Rock Law

Therese Dunphy

June 1, 2011

Get it in writing

Work refusals and temporary reinstatement under the Mine Act.

By Page H. Jackson

Every supervisor at a mine needs to be aware of the procedures to follow if a miner raises a question as to whether a given procedure or assignment is unsafe or unhealthful. Miners have a right to refuse to work in conditions which are believed to be unsafe or unhealthful, and a mishandled situation can have significant ramifications for the miner, the supervisor, and the mine operator. Mine operators need to ensure that “work refusals” are properly evaluated and documented.

A miner’s refusal to perform work is protected under the Mine Act if it is based upon a reasonable, good faith belief that the work involves a hazard. However, the miner is required, if reasonably possible, to communicate to some representative of the operator the nature of the perceived hazard and his concern that it would affect his health or safety.

Communication of the safety-related concern is an essential prerequisite for a protected work refusal because it provides the mine operator with an opportunity to address the miner’s concerns in a way that should alleviate the miner’s fears. A miner’s continuing refusal to work may become unreasonable after an operator has taken reasonable steps to alleviate concerns or ensure the safety of the challenged task or condition. Alternatively, the operator can assign the miner duties away from the perceived hazard, and a continued refusal by the miner to work under those circumstances is not protected by the Mine Act.

If the representatives of the mine operator do not respond correctly to a work refusal, any effort to discipline the miner could be considered discriminatory under Section 105(c) of the Mine Act. Such a finding could result in significant civil penalties, a back pay award, and the mine operator being ordered to re-employ the discharged miner in the exact position he or she held at the time of the protected activity.

The Mine Act provides a complainant who has been discharged for allegedly engaging in protected activity with the unusual remedy of temporary reinstatement. Section 105(c)(2) of the Mine Act, 30 U.S.C. Section 815(c)(2), provides that, if a complaint of discharge is not frivolous, the complaining miner is entitled to be temporarily reinstated to his prior position pending a final order on the merits of the discrimination complaint. Although a mine operator is entitled to a hearing if the Secretary of Labor files an application for temporary reinstatement, the scope of the hearing is narrow, being limited to a determination by the judge as to whether the complaint was frivolously brought. See Secretary of Labor on behalf of Price v. Jim Walters Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 738 (11th Cir. 1990).

Temporary reinstatement can be an onerous burden for a mine operator. In two recent decisions, the Federal Mine Safety and Health Review Commission (the Commission), held that the plain meaning of Section 105(c)(2) allows a temporary reinstatement order to remain in effect until there has been a final Commission order on the merits of the miner’s underlying discrimination complaint. See Gray v. North Fork Coal Corp., KENT 2009-1429-D (Jan. 7, 2011); Baird v. PCS Phosphate Co. Inc., SE 2010-74-DM (Jan. 7, 2011). In these cases, MSHA had sought and obtained a temporary reinstatement order from a Commission administrative law judge (ALJ), but later determined that the evidence was insufficient to support a finding of a violation of Section 105(c). In each case, the mine operator succeeded in having the order of temporary reinstatement dissolved by the ALJ based upon MSHA’s determination and the complainant then appealed the temporary reinstatement dissolution order to the Commission.

By a slim three-to-two majority, the Commission ruled that, once granted, a temporary reinstatement order remains in effect throughout the appeals process regardless of the decision by the ALJ at the trial on the merits of the complaint. The Commission held that the plain language of the Section 105(c) of the Mine Act mandates that result and that it does not matter whether the complaint is litigated by the Secretary under Section 105(c)(2) or by the miner under Section 105(c)(3). The Commission’s decisions in Gray and Baird have been appealed to the appropriate federal circuit courts, but, until those decisions are overturned, mine operators will have to live with the new interpretation of Section 105(c). Thus, a mine operator might prevail at trial, but be forced to continue to employ and pay a complainant who can drag out the appeals process for the cost of a postage stamp!

In addition, now more than ever, mine operators must be extremely careful if they enter into a temporary economic reinstatement agreement with MSHA. Mine operators must not accept ambiguous language regarding reinstatement, but must be extremely specific about the duration of the agreed-to temporary economic reinstatement. In Payne v. Spiro Mining, LLC, CENT 2011-42-D (ALJ McCarthy, Nov. 23, 2010), the parties entered into a Settlement Agreement and Joint Motion for Temporary Reinstatement which failed to provide that the temporary economic reinstatement would terminate upon the Secretary’s finding of no violation. The ALJ ruled that settlement constituted an agreement to economically reinstate the miner, in lieu of actual reinstatement, until the merits of his discrimination complaint were resolved. Interestingly, Judge McCarthy contrasted the settlement agreement in Payne with that in Nagel v. Newmont USA Ltd., 32 FMSHRC 1061 (ALJ McCarthy, July 2, 2010), where he ruled that the complainant was not entitled to further temporary reinstatement. In Nagel, Judge McCarthy found that the temporary economic reinstatement settlement agreement signed by the complainant had “clearly and unmistakably waived his right to temporary reinstatement once the Secretary made a determination of no discrimination…” See Nagel, 32 FMSHRC at 1065.

Recent decisions of the Commission have severely limited a mine operator’s ability to raise legitimate defenses at the temporary reinstatement stage of a discrimination case. The Commission has ruled that the only issue at a temporary reinstatement proceeding is whether the miner’s complaint appears to have merit. Conflicts in testimony, other credibility determinations, and affirmative defenses are not to be resolved at a temporary reinstatement proceeding. In light of these rulings, it appears, the testimony of the complaining miner may be sufficient to meet the standard required by the Mine Act.

Therefore, mine operators must be prepared to properly handle and document work refusals by miners. Documentary evidence, such as a signed statement by the complaining miner acknowledging that the miner did not communicate the nature of the perceived hazard to management before leaving the work area or acknowledging the mine operator offered the miner alternative work, could be critical at the temporary reinstatement hearing as those issues are prerequisites to a protected work refusal.

Whenever a miner refuses a work assignment as unsafe or unhealthful, a prudent mine operator should try to obtain a signed statement by the miner regarding the event whenever possible. It is best if the statement is in the handwriting of the complaining miner and is signed by that miner. Be sure that the statement includes matters such as whether the miner communicated the specifics of the hazard to mine management and to whom, what steps the mine operator took to alleviate the miner’s concerns or to correct the perceived hazard, and, finally, whether alternative work away from the perceived hazard was offered and refused.

It is expected that Section 105(c) cases will continue to have a high priority under the Obama Administration and that MSHA will vigorously prosecute any colorable case of discrimination. The temporary reinstatement hearing is a strategic point in any defense of a Section 105(c) case. Mine operators need to put themselves into the best possible position to win at that stage.

Page H. Jackson is counsel at Jackson Kelly PLLC. He joined the practice after serving with the Mine Safety and Health Administration and has more than 30 years of litigation experience in safety and health issues. He can be reached at 202-973-0200 or

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