Secretary of Labor obo Ryan S. Lemley v. Monongalia County Coal Resources, Inc.

Plain-English summary

Ryan Lemley, a belt cleaner at Monongalia County Mine, alleged that the operator discharged him after years of reporting safety issues, accompanying inspectors, and filing complaints with MSHA. The Secretary's investigator cited those activities, management's alleged hostility, different treatment of another miner, and the close timing between Lemley's latest safety complaints and his discharge. Monongalia County Coal Resources did not timely request a hearing and joined Lemley in proposing settlement terms for temporary reinstatement. Judge John Kent Lewis found the discrimination complaint was not frivolously brought and approved the parties' motion. He ordered Lemley immediately temporarily reinstated under the agreed terms while the underlying discrimination case continued.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.45
• Outcome: Ryan Lemley was ordered immediately temporarily reinstated under the parties' agreed terms.
• Key point: Undisputed allegations of repeated safety activity, management knowledge and hostility, disparate treatment, and close timing supported interim 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 RYAN S. LEMLEY,

Complainant,

v.

MONONGALIA COUNTY COAL

RESOURCES INC.,

Respondent

TEMPORARY REINSTATEMENT

PROCEEDING

Docket No. PENN 2021-0087

MSHA Case No.: MORG-CD-2021-05

Mine: Monongalia County Mine

Mine ID: 46-01968

ORDER GRANTING TEMPORARY REINSTATEMENT

OF Ryan S. Lemley

Before:            Judge Lewis

Pursuant
to Section 105(c)(2) 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 June 8, 2021, filed an Application for Temporary
Reinstatement of miner Ryan S. Lemley (“Complainant”) to his former position
with Monongalia County Coal Resources Inc. (“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 Secretary’s certificate of service states that
the Application for Temporary Reinstatement of Complainant was served on
Respondent by electronic mail on June 8, 2021. The Respondent has not filed a
timely Request for Hearing. The parties submitted on June 23, 2021, a Joint
Motion to Approve Settlement, 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)(2) of the Act, the temporary
reinstatement of Ryan S. Lemley 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 Clarence Moore indicating that this was done (Exhibit
“B.”)

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

At all relevant
times, Monongalia County Coal Resources Inc. was a Corporation and is a “person”
as defined in section 3(f) of the Mine Act.

Complainant was
employed as a belt cleaner at MCCR’s Monongalia County Mine (46-01968),
and therefore, was a “miner” within the meaning of section 3(g) of the
Mine Act.

3. Complainant
   was employed at the Mine for approximately seven years, from 2014 until MCCR
   discharged him from employment on April 19, 2021.

4. On April 21,
   2021, Complainant filed a discrimination complaint alleging that MCCR discharged
   him on April 19, 2021 in response to Complainant engaging in protected
   activity.

5. Complainant
   served on the Mine safety committee from June of 2016 through June of 2018, and
   or four months, Complainant held a belt examiner certification. During these
   and other times, and while conducting belt examinations, he discovered and
   reported safety issues. On several occasions, he filled out an entire page in
   an examination book with safety concerns and hazards. In several instances, he
   filed complaints with MSHA under section 103(g) of the Mine Act.

6. During his
   employment at the Mine, Complainant frequently accompanied federal and state
   mine inspectors as a Miners’ Representative during their inspections. During
   one such examination by a state inspector, Complainant pointed out an area of
   inadequate roof support for which the inspector issued the Mine a citation. On
   another occasion, Complainant advised an MSHA inspector that an emergency sled
   was not in the required location with the required equipment, and the MSHA
   inspector issued a citation to the Mine.

7. Complainant
   observed a “hot trolley hanger” in the Mine to which someone had run a hose to
   spray water to keep it cool. If the water was turned off for more than 30
   seconds, the hanger would start smoking and the plates in the top would turn
   red. Complainant noted that the Mine did not take any other steps to abate this
   obvious condition during the day shift and afternoon shift, and so he called
   the dispatcher to contact the UMWA and let them know of the situation.
   Following this report, the UMWA and MCCR worked out a suitable solution to address
   the hot hanger.

8. Complainant
   reported that MCCR engaged in a years-long pattern of harassing him due to his
   safety reporting and cooperation with government inspectors.

9. In an August
   14, 2018 letter from the late Bob Murray to UMWA President, Murray identified
   Complainant as one of several out of control individuals at Murray Energy owned
   mines who used “constant safety allegations and 103(g) complaints” to “harass
   [the] company and its management.”

10. Complainant
    was generally known by MCCR as a miner that would cooperate with government
    inspectors. Following a number of anonymous 103(g) complaints called in to MSHA,
    management began referring to Lemley as “‘G’ Lemley.”

11. MCCR raised
    false allegations against Complainant for allegedly destroying a contractor’s
    belt equipment while working underground at the mine. Complainant was subsequently
    written up for poor work performance and suspended on the grounds that he allegedly
    failed to report an area of unsupported roof for which the Mine was cited by a
    state inspector. Complainant maintains that he, in fact, reported the
    unsupported roof to the inspector. The suspension eventually proceeded to
    arbitration, and Complainant was restored to his position with back pay.

