Secretary of Labor obo Phillip Bowman v. Lexington Coal Company, LLC

Plain-English summary

Lexington Coal sought to toll Phillip Bowman's temporary economic reinstatement after the Twilight Surface Mine was idled and employees with Bowman's skill set were laid off. The judge accepted evidence that the shutdown resulted from losing a high-price coal sales contract and that no comparable transfers were available. He therefore tolled reinstatement as of October 4, 2023. The judge refused to make tolling retroactive to the July 11 layoff because Lexington waited until August 25 to seek modification and had stopped payments without permission. Lexington was ordered to pay all amounts due from July 25 through October 4 and to report if production or employee recalls resumed.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)
• Outcome: Economic reinstatement was tolled prospectively, with unpaid amounts through October 4 still due.
• Key point: An economic layoff can toll temporary reinstatement, but an operator cannot stop ordered payments unilaterally before obtaining modification.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

1331 Pennsylvania Ave. NW, Suite 520N

TELEPHONE: (202)434-9900 / FAX: (202)434-9949

|
SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), on behalf of PHILLIP BOWMAN, Complainant,
v.
LEXINGTON COAL COMPANY, LLC, Respondent. |
|
|
TEMPORARY REINSTATEMENT PROCEEDING
Docket No. WEVA 2023-0363 MSHA Case No. HOPE-CD-2023-4
Mine: Twilight Mtr Surface Mine Mine ID: 46-08645 |

ORDER GRANTING UNOPPOSED MOTION TO TOLL TEMPORARY ECONOMIC
REINSTATEMENT

Before: Judge McCarthy

Procedural
Background

This
case is before the undersigned upon an Application for Temporary Reinstatement
filed by the Secretary of Labor pursuant to section 105(c)(2) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (“Mine Act”), and
29 C.F.R. § 2700.45. On June 12, 2023, the Secretary filed an
application on behalf of miner Phillip Bowman (“Complainant”) seeking his
reinstatement to his former position as a rock truck driver at the Twilight Mtr
Surface Mine operated by Lexington Coal Company, LLC.[1]

On June 29, 2023, the Secretary filed a Settlement Agreement and Joint Motion for Temporary Economic Reinstatement. The terms of the agreement provide for the Complainant to receive economic reinstatement with Lexington Coal Company in lieu of immediately returning to work. The undersigned approved this Settlement Agreement on July 10, 2023, and held that

[the parties were to comply with the terms and conditions in the
Joint Motion,” and “that this economic reinstatement shall]remain
in effect until such time that the Secretary provides notification that he will
not be bringing a discrimination case in chief on behalf of the Complainant, or
such a case is brought and there is a final determination on it by Commission
decision, approval of settlement, or other order of this tribunal or the
Commission.

Order Granting Joint Motion for Economic Reinstatement at 2-3. The undersigned retained jurisdiction over this temporary reinstatement proceeding for such purposes as are necessary, as provided by 29 C.F.R. § 2700.45(e)(4).

On August 25, 2023, the Respondent filed a Motion to Toll [the] Economic Reinstatement Order, claiming that the Mine was idled on July 11, 2023 – the day after the temporary economic reinstatement was Ordered in this matter. The Motion further claimed that the mine had been idled due to “a downturn in the coal market resulting in all of its production coal miners being laid off by the Lexington [sic].” Mot. to Toll Economic Reinstatement Order at 2. In support of its assertions, the Respondent attached an Affidavit signed by mine superintendent Casey Miracle, which briefly describes the shutdown at Lexington's surface mine in Boone County, West Virginia. That affidavit avers, in part, that

1. Complainant was previously employed as rock truck operator at the Twilight Surface Mine in Boone County, West Virginia;

2. As of July 11, 2023, coal production at the Lexington's Twilight Surface Mine has been idled and all employees have either been laid off or transferred;

3. No person with the Complainant’s specific skill set is currently working at the Twilight Surface Mine;

4. Complainant would have been laid off from working at the Twilight Surface Mine on July 11, 2023, along with the other coal miners with a similar skill set.

