins is a West Virginia certified mine foreman, a
certified EMT, and CPR certified, and he has a surface miner card. Id.

·        
Robert Ratcliff—Outside Man. Ratcliff was the mine outside mine
prior to the mine closure and is being retained in that role during closure. He
operates the mine communication system and dispatches, and is an EMT. Id.

CONTENTIONS OF THE PARTIES

The Respondent argues that Ward’s temporary
reinstatement should be dissolved due to the closure of Mine No. 8, the
cessation of all mining operations, and the elimination of Ward’s position on
December 27, 2013. Resp. Mot. Dissolve Temp. Reinst., 1-4. Respondent
argues that it would be contrary to Commission precedent and inequitable to
permit the temporary reinstatement to continue under a bona fide economic
retrenchment, where all but several more senior miners have been laid off. Id.
at 4.

In Response, the Secretary argues that
Respondent has not met its burden of proof under the “not frivolously brought”
standard applicable to tolling arguments in a temporary reinstatement hearing.[4]
Sec. Reply to Mot. To Diss. Temp. Reinst., 3-4. Specifically, the Secretary
argues that Respondent has not provided sufficient evidence concerning the
status of miners after December 27, 2013, the possible availability of jobs to
laid off miners, and the duration of the closure. Id. at 5. Furthermore,
the Secretary asserts that the Respondent has not sufficiently explained how
the six miners retained during the closure were selected, and questions the
objectivity of the selection. Id. The Secretary argues that Ward was
capable of performing the work during closure, and the Respondent has not
proven otherwise. Sec. Resp. to Sec. Supp. Aff. Leonard, 2-3.

ANALYSIS

The Mine’s Closure and Mass Layoff Tolls the Temporary
Reinstatement

“The Commission has recognized that
the occurrence of certain events, such as a layoff for economic reasons, may
toll an operator's reinstatement obligation.” MSHA obo Robert Gatlin v.
KenAmerican Resources, Inc., 31 FMSHRC 1050, 1054 (Oct. 2009). This “limited
inquiry to determine whether the obligation to reinstate a miner may be tolled
even when it has been established that the miner's discrimination complaint is
not frivolous,” must be consistent with the “narrow scope of temporary
reinstatement proceedings.” MSHA obo Dustin Rodriguez v. C.R. Meyer &
Sons Co., 2013 WL 2146640, *3 (May, 2013). Accordingly,

[a]n operator generally must
affirmatively prove that a layoff justifies tolling temporary reinstatement by
a preponderance of the evidence. Gatlin, 31 FMSHRC at 1055. However, if
the objectivity of the layoff as applied to the miner is called into question
in the temporary reinstatement phase of the litigation, judges must apply the
“not frivolously brought” standard contained in section 105(c)(2) of the Mine
Act to the miner's claim.

MSHA obo Russell Ratliff v. Cobra Natural Resources, LLC,
2013 WL 865606, 4 (Feb. 2013). “In other words, temporary reinstatement should
be granted and not tolled unless the operator shows that the claim that the
layoff arose at least in part from protected activity is frivolous.” C.R.
Meyer & Sons, 2013 WL 2146640, 3.

The Commission has categorized
tolling as an affirmative defense, and held that the operator must make a
showing by a preponderance of the evidence that no work was available for the
miner. KenAmerican Resources, 31 FMSHRC at 1054-55; see also Chadrick
Casebolt, 6 FMSHRC 485, 499 (Feb. 1984) (“if business conditions result in
a reduction in the work force the right to back pay is tolled because a
discriminatee is entitled to back pay only for the period during which he would
have worked but for the unlawful discrimination.”) 

In the instant case, the Secretary
has called into question the objectivity of the layoff as applied to Ward. It
has suggested that Ward could perform work during the closure, and has raised
the issue of whether other miners who did not allege discrimination were
provided alternate employment opportunities. Therefore, the Respondent must
make a showing by a preponderance of the evidence that the layoff was for
legitimate non-discriminatory reasons under the “not frivolously brought”
standard.

The Secretary has not submitted any
evidence to support its position, so the only evidence that may be considered
are the Respondent’s evidentiary submissions, as well as any relevant evidence
from the original temporary reinstatement hearing. Charles Leonard, the general
manager of Argus Energy’s West Virginia properties, has stated that the closure
of Mine No. 8 (as well as Mine No. 7 and several other facilities) was due to
“the collapse of the Central Appalachian coal market.”[5]
Sec. Supp. Aff. Leonard ¶ 2. As a result of the closure, 56 of the
mine’s 62 employees have been laid off. Id. at ¶ 7. The six employees
not laid off, have been retained to assist in the mine closure, and they were
chosen on the basis of seniority, experience, and skill. Id. at ¶ 3-7. No
employees from the second or third shift crews were retained, and Ward worked
in the third shift. Id. at ¶ 7, 10. Considering the totality of the
Respondent’s evidence submitted in this case, and the complete lack of any
evidence from the Secretary to the contrary, I find that the Respondent has met
its burden.[6]
As a result, the temporary reinstatement shall be tolled from the date of the
mine’s closure.

The Temporary Reinstatement Should be Tolled on
December 27, 2013

Respondent’s Motion presents a
procedural issue upon which neither party briefed. Respondent requested that
its Motion to Dissolve be ruled upon even though it was successful in the
Discrimination Proceeding, in order that it not be required to continue Ward’s
employment during the period before this Court’s decision becomes final.[7]
The issue that must now be resolved is whether an Administrative Law Judge may
dissolve or toll a temporary reinstatement prior to a “final order on the
complaint.” 30 U.S.C. § 815(c)(2).

