Secretary of Labor obo Tracy A. Lewis v. Tip Top Materials, LLC

Plain-English summary

The Secretary sought temporary reinstatement for Tracy Lewis while his discrimination complaint against Tip Top Materials remained pending. Tip Top did not timely request a hearing, and Judge Michael G. Young had already ordered Lewis temporarily reinstated. The parties then agreed that Tip Top would place Lewis in the same financial and legal position he would have occupied if he had physically returned to work. The judge approved the agreement, ordered economic temporary reinstatement under its terms, retained jurisdiction, and required status reporting on the underlying complaint.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.45(e)(4)
• Outcome: The economic temporary-reinstatement agreement was approved and Tip Top was ordered to comply with it.
• Key point: The parties could use economic reinstatement to preserve the miner's pay and legal position while the discrimination case continued.

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.
NW, Suite 520N

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

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

on behalf of TRACY A. LEWIS,

Complainant,

v.

TIP TOP MATERIALS, LLC,

Respondent

TEMPORARY REINSTATEMENT

Docket No. VA 2021-0008-D

MSHA Case No.: NORT-CD 2021-03

Mine: Tip Top Materials, LLC

Mine ID: 44-07399

ORDER OF TEMPORARY ECONOMIC REINSTATEMENT

Before:            Judge Young

This matter is before me on an
application for temporary reinstatement filed by the Secretary of Labor
(“Secretary”) on behalf of Tracy Lewis (“Complainant”) pursuant to section
105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30
U.S.C. § 815(c)(2), against Tip Top Materials, LLC (“Tip Top”). The Secretary
filed the Application for Temporary Reinstatement on February 26, 2021. The Respondent did not file a timely Request for Hearing,
and the temporary reinstatement of Tracy A. Lewis was ordered by me on March
11, 2021.

The Respondent subsequently
retained counsel and the parties to this case – the Secretary; Tracy A. Lewis;
and Tip Top Materials, LLC - through their respective counsel filed a Joint
Motion to Approve Economic Temporary Reinstatement Agreement for Tracy A. Lewis
on March 16, 2021. Pursuant to the Agreement, Tip Top, effective March 12, 2021,
shall place Lewis “in the same financial and legal position that he would be in
had he physically returned to work” while his discrimination case on the merits
is pending.

The Agreement sets forth the terms
of the temporary economic reinstatement, including Complainant’s rate of pay
and benefits. Lewis shall be paid every Friday via a check mailed to him at
8717 Lewis Mountain Road, Pound, VA 24279. The Agreement includes other terms
and conditions which are incorporated into this order by reference.

ORDER

I have considered the
representations and documentation submitted in this case and I conclude that
the terms set forth in the Agreement are appropriate under section 105(c)(2) of
the Mine Act. Consequently, the Agreement is APPROVED and Tip Top is ORDERED
to economically temporarily reinstate Tracy A. Lewis pursuant to the terms and
conditions 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 Tip Top 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)

LaShanta Harris, Esq., U.S. Dept. of Labor, Office of the Regional
Solicitor, 201 12 Street South, Suite #401, Arlington, VA 22202, [email protected]

Dennis E. Jones, Esq., 230 Charwood Drive, Suite A,
Abingdon, VA 24210; [email protected]

Wes Addington, Esq., Appalachian Citizens’ Law Center, 317
Main Street, Whitesburg, KY 41858, [email protected]

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522, [email protected]