Secretary of Labor obo Roger Cook v. Rockwell Mining, LLC

Plain-English summary

Roger Cook, a fire boss at Rockwell Mining's Eagle #3 Mine, reported to MSHA that a pump's ground-monitor protection had been bypassed. Rockwell suspended him the next day and terminated him four days later, while asserting that separate misconduct involving a scoop's defective panic bar caused the discipline. The Commission affirmed temporary reinstatement because management knowledge and the close timing supplied a nonfrivolous link between the protected report and the adverse actions. Commissioner Marco Rajkovich found that the Judge should have admitted evidence of the alleged misconduct but that excluding it was harmless because resolving Cook's disputed knowledge would have required an impermissible credibility determination. A separate majority endorsed admitting relevant operator evidence that does not require credibility or value judgments, while Commissioner William Althen would have remanded for a new hearing and Chair Arthur Traynor called that evidentiary rule unnecessary dicta.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(c)(2) and 815(c)(3)
• Outcome: The temporary-reinstatement decision was affirmed.
• Key point: Management knowledge and immediate timing can establish a nonfrivolous discrimination claim, while disputed misconduct cannot be resolved through credibility findings at the interim stage.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W.,
SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY
OF LABOR,                              :

MINE
SAFETY AND HEALTH                     :

ADMINISTRATION
(MSHA)                        :

on
behalf of ROGER
COOK                            
:

:

v.
                                               :        Docket No. WEVA 2021-0203

:

ROCKWELL
MINING, LLC                           :

BEFORE: Traynor,
Chair; Althen and Rajkovich, Commis s io n ers

DECISION

BY:
Rajkovich, Commissioner: [1]

I.                

Introduction

This proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). At issue
is a Judge’s decision on April 2, 2021, granting the Secretary of Labor’s
application for temporary reinstatement of a miner, Roger Cook. Roger Cook was
suspended by the operator on January 21, 2021 and terminated on January 25,
2021. On February 1, 2021, Cook filed a discrimination complaint with the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) over his
termination on January 25. Ex. S-1.

On March 10, 2021, the Secretary filed an application
for temporary reinstatement on behalf of Cook, pursuant to section 105(c)(2) of
the Mine Act. [2]
30 U.S.C. § 815(c)(2) . The Secretary argued that Cook
should be reinstated because his complaint was not frivolously brought. [3] Rockwell
Mining, LLC (“Rockwell”) opposed the Secretary’s application for temporary
reinstatement, arguing that Cook’s complaint was frivolous.

On March 29, 2021, the Judge presided over a hearing
in this matter. On April 2, 2021, the Judge issued a decision granting the
Secretary’s application for temporary reinstatement and directing temporary
reinstatement of the miner. 43 FMSHRC ___, slip op. at 1, No. WEVA
2021-0203 (Apr. 2, 2021) (ALJ) (“ALJ Dec.”). The Judge applied the not frivolously
brought standard to Cook’s claim that he had engaged in protected activity that
had motivated the adverse actions at issue.

On April 7, 2021, Rockwell filed a petition for review
of the Judge’s temporary reinstatement decision. On appeal, the operator argues
that the Judge erred in finding that the operator’s knowledge of Cook’s
protected activity and temporal proximity between the protected activity and
the adverse actions were sufficient to establish a non-frivolous issue of
discriminatory motivation. In addition, the operator argues that the Judge
erred in declining to consider and weigh the operator’s evidence regarding the
operator’s absence of animus and Cook’s unprotected misconduct. The operator
proposes a new “rule” which would require Judges to consider and analyze all
evidence relating to a motivational nexus between a miner’s protected activity
and the adverse actions. Finally, the operator argues that prior to the
hearing, the Judge erroneously excluded evidence of Cook’s unprotected
misconduct, denying the operator due process.

Upon review, a majority of Commissioners affirms the
Judge’s decision, while a separate majority affirms language in Sec’y of
Labor on behalf of Shaffer v. Marion Cty. Coal Co. , 40 FMSHRC 39, 47 (Feb.
2018) as the law of the Commission.

Commissioner Rajkovich finds error in the Judge’s
decision to exclude evidence; however, he finds such error harmless and forms a
majority to affirm the Judge’s decision in result with Chair Traynor, and a
majority to affirm language in Marion Cty. with Commissioner Althen.

Chair Traynor concurs in result only with Commissioner
Rajkovich. Commissioner Althen concurs in part and dissents in part with
Commissioner Rajkovich. 

II.             

Factual Background

Roger Cook was employed as a fire boss at the Eagle #3
Mine operated by Rockwell Mining in Wyoming County, West Virginia from March
2017 until his termination on January 25, 2021. At the time of his termination
on January 25, 2021, Cook was classified as a salary outby foreman. Prior to
his suspension and termination in January 2021, Cook had expressed various
safety related concerns to mine management. In August 2020, Cook had filed an
accident report claiming to have suffered respiratory problems as a result of
spraying gunite [4]
during his work during the prior February. Subsequently, in December 2020, a
month prior to his termination, he voiced concerns about the manner of building
certain stoppings in the mine. In January 2021, Cook expressed concern to
management regarding an allegedly unsafe number of individuals on a man trip
and informed management about a safety concern regarding a flat car.

