Secretary of Labor obo Jason Hargis v. Vulcan Construction Materials, LLC (ALJ decision, July 29, 2021)

Plain-English summary

The Secretary sought temporary reinstatement for Jason Hargis at Vulcan Construction Materials. Vulcan did not request a hearing, and the parties agreed to economic reinstatement terms. Judge Michael G. Young found that the discrimination complaint was not frivolously brought and ordered economic reinstatement effective July 27, 2021. The order preserved Hargis's former wages and the other terms in the agreement while the underlying case continued. The Commission later held that temporary reinstatement continued until the discrimination proceeding reached a final agency disposition.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.45
• Outcome: Jason Hargis was granted temporary economic reinstatement effective July 27, 2021.
• Subsequent review: The Commission addressed the duration of reinstatement in se-2021-0163-commission.
• Key point: An uncontested nonfrivolous discrimination complaint supported interim economic reinstatement while the merits remained pending.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

OFFICE
OF ADMINISTRATIVE LAW JUDGES

1331
Pennsylvania Ave. NW, Suite 520N

WASHINGTON,
DC 20004-1710

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

SECRETARY OF
LABOR

MINE SAFETY
AND HEALTH       

ADMINISTRATION
(MSHA),

on behalf of
JASON HARGIS,

Complainant,

v.

VULCAN
CONSTRUCTION MATERIALS, LLC,

Respondent

TEMPORARY
REINSTATEMENT PROCEEDING

Docket No. SE 2021-0163

MSHA Case No.:
BARB-CD-2021-02

Mine: Wilson
County Quarry

Mine ID:
40-00131

ORDER
GRANTING TEMPORARY ECONOMIC REINSTATEMENT

OF
JASON HARGIS

Before:           
Judge Young

Pursuant
to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 801, et. seq., and 29 C.F.R. § 2700.45, the Secretary of Labor (“Secretary”) on July 16, 2021, filed an Application for Temporary Reinstatement of miner Jason Hargis (“Complainant”) to his former position with Vulcan Construction Materials, LLC, (“Respondent”) at Respondent’s mine pending final hearing and disposition of the case.

According
to Commission Rule 45, a request for hearing must be filed within 10 days following receipt of the Secretary’s application for temporary reinstatement. 29 C.F.R. § 2700.45(c). The Secretary’s certificate of service states that the Application for Temporary Reinstatement of Complainant was served on Respondent by electronic mail on July 16, 2021. On a July 26, 2021 conference call, the Respondent told this Court that it would not be seeking a hearing in this matter.

On
July 28, 2021, the parties further submitted a Joint Motion to Approve Settlement Regarding Temporary Economic Reinstatement. The Agreement sets forth the terms of the temporary economic reinstatement, including Complainant’s rate of pay and benefits, the date that economic reinstatement shall begin, and other terms, which are incorporated into this Order by reference.

The
Secretary has found that the Complaint was not frivolously brought and has provided evidence supporting that determination. The Respondent does not contest the determination. Therefore, consistent with Section 105(c)(2) of the Act, the temporary economic reinstatement of Jason Hargis is granted.

ORDER

It is
hereby ORDERED that Jason Hargis be TEMPORARILY ECONOMICALLY REINSTATED , effective July 27, 2021. Hargis shall receive the wages he was formerly paid, as well as other terms of his employment, as set forth in the Agreement.

This
Order SHALL remain in effect until such time as there is a final determination in this matter by hearing and decision, approval of settlement, or other order of this court or the Commission.

I
retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R. § 2700.45(e)(4). The Secretary SHALL provide a report on the status of the underlying discrimination complaint as soon as possible . Counsel for the Secretary SHALL also immediately notify my office of any settlement or of any determination that Vulcan Construction Materials, LLC, did not violate Section 105(c) of the Act.

/s/ Michael G. Young

Michael G. Young

Administrative Law Judge

Distribution (Via
Certified Mail & E-mail)

William K. Doran,
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 1909 K Street, N.W., Suite

1000, Washington,
DC 20006 ( [email protected] )

Christopher M.
Smith, Office of the Solicitor, U. S. Department of Labor, 618 Church Street,

Suite 230,
Nashville, TN 37219 ( [email protected] )  

Elaine M.
Youngblood, Ortale Kelley, 330 Commerce Street, Suite 110, Nashville, TN 37201,

( [email protected] )