Secretary of Labor obo Benjamin Leadmon and Franklin Jeremiah Gibson v. Blue Creek Mining, LLC

Plain-English summary

Franklin Jeremiah Gibson objected to continuous-miner work involving airflow and unsupported roof, and Benjamin Leadmon delivered Gibson's written safety concerns and joined meetings with management about those conditions and personal-dust-monitoring instructions. Blue Creek suspended both miners on the day they presented the complaints and discharged them two days later. The company asserted that the complaints followed discipline and that the miners were fired for unsafe conduct, but Judge William S. Steele held that those merits defenses required credibility findings outside the narrow temporary-reinstatement inquiry. He found reasonable cause based on management knowledge, close timing, and alleged hostility to the safety complaints and ordered both miners immediately reinstated to equivalent positions with the same pay, hours, and benefits.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: Temporary reinstatement was granted for both Leadmon and Gibson.
• Key point: Same-day suspension and discharge two days after detailed safety complaints supported nonfrivolous discrimination claims, while the operator's merits defenses remained for later proceedings.

Full text (FMSHRC public release)

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: 412-928-8689

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH    

ADMINISTRATION
(MSHA),

on
behalf of BENJAMIN LEADMON,

and
FRANKLIN JEREMIAH GIBSON,

Complainants,

v.

BLUE
CREEK MINING, LLC,

Respondents.

TEMPORARY
REINSTATEMENT PROCEEDINGS

Docket
No. WEVA 2017-498-D

MSHA
Case No.: HOPE-CD-2017-04

Docket
No. WEVA 2017-499-D

MSHA
Case No.: HOPE-CD-2017-05

Mine:
Blue Creek No. 1 Underground Mine

Mine
ID: 46-09297

DECISION
AND ORDER

REINSTATING
BENJAMIN LEADMON

REINSTATING
FRANKLIN JEREMIAH GIBSON

Appearances:
 Kathleen F. Borschow, Esq., Office of the Solicitor, U.S. Department of  Labor,
Arlington, VA, Representing the Secretary of Labor

Melanie J.
Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, Lexington,
KY, Representing Respondent

Todd C.
Meyers, Esq., Blackhawk Mining, LLC, Lexington, KY, Representing Respondent

Before:      Judge
Steele                                 

On July 19, 2017, pursuant to section
105(c)(2) of the Federal Mine Safety and Health Act of 1977 ( A Act @ ), 30 U.S.C. ' 801, et.
seq., and 29 C.F.R. ' 2700.45, the
Secretary of Labor ( A Secretary”)
filed an Application for Temporary Reinstatement of miner Benjamin Leadmon
(“Leadmon”) to his former position with Blue Creek Mining, LLC, ( A Blue Creek @ or A Respondent @ ) at Blue Creek
No. 1 Underground Mine (“Blue
Creek Number 1”) pending
final hearing and disposition of the case. On July 19, 2017, the Secretary of
Labor also filed an Application for Temporary reinstatement of miner Franklin
Jeremiah Gibson (“Gibson”) to his former position with Blue Creek at Blue Creek
No. 1 pending final hearing and disposition of the case.

The applications followed two separate Discrimination
Complaints filed by Leadmon and Gibson on June 20, 2017, that alleged, in
effect, their terminations were motivated by their protected activities. The Secretary
represents that these Complaints were not frivolously brought

and
requests an Order directing Respondent to reinstate Leadmon and Gibson to their
former positions with the same rate of pay and benefits they received prior to their
discharge.

Respondent
requested hearings regarding these applications on July 31, 2017. On July 31,
2017, an Uncontested Motion To Consolidate Docket Nos. WEVA 2017-499-D and WEVA
2017-498-D was filed by the Secretary. The Motion to Consolidate was granted by
the undersigned on August 3, 2017.

A hearing was
held in South Charleston, WV on August 8, 2017, where the Secretary and
Respondent each had the opportunity to present witnesses and documentary
evidence in support of their positions. [1]

For the reasons
set forth below, I grant the applications and order Blue Creek to temporarily
reinstate Benjamin Leadmon and Franklin Jeremiah Gibson .

I.          Discussion of Relevant Law

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

Congress
created the temporary reinstatement as “ an essential protection for complaining
miners who may not be in the financial position to suffer even a short period
of unemployment or reduced income pending the resolution of the discrimination
complaint.” Id. at 624-25.

Temporary
Reinstatement is a preliminary proceeding and narrow in scope. As such, neither
the judge nor the Commission is to resolve conflicts in testimony at this stage
of the case. Sec = y of Labor on behalf of Albu v. Chicopee
Coal Co .,
21 FMSHRC 717, 719 (July 1999). The substantial evidence standard applies. [2] Sec = y of Labor on
behalf of Peters v. Thunder Basin Coal Co. , 15 FMSHRC 2425, 2426 (Dec.
1993). A temporary reinstatement hearing is held for the purpose of determining
A whether the
evidence mustered by the miners to date established that their complaints are non-frivolous, not whether there is
sufficient evidence of discrimination to justify permanent reinstatement. @ Jim Walter
Resources, 920 F.2d 738, 744 (11th Cir. 1990).

In
adopting section 105(c), Congress indicated that a complaint is not frivolously
brought if it A appears to have merit. @ S.
Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977 , at 624-25
(1978). In addition to Congress = A appears
to have merit @ standard, the Commission and federal circuit courts have also
equated A not frivolously brought” to A reasonable
cause to believe” and A not insubstantial.” 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, 747 & n.9 (11th Cir. 1990). “Courts have recognized that establishing
‘reasonable cause to believe’ that a violation of the statute has occurred is a
‘relatively insubstantial’ burden.” Sec’y of Labor on behalf of Ward v.
Argus Energy WV, LLC , 2012 WL 4026641, *3 (Aug. 2012) citing Schaub v.
West Michigan Plumbing & Heating, Inc. , 250 F.3d 962, 969 (6th Cir.
2001).

In
order to establish a prima facie case of discrimination under section
105(c) of the Act, a complaining miner must establish (1) that he engaged in
protected activity and (2) that there was an adverse action, which was
motivated in any part by that activity. Sec = y of
Labor on behalf of Pasula v. Consolidation Coal Co. , 2
FMSHRC 2786 (Oct. 1980), rev = d on
other grounds sub nom. Consolidation Coal Co. v. Marshall ,
663 F.2d 1211 (3rd Cir. 1981); Sec = y of
Labor on behalf of Robinette v. United Castle Coal Co. , 3
FMSHRC 803 (April 1981).

