Decondor Coal Company, Inc.

Plain-English summary

David S. Haynes alleged that Decondor Coal Company fired him after he stopped work and removed miners from an area because he believed electrical and water conditions were hazardous. Judge Avram Weisberger found that the complaint was not frivolously brought. Because the afternoon-shift job had been eliminated in a business-related layoff, he ordered the company to reinstate Haynes when a position became available as a shift foreman, roof bolter, miner operator, or shuttle car operator. The reinstatement was to remain in effect pending a final order on the discrimination complaint.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.44(c)
• Outcome: Temporary reinstatement was ordered upon availability of a qualifying position, pending final disposition of the discrimination complaint.
• Key point: A temporary-reinstatement hearing tests whether a discrimination complaint is frivolous, not whether the miner has already proved the full case.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) & D.S. HAYNES V. DECONDOR COAL CO.
DDATE:
19881227
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 89-31-D
ON BEHALF OF
DAVID S. HAYNES, MORG CD 88-18
APPLICANT
v. Mine No. 6

DECONDOR COAL COMPANY, INC.,
RESPONDENT

                 ORDER OF TEMPORARY REINSTATEMENT

Appearances: Mary K. Spencer, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia;
David Morrison, Esq., Harry P. Waddell, Esq.,
Steptoe & Johnson, Clarksburg, West Virginia.

Before: Judge Weisberger

                                I.

 On November 2, 1988, the Secretary, on behalf of David S.

Haynes, filed an Application for Temporary Reinstatement,
alleging, in essence, that the complaint of discharge filed by
Haynes was not frivolous. On November 14, 1988, Respondent filed
a statement alleging that there was reasonable cause for the
discharge of the Applicant, and alleging further that the
Applicant cannot be temporarily reinstated to his former position
". . . as the job is no longer available." In its Statement,
Respondent also requested a hearing.

 On November 15, 1988, the undersigned arranged a telephone

conference call between Counsel for Applicant and Respondent's
President in order to arrange a hearing date. At that time
Respondent advised that it would be represented by Counsel. On
November 17, 1988, in a conference telephone call with the
undersigned and Counsel for both Parties, it was agreed that the
Parties would confer for the purpose of discussing settlement,
and in the event that no settlement would be reached, the matter
was set for hearing on December 7, 1988, in Clarksburg, West
Virginia. The matter was not settled, and was subsequently heard
on December 7, 1988. At the hearing, the Applicant waived

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his right to have a hearing within 10 days following receipt by
the Chief Judge of the Request for Hearing. At the hearing, David
Stanley Haynes, the Applicant, testified on his own behalf, and
Jack Duane Hovatter, Johnny Paul Williams, and James Edward
Martin testified for Respondent. At the conclusion of the
hearing, Counsel for Applicant indicated she desired to file a
Post Hearing Brief and the Applicant waived his right to have an
Order issued in this matter within 5 days following the close of
the hearing. It was ordered that Briefs were to be filed by
Express Mail on December 16, 1988. Briefs were filed on December
19, 1988.

                              II.

 The Applicant had filed a Complaint of Discrimination dated

August 1, 1988, alleging, in essence, that on July 19, 1988, as
shift foreman, he removed his men from working in the area
designated by John Williams, the mine foreman, on the ground that
the conditions therein were hazardous. The complaint further
alleges that on July 20, 1988, Haynes explained to Williams that,
in essence, he did not cut in the area as instructed, due to the
nature of the conditions therein, and Williams in turn fired him.

 Haynes, in essence, testified that he was employed by

Respondent from May 14, 1988 to July 20, 1988, as the second
shift (afternoon) foreman and miner helper. It was the testimony
of Haynes that prior to commencing the shift on July 19, 1988,
Williams told him, in essence, to set a water pump in the 3R back
cut area as there was a lot of water which had accumulated, and
then to mine the area as many times as he could. Haynes indicated
that in the process of loading coal, the shuttle car cable, which
he described as being in poor shape, was in mud and water and
kept knocking out the power on the outside. He said that the pump
was not working inasmuch as there was much mud in the dip, and it
kept clogging up. He said that he was concerned about the danger
to one of the miners of accidental electrocution. He indicated
that such an accident could occur if a miner would come in
contact with a transformer during the time the power was knocked
out, and then remain in contact when the power was turned back
on. Accordingly, Haynes stopped mining in the area and removed
his men. He said that at the end of his shift he left a note for
Williams to repair the cable and also indicated that the power
kept knocking out.

