Secretary of Labor on behalf of Peter J. Phillips v. A & S Construction Company (ALJ decision, November 26, 2008)

Plain-English summary

Peter Phillips obtained temporary economic reinstatement after alleging that A & S Construction discharged him for protected safety complaints. MSHA later completed its investigation, found no Mine Act discrimination, and declined to file a complaint on his behalf. The Secretary argued that reinstatement should continue if Phillips filed his own section 105(c)(3) case. Judge David F. Barbour disagreed, holding that temporary reinstatement under section 105(c)(2) ends when the Secretary issues a final negative determination because a miner's later individual action is a separate proceeding without a temporary-reinstatement remedy. He dissolved the economic reinstatement order and dismissed the temporary proceeding.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(2) and 815(c)(3)
• Outcome: The temporary economic reinstatement order was dissolved and the proceeding was dismissed.
• Subsequent review: The Commission later reviewed the ruling in west-2008-1057-dm-commission.
• Key point: The Judge held that temporary reinstatement ends with the Secretary's decision not to prosecute, even if the miner later files an individual discrimination action.

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

November 26, 2008

SECRETARY OF LABOR, MSHA, on

behalf of PETER J. PHILLIPS,

Complainant

v.

A & S CONSTRUCTION CO.,

Respondent

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TEMPORARY REINSTATEMENT
PROCEEDING

Docket No. WEST 2008-1057-DM

RM MD 2008-05

Mine ID: 05-04875

Portable Crusher No. 4

Appearances:  Thomas A. Paige, Esq., U.S. Department of Labor, Arlington, Virginia,

on behalf of the Complainant

Richard P. Ranson, Esq., Ranson & Kane, P.C., Colorado Springs, Colorado,

on behalf of the Respondent

Before:            Judge Barbour

DISSOLUTION OF ORDER OF TEMPORARY ECONOMIC REINSTATEMENT

AND

DISMISSAL OF PROCEEDING

In this proceeding arising under Section 105(c ), 30 U.S.C. § 815(c), of the Federal Mine Safety and Health Act of 1977 (Mine Act or Act), 30 U.S.C. § 801, et. seq., the Secretary of Labor, through her Mine Safety and Health Administration (MSHA) and on behalf of Peter J. Phillips, applied for the temporary reinstatement of Mr. Phillips, an employee of A&S Construction Company (A&S). Mr. Phillips was discharged by A&S on September 13, 2007. On February 11, 2008, Mr. Phillips filed a complaint with MSHA alleging his discharge was motivated by protected safety complaints. MSHA conducted a preliminary special investigation of Mr. Phillips’ complaint and determined it was not frivolous. The finding resulted in the Secretary’s temporary reinstatement application. The Commission received the application on May 22, 2008.

On May 23, 2008, the application was assigned to me. On May 27, 2008, I scheduled the matter to be heard on June 4, in Pueblo, Colorado. Subsequently, counsels conferred and reached an agreement to economically reinstate Mr. Phillips. They further agreed a hearing on the Secretary’s application was unnecessary. Therefore, the hearing was canceled, and on June 6, 2006, I ordered Mr. Phillips’ economic reinstatement “at the same rate of pay, with the same benefits, and for the same work period he held prior to his discharge.” Order of Temporary Economic Reinstatement. As part of the economic reinstatement, the parties and I agreed the Secretary would promptly investigate Mr. Phillips’ underlying discrimination complaint and determine whether she would bring a complaint of discrimination on behalf of Mr. Phillips under section 105(c)(2) of the Act. (A&S was, of course, obligated to pay Mr. Phillips while the investigation was ongoing.) I requested then counsel for the Secretary, James Crawford, to advise me periodically of the status of the investigation. Pursuant to my request, on July 2, 2008, counsel stated a final determination was anticipated “within the next few weeks to a month, if not sooner.” Secretary’s Update on Merits Determination (Update) 1-2. On August 1, 2008, counsel stated a final determination “will be made within the next two weeks.” Update 1-2. On September 10, 2008, counsel stated a determination would be made “as soon as possible.” Update 2. Following the September update, Mr. Crawford retired, and the matter was transferred to Thomas Paige.