In
the instant matter, the Secretary need not prove a prima facie case of
discrimination with all of the elements required at the higher evidentiary
standard needed for a decision on the merits. Rather, the same analytical
framework is followed within the “reasonable cause to believe” standard. Thus,
there must be “substantial evidence” of both the applicant = s
protected activity and a nexus between the protected activity and the alleged
discrimination. To establish the nexus, the Commission has identified these
indications of discriminatory intent: (1) hostility or animus toward the
protected activity; (2) knowledge of the protected activity; and (3)
coincidence in time between the protected activity and the adverse action. Sec = y of
Labor on behalf of Lige Williamson v. CAM Mining, LLC, 31
FMSHRC 1085, 1089 (Oct. 2009). The Commission has acknowledged that it is often
difficult to establish a A motivational nexus between protected activity and the adverse
action that is the subject of the complaint. @ Sec = y of
Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957
(Sept.1999). The Commission has further considered disparate treatment of the
miner in analyzing the nexus requirement. Secretary of Labor on behalf of
Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508, 2510 (Nov. 1981), rev = d on
other grounds , 709 F.2d 86 (D.C. Cir. 1983).

II.        The Petitions for Temporary Reinstatement

Benjamin
Leadmon

On June 6, 2017,
Leadmon executed a Summary of Discriminatory Action, which was filed with his
Discrimination Complaint. In this statement he alleged the following:

Wrongfully
terminated after making safety complaints. I would like to have my regular job
back with back pay and benefits.

Application for Temporary
Reinstatement at
Exhibit B, p. 2.

The Secretary
also submitted with the Application the July 19, 2017, Affidavit of Perry Brown,
a Special Investigator employed by the Mine Safety and Health Administration
(“MSHA”). Brown made the following findings and conclusions:

2.
As part of my official responsibilities, I investigate claims of discrimination
filed by miners pursuant to section 105(c) of the Federal Mine Safety and
Health Act of 1977 (the "Mine Act"). In this capacity I have
investigated the discrimination claim filed by Benjamin Leadmon on June 20,
2017. My investigation to date has revealed the following facts:

A.
At all relevant times, Blue Creek Mining, LLC, (the "Operator" or   "Blue
Creek") is a "person" as defined in § 3(f) of the Mine Act.

B.
The applicant, Benjamin Leadmon, was employed by the Operator to work as a roof
bolting machine operator at the Blue Creek No. 1 Underground Mine and was
therefore a "miner" within the meaning of § 3(g) of the Mine Act.

C.
Leadmon was employed at the mine for approximately 6 years until May 25, 2017.

D.
Richard "Red" Hensley was Leadmon's partner on the bolting machine
for a couple of months. Jeremy Gibson worked on the same crew as a continuous mining
machine operator. Bill Vanover was their section boss.

E.
Leadmon told me of several unsafe incidents he experienced at the mine, including
that his crew once cut into the intake airway in violation of the mine's
approved ventilation plan, allowing dust to come back over the miner operator;
that Vanover told Gibson to cut into unsupported top in violation of 30 C.F.R.
§ 75.203(d); and that the crew was expected to bolt down wind of the mining
machine in the dust more times than the ventilation plan allowed.

F.
Leadmon also told me that on one occasion, after telling Vanover his Continuous
Personal Dust Monitor was at 98% of the allowable limit, Vanover instructed him
to take it to the intake airway and sent someone else to man the bolter in his
place. Leadmon believed he would have been fired had he not done as he was
told.

G.
Leadmon told me that he, Gibson, and Hensley complained to mine management
about the above events and their safety concerns on May 23, 2017. Leadmon gave
Superintendent Mike Dotson a written list of the above events and safety
concerns that Gibson had begun recording approximately one month prior. Dotson
said he was concerned and informed Assistant General Manager Jamie Wiant of
their complaints. That same day, the three miners each met individually with
Dotson, Wiant, Safety Manager Josh Bell, Mine Foreman Nike Nichols, and
Maintenance Manager Jason Dooley. Leadmon told them each about his concerns.

H.
Leadmon told me that believes he did the right thing by informing mine management
of his safety concerns, and felt that mine management would no longer force him
to work in the dust so much. He believes, however, that he was discharged for
making these safety complaints.

3.
There is reasonable cause to find that the Complainant was discharged because he
engaged in protected activity. Leadmon engaged in protected activity when he complained
to mine management about various safety concerns at the mine. Leadmon suffered an
adverse action when he was suspended on May 23, 2017 and ultimately discharged
two days later on May 25.

4.
Based on my investigation to this date and based upon the proximity in time between
the protected activity and the adverse action and the operator's knowledge of the
protected activity, I have concluded that there is reasonable cause to believe
that Leadmon was discharged because he engaged in protected activities by
complaining about unsafe practices at the mine. I have concluded that the
complaint filed by Leadmon was not frivolous.

Application for Temporary
Reinstatement at
Exhibit A, p. 1-3. The Secretary cited this affidavit as a basis for the
formal request for temporary reinstatement. Application for Temporary
Reinstatement at 2.

Franklin
Jeremiah Gibson

On June 6, 2017,
Gibson executed a Summary of Discriminatory Action, which was filed with his
Discrimination Complaint. In this statement he alleged the following:

I was wrongfully
terminated after making safety complaints. I would like to have my regular job
back with back pay and benefits.

Application for Temporary
Reinstatement at
Exhibit B, p. 2.

The Secretary
also submitted with the Application the July 19, 2017, Affidavit of Perry Brown,
a Special Investigator employed by MSHA. Brown made the following findings and
conclusions:

2.
As part of my official responsibilities, I investigate claims of discrimination
filed by miners pursuant to section 105(c) of the Federal Mine Safety and
Health Act of 1977 (the "Mine Act"). In this capacity I have
investigated the discrimination claim filed by Franklin Jeremiah Gibson on June
20, 2017. My investigation to date has revealed the following facts:

A . A t all r elevant times , Blue Cr e ek Mining, LLC , (the " Operator "
or " Blue Creek " ) is a " person " as defined in § 3(f) of the Mine Act.