 Haynes indicated that at the beginning of the day shift the

following day, Williams called him and asked him why he did not
cut the 3R back cut, and Haynes explained that he tried, but that
the power kept knocking out, and he was concerned that someone
would get hurt, so he took the men out. Haynes said that in
response Williams told him that he was finished and to get his
clothes.

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Section 105(c)(2) of the Federal Mine Safety and Health Act of
1977 (The Act), in essence, provides that if the Secretary finds
that a complaint of discrimination ". . . was not frivolously
brought," the Commission upon application of the Secretary,
". . . shall order the immediate reinstatement of the
miner. . . ." 29 C.F.R. 2700.44(c) provides, in essence, that
at a hearing concerning an application for temporary
reinstatement, the burden of proof is on the Secretary to
establish that the complaint "is not frivolously brought."

 It is the position of the Respondent that the Applicant

cannot prevail in any action alleging a violation of section
105(c) of the Act, inasmuch as he failed to communicate to
management his concern about hazardous working conditions on July
19, 1988. In this connection it is noted that Haynes did not
communicate to any of his superiors on July 19, 1988, any of his
safety concerns. Respondent thus argues that since Applicant
cannot ultimately prevail in any section 105(c) action, it must
be found that it has not been established that the complaint was
not frivolously brought. I do not find merit to Respondent's
argument. The legislative history of the Federal Mine Safety and
Health Act of 1977, indicates that the language creating the
right of a miner to be reinstated temporarily where his complaint
of discrimination was not "frivolously brought," was first
inserted in the Senate's version (S.717, 95th Congress, 1st
Session 1977). The Report on the Senate Bill from the Committee
on Human Resources (S.Rep. No. 95Ä181, 95th Cong., 1st Sess.
(1977), in explaining the provisions of the Bill, indicates that
the Secretary shall seek an Order of the Commission for temporary
reinstatement when it determines that the complaint ". . .
appears to have merit. . . ." (Reprinted in Legislative History
of the Federal Mine Safety and Health Act of 1977, at 624
(1978)). [Hereinafter cited as 1977 Legislative History.] There
is no further discussion in the legislative history of the Act of
the meaning Congress intended to place on the term "was not
frivolously brought." Clearly Congress intended this term to
encompass its usual accepted meaning. In this connection, I note
that Webster's New Collegiate Dictionary (1979 edition) defines
frivolous as "1: of little weight or importance . . . ." The
testimony of Haynes, not rebutted by Respondent, tends to
establish that the complaint was brought to protest his being
fired after he took action based on his perception of various
safety hazards. I do find that in order to prevail, Applicant
must establish no more than proving that his complaint is not of
little weight or importance. Congress in enacting section
105(c)(2), supra, did not choose to use the term "substantial
likelihood" of prevailing, which it used in section 105(b)(2)(B)
as a precondition to the granting of

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temporary relief from modification of an Order issued under
section 104(c). Hence, Applicant does not have the burden of
establishing here a likelihood of prevailing in any section
105(c) action. Respondent thus cannot defeat Applicant's case by
establishing that he would not prevail in a 105(c) action.

 Also, inasmuch as the scope of the hearing was limited,

pursuant to 29 C.F.R 2700.44(c), to the issue of whether the
complaint was frivolously brought, it is possible that the issue
of notice to Respondent of the hazardous conditions, was not
fully litigated. Nontheless, I observed the demeanor of both
witnesses and found Haynes more credible in his testimony that,
in the note to Williams, that he left at the end of the shift on
July 19, 1988, he informed the latter to repair the cable, and
also stated that the power kept knocking out. Also, Williams
indicated that Haynes had told him in the telephone call Williams
made to him on the morning of July 20, that the power was going
out and the cable of the buggy was smoking. For all these
reasons, I conclude that the Applicant has established that the
complaint herein was "not frivolously brought."

