Reading Anthracite Company

Plain-English summary

Reading Anthracite Company was involved in a Mine Act discrimination proceeding concerning Leonard Bernardyn, a haulage truck driver. The Administrative Law Judge dismissed the Secretary's complaint and dissolved Bernardyn's temporary reinstatement order. The Commission held that the order could not be dissolved before the judge's decision became final or the Commission completed its review. It vacated the dissolution order and directed Bernardyn's immediate temporary reinstatement pending a final Commission decision on the complaint.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(2), 30 U.S.C. § 824(d)(1), and 29 C.F.R. § 2700.45(f), (g)
• Outcome: The judge's dissolution of the temporary reinstatement order was vacated, and immediate temporary reinstatement was ordered pending final Commission review.
• Key point: A temporary reinstatement order remains in effect while the Commission reviews the judge's decision on the underlying discrimination complaint.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               1730 K STREET NW, 6TH FLOOR

                 WASHINGTON, D.C.  20006


                    September 7, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
on behalf of LEONARD BERNARDYN :
:
v. : Docket Nos. PENN 99-129-D
:
: PENN 99-158-D
READING ANTHRACITE COMPANY :

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"), the Secretary of Labor
has challenged, inter alia, Administrative Law Judge Avram
Weisberger's order dissolving his previously issued order
granting the temporary reinstatement of Leonard Bernardyn.
For the reasons that follow, we vacate the judge's dissolution
order.

 On November 12, 1998, Bernardyn filed a discrimination

complaint with the Department of Labor's Mine Safety and
Health Administration alleging that he had been discharged by
Reading Anthracite Company ("Reading") in violation of section
105(c) of the Mine Act, 30 U.S.C. § 815(c). Mot. at 3-4.
On March 19, 1999, the judge issued an order granting the
Secretary's application to temporarily reinstate Bernardyn as
a haulage truck driver, the position he held prior to his
termination. Id. at 4; 21 FMSHRC 339, 342 (Mar. 1999) (ALJ).
On July 26, the judge issued a decision dismissing the
Secretary's complaint against Reading. 21 FMSHRC 819, 824
(July 1999) (ALJ). In his decision, the judge also "ordered
that the Order of Temporary Reinstatement, issued on March 19,
1999, . . . is hereby dissolved." Id. (emphases removed).
Reading discharged Bernardyn on August 2, 1999. Mot. at 4.

 On August 24, 1999, the Secretary filed with the Commission

a petition for discretionary review of the judge's decision
vacating Bernardyn's complaint together with a "Motion to Vacate
Portion of Judge's Decision Dissolving Order of Temporary
Reinstatement or, in the Alternative, for Stay of Judge's
Decision Dissolving Order of Temporary Reinstatement." The
Secretary submits that the judge's order dissolving the order
of temporary reinstatement is legally invalid. Mot. at 5. She
explains that the judge did not have authority under the Mine
Act to issue such an order because there has not yet been a
final determination by the Commission on the merits of
Bernardyn's complaint. Id. at 5-8. Alternatively, the
Secretary argues that, under criteria the Commission has
established, a stay of the judge's order dissolving the order
of temporary reinstatement pending the Commission's review of
the underlying discrimination complaint is appropriate. Id.
at 8-16.

 On August 26, 1999, Reading filed an opposition to the

Secretary's motion for relief from the judge's dissolution
order. Reading asserts that, to the extent the Secretary's
motion should be construed as the equivalent of a request for
an order granting or denying temporary reinstatement, such a
request is time-barred under Commission Procedural Rule 45(f).
R. Reply at 2. Reading also submits that none of the
Commission's criteria for evaluating stay requests supports
the Secretary's motion to stay the judge's order dissolving
the temporary reinstatement order. Id. at 7-8. The operator
also argues that the result should not be harsher for Reading
under the present circumstances than it would be when a
temporary reinstatement order is dissolved pursuant to
Commission Procedural Rule 45(g) due to the Secretary's decision
not to proceed with a complaint. Id. at 5. Reading also filed
an opposition to the Secretary's petition for discretionary
review. R. Br. in Resp. to PDR. The Commission granted review
of the judge's decision on August 27, 1999.