B . The applicant, Franklin Jeremiah Gibson, was
employed by the Operator to work as a continuous miner operator at
the Blue Creek No. 1 Underground Mine and
was therefore a " miner" within the meaning of § 3(g) of
the Mine Act.

C. Gibson was employed at the mine for approximately ten months until May 25 , 2017.

D. Richard " Red" Hensley
and Benjamin Leadmon worked on the same crew as Gibson for
a couple of months . Bill Vanover was their section boss.

E. Gibson told me of several unsafe incidents he experienced
at the mine, including that his crew once cut into
the intake airway in violation of the mine’s approved ventilation
plan, allowing dust to come back over the miner operator; that
Vanover told him to cut into unsupported top in violation of the 30 C.F.R.
§ 75.203(d); and that the crew was expected to bolt down wind of the mining
machine in the dust more times than the ventilation plan allowed.

F . Gibson also told me that on one occasion, he questioned Vanover’s
instruction to take deep cuts into the intake air, and
Vanover cursed at him and told him to do as he
was instructed. Gibson believed he would
have been fired had he not done as he was told.

G. Gibson told me that he, Leadmon, and Hensley complained
to Superintendent Mike Dotson about
the above events and their safety concerns on May 23, 2017 . Leadmon
gave Superintendent Mike Dotson a written
list of the above events and safety concerns that
Gibson had begun recording approximately one month prior. Dotson said
he was concerned and informed Assistant General
Manager Jamie Wiant of their complaints . That same day , the three miners each met individually with Dotson,
Wiant , Safety Manager Josh Bell , Mine
Foreman Nike Nichols, and Maintenance Manager Jason
Dooley. Gibson told them each about
his concerns.

H. Gibson told me that believes he did the right thing by informing mine
management of his safety concerns. He
belie ves, however, that he was discharged
for making these safety comp la ints.

3. There is reasonable cause to find that the Comp lainant
   was discharged because he engaged in
   protected activity. Gibson engaged in protected activity
   when he comp lained to mine management about various safety
   concerns at the mine. Gibson suffered an adverse action when he
   was suspended on May 23, 2917 and ultimately
   discharged two days later on May 25.

4. Based on my investigation to this date and based upon the proximity
   in time between the protected activity and the
   adverse action and the operator 's
   knowledge of the protected activity , I
   have concluded that there is reasonable cause to find that
   Gibson was discharged because he engaged
   in protected activities by comp l aining
   about unsafe practices at the mine . I
   hav e concluded that the comp l aint filed b y Gibson was not frivolous.

Application for Temporary
Reinstatement at
Exhibit A, p. 1-3. The Secretary cited this affidavit as a basis for the
formal request for temporary reinstatement. Application for Temporary
Reinstatement at 2.

III        Joint Stipulations [3]

1. This
   proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
   Review Commission and its designated Administrative Law Judges pursuant to
   Sections 105 and 113 of the Federal Mine Safety and Health Act of 1977 (“the
   Act”).

2. Blue
   Creek Mining, LLC (“Blue Creek”) is a wholly owned subsidiary of Blackhawk
   Mining, LLC.

3. Blue
   Creek Mining, LLC operates the Blue Creek #1 Mine in Kanawha County, West
   Virginia.

4. The
   products or operations of the Blue Creek #1 Mine enter or affect commerce,
   within the meaning and scope of Section 4 of the Act.

5. The
   Blue Creek #1 is a mine as that term is defined in 30 U.S.C. 802(h).

6. Blue
   Creek is an “operator” as defined in Section 3(d) of the Act at the Blue Creek

1 Mine.

7. Operations
   of Blue Creek at the Blue Creek #1 Mine are subject to the jurisdiction of the
   Act.

8. Blue
   Creek is a “person” within the meaning of § 105(c) and within the definition of
   § (f) of the Act. 30 U.S.C. 802(f).

9. Prior
   to May 25, 2017, Complainant Benjamin Leadmon was employed as a Roof Bolting
   Machine Operator at the Blue Creek #1 Mine, and, therefore, was a “miner”
   within the meaning of § 3(g) of the Act. 30 U.S.C. § 802(g).

10. Prior to May 25,
    2017, Complainant Franklin Jeremiah Gibson was employed as a Continuous Mining
    Machine Operator at the Blue Creek #1 Mine, and, therefore, was a “miner”
    within the meaning of § 3(g) of the Act. 30 U.S.C. § 802(g).

11. Complainant
    Gibson was employed by Blue Creek for approximately ten months until May 25,
    2017.

12. On May 25, 2017,
    Blue Creek terminated the employment of Complainants Leadmon and Gibson.

13. Between May 23
    and 25, 2017, Richard Hensley was employed by Blue Creek as a Roof Bolt Machine
    Operator in the Blue Creek #1 Mine.

14. Between May 23
    and 25, 2017, Jamie Wiant was employed by Blue Creek as the Operations Manager.

15. Between May 23
    and 25, 2017, Josh Bell was employed by Blue Creek as the Safety Manager.

16. Between May 23
    and 25, 2017, Charles Childers was employed by Blue Creek as the General
    Manager.

17. Between May 23
    and 25, 2017, Jason Dooley was employed by Blue Creek as the Maintenance
    Manager.

18. Between May 23
    and 25, 2017, Bill Simon was employed by Blue Creek as the Evening Shift Mine
    Foreman.

19. Between May 23
    and 25, 2017, Mike Dotson was employed by Blue Creek as the Superintendent of
    the Blue Creek #1 Mine.

20. Between May 23
    and 25, 2017, Mike Nichols was employed by Blue Creek as the Mine Foreman at
    the Blue Creek #1 Mine.

21. Prior to his
    discharge on May 23, 2017, Bill Vanover was employed by Blue Creek as the
    Section Boss on the #4 Mains Section of the Blue Creek #1 Mine.

22. On May 23, 2017,
    Blue Creek terminated the employment of Mr. Vanover.

IV.       Summary of Testimony

Franklin
Jeremiah Gibson was a continuous miner operator at Blue Creek Number 1 Underground
Mine. (Tr. 28-29). Blue Creek Mining, LLC, a subsidiary of Blackhawk Mining, LLC,
operates Blue Creek Number 1. (J.S. 2,3). Gibson worked at Blue Creek for
approximately 10 months. [4] (Tr.
28-29).

At
Blue Creek, Gibson worked as a continuous miner first at the eight section,
then the four main section. (Tr. 34). At the four main section, he worked
dayshift at the time of his discharge. (Tr. 34).

