Secretary of Labor on behalf of Mary Jane Osbon v. R. E. Grills Construction Co. (ALJ decision, October 6, 2006)

Plain-English summary

The Secretary sought temporary reinstatement for Mary Jane Osbon after her discharge from a haul-truck position. R. E. Grills Construction agreed to return her to equivalent work with the same pay, benefits, hours, and duties. The Secretary withdrew the application without giving up the right to bring a later discrimination case. Judge Jerold Feldman granted withdrawal and dismissed the temporary reinstatement proceeding without prejudice if the agreed terms were not met.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: The temporary reinstatement application was dismissed without prejudice after the operator agreed to reinstate Osbon.
• Key point: Voluntary reinstatement can resolve the temporary proceeding without foreclosing a later Mine Act discrimination action.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

October 6, 2006

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

on behalf of MARY JANE OSBON,

Complainant

v.

R. E. GRILLS CONSTRUCTION CO.,

Respondents

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TEMPORARY REINSTATEMENT

PROCEEDING

Docket No. SE 2006-319-M

SE MD 2006-07

Ragland Quarry

Mine ID 01-00027- 2XL

DISMISSAL OF APPLICATION

FOR TEMPORARY REINSTATEMENT

Before: Judge Feldman

This case is before me based on an Application For Temporary Reinstatement filed

on September 1, 2006, by the Secretary of Labor on behalf of Mary Jane Osbon pursuant to section 105(c)(2) of the Federal Mine and Safety Health Act of 1977, 30 U.S.C. § 815(c)(2). On October 4, 2006, the Secretary filed a Motion to Withdraw her application for the temporary reinstatement of Ms. Osbon. As grounds for her Motion, the Secretary represents that:

1. On Friday, September 29, 2006, R.E. Grills Constructions Company,
   Inc. (“Respondent”) voluntarily agreed to temporarily reinstate Ms. Osbon to the position she held as a haul truck operator, immediately prior to her discharge on June 6, 2006, at the same rate of pay, the same benefits, same number of hours worked and with the same duties assigned to her.

2. Respondent will temporarily reinstate Ms. Osbon at the Old Castle-Tiftonia Quarry in Tiftonia, Hamilton County, Tennessee, on October 9, 2006.

3. The Secretary’s Motion for Temporary Reinstatement is withdrawn
   without prejudice to the Secretary to bring a discrimination action against the Respondent in this matter.

4. Each party agrees to bear its own attorney’s fees, costs and other
   expenses incurred by such party in connection with any stage of these proceedings including, but not limited to, attorney’s fees which may be available under the Equal Access to Justice Act, as amended.

In view of the above, IT IS ORDERED that the Secretary’s Motion to Withdraw

IS GRANTED. IT IS FURTHER ORDERED that the subject temporary reinstatement application IS DISMISSED without prejudice to refile if the above terms are not satisfied, and without prejudice to the Secretary’s subsequent filing of a related discrimination case on behalf of Ms. Osbon.

Jerold Feldman

Administrative Law Judge

(202) 434-9967

Distribution:

Kristina Harrell, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, SW, Atlanta, GA 30303

Thomas M. Eden, III, Esq., Wallace, Jordan, Ratliff & Brandt, L.L.C., P.O. Box 530910, Birmingham, AL 35253

/mh