Secretary of Labor on behalf of Frederick Martin v. Dickenson-Russell Coal Company (ALJ decision, May 21, 2007)

Plain-English summary

The Secretary sought temporary reinstatement for Frederick Martin while investigating his discrimination claim against Dickenson-Russell Coal Company. The parties agreed that, instead of returning Martin to work at the mine, the company would provide biweekly economic reinstatement equal to his former net wages, subject to credit for earnings from other employers. Judge Jerold Feldman approved the agreement and stayed the proceeding for up to 60 days. Economic reinstatement would continue if the Secretary filed a discrimination complaint, while comparable mining employment would end the arrangement. The order preserved both sides' rights to contest or modify the temporary arrangement.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: Temporary economic reinstatement was ordered by agreement, and the proceeding was stayed for up to 60 days.
• Key point: Parties may use wage-based economic reinstatement in place of an immediate return to the mine while a discrimination investigation proceeds.

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, D.C. 20001

May 21, 2007

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

On behalf of Frederick Martin,

Applicant

v.

DICKENSON-RUSSELL COAL CO.,

Respondent

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TEMPORARY REINSTATEMENT

PROCEEDING

Docket No. VA 2007-40-D

NORT CD 2007-01

Mine ID 44-07146

Roaring Fork No. 4

STAY ORDER

This case is before me based on an application for temporary reinstatement brought by the Secretary of Labor (the Secretary) on behalf of Frederick Martin against Dickenson-Russell Coal Company (Dickenson) under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (the Act). This case was scheduled for hearing on May 23, 2007. During a May 18, 2007, telephone conference, the parties agreed to stay this matter for a period not to exceed 60 days from the date of this Order during which time Dickenson agreed to economically reinstate Martin. Specifically, the Secretary and Dickenson have agreed that, in lieu of Dickenson reinstating Martin to a job at the Roaring Fork No. 4 Mine, Dickenson shall pay Martin, on a bi-weekly basis consistent with Dickenson's regular payroll practices, a sum of money, net of taxes and other required withholdings, that is equal to the amount of wages that Martin would have earned, net of taxes and other required withholdings, if he had been reinstated to his former position, hereinafter referred to as "temporary economic reinstatement." Dickenson shall be entitled to a credit or refund for any wages earned by Martin from other employers during the period of temporary economic reinstatement.

The parties will initiate a telephone conference within this 60 day period to discuss the status of the Secretary’s discrimination investigation. If the Secretary, during this 60 day period, elects to file a discrimination action on Martin’s behalf, the parties will agree on a mutually satisfactory discovery schedule and hearing date for the underlying discrimination matter.

Therefore, by agreement of the parties, it is hereby ORDERED that:

1. Dickenson-Russell shall provide temporary economic reinstatement to Martin effective upon entry of this Order.

2. Temporary economic reinstatement shall continue for a period of 60 days from entry of this Order. During this 60-day period, the temporary reinstatement proceedings in this case shall be stayed. If during the 60-day period the Secretary files a complaint on the merits of Martin's allegations of discrimination, temporary economic reinstatement shall continue pending a final order by the Administrative Law Judge on the complaint. If during the 60-day period the Secretary determines not to file a complaint, the parties shall address whether temporary economic reinstatement shall terminate. If at the end of the 60-day period, the Secretary has not determined whether to file a complaint, the Secretary may seek a hearing on the application for temporary reinstatement.

3. The parties agree that any future proceedings on temporary reinstatement or on a discrimination complaint shall be conducted expeditiously.

4. This Order is entered without prejudice to Dickenson-Russell's right to contest the allegations made in the Secretary's application for temporary reinstatement and in any discrimination complaint. This Order is also entered without prejudice to the right of either party to move to enlarge, dissolve, or modify this Order, and I retain jurisdiction to hear and determine any such motions.

5. If Martin is employed in another comparable position in the mining industry, the temporary economic reinstatement shall terminate.

Accordingly, IT IS FURTHER ORDERED that the captioned temporary reinstatement matter IS STAYED for a period not to exceed 60 days from the date of this Order.

Jerold Feldman

Administrative Law Judge

(202) 434-9967

Distribution: (Facsimile and Certified Mail)

Nickole Winnett, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,

22nd Floor West, Arlington, VA 22209-2247

Wade W. Massie, Esq., Penn, Stuart & Eskridge, P.O. Box 2288, Abingdon, VA 24212

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