In this case, the conditions
changed after Ward was temporarily reinstated, and the plain language of the
Act indicates that the reinstatement may only be terminated upon a “final order
on the complaint.” 30 U.S.C. § 815(c)(2). See note1 supra. Such a
final order may only come from the Commission. Therefore, it would seem that
the ALJ is permitted to order a temporary reinstatement effective on the date
of the Order, but not dissolve one until after the Commission has had the
opportunity to review it.

Previous Commission decisions
concerning tolling have involved cases where the tolling argument was raised
contemporaneously with the application for temporary reinstatement. Furthermore,
Commission decisions concerning dissolving temporary reinstatements have
involved cases where the Secretary has announced that it would not be filing a
discrimination complaint on the miner’s behalf. Under such circumstances, the
Sixth Circuit has held “that upon the Secretary’s determination that
discrimination in violation of the Mine Act has not occurred, a miner is no
longer entitled to temporary reinstatement.” North Fork Coal Corp. v. FMSHRC,
691 F.3d 735, 744 (6th Cir. 2012).

The Sixth Circuit reversed the
Commission’s decision in MSHA obo Mark Gray v. North Fork Coal Corp., 33
FMSHRC 27 (Jan. 2011), on a narrow issue, holding that the Secretary’s decision
not to file a discrimination complaint provides the statutory prerequisite to
dissolve the discrimination complaint. Therefore, it remains unclear whether
the Commission’s holding that a judge lacks “the necessary statutory
prerequisite for dissolving [a] temporary reinstatement because no final order
had been issued on the miner’s complaint,” would still hold in situations where
the Secretary filed a discrimination complaint on the behalf of the miner. Id.
at 37.

In the instant case, it is more
precisely tolling that is at issue, rather than dissolution of the temporary
reinstatement. Though Respondent’s submissions in this case were styled as
motions to dissolve, their arguments all spoke to tolling. I found, supra,
that the operator’s obligations under the temporary reinstatement should be
tolled due to the mine closure. Tolling is usually applicable only upon a showing
economic necessity has resulted in mass layoffs or mine closure. As such, this
extraordinary circumstances warrant that the tolling take effect immediately. I
therefore hold that such tolling shall take effect on the date of the mine
closure rather than after a final order of the Commission.

ORDER

Based on the foregoing, it is hereby ORDERED
that the temporary reinstatement of Clinton Ray Ward be TOLLED as of
December 27, 2013.

/s/
William S. Steele

William
S. Steele

Administrative
Law Judge

Distribution:

John M. Strawn, Esq. and Jodeen M. Hobbs, Esq., Office of
the Solicitor, U.S. Department of Labor, Suite 630 E, The Curtis Center, 170 S.
Independence Mall West, Philadelphia, PA 19106

Clinton Ray Ward, 906 Turkey Fork Road, Fort Gay, WV 25514

Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, 300
Kanawha Blvd, East, P.O. Box 273, Charleston, WV 25301

[1] Parties originally filed their motions in this matter
under the Discrimination Proceeding, WEVA 2013-597-D. However, they corrected
this error and requested that all matters related to this Motion be considered
under the Temporary Reinstatement Proceeding, WEVA 2012-1448-D.

[2] Section 105(c)(2) of the Mine Act states that, once
it has been determined that an application for temporary reinstatement has not
been frivolously brought, the Commission, “shall order the immediate
reinstatement of the [complaining] miner pending final order on the
complaint.” 30 U.S.C. § 815(c)(2) (emphasis added). Section 113(d)(1) of the
Act states: “The decision of the administrative law judge … shall become the
final decision of the Commission 40 days after its issuance unless
within such period the Commission has directed that such decision shall be
reviewed ….” 30 U.S.C. § 824(d)(1) (emphasis added). Therefore, the language of
the Mine Act requires that a temporary reinstatement order remain in effect
while the Commission reviews the judge's decision.

[3] An affidavit for Charles Leonard was attached to the
Respondent’s Motion to Dissolve the Temporary Reinstatement on December 12,
2013, and a second supplemental affidavit for Charles Leonard was submitted on
January 9, 2014.

[4] In the Secretary’s Reply to Respondent’s Motion to
Dissolve Temporary Reinstatement, the Secretary also argued that in the
alternative discovery should be permitted. Expedited discovery and an
opportunity for hearing was so permitted, however after conferring and
exchanging some discovery the parties decided that no additional discovery or a
hearing were necessary.

[5] In the October 25, 2013 WARN Notice to
employees, the operator stated that it was working to secure additional sales
contract that may permit the mine to remain open. However, in Leonard’s Second
Supplemental Affidavit on January 9, 2014, he stated under oath that “there was
a complete and total cessation of coal production.” Sec. Supp. Aff. Leonard
¶ 3. I accept the latter statement to be the more accurate, as it was stated
after the mine’s December 27, 2013 closure.

[6] It should be noted that this is an exceptional case
where Ward’s Discrimination complaint has already been denied by this Court,
there was a complete closure of the mine, and the Secretary submitted no
evidence opposing Respondent’s claims.

[7] “The decision
of the administrative law judge … shall become the final decision of the
Commission 40 days after its issuance unless within such period the Commission
has directed that such decision shall be reviewed ….” 30 U.S.C. § 824(d)(1).