Cardinal Stone Company (ALJ decision, August 25, 1995)

Plain-English summary

The Secretary sought temporary reinstatement for Delbert W. Bennett after filing an application on his behalf. Cardinal Stone Company received the application but did not notify the judge whether it requested a hearing within the required period. Judge Avram Weisberger found that Bennett's complaint was not frivolously brought and ordered Cardinal Stone to reinstate him to his prior position, or a similar position at the same pay and with the same or equivalent duties. The reinstatement was to remain in effect pending a final Commission order on the discrimination complaint.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 2700.45(c)
• Outcome: Temporary reinstatement was ordered pending the final Commission order on the discrimination complaint.
• Key point: When the respondent did not timely request a hearing, the judge reviewed the application and ordered temporary reinstatement after finding the complaint nonfrivolous.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

August 25, 1995

SECRETARY OF LABOR,
: TEMPORARY REINSTATEMENT
MINE SAFETY AND HEALTH
: PROCEEDING
ADMINISTRATION (MSHA),
:
ON BEHALF OF
: Docket No. VA 95-69-DM
DELBERT W. BENNETT,
: MSHA Case No. NE MD 95-05
v. : Grayson Quarry

CARDINAL STONE COMPANY, :
Respondent :

ORDER OF TEMPORARY REINSTATEMENT

On August 11, 1995, the Secretary filed an application for temporary reinstatement on behalf of Delbert W. Bennett. The application for temporary reinstatement was mailed to Cardinal Stone Company, (Respondent), by certified mail, return receipt requested.

On August 25, 1995, the Secretary filed a motion for temporary reinstatement. Attached to the motion is a copy of a return receipt, indicating receipt by Respondent of the application for temporary reinstatement on August 14, 1995. To date, the Respondent has not advised the Chief Administrative Law Judge or his designee whether a hearing is requested. The Secretary asserts that Respondent has not notified the Secretary whether a hearing is requested.

29 C.F.R. § 2700.45(c) provides, as pertinent, as follows:

Within 10 days following receipt of the application, the Respondent shall notify the Administrative Law Judge or his designee, and simultaneously notify the Secretary, whether a hearing on the application is requested. If no hearing is requested, the Judge assigned to the matter shall review immediately the Secretary's application and if based on the contents thereof the Judge determines that the miner's complaint was not frivolously brought, he shall issue immediately a written order of temporary reinstatement.

More than ten days have elapsed following receipt by Respondent of the Secretary's application for temporary reinstatement. No request has been received from the Respondent requesting a hearing on the application. I have reviewed the Secretary's application. Based on the contents thereof, I determine that the complaint of Delbert W. Bennett was not frivolously brought.

Accordingly, it is ORDERED, that the respondent reinstate Delbert W. Bennett to the position he held immediately prior to being fired or to a similar position at the same rate of pay, and with the same or equivalent duties assigned to him. It is further ORDERED that the reinstatement shall remain in effect pending a final order by the Commission upon Applicant's Complaint of Discrimination.

Avram Weisberger
Administrative Law Judge
(703) 756-5233

Distribution:

Caryl Casden, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203 (Certified Mail)

Cardinal Stone Company, Route 1, Box 452, Galax, VA 24333 (Certified Mail)

Delbert W. Bennett, 108 Pickshin Drive, Dobson, NC 27017

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