Aff. of Casey Miracle at ¶¶ 3-7.

On Thursday September 21,
2023, the undersigned held a conference call with the parties to discuss his
concerns regarding the then-pending request to toll Complainant’s temporary
economic reinstatement. More specifically, the undersigned expressed concern that
1) the Mine was idled nearly contemporaneously with the issuance of my July 10,
2023 Order granting Complainant’s temporary economic reinstatement; 2) while Respondent’s
counsel referenced a downturn in the metallurgical coal market in her motion,
this downturn was not referenced in Mr. Miracle’s affidavit or substantiated by
any other evidence; 3) no explanation was provided for why Complainant was
ineligible for transfer to another mine facility operated by Lexington Coal; and
4) there was no indication whether the layoff was temporary or permanent. During
the call, counsel for the Respondent confirmed that on or about July 25, 2023, a
single payment was remitted to Complainant under the terms of my Order. Counsel
for the Secretary indicated that the Secretary was pursuing the underlying
discrimination case.[2]
The undersigned requested that Respondent’s counsel prepare a revised motion
addressing my concerns.

On September 27, 2023, the Respondent filed a Revised Verified Motion to Toll Economic Reinstatement Order. The Revised Motion included a Revised Affidavit from Casey Miracle (Exhibit 1) and copies of 1) Commission case law, and 2) samples of non-precedential ALJ decisions resolving motions to toll temporary reinstatement (Exhibit 2). Mr. Miracle’s revised affidavit states as follows:

1. I [Casey Miracle] am currently employed as a Superintendent of Lexington Coal Company, LLC ("Lexington") and have been employed in such a capacity since February 22, 2022.

2.
I am therefore authorized and qualified to create this Affidavit
and have personal knowledge of the facts contained therein.

3.
I wish to clarify the statements made during my Affidavit dated
August 25, 2023; I am the ** only **employee of Lexington who was
transferred from Twilight. Upon information and belief, I was transferred
because I am the Superintendent of the operation and such a specific skillset
was required at another of Lexington's operations, being one hour and
forty-five minutes northwest.

4. On or about the first week of July, 2023, the Twilight layoff was coordinated by Lexington's management; upon information and belief, such decision was made as a result of its loss of a high price sales contract.

5.
I was instructed by management at approximately ** 8:00 a.m. **on
July 10, 2023 and it was necessary to lay off the employees on July 11, 2023.

6. The layoff was strictly due to the coal market decrease Lexington faced, beginning during the first week of July 2023. Specifically, there became low demand for Lexington's Metallurgical coal product mined from Twilight. Lexington could not afford to operate Twilight until and unless it secured another order to fill the void.

7. There are currently no individuals with [Complainant]’s skill set working for Lexington at the Twilight Surface Mine.

8. There were no transfers available for any other employees.

9. All employees with [Complainant]'s skill set were laid off on July 11, 2023.

10. [Complainant] would have been laid off on July 11, 2023 with the other coal miners with his skill set working for Lexington at the Twilight Surface Mine.

For the reasons that follow, the undersigned tolls Complainant’s economic reinstatement as of the date of this Order.

Analysis

“The Commission has
recognized that the occurrence of certain events, such as a layoff for economic
reasons, may toll an operator's reinstatement obligation.” MSHA obo Robert
Gatlin v. KenAmerican Resources, Inc., 31 FMSHRC 1050, 1054 (Oct. 2009). This
“limited inquiry to determine whether the obligation to reinstate a miner may
be tolled even when it has been established that the miner's discrimination
complaint is not frivolous,” must be consistent with the “narrow scope of
temporary reinstatement proceedings.” MSHA obo Dustin Rodriguez v. C.R.
Meyer & Sons Co., 2013 WL 2146640, *3 (May, 2013). Accordingly,

[a]n operator
generally must affirmatively prove that a layoff justifies tolling temporary
reinstatement by a preponderance of the evidence. Gatlin, 31 FMSHRC at
1055. However, if the objectivity of the layoff as applied to the miner is
called into question in the temporary reinstatement phase of the litigation,
judges must apply the “not frivolously brought” standard contained in section
105(c)(2) of the Mine Act to the miner's claim.

