Ezel / Agency Decisions / se-2016-299-dm-alj

Secretary of Labor v. Lopke Quarries, Inc. (ALJ decision, September 1, 2016)

Secretary of Labor v. Lopke Quarries, Inc. (FMSHRC SE 2016-299 DM): Premature reinstatement order vacated after service error

Decision type
ALJ decision
Docket
SE 2016-299 DM
Decided
September 1, 2016
Presiding judge
Priscilla M. Rae
Outcome
Procedural
Precedential status
Final order, not precedent
Checked against source
2026-08-01
Cited standards
30 U.S.C. § 815(c)(2) 29 C.F.R. § 2700.45 29 C.F.R. § 2700.45(c)
Official source
Read the official release (fmshrc.gov)
PDF
View Official PDF

Apply this to your situation

This order from 2016 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Currency note: this decision dates from 2016
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Temporary-reinstatement order, not Commission precedent
This order vacated an earlier reinstatement award and left the miner's application pending for a hearing. It did not resolve the discrimination merits or become a final decision under the 40-day rule in 30 U.S.C. § 823(d)(1). It is not Commission precedent. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Read the official release (fmshrc.gov)

Plain-English summary

The Secretary applied to temporarily reinstate Steve Glosson and certified that Lopke Quarries had been served by email. Judge Priscilla M. Rae relied on that certification and issued a temporary-reinstatement order after the apparent deadline for requesting a hearing passed. The Solicitor then reported that email service had not occurred and that Lopke received the application by mail later than represented. Because Lopke timely requested a hearing under the corrected service timeline, the Judge vacated the August 29 reinstatement order and left the application for further proceedings.

Decision snapshot

  • Governing provisions: 30 U.S.C. § 815(c)(2) and 29 C.F.R. § 2700.45
  • Outcome: The August 29 temporary-reinstatement order was vacated after Lopke timely requested a hearing.
  • Key point: A reinstatement award based on an incorrect service certification cannot stand when the operator's hearing request was timely under the actual service date.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

September 1,
2016

SECRETARY
OF LABOR, U.S. DEPARTMENT OF LABOR, on behalf of STEVE GLOSSON,

Complainant,

v.

LOPKE
QUARRIES, INC.,

Respondent.

TEMPORARY
REINSTATEMENT PROCEEDING

Docket
No. SE 2016-299-DM

MSHA
Case No. SE-MD-16-09

Mine:
Dunn Construction

Mine
ID: 01-03411

ORDER VACATING
AWARD OF TEMPORARY REINSTATEMENT

This matter is before me upon an
Application for Temporary Reinstatement under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“the Mine Act”), 30 U.S.C. § 815(c)(2), and Commission Procedural Rule 45, 29 C.F.R. § 2700.45.

The application was filed with the
Commission on August 16, 2016. The Secretary represented that she had served the Respondent via email on the previous day. Relying on his representation, on August 29, I issued an order of temporary reinstatement pursuant to 29 C.F.R. § 2700.45(c). Today, the Solicitor notified the Court that she erroneously failed to serve the Respondent via email as she had so certified. The Respondent did not receive the application by mail until August 22, meaning that today is actually the deadline to request a hearing. The Respondent has now timely requested a hearing.

Accordingly, my August 29, 2016 Order of
Temporary Reinstatement in this case is hereby VACATED.

/s/ Priscilla M.
Rae

Priscilla M. Rae

Administrative Law Judge

Distribution:

Melanie
A. Stratton, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street SW, Room 7T10, Atlanta, GA 30303

Steve
Glosson, 226 Creel Loop, Brierfield, AL 35035

Mike
Lindhorst, General Superintendent, 3430 State Route 434, Apalachin, NY 13732

Adele
L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D, Beltsville, MD 20705

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