12. During a belt
    move in which Complainant reported several safety issues, a foreman encouraged
    Complainant to ignore the safety concerns. Complainant’s work was impeded and slowed
    due to the safety concerns, but he was able to complete the belt move. The
    following day, a foreman told Complainant that the Assistant Superintendent wanted
    to write Complainant up for poor work performance, impeding production, and not
    following safety protocols. However, the foreman purportedly refused to do so
    because Complainant’s safety concerns were accurate.

13. After
    Complainant’s report of the mis-located emergency sled to an MSHA inspector, a MCCR
    safety representative told him he would no longer be able to serve as a Miners’
    Representative on inspections with him if Complainant was going to continue to
    point out safety concerns to inspectors.

14. Following an
    anonymous 103(g) complaint about non-compliant hardhat liners that MSHA
    substantiated and MCCR believed Complainant called in, a member of the Safety Department
    approached him daily for the next two weeks to ensure he had the proper hard
    hat liner.

15. Complainant
    also reported that MCCR assigned him to an especially hostile foreman who repeatedly
    threatened him and attempted to write Complainant up for taking equipment out
    of service, purposefully making mistakes, and creating a hostile workplace.
    Complainant also complains of being assigned to several less desirable
    positions during that time.

16. On March 20,
    2021, Complainant reported five 103(g) safety complaints to MSHA which MSHA
    investigated on March 22 and issued citations substantiating all five
    complaints. While underground, Complainant asked a foreman, “What’s new?” to
    which the foreman responded, “Other than you calling in all these complaints?”
    The foreman informed Complainant that MCCR was not happy, and he showed
    Complainant the list of violations. Complainant stated that the complaints must
    have been legitimate because of the citations issued.

17. The Mine’s
    attendance policy distinguishes between personal and sick days, and provides for
    multiple levels of discipline for violations.

18. On April 2,
    2021, the UMWA and MCCR reached a local agreement to use the miners’ second
    week of vacation this year as personal days, due to the mine ceasing operations
    and permanently closing late in 2021.

19. On April 9
    and 10, 2021, Complainant missed work, apparently without management consent
    and without proving an illness with a doctor’s note.

20. On April 16,
    2021, Complainant suffered an adverse action when MCCR suspended him with the
    intent to discharge him under the attendance policy. Complainant received no
    warning before his suspension and discharge, and he was not afforded an
    opportunity to use personal days or a combination of a personal day and a sick
    day for his two absences.

21. On April 19,
    2021, Complainant suffered an adverse action when MCCR discharged him from his
    employment at the Mine.

22. MCCR treated
    Complainant more harshly than another similarly situated miner who has never
    called in a 103(g) complaint and has never been accused of doing so. In March
    2021, that miner missed work, and attempted to use a personal day, but he did
    not have any personal days left to use. The miner had previously received a
    warning for missing work. As this was an additional unexcused absence within a
    180 day time frame, MCCR issued a letter suspending the miner for two days.
    Subsequently, the miner was again absent from work without an excuse. Yet, although
    MCCR initially moved to discharge him, it did not do so. Instead, MCCR issued
    him a second suspension and allowed him miner to use a personal day for his
    March absence. In addition, the miner had previously violated the attendance
    policies more than once.

23. Based on my investigation to this
    date, I have concluded that there is reasonable cause to believe that MCCR
    discharged Ryan S. Lemley because he engaged in protected activities. MCCR had
    knowledge of Complainant’s protected activities, it demonstrated animus towards
    Complainant regarding his protected activities, it disparately treated
    Complainant, and there was a short time between the latest protected activity
    and the adverse action. Thus, there is reason to believe that MCCR’s decision
    to discharge Complainant was based, at least in part, upon his protected
    activity, and I have concluded that the complaint filed by Ryan S. Lemley is
    not frivolous.

Dec. of Clarence W. Moore, June 8, 2021 (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 Ryan S. Lemley is entitled to Temporary Reinstatement
under the provisions of Section 105(c) of the Act.

ORDER

It is hereby ORDERED that Ryan S. Lemley be immediately
TEMPORARILY REINSTATED according to the terms submitted by the parties
in their Joint Motion to Approve Settlement.

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 (Via Certified Mail & E-mail)

Ryan M. Kooi, Esq., U.S. Dept. of Labor, Office of Regional
Solicitor, 1835 Market St., Mailstop SOL/22, Philadelphia, PA 19103-2968, [email protected]

Timothy J. Baker, Esq., UMWA, 18354 Quantico Gateway Dr.,
Suite 200, Triangle, VA 22172, [email protected]

Philip K. Kontul, Esq., Ogletree, Deakins, Nash, Smoak &
Stewart PC, One PPG Place, Suite 1900, Pittsburgh, PA 15222, [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)).