Secretary of Labor on behalf of Gary Kittelson v. Northern Aggregate, Inc. (ALJ decision, February 3, 2015)

Plain-English summary

Northern Aggregate asked to reduce Gary Kittelson's temporary economic reinstatement from $1,716 per week to about $600 per week because the company said winter operations brought lower hours and pay. Judge John Kent Lewis held that pay stubs for one miner did not prove that all comparable miners were subject to a seasonal reduction or layoff. He also explained that a miner is not required to repay amounts received during temporary reinstatement, so the requested retroactive credit was unavailable. The judge denied an expedited merits hearing because Kittelson had related discrimination matters and would remain temporarily reinstated regardless of the outcome of one case. The existing July hearing dates remained in place.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: The requested reduction, retroactive credit, and expedited merits hearing were denied.
• Key point: An operator seeking to reduce temporary economic reinstatement must prove that the miner was properly included in a genuine economic or seasonal reduction.

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), on behalf   of GARY KITTELSON

Petitioner

v.

NORTHERN
AGGREGATE, INC.,

Respondent

TEMPORARY
REINSTATEMENT PROCEEDINGS

Docket
No. LAKE 2015-80-DM

MSHA
CASE NO. RM-MD-15-01

Mine:
Portable Crusher

Mine
ID: 21-02623

ORDER DENYING
MOTION TO AMEND TEMPORARY REINSTATEMENT AND REQUEST FOR EXPEDITED HEARING ON MERITS

This case is before me pursuant to an
Application for Temporary Reinstatement brought under Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(c), et. seq. (the “Mine Act”). On November 5, 2014, this court issued an Order Approving Temporary Reinstatement. On December 30, 2014, this court issued an Order to Correct and Enforce the Temporary Economic Reinstatement. Before this court now is Respondent’s January 14, 2015 motion to partially toll the temporary economic reinstatement and move the hearing date forward.[1] On January 27, 2015, the Secretary filed objections to the Respondent’s motion. For the reasons that follow, the Respondent’s motion is DENIED.

In its motion, the Respondent requests
that the court reduce the ordered amount of economic reinstatement from
$1,716.00 per week to $600.00 per week.[2] Respondent states that it runs “a seasonal operation that switches to ‘winter season’ or ‘shop hours’ during the freeze up/winter season while mining activities are not feasible.” During the winter season, Respondent alleges that its employees receive lower pay, work limited hours, and rarely work overtime hours. The Respondent states that “similarly situated employees to Petitioner Kittelson (i.e. those with the same or similar experience, training, and longevity with the company), receive an hourly rate of $16.00 per hour and work 40 hour weeks or less on average during the winter season.” Resp. Motion, 2. Furthermore, Respondent requests that this reduction be made retroactive to December 1, 2014, and that Respondent be given credit for payments made in excess of this amount.

With regards to the retroactive
repayment of backwages, the the Commission has held that miners are not liable for repayments of funds paid during the period of temporary reinstatement. N. Fork Coal Corp., 33 FMSHRC 589, 597 (Mar. 2011), rev'd on other grounds, 691 F. 3d 735, 744 (6th Cir. 2012); see also Shemwell v. Armstrong Coal Co., Inc., 2012 WL 10906743, *4 (ALJ) (Sept. 12, 2012).

The Commission has held that an order of
temporary reinstatement may be tolled or modified based upon layoffs for economic reasons, or similar conditions. Ratliff v. Cobra Natural Resources, LLC, 35 FMSHRC 394, 396-397 (Feb. 28, 2013). However, the mine operator must affirmatively prove that the miner on temporary reinstatement was properly included in the reduction or layoff by either a preponderance of the evidence or under the “not frivolously brought standard,” depending on whether the objectivity of the layoff as applied to the miner is called into question. Id. at 397. In the instant case, Respondent has provided pay stubs for one miner from 10/26/2014-12/13/2014. This evidence does not come close to meeting either standard. In order to show that all miners are working fewer hours due to seasonal conditions, Respondent would have to submit evidence that all miners are working less due to seasonal conditions. One possible method of doing so would have been to attach pay stubs for all miners, along with historical data showing the seasonality of this trend.

The Respondent further requests that the
hearing for the merits case, currently scheduled for July 2-3, 2015, be heard sooner. Though the undersigned sympathizes with any economic hardship on Respondent that has resulted from the temporary economic reinstatement, this request must be denied. Moreover, this case will involve several discrimination complaints and, as the Secretary notes in her brief, regardless of the outcome of LAKE 2014-705-DM, Kittelson would remain on temporary reinstatement in the instant case. It would be inefficient, and result in no appreciable difference for the Respondent, to have two hearings here. Therefore, all matters relating to Kittelson will be heard on July 2-3, 2015 in Bemidji, MN.

Wherefore it is ORDERED that the Respondent’s
motion is DENIED. 

/s/ John Kent Lewis

John Kent Lewis

Administrative Law Judge

Distribution:

Gary Kittelson, 4192 Town Road 98,
Loman, MN 56654

Francesca Cheroutes, Esq., Office of the
Solicitor, U.S. Department of Labor, Cesar E. Chavez Memorial Building, 1244 Speer Blvd, Denver, CO 80204

Ben Wangberg, Esq., Fuller, Wallner,
Cayko, Pederson, & Huseby, Ltd., P.O. Box 880, Bemidji, MN 56619-0880

/mzm

[1]
The Respondent’s motion is captioned “Motion to Amend Order of Temporary Financial Reinstatement and Request for Expedited Hearing on Merits.” However, the motion is in essence a motion requesting partial tolling of the temporary economic reinstatement order.

[2]
At one point in its motion, Respondent requests a reduction to $600.00 per week, and at another asks for a reduction to $640.00 per week. Presumably, one of these figures is in error.