Secretary of Labor obo Roger Cook v. Rockwell Mining, LLC

Plain-English summary

Roger Cook, a fire boss at Rockwell Mining's Eagle #3 Mine, locked and tagged out a pump cable after finding that its ground-monitor protection had been bypassed. He then discussed the condition with an MSHA inspector in front of mine management. Rockwell suspended Cook the next day and terminated him four days later. Judge Priscilla M. Rae found that the protected safety action, management knowledge, and close timing supported a nonfrivolous discrimination complaint without resolving the company's disputed misconduct defense. She ordered Cook immediately reinstated as a fire boss or to an equivalent position with restored pay, hours, and benefits, and the Commission later affirmed.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)
• Outcome: Roger Cook was ordered immediately temporarily reinstated with his former compensation and benefits.
• Subsequent review: The Commission affirmed the order in weva-2021-0203-commission.
• Key point: Cooperation with an MSHA inspection followed almost immediately by suspension and termination supported interim reinstatement.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE
LAW JUDGES

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

WASHINGTON, DC
20004-1710

TELEPHONE: 202-434-9956
/ FAX: 202-434-9949

SECRETARY
OF LABOR,

U.S.
DEPARTMENT OF LABOR

on
behalf of ROGER COOK,

Complainant,

v.

ROCKWELL
MINING, LLC,

Respondent.

TEMPORARY
REINSTATEMENT

Docket No. WEVA 2021-0203

MSHA Case No. HOPE CD
2021-02

Mine:
Eagle #3 Mine

Mine ID: 46-09427

DECISION AND ORDER
OF REINSTATEMENT

Appearances:              LaShanta
Harris, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington,
Virginia, for the Petitioner

Christopher
D. Pence, Esq. and James P. McHugh, Esq., Hardy Pence, PLLC, Charleston, West
Virginia, for the Respondent

Before:                        Judge
Rae

I.                
INTRODUCTION

A.     Statement of the
Case

This matter is before me upon an
application for temporary reinstatement brought by the Secretary of Labor
(“Secretary”), on behalf of Roger Cook, under section 105(c) of the Federal
Mine Safety and Health Act of 1977, against Rockwell Mining, LLC (“Respondent”).
30 U.S.C. § 815(c); 29 C.F.R. § 700.45. The application seeks reinstatement of Cook
as a fire boss at Respondent’s Eagle #3 Mine pending final disposition of Cook’s
discrimination complaint. Ex. S-1. [1]
Cook filed a discrimination complaint on February 1, 2021, after the Respondent
suspended and terminated him in January 2021. Jt. Ex. 1.

A hearing was held via Zoom for Government
videoconference on March 29, 2021. The Secretary gave a closing argument during
the hearing, and the Respondent filed a post-hearing brief. Tr. at 138. For the
reasons set forth below, I grant the application for temporary reinstatement and
retain jurisdiction until final disposition of the complaint on the merits.

B.     Joint Stipulations

The parties have submitted
the following stipulations:

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”). Accordingly,
   presiding Administrative Law Judge Priscilla Rae has the authority to hear this
   case and issue a decision regarding this matter.

2. Respondent is a Limited
   Liability Corporation and a “person” within the meaning of section 105(c) and
   within the definition of section 3(f) of the Act. 30 U.S.C. § 802(f).

3. Respondent is the operator
   of the Eagle #3 Mine, MSHA Mine ID #46-09427, located in Wyoming County, West
   Virginia.

4. The products or operations
   of the Eagle #3 Mine enter or affect commerce, within the meaning and scope of
   section 4 of the Act.

5. The Eagle #3 Mine is a
   “mine” as defined by the Act. 30 U.S.C. § 802(h).

6. Respondent is engaged in
   the operation of a coal mine. It is, therefore, an “operator” as defined in
   section 3(d) of the Act. 30 U.S.C. § 802(d).

7. On January 25, 2021,
   Complainant was terminated by Respondent.

Jt.
Ex. 1.

II.             
STATEMENT
OF FACTS

Roger Cook has worked in the mining
industry since 1991 and has been employed by Respondent—or Respondent’s parent
company, Blackhawk Mining—since approximately April 2016. Tr. at 18–19. At the
time Respondent suspended and terminated Cook, Cook was serving as a fire boss
at Respondent’s Eagle #3 Mine. Tr. at 17; Jt. Ex. 1. As a fire boss, Cook was
generally responsible for identifying and recording unsafe conditions, and Cook
was also responsible for examining the mine’s airways. Tr. at 17, 19.