Gibson
never had any disciplinary action taken against him at previous mining jobs until
he worked at Blue Creek Number 1. (Tr. 32). At Blue Creek Number 1, Gibson was
suspended for leaving a dust pump hanging underground. (Tr. 32-33). He was
suspended for five days. (Tr. 33-34).  

Benjamin
Leadmon was a roof bolt operator at Blue Creek Number 1 Mine. (Tr. 97). He
worked at Blue Creek Number 1 for 17 months while Black Hawk owned it and five
years before that when Patriot owned the mine. [5] (Tr.
97). Leadmon and Richard (“Red”) Hensley were roof bolters for the four main
section. (Tr. 37, 102).

Leadmon
has had only one previous disciplinary action at Blue Creek of a written
warning for five excused absences approximately 18 months ago. (Tr. 99).

Gibson
and Leadmon’s direct supervisor at the four main section was Bill Vanover, the
section foreman. (Tr. 34, 85, 100). Gibson testified that Vanover was his
supervisor for only three or four weeks. (Tr. 35). Gibson testified that
Vanover was the worst boss he ever had because Vanover would order Gibson to
work in unsafe, illegal conditions. (Tr. 35). Leadmon also testified that Vanover
made miners take illegal actions because Vanover only cared about “the
numbers.” (Tr. 101).

On
May 4, 2017, Gibson testified that his crew was cutting the four right section,
where “the scrubber” was down. (Tr. 35). Gibson told Vanover that the airflow
needed to be switched around because it was moving in the wrong direction. (Tr.
35). Vanover ultimately said that nothing could be done about the unsafe air
intake situation as the crew was too far behind in production. (Tr. 36). When
the evening shift foreman Bill Simon arrived, Gibson testified that he told
Simon that they needed to “flop the air.” (Tr. 36). Simon just looked at Gibson
and walked away “through the flop air” to speak with Vanover. (Tr. 36). Vanover
and Simon spoke, and Vanover said again that the crew was too far behind to
“shut it down and flop the air.” (Tr. 36).

On
May 11, 2017, Gibson testified that he was supposed to cut the number four
heading at the start time. (Tr. 36). The roof bolter was in three right, so
Gibson was sitting, after completing his “dust printers and everything.” (Tr.
36). Vanover came to Gibson and told him to begin “loading” because the bolting
was almost finished in the three right section. [6] (Tr.
36). Gibson replied that he would not start “loading” until the bolting was
finished. (Tr. 36). Vanover told Gibson to “go ahead,” and Gibson again said
no. (Tr. 36). Vanover then went to check how much bolting was left, and after
he returned, said that the bolters were backing out, so Gibson should start
loading. (Tr. 37). Gibson then went about 15 feet on one side cut before the
bolter Richard Hensley came over and said the area in front of Gibson was not
bolted. (Tr. 37). Gibson then backed up and told Vanover that he was not going
to cut into the unsupported area. (Tr. 37). Vanover then replied “You F-ing cut
into it now.” (Tr. 37). Benjamin Leadmon was standing with Hensley at that
time, so Gibson looked over at them and cut into the area Vanover requested. (Tr.
37).

Leadmon
also testified, in reference to the May 11, 2017, incident, that Vanover had Leadmon
and Hensley stop bolting the four right section and back out so that Gibson
could cut into the unsupported top. (Tr. 102). Leadmon testified that he
objected to this request but Vanover said “you will do it” and “made [Leadmon
and Hensley] back out.” (Tr. 102).

On
another occasion in May, Gibson testified that the continuous miner had “nine
inserts crack that would not hold bits… [f]our bits stuck and one lug tore off.”
(Tr. 37-38). Gibson testified that more than one insert or lug cannot be missing
for more than 24 hours. (Tr. 37). Gibson testified that he repeatedly asked
Vanover to fix the cracks, and Vanover told Gibson “no, you’ll run it” and that
“[h]oot owl will fix it.” [7]
(Tr. 38). Gibson also asked the evening shift electrician to fix the cracks,
and was told again that “hoot owl” will fix it. (Tr. 38). Then Gibson asked
Hensley to request that Vanover fix the issue because Gibson was tired of
asking Vanover to shut down the continuous miner machine. (Tr. 38). Again,
Gibson was told to keep running the machine and that “hoot owl” would fix it. (Tr.
38).

These
three occasions of cutting into an unsupported top, cutting into the intake
air, and running the miner with an improper amount of lugs and bits are the
unsafe incidents Gibson remembered at hearing. (Tr. 38). Gibson testified that
he first said no to Vanover when ordered to complete these unsafe actions, but
completed them anyway because he was afraid he would have been fired if he had
not followed orders. [8] (Tr.
39).

Leadmon
testified that Jamie Wiant, the operations manager, Tony Sparks, the safety director,
and Mike Dotson, the superintendent, said on multiple occasions to follow
supervisors’ orders, implying that disciplinary action would be taken if you did
not follow work orders. (Tr. 102-03).

Gibson
testified that he began taking notes of these unsafe incidents because he heard
from many miners, including Ernie Butcher, the fill-in boss and Darryl Messer,
a continuous miner operator, after returning from his first suspension that
Wiant was trying to fire Gibson. (Tr. 39-40). Gibson copied his notes
summarizing the unsafe work orders he was given, which were admitted as
Government Exhibit 1. [9]
(Tr. 41). Gibson said the notes summarize that on May 11, 2017, Vanover ordered
Gibson to cut into an unsupported top. (Tr. 41). Also, the notes documented that
Gibson was ordered to cut into the intake air on May 4, 2017, which Gibson
believes resulted in his lungs hurting and his bronchitis diagnosis. [10]
(Tr. 41). On May 5-6, 2017, Gibson was not at work but recorded in his notes
that Vanover again asked another miner, Josh, a “buggy man,” who filled in for
Gibson, to cut into the air intake. (Tr. 41).

Leadmon
testified that Vanover would also have the roof bolters bolt more than one cut
each shift in the dust, which is illegal. (Tr. 101).

Leadmon
further testified that Vanover told Leadmon to take a personal dust monitor, (“PDM”),
to the air intake. (Tr. 84, 101). Leadmon testified that he told Vanover his PDM
monitor was at 98%. (Tr. 104). Vanover then told Leadmon to take his PDM over
to the air intake. (Tr. 104). Leadmon testified that he did not know it was
illegal, but he knew that Vanover instructed him to take the PDM to the air intake
for a fresh air sample. (Tr. 104).

