Secretary of Labor on behalf of Mark Gray v. North Fork Coal Corporation (ALJ decision, December 2, 2009)

Plain-English summary

Mark Gray had received temporary economic reinstatement after the Judge found that the Secretary's discrimination application was not frivolously brought. The Secretary later told Gray that she would not file a discrimination complaint on his behalf. Judge Gary Melick concluded that temporary reinstatement therefore had to end, dissolved the economic reinstatement order, and dismissed this proceeding. The Commission later reversed, holding that reinstatement could continue while Gray pursued his own discrimination action.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: The temporary economic reinstatement order was dissolved and the proceeding was dismissed, but the Commission later reversed.
• Key point: This order treated the Secretary's decision not to prosecute as ending temporary reinstatement; the Commission rejected that interpretation on review.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001-2021

December 2, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

on behalf of MARK GRAY,

Complainant

v.

NORTH FORK COAL CORPORATION,

Respondent

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TEMPORARY REINSTATEMENT PROCEEDING

Docket No. KENT 2009-1429-D

BARB CD 2009-13

Mine ID 15-18340

No. 4 Mine

ORDER DISSOLVING ORDER OF ECONOMIC TEMPORARY REINSTATEMENT /
ORDER OF DISMISSAL

On September 8, 2009, the undersigned judge found that the Secretary’s application for the temporary reinstatement of Mark Gray, under Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815 (c)(2), was not frivolously brought and ordered his temporary reinstatement. Thereafter, on September 17, 2009, upon agreement of the parties, this judge ordered the economic temporary reinstatement of Mr. Gray. Respondent North Fork Coal Corporation subsequently requested that the economic temporary reinstatement order be terminated.

The Secretary stated in her response, filed Nov. 23, 2009, that on Nov. 20, 2009, she sent written notification to Mr. Gray that, as a result of her investigation of his “Section 105(c)” complaint, she had decided not to file a “Section 105(c)(2)” complaint on his behalf. Under the circumstances, the Order of Economic Temporary Reinstatement must be dissolved and this temporary reinstatement proceeding must be dismissed. Secretary of Labor on Behalf of Peter J. Phillips v. A&S Construction Co., 30 FMSHRC 1119 (Nov. 208)(ALJ Barbour), aff’d Peter S. Phillips v. A&S Construction Co., WEST 2009-1057-DM, 2009 WL 2971140 (FMSHRC Sept. 9, 2009).

ORDER

The Order of Temporary Economic Reinstatement, issued on September 17, 2009, is hereby dissolved, and this proceeding is dismissed.

Gary Melick

Administrative Law Judge

(202) 434-9977

Distribution: (By Certified Mail and Facsimile or E-Mail)

Derek J. Baxter, Esq., and Matthew Babington, Esq.,Office of the Solicitor, U.S. Department of

Labor, 1100 Wilson Blvd., 22nd , Floor West, Arlington, VA 22209-2247

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY

41858

Stephen Hodges, Esq., Penn, Stuart, & Eskridge, 208 E. Main St., Drawer 2288, Abingdon, VA

24210

Mark Gray, P.O. Box 465, Grays Knob, KY 40829

/eb