Secretary of Labor v. Lehigh Cement Company, LLC (ALJ decision, August 20, 2019)

Plain-English summary

The Secretary alleged that Lehigh Cement terminated James McGaughran in retaliation for protected safety activity and sought his temporary reinstatement while the discrimination claim was investigated. The parties settled the temporary-reinstatement request without resolving the merits. Judge Priscilla M. Rae approved economic reinstatement requiring an initial payment of $9,317.02, continuing wages of $4,658.51 on regular paydays, and preservation of benefits and seniority. The payments were to continue until MSHA found no violation, discontinued the matter, or a filed discrimination case reached a final Commission judgment.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)
• Outcome: The settlement was approved and James McGaughran received temporary economic reinstatement on the agreed payment and benefit terms.
• Key point: Temporary economic reinstatement can preserve a miner's wages, benefits, and seniority while the underlying discrimination claim remains unresolved.

Full text (FMSHRC public release)

FEDERA L MIN E SAFET Y AN D HEALT H REVIE W COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNS Y LVANIA AVENUE,
NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9950 / FAX: 202-434-9949

August 20, 2019

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH     

ADMINISTRATION
(MSHA), on

behalf
of JAMES MCGAUGHRAN,

Petitioner,

v.

LEHIGH CEMENT COMPANY, LLC,

Respondent.

TEMPORARY
REINSTATEMENT PROCEEDING

Docket No. PENN 2019-0144-DM

MSHA
Case No. NE-MD_19-05

Mine: Nazareth Plant I

Mine ID:
36-00190

ORDER GRANTING TEMPORARY ECONOMIC REINSTATEMENT

Before:                        Judge Rae

This matter is before
me upon an Application for Temporary Reinstatement, filed by the Secretary of Labor (“Secretary”) on August 1, 2019, pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). Section 105(c) prohibits operators from discharging or otherwise discriminating against miners who have engaged in safety related protected activity, and authorizes the Secretary to apply to the Commission for miners’ temporary reinstatement, pending full resolution of the merits of their discrimination complaints. The Secretary seeks an order requiring Lehigh Cement Company, LLC (“Lehigh”), to temporarily economically reinstate James McGaughran (“McGaughran”) in lieu of actual temporary reinstatement.

The Application is supported
by the Declaration of MSHA Supervisory Special Investigator Jeffrey C. Maxwell, and a copy of the Discrimination Complaint filed by McGaughran on May 16, 2019. The Application alleges that McGaughran was terminated in March 2019 in retaliation for protected activity.

The parties subsequently negotiated
and filed a Joint Motion to Approve Settlement Regarding Temporary Reinstatement, setting forth, for my approval, a proposal that resolves all issues in controversy with respect to this temporary reinstatement proceeding. The essential provisions of the Agreement are as follows:

1. Lehigh agrees to
   make payment to McGaughran, in the amount of $9,317.02, to account for the time period between August 1, 2019 and the date of this Order;

2. Lehigh agrees to
   provide wages to McGaughran in the amount of $4,658.51, less all appropriate and necessary deductions and withholdings, on Lehigh’s regularly scheduled paydays.

3. Lehigh agrees to
   compensate McGaughran with all benefits as if he were continuously employed, and there shall be no loss in McGaughran’s seniority status during the temporary economic reinstatement period. Further, McGaughran shall be eligible for any raises and/or benefits that would accrue during the reinstatement period.

4. McGaughran is
   not entitled to request or collect any unemployment compensation benefits during the temporary economic reinstatement period.

5. Economic
   reinstatement of McGaughran shall continue unless MSHA finds that section 105(c)(1) has not been violated, or if the investigation or discrimination proceeding is otherwise discontinued for any reason. Should the Secretary elect to file a Complaint of Discrimination under section 105(c)(2) of the Mine Act, McGaughran’s temporary economic reinstatement will only expire after the Commission’s judgment in that matter becomes final.

WHEREFORE , the Joint Motion
to Approve Settlement Regarding Temporary Reinstatement is GRANTED , and it is ORDERED that Lehigh Cement Company, LLC TEMPORARILY ECONOMICALLY REINSTATE James McGaughran, in accordance with all terms set forth in the parties’ Joint Motion to Approve Settlement Regarding Temporary Reinstatement of August 16, 2019.

/s/ Priscilla M. Rae

Priscilla
Rae

Administrative Law Judge

Distribution:

Margaret Lopez, Esq., Ogletree, Deakins,
Nash, Smoak & Stewart P.C., 1909 K Street NW, Suite 1000, Washington, DC 20006

M. del Pilar Castillo, Esq., U.S.
Department of Labor, 170 S. Independence Mall West, Suite 630E, Philadelphia, PA 19106

James McGaughran, 110, Marsh Lane, Wind
Gap, PA 18041

/smp