Prior to Cook’s suspension and
termination in January 2021, Cook informed management of several safety-related
incidents. In August 2020, Cook filed an accident report alleging that he
suffered respiratory problems resulting from spraying gunite on stoppings
without a mask. Tr. 26–28. Additionally, between December 2020 and January
2021, Cook voiced concerns about: instructions to build new stoppings to route
air around a roof fall; a flat car being pushed with one motor; and an
overloaded mantrip. Tr. at 30–31, 44–47. Cook also told management in January
2021 about a non-functioning panic bar on a scoop. [2]
Tr. at 56–58, 60–61.

On January 20, 2021, Cook was
involved in an incident concerning a “jumpered” ground monitor on a “cathead”
cable plug for a return pump. Tr. at 19–20, 76. Cook testified that this
condition created a shock hazard, and that he locked and tagged out the piece
of equipment to prevent injury. Tr. at 20–22; Ex. S-2. Cook then left the area
to continue his examination of the return airway. Tr. at 22. Shortly after Cook
left the area, MSHA Inspector John Stone [3]
witnessed the locked and tagged-out equipment. Tr. at 76–77. After noticing
Cook’s name on the tag, Inspector Stone requested that mine management summon
Cook so that Inspector Stone could question Cook. Tr. at 77–80. Superintendent Travis
Hartsog and foreman Brad Bunch found Cook and informed him that Inspector Stone
wanted to speak with him. Tr. at 121–22. Cook then spoke with Inspector Stone
about the cathead in front of Hartsog, Bunch, and other individuals who were
standing nearby. Tr. at 23–25, 81, 123. Inspector Stone issued a section 104(d)(2)
order with respect to the condition Cook identified. Tr. at 83–84; Ex. S-3.

The following day, Cook was
suspended from his position at the mine. Tr. at 32. Respondent terminated Cook from
his employment four days later on January 25, 2021. Id. Cook had never
received any disciplinary action from Respondent prior to his suspension. Id.

III.           
APPLICATION
OF LAW

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

Unlike a trial on the merits of a
discrimination complaint brought by the Secretary—where the Secretary bears the
burden of proof by the preponderance of the evidence—the scope of a temporary reinstatement
proceeding is statutorily limited. Section 105(c) of the Mine Act and Commission
Rule 45(d) limit the issue in an application for temporary reinstatement to
whether the subject discrimination complaint was “frivolously brought.” 30
U.S.C. § 815(c);

29 C.F.R. § 700.45(d).

The United States Court of Appeals
for the Eleventh Circuit has noted that the “not frivolously brought” standard
is entirely different from the scrutiny applicable to a trial on the merits of
the underlying discrimination complaint. Jim Walters Res., Inc. v. FMSHRC ,
920 F.2d 738, 744 (11th Cir. 1990). The standard is whether a miner’s complaint
appears to have merit. Id. at 747. The Commission has set forth the
elements to be considered under this standard:

1) that the miner has engaged in some protected activity under the Act, and 2)
that the adverse action identified in the complaint was at least in part
motivated by the protected activity. Sec’y of Labor on behalf of Baier v.
Durango Gravel , 21 FMSHRC 953, 957 (Sept. 1999). The motivation can be
established by showing knowledge of the protected activity, hostility or animus
towards the protected activity, and coincidence in time between the activity
and the adverse action. Sec’y of Labor on behalf of Stahl v. A&K Earth
Movers, Inc. , 22 FMSHRC 323, 326 (Mar. 2000). The nexus in time between the
protected activity and the adverse action may be sufficient to find improper
motive without a showing of animus or hostility. Durango Gravel , 21 FMSHRC
at 957; see also A&K Earth Movers, Inc. , 22 FMSHRC at 325 n.2 (“[W]e
have never held that hostility is a prerequisite to a finding that a complaint
is not frivolous.”). A temporary reinstatement hearing is not the appropriate
forum for a determination of credibility between competing versions of events
in evaluating whether a complaint appears to have merit. Sec’y of Labor on
behalf of Williamson v. CAM Mining LLC , 31 FMSHRC 1085, 1090 (Oct. 2009).

In this matter, there is sufficient
evidence under the “not frivolously brought” standard to find that Cook engaged
in protected activity. Cook testified that he witnessed or complained about
several safety incidents between August 2020 and January 2021. The most recent such
incident occurred on January 20, 2021, when Cook locked and tagged out the
cathead. Cook then cooperated with Inspector Stone’s inquiry regarding the
condition. Cook’s actions—including cooperating with Inspector Stone—are protected
activity under the Act. See Thomas v. CalPortland Co. , 42 FMSHRC 43, 51
(Jan. 2020) (cooperation with MSHA inspection was protected activity); Sec’y
of Labor on behalf of Knotts v. Tanglewood Energy, Inc. , 19 FMSHRC 833, 837
(May 1997).

