Ronald B. Snyder and R.B.S. Incorporated

Plain-English summary

Paul H. Brooks claimed that R.B.S. Incorporated fired him after he refused to continue operating a loader near an unsafe highwall and raised safety concerns. The Secretary presented testimony from Brooks and an MSHA investigator, while the respondents offered a different account that Brooks was fired for refusing to load material above the loader's windshield and for seeking pay for a full day. Judge David F. Barbour found that the conflicting evidence required a full trial, but that the Secretary's discrimination theory and factual assertions were not clearly fraudulent, without merit, or pretextual. He therefore found Brooks's complaint not frivolously brought and ordered immediate temporary reinstatement to his former or an equivalent position.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.3131 and 56.3200
• Outcome: Temporary reinstatement ordered at the same rate of pay and with the same or equivalent duties.
• Key point: A miner need not prove the discrimination claim at the temporary-reinstatement stage, but the Secretary must present a nonfrivolous legal theory and factual basis.

Full text (FMSHRC public release)

Page 2

~2004

                FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                       OFFICE OF ADMINISTRATIVE LAW JUDGES
                              2 SKYLINE, 10th FLOOR
                               5203 LEESBURG PIKE
                          FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT
MINE SAFETY AND HEALTH :
ADMINISTRATION ON BEHALF : Docket No. WEVA 93-31-DM
OF PAUL H. BROOKS, : NE-MD 92-03
Applicant :
: Greystone Quarry and Plant
v. :
:
RONALD B. SNYDER AND R.B.S. :
INCORPORATED, :
Respondents :

                        ORDER OF TEMPORARY REINSTATEMENT

Appearances: Gretchen Lucken, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia
for the Applicant:
David J. Hardy, Esq., Jackson & Kelly,
Charleston, West Virginia for the Respondents.

Before: Judge Barbour

  On October 28, 1992, the Secretary of Labor ("Secretary")

filed an application for an Order requiring Respondents Ronald B.
Snyder and R.B.S. Incorporated ("R.B.S.")(Footnote 1) to
reinstate Paul H. Brooks to the position that he held immediately
prior to his discharge on July 30, 1992, or to a similar position
at the same rate of pay, and with the same or equivalent duties.
The Application was supported by the affidavit of James E.
Betcher, Chief, Office of Technical Compliance and Investigation
Division, Metal and Non-Metal Safety and Health Division, Mine
Safety and Health Administration ("MSHA") and by a copy of the
original complaint filed by Brooks with MSHA.

  In a letter filed on November 9, 1992, counsel for

Respondents requested a hearing on the Application. As the
result of a November 10, 1992 telephone conversation involving
counsels and myself, the parties agreed to November 24, 1992, as

1Ronald Snyder is the president of R.B.S. Incorporated.

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~2005
the date for the hearing. Therefore, the requested hearing was held pursuant
to notice on that date in Beckley, West Virginia.(Footnote 2) As yet, the
hearing is not transcripted.

  Prior to counsels' opening statements and to the taking of testimony, I

orally summarized the pleadings, and I stated that the issue to be resolved at
the hearing was narrow - - whether Brooks' complaint was "not frivolously
brought" as that term is used in Section 105(c)(2) of the Federal Mine Safety
and Health Act of 1977 ("Mine Act"). I also stated my understanding of the law
to be that I was not required to determine the merits of Brooks' discrimination
complaint but solely to determine whether the complaint was frivolous; that is
to say, whether it was clearly without merit, clearly fraudulent or clearly
pretexual in nature.

                             THE TESTIMONY

                      THE APPLICANT'S WITNESSES

  The Secretary, on behalf of Brooks, presented her case through the

testimony of Brooks and of Larry W. Brendle, a special investigator for MSHA
who investigated Brooks' discrimination complaint for the Secretary.

  Brooks testified that until his discharge on July 30, 1992, he had

worked as the operator of a front end loader ("loader") at the Greystone
Quarry and Plant.(Footnote 3) He stated that on the morning of July 30,
1992, he was loading limestone from a muck pile into a waiting truck and that
he was concerned about the condition of the highwall above him. He described
the highwall as being cracked from top to toe and as being topped by
overburden

2Although Commission Procedural Rule 44(b), 29 C.F.R. § 2700.44(b), requires
that a hearing be held within ten (10) days of the receipt of a request for
hearing, November 24, 1992, was the earliest date available to try and to hear
the Application. Therefore, compelling reasons existed to extend the time
within which the hearing was conducted.