In addition, on January 20, 2021, while he was
conducting an airway examination, Cook noticed that the ground check monitor
circuit on the cathead plug for the P-70 pump had been bypassed. Cook
discovered that someone had installed a jumper to override the ground check
monitor circuit, a protective device. In response to this unsafe condition,
Cook locked and tagged out the cathead and left a note in the area with the
words “No monitor, had wire under cathead[.] Dusty Cook 1-20-21 11:04 AM Shame[,]
Shame” on it. Ex. S-2. Later the same
day, Cook informed MSHA Inspector John Stone that he had found that the cathead
at issue was plugged in while the ground monitor circuit on the active pump was
bypassed. Inspector Stone issued Order No. 9247364 for this condition.

The order stated
in relevant part that “[t]he Old 6 Head Return P-70 pump . . . has been in
operation without the ground check monitor circuit working. When checked it has
been determined and evidence indicates a jumper has been installed to
bridge/override this protective device.” Ex. S-3. This is consistent with
testimony at the temporary reinstatement hearing that “the pump had been . . . jumped
out or overrode . . . the ground run had been defeated to allow this pump to
run in an unsafe condition.” Tr. 82.

The operator alleges that Cook engaged in misconduct
at the mine a few days prior to his January 20 conversation with the MSHA
inspector. Specifically, the operator alleges that between January 15 and 16,
2021, Cook knew but did not inform management that the No. 6 scoop at the mine
had an unsafe condition – a malfunctioning panic bar. In addition, the operator
alleges that despite knowing of the defective condition, Cook instructed
another miner, Charles Quarles, to operate the scoop on January 15. [5] However, Cook
disputes that he knew about the unsafe condition claiming that “I did not know
that the panic bar wasn’t working [during the relevant time period].” Tr. 57,
101.

On January 21, Cook was suspended. The suspension
occurred a few days after Cook’s alleged misconduct between January 15-16, but the
day after his conversation with the MSHA inspector. On January 25, 2021, four
days after his suspension, Cook was terminated from his employment at the mine.
On February 1, Cook filed a discrimination complaint with MSHA over his
termination. On March 10, the Secretary filed an application for temporary reinstatement
on behalf of Cook.

III.           

The Judge’s Decision

On March 26, a few days prior to the March 29 hearing,
the Judge issued an order which excluded evidence relating to the operator’s
allegations of Cook’s unprotected misconduct. The operator alleged that on
January 15-16, 2021, Cook knew that the No. 6 scoop at the mine had a
malfunctioning panic bar but failed to inform management of the issue, and
failed to prevent another miner, Quarles, from operating the defective scoop. The
operator alleges that this unprotected misconduct was the sole basis for Cook’s
suspension and termination. However, the Judge ruled that the proposed evidence
was beyond the scope of the temporary reinstatement proceeding because it
concerned an affirmative defense and raised issues of credibility. The Judge
repeated this ruling in her post-hearing decision. [6] ALJ Dec. at 3
n.2.

On March 29, the Judge presided over a hearing in this
matter. On April 2, the Judge issued a decision granting the Secretary’s
application for temporary reinstatement and directed that Cook be reinstated.

In her decision, the Judge found that Cook had engaged
in protected activity. Furthermore, the Judge ruled that there was a
non-frivolous issue that Cook’s protected activity on January 20 had motivated
the adverse actions – his suspension on January 21 and his termination on
January 25. [7]
The Judge found that the extremely short period of time between the January 20
cathead incident and Cook’s suspension and termination on January 21 and
January 25 respectively was sufficient to establish “a temporal nexus between
the protected activity and the adverse action[s].” ALJ Dec. at 4-5. In
addition, the Judge found that because management witnessed Cook’s discussion
with Inspector Stone regarding the cathead on January 20, there was “a
non-frivolous issue that management was aware of the [cathead] incident and
that [the operator] had knowledge of Cook’s protected activity.” Id. at
4.

Therefore,
the Judge found that the Secretary had established the operator’s knowledge of
Cook’s protected activity and temporal proximity between the protected activity
and the adverse actions. On this basis, the Judge found a nexus between Cook’s protected
activity and the adverse actions sufficient to warrant reinstatement under the
non-frivolous standard. Consequently, the Judge granted the Secretary’s application
for temporary reinstatement.  

IV.           

Legal Principles

Under section
105(c)(2) of the Mine Act, “if the Secretary finds that [a discrimination]
complaint was not frivolously brought, the Commission, on an expedited basis
upon application of the Secretary, shall order the immediate reinstatement of
the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2) . The Commission has applied the
substantial evidence standard to review a Judge’s temporary reinstatement
order. Sec’y
of Labor on behalf of Williamson v. Cam Mining, LLC, 31 FMSHRC
1085, 1088 (Oct. 2009).  

The Commission has repeatedly recognized that 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.” See 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 (11th Cir. 1990) . At a temporary
reinstatement hearing, the question is whether the complaint is frivolous, “not
whether there [was] sufficient evidence of discrimination to justify permanent
reinstatement.” 920 F.2d at 744.