The short amount of time between the
January 20, 2021 incident and Cook’s suspension—in addition to the fact that
management witnessed Cook’s discussion with Inspector Stone—sufficiently establishes
a nexus in time and motivation for the purposes of this hearing. After Cook
locked and tagged out the cathead, he talked to Inspector Stone about the condition
in front of superintendent Hartsog and foreman Bunch—members of Respondent’s
management. Because of this, I find that there is at least a non-frivolous
issue that management was aware of the incident and that Respondent had
knowledge of Cook’s protected activity. CAM Mining LLC , 31 FMSHRC at
1090 (“The Secretary need not prove that the operator has knowledge of the complainant’s
protected activity in a temporary reinstatement proceeding, only that there is
a non-frivolous issue as to knowledge.”). Further, Respondent suspended and
terminated Cook only days after speaking with Inspector Stone; this
demonstrates a temporal nexus between the protected activity and adverse action.
See Turner v. Nat’l Cement Co. of Calif. , 33 FMSHRC 1059, 1071 (2011) (complainant’s
termination days after his most recent complaint could support inference of
improper motivation for termination); Sec’y of Labor on behalf of Shaffer v.
Marion Cty. Coal Co. , 40 FMSHRC 39, 43 (Feb. 2018) (“[T]here is no dispute
that . . . termination from employment was an adverse action.”). In light of this
clear temporal nexus and management’s knowledge, there is sufficient evidence
that Cook’s protected activity motivated, at least in part, his suspension and
termination—the adverse actions identified in the complaint. In sum, I find that
Cook’s complaint is not frivolously brought.

ORDER

Respondent is hereby ORDERED
to immediately reinstate Roger Cook to his duties as a fire boss or equivalent
position as of the date of his suspension and termination at the same rate of
pay and number of weekly hours with restoration of all other benefits to which
he was then entitled.

This Order SHALL remain in effect
until such time as there is a final determination in this matter by hearing and
decision, approval of settlement, or other order of this Court or the
Commission.

I retain jurisdiction over this temporary
reinstatement proceeding. 29 C.F.R. § 2700.45(e)(4). The Secretary SHALL
provide a report on the status of the underlying discrimination complaint as
soon as possible. Counsel for the Secretary SHALL also immediately
notify my office of any settlement or of any determination that Respondent did
not violate section 105(c) of the Act.

/s/ Priscilla M. Rae

Priscilla M. Rae

Administrative Law
Judge

Distribution:

LaShanta
Harris, Office of the Solicitor, U.S. Department of Labor, 201 12th Street
South, Suite 401, Arlington, VA, 22202 ( [email protected] )

Christopher
D. Pence, James P. McHugh, Hardy Pence, PLLC, 10 Hale Street, 4th Floor, P.O.
Box 2548, Charleston, WV 25329 ( [email protected] ; [email protected] )

Roger
Cook, 3264 Mud River Road, Danville, WV 25053 ( [email protected] )

[1] In this decision,
“Tr.” refers to the transcript from the hearing. The Secretary’s exhibits are
numbered Ex. S-1 to S-3. The Respondent’s exhibit is numbered Ex. R-2. The parties’ joint
stipulations are abbreviated “Jt. Ex. 1.”

[2] Respondent sought
to argue that it suspended and terminated Cook because he knew about the
deactivated panic bar on the scoop but did not inform management. Regarding
Respondent’s proposed exhibits and testimony concerning that incident, the
Secretary filed a Motion in Limine and Objections to Respondent’s hearing exhibits.
On March 26, 2021, I granted the Secretary’s Motion and Objections because the
proposed evidence concerned an affirmative defense and raised issues of
credibility—and was therefore beyond the limited scope of a temporary reinstatement
hearing. Respondent filed a Motion to Reconsider my March 26, 2021 Order, which
I denied. Respondent also made several proffers at hearing regarding the
testimony and exhibits I excluded in my March 26, 2021 Order. Tr. at 127–29.

[3] Inspector Stone
has been employed by MSHA for approximately 14 years and is currently a coal
mining inspector and electrical specialist. Tr. at 73. On the day in question,
Inspector Stone was present at the mine to terminate outstanding citations and
to perform his regular inspection of the mine. Tr. at 74–75.