3The facility is a limestone quarry located near White Sulphur Springs, West
Virginia. The quarry is owned and operated by R.B.S. and was generally
described by Snyder as being approximately "U" shaped, as having a limestone
highwall topped by overburden ranging in depth from 0 feet to 80 feet and as
being mined in a step-like series of three benches each of which measures
approximately 70 feet in height. Witnesses for both parties essentially
agreed that limestone is mined at the quarry in the following sequence: the
face of the highwall is drilled and blasted, the resulting muck pile is loaded
into a waiting truck by a loader and the limestone is trucked from the pit.

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~2006

(including broken rock) that was soft and saturated with water. According to
Brooks the overburden was unstable and some had fallen previous to July 30.

  Brooks described the muck pile that he was loading as being

approximately 45 feet high. In addition to the highwall, he stated that he was
concerned about material coming off of the muck pile. According to Brooks, both
the highwall and the muck pile were too high for him to have easy visibility of
their tops from his seat in the loader's cab. Brooks stated he was concerned
that if the loose, unconsolidated material fell from the highwall he would be
unable to get out of the way.

  Brooks further stated that a cab protector above the windshield of the

loader also restricted his view upward.(Footnote 4)

  Brooks testified that on July 28, an effort had been made to scale the

loose, unconsolidated material on top of the highwall, but that he believed
the result was only to loosen the overburden further and to make it more
likely to come down. He described himself on July 30, as being tense and
uncomfortable and unable to do his job. As a result, Brooks claimed that he
drove the loader out of the pit, parked it and spoke with his foreman, John
Harless.

  According to Brooks, he told Harless that he did not want to return to

work at the muck pile because the highwall was unsafe and the muck pile was
too high for the visibility he required. He stated that he offered to do
other work - - specifically, to help get the loose, unconsolidated material
down from the highwall. In Brooks' version of the events, Harless told him to
wait. Shortly after that, Snyder arrived.

  Brooks stated that Snyder asked him what was going on? Brooks responded

that the company needed to take care of the highwall, that it was unsafe and
that it needed to be scaled. Brooks testified that Snyder asked him several
times if he were going to go back to work at the muck pile and load the truck.
Brooks indicated to Snyder that he would have to think about it. (Brooks
explained that he was "thinking about his life.")

4Brooks described the cab protector as offering protection to the windshield
from falling or flying rock and as consisting of a series of metal bars
extending about 5 inches from the top of the cab over the windshield and being
about 3 1/2 inches thick. Snyder testified that the cab protector was not new
and had been standard equipment on the loader since the first day the loader
was operated at the quarry.

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~2007

  Brooks testified that Harless said to Snyder that while Brooks was

thinking they should go into the pit and look at the situation. Brooks
indicated that the two men went to where he had been working but that he did
not see them look at the highwall, rather that they looked at the muck pile.
Brooks stated that when they returned, Harless asked him if he had made his
decision and that Brooks responded he was still thinking. He also stated that
he told them he would help Harless get the loose material down from the
highwall, but that until he was told what to do he would stay put.

  According to Brooks, it was at this point that Snyder told him that he

was fired. Brooks stated he shook hands with Snyder, told him that it had
been a pleasure working for him and said that if Snyder ever needed him again
to just give him a call.

  Brooks testified that after he was fired he filed a discrimination

complaint with MSHA, as well as a safety complaint about the hazardous nature
of the area where he was working.

  Brooks was persistent in maintaining that the condition of the highwall

was the source of his safety concerns. He stated that if the highwall had
been safe he would not have had any concerns and would have continued to
work.

  The Secretary then called Brendle to testify. Brendle stated that he

went to the quarry on August 11, 1992, to view
the area where Brooks had been working. While at the quarry, Brendle issued a
Section 107(a), 30 U.S.C. § 817(a), imminent danger closure order with an
associated Section 104(a),
30 U.S.C. § 814(a), citation alleging, among other things, that approximately
40 feet of unconsolidated dirt and stones (the overburden) at the top of the
south wall section of the highwall constituted an imminent danger and a
violation of mandatory safety standard Section 56.3131.(Footnote 5) G. Exh.

4. Brendle maintained

5The standard states:

    Pit or quarry wall perimeter.

  In places where persons work or travel in performing their assigned

tasks, loose or unconsolidated material shall be sloped to the angle of repose
or stripped back for at least 10 feet from the top of the pit or quarry wall.
Other conditions at or near the perimeter of the pit or quarry wall which
create a fall-of-material hazard to persons shall be corrected.

