Ezel / Agency Decisions / kent-96-389-d-alj
FMSHRC ALJ decision Docket KENT 96-389-D Decided October 30, 1996 Settled Judge David Barbour

Lost Creek Mining, Inc.

Lost Creek Mining, Inc. (FMSHRC KENT 96-389-D): Temporary reinstatement proceeding dismissed after settlement

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This order from 1996 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Currency note: this decision dates from 1996
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Final ALJ decision, not Commission precedent
This decision approved settlement terms resolving the related discrimination dispute and dismissed the temporary-reinstatement proceeding. It became final under the 40-day rule in 30 U.S.C. § 823(d)(1) because no later Commission review appears in the official index. It binds the parties but is not Commission precedent. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Read the official release (fmshrc.gov)

Plain-English summary

The Secretary sought temporary reinstatement for Douglas Martin while his related discrimination complaint proceeded. The parties settled both matters. Lost Creek agreed to expunge records of Martin’s discharge, permanently reinstate him with seniority, status, benefits, and an $11.25 hourly wage, pay him $1,700 in damages, and pay a $2,500 civil penalty for the discrimination violation. Judge David Barbour approved those terms in the related discrimination docket and dismissed the temporary-reinstatement proceeding.

Decision snapshot

  • Cited provision: 30 U.S.C. § 815(c)(2)
  • Outcome: The settlement was approved in the related discrimination case, and the temporary-reinstatement proceeding was dismissed.
  • Key point: Once agreed settlement terms provided permanent reinstatement, the separate temporary-reinstatement application no longer required adjudication.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

                      October 30, 1996

SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT
MINE SAFETY AND HEALTH : PROCEEDING
ADMINISTRATION (MSHA), :
on behalf of DOUGLAS MARTIN, : Docket No. KENT 96-389-D
Complainant :
v. : PIKE CD 96-09
:
LOST CREEK MINING, INC., : Mine No. 1
Respondent :
:

              DECISION APPROVING SETTLEMENT

Before: Judge Barbour

 This case concerns an application for temporary reinstate-

ment filed pursuant to section 105(c)(2) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (“ACT”).
The Secretary on behalf of Douglas Martin seeks Martin’s
immediate reinstatement pending a finding on Martin’s associ-
ated complaint of discrimination (Docket No. KENT 96-390-D),
which alleges that on July 2, 1996, Martin was illegally
discharged because he refused to comply with a work order that he
believed was unsafe.

 On September 27, 1996, the parties orally advised me they

had agreed to settle both this temporary reinstatement proceeding
and the discrimination proceeding. Subsequently, they filed a
motion seeking approval of settlement and dismissal of the
proceedings.

Under the terms of the settlement, Respondent is required:

     l. [To] Expunge from its personnel files all
records of and references to the July 2, 1996 discharge
of . . . Martin.

     2. On or before September 30, 1996, [to]
permanently reinstate Martin to his former employment
position with all seniority, status and benefits
including, but not limited to, a rate of pay of $11.25
per hour.

Page 2

       3. [To] pay. . . Martin the sum of $1,700.00 in
  satisfaction of damages. . .[in] 3 monthly installment
  payments by certified check, cashier’s check, or money
  order which shall be made payable to “Douglas Martin”
  and delivered directly to . . . Martin on the last
  Friday of each month, the first payment of $570.00
  being due on Friday, October 25, 1996, the second
  payment of $570.00 being due on Friday, November 29,
  1996, and the final payment of $560.00 being due on
  Friday, December 27, 1996.

       4. [To] pay a civil money penalty in the amount of
  $2,500.00 for the discrimination violation. . .. [in]
  4 quarterly installment payments of $625.00 each, the
  first payment being due on November 1, 1996, the second
  payment being due on February 1, 1997, the third
  payment being due on May 1, 1997, and the final payment
  being due on August 1, 1997 (Joint Motion at 2).

 In a decision pertaining solely to Docket No. KENT 96-390-D,

I have approved these terms and ORDERED Respondent to comply with
them. In view of that approval and of the parties agreement that
Martin be reinstated, it is clear that the Secretary’s applica-
tion for temporary reinstatement may be DISMISSED.

                            David Barbour
                            Administrative Law Judge
                            (703) 756-5232

Distribution:

Brian W. Dougherty, Esq., Office of the Solicitor,
U. S. Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215-2862 (Certified Mail)

Jody L. Samons, President, Lost Creek Mining, Inc.,
P. O. Box 848, Prestonsburg, KY 41653 (Certified Mail)

Mr. Douglas D. Martin, Box 220, Grethel, KY 41631 (Certified
Mail)

dcp

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