Secretary of Labor obo Jonathan Holskey v. Pennyrile Energy, LLC

Plain-English summary

The Judge had previously ordered Pennyrile Energy to return Jonathan Holskey to his former job after finding his discrimination complaint non-frivolous. The parties then negotiated temporary economic reinstatement instead of Holskey physically returning to the Riveredge Mine. Judge Kenneth R. Andrews emphasized that actual reinstatement ordinarily better protects the complaining miner and reassures other miners that safety complaints will not cost them their jobs. He nevertheless found that the parties supplied sufficient legal and factual support for their alternative arrangement and granted the joint motion. Holskey retained the right to seek physical temporary reinstatement later.

Decision snapshot

• Cited authority: Section 105(c) of the Mine Act, 30 U.S.C. § 815(c)
• Outcome: The joint temporary-economic-reinstatement agreement was approved, subject to Holskey's right to seek physical reinstatement.
• Key point: Economic reinstatement may substitute for returning a miner to work when supported by the circumstances, but it does not provide all the protections of actual reinstatement.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF

ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,

SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:

412-920-7240 / FAX: 412-928-8689

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

and JONATHAN HOLSKEY,

Complainants

v.

PENNYRILE ENERGY, LLC,

Respondent

TEMPORARY REINSTATEMENT PROCEEDING

Docket No. KENT 2018-0004-D

MSHA Case No. MADI-CD-2017-05

Mine: Riveredge Mine

Mine ID: 15-19424

ORDER GRANTING JOINT MOTION FOR TEMPORARY ECONOMIC

REINSTATEMENT

Before:            Judge Andrews

On

October 26, 2017, this Court issued a Decision and Order Reinstating Jonathan

Holskey to his former position with Pennyrile Energy at the Riveredge Mine at

his former rate of pay. Soon thereafter, the parties negotiated a Temporary

Economic Reinstatement agreement in lieu of actual reinstatement, and have

moved this Court to grant economic reinstatement.

Section

105(c) of the Mine Act, which protects miners in making health and safety

complaints is central to the proper functioning of the law. Congress stated

that “If our national mine safety and health program is to be truly effective, miners will have to play

an active part

in the enforcement of the Act. The Committee is

cognizant that if miners are to be encouraged to be active in matters of safety

and health, they must be protected against any possible discrimination which

they might suffer as a result of their participation.” S. Rep. No. 95-181,

at 35-36 (1977),  reprinted in  Senate Subcomm. on Labor, Comm.

on Human Res.,  Legislative History of the Federal Mine Safety and

Health Act of 1977 , at 623-24 (1978). Section 105(c) was intended to ensure

that miners’ rights to make complaints or refuse work were not chilled by any

company action. Indeed, the Senate Committee stated that it “intends section

105 to be construed expansively to assure that miners will not be

inhibited in any way in exercising any rights afforded by the legislation.” Id.

The intent of the legislation is best served by actual reinstatement at the

mine of the miner.

Temporary

Reinstatement of a miner who brings a nonfrivolous complaint of discrimination

protects miners from losing their livelihoods while the merits of a case

proceeds through the Commission. It also serves to show others in the mine that

the miner who speaks up about health and safety matters is back at work, so

they can be confident that the law will protect them if they ever feel the need

to make a health or safety complaint.

It

has become the norm that parties have routinely negotiated agreements for

economic reinstatement in lieu of actual reinstatement, with the assumption

that the two are equivalent. Commission ALJs (including the undersigned)

have routinely granted requests for economic reinstatement in lieu of actual

reinstatement. See eg Sec'y o/b/o Mosby v. Mulzer Crushed Stone, Inc. ,

34 FMSHRC 391, 392 (2012) (ALJ). Sec'y o/b/o Whiton v. Wharf Resources,

(USA), Inc. , 38 FMSHRC 124, 125-26 (2016)(ALJ); Sec'y o/b/o York v.

BR&D Enterprises , 23 FMSHRC 697, 698 (2001) (ALJ); Sec'y, on behalf

of Phillips, v. A & Construction Co ., 30 FMSHRC 1119, 1121 (2008)

(ALJ); Sec'y o/b/o Hines v. Martin Marietta Materials, Inc. , 34 FMSHRC

1063, 1063 (2012) (ALJ); Sec'y o/b/o Mitchell v. Vulcan Construction

Materials, LP , 34 FMSHRC 2985 (2012); Sec'y o/b/o Williamson v. CAM

Mining, LLC , 31 FMSHRC 1418, 1418-19 (2009) (ALJ); Sec'y o/b/o George v.

Freeport-McMoran, Bagdad, Inc . 33 FMSHRC 2488, 2488-89 (2011) (ALJ); Sec'y

o/b/o Jackson v. Lafarge North America, Inc .,34 FMSHRC 2993, 2993-94

(2012)(ALJ); Sec'y o/b/o Billings v. Proppant Specialists, LLC ,33 FMSHRC

2340, 2340 (2011) (ALJ); Sec'y o/b/o Glosson v. Lopkey Quarriers, Inc .,

38 FMSHRC 2356, 2356 (2016) (ALJ); Sec'y o/b/o White v. GS Materials, Inc .,

35 FMSHRC 506, 506-07 (2013) (ALJ). In many instances, parties submit the

agreements without any facts or reasons supporting a temporary economic

reinstatement in lieu of actual reinstatement. A temporary economic reinstatement

is an agreement in the nature of a settlement and, as such, scrutiny should be

applied to make sure that they serve the purposes of the Act.

This Court recognizes that there are certain instances where

economic reinstatement may be preferable or necessary, such as when there is no

work for the miner, where one or both parties are concerned about safety, or

where it is impossible or impractical for the miner to return to the mine. However,

the Act says nothing about Temporary Economic Reinstatement, and specifically

authorized judges to reinstate miners. Economic reinstatement is not equivalent

to actual reinstatement for the Complainant or for other miners, because even

under the most favorable of agreements, the Complainant loses experience, the

Complainant would not receive promotions that could only come from actual work

in the mine, and if the Complainant seeks alternative work the future employer

will take note of his absence from the mine. Furthermore, there are no

assurances that other miners are made aware that the Complainant has prevailed

in his Temporary Reinstatement proceeding, as they would if they saw him back

at the mine. Such lack of information can chill the speech rights of the other

miners.

In

the instant case, the parties were instructed to submit a motion for economic

reinstatement, wherein they provided legal and factual arguments supporting

economic reinstatement. Accordingly, the Motion for Temporary Economic

Reinstatement is GRANTED according to the terms of the agreement

submitted by the parties. However, in recognition of the Complainant’s right to

physical temporary reinstatement, the Complainant may at any time move this

Court to order physical (rather than economic) temporary reinstatement.

/s/

Kenneth Andrews

Kenneth

R. Andrews

Administrative

Law Judge

Distribution (Via E-mail and First Class Mail):

Thomas Motzny, Esq., Office of the Solicitor, U.S.

Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219 [email protected]

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 [email protected]

Wes Addington, Esq., Appalachian Citizens’ Law Center, 317

Main Street, Whitesburg, KY 41858; [email protected]

Jonathan Holskey, 290 Branch Street, Calhoun, KY 42327

Mark E. Heath, Esq. & Denise Smith, Esq., Counsel for

Pennyrile Energy, LLC, Spilman, Thomas & Battle, PLLC, P.O. Box 273, 300

Kanawha Boulevard, East, Charleston, WV 25329 [email protected] , [email protected]