Summary decision is not a substitute for a hearing in a temporary reinstatement case where the responding party requests a hearing. This was the holding of the Federal Mine Safety and Health Review Commission in Secretary of Labor (MSHA) on behalf of Reuben Shemwell v. Armstrong Coal Company Inc. and Armstrong Fabricators, Inc. (Docket KENT 2012-655-D, May 10, 2012).


A miner who complains to MSHA of being discriminatorily discharged as a result of engaging in protected safety activity is entitled to be immediately reinstated to employment pending resolution of his claim, provided it is not found to be frivolous upon preliminary investigation by MSHA. The Federal Mine Safety and Health Act mandates, that pending the outcome of the investigation:

[I]f the Secretary of Labor [MSHA] finds that such complaint was not frivolously brought, the Commission, on an expedited basis upon application of the Secretary, shall order immediate reinstatement of the miner pending final order on the complaint.

Upon the Secretary’s application for temporary reinstatement, the operator is entitled to request a hearing. As noted by the Commission in the Armstrong case, if a hearing on an application for temporary reinstatement is requested, procedural rules state that “the hearing shall be held” within 10 calendar days of the request. The Commission has emphasized that this procedure establishes protections that meet the “fundamental requirement of due process.” Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990). Among other things, the operator has a right to cross examine witnesses supporting the Application for Temporary Reinstatement.

The Armstrong Decision

The Commission found in Armstrong that it was error for the judge to ask the government to file a Motion for Summary Decision so he could summarily rule on reinstatement without holding a hearing. The Commission’s ruling indicates that if a hearing is requested, it is indispensible.

On the basis of the Summary Decision Motion, the judge found evidence that Shemwell engaged in protected safety activity when he requested respirators to protect him from welding fumes. The judge then concluded that the coincidence in timing between Shemwell’s protected activity and his discharge approximately five months later was sufficient under the “not frivolously brought” standard to provide a basis for a conclusion that the discharge was motivated in part by the protected activity. That in turn is sufficient to permit the case to proceed with Shemwell reinstated pending the final outcome of his claims.

Hearing Parameters

Notwithstanding the right to a hearing, what a responding operator can accomplish when the requested hearing is convened is limited. The scope of the hearing is confined to whether a miner’s discrimination complaint is “frivolously brought” and this is a low threshold for the federal government to meet. Secretary of Labor on behalf of Price v. Jim Walter Resources, Inc., 9 FMSHRC, 1305, 1306 (Aug. 1987), aff’d, 920 F 2d 738 (11th Cir. 1990). The Commission has held that it is “not the judge’s duty, nor is it the Commission’s, to resolve the conflict in testimony at this preliminary stage of the proceedings.’” Secretary of Labor on behalf of Albu v. Chicopee Coal Co., Inc., 21 FMSHRC 717, 719 (July 1999). Rather, the temporary reinstatement hearing is to merely resolve whether “the evidence mustered by the [complainant] to date establish[es] that [his] complaints are non-frivolous, not whether there is sufficient evidence of discrimination to justify permanent reinstatement.” See Jim Walter Resources, 920 F.2d at 744.

While in Armstrong the Commission did not suggest that there was any error in the judge’s determination that the operator may be ordered to temporarily reinstate Shemwell, the Commission did identify a particular area for further factual inquiry at hearing. The Commission pointed out that a layoff for economic reasons could relieve the operator from having to reinstate. KenAmerican Resources, Inc., 31 FMSHRC 1050, 1054 (Oct. 2009). The judge noted that there was a layoff at Armstrong subsequent to Shemwell’s discharge, and thus a hearing would be necessary to determine the basis for the layoff. A relevant footnote in the Commission’s decision states:

With regard to the Armstrong Fabricators’ layoff, during the conference call with the Judge on March 28, 2012, counsel for the Secretary represented that “as a result of this [Shemwell] investigation . . . MSHA attempted to inspect the shop. If the layoffs occurred as a response to Shemwell’s complaint or in an effort to avoid MSHA jurisdiction, this could affect the analysis under Ken American.

What the Commission did not say is that if the layoff was motivated by the looming reinstatement, not only would Shemwell have a remedy, but potential witnesses, if they were laid off, might have a claim for relief as well depending on the facts – although that would be a matter for separate proceedings.

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