 Section 113(d)(2)(A) specifies that review of a

judge's decision may be obtained by filing a petition for
discretionary review, which must set forth the issues being
appealed. 30 U.S.C. § 823(d)(2)(A). We note at the outset
that the Secretary's motion to vacate or stay the judge's
dissolution order was filed on the same day as the petition
for discretionary review of the judge's determination on the
merits of the discrimination complaint. Furthermore, the
motion makes explicit reference to the petition. Mot. at 4,

9. Thus, since the Secretary's motion challenges that portion
   of the judge's decision dissolving his temporary reinstatement
   order, we treat it as part of the Secretary's granted petition
   for discretionary review.[1] See Walter Kuhl & Son, 16 FMSHRC
   1405 (July 1994) (construing motion filed by Secretary as
   petition for discretionary review). Accordingly, the issue
   of the dissolution of the temporary reinstatement order is
   properly before us. See Rock of Ages Corp., 20 FMSHRC 106,
   115 n.11 (Feb. 1998) (broadly construing petition for
   discretionary review), aff'd in part on other grounds, 170
   F.3d 148 (2d Cir. 1998); Fort Scott Fertilizer-Cullor, Inc.,
   19 FMSHRC 1511, 1514 & n.4 (Sept. 1997) (same).

   Regarding Reading's suggestion that the Secretary's
   challenge to the judge's dissolution order should be rejected
   as untimely under Commission Procedural Rule 45(f), 29 C.F.R.
   § 2700.45(f),[2] we note that Rule 45(f) covers only Commission
   review of a judge's initial grant or denial of a temporary
   reinstatement application. By contrast, in the instant matter,
   the temporary reinstatement application was already granted by
   order dated March 19. The issue presently before us is the
   Secretary's challenge to the judge's dissolution of his
   previously issued reinstatement order, a subject not covered by
   Rule 45(f). The current matter falls outside the scope of Rule
   45(f), and we therefore reject Reading's timeliness argument.

   Section 105(c)(2) of the Mine Act states that, once it has
   been determined that an application for temporary reinstatement
   has not been frivolously brought, the Commission, "shall order
   the immediate reinstatement of the [complaining] miner pending
   final order on the complaint." 30 U.S.C. § 815(c)(2) (emphasis
   added). Section 113(d)(1) of the Act states: "The decision of
   the administrative law judge . . . shall become the final
   decision of the Commission 40 days after its issuance unless
   within such period the Commission has directed that such
   decision shall be reviewed . . . ." 30 U.S.C. § 824(d)(1)
   (emphasis added). Therefore, the language of the Mine Act
   requires that a temporary reinstatement order remain in
   effect while the Commission reviews the judge's decision.

   In the instant matter, when the judge purportedly
   dissolved the temporary reinstatement order, the time had not
   yet passed for the Commission to review the judge's decision
   on the merits of Bernardyn's discrimination complaint.
   Accordingly, the judge's decision had not yet become a final
   Commission decision. 30 U.S.C. § 824(d)(1). Thus, the judge
   lacked statutory authority to dissolve the temporary
   reinstatement order concurrently with his discrimination
   decision or at any time before we could direct review. Since
   we have granted the Secretary's petition for review of the
   judge's determination on the merits, the judge's dismissal
   of the complaint will not become a final decision under
   section 113(d)(1) of the Act until we review and issue a
   decision upon that matter. Accordingly, the judge's
   purported dissolution of the temporary reinstatement order
   is legally invalid.

