CalPortland Co. v. Fed. Mine Safety & Health Review Comm'n

• Decision Date: 20 October 2016
• Docket Number: No. 16–1094,16–1094
• Citation: 839 F.3d 1153
• Parties: CalPortland Company, Inc., Petitioner v. Federal Mine Safety and Health Review Commission and Secretary of Labor, on Behalf of Jeffrey Pappas, Respondents
• Court: U.S. Court of Appeals — District of Columbia Circuit

839 F.3d 1153

CalPortland Company, Inc., Petitioner

v.Federal Mine Safety and Health Review Commission and Secretary of Labor, on Behalf of Jeffrey Pappas, Respondents

No. 16–1094

United States Court of Appeals, District of Columbia Circuit.

Argued October 6, 2016

Decided October 20, 2016

Brian P. Lundgren argued the cause and filed the briefs for petitioner. John M. Payne and Selena C. Smith entered appearances.

Edward Waldman, Attorney, U.S. Department of Labor, argued the cause for respondent. With him on the brief was W. Christian Schumann, Counsel. John T. Sullivan, Attorney, Mine Safety and Health Review Commission, entered an appearance.

Before: Henderson and Griffith, Circuit Judges, and Sentelle, Senior Circuit Judge.

Sentelle, Senior Circuit Judge:

CalPortland Company, Inc. (“CalPortland”) petitions for review of a decision by the Federal Mine Safety and Health Review Commission (“Commission”) ordering CalPortland to temporarily reinstate Jeffrey Pappas, pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(2), pending final order on Pappas's underlying discrimination complaint currently pending before the Commission. We have jurisdiction over this petition pursuant to the collateral order doctrine and, because we conclude that Pappas was an “applicant for employment” who was not eligible for temporary reinstatement, we grant the petition for review and vacate the Commission's decision and order.

I.

“Congress adopted the Mine Act ‘to protect the health and safety of the Nation's ... miners,’ ” Thunder Basin Coal Co. v. Reich , 510 U.S. 200, 202, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994) (quoting 30 U.S.C. § 801(g) ), by “strengthen[ing] and streamlin[ing] health and safety enforcement requirements” at the Nation's mines, id. at 211, 114 S.Ct. 771. To accomplish its goals, the Mine Act “charges two separate agencies with complementary policymaking and adjudicative functions.” Prairie State Generating Co. LLC v. Sec'y of Labor , 792 F.3d 82, 85 (D.C. Cir. 2015). The Secretary of Labor (“Secretary”), acting through the Department of Labor's Mine Safety and Health Administration (“MSHA”), “sets regulatory standards of mine safety, conducts regular mine inspections, and issues citations and orders in response to violations.” Id. (citing 29 U.S.C. § 557a ; 30 U.S.C. §§ 813, 814 ; Thunder Basin , 510 U.S. at 202–04 & n.5, 114 S.Ct. 771 ). “The Commission, an adjudicatory body established as independent of the Secretary, reviews challenges to MSHA's actions.” Id. at 85–86 (citing 30 U.S.C. §§ 815(d), 823 ).

Relevant to this case, the Mine Act also includes a whistleblower provision, 30 U.S.C. § 815(c), which prohibits a mine operator from discriminating against a miner or interfering with a miner's statutory rights because the miner engaged in protected activity. Leeco, Inc. v. Hays , 965 F.2d 1081, 1083 (D.C. Cir. 1992) ; Council of S. Mountains, Inc. v. FMSHRC , 751 F.2d 1418, 1420–21 (D.C. Cir. 1985). Section 105(c) establishes procedures for the filing and investigation of complaints made by “[a]ny miner or applicant for employment” and authorizes the Commission to adjudicate contested complaints. See 30 U.S.C. § 815(c)(2)–(3) ; Simpson v. FMSHRC , 842 F.2d 453, 456 n.3 (D.C. Cir. 1988).

At the center of this case is section 105(c)(2)'s temporary reinstatement provision. “Because a complaining ... miner ‘may not be in the financial position to suffer even a short period of unemployment or reduced income pending resolution of the discrimination complaint,’ ” Cobra Nat. Res., LLC v. FMSHRC , 742 F.3d 82, 84 (4th Cir. 2014) (quoting S. Rep. No. 95–181, at 37 (1977)), if the Secretary finds that a discrimination complaint was “not frivolously brought,” the Commission “shall order the immediate reinstatement of the miner pending final order on the complaint,” 30 U.S.C. § 815(c)(2). Although section 105(c) protects the rights of both miners and applicants for employment, the temporary reinstatement remedy is limited to miners. See id. § 815(c)(1)–(3) ; Piper v. KenAmerican Res., Inc. , 35 FMSHRC 1969, 1972 & n.2 (July 3, 2013). Accordingly, whether a complainant is a “miner” or an “applicant for employment” is a threshold issue that must be addressed before determining a complainant's entitlement to temporary reinstatement. See Young v. Lone Mountain Processing, Inc. , 20 FMSHRC 927, 932 n.5 (Sept. 4, 1998).