30 C.F.R. § 56.3131. R.B.S. is contesting the validity of the order/citation,
including the alleged violation of Section 56.3131.

Page 6

~2008
that the edge of the area encompassed in his order/citation was even with the
muck pile Brooks was loading and that the conditions he cited endangered
Brooks.

  Brendle also testified that as a result of Brooks' safety complaint,

MSHA Inspector Carl Sneed had gone to the quarry the day after Brooks was
fired (July 31, 1992) and had issued a Section 107(a) imminent danger
withdrawal order with an associated Section 104(a) citation that cited a
violation of mandatory safety standard Section 56.3200.(Footnote 6) Gov.
Exh. 3. This order/citation stated in part that loose, unconsolidated
material, was present along the top of the catch bench in the west section of
the pit for approximately 100 feet. Inspector Sneed did not testify, but
Brendle stated that he understood Sneed's order/citation to have been issued
for the same general area of the quarry that he, Brendle, had cited.(Footnote
7) Brendle believed it was possible that Brooks had been endangered by the
conditions cited by Sneed, but he did not know for certain. Brendle stated
that in any event, the condition of the highwall that he cited on August 11
was "atrocious."

  Brendle testified that on July 30, Brooks was working under overburden

that consisted of large stones and fill dirt made loose by rain. In addition,
Brooks had the highwall to his right as he worked, and Brendle believed that
because he had to turn to his right to look at the highwall and because of the
highwall's height, Brooks' vision was obscured and he could not detect any
loose material that might be coming down near him. Brendle also believed it
possible that the cab protector further obscured Brooks' vision. Brendle
feared that any falling loose material could travel up to 150 feet from the
base of the highwall if the

6The standard states:

  Correction of hazardous conditions.

  Ground conditions that create a hazard to persons shall be taken down or

supported before other work or travel is permitted in the affected area.
Until corrective work is completed, the area shall be posted with a warning
against entry and when left unattended a barrier shall be installed to impede
unauthorized entry.

30 C.F.R. § 56.3200. R.B.S. is also contesting the validity of this
order/citation, including the alleged violation of Section 56.3200.

7There was confusion about directional references at the quarry. Sneed
referred in his order/citation to the west section of the pit, Brendle
referred in his testimony to the south wall section, and Snyder, if I
understood him correctly and who I assume knows best, spoke of the area
involved as the southeast corner of the pit.

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~2009

material hit something on the way down and bounced. In Brendle's opinion,
Brooks clearly was working within a distance from where he could have been
injured by falling material.

  Brendle also stated that Snyder told him he had fired Brooks because

Brooks said that he would not load any material piled higher than the
windshield of the loader, and because Brooks expected to be paid on July 30
for a full day, even though he had stopped operating the loader around noon.
Finally, Brendle stated that after Inspector Sneed had issued the
order/citation on July 31, Sneed allowed the muck pile on which Brooks had
been working to be totally cleared. (In other words, Sneed allowed normal
work to continue in the area where Brooks had been working.) Brendle
explained that he did not agree with Sneed's decision in this regard, that he
had called Sneed at the time he, Brendle, issued his order/citation to
express his disagreement and to advise Sneed of what he was going to do, and
that in so doing, he found out that Sneed had not inspected the top of the
highwall prior to issuing the order/citation on July 31. Nonetheless, Brendle
stated that it was possible Sneed was in a better position to evaluate the
conditions under which Brooks had worked on July 30 than he, Brendle, was.

                     THE RESPONDENTS' WITNESSES

  After the Secretary rested, the Respondents presented their case through

the testimony of three witnesses: Snyder, Harless and Ricky Massey, a fill-in
laborer. Not surprisingly, they offered a different version of events.

  Snyder stated that around 11:00 A.M. on the morning of

July 30, 1992, he was at his office when he received a telephone call from
Harless. Harless informed Snyder that Brooks was refusing to load anything
higher that the windshield of the loader. According to Snyder, muck piles at
the quarry are typically 40 to 45 feet high. Thus, of necessity, a loader
operator must load material that is higher than the windshield. Therefore,
Snyder asked Harless if he was sure Brooks had said that he would not load
such material, and Harless replied, "Yes." Harless suggested to Snyder that
he come to the quarry and talk to Brooks.