In a temporary reinstatement proceeding, the Judge
should “evaluat[e] the evidence of the Secretary’s . . . case and determin[e]
whether the miner’s complaint . . . ‘appear[ed] to have merit.’” Williamson,
31 FMSHRC at 1089. During
a temporary reinstatement proceeding, the Secretary need not prove a prima
facie case of discrimination but must simply prove a non-frivolous issue of
discriminatory motivation. However, it is useful to review the elements of a
discrimination claim in order to assess whether the evidence at the temporary
reinstatement stage meets the non-frivolous test. Id. at 1088. In order to
establish a prima facie case of discrimination under section 105(c) of the Act,
a complaining miner bears the burden of establishing (1) that he engaged in
protected activity and (2) that the adverse action complained of was motivated
in any part by that activity (i.e., that a motivational nexus
existed between the protected activity and the adverse action). Sec’y
of Labor on behalf of Pasula v. Consolidation Coal Co. , 2 FMSHRC 2786
(Oct. 1980),  rev’d on other grounds ,  663 F.2d 1211 (3d Cir. 1981) ;  Sec’y
of Labor on behalf of Robinette v. United Castle Coal Co. , 3 FMSHRC
803 (Apr. 1981). [8]

The Commission has recognized that discriminatory
motive may be shown by indirect evidence establishing a motivational nexus
between the miner’s protected activities and the adverse actions. Sec’y of
Labor on behalf of Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508, 2510 (Nov.
1981) (citing  NLRB v. Melrose
Processing Co. , 351 F.2d 693, 698 (8th Cir. 1965) ). The Commission
in  Chacon  stated that discriminatory motive can be
established by circumstantial evidence of: (1) knowledge of the protected
activity, (2) hostility or animus towards the protected activity, (3)
coincidence in time between the protected activity and the adverse action,
and (4) disparate treatment of the complainant. Id.  at 2510-12. The
Commission has held that the Secretary may establish a non-frivolous
motivational nexus simply through the operator’s knowledge of protected
activity and temporal proximity between the protected activity and the adverse
action. Sec’y of Labor on behalf of Stahl v. A&K Earth Movers Inc., 22
FMSHRC 323, 325-26 (Mar. 2000).

Commission Rule 45(d) addresses procedures for
temporary reinstatement hearings, stating that “the Secretary may limit his
presentation to the testimony of the complainant. The respondent [operator]
shall have an opportunity to cross-examine any witnesses called by the
Secretary and may present testimony and documentary evidence in support of its
position that the complaint was frivolously brought.” 29 C.F.R. § 2700.45(d).

In contrast to a discrimination proceeding where the
Judge must resolve conflicting evidence, the Commission has held that the
Judge should not make credibility determinations during a temporary
reinstatement proceeding. Sec’y of Labor on behalf of Billings v. Proppant
Specialists, LLC , 33 FMSHRC 2383, 2385 (Oct. 2011). In Williamson,
31 FMSHRC at 1089, the Commission determined that the Judge made “credibility
determinations in evaluating the Secretary’s prima facie case, which he clearly
should not have done at [the temporary reinstatement stage].” And in A&K
Earth Movers, 22 FMSHRC at 325-26, the Commission determined that
during a temporary reinstatement proceeding, the Judge is not obligated to
resolve testimonial conflicts regarding knowledge even if the operator claims
that it has no knowledge of protected activity. In addition, the Judge should not weigh the
operator’s evidence against the Secretary’s evidence when determining whether
to grant temporary reinstatement. In Williamson, 31 FMSHRC at 1091, the
Commission held
that the Judge erroneously increased the Secretary’s burden in a temporary
reinstatement proceeding by “weigh[ing] the operator’s rebuttal or affirmative
defense evidence against the Secretary’s evidence of a prima facie case.”

V.              

Operator’s Petition for Review

On April 7, 2021, the operator filed a petition for
review of the Judge’s temporary reinstatement decision. On April 13, 2021, the
Secretary responded to the operator’s petition. [9]

In its assignments of error, the operator’s petition
sets forth three alleged errors by the Judge. First, the operator alleges that
the Judge erred in refusing to consider and weigh each element of nexus between
the protected activity and adverse actions in determining whether the Secretary
had met his burden of proof. The four nexus factors consist of the operator’s
knowledge of Cook’s protected activity, temporal proximity between the
protected activity and the adverse actions, the operator’s hostility/animus
towards Cook’s protected activity, and any disparate treatment of Cook. [10]

Second, the operator alleges that the
Judge erred in excluding evidence of Cook’s unprotected misconduct. The
operator alleges that between January 15-16, 2021, Cook knew but did not inform
management that the No. 6 scoop at the mine had an unsafe condition – a
malfunctioning panic bar, and that despite knowing of the defective condition,
Cook instructed another miner, Charles Quarles, to operate the scoop on January

15. Resp’t Proposed Ex. 1. As previously noted, exhibits related to this
    alleged event were excluded by the Judge prior to the hearing. Tr. 127-28; ALJ
    Dec. at 3 n.2.

Third, the operator alleges that it was denied due
process by the Judge’s improper exclusion of evidence.

A.     Knowledge and
Temporal Proximity

As stated above, in a temporary reinstatement
proceeding, the four elements to be considered in determining whether a
complaint is non-frivolous are whether the operator had knowledge of the
protected activity, whether there was a close temporal proximity between the
protected activity and the adverse action, whether the operator had animus
towards the protected activity, and whether the complainant suffered disparate
treatment .
In this case, the operator does not dispute that it had knowledge of Cook’s protected
activity, i.e., Cook’s discussion of the cathead with the MSHA inspector in
January 2021. In addition, the operator does not dispute that protected
activity took place on January 20, and that Cook was suspended and terminated
in the following days – on January 21 and January 25.

Rockwell argues that its knowledge of the protected
activity and temporal proximity between the protected activity and adverse
actions are insufficient generally and especially in this case to show a
motivational nexus. Regarding the specific facts presented here, the operator argues
that its knowledge of the protected activity and temporal proximity between the
protected activity and adverse actions are nullified by an absence of any
evidence of animus towards Cook’s protected activity.

