Chicopee Coal Company, Inc.

Plain-English summary

Chicopee Coal Company discharged miner Earl Charles Albu one day after he raised safety concerns about berms, miner certification, and truck brakes during a safety meeting. The Secretary found his Mine Act discrimination complaint nonfrivolous and sought temporary reinstatement. The Commission held that the record contained evidence of protected activity, adverse action, and a possible connection between them, so it affirmed the judge's order requiring temporary reinstatement. The Commission emphasized that this preliminary proceeding did not decide the ultimate merits of the discrimination claim.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.45
• Outcome: The order requiring temporary reinstatement was affirmed.
• Key point: At the temporary-reinstatement stage, the question is whether the discrimination complaint is nonfrivolous, not whether discrimination has been proved.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

            1730  K  STREET  NW,  6TH  FLOOR

                WASHINGTON,  D.C.   20006


                      July 29, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
on behalf of :
EARL CHARLES ALBU :
:
v. : Docket No. WEVA 99-85-D
:
CHICOPEE COAL COMPANY, INC. :
:

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and
Beatty, Commissioners

                        DECISION

BY THE COMMISSION:

 In this discrimination proceeding, arising under the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (1994) ("Mine Act"), respondent Chicopee Coal
Company, Inc. ("Chicopee") has filed a petition for review
of Administrative Law Judge Jerold Feldman's June 30, 1999,
Order of Temporary Reinstatement issued pursuant to section
105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2) and 29
C.F.R. § 2700.45. 21 FMSHRC 673 (June 1999) (ALJ). We grant
respondent's petition for review and, for the reasons that
follow, affirm the judge's order requiring the temporary
reinstatement of Earl Charles Albu ("Albu").

 Complainant Albu was a miner employed by Chicopee until

his discharge on January 26, 1999. On April 21, 1999, he
filed a discrimination complaint with the Department of
Labor's Mine Safety and Health Administration ("MSHA")
pursuant to section 105(c) of the Mine Act. Following an
investigation, the Secretary of Labor determined that the
discrimination complaint filed by Albu was not frivolous. On
April 30, 1999, the Secretary filed an application for
temporary reinstatement of Albu. On June 2, an evidentiary
hearing on the application was held. On June 30, the judge
issued his decision in which he concluded that the complaint
was not frivolous.

 The Secretary alleges that Albu was discharged because

of statements that he made during a safety meeting on January
25, 1999. 21 FMSHRC at 678. Respondent contends that Albu was
discharged because of his alleged cursing on a Citizen Band
radio, and because his services were no longer needed. C. Pet.
at 4.

 As the Commission has previously stated, "The scope of

a temporary reinstatement hearing is narrow, being limited to
a determination by the judge as to whether a miner's
discrimination complaint is frivolously brought." Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc.,
9 FMSHRC 1305, 1306 (Aug. 1987), aff'd sub nom. Jim Walter
Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990).
Judge Feldman held an evidentiary hearing and considered the
testimony of four witnesses in addition to the complainant.
He determined that the complaint had not been frivolously
brought.

 The only issue before us is whether Albu's discrimination

complaint was frivolously brought. As stated by the judge,
evidence exists in the record that Albu engaged in protected
activity. 21 FMSHRC at 679. Albu allegedly made complaints
during the January 25 meeting that berms were not being
replaced, that miners working were not certified, and that
some of the equipment used was "junk." Id. at 677; Tr. 146-47,

