C.R. Meyer and Sons Company

Plain-English summary

An administrative law judge ordered C.R. Meyer and Sons to temporarily reinstate Dustin Rodriguez while his discrimination case proceeded. The operator sought a stay during its Commission appeal, arguing that no work was available and that it could not recover wages and benefits if it ultimately prevailed. The Commission held that economic expense alone was not irreparable harm, Rodriguez would be harmed by losing immediate income, and a stay would conflict with the public interest in protecting miners who raise safety concerns. It denied extraordinary relief and kept the temporary-reinstatement order fully in effect.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.45(f)
• Outcome: The operator's motion to stay temporary reinstatement pending appeal was denied.
• Key point: Ordinary wage and benefit costs do not establish the extraordinary circumstances required to stay temporary reinstatement.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 26, 2013

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

on behalf of DUSTIN RODRIGUEZ

v.

C.R. MEYER AND SONS COMPANY 

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Docket No. WEST 2013-618-DM

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER DENYING MOTION FOR STAY

BY THE COMMISSION:

This temporary reinstatement proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On April 17, 2013, Administrative
Law Judge William S. Steele issued a decision and order temporarily reinstating Dustin
Rodriguez to employment with C.R. Meyer and Sons Company (“C.R. Meyer”), pursuant to
section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2). 35 FMSHRC __, slip op. at 25. On
April 23, 2013, C.R. Meyer filed a petition for review of that decision and order with the
Commission, accompanied by a motion to stay the judge’s order reinstating the miner. On April
24, 2013, the Secretary of Labor filed a response in opposition to the motion for stay, and
requested that the Commission deny the motion. For the reasons that follow, we deny the motion
for stay.

I.

Factual and Procedural Background

The facts of this case are set forth in detail in the judge’s April 17, 2013 decision and
order. Slip op. at 5-18. On February 25, 2013, Mr. Rodriguez filed a discrimination complaint
with the Department of Labor’s Mine Safety and Health Administration (“MSHA”) alleging that
C.R. Meyer’s discharge of him on January 25, 2013, while he was working for it on its contract
project at Molycorp Inc.’s Pass Mine and Mill in Mountain Pass, California, amounted to
discrimination in violation of section 105(c) of the Mine Act. The Secretary filed an Application
for Temporary Reinstatement on March 25, 2013, requesting an order requiring the operator to
temporarily reinstate Mr. Rodriguez to his former position of journeyman pipefitter.

C.R. Meyer
requested a hearing, which was held on April 10, 2013.

Two days prior to the hearing, the Secretary filed a motion in limine, seeking an order
from the judge limiting the evidence that the operator could present at the temporary
reinstatement hearing, including evidence with respect to establishing that its obligation to
reinstate Mr. Rodriguez pursuant to section 105(c)(2) was temporarily tolled in this instance due
to economic reasons. At the hearing, the judge ruled that C.R. Meyer could not introduce any
evidence on the issue of tolling of reinstatement, though he did permit a proffer by its counsel
regarding that evidence. Slip op. at 4, 22-23; Tr. 9-10, 114-18.

The operator has limited its petition for review of the judge’s reinstatement order to his
finding on the issue of tolling the reinstatement obligation and the evidentiary ruling he made on
the issue. The operator is not challenging the judge’s conclusion that the Secretary established
that Mr. Rodriguez’s application for temporary reinstatement had not been frivolously brought.

II.

Disposition

In Secretary on behalf of Price and Vacha v. Jim Walter Resources, Inc., 9 FMSHRC
1312 (Aug. 1987), the Commission held that a party seeking a stay pending review of a
temporary reinstatement decision or order must make an adequate showing with respect to the
four factors set forth in Virginia Petroleum Jobbers Association v. Federal Power Commission,
259 F.2d 921, 925 (D.C. Cir. 1958): (1) a likelihood that the moving party will prevail on the
merits of its appeal; (2) irreparable harm to it if the stay is not granted; (3) no adverse effect on
other interested parties; and (4) a showing that the stay is in the public interest. The court there
also made clear that a stay constitutes “extraordinary relief.” Id.; see also W.S. Frey Co., 16
FMSHRC 1591 (Aug. 1994). Accordingly, the Commission’s temporary reinstatement
procedural rule provides that the Commission will stay a judge’s order temporarily reinstating a
miner “only under extraordinary circumstances.” 29 C.F.R. § 2700.45(f).

The burden is on the movant to provide “sufficient substantiation” of the requirements for
the stay. Stillwater Mining Co., 18 FMSHRC 1756, 1757 (Oct. 1996). Where a probability of
success on the merits is established, an inadequate showing with regard to the other three factors
nevertheless still prevents the grant of a stay pending review. Virginia Petroleum, 259 F.2d at

926. Even assuming arguendo that the operator here has established a likelihood of such success,
     we find that it has failed to adequately satisfy the other factors and failed to make the required
     showing of “extraordinary circumstances.”

Thus we deny its motion for stay.

