FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 Pennsylvania Ave. NW, Suite 520N
TELEPHONE: (202)434-9958 / FAX: (202)434-9949
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
on behalf of LARRY ANDERSON,
KALAMAZOO MATERIALS, INC., and
Docket No. WEST 2023-0238
MSHA Case No. RM-MD-2023-05
Mine: Silver Bell
Mine ID: 02-02848
Section 105(c)(1) of the Mine Act provides that “[n]o person shall discharge . . . any miner . . . because such miner . . . has filed or made a complaint under or related to this Act, including a complaint notifying the operator . . . of an alleged danger or safety or health violation in a . . . mine . . . .” 30 U.S.C. § 815(c)(1). In the application, as supported by his investigator’s affidavit (Exhibit B thereto), the following allegations of the Secretary establish the Complaint as having been not frivolously brought under sections 105(c)(1) and (2):
(1) Complainant began work as a
safety and compliance official for Kalamazoo Materials in June 2022.
(2) In January 2023, Complainant made safety complaints to Respondents’ management. The Complaint references several emails with safety complaints that were sent to a Safety Manager, who was listed in the Complaint as responsible for discriminatory action.
(3) Complainant also notified management of his selection to serve as a miners’ representative at several of the Respondents’ mines. The Complaint alleges that management told Complainant to “not speak with miners about their rights.” Application for Temporary Reinstatement (“App.”), Ex. A at 3.
(4) Complainant was “discriminatorily terminated” on January 23, 2023. App. at 4.
I agree with the Secretary that the Complaint was “not frivolously brought” in this instance. See Jim Walters Res., Inc. v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990) (relying upon Mine Act legislative history and the Supreme Court’s treatment of a similar whistleblower protection provision to conclude that the “not frivolously brought” standard is the equivalent of a “reasonable cause to believe” standard and is met when a miner’s “complaint appears to have merit”).
In addition, I have reviewed the terms of the Agreement and find that they do not appear to reduce Complainant’s rights under section 105(c)(2). The Agreement shall remain on file in this proceeding. I reach no conclusion beyond that regarding the merits of the Complaint.
Finally, Section 105(c)(3) of the Act directs the Secretary to notify a complainant whether a section 105(c) violation occurred within 90 days of the filing of a complaint, which in this instance would have been no later than Tuesday, May 2, 2023. See 30 U.S.C. § 815(c)(3). The Secretary shall provide an update regarding the status of the Secretary’s investigation of the Complaint within seven days.
WHEREFORE, the Application is GRANTED, and it is ORDERED that 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 decision, approval of settlement, or other order of this court or the Commission. I retain jurisdiction over this temporary reinstatement proceeding for such purposes as are necessary, as provided by 29 C.F.R. § 2700.45(e)(4).
WHEREFORE, the Secretary is further ORDERED to provide an update regarding the status of the Secretary’s investigation of the Complaint no later than seven days from the date of this Order.
/s/ John T. Sullivan
Distribution (Electronic Mail):
Andrew M. Katz, U.S. Department of Labor, Office of the Solicitor, 350 South Figueroa Street, Suite 370, Los Angeles, CA 90071-1202, Katz.Andrew.M@dol.gov
Dana M. Svendsen, Perkins Coie LLP, 1900 Sixteenth Street, Suite 1400, Denver, CO 80202, (email@example.com)