Wiant
testified at hearing that he first became aware of safety infractions from Levi
Stevens (“Cody”), a scoop operator, who gave his two weeks’ notice on May 22,
2017. (Tr. 68-69). Gibson also testified that he heard from Levi Stevens that
Stevens was going to inform management of the unsafe working conditions in the
four main section. (Tr. 55). Stevens told Dotson about miners making deep cuts
and cutting into unsupported top. (Tr. 69). Wiant testified that taking a deep
cut in a crosscut that is not bolted puts miners at risk for a cave-in from the
roof or ribs. (Tr. 74). Wiant testified that Dotson went underground on May 22,
2017, but did not observe any safety infractions. (Tr. 71). That evening Dotson
called Wiant to inform him of the situation, and Wiant told Dotson he would be
in the office the next day. (Tr. 71).

On
May 23, 2017, Gibson made a copy of his notes with safety complaints and gave it
to Leadmon, because they were going to bring the notes to Mike Dotson, the superintendent.
(Tr. 42). Gibson testified that Leadmon brought the notes to Dotson, who took
the notes and went back into his office. [11] (Tr.
42). It did not appear to Gibson that anything was “going on,” so he went with
Leadmon and Hensley to speak with Dotson about the unsafe working conditions. (Tr.
43). Leadmon testified that he, Hensley, and Gibson went to give Gibson’s note
to Dotson on May 23, 2017, because they listed the most serious infractions
that they believed could hurt or kill someone. (Tr. 108-09). Dotson told them
that he was sorry any of these things happened and that they should not have
been asked to do the unsafe work. (Tr. 43). Dotson told them that he would
“take care of it.” (Tr. 43).

After,
there was a safety meeting that morning on May 23, 2017. (Tr. 43). Following the
meeting, the four main section was asked to remain. (Tr. 43). Each person was
taken into the office and questioned about any safety concerns in the four main
section. (Tr. 43). Wiant testified that nine individuals were questioned from
the four main section. (Tr. 81). When Gibson was called into the office, he
told management that his boss had him cut into unsupported top and into intake
air that wasn’t “flopped.” (Tr. 44). Gibson testified that management said they
appreciated him telling the truth and that “the truth will set you free.” (Tr.
44). Gibson left the meeting with a feeling that management really listened and
was going to do the right thing. (Tr. 44). Gibson believed the right thing was
to give section four a different supervisor because he believed Vanover, the
current supervisor, was going to “get someone killed.” [12]
(Tr. 44-45).

Leadmon
also testified that he told mine management about the unsafe work orders on May
23, 2017, during his individual meeting. (Tr. 107-08). Leadmon testified that
he did not say anything earlier because he was afraid he would be terminated.
(Tr. 108). When Leadmon met with management individually, he told Dotson about
the deep cut, and cutting into the unsupported top, as well as taking a PDM to
the air intake for a sample while roof bolting. (Tr. 110). Leadmon told Dotson
about the PDM sample because he thought someone was bolting when that occurred,
not because he thought it was illegal. (Tr. 110).

Wiant
testified that Ron Bennett, in the four main section made a safety related work
refusal to haul any of the cuts because a shuttle car was supposed to do that
work. (Tr. 87-88). Wiant testified that Bennett was not disciplined by Vanover
or anyone else in management (Tr. 87). Wiant also testified that all of the
other miners from the four main section raised the same safety infractions as
Leadmon and Gibson during these individual meetings. (Tr. 87-88). Wiant
testified that these other miners were not disciplined. (Tr. 88).  

After
the individual meetings for the four main section on May 23, 2017, Gibson was
told to wait with the other miners and not to talk to anybody. (Tr. 45). He
stood outside until approximately 12:30 p.m. when he was called into the office.
(Tr. 45). Wiant, the operations manager, Dotson, the superintendent, Mike Nichols,
the dayshift mine foreman, Bell, the safety director, and Dooley, the chief
electrician were in the meeting. (Tr. 114-15). At this meeting, management told
Gibson he was suspended. (Tr. 46). Gibson testified he was told he could sign a
document stating that he cut into the air intake and unsupported top, then leave
work. (Tr. 46).  Gibson said at this second individual meeting that Vanover made
him do this unsafe work. (Tr. 46). Management asked if Vanover held a gun to
Gibson’s head, to which Gibson replied no. (Tr. 46). Management said Gibson had
the keys to the continuous miner machine and did not have to do that work, and
it was Gibson’s fault. (Tr. 46). However, Wiant testified that Gibson said he
questioned Vanover’s work orders when told to cut into the unsupported top and
air intake. (Tr. 91). Gibson then signed this document and left. (Tr. 46). Gibson
believed that management would fire Vanover and bring Gibson back to work in
two or three days. (Tr. 46-47).

At
approximately 1 p.m. on May 23, 2017, Leadmon was called into the office, where
management told Leadmon that he would be suspended for five days for falsifying
a PDM sample. (Tr. 115). Leadmon felt he was not in the wrong because he was
following a direct order, and he did not know it was illegal at the time. (Tr.
115-16). Leadmon signed a written warning for falsifying a PDM sample and then
Leadmon left. (Tr. 116). On Friday, May 25, 2017, two days after the
suspension, Wiant, Samantha Owens, from human resources, and Chuck Childers,
the mine operator called Leadmon on the phone. (Tr. 47, 116). Owens told Leadmon
he was fired for falsifying a PDM sample. (Tr. 47, 116)

On
May 25, 2017, Gibson testified that he also received a phone call from Samantha
Owens, who said Chuck Childers, and Jamie Wiant, were on the phone call too.
(Tr. 47). During this phone call, Owens told Gibson that he was
terminated. (Tr. 47-48).

Owens
called Gibson back approximately one hour later and asked if Gibson had
anything to turn in. (Tr. 48). At that time, Gibson asked why he was being
terminated. (Tr. 48). Owens said it was because Gibson willingly, knowingly cut
into the air intake and unsupported top. (Tr. 48).

Wiant
testified that Gibson was discharged on May 25, 2017, for putting the safety of
other miners at risk by cutting into an unsupported top, taking deep cuts, and
prior incidents. (Tr. 66). Gibson’s Termination Form indicates involuntary
termination, which Wiant testified was for safety infractions May 4-22, 2017. (Tr.
67; RX-1). Wiant further testified that Leadmon was terminated that same day
for falsify a PDM sample and not notifying management. (Tr. 130).