However, under Commission precedent addressing
temporary reinstatement, knowledge of protected activity and temporal proximity
can be sufficient by themselves to establish a nexus between the protected
activity and the adverse action. A&K Earth Movers, 22 FMSHRC at 325-26.
In addition, the Commission has “never held that hostility is a prerequisite to
a finding that a complaint is not frivolous. Rather, such evidence is but one
of several circumstantial indicia of discriminatory intent that may be offered
to show that a complaint is not frivolous.” [11]
Id. at 323 n.2. Therefore, it is clear that knowledge and temporal
proximity are sufficient to establish a non-frivolous claim of motivational
nexus which is not automatically nullified by an absence of evidence of
operator animus towards the protected activity.

I decline to overturn our caselaw holding that
knowledge and temporal proximity can be sufficient by themselves, in the
absence of any other evidence of animus, to support a non-frivolous
motivational nexus. Therefore, I reject the operator’s argument that its
knowledge of Cook’s protected activity and temporal proximity between Cook’s
protected activity and the adverse actions were insufficient to demonstrate a non-frivolous
claim. I conclude that the Judge properly found that the complaint was not
frivolously brought, given the record evidence of operator knowledge and
temporal proximity.

B.     Credibility Determinations

In a temporary reinstatement proceeding the Judge may evaluate
the Secretary’s evidence of a motivational nexus between the protected activity
and the adverse action. Williamson, 31 FMSHRC at 1089. However, the
operator goes further, arguing that the Judge must resolve conflicts in the
evidence (i.e. make credibility determinations) during temporary reinstatement
proceedings.

In Williamson , 31 FMSHRC at 1089-90, and A&K
Earth Movers, 22 FMSHRC at 325-26, the Commission ruled that the Judge
should not resolve conflicts in the testimonial evidence (i.e., make credibility
determinations) during a temporary reinstatement proceeding. I decline to
overturn our caselaw prohibiting credibility determinations in a temporary
reinstatement proceeding.

C.     Weighing the
Operator’s Evidence

In its Petition for Review, the operator proposes that
the Commission enact a rule whereby the Judge “is required to either consider
and analyze each element [regarding the motivational nexus] set forth in Chacon
. . . as well as whether there was independent misconduct by the
Complainant to determine whether the case is frivolous or articulate why the
ALJ decided against considering a specific element.” Pet. for Rev. at 9. This
rule would require the Judge to analyze (i.e., weigh) the operator’s
evidence regarding the motivational nexus and Cook’s unprotected misconduct
against the Secretary’s evidence demonstrating knowledge and temporal
proximity.

Commission caselaw prohibits the Judge from weighing
the operator’s evidence against the Secretary’s evidence in a temporary
reinstatement proceeding. In Williamson, 31 FMSHRC at 1091, the
Commission held that “evidence that Williamson was discharged for unprotected
activity relates to the operator’s rebuttal or affirmative defense” and that
the Judge erroneously increased the Secretary’s burden in a temporary
reinstatement proceeding by “weigh[ing] the operator’s rebuttal or affirmative
defense evidence against the Secretary’s evidence of a prima facie case.”

I emphasize that the operator’s proposed rule requires
the Judge to weigh the operator’s evidence as would be appropriate to a final
decision on the merits. I decline to overturn our caselaw prohibiting the Judge
from weighing the operator’s evidence in a temporary reinstatement proceeding. Consequently,
I conclude that the Judge did not err in declining to weigh the operator’s
evidence during the temporary reinstatement proceeding.

D.     Exclusion of
Evidence

As noted, the operator sought to submit evidence
regarding alleged unprotected misconduct by Cook. However, on March 26, a few
days prior to the hearing, the Judge issued an order excluding such evidence.

It is clear that evidence of unprotected misconduct
would relate to the adverse actions by providing alternative legitimate reasons
for Cook’s suspension and termination. It is also clear that if a Judge could
not consider all evidence relating to the adverse action(s), the operator would
lack a meaningful right to “present testimony and documentary evidence in
support of its position that the complaint was frivolously brought.” 29 C.F.R.
§ 2700.45(d).

In a prior case, two Commissioners addressed
this issue, finding that a temporary reinstatement hearing must be a full
evidentiary process, and during such a proceeding a Judge should consider any
evidence which is both relevant to the adverse action and does not require any
credibility or value determinations. Marion Cty. , 40 FMSHRC at 47
(separate opinion of Acting Chair Althen and Commissioner Young). The
Commissioners stated:

[A]ll evidence
relating to the adverse employment action is relevant in a temporary
reinstatement proceeding -- even that which seems directed to an affirmative
defense or rebuttal of the miner’s claim. While we agree that the Judge should
not make credibility and value determinations of the operator’s rebuttal or
affirmative defense, if the totality of the evidence or testimony admits of
only one conclusion, there is no conflict to resolve.

Id. [12]

Under this approach – hereinafter referred to as the Marion
approach – the Judge can only consider evidence which does not require any
credibility or value determinations. Therefore, this approach is consistent
with the limited nature of a temporary reinstatement proceeding. The Marion
approach also gives operators a meaningful opportunity to provide undisputed
evidence (i.e., evidence which does not require any credibility or value
determinations) that the complaint was frivolously brought. Therefore, it is
consistent with the purpose of Commission Rule 45 which seeks to provide
operators with a meaningful opportunity to present their arguments at a
temporary reinstatement hearing. I hold that the Judge can consider evidence
regarding allegations of a miner’s unprotected misconduct to determine if the
miner has a viable case. Such evidence may not serve as a basis for denial of
reinstatement if it requires resolution of an actual credibility determination.

