Secretary of Labor on behalf of Reuben Shemwell v. Armstrong Coal Company, Inc. and Armstrong Fabricators, Inc.

Plain-English summary

Reuben Shemwell sought temporary reinstatement to the welder position he held before Armstrong Coal Company and Armstrong Fabricators terminated him while his discrimination complaint was being investigated. After a remand and hearing, Judge Jerold Feldman ordered the companies to reinstate Shemwell and provide back pay effective April 25, 2012, and the Commission affirmed that order. The parties then jointly proposed economic temporary reinstatement instead of having Shemwell physically return to work. Their agreement provided back pay and the benefits he would have received while working, including health insurance, retirement-plan contributions, and relevant welder bonuses. Judge Feldman approved the agreement, ordered payment and benefits within seven days, and required economic reinstatement to continue until final disposition of the underlying discrimination complaint. The agreement did not limit the companies' right to contest that complaint.

Decision snapshot

• Cited standard: 30 U.S.C. § 815(c)(2)
• Outcome: The joint economic temporary reinstatement agreement was approved, with retroactive pay and benefits due within seven days and continuing until final disposition of the discrimination case.
• Key point: Parties may use paid economic reinstatement in place of physical reinstatement while preserving the operator's right to contest the underlying discrimination claim.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

August 1, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

on behalf of REUBEN SHEMWELL,

Complainant

v.

ARMSTRONG COAL COMPANY, INC.,

and

ARMSTRONG FABRICATORS, INC.,

Respondents

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TEMPORARY REINSTATEMENT PROCEEDING

Docket No. KENT 2012-655-D

MADI CD 2012-08

Parkway Mine Surface Facilities
Mine ID: 15-19356

ORDER GRANTING THE PARTIES’ JOINT MOTION FOR

ECONOMIC TEMPORARY REINSTATEMENT

Appearances:              Matt S. Shepard, Esq., Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee, for the Secretary of Labor;

Tony Oppegard, Esq., Lexington, Kentucky, for Reuben Shemwell;

Adam K. Spease, Esq., Miller Wells, PLLC, Louisville, Kentucky,

for Armstrong Coal Company, Inc., and Armstrong Fabricators, Inc.;

Daniel Z. Zaluski, Esq., Madisonville, Kentucky, for Armstrong Coal
Company, Inc.

Before: Judge Feldman

The Commission vacated the initial Order of Temporary Reinstatement issued in this
matter, and remanded for further proceedings. 33 FMSHRC __ (May 2012) rev’g 33 FMSHRC
__ (Apr. 2012) (ALJ). Consistent with the Commission’s directive, a hearing was held on May 23, 2012, in Owensboro, Kentucky. Following the hearing, the Secretary’s reinstatement
application filed pursuant to 30 U.S.C. § 815(c)(2) on behalf of Reuben Shemwell was granted, and a decision was issued ordering Armstrong Coal Company, Inc. and/or Armstrong
Fabricators, Inc., (“the Respondents”) to immediately reinstate Shemwell to the welder position
he held immediately prior to his September 14, 2011, termination, or, to a similar position as a
laborer at the same rate of pay and benefits, and with the same or equivalent duties assigned to
him. 33 FMSHRC __ (June 2012) (ALJ). In addition, Shemwell was awarded retroactive wage
payment effective as of April 25, 2012. Id. The order requiring Shemwell’s retroactive wage
payment and temporary reinstatement was affirmed by the Commission. 33 FMSHRC __ (July 2012).

As an alternative to Shemwell’s temporary reinstatement, on July 20, 2012, the
Respondents filed a joint motion to approve their agreement for the economic temporary
reinstatement of Shemwell. As a general matter, under the agreement, Shemwell shall receive
back pay as of April 25, 2012, until the Order of Reinstatement issued on June 21,2012, is dissolved, or is otherwise no longer in effect. The terms of the agreement include the
Respondents’ assurance that Shemwell will receive all benefits he would have received if he
were physically working at the mine, including, but not limited to, health insurance, contributions
to a §401k plan, and all relevant bonuses given to Armstrong’s welders during the temporary
reinstatement period. The specific terms of the parties’ agreement are contained in the joint
motion and are incorporated by reference.

Shemwell’s economic reinstatement shall not prejudice the Respondents’ right to contest
Shemwell’s discrimination complaint that currently is being investigated by the Secretary. The
Secretary is urged to complete her investigation, as soon as practicable, so that this matter may
proceed, if necessary, to an evidentiary hearing on the merits. Shemwell’s economic
reinstatement shall remain in effect until a final decision on the merits is issued.

ORDER

In view of the above, IT IS ORDERED that the parties’ motion to approve Shemwell’s
economic reinstatement IS GRANTED.

IT IS FURTHER ORDERED that all retroactive payment and benefits shall be
provided to Shemwell by Armstrong Coal Company, Inc. and/or Armstrong Fabricators, Inc.,
within seven days from the date of this Order.

IT IS FURTHER ORDERED that economic reinstatement shall remain in effect until
final disposition of Shemwell’s underlying discrimination complaint.

/s/ Jerold Feldman

Jerold Feldman

Administrative Law Judge

Distribution: (Electronic and Certified Mail)

Matt S. Sheperd, Esq., Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the
Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219-2440

Tony Oppegard, Esq., Attorney for Reuben Shemwell, P.O. Box 22446, Lexington, KY 40522

Adam Spease, Esq. and Adam Scutchfield, Esq., Miller Wells, PLLC, 710 West Main Street,

4th Floor, Louisville, KY 40202 - Counsel for Armstrong Coal Company and Armstrong
Fabricators, Inc.

Dan Zaluski, Esq., Armstrong Coal Company, Inc., 407 Brown Road, Madisonville, KY 42431

/jel