Wiant
testified that Vanover was also terminated for not making sure the miners under
his supervision were following safety requirements and for not bringing “accusations”
to upper management. (Tr. 85-86).

V.        Contentions of the Parties

Gibson
and Leadmon argue that they have met their burden of establishing that their
complaints are non-frivolous, and as a result they should be temporarily
reinstated. Gibson highlighted his protected activities of making safety
complaints and providing a copy of his notes with safety complaints on May 23,
2017, to management as well as making safety complaints to Vanover when he was
given unsafe work orders. Gibson argues that his suspension on May 23, 2017,
and termination on May 25, 2017, are adverse actions under the Act for which Respondent
is liable. Further, Gibson argues that there was knowledge and a coincidence in
time between the protected activities and the adverse actions.

Leadmon
also argued that he made safety complaints by bringing Gibson’s notes with
safety complaints to management and that Leadmon verbally made safety
complaints to management in multiple meetings on May 23, 2017. Leadmon argues
that his suspension and termination were adverse actions under the act. Further,
Leadmon argues that there was knowledge and a coincidence in time between the
protected activities and adverse actions.

Respondent
argues that both Gibson and Leadmon did not make protected work refusals, and
that the safety complaints made were in response to disciplinary proceedings. Respondent
argues that Gibson and Leadmon were terminated for violating safety
regulations.

VI.       Findings and Conclusions

The
scope of this proceeding is narrow. Credibility determinations are not made;
conflicts in testimony are not resolved. It is well recognized by the Courts
that the Secretary’s burden is “relatively insubstantial.” For example, beyond
the scope of the hearing is testimony and/or documentary evidence that the
adverse action was justified by unprotected activity alone or was also
motivated by unprotected activity or other non-discriminatory grounds. For the
reasons set forth below, I find that the record presents a reasonable cause to
believe the instant Discrimination Complaints were not frivolously brought.

Gibson
and Leadmon’s discrimination complaints and the adverse actions taken against
them coincide factually. Thus, this Court will address Gibson’s and Leadmon’s
claims together.

A.        Gibson and
Leadmon Engaged in Protected Activity

The record
contains several actions that constituted protected activity. First, Gibson
testified that on May 4, 2017, he told his supervisor, Vanover, when they were
cutting with the continuous miner machine, that the airflow needed to be “flopped”
for safety. (Tr. 35-36). Vanover refused to “flop” the airflow because
production was running behind. (Tr. 35-36). Next, on May 11, 2017, Gibson told Vanover
that Gibson did not want to use the continuous miner machine in the number four
heading because it was unsafe due to the area not being properly bolted. (Tr.
36-37). Then, on May 23, 2017, Gibson engaged in protected activity when he copied
his notes listing unsafe work orders given by Vanover and gave them to Leadmon,
who brought the notes to Dotson, the superintendent. (Tr. 42). Gibson further
engaged in protected activity by making safety complaints to Dotson and the
other members of management, Wiant, the operations manager, Nichols, the
dayshift mine foreman, and Bell, the safety director, in the two meetings that
occurred on May 23, 2017 concerning the four main section, such as cutting into
the air intake and cutting into an unsupported roof with the continuous miner
machine. (Tr. 43-46).

Leadmon engaged
in the same protected activity on May 23, 2017. (Tr. 107-10) Leadmon took the
note with safety complaints that was copied by Gibson and brought them to
Dotson. (Tr. 107-08) This alone is protected activity. Then, in the following
meeting Leadmon had with Gibson, Hensley, and Dotson, the three miners made
safety complaints involving Vanover. (Tr. 108-09). These safety complaints
included cutting into the air intake and cutting into an unsupported top that was
not roof bolted. (Tr. 109-10). Leadmon also complained in his individual
meeting with management, Wiant, Nichols, Dotson, and Bell that Leadmon was
given a work order to take his PDM, which was supposed to remain with him while
roof bolting, to the air intake for a sample. (Tr. 110).

There was some
dispute by Respondent as to the motivation for the safety complaints made by
Gibson and Leadmon. (Tr. 76-77). Respondent argues that the safety complaints
were made in response to disciplinary proceedings. (Tr. 76-77). However, this
Court cannot resolve conflicts in testimony in the context of a Temporary
Reinstatement. Sec = y of Labor on behalf of Albu v. Chicopee
Coal Co .,
21 FMSHRC 717, 719 (July 1999). Therefore, this Court finds Gibson and Leadmon
presented substantial evidence that they engaged in protected activity.

B.        Gibson
and Leadmon Suffered Adverse Employment Actions

There is clear
adverse employment action for both Gibson and Leadmon who were suspended on May
23, 2017, after their individual meetings with management. (Tr. 45-46, 115). Gibson
and Leadmon were also discharged over the phone on May 25, 2017, by Owens,
Wiant, and Childers. (Tr. 47-48, 116). These adverse actions are not in dispute
by either party. (Tr. 47-48, 83, 116, 134; RX-1, 3).

C.        A Nexus Existed Between the
Protected Activity and the Adverse Employment Action

The
Commission recognizes that direct proof of discriminatory intent is often not
available and that the nexus between protected activity and the alleged
discrimination must often be drawn by inference from circumstantial evidence
rather than from direct evidence. Phelps Dodge Corp. , 3 FMSHRC at 2510. The
Commission has identified several circumstantial indicia of discriminatory
intent, including: (1) hostility or animus toward the protected activity; (2)
knowledge of the protected activity; (3) coincidence in time between the
protected activity and the adverse action; and (4) disparate treatment of the
complainant. See , e.g. , CAM Mining, LLC, 31 FMSHRC at
1089; see also , Phelps Dodge Corp. , 3 FMSHRC at 2510.

1.         Knowledge
of the protected activity

According to the
Commission, “the Secretary need not prove that the operator has knowledge of
the complainant’s activity in a temporary reinstatement proceeding, only that
there is a non-frivolous issue as to knowledge.” CAM Mining, LLC, 31
FMSHRC at 1090, citing Chicopee Coal Co. , 21 FMSHRC at 719. In
fact, evidence is sufficient to support a finding of knowledge if an operator
erroneously suspects a miner made safety complaints, even if no complaint was
made. See Moses v. Whitley , 4 FMSHRC at 1478.