On November 10, 2008, the Commission received a notice from Mr. Paige that the Secretary did not intend to proceed under Section 105(c)(2) of the Act on Mr. Phillips’ behalf.

Mr. Paige further stated Mr. Phillips had been notified by letter dated November 3, 2008, of the Secretary’s decision and of his right to file a complaint on his own behalf under Section 105(c)(3). 30 U.S.C. § 815(c)(3). Counsel also stated:

[I]t is the Secretary’s position that the . . . Order of

Temporary Economic Reinstatement . . . remains in

effect until there is a final order of the Commission

disposing of Mr. Phillips’s case, and that such order

cannot be dissolved before that time without violating

the clear language of the statute. The Order of

Temporary Economic Reinstatement must remain

in effect if Mr. Phillips decides to proceed on his

own behalf. [T]he Secretary . . . will oppose any

motion . . . [to dismiss] the order of temporary

[economic] reinstatement prior to the date the

complaint is finally disposed of.

Notice of the Secretary’s Intent Not to Proceed 1-2. Attached to the Secretary’s notice was the November 3 letter to Mr. Phillips in which the Assistant Director of MSHA’s Technical Compliance and Investigation Office advised Mr. Phillips MSHA had “determined that facts disclosed during the investigation do not constitute a violation of Section 105(c)” and “[t]herefore, discrimination, within the confines of the Mine Act, did not occur.” Id., Exh. A.

On November 10, the Commission also received a request from A&S to schedule a hearing to determine, in view of the Secretary’s conclusion Mr. Phillips’ termination did not violate the Act, whether Mr. Phillips’ complaint was frivolously brought and/or whether the reinstatement proceeding should be dismissed and the order of temporary economic reinstatement rescinded. Respondent’s Request to Set Matter for Hearing [and] Motion to Dismiss.

On November 14, following discussions with counsels and with the agreement of Mr. Phillips, I scheduled a telephonic oral argument on A&S’s request and motion. I stated in part, “At issue is the effect of the Secretary’s Notice of Intent Not to Proceed Under Section 105(c)(2) of the Act on the . . . Order of Temporary Economic Reinstatement.” Order Scheduling Oral Argument. Because of the need for a speedy resolution of the issue, I advised the parties I would orally rule on the request and motion and, once I received the transcript, I would confirm the ruling in writing. I added, “The written ruling will be the basis for any appeal to the Commission.” Id.

On November 18, 2008, the argument went forward as scheduled. Counsels and Mr. Phillips participated. At the conclusion of the argument I held as follows:

The fundamental issue before me is the continuing viability of

an order of temporary reinstatement once the Secretary has

decided the facts under[ly]ing . . . [a] miner’s complaint . . .

[do] not constitute a violation of Section 105(d). With all

due respect . . . , I disagree with the Secretary’s position

[– as ably argued by her counsel – ] that the [O]rder of Temporary

Economic Reinstatement must remain in effect if Mr. Phillips

decides to proceed on his own behalf.

As I read the Act, the authority to issue an order of temporary

reinstatement arises under Section 105(c)(2)[,] [which] states

. . . [that an] order of temporary reinstatement remains in effect

“pending final order on the complaint.” [In my view] the

complaint referenced in this quote is the miner’s complaint as

made to and investigated by the Secretary. [A] [“]final order[”]

on the miner’s complaint is reached when the Secretary [advises]

the miner[,] as she has done in this proceeding[,] that “Your

complaint of discrimination under Section 105( c) has been

investigated. A careful review of the information gathered

during the investigation has been made. On the basis of that

record, MSHA has determined that facts disclosed during the

investigation . . . [do] not constitute a violation of section

105(c).”