MSHA obo Russell Ratliff v. Cobra Natural
Resources, LLC,
2013 WL 865606, 4 (Feb. 2013). “In other words, temporary reinstatement should
be granted and not tolled unless the operator shows that the claim that the
layoff arose at least in part from protected activity is frivolous.” C.R.
Meyer & Sons, 2013 WL 2146640, 3.

The Commission has found that tolling
is an affirmative defense and an operator must make a showing by a
preponderance of the evidence that no work was available for the miner. KenAmerican
Resources, 31 FMSHRC at 1054-55; Cf., Chadrick Casebolt, 6
FMSHRC 485, 499 (Feb. 1984) (“if business conditions result in a reduction in
the work force the right to back pay is tolled because a discriminatee is entitled
to back pay only for the period during which he would have worked but for the
unlawful discrimination.”).

In this case, Respondent
initially submitted limited evidence to carry its burden to prove, by a
preponderance of the evidence, that layoffs at the Mine justify tolling
Complainant’s temporary economic reinstatement. See Gatlin, 31
FMSHRC at 1054. The only submission provided in support of the Motion to Toll
Temporary Economic Reinstatement was Casey Miracle’s affidavit. That affidavit
makes a passing reference to a possible change in the economic conditions at
the Mine, stating that, “as of July 11, 2023, Lexington’s Twilight Surface Mine
has been idled.” [Aff. of Casey Miracle at ¶ 5.]Within
the affidavit, Mr. Miracle states further that “there are currently no
individuals with [Complainant’s] skill set working for Lexington Coal Company,
LLC at the Twilight Surface Mine,” and “were it not for this honorable Court's
Temporary Reinstatement Order, [Complainant] would have been laid off on July
11, 2023 with the other coal miners with his skill set working for Lexington
Coal Company, LLC at the Twilight Surface Mine.” Id. at ¶¶ 6-7. Mr.
Miracle did not expound on the reasons for Respondent’s decision to idle
production at the Twilight Surface Mine, such as a market downturn or other
externalities that might lawfully motivate that decision. See Id. at ¶

5. Nor did he provide any justification at all for his employer’s decision to
   either terminate or transfer every employee previously assigned to the Twilight
   Surface Mine. See Id. at ¶ 4. Furthermore, other than stating that
   Complainant “was previously employed as a rock truck operator,” Mr. Miracle provided
   no details concerning Complainant’s skill set or credentials. See Id. at
   ¶ 4. There was nothing provided in Miracle’s initial affidavit explaining why
   Complainant would have been ineligible for transfer or reassignment rather than
   termination, except for the conclusory statement that “[Complainant] would have
   been laid off on July 11, 2023 with the other coal miners with his skill set.” Aff.
   of Casey Miracle at ¶ 7.

Mr. Miracle’s
revised affidavit ameliorates many of the foregoing concerns. First, he describes
how the decision to idle production at the Mine was motivated by "low
demand for Lexington’s Metallurgical coal” following the “loss of a high price
sales contract.” Rev. Aff. of Casey Miracle at ¶¶ 4, 6.[3]
Mr. Miracle further averred that “Lexington could
not afford to operate Twilight until and unless it secured another order to
fill the void.” Id. at ¶ 6. In addition, Miracle now avers that after
the decision to idle the Twilight Surface Mine was made, only Mr. Miracle – as
the mine superintendent – was transferred to another mine facility operated by
the Respondent. See id. at ¶ 3. No other employees at the Twilight
Surface Mine were eligible for transfer, and all other employees, including
those individuals with a skill set similar to Complainant’s, were laid off. See
id. at ¶¶ 7-9.