Scenarios exist where there is no conflicting evidence
regarding the miner’s unprotected misconduct, i.e., a scenario where the
Judge is not presented with any credibility or value determinations regarding
the alleged misconduct. For example, a document, which both parties agree is
genuine, may show that the operator’s decision to fire the miner was made in
response to the miner’s unprotected misconduct and prior to any identified
protected activity. Under these circumstances, the Judge would not need to make
any credibility or value determinations regarding this document. And although
the document would technically relate to an affirmative defense, it would
strongly support a contention that there was no motivational nexus between the
protected activity and the adverse action at issue. In this scenario I would
find that the Judge cannot only consider the uncontroverted evidence regarding
the miner’s misconduct but is required to consider such evidence when making
his temporary reinstatement determination. [13]

On appeal, the operator asserts that Cook engaged in
unprotected misconduct. The operator contends that Cook failed to inform
management of the malfunctioning panic bar on the No. 6 scoop and failed to
prevent, in fact knowingly permitted, another employee, Quarles, from operating
the scoop despite knowing of the defective condition. Therefore, Cook’s alleged
misconduct is predicated on his knowledge of the malfunctioning panic bar. In
support, the operator desired to offer the testimony of its mine superintendent
and a note from the equipment operator, miner Charles Quarles, confirming
Cook’s knowledge of the defect and authorization for its use in the defective
condition.

In contrast to the operator’s allegations, Cook
disputed that he knew about the unsafe condition on the scoop. Cook testified
that “I did not know that the panic bar wasn’t working” during the relevant
time period. Tr. 57. In order to resolve the conflicting evidence, the Judge
would have had to make credibility determinations, which the Judge cannot do. Marion
Cty., 40 FMSHRC at 44, 47 (all four Commissioners, in their separate
opinions, agreed that the Judge cannot make credibility determinations during a
temporary reinstatement proceeding).

Given the statutory and constitutional importance of
an operator’s right to a full hearing, the Judge erred in excluding evidence of
Cook’s alleged misconduct. I believe that the proper approach for the Judge
would have been to allow evidence of Cook’s misconduct during the hearing. Then,
in her post-hearing decision, the Judge could have determined whether the
evidence required her to make any credibility or value determinations, as set
forth in Marion Cty., at 47.

However, as stated above, it appears to me that the
conflicting evidence regarding Cook’s misconduct would have required the Judge
to make credibility determinations. I find that even if the Judge had allowed
such evidence of misconduct during the hearing, she would have been prohibited
from considering it in her post-hearing decision. Therefore, because the
evidentiary exclusion would not have affected the Judge’s post-hearing
decision, I conclude that the Judge’s evidentiary exclusion constituted
harmless error. [14]

E.      Due Process

Lastly, the operator argues that the Judge denied it
due process by characterizing the operator’s evidence as an affirmative defense
or as an effort to dispute credibility and by excluding the operator’s
evidence. In this regard, the operator’s due process argument does not find
fault with any specific Commission procedure but focuses on evidence the Judge
declined to consider. As stated above, the Judge cannot make credibility
determinations in a temporary reinstatement proceeding. Therefore, it is
unnecessary to further consider the operator’s due process argument.

VI.           

Conclusion

For the reasons stated above, I affirm the Judge’s
decision.

/s/ Marco M. Rajkovich,
Jr.

Marco M.
Rajkovich, Jr., Commissioner

Commissioner
Althen, concurring in part and dissenting in part:
[15]

Commissioner Rajkovich does an excellent job of
covering the breadth of precedents bearing upon the adjudication of temporary
reinstatement proceedings, and I concur with his holdings regarding such
proceedings and the correctness and affirmance of the opinions of Acting
Chairman Althen and Commissioner Young in Sec’y of Labor on behalf of
Shaffer v. The Marion Cty. Coal Co. , 40 FMSHRC 39, 47 (Feb. 2018). To ensure
our Judges do not miss the crucial rulings of law, I explicitly concur with
Commissioner Rajkovich that:

1. A temporary
   reinstatement hearing is an expedited hearing but is a full hearing.

2. Respondents in
   temporary reinstatement proceedings are entitled to a full hearing of issues
   related to the allegation of discrimination, including grounds for an
   affirmative defense and whether animus motivated any adverse action. The Judge
   then reviews evidence on such matters and all other evidence under the
   non-frivolous standard of proof set forth in section 105(c)(2) of the Mine Act.
   30 U.S.C. § 815(c)(2).

3. A “non-frivolous”
   case is a claim that is “viable.” Thus, the Secretary must prove by a
   preponderance only that the claim of discrimination or interference may
   succeed.

4. If
   versions of events diverge without dispositive proof of either parties’ version
   (including affirmative defenses), the outcome at the reinstatement stage may
   not rest upon a choice between credibility or the differing versions of events.
   However, the Judge need not accept testimony if it is demonstrably false,
   patently incredible, or obviously erroneous because such evidence fails to
   qualify as “substantial evidence” upon which a reasonable person might rely.

To restate these principles briefly, the Judge may not
decide genuine disputes of fact or credibility arising at a reinstatement
hearing. However, the dispute must be genuine. If the evidence demonstrates
that one party’s version of the “dispute” lacks any credibility, the Judge need
not abandon commonsense and ignore established facts. Judges are not required
to accept testimony demonstrated positively to be false. Suppose a picture properly
introduced into evidence indisputably shows a witness present at a specific
scene and such presence is confirmed by witnesses. In that case, the Judge need
not accept the witness’ protestation that he/she was not present.