With regard to the complaint the miner has filed with the

Secretary[, w]hat could be more final? The Secretary’s

involvement with the complaint has ended. The temporary

reinstatement proceeding has ended. [As the Act states,][ i]f

the miner wishes to proceed on his [or her] own behalf, under

Section 105(c)(3) . . . [h]e [or she] must “file an action on

his [or her] own behalf before the Commission.” It is worth

noting Section 105(c)(2), which authorizes temporary re-

instatement, speaks to the Secretary. Section 105(c)(3),

which does not authorize temporary reinstatement, speaks

to the miner. While I am cognizant of counsel for the

Secretary’s argument that I must defer to the Secretary’s

interpretation of Section 105(c)(2) and Section 105(c)(3),

I do not find the[se] provisions ambiguous [and therefore

obligating deference]. To me, they clearly stand for the

proposition that an order of temporary reinstatement must

end once the Secretary decides not to proceed.

The Commission’s rules in this regard [t]rack the statute.

Under . . . Rule 40(b), for a miner to proceed on . . . [his

or her] own behalf, a new complaint must be filed . . . .

This complaint is a new action, one separate from the

Secretary’s application for temporary reinstatement. Not

only do the Act and Commission’s rules treat miner’s

complaints and the Secretary’s application for temporary

reinstatement as separate and distinct from the miner’s

complaint on his [or her] own behalf under Section

105(c)(3), so does the Commission[’]s docket office,

which long has docketed actions for temporary

reinstatement separate from actions brought under

Section 105(c)(3). Moreover, and more importantly,

the remedies available to the miner under Section

105(c)(3) do not, and I emphasize “not”, include

temporary reinstatement. Rather, if he or she prevails,

the miner is made economically whole in part by back

pay and interest.

The remedial provisions in Section 105(c)(2) and

[Section] 105(c)(3) represent a balancing . . . of interests

. . . [underlying] [C]ongress’s desire to encourage [miners]

to actively participate in furthering health and safety under

the Act. Congress recognized [miners] have an interest in

being protected against possible discrimination they

may suffer as a result of . . . activities on behalf of health[,]

. . . safety and enforcement[,]. . . Congress also recognize[d]

. . . operators have an interest . . . [in] control[ling] their

workforce. By providing temporary reinstatement under

Section 105(c)(2), [C]ongress determined . . . operators

should bear the greater burden while the Secretary concludes

whether, in her view, a miner’s complaint of discrimination

has [merit]. But [C]ongress also recognize[d] the operator’s

interest in controlling its workforce by making reinstatement

[and its resulting burden] temporary[.] [A]s the 11th Circuit

noted, deprivation of an employer’s right to control the

makeup of its . . . workforce is [“only a] temporary one that

can be rectified by the Secretary’s decision not to bring

a formal complaint or [by] a decision on the merits in the

employe[r]’s favor.[”] . . . [Jim Walter Resources v. Federal

Mine Safety and Health Review Commission,

920 F.2d738, 748 n. 11 (emphasis in original)]. It seems clear

to me the Court believed the temporary nature of reinstatement

under Section 105(c)(2) meant . . . reinstatement could end

with, as the Court stated, “[t]he Secretary’s decision not to

bring a formal complaint” [Id.], and the right of the operator

to control its workforce could be returned [to the operator]

as the miner contemplated whether or not to proceed on his

or her own behalf under Section 105(c)(3).

For these reasons, and given the Secretary’s conclusion

. . . [based on] the information gathered during her in-

investigation of Mr. Phillips’ complaint . . . [that Mr.

Phillips suffered] no discrimination within the confines of

the Act[,] I conclude the [O]rder of Temporary [Economic]

Reinstatement entered on June 5, 2008, should be dissolved

and this matter should be dismissed.

I will dissolve the order and dismiss this proceeding in a

written order confirming this . . . [oral ruling]. Until such

written order is issued, the order of temporary economic

reinstatement will remain in effect.

Tr. 25-30 (editorial changes added).

ORDER

For the reasons stated above, the Order of Temporary Economic Reinstatement entered by me on June 6, 2008, IS DISSOLVED and this proceeding IS DISMISSED.

David F. Barbour

Administrative Law Judge

Distribution: (Certified Mail & by Facsimile)

Thomas A. Paige, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209-2247

Peter J. Phillips, 112 W. 6th Street, Florence, CO 80226

Richard P. Ranson, Esq., Ranson & Kane, P.C., 3475 Briargate Blvd., Suite 201, Colorado Springs, CO 80920

/ej