J & C Mining, L.L.C., and Manalapan Mining Company, Inc.

Plain-English summary

The operators sought expedited Commission review after an ALJ dismissed the Secretary's discrimination complaint on behalf of Grant Noe, Jr. They also asked to stop paying the temporary economic reinstatement required by an earlier settlement order and to shorten the Secretary's time to file a reply brief. The Commission denied relief from the temporary reinstatement order, explaining that temporary reinstatement remains in effect while the Commission reviews the judge's decision. It also denied the request to shorten the briefing period, while confirming that the proceedings would be expedited as required by the Mine Act.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1) and § 815(c)(3)
• Outcome: Relief from the temporary economic reinstatement order and the request to shorten briefing time were denied.
• Key point: Temporary reinstatement remains in effect during Commission review of the related discrimination decision.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                       June 27, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
on behalf of GRANT NOE, JR. :
:
v. : Docket No. KENT 99-248-D
:
J & C MINING, L.L.C., and :
MANALAPAN MINING COMPANY, INC. :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

                                          ORDER

BY THE COMMISSION:

   In this discrimination proceeding arising under the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”), Administrative Law Judge Gary
Melick issued a decision dismissing a complaint brought by the Secretary of Labor on behalf of
Grant Noe, Jr., alleging discrimination in violation of section 105(c)(1) of the Act, 30 U.S.C.
§ 815(c)(1). 22 FMSHRC 404, 410-11 (Mar. 2000) (ALJ). In a related temporary reinstatement
proceeding, Docket No. KENT 99-174-D, the judge had issued a decision approving a settlement
agreement, providing for the temporary economic reinstatement of Noe by J & C Mining, LLC
(“J&C”). Unpublished Order at 1-2 (May 17, 1999).

    On June 20, 2000, the operators, J&C and Manalapan Mining Company, Inc. (“Manalapan”)

filed a Motion to Expedite Review by Commission. In the motion, the operators state that, having
prevailed before the judge, they “desire relief from the order requiring payment of temporary
economic benefits” to Noe. Mot. at 1. In addition, they request that review before this Commission
be expedited, and that the time for filing a reply brief by the Secretary be reduced from 20 days to
10 days. Mot. at 2.

   Upon consideration of the motion, the operators’ request for relief from the May 17, 1999

order providing for the economic reinstatement of Noe is denied.1 See Secretary of Labor on behalf

     1
      We note that, on June 19, 2000, the United States District Court for the Eastern District

of Kentucky issued an order granting the Secretary’s motion for a preliminary injunction and
temporary restraining order requiring J&C and Manalapan to reinstate Noe temporarily, pending

                                     22 FMSHRC 705

of Bernardyn v. Reading Anthracite Co., 21 FMSHRC 947, 949 (Sept. 1999) (“the language of the
Mine Act requires that a temporary reinstatement order remain in effect while the Commission
review the judge’s decision”). Furthermore, the Commission will be expediting these proceedings
as it is statutorily required to do. See 30 U.S.C. § 815(c)(3) (“Proceedings under this section shall
be expedited by the Secretary and the Commission.”); see also Bernardyn, 21 FMSHRC at 950
(recognizing the appropriateness of expediting cases involving parallel temporary reinstatement
proceedings). Nonetheless, the operator’s request to reduce the period for filing the Secretary’s
reply brief is denied because such a reduction would not materially advance the Commission’s
expedited consideration of the case.

                                          Mary Lu Jordan, Chairman




                                          Marc Lincoln Marks, Commissioner




                                          James C. Riley, Commissioner




                                          Theodore F. Verheggen, Commissioner




                                          Robert H. Beatty, Jr., Commissioner

resolution of this discrimination proceeding. Secretary of Labor v. J & C Mining, L.L.C.,
No. 00-217 (E.D. Ky., June 19, 2000). In the order, the Court stated that after the issuance of
Judge Melick’s March decision, the operators ceased economic reinstatement of Noe. Id. at 2.

                                      22 FMSHRC 706

Distribution

Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Susan C. Lawson, Esq.
Lawson & Lawson, PSC
P.O. Box 837
Harlan, KY 40831

                           22 FMSHRC 707