                              III.

  Pursuant to section 105(c)(2), supra, once it has been

established that a complaint has not been frivolously brought,
the "immediate reinstatement" of the miner shall be ordered
pending final order on the complaint. It is Respondent's position
that had Haynes not been fired on July 20, he would have been
part of an economic lay off on July 30, 1988, and thus should not
be reinstated, as it would put him in a better position then he
would have been in had he not been discharged. In this
connection, Jack Duane Hovatter, Respondent's superintendent and
its secretary/treasurer, who owns the company with his two
brothers, indicated that, in general, the Respondent was losing
money in 1988. He said that in the second quarter of 1988 it lost
$39,000, and in the third quarter of 1988 it made a profit of
$10. Accordingly, in approximately March 1988, the midnight shift
was eliminated, and two employees were laid off. He said that for
about a year he and his brothers talked about eliminating the
afternoon shift. Hovatter said that about July 1, 1988, it was
decided to end that shift by July 30, 1988. He indicated that the
lay off was accelerated to July 20, 1988, when Haynes, a shift
foreman was fired and it was determined to be impractical to hire
another shift foreman for less then 2 weeks until the
contemplated lay off on July 31. Accordingly, on July 20, 1988,
the afternoon shift was eliminated, and four employees were laid
off and never recalled. The remaining five employees of the shift
were transferred to the day shift. He indicated that Vernon Stone
was transferred and not laid off because he was a miner operator,
and his transfer allowed Williams, who had been working as a
miner

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operator on the day shift, to concentrate on his duties as a
shift foreman. He also said that Danny Stone was transferred as
he was a certified electrician, and there was only one
electrician on the day shift and thus he could serve as a backup.
Also, he said that Roger Haskill was transferred because he had
experience running a bolter for 9 or 10 months. He also indicated
that Charles Lucas was transferred because he had experience as a
buggy operator, miner helper, and bolter operator, so he could
replace other miners operating such equipment if they were absent
from work. Further, he indicated that Gary Gerdridas was
transferred as he was an EMT (Emergency Medical Technician), and
inasmuch as the day section now had more than seven employees an
EMT was required. It was his testimony, in essence, that Haynes
would have been laid off July 31, and not transferred to the day
section as he did not have any experience to qualify him for a
position with the day shift. In this connection, he noted that
the day shift already had a foreman, and he was not aware of
Haynes' other work experience aside from the fact that he knew
that he ran a miner for 1 day. I find Hovatter's testimony
credible and conclude had Haynes not been fired on July 20, 1988,
he would have been laid off on July 31, 1988, along with other
members of his shift, and not reassigned to the day shift.

 Based upon a review of the legislative history of the Act,

it appears it was the intent of Congress in providing for
temporary reinstatement where a complaint of discrimination is
not frivolously brought, to protect miners from the adverse and
chilling effect of loss of employment while discrimination
charges are being investigated. (1977 Legislative History at 625,
1330, 1362.) Inasmuch as Haynes' job was eliminated due to a lay
off necessitated by business reasons, I agree with Respondent
that to have Haynes reinstated to his former job would put him in
a better position then he would have been in had he not been
fired. To grant such a benefit would be a windfall to Haynes and
would clearly go beyond Congressional intent. However, I find the
testimony of Haynes credible that he was hired originally as a
miner's helper, and on a daily basis spelled the miner's operator
at lunch time. I also find credible Haynes' testimony elicited
upon cross-examination that from 1970 to 1975 he operated a roof
bolter, shuttle car, and miner operator at another mine. Thus, I
find that section 105(c)(2), supra, and section 2700.44, supra,
will be effectuated by requiring Respondent to reinstate Haynes
immediately, once it has a position available as shift foreman,
roof bolter, miner operator, or shuttle car operator.

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ORDER

 It is hereby ORDERED that Respondent reinstate Applicant,

immediately upon the availability of a position as either shift
foreman, roof bolter, miner operator, or shuttle car operator. It
is further ORDERED that the reinstatement shall remain in effect
pending a final order by the Commission upon Applicant's
Complaint of Discrimination.

                              Avram Weisberger
                              Administrative Law Judge