The Secretary has not filed an opposition to the motion to toll or otherwise submitted any evidence to rebut Respondent’s evidence. Thus, the only evidence that may be considered at this time are the Respondent's evidentiary submissions, as well as any relevant evidence from the original application for temporary reinstatement. Considering the totality of the Respondent's evidence and the lack of any evidence from the Secretary to the contrary, the undersigned finds that the Respondent has met its burden. As a result, my July 10, 2023 Order Granting Joint Motion for Economic Reinstatement shall be tolled.

The undersigned
must next consider the effective date of tolling and whether the Respondent
maintains any obligation to remit additional payments to Complainant. In its initial motion Respondent argued that tolling
should be effective on July 11, 2023, the date production was idled at the
Mine. The Respondent cites Wiggins v. E. Assoc. Coal Corp. and Casebolt
v. Falcon Coal Co., Inc. in support of the proposition that “a back
pay award ends upon the date of a layoff.” See 7 FMSHRC 1766, 1772-73
(Nov. 1985); 6 FMSHRC 485, 486 (Feb. 1984). This case law is inapposite. In
the former case, the Commission reviewed an ALJ Decision following a
discrimination hearing on the merits, a hearing that Wiggins had requested
pursuant to 30 U.S.C. § 815(c)(3) after the Secretary declined to prosecute a
case on his behalf. See Wiggins, 7 FMSHRC at 1768. In the latter
case, Casebolt did not seek economic reinstatement and conceded that he
suffered no loss of pay from any alleged discrimination, instead seeking broader
“make whole” remedies. See Casebolt, 6 FMSHRC at 486. Neither case
involved the approval of a temporary reinstatement order at any stage of the
proceedings, and calculation of any ‘back pay’ occurred only after the complainants
were afforded the opportunity to present a full case on the merits.

The Respondent
also relies on MSHA o/b/o Clinton Ray Ward v. Argus Energy WV, Inc.,
a non-precedential ALJ decision attached as Exhibit 2 to the Respondent’s
initial Motion to Toll Economic Reinstatement Order. The Respondent contends
that “the present situation is very similar to the one reviewed by ALJ Steele
while rendering [that] decision.” Mot. to Toll Economic Reinstatement Order at

2. However, unlike the present situation, Judge Steele’s decision resolved a
   motion to dissolve temporary reinstatement after the Judge had already denied
   the Discrimination Complaint on the merits. Moreover, the motion to dissolve
   the temporary reinstatement order was filed in that case on December 12, 2023,
   which was more than two weeks before the mine was set to idle on December 25,
3. By contrast, the idling of the Mine and layoff in this case was not
   raised until well after my July 10, 2023 [Order Granting
   Joint Motion for Economic Reinstatement.]Indeed, more than six weeks
   passed before Respondent filed its initial August 25, 2023 motion alleging that
   the idling of production and layoff constituted sufficient changed
   circumstances to justify tolling of my Order. See Gatlin, 31
   FMSHRC at 1054. This delay occurred despite the fact that the mine was idled
   the day after issuance of my Order and a mere twelve days after the parties
   agreed to a potential settlement regarding the then-outstanding reinstatement
   request. The Respondent cannot now claim that its payment obligations should be
   tolled retroactively to July 11, 2023, when Respondent was responsible for the 45-day
   delay between the July 11 layoff and the August 25, 2023 filing of its initial
   motion to toll my July 10, 2023 Order Granting Joint Motion for Economic
   Reinstatement.