A respondent also may introduce evidence going to the
absence of a demonstration of animus. If the evidence shows the absence of a
viable claim, it means the claim is frivolous. [16]

Commissioner Rajkovich correctly describes the failure
of the Judge below to conduct a full hearing by excluding evidence offered by
the respondent to prove it terminated the complainant as a result of a gross
safety violation. Such evidence
was relevant to the respondent’s claim of no showing of animus and that
unprotected activity supported the termination. The evidence was relevant and
admissible. The failure to hear this evidence was an error.

Turning to the disposition, however, I find myself
compelled to disagree with affirming the reinstatement notwithstanding the
clear denial of statutory and constitutional rights. Commissioner
Rajkovich recognizes the error but finds the error harmless.

I disagree that the denial of fundamental statutory
and constitutional rights may be swept aside as a harmless error. Such a
finding repeats and reinforces the error by the Judge. Worse, it may encourage
other Judges to shorten hearings on temporary reinstatement, believing that the
deprivation of statutory and constitutional rights will be “harmless.”

This expedited review is not a suitable place for an
extended discourse on harmless error. Rather than engaging in a lengthy
discussion of harmless error following Chapman v. California , 386 U.S. 18 (1967) and its numerous progeny , I simply state I
find underlying considerations militate in favor of remand. [17]

First, applying developed concepts of harmless error,
I cannot find the error harmless in this case. The Judge’s action is more than
a “trial error.” Denial of the respondent’s rights to present its case
interfered with the substantial rights of the respondent, and the absence of
evidence and testimony may have substantially interfered with the potential
outcome of the hearing. Such error is not harmless.

Second, the “non-frivolous” standard of proof for
reinstatement is as low a standard of “proof” as may be stated. Further,
reinstatement deprives a person of its property and the right to manage its
workforce. For that reason, Congress necessarily gave operators the right to a
hearing. The hearing must be full and robust; it must not be illusory.

If the operator is not allowed to introduce evidence
of the absence of animus or a lawful basis for its action, the right to a
hearing becomes merely a nod at due process rather than meaningful enforcement
of constitutional rights. The only way to provide a measure of due process is
to afford respondents full and fair hearings. By requiring Judges to hold
proper hearings, the Commission assures full rights to respondents.  If every
error is “harmless,” there is little incentive to accord respondents their full
rights. [18]

Third, we should consider the error in this case in
the context of the alleged actions of the claimant. Judges must not be legal
automatons aware only of the law and unaware of the allegations. Respondent
alleges that the complainant, a foreman and mine examiner, knowingly ordered or
permitted an hourly employee to operate a scoop with an inoperable safety
device. MSHA issued a citation for the operation of the defective equipment
asserting an S&S violation and a likelihood of a fatality. For a foreman to
knowingly authorize or order a miner to use a scoop with a defective safety
device would be serious, potentially criminal, misconduct. Section 110(c) of
the Mine Act, 30 U.S.C. § 820(c).  Certainly,
MSHA must be investigating that possibility thoroughly.

Again, I do not express any opinion regarding the
claims made by the complainant or respondent. However, it is relevant that this
case involves more than an allegation that an hourly employee cursed at a
supervisor, had an unexcused absence, or violated a work rule. Of course, due
process and statutory rights apply to all cases. However, reinstatement of a
mine inspector who allegedly authorized a miner to use unsafe equipment
requires an especially vigorous review of the evidence.

In summary based upon the foregoing, I concur that the
Judge erred in excluding evidence proffered by the respondent. I would not find
such error harmless, and I would remand for the full hearing to which the
respondent was entitled. [19]

/s/ William I.
Althen

William I. Althen,
Commissioner

Chair
Traynor, concurring in result only :

I join
Commissioner Rajkovich’s decision affirming the Judge’s application of the “not
frivolously brought” standard to temporarily reinstate the miner claimant’s
employment pending full litigation of the merits of his claim. I wish I could
join his opinion and would have, but for his decision to join Commissioner
Althen’s foray into dicta addressing issues Commissioner Rajkovich and I did
not reach and do not need to reach in order to affirm the decision below.

In their opinions, my colleagues attempt in vain to
make big changes to the not frivolously brought standard – changes that are not
necessary to resolution of this case. See Export Group v. Reef Indus., Inc .,
54 F.3d 1466, 1472 (9th Cir.1995) (explaining that statements not necessary to
the decision are dicta and thus are not binding precedent). Specifically, they
seek in this case to resolve a split in one of our earlier cases.

In Secretary of Labor on behalf of Shaffer v.
Marion Cty. Coal Co. , 40 FMSHRC 39 (Feb. 2018) (“ Marion ”), the
Commission issued a 2-2 decision that unanimously held that during a temporary
reinstatement hearing a Judge is not to make credibility determinations. Commissioners
Jordan and Cohen issued a decision noting that evidence relating to whether the
complainant was discharged for unprotected activity relates to the operator’s
rebuttal or affirmative defenses and thus is not appropriate to be considered
in the temporary reinstatement decision. Id . at 44. Acting Chair Althen
and Young concluded that evidence that may relate to the operator’s defense is
relevant in a temporary reinstatement decision, but if that evidence creates a
conflict or requires a credibility determination, the Judge is not to resolve
it at the temporary reinstatement stage. [20]
Id. at 47.