246. Albu's supervisor, Lewis Franklin Bates, testified that,
     as to the equipment, Albu complained about the conditions of
     the brakes on the trucks. Tr. 32, 57. In addition, as the
     judge noted, Albu had a history of complaining about equipment
     at the site. 21 FMSHRC at 679; Tr. 246, 259. Moreover, there
     is evidence in the record of adverse employment action, that
     is, Albu's discharge on January 26. 21 FMSHRC at 679; Tr.
     146-47, 246. Finally, there is evidence in the record that
     the adverse action was motivated in any part by Albu's
     protected activity. 21 FMSHRC at 679. At the time that he
     discharged Albu, Gary Rutherford, a foreman employed by
     Chicopee, allegedly stated, "I just wish that you hadn't said
     what you said yesterday morning." Tr. 146-47, 235-36. In
     addition, the time that elapsed between the protected
     activity and Albu's discharge was very brief, which may
     demonstrate that the discharge was motivated at least in
     part by the protected activity. Secretary on behalf of
     Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov.
     1981); Donovan v. Stafford Const. Co., 732 F.2d 954, 960
     (D.C. Cir. 1984) ("the fact that the [c]ompany's adverse
     action against [a miner] so closely followed the protected
     activity is itself evidence of an illicit motive").

     In its petition for review of the judge's temporary
     reinstatement order, Chicopee does not dispute the judge's
     determination that Albu's safety related complaints during
     the January 25 meeting was protected activity, or that
     Albu's discharge on January 26 constituted adverse employment
     action. Rather, it disputes the judge's determination that
     the adverse action was motivated in any part by the protected
     activity based on his inference that Paul Moran, Chicopee's
     president, or Robert Warnick, Chicopee's vice-president, had
     knowledge that Albu engaged in protected activity. C. Pet.
     at 1, 5-7. It relies upon evidence in the record in which
     Warnick denies having any knowledge of Albu's statements
     during the January 25 meeting. Id. at 6; Tr. 237-38, 241.
     Contrary to Chicopee's assertions, in a temporary
     reinstatement proceeding the Secretary was not required to
     prove that Warnick or Moran had knowledge of Albu's protected
     activity. Rather, she was required to show only that Albu's
     complaint was nonfrivolous.

     On the issue of whether Albu's discharge was motivated
     in any part by his protected activity, there is both
     supporting and detracting evidence in the record. As noted
     by Chicopee, Warnick denied knowing the statements that Albu
     allegedly made during the January 25 meeting. Tr. 237-38,
     241. On the other hand, there is evidence that Rutherford,
     who appears to have attended the January 25 meeting, stated
     when he discharged Albu that he wished Albu "hadn't said
     what [he] said yesterday morning."[1] Gov't Ex.3; Tr. 146-
     47. Such testimony indicates that a nonfrivolous issue
     exists as to whether Albu's discharge was motivated in any
     part by his protected activity. It was not the judge's duty,
     nor is it the Commission's, to resolve the conflict in
     testimony at this preliminary stage of proceedings. See Jim
     Walter Resources, 920 F.2d at 744 ("The temporary
     reinstatement hearing merely determined whether the evidence
     mustered by the miners to date established that their
     complaints are nonfrivolous, not whether there is sufficient
     evidence of discrimination to justify permanent
     reinstatement."). We thus conclude that the judge's
     determination that the complaint was not frivolous is
     supported by substantial evidence and is consistent with
     applicable law. We intimate no view as to the ultimate
     merits of this case.

FOOTNOTES

 [1]:  On the complaint filed with MSHA, Albu did not

mention Rutherford's comment and stated that Rutherford
said nothing beyond that Albu was no longer needed. Tr.
172-73. When that i nconsistency was brought to Albu's
attention, however, he stated that he stood by his testimony
that Rutherford made the additional comment. Tr. 173.

 C:\Myfiles\dd\consoldd.wpd
 <<Date>>


 Accordingly, the judge's order requiring the temporary

reinstatement of Albu is affirmed.

                               Mary Lu Jordan, Chairman

                               Marc Lincoln Marks,
                                 Commissioner

                               James C. Riley, 
                                 Commissioner

                               Theodore F. Verheggen,
                                 Commissioner

                               Robert H. Beatty, Jr.,
                                 Commissioner

Mark E. Heath, Esq.
Heenan, Althen & Roles
P.O. Box 2549
Charleston, WV 25329-2549

Robin A. Rosenbluth, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Boulevard
Arlington, VA 22203

Administrative Law Judge Jerold Feldman
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike
2 Skyline, 10th Floor
Falls Church, VA 22041

C:\Myfiles\dd\consoldd.wpd
<>\n