Secretary of Labor on behalf of Peter L. Dunne v. Vulcan Construction Materials, LP

Plain-English summary

The Commission had previously upheld Peter Dunne's temporary reinstatement after the Secretary declined to pursue his discrimination claim and Dunne continued on his own behalf. The Seventh Circuit reversed, holding that temporary reinstatement cannot continue after the Secretary decides not to proceed, even if the miner files an individual discrimination action. After the court returned jurisdiction through its mandate, the Commission dissolved Dunne's temporary reinstatement effective December 20, 2012.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 815(c)(2) and 815(c)(3)
• Outcome: The temporary reinstatement order was dissolved effective immediately.
• Key point: Temporary reinstatement under section 105(c)(2) ends when the Secretary declines to pursue the discrimination claim, even if the miner proceeds independently under section 105(c)(3).

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710                   

December 20, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)

on behalf of PETER L. DUNNE

v.

VULCAN CONSTRUCTION

MATERIALS, LP 

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Docket No. LAKE 2011-327-DM

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

This temporary reinstatement proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). On July 14, 2011, the
Commission affirmed an administrative law judge’s order denying the request of Vulcan
Construction Materials, LP (“Vulcan Materials”) to dissolve an order temporarily reinstating
miner Peter L. Dunne, on an economic basis, under section 105(c)(2) of the Mine Act, 30 U.S.C.
§ 815(c)(2). 33 FMSHRC 1587 (July 2011).

Vulcan Materials petitioned the United States Court of Appeals for the Seventh Circuit to
review the Commission’s decision. On October 25, 2012, the court, in Vulcan Construction
Materials, L.P. v. FMSHRC, 700 F.3d 297 (7th Cir. 2012), granted the petition for review and
reversed the Commission’s decision. The court held that under the Mine Act an order
temporarily reinstating a miner cannot survive the Secretary of Labor’s decision not to proceed
with the miner’s discrimination claim, notwithstanding the miner’s subsequent exercise of his
right to pursue a discrimination claim on his own behalf under section 105(c)(3) of the Mine Act,
§ 815(c)(3). 700 F.3d at 310.

On December 17, 2012, the court issued its mandate in this matter, thereby returning the
case to the Commission’s jurisdiction. Accordingly, the order of temporary reinstatement is
dissolved effective today.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Peter L. Dunne

6691 Church St.

Hanover Park, IL 60133

William K. Doran, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

1909 K Street NW, Suite 1000

Washington, DC 20006

Denise E. Giraudo, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

1909 K Street NW, Suite 1000

Washington, DC 20006

Ruben R. Chapa, Esq.

Office of the Solicitor

U.S. Department of Labor

230 S. Dearborn St., 8th Floor

Chicago, IL 60604

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge Janet Harner

Office of Administrative Law Judges

Federal Mine Safety and Health Review Commission

875 Greentree Road, Suite 290

Pittsburgh, PA 15220