Gibson testified
that he repeatedly told Vanover, the section foreman, that Gibson did not want
to engage in unsafe work orders—cutting into the air intake and an unsupported
top—which he ultimately admitted to completing for fear of termination. See (Tr.
39). Leadmon also testified that he told Vanover that he did not want to back
out of the four right section when it was not sufficiently roof bolted for the
continuous miner machine to run. (Tr. 102).

Gibson and
Leadmon further testified that Gibson wrote up safety complaints, which he
copied on May 23, 2017, and Leadmon brought the notes to Superintendent Dotson.
(Tr. 42, 108-09). Additionally, Gibson and Leadmon testified that they went
with Hensley on May 23, 2017, into Dotson’s office to make safety complaints concerning
work orders from Vanover to cut into the air intake and an unsupported top.
(Tr. 43, 108-09). As Leadmon and Gibson were both part of the conversation on
May 23, 2017, where they made safety complaints to Dotson, this shows
sufficient evidence that Dotson, the superintendent, knew of their safety
complaints. (Tr. 43, 108-09).

Wiant admitted
that Dotson told him prior to Leadmon and Gibson being suspended that “an issue”
was brought forward. (Tr. 81). Dotson told Wiant this right after Wiant saw
Leadmon, Gibson, and Hensley meet with Dotson. (Tr. 81).

Nonetheless, a
credibility determination cannot be made at this time, and the allegations by
Gibson and Leadmon that they spoke with Vanover, the section foreman, and Dotson,
the superintendent, about their safety complaints is sufficient to demonstrate
knowledge by Respondent.

2.         Coincidence
in time between the protected activity and adverse action

The Commission
has accepted substantial gaps between the last protected activity and the
adverse employment action. See e.g. CAM Mining, LLC, 31 FMSHRC at 1090
(three weeks) and Sec = y of Labor on behalf of Hyles v. All
American Asphalt ,
21 FMSHRC 34 (Jan. 1999) (a 16-month gap existed between the miners = contact with
MSHA and the operator = s failure to
recall miners from a lay-off; however, only one month separated MSHA = s issuance of a
penalty resulting from the miners = notification of a violation and that
recall failure). The Commission has stated “We ‘appl[y] no hard and fast
criteria in determining coincidence in time between protected activity and
subsequent adverse action when assessing an illegal motive. Surrounding factors
and circumstances may influence the effect to be given to such coincidence in
time.’” All American Asphalt , 21 FMSHRC 34 at 47 (quoting Hicks v.
Cobra Mining, Inc. , 13 FMSHRC 523, 531 (Apr. 1991).

In
the instant cases, there was an extremely close proximity in time between the
protected activities and adverse actions. Gibson and Leadmon both brought
safety complaints to management on May 23, 2017, engaging in protected activity.
(Tr. 42-43, 108-09). The same day, on May 23, 2017, Gibson and Leadmon were
suspended. (Tr. 45-46, 115). Two days later, on May 25, 2017, Gibson and
Leadmon were discharged. (Tr. 46-47, 116). As a result, I find that the time
span between the protected activities and adverse actions is sufficient to
establish a nexus.

3.         Hostility
or animus toward the protected activity

The Commission has held,
“[h]ostility towards protected activity—sometimes referred to as ‘animus'—is
another circumstantial factor pointing to discriminatory motivation. The more
such animus is specifically directed towards the alleged discriminatee's protected
activity, the more probative weight it carries.” Secretary of Labor on
behalf of Chacon v. Phelps Dodge Corporation , 3 FMSHRC 2508, 2511 (Nov.
1981) (citations omitted).

Gibson experienced multiple
occasions of hostility to the safety complaints he made to Vanover, the section
foreman, and Dotson, the superintendent. (Tr. 36-37). When Gibson asked Vanover
to switch the airflow while the continuous miner machine was cutting in to the
air intake on May 4, 2017, Vanover and Smith, an evening shift foreman, just
ignored Gibson’s complaints and told Gibson to keep working in the dangerous
condition. (Tr. 36). Moreover, on May 11, 2017, Gibson testified that Vanover cursed
at him, yelling that Gibson needed to “F-ing cut into it now” when Gibson
objected to cutting into an unsupported roof. (Tr. 37). Gibson also was suspended
on May 23, 2017, after written and verbal safety complaints were presented to
management. (Tr. 42-43).

Leadmon also experienced
hostility when he told Vanover that he did not want to back out of the number
four right section without completing bolting for the continuous miner. (Tr.
101). Vanover told Leadmon “you will do it” and “made [the roof bolters] back
out.” (Tr. 102). Additionally, Leadmon was suspended on May 23, 2017, after he
brought Gibson’s list of safety complaints to Dotson and made verbal safety
complaints to management. (Tr. 108-09, 115).

As a result, Gibson and
Leadmon both received hostility, which was directed towards their safety
complaints when Vanover ignored their safety complaints and continued to demand
they complete unsafe work orders. (Tr. 36-37). Moreover, the fact that they
were suspended the same day that they made safety complaints to management
demonstrates animus. (Tr. 45-46, 115).

4.         Disparate
treatment

“Typical forms of disparate treatment
are encountered where employees guilty of the same, or more serious, offenses
than the alleged discriminatee escape the disciplinary fate which befalls the
latter.” Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp. , 3
FMSHRC 2508, 2512 (Nov. 1981). The Commission has previously held that evidence
of disparate treatment is not
necessary to prove a prima facie claim of discrimination when the other
indicia of discriminatory intent are present. Id . at 2510-2513.

There was some testimony brought forward
by Respondent indicating that Ron Bennett and the other miners working in the
four main section made safety complaints without being terminated. (Tr. 87-88).
Evidence was not brought forth by the Secretary to indicate whether there was
disparate treatment in the instant matter. However, this factor is not
necessary for a prima facie claim of discrimination and does not
outweigh the other factors indicating a nexus between protected activity and
adverse action.