As noted above, during the September 21,
2023 conference call, counsel for the Respondent confirmed that a single
payment was remitted to Complainant on or about July 25, 2023. The Respondent,
however, was obligated to continue to comply with the terms and conditions of
my economic reinstatement Order which “shall remain in effect until such time
that the Secretary provides notification that he will not be bringing a
discrimination case in chief on behalf of the Complainant, or such a case is
brought and there is a final determination on it by Commission decision,
approval of settlement, or other order of this tribunal or the Commission.” Order
Granting Joint Motion for Economic Reinstatement at 2-3. Rather than complying
with that Order, Respondent apparently unilaterally ceased payments to
Complainant after July 25, 2023, without leave of this tribunal and a full
month before filing its initial motion to toll. In previous cases, the
Commission has rebuked a mine operator for unilaterally cutting off payments to
an alleged discriminatee on the date of a reduction-in-force rather than on the
date of modification of an order. Gatlin, 31 FMSHRC 1050, n. 2. In Gatlin,
the Commission stated that “[r]ather than determining unilaterally that the
workforce reduction justified terminating Mr. Gatlin’s reinstatement, [the
Respondent] should have moved the Judge to modify the … Order.” Id.,
citing Consolidation Coal Co., 14 FMSHRC 956, 970 (June 1992) (“[N]o operator is free
to take the law into its own hands by deciding for itself what the law means
and how it can best be applied.”). If the Respondent here had continued
payment to the miner pursuant to the temporary economic reinstatement Order,
that money would not be recoverable by the Respondent even though its July 11,
20223 layoff warranted tolling the temporary economic reinstatement. See Sec’y
of Labor obo Dustin Rodriguez v. C.R. Meyer and Sons Co., 35 FMSHRC 811,
813-814 (Apr. 2013) (“[T]here
is nothing in the Mine Act which contemplates that the miner would be expected
to repay the amounts paid pursuant to the reinstatement order. Indeed, that
would run counter to the intent of the provision, which is to provide immediate
relief to a complaining miner while he or she waits for the case to be
decided.”)

Consistent with the reasoning in Gatlin,
because the terms of my July 10, 2023 Order remained in effect until
such time as the period of reinstatement is modified, Complainant Bowman should
have continued to receive economic reinstatement until the date of this Order
granting tolling. Gatlin, 31 FMSHRC at
1055 (“Thus, KenAmerican must continue to comply with the terms of the
August 31 Order and pay Mr. Gatlin until the matter is resolved by the Judge.”).

Order

It is ORDERED
that Complainant’s temporary economic reinstatement is TOLLED as of October
4, 2023, the date of this Order.

It is ORDERED that
Respondent remit to Complainant any payments that are still due under the terms
of my July 10, 2023 Order Granting Joint Motion for Economic Reinstatement from
July 25 until October 4, 2023.

It is further ORDERED that the
Respondent shall inform the Secretary, Complainant, and this tribunal if the
Twilight Mtr Surface Mine is brought back into production, or any employees are
recalled from layoff.

/s/
Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution (Electronic Mail):

Kyle D. Stelmack, Esq.

Office of the Regional Solicitor

U.S. Department of Labor

1835 Market Street, Mailstop SOL/22

Philadelphia, PA 19103

Helena Racin Jackson, Esq.

685 Hambley Blvd., Suite 1-A

Pikeville, KY 41501

/cbb

[1] The following
allegations are delineated within the Secretary’s application and MSHA’s
special investigator’s affidavit affixed as Exhibit A thereto:

1) Complainant began working as a truck driver at the Twilight Surface Mine in October 2021;

2) On or about April 3, 2023, Complainant informed his foreman that rock truck number 252 CAT 777 had no air conditioning and was releasing exhaust fumes into the cab of the truck;

3) On April 4, 2023, Complainant downed rock truck number 252 CAT 777 and informed his foreman that he would not drive the truck in its current condition;

4) On April 5, 2023, he was told to run rock truck number 252 CAT 777 in its then current condition or to go home. Complainant then contacted MSHA and reported his concerns with the truck;

5) On April 6, 2023, MSHA inspectors issued a citation which identified conditions consistent with those alleged by Complainant (Ex. C);

6) Complainant was “discriminatorily terminated” on April 19, 2023. App. at 8.

[2] Upon questioning
from the undersigned, counsel for the Secretary indicated that MSHA had confirmed
that there was a layoff at the Mine, but had not investigated whether the layoff
or partial closing itself was motivated by protected activity.

[3] No other
documentation establishing loss of this contract was provided.