Secretary of Labor obo Frank Cafego v. Civil, LLC

Plain-English summary

Frank Cafego alleged that Civil, LLC fired him after he repeatedly complained about equipment conditions while working as an equipment operator and truck driver. His complaints included an antifreeze leak and missing air conditioning that forced him to drive with open windows amid heavy dust. The investigator reported that employees and managers corroborated the complaints and that management said Cafego was discharged in part because he complained too much. Civil did not timely request a hearing on the temporary-reinstatement application. Judge John Kent Lewis found the discrimination complaint was not frivolously brought and ordered Cafego immediately reinstated to his former or a comparable position at the same pay and benefits until a final disposition.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(c)(1) and 815(c)(2)
• Outcome: Immediate temporary reinstatement was granted at the miner's prior pay and benefits.
• Key point: Corroborated equipment complaints and management's stated concern about excessive complaining supplied the low threshold needed for temporary reinstatement.

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: 412-928-8689

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

on behalf of FRANK CAFEGO,

Complainant,

v.

CIVIL, LLC,

Respondent

TEMPORARY REINSTATEMENT

Docket No. WEVA 2022-0317

MSHA Case No.: HOPE CD 2022-04

Mine: CV #2 Surface Mine

Mine ID: 46-09105

ORDER GRANTING TEMPORARY REINSTATEMENT

OF FRANK CAFEGO

Before:            Judge Lewis                          

Pursuant
to Section 105(c) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30
U.S.C. § 801, et. seq. , and 29 C.F.R. § 2700.45, the Secretary of Labor
(“Secretary”) on April 28, 2022, filed an Application for Temporary
Reinstatement of miner Frank Cafego (“Complainant”) to his former position as
an equipment operator and truck driver with Civil, LLC. (“Respondent”) at Respondent’s
mine pending final hearing and disposition of the case.

According
to Commission Rule 45, a request for hearing must be filed within 10 days
following receipt of the Secretary’s application for temporary reinstatement.
29 C.F.R. § 2700.45(c). The Application for Temporary Reinstatement was
served on Respondent by electronic mail on April 29, 2022. My management
analyst provided Respondent with Commission Rule 45 on May 4, 2022. The
Respondent has not filed a timely Request for Hearing. The Secretary proposed
on May 11, 2022, an Order of Temporary Reinstatement, which I approve herein.

The
Secretary has found that the Complaint was not frivolously brought and, as
explained below, has provided evidence supporting that determination.
Therefore, consistent with Section 105(c) of the Act, the temporary
reinstatement of Frank Cafego is granted.

Law
and Regulations

Section
105(c) of the Mine Act prohibits discrimination against miners for exercising
any protected right under the Mine Act and provides that a miner may file a
complaint with the Secretary alleging discrimination. 30 U.S.C. § 815(c)(1-2).
The plain language of the Act also provides that “if the Secretary finds that
the complaint was not frivolously brought, the Commission, on an expedited
basis upon application by the Secretary, shall order the immediate
reinstatement of the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2)
(emphasis added).

The
Commission’s regulations control the temporary reinstatement procedures. Once
an application for temporary reinstatement is served on the person against whom
relief is sought, that person shall notify the Chief Administrative Law Judge
or his designee within 10 calendar days whether a hearing on the application is
requested. 29 C.F.R. § 2700.45(c). If no hearing is requested, the Judge
assigned to the matter shall review immediately the Secretary’s application
and, if based on the contents thereof, the Judge determines that the miner’s
complaint was not frivolously brought, [1] shall issue
immediately a written order of temporary reinstatement. Id.

If
there is a hearing, t he Judge must determine
whether the complaint of the miner “is supported by substantial evidence and is
consistent with applicable law.” [2]
Sec’y of Labor on behalf of Peters v. Thunder Basin Coal Co. , 15 FMSHRC
2425, 2426 (Dec. 1993). In the instant case, however,
the Respondent has not timely filed a request for hearing. Thus, Commission
Procedural Rule 45(c) compels me to review the Secretary’s determination that
the complaint in this matter was not frivolously brought. See 29 C.F.R.
§ 2700.45(c).

Disposition

The
Secretary has provided the evidentiary basis for his determination that the
complaint in this matter has not been frivolously brought. The Act requires the
Secretary to investigate the miner’s complaint of discrimination. 30 U.S.C. § 815(c)(2).
The Secretary’s application includes the Complaint filed
by Complainant (Exhibit “A” to the Application) and the Declaration of
Special Investigator Russell Richardson indicating that this was done (Exhibit
“B.”)

Mr.
Richardson’s Declaration provides facts in support of the Secretary’s
conclusion that the complaint was not frivolously brought:

1. At all relevant times, Civil, LLC,
   (“Civil”) was a Limited Liability corporation and is a “person” as defined in §
   3(f) of the Mine Act.

2. Applicant was employed as an equipment
   operator and truck driver at Civil, LLC, and therefore, was a “miner” within
   the meaning of § 3(g) of the Mine Act.

3. Applicant was employed at the mine
   for approximately three months, from January 2022 until he was discharged from
   his employment on March 25, 2022.

4. On April 7, 2022, Cafego filed a
   discrimination complaint with MSHA for being fired on March 25, 2022.

5. Applicant alleges that he was fired
   because he engaged in protected activities.

6. Applicant alleges that he
   complained to management about the condition of the equipment that he was
   assigned to operate on numerous occasions prior to his being discharged. For
   instance, Mr. Cafego complained to management repeatedly during his employment
   of an anti-freeze leak and lack of air conditioning in the truck he was
   assigned to operate, which required him to operate the truck with the windows
   open and exposed him to excessive amounts of dust being generated at the
   worksite.

7. The investigation into Cafego’s
   complaint is ongoing. To this point, I have interviewed several employees and
   management personnel at the mine. Employees and management corroborated that
   Cafego complained about the condition of the equipment on numerous occasions.
   Management personnel admitted that they were aware of Cafego’s complaints.
   Management personnel stated that the reason Mr. Cafego was discharged was in
   part because he complained too much.

Dec. of Russell
Richardson, April 28, 2022 (Ex. “B” to App. For Temp. Reinst.)

The
facts provided in support of the agency’s decision, if true, would establish
jurisdiction, a timely complaint of discrimination, and that Complainant
engaged in protected activity and suffered an adverse action close in time to
the protected activity, under circumstances that provide a reasonable cause to
believe that there was a causal nexus between his participation in an MSHA
investigation and his termination.

Findings
and Conclusion

At
this stage, the facts alleged by the Secretary are undisputed. Therefore, I
find that the complaint for discrimination has not been frivolously brought,
and that Complainant Frank Cafego is entitled to Temporary Reinstatement under
the provisions of Section 105(c) of the Act.

ORDER

It is hereby ORDERED that Frank Cafego be immediately
TEMPORARILY REINSTATED to the position he held on the date of his
discharge from Civil, LLC, or a comparable position within the same commuting
area and at the same rate of pay and benefits he received prior to his
discharge.

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.

/s/
John Kent Lewis

John
Kent Lewis

Administrative
Law Judge

Distribution:

Cole Quintrell, Superintendent, 799 Highway 3459, Harlan,
KY, 40831 ( [email protected] )

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

Frank Cafego, P.O. Box 293, Kincaid, WV 25119 ( [email protected] )

[1] The Act’s
legislative history suggests that a complaint is not
frivolously brought if it “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’ “appears to have merit” standard, the Commission and the
courts have also equated “not frivolously brought” to “reasonable cause to
believe” and “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).

[2]
“Substantial evidence” means “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)).