Secretary of Labor obo Raymond McKinney, Jr. v. Black River Coal, LLC (ALJ decision, November 22, 2016)

Plain-English summary

Raymond McKinney, Jr. filed a discrimination complaint against Black River Coal in June 2015. The Secretary applied for temporary reinstatement, which puts a miner back on the payroll while MSHA investigates, and Judge Jerold Feldman ordered it in August 2015 after the parties settled the reinstatement question. In October 2016 Black River asked to suspend the order because it had shut down the War Creek No. 1 mine with no plans to reopen, and the Secretary did not object. Then on November 9, 2016, the Secretary told the judge he had decided not to file a discrimination case for McKinney. Under settled law, a temporary reinstatement order ends once the Secretary concludes on investigation that no discrimination occurred. The judge terminated the reinstatement order and dismissed the temporary reinstatement proceeding.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: The August 21, 2015 temporary reinstatement order was terminated and the proceeding was dismissed.
• Key point: Temporary reinstatement lasts only while MSHA's discrimination investigation is open, and it ends when the Secretary declines to bring the case.

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
Avenue, NW, Suite 520N

Washington , DC 20004

November 22, 2016

SECRETARY OF LABOR, MSHA,

on behalf of RAYMOND MCKINNEY,  

JR.,

v.

BLACK RIVER COAL, LLC,

Respondent.

TEMPORARY REINSTATEMENT PROCEEDING

Docket No. VA 2015-261-D

NORT-CD 2015-02

Mine ID No.: 44-06859

ORDER TERMINATING TEMPORARY REINSTATEMENT

AND

DISMISSAL ORDER

Before:             Judge Feldman

This matter is before me on the Secretary of Labor’s Application for Temporary Reinstatement filed on behalf of Raymond McKinney, Jr. pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(2) (“the Act”).

On June 22, 2015, McKinney filed a discrimination complaint with the Mine Safety and Health Administration (“MSHA”). On July 15, 2015, the Secretary filed an Application pursuant to section 105(c)(2) seeking McKinney’s temporary reinstatement to his former position with Black River Coal, LLC, (“Black River”) pending completion of MSHA’s investigation of McKinney’s underlying discrimination complaint. On August 21, 2015, I issued an order requiring McKinney’s temporary reinstatement following receipt of the parties’ Amended Joint Motion for Approval of Settlement Agreement and Motion for Order Granting Temporary Reinstatement, which was filed the same day.

On October 20, 2016, Black River filed a Motion to Toll Temporary Reinstatement Order, asserting that temporary reinstatement should be suspended as Black River had ceased all operations at the War Creek No. 1 mine, with no plans for future operations at the mine site. The Secretary has not opposed Black River’s motion to suspend. As McKinney was temporarily reinstated, rather than economically reinstated, I assume his temporary reinstatement was suspended upon the cessation of mining operations at the War Creek No. 1 facility.

Shortly thereafter, on November 9, 2016,
the Secretary advised the undersigned via email that he has declined to bring a section 105(c)(2) discrimination complaint on behalf of McKinney. Consequently, Black River has moved via email for dissolution of McKinney’s temporary reinstatement.

It is well-settled that an order of temporary reinstatement terminates after the Secretary, upon investigation, concludes that a violation of the anti-discrimination provisions of section 105(c) has not occurred. North Fork Coal Corp. v. FMSHRC , 691 F.3d 735 (6th Cir. 2012), rev’g Sec’y o/b/o Gray v. North Fork Coal Corp. , 33 FMSHRC 27 (Jan. 2011); Vulcan Constr. Materials , 700 F.3d 297 (7th Cir. 2012). Accordingly, as the Secretary has declined to bring a section 105(c)(2) proceeding on behalf of McKinney, the August 21, 2015, Order of Temporary Reinstatement shall be terminated.

ORDER

In view of the above,  IT IS
ORDERED  that the August 21, 2015, Order granting the temporary reinstatement of McKinney as of August 10, 2015,  IS TERMINATED  effective as of the date of this Order. IT IS FURTHER ORDERED that the captioned temporary reinstatement proceeding IS DISMISSED .

/s/ Jerold
Feldman

Jerold Feldman

Administrative Law Judge

Distribution: (Regular and Certified Mail)

Melanie A. Stratton, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12 th Street South, Suite 401, Arlington, VA 22202

Robert S. Wilson, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12 th Street South, Suite 401, Arlington, VA 22202

Michael A. Olivio, Esq., Olivio Law Firm, 813 Quarrier Street, Charleston, WV 25301

Billy Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, 2452 Sir Barton Way, Suite 101, Lexington, KY 40509

/acp