In the case at hand, the majority attempts to cement
the Althen/Young opinion into law, even though it is entirely unnecessary to
the decision Commissioner Rajkovich and I reach to affirm the Judge in this
case. Commissioner Rajkovich and I have produced a holding; their efforts
produce only dicta. The current Black’s Law Dictionary observes that “ obiter
dictum” is Latin for “something said in passing” and refers to:

a
judicial comment made while delivering a judicial opinion, but one that is
unnecessary to the decision in the case and therefore not precedential
(although it may be considered persuasive). — Often shortened to dictum or,
less commonly, obiter.

Dictum, Black’s Law
Dictionary (11th ed. 2019). The same dictionary defines “judicial dictum”
as:

An
opinion by a court on a question that is directly involved, briefed, and argued
by        counsel, and even
passed on by the court, but that is not essential to the decision and therefore
not binding even if it may later be accorded some weight.

Id . Dicta is not
law. United States v. Pasquantino , 336 F.3d 321, 329 (4th Cir.2003) (en
banc) (stating that dicta “cannot serve as a source of binding authority in
American jurisprudence.”)

My colleagues both find error with the Judge’s
exclusion of evidence proffered in support of the operator’s affirmative
defense. But one - Commissioner Rajkovich - correctly decides such error is
harmless because the Judge would not have been permitted to resolve credibility
issues raised by the excluded evidence. [21]
Slip Op. at 11. Accordingly, and because I also vote to affirm, the decision of
the Judge is affirmed without need to consider or resolve the issue on which
the Commission split 2-2 in Marion , i.e., whether a Judge can consider
an operator’s rebuttal or affirmative defense when applying the not frivolously
brought standard to a claim for temporary reinstateme nt.

Not only are my colleagues’ dicta not binding, their
musings on the admissibility of evidence offered to prematurely substantiate an
operator’s affirmative defense or rebuttal case are unpersuasive. [22] I do not
understand why they wish to require our Judges to conduct temporary
reinstatement hearings in such a cumbersome manner, requiring the introduction
of evidence that cannot be considered in the decision. Why would we require our
Judges to unnecessarily prolong temporary reinstatement hearings in order to
receive potentially extensive evidence as to the operator’s affirmative
defenses or rebuttal case, only to exclude the evidence from consideration? Only
once the case proceeds to a decision on the merits will the claimant or
Secretary of Labor have had a full opportunity to conduct discovery and develop
their evidence. [23]
And our Judges would then need to once again take evidence as to the operator’s
rebuttal and affirmative defenses. Judges should only take evidence germane to
the decision at hand. In this case, at this stage, that is limited to evidence
going to whether the discrimination claim – looking at preliminary evidence
only as to each element necessary to establish the claimant’s prima facie case –
is frivolously brought.

Commission Judges should continue to exclude from
their decision-making in temporary reinstatement proceedings any evidence
offered solely to support an operator’s affirmative defense or rebuttal. Evidence
that may not be considered in a temporary reinstatement decision should not be
permitted to burden the docket and prolong proceedings. My colleagues’
non-binding preference notwithstanding, we continue to prohibit not only
untimely credibility determinations, but also any premature weighing of
evidence offered in support of an operator's affirmative defense against or
rebuttal to the claimant’s prima facie discrimination claim.

I join Commissioner Rajkovich to affirm the decision
below.

/s/ Arthur R.
Traynor, III

Arthur R. Traynor,
III, Chair

Distribution (by e-mail):

Christopher D. Pence, Esq.

Hardy Pence, PLLC

10 Hale Street, 4th Floor

PO Box 2548

Charleston, WV 25329-2548

[email protected]

LaShanta Harris, Esq.

U.S. Department of Labor

201 12th Street South, Suite 401,

Arlington, VA, 22202-5450

[email protected]

Archith Ramkumar, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

April Nelson, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Administrative Law Judge Priscilla Rae

Federal Mine Safety & Health Review
Commission

Office of the Chief Administrative Law
Judge

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

[email protected]

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

[1] Commissioner
Rajkovich’s separate opinion is part of the majority on every issue presented
on appeal. As discussed more fully on the following page, Chair Traynor and
Commissioner Althen each write separately, concurring in part and dissenting in
part with Commissioner Rajkovich’s opinion.

[2] Under section
105(c)(2) of the Mine Act, “if the Secretary finds that [a discrimination]
complaint was not frivolously brought, the Commission, on an expedited basis
upon application of the Secretary, shall order the immediate reinstatement of
the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2) .

[3] In her decision,
the Judge considered whether there was a non-frivolous motivational nexus
between Cook’s protected activity and two adverse actions - his suspension on
January 21 and his termination on January 25.  43 FMSHRC ___, slip op. at 4-5,
No. WEVA 2021-0203 (Apr. 2, 2021) (ALJ). Therefore, in reviewing the Judge’s
decision, I will consider both adverse actions.

[4] Gunite
is generally made of cement and is sprayed on pneumatically.

[5] The operator
sought to introduce a written statement from Quarles to this effect. Resp’t
Proposed Ex. 1. The Judge refused to allow testimony on the matter and did not
accept the proffered note into evidence.

[6] The operator
filed a Motion to Reconsider the Judge’s March 26 Order which the Judge also
denied. ALJ Dec. at 3 n.2.     

[7] Although the
Judge briefly mentioned other instances of protected activity, she focused on
Cook’s protected activity on January 20, 2021. On that day, Cook engaged in
protected activity when he informed an MSHA inspector why he had locked and
tagged out the cathead on the P-70 pump. ALJ Dec. at 4-5.