D.        Defenses

Respondent
argued at hearing that Leadmon and Gibson’s safety complaints were only made in
response to disciplinary action taken by Respondent. (Tr. 76). This defense
requires a credibility determination, and is therefore outside of the scope of
these temporary reinstatement cases. Further, Respondent argues that
Complainants were terminated for taking unsafe actions in the mine. (Tr. 66,
130). Specifically, Respondent contends that Gibson was terminated for cutting
into the air intake and an unsupported roof, while Leadmon was terminated for
falsifying a PDM sample. (Tr. 66-67, 130; RX-1, 3). These defenses are not
appropriate for a temporary reinstatement proceeding as they do not challenge
the Secretary’s burden of bringing a claim that is not frivolous. These
defenses do not challenge that there is reasonable cause to believe by
substantial evidence that a violation of section 105(c) has occurred.

VII.     Conclusion

In
concluding that Gibson’s and Leadmon’s complaints were not frivolously brought,
I find that there is reason to believe Gibson and Leadmon engaged in protected
activities and that there was a nexus between the protected activities and
their terminations.

ORDER

For
the reasons set forth above, it is ORDERED that Complainant Benjamin
Leadmon be immediately reinstated by Respondent to his former position, or the
equivalent, at the same rate of pay, hours worked, and with all other benefits
he was receiving at the time of his discharge, effective the date of this
decision.

Further,
it is ORDERED that Complainant Franklin Jeremiah Gibson be immediately
reinstated by Respondent to his former position, or the equivalent, at the same
rate of pay, hours worked, and with all other benefits he was receiving at the
time of his discharge, effective the date of this decision.

The court
retains jurisdiction over these temporary reinstatement proceedings. 29 C.F.R.
§ 2700.45(e)(4). The Secretary shall complete the investigation of the
underlying discrimination complaints as soon as possible . Immediately
upon completion of the investigations, the Secretary shall notify counsel for
Respondent and this court, in writing, whether violations of Section 105(c) of
the Mine Act have occurred. Id .

/s/
William S. Steele

William
S. Steele

Administrative
Law Judge

Distribution
(Via E-mail and Certified Mail):

Kathleen
F. Borschow, Esq., Office of the Solicitor, U.S. Department of Labor, 201 12 th
Street South, Suite 401, Arlington, VA 22202-5450; [email protected]

Todd
C. Myers, Esq., Associate General Counsel, Blackhawk Mining, LLC, 3228 Summit
Square Place, Suite 180, Lexington, KY 40509; [email protected]

Melanie
J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151
Beaumont Centre Circle, Suite 375, Lexington, KY 40513; [email protected]

Benjamin
Leadmon, 93 Fullmoon Drive, Charleston, WV 25306

Franklin
Jeremiah Gibson, 4622 Foster Ridge Road, Given, WV 25245

[1] Under
Commission Rule 45, a Temporary Reinstatement hearing must be held within 10
calendar days of an operator’s request. 29 C.F.R. §2700.45(c).

[2] A Substantial evidence @ means A such relevant evidence as a
reliable mind might accept as adequate to support [the judge = s] conclusion. @ Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated
Edison Co. V. NLRB , 305 U.S. 197, 229 (1938)).

[3]
The Joint
Stipulations were entered at hearing and admitted into the record as Joint
Exhibit 1. (Tr. 11-12). Each Joint Stipulation will hereinafter be cited to as
J.S. followed by its number.

[4] Gibson has
worked as a miner for nine and a half years for several mining companies
including Murray Energy, Speed, Yellow Bush, and Campbell’s Creek Number 7.
(Tr. 30-32).

[5] Leadmon worked
at Mammoth Coal for Massey for two years as a roof bolter and supply loader
before working at Patriot. (Tr. 98).

[6] It appears that
“loading” refers to cutting into the coal with the continuous miner machine. See
(Tr. 37).

[7] It is not clear
to this Court from the testimony who or what “hoot owl” was, although the term
has colloquially been known to refer to the night shift.

[8] Vanover never
specifically told Gibson he would be fired for not cutting into the unsupported
top or intake air. (Tr. 52-53). However, it was Vanover’s insistence that
Gibson complete unsafe work orders, which led Gibson to believe his job was at
risk. (Tr. 37-39).

[9] Government
Exhibits will hereinafter be cited to as GX followed by its number, Joint
Exhibits will be cited to as JX followed by its number and Respondents Exhibits
will be cited to as RX followed by its number.

[10] Gibson
testified that he was out of work on May 5-6, 2017, because he had to go to the
doctor for lung pain that resulted from cutting into the air intake, “half
through the sand rock.” (Tr. 41). He had bronchitis and “something else” that
he was certain resulted from breathing in dust during the aforementioned
incident. (Tr. 41).

[11]          Wiant testified
at hearing for Respondent. Wiant is currently employed at Blue Creek as the
operations manager and was operations manager on May 22-25, 2017. (Tr. 63). As
operations manager, he oversees the safety, compliance, health, and production
in three underground deep mines, including Blue Creek Number 1. (Tr. 63). His
duties include disciplining and terminating miners. (Tr. 64). He has worked at
Blue Creek for approximately one year. (Tr. 64). He was an Equipment Operator
from 2000 to 2003, which included working with a continuous miner machine. (Tr.
64). Since 2003 Wiant has worked in management. (Tr. 65). Wiant received his
foreman’s papers in 2003 and his mine foreman’s card in 2005. (Tr. 65). He became
a mine foreman at that time. (Tr. 65). In 2007, Wiant became a mine superintendent
until 2012. (Tr. 65). In 2012, Wiant worked for Patriot. (Tr. 65). Prior to
working for Patriot, he worked for Massey and Alton. (Tr. 65). He has a miner’s
red card, foreman card, EMT card, shop foreman’s card, and underground
instructor card.” (Tr. 65).

Wiant
testified as to the events on May 23, 2017. (Tr. 71-72). As this testimony
conflicts with that of Leadmon and Gibson, it is noted only for the record, as
credibility determinations will not be made concerning these Temporary
Reinstatement proceedings. Wiant testified that on May 23, 2017, Dotson was in
his office and saw Leadmon, who Dotson asked to come into the office and speak
with him. (Tr. 71). Dotson first questioned Leadmon and no safety accusations
arose. (Tr. 72). However, during a second questioning, where Dotson again
approached Leadmon, Leadmon stated the same infractions as Levi Stevens for
deep cuts, cutting into the unsupported top, intake air, and also falsifying a PDM
dust sample by taking it down the air intake. (Tr. 72).

[12] Two months
prior to this meeting Vanover was removed from his position as a boss and
Gibson testified that Wiant said Vanover “would never boss again at this mine
as long as I’m here.” (Tr. 45).