  Once at the quarry, Snyder found Brooks and the parked loader outside of

the work area. Snyder asked Brooks what the problem was and Brooks replied,
"It's the same old s__t, Harless doesn't know what he is doing." Snyder said
to Brooks that

Page 8

~2010

Harless had told him that Brooks refused to load anything higher than the
windshield of the loader. Snyder asked Brooks two or three times if this were
true, and Snyder answered, "Yes."(Footnote 8)

  Harless then suggested that he and Brooks look at the area and see what

the problem was. Snyder stated that he and Harless went to the muck pile and
that he did not see anything that he believed was unsafe. Snyder expressed
the opinion that there was nothing inherently unsafe about loading material
that was higher than the cab or the windshield of a loader.

  After Snyder and Harless returned from the muck pile, Snyder stated that

he asked Brooks again if he would not load material that was piled above the
cab of the loader, and Brooks stated that he would think about it. After he
had thought about it, Brooks indicated to Snyder that he had come to the
quarry that day expecting to work and that he intended to be paid for a day's
work. Snyder responded, "No you're not," or words to that effect, and told
Brooks that he was fired. Snyder stated that he discharged Brooks for two
reasons: (1) for refusing to load material higher than the windshield of the
loader, and (2) for demanding a days's work when he had not worked a full day.
Brooks was paid to the time he was fired - - approximately
12:00 P.M. - - and left the quarry.

  During cross-examination, Snyder stated that he was certain that in the

course of their conversation on July 30, Brooks had not made any statement
about his safety and the condition of the highwall. However, counsel for the
Secretary read to Snyder from a transcript of Snyder's unsworn interview with
Brendle concerning Brooks' discharge. In the transcript, Snyder was quoted as
telling Brendle that Brooks had said to him, "It's the same old s__t, Harless
doesn't know what he is doing and I am not going to risk my safety or life
under the highwall." Snyder indicated that he had made the statement to
Brendle.

  Snyder also stated that at no time during his conversation with Brooks

did Brooks offer to do other work. Snyder stated that, in fact, there was
nothing unsafe about loading material piled higher that the cab of the loader
and that July 30 was the first time Brooks had ever stated he would not load
such material.

  Snyder also stated the he believed the area encompassed by Sneed's

order/citation of July 31 was at least 200 feet from where Brooks was working
on July 30; and that the area

8I asked Snyder if he had questioned Brooks as to why Brooks would not load
higher material, and he stated that he had not. He explained that he could
not foresee any conditions under which the practice to which Brooks objected
would be hazardous.

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~2011

encompassed by Brendle's order/citation of August 12, although it extended
somewhat closer to the area where Brooks was working was nonetheless 150 feet
away from Brook's work station.

  Snyder maintained that on July 30, Brooks was not in any danger. The

overburden under which Brooks was working had been stripped back. It was not
loose or unconsolidated. To support his opinion he noted that after issuing
his order/citation, Sneed had permitted the entire muck pile on which Brooks
was working to be loaded and that it took approximately 40 hours to do so.

  Jimmy Harless, Brooks' supervisor, testified next. He stated that

scaling on the highwall had been underway prior to July 30, and that on July
30 the area scaled was about 200 feet from where Brooks was located and that
any material knocked loose came down on a barricaded bench, not near Brooks.
Harless testified that on July 30 he was advised by the driver of the truck
Brooks was loading that Brooks wanted to talk to him. Brooks told Harless
that he would not load anything above the height of the loader's
windshield.(Footnote 9)

  According to Harless, Brooks made no reference to safety concerns about

the highwall or the muck pile. However, on
cross-examination, Brooks' counsel asked Harless about the following exchange
during Harless' unsworn interview with Brendle:

        Q.    On July 30 . . . Brooks . . . said that he did
        no feel safe working at the highwall
        . . . and he was . . . fired that day. Do you want to
        . . . tell me what you know?

        A.    The part of the highwall that he was talking
        about, he was approximately 300 to 400 feet away from
        it and the shot he was mucking out, there was no big
        stuff over his head. Then he told me he was not going
        to load anything over windshield height . . .

Resp. Exh. 3. Harless agreed that this is what he had said.

  Harless stated that after talking to Brooks he called Snyder, who came

to the quarry to talk to Brooks. During their conversation, Snyder stated to
Brooks that Harless had told him Brooks had refused to load anything above the
height of the loader's windshield, and Snyder asked, "Is that what you said?"
Brooks responded, "Right." Snyder let Brooks know that he wanted

9Harless noted that because muck piles at the quarry are usually piled well
above windshield height, it would have been impossible to operate a front end
loader at the quarry under Brooks' restrictions.