[8] In a decision
issued on April 14, 2021 the United States Court of Appeals for the Ninth
Circuit rejected the Pasula-Robinette test for violations of section
105(c).   Thomas v. CalPortland Co., No. 20-70541 ___ F.3d ____, 2021 WL
1396753 (9 th Cir. April 14, 2021). Here, neither party challenged
the Pasula-Robinette test before the Administrative Law Judge, and it is
not before the Commission in this decision. It should also be noted that this mine
is not domiciled within the Ninth Circuit jurisdiction.

[9] On April 15,
2021, the operator filed an unopposed motion with the Judge to substitute
economic reinstatement for Cook’s actual physical reinstatement, pursuant to an
agreement with the Secretary and Cook for such economic reinstatement. The
Judge issued an order granting this motion on April 16, 2021.

[10] During its
discussion of this alleged error, the operator argues that its knowledge of
Cook’s protected activity and temporal proximity between his protected activity
and the adverse actions are insufficient to establish a non-frivolous
motivational nexus, and that the Judge failed to consider and weigh its
evidence regarding the absence of animus and Cook’s unprotected misconduct. Moreover,
the operator proposes a rule which would require a Judge to consider all
evidence regarding the operator’s motivation and the miner’s unprotected
misconduct before granting temporary reinstatement.

[11] The operator
analogizes this case to a Judge’s determination in Sec’y of Labor on behalf
of Fletcher v. Frontier Kemper Constructors, Inc., 34 FMSHRC 2189
(Aug. 2012) (ALJ). An Administrative Law Judge’s decision is not
binding on the Commission. 29 C.F.R.        § 2700.69(d).

[12] Commissioner
Althen, as set forth in his separate opinion, joins Commissioner Rajkovich to
affirm this holding as the law of the Commission.

[13] I note that there
may be other factual scenarios which similarly do not involve any credibility
or value determinations. However, it is not necessary to consider such hypothetical
scenarios for the purpose of this proceeding.

[14] I am troubled by
the Judge’s order excluding evidence of Cook’s unprotected misconduct. I note
that such evidentiary exclusions may deny the operator an opportunity to
introduce relevant evidence on its behalf during a temporary reinstatement
proceeding.

[15] This opinion does
not express any opinion regarding the merits of the complaint or defense. It
treats only the rights of the respondent to a fair hearing. Presumably, MSHA is
conducting its investigation into the claims of both parties. Indeed, because
the complaint was filed on February 1, 2021, MSHA should have made its
determination whether to proceed with a case by now or should make such
determination within a few days of the issuance of this decision. 30 U.S.C. §
815(c)(3).

[16] I do not
understand the failure to discuss the excellent ALJ decision in Sec’y of Labor on
behalf of Fletcher v. Frontier-Kemper Constructors, Inc. , 34 FMSHRC 2189
(Aug. 2012) (ALJ). I do not believe Commissioners have any greater knowledge or
understanding of the Mine Act than Commission ALJs. Commission ALJ decisions
are worthy of consideration even if not precedential. In the Fletcher
case, there was a temporal connection between the complainant talking to an
MSHA inspector and the termination of his employment. Nonetheless the evidence
did not provide an element of animus to the employer’s action. The Judge denied
temporary reinstatement finding that there was no evidence of animus or
disparate treatment. Id . at 2219-20.

Though stated in terms of animus, the Judge could have
alternatively stated that the respondent demonstrated a proper motive for
termination. Under either wording, the complainant’s claim was not viable –
that is, was frivolous

[17] In Chapman ,
the Court referred to “small errors or defects that have little, if any,
likelihood of having changed the result of the trial.” 386 U.S. at 21-22 . These are categorized as “trial errors.”
The error here certainly was not “harmless beyond a reasonable doubt” as
described in Chapman . 386 U.S. at 24.

[18] Just as this
opinion offers no opinion on the outcome of this discrimination claim, it also
offers no criticism of the respected Administrative Law Judge who presided at
the hearing. The low standard of review may incentivize cutting through “red
tape” to reach a decision that may seem inevitable. That incentive likely
extends to all Judges and to the Commissioners.

[19] Chair Traynor’s
opinion warrants only a footnote. Respondent’s Petition for Review challenged
the exclusion of evidence relevant to its affirmative defense and the failure
of the Judge to accept evidence that would fully undermine the complainant’s
trial claim. We granted that Petition and reviewed those issues. Those were the
issues before us for decision. We have held the Judge erred and that the
evidence was admissible.  That is the holding in this case and the law of the
Commission.

[20] Acting Chair
Althen and Commissioner Young’s separate evidentiary rule is impossible to
apply in a temporary reinstatement proceeding. Evidence that may allegedly
demonstrate that the miner either did not engage in protected activity or that
the operator was motivated by non-protected activity creates a conflict in the
evidence and therefore cannot be considered. They seem to simultaneously
require the Judge to admit the evidence, but to exclude it from her
consideration as to whether the case has been frivolously brought.

[21] The Judge determined
that the evidence proffered by the operator would require a credibility
determination and thus it was beyond the scope of the temporary reinstatement
hearing. ALJ Dec. at 3 n.2; Unpublished Order dated Mar. 26, 2021.

[22] I do not find it
necessary to rebut Commissioner Althen’s contention that our precedents
precluding premature consideration of affirmative defenses and rebuttal cases
at this stage violates any legally cognizable operator’s “right to manage its
workforce.” Slip Op. at 14.

[23] Commission Rule
45 provides that a hearing on a petition for temporary reinstatement must occur
very quickly after a petition requesting such relief is filed and without
opportunity for either the claimant or operator to take discovery.