   We also find unpersuasive Reading's suggestion that it
   would be inequitable to reinstate Bernardyn following the
   judge's dissolution order, when Commission Procedural Rule
   45(g), 29 C.F.R. § 2700.45(g)[3], permits dissolution of a
   temporary reinstatement order upon the Secretary's decision
   not to proceed on the complaint. Rule 45(g) provides for the
   judge's dissolution of a temporary reinstatement order if
   the Secretary determines that no discrimination occurred.
   29 C.F.R. § 2700.45(g). This is a "gap filling" provision
   designed to deal with a situation not addressed by the statute
   C the status of a temporary reinstatement order following a
   determination by the Secretary that there has been no violation
   of section 105(c). In the instant matter, the Secretary
   determined that discrimination had occurred and filed a
   complaint on behalf of Bernardyn. Under these circumstances,
   the statutory language of section 105(c)(2), which provides
   for maintenance of the temporary reinstatement order pending
   final determination on the merits of the complaint, must be
   followed.[4]

   We find the facts and circumstances that led the
   Secretary to move for the dissolution or stay of the judge's
   order unusual. Indeed, the issue of the propriety of such an
   order is one of first impression. Unlike an appeal of a
   temporary reinstatement order taken when the order is first
   issued, see 29 C.F.R. § 2700.45(f), at issue in this case is
   the ultimate fate of such a temporary reinstatement order at
   the close of proceedings before one of our judges. Although
   we dispose of this issue in our ruling today, we recognize
   that Bernardyn's reinstatement imposes additional obligations
   on the parties. Therefore, we will order expedited briefing
   in this case according to the following schedule: the
   Secretary's brief shall be filed no later than September 21,
   1999. Reading's response brief shall be filed no later than
   25 days after service of the Secretary's brief. The Secretary
   may file a reply brief within 5 days of service of Reading's
   response brief. All briefs shall be filed and served by
   facsimile.[5]

   For the foregoing reasons, we vacate the judge's order
   dissolving his previously issued temporary reinstatement order
   of Bernardyn, and order the immediate temporary reinstatement
   of the complainant pending a final Commission decision on the
   complaint.

                         Mary Lu Jordan, Chairman
   
                         Marc Lincoln Marks, 
                           Commissioner
   
                         James C. Riley, Commissioner
   
                         Theodore F. Verheggen, 
                           Commissioner
   
                         Robert H. Beatty, Jr., 
                           Commissioner
   

Distribution
By facsimile and first class mail

Martin J. Cerullo, Esq.
Cerullo, Datte & Wallbillich, P.C.
P.O. Box 450
Pottsvile, PA 17901

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

Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

Footnotes:

 [1]   The decision issued by the judge which is the

subject of the Secretary's PDR affected both the temporary
reinstatement previously granted by the judge in Docket No.
PENN 99-129-D and the underlying discrimination issue in
Docket No. PENN 99-158-D, effectively consolidating those
dockets.

 [2]   Commission Procedural Rule 45(f) provides that

"[r]eview by the Commission of a Judge's written order
granting or denying an application for temporary reinstatement
may be sought by filing with the Commission a petition for
review with supporting arguments within 5 days following
receipt of the Judge's written order." 29 C.F.R. § 2700.45(f).

 [3]   Commission Procedural Rule 45(g) provides, in

pertinent part: "If, following an order of temporary
reinstatement, the Secretary determines that the provisions
of section 105(c)(1), 30 U.S.C. 815(c)(1), have not been
violated, the Judge shall be so notified and shall enter an
order dissolving the order of reinstatement." 29 C.F.R.
§ 2700.45(g).

 [4]   In light of our disposition based on the statutory

language of sections 105(c)(2) and 113(d)(1), we need not
address the Secretary's alternative argument requesting a stay
of the judge's order.

 [5]   Commissioner Beatty agrees in principle with his

colleagues regarding the need to expedite briefing in this
case. He would, however, expand this principle to direct
expedited briefing on review of a judge's decision on the
merits before the Commission in all cases in which there is
an underlying temporary reinstatement order. He also believes
that the Commission should issue its ruling no later than
60 days after the close of briefing in such cases.