A.        Whether C.R. Meyer Will Suffer Irreparable Harm Should a Stay Not Issue

C.R. Meyer argues that it should not have to pay Mr. Rodriguez wages and benefits
during its appeal of the judge’s reinstatement order, given that there is allegedly no work
available for him with the company. It further contends that it expects to ultimately prevail in the
discrimination case, but will be irreparably harmed because it will not be able to recover the
sums it paid to Mr. Rodriguez in the meantime under the reinstatement order. Mot. at 3. The
Secretary responds that there is nothing preventing the operator from placing the miner in any
position for which he is qualified, and thus benefitting from his work while he is temporarily
reinstated. S. Resp. at 14-15.

“It is . . . well-settled that economic loss does not, in and of itself, constitute irreparable
harm.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985); see also Virginia
Petroleum, 259 F.2d at 925 (“Mere injuries, however substantial, in terms of money, time and
energy necessarily expended in the absence of a stay, are not enough.”). Moreover, like the
proceeding before the judge, the review process is an expeditious one.

Consequently, we cannot
agree there will be substantial harm to the operator in having to comply with the temporary
reinstatement order in the meantime.

As for Meyer’s second argument, it is one that, if accepted, would effectively nullify the
temporary reinstatement provisions of the Mine Act. A reinstated miner might not ultimately
succeed on the merits of his discrimination claim. However, there is nothing in the Mine Act
which contemplates that the miner would be expected to repay the amounts paid pursuant to the
reinstatement order. Indeed, that would run counter to the intent of the provision, which is to
provide immediate relief to a complaining miner while he or she waits for the case to be decided.
See Sec’y of Labor on behalf of Bowling v. Perry Transport, Inc., 15 FMSHRC 196, 197-98
(Feb. 1993). In return, the operator would receive the services of the miner, should it want to
make use of them.

Consequently, we disagree with the operator that not staying the temporary reinstatement
order while we consider its appeal will lead to it suffering irreparable harm. The economic cost
it bears will be relatively short-lived, and can be mitigated by making use of Mr. Rodriguez’s
services.

B.        Whether Other Interested Parties Would be Adversely Affected by a Stay

In enacting the Mine Act, Congress stated the essential reasoning behind the temporary
reinstatement remedy: “The Committee feels that this temporary reinstatement is an essential
protection for complaining miners who may not be in the financial position to suffer even a short
period of unemployment or reduced income pending the resolution of the discrimination
complaint.” S. Conf. Rep. No. 95-461, at 37 (1977), reprinted in Senate Subcomm. on Labor,
Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977,
at 1315 (1978) (“Legis. Hist.”). There is nothing in the record in this case that leads us to believe
that Mr. Rodriguez somehow falls outside the scope of Congressional concern about the need for
immediate temporary relief for miners who may have been discharged for making safety
complaints. Consequently, we conclude that Mr. Rodriguez would be adversely affected by the
stay requested by C.R. Meyer.

C.        Whether a Stay Would Serve the Public Interest

While a stay of the judge’s temporary reinstatement here may serve the private interest of
C.R. Meyer, we fail to see how it would serve the public interest, as set forth by Congress in the
Mine Act’s temporary reinstatement provisions. Congress “clearly intended that employers
should bear a proportionately greater burden of the risk of an erroneous decision in a temporary
reinstatement proceeding.” Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 748 n.11 (11th Cir.
1990). The legislative history of the Mine Act indicates that section 105(c)’s prohibition against
discrimination is to be “construed expansively to assure that miners will not be inhibited in any
way in exercising any rights afforded by the legislation.” S. Rep. No. 95-181, at 36, Legis. Hist.
at 624. Recognizing the important role that individual miners play in ensuring a safe and healthy
working environment, Congress was also acutely aware that “mining often takes place in remote
sections of the country where work in the mines offers the only real employment opportunity.”
S. Rep. No. 95-181, at 35, Legis. Hist. at 623. We thus conclude that the public interest clearly is
better served by denying a stay of the temporary reinstatement order.

III.

Conclusion

For the foregoing reasons, we deny C.R. Meyer’s motion for stay of temporary
reinstatement pending appeal. The judge’s order remains fully in effect, and, as stated by the
judge, as of April 17, 2013, C.R. Meyer “is ORDERED to provide immediate reinstatement to
Rodriguez, at the journeyman pipefitter’s rate of pay for the same number of hours worked, and
with the same benefits, as at the time of his discharge.” Slip op. at 25.

______

Mary Lu Jordan, Chairman

______

Michael G. Young, Commissioner

______

Patrick K. Nakamura, Commissioner

Distribution:

Dustin Rodriguez

1464 Labrador Drive

Las Vegas, NV 89142

David Hertel, Esq.

Eric Eisenmann, Esq.

Whythe, Hirschboeck, Dudek S.C.

555 East Wells St., Suite 1900

Milwaukee, WI 53202-3819

[email protected]

[email protected]

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Jerald S. Feingold, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Administrative Law Judge Wm. S. Steele

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

7 Parkway Ctr.,

875 Greentree Rd., Suite 290

Pittsburgh, PA 15220