II.

Beginning in or around 1999, Jeffrey Pappas worked as a miner at the Oro Grande cement plant in San Bernardino County, California. Martin Marietta Materials, Inc., which owned the plant through a subsidiary named Riverside Cement Company, was Pappas's employer. In 2014, while working for Martin Marietta at the Oro Grande plant, Pappas notified management about a supervisor's potentially unsafe directions. When management failed to fully address his concerns, Pappas notified a MSHA inspector, who investigated and issued several citations to Martin Marietta for safety violations. After MSHA issued these citations to Martin Marietta, Pappas's relationship with his managers and colleagues at the Oro Grande plant deteriorated, culminating in his discharge in March 2014. Pappas filed a section 105(c) discrimination complaint against Martin Marietta in April 2014 that resulted in a Commission-approved settlement reinstating Pappas to his former position at Oro Grande. Upon his return to work, his colleagues and direct supervisor harassed Pappas about his discrimination complaint and his prior safety concerns. He asked the plant's upper management, including Martin Marietta's Human Resources manager Jamie Ambrose, to intervene and stop the harassment, but Martin Marietta's management took no action.

On or around June 30, 2015, CalPortland executed a limited asset purchase agreement with Martin Marietta to acquire the Oro Grande plant where Pappas worked and three related facilities, effective October 1, 2015. It is undisputed that Pappas was never employed by CalPortland, as CalPortland's purchase agreement with Martin Marietta did not include Martin Marietta's existing labor force and CalPortland did not agree to hire any of Martin Marietta's hourly employees in the purchase agreement.

To ensure that it could take control of the Oro Grande plant in October 2015 without shutting down the kiln, CalPortland began the staffing process early. In mid-August 2015, prior to CalPortland's effective acquisition of the Oro Grande plant, CalPortland contacted Jamie Ambrose, Martin Marietta's Human Resources manager, for advice on hiring decisions. Soon thereafter, Ambrose was offered and accepted the Human Resources manager position at CalPortland. Because of her prior employment with Martin Marietta, Ambrose knew about Pappas's previous section 105(c) complaint.

In mid-September 2015, CalPortland invited all of the employees from the four facilities covered by the asset purchase agreement, including the employees at the Oro Grande plant, to apply for employment with CalPortland. CalPortland did not advertise these positions to the general public and nearly all of the existing Martin Marietta employees applied. CalPortland made its hiring decisions on September 26, 2015, and extended employment offers to approximately 115 out of 130 applicants, with approximately 100 to 105 of those offered employment accepting positions with CalPortland. Pappas was one of the applicants from the Oro Grande plant who was not offered employment by CalPortland. On September 28, 2015, two days before CalPortland's acquisition of the Oro Grande plant, Martin Marietta told those miners who were not offered employment by CalPortland to leave the plant immediately and not to return for their shifts on the following two days. These individuals, including Pappas, were paid by Martin Marietta through September 30, 2015, and given severance packages from Martin Marietta. Then, on October 1, 2015, CalPortland acquired the Oro Grande plant.

After CalPortland did not hire him, Pappas filed a section 105(c) complaint against CalPortland,¹ and on December 8, 2015, the Secretary, on behalf of Pappas, filed an application for temporary reinstatement. Notably, the Secretary sought an order directing CalPortland “to hire” Pappas. In support of the application, the Secretary relied on a declaration from a MSHA investigator stating that after Martin Marietta's employees were “terminated” and “CalPortland invited the existing Oro Grande employees to apply for new positions with CalPortland,” “CalPortland decided not to hire Mr. Pappas” because of his April 2014 discrimination complaint against Martin Marietta. (emphasis added).

Focusing on Pappas's employment at the Oro Grande plant and Martin Marietta's active role in CalPortland's hiring decisions, the Administrative Law Judge concluded that Pappas was a “miner” for purposes of section 105(c) and approved the Secretary's application on January 12, 2016. See Pappas v. CalPortland Co. , 38 FMSHRC 53, 58–61, 66 (Jan. 12, 2016); see also 29 C.F.R. § 2700.45(c) (allowing operator to request hearing before an ALJ following receipt of Secretary's application for temporary reinstatement). The Commission, in a 4–1 decision, affirmed the ALJ's decision on February 8, 2016. See Pappas v. CalPortland Co. , 38 FMSHRC 137 (Feb. 8, 2016); see also 29 C.F.R. § 2700.45(f) (describing procedure for review by the Commission of an ALJ's temporary reinstatement order).

In affirming the ALJ's decision, the Commission found that CalPortland's hiring process, which the Commission characterized as “miner retention decisions” or “rehiring” decisions, occurred while Pappas was “[u]nquestionably” a “miner” at the Oro Grande plant. See Pappas , 38 FMSHRC at 141–42. Based on the fact that Jamie Ambrose, who was aware of Pappas's prior section 105(c) complaint, was involved in CalPortland's hiring process, see id. , the Commission held that CalPortland's “decision-making process ... was done...