Page 10

~2012

Brooks to return to work, and Brooks stated that he would have to think about
it. Snyder and Harless then went to look at the area where Brooks had been
working, and according to Harless, did not see anything that was unsafe.

  When the two returned, Brooks told Snyder that he had not made up his

mind about whether he would return to work, and he indicated he would continue
to sit and draw his pay. Harless stated that Snyder said, "No you won't.",
and Snyder fired Brooks.

  Harless agreed with Snyder that Sneed's order/citation

of July 31 covered an area that was approximately 200 feet from Brooks, and
that although Brendle's order/citation of August 12 was more inclusive, the
area concerned was still approximately 150 feet from where Brooks had been
working on July 30. Harless believed that the conditions referenced in both
order/citations could not have endangered Brooks.

  Ricky Massey was the last to testify. He stated that he had known

Brooks "for years." He also stated that on July 30, scaling was being
conducted on the highwall, but in an area that was barricaded and that was
removed from where Brooks was working. The scaling did not endanger Brooks.
He agreed with Snyder and Harless that the conditions cited in the July 31 and
August 12 order/citations were physically distant from where Brooks had been
working and would have posed no danger to him.

                               THE ISSUE

  The essence of Brooks' complaint is that he engaged in protected

activity - - i.e., a protected work refusal - - and that his subsequent
discharge was motivated by that activity. A miner has a right under Section
105(c) of the Mine Act to refuse work if the miner has a good faith,
reasonable belief that such work is hazardous. Secretary on behalf of Pasula
v. Consolidation Coal Co.., 2 FMSHRC 2786, 2797-2800 (October 1980) rev'd on
other grounds sub. nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211,
1216 N.6, 1219 (3rd Cir. 1981); Miller v. Consolidation Coal Co., 687 F.2d
194-195 (7th Cir. 1982). A good faith belief "simply means honest belief that
a hazard exists." Secretary on behalf of Robinette v. United Castle Coal Co.,
3 FMSHRC 803, 807-12 (April 1981).

  As previously stated, the standard of review in this proceeding is

whether the Secretary's legal theory, as well as the Secretary's factual
assertions, are not frivolous. See Jim Walter Resources, Inc., v. FMSHRC, 920
F.2d 738,747 (11th Cir. 1990). Although the Secretary's legal theory of a
protected work refusal may or may not be sustained at a trial on the merits,
it is certainly an arguable legal position given the testimony of Brooks that
he refused to continue loading because of his concern

Page 11

~2013

about the dangers presented by the highwall, his testimony that he expressed
those concerns and the undisputed factthatimmediately subsequent to his
refusal he was terminated.

   While there is an obvious disagreement over whether, in fact, Brooks was

in any danger on July 30 and/or reasonably could have believed himself to be in
any danger, there is no doubt that some parts of the highwall contained
loose, unconsolidated overburden, and I believe that resolution of questions
about the actual conditions under which Brooks was working and/or reasonably
believed he was working require credibility determinations and factual
findings more appropriately made after a full trial of the issues. Further,
the same is true concerning whether, as required by the Mine Act, Brooks
"communicate[d] . . . his belief in the safety . . . hazard at issue."
Secretary on behalf of Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126,
133 (February 1982); See also Simpson v. FMSHRC, 842 F.2d 453, 459 (D.C. Cir
1988).

  Thus, I conclude that while there is conflicting testimony on these

fundamental issues, it cannot be found that the Secretary's legal theory of
discrimination and her factual assertions are clearly fraudulent, clearly
without merit or clearly pretexual. Therefore, I find that Brooks' complaint
is "not frivolously brought" and that Brooks is entitled to temporary
reinstatement.

  While I can well understand that such reinstatement may seem an

unwarranted intrusion on R.B.S.'s prerogatives to control the makeup of its
workforce, it is important to remember that the right to temporary
reinstatement and the "not frivolously brought" standard represent the
judgement of Congress on the protection individual miners should be afforded
as the result of playing their part in ensuring the safety of mining
facilities and how the risk of possible discharge should be born. See Jim
Walter Resources, 920 F.2d at 748 n. 11.

                                ORDER

  Respondent is ORDERED to immediately reinstate Paul H. Brooks to the

position from which he was discharged on or about July 30, 1992, or to an
equivalent position, at the same rate of pay and with same equivalent duties.

                                David F. Barbour
                                Administrative Law Judge
                                (703)756-5232

Distribution:

Gretchen M. Lucken, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA
22203 (Certified Mail)

David J. Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston, WV 25322
(Certified Mail)

/epy