Secretary of Labor v. C.R. Meyer & Sons Company, Inc. and C.R. Meyer & Sons Company, Inc. v. Secretary of Labor

Plain-English summary

C.R. Meyer & Sons, a contractor at the Mountain Pass mine and mill, laid off pipefitter Dustin Rodriguez, who then filed a discrimination complaint. A Commission judge ordered the company to reinstate him immediately while the complaint was pending. The company told the judge it would not put Rodriguez back to work until it heard from the Commission, and it filed a petition for review with a request to pause the order. MSHA issued a citation for failing to obey the reinstatement order, and the company waited nine days before sending Rodriguez a reinstatement letter. The main legal question was whether MSHA can cite an operator at all for disobeying a reinstatement order, or whether it must instead go to federal district court. Judge Miller held that section 104(a) of the Mine Act lets the Secretary cite a violation of any order issued under the Act, not just health and safety standards, and that going to court and issuing a citation are separate options he may use together. She also held that filing a petition for review does not pause a judge's order unless the Commission actually grants a stay, so the delay was not excused. The citation was upheld and the proposed penalty of $308.00 was assessed.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 814(a), with 30 U.S.C. § 815(c)(2) and 29 C.F.R. § 2700.45(f)
• Outcome: The operator's motion for summary decision was denied and the Secretary's cross-motion granted; the citation was upheld and a $308.00 penalty assessed.
• Key point: A temporary reinstatement order is an order "promulgated pursuant to" the Mine Act, so MSHA may issue a citation when an operator does not comply, and filing a petition for review does not stay the order unless the Commission grants a stay.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19TH STREET, SUITE
443

DENVER, CO 80202-2500

TELEPHONE: 303-844-5266
/ FAX: 303-844-5268

December 9, 2016

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION,
(MSHA),

Petitioner,

v.

C.R.
MEYER & SONS COMPANY INC,

Respondent.

C.R.
MEYER & SONS COMPANY INC,

Contestant,

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION,
(MSHA),

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. WEST 2014-482-M

A.C.
No. 04-02542-323448

Mine:
MT Pass Mine and Mill

CONTEST
PROCEEDING

Docket
No. WEST 2013-826-RM

Citation
No. 6476312; 04/25/2013

MT
Pass Mine & Mill

Mine
ID: 04-02542 1ZU

DECISION AND ORDER

Before:                        Judge
Miller

This matter is before me on the parties’
cross-motions for summary decision. The Secretary issued the single citation in
this case based on the alleged failure of C.R. Meyer & Sons Company, Inc., to
reinstate Dustin Rodriguez to his former position as required under a temporary
reinstatement order issued by Commission Administrative Law Judge Steele on
April 17, 2013. See Sec’y of Labor on behalf of Rodriguez v. C.R. Meyer
& Sons Co. , 35 FMSHRC 981 (Apr. 2013) (ALJ). The threshold question in
this case is whether the Secretary has the authority to issue a citation based
on a violation of a temporary reinstatement order. C.R. Meyer argues that the
Secretary does not have such authority and that the company is entitled to
summary decision. The Secretary argues that he does have authority to issue the
citation, and that the record shows that he has proven a violation. After careful
consideration of the parties’ motions, the attached exhibits, the relevant case
law, and the entire record in the case, I deny Respondent’s Motion for Summary Decision
and grant the Secretary’s Cross-Motion.

I. FACTUAL BACKGROUND

The
facts set forth are based on the parties’ statements of material facts and the
documents and affidavits submitted with the motions for summary decision. The
facts are uncontested except where otherwise noted.

Dustin
Rodriguez began working for C.R. Meyer on December 13, 2012, as a journeyman
pipefitter. The company asserts that Rodriguez was laid off on January 24,
2013, because of performance issues, and that by February 22, 2013, all
pipefitting work at the Mountain Pass Mine and Mill had concluded. [1]
On February 25, 2013, Rodriguez filed a complaint of discrimination with MSHA. Shortly
thereafter, the Secretary filed an application for temporary reinstatement with
the Commission on Rodriguez’s behalf. Commission Administrative Law Judge
Steele conducted a hearing on the Secretary’s application on April 10, 2013. He
issued an order granting the Secretary’s application on April 17, 2013, in
which he ordered C.R. Meyer to reinstate Rodriguez immediately at the same rate
of pay and benefits as he had had at the time of his discharge.

In
a conference call with Judge Steele and the attorney for the Secretary on April
19, 2013, Erik Eisenmann, counsel for C.R. Meyer, stated that the company
intended to petition the Commission for review of the order and to request a
stay of the order. He further explained that C.R. Meyer did not intend to
reinstate Rodriguez “at the very least until [it received] a decision from the
Commission.” The parties dispute the meaning of Eisenmann’s statement as set
forth in the transcript of the telephone conference. The Secretary claims that Eisenmann
was referring to the Commission’s decision on the merits of the temporary
reinstatement order, and C.R. Meyer asserts that he was referring only to the
Commission’s ruling on the motion to stay. In either interpretation, the mine
refused to reinstate Rodriquez as ordered, without further ruling from the
Commission.

C.R.
Meyer filed a petition for review of Judge Steele’s order with the Commission
on April 23, 2013, along with a motion to stay the order pending appeal. The
next day, the Secretary filed a complaint in the U.S. District Court for the
Central District of California, seeking a temporary restraining order and
preliminary injunction to compel C.R. Meyer to comply with Judge Steele’s
order. On April 25, MSHA issued the Section 104(a) citation at issue in this
case based on the alleged failure of C.R. Meyer to comply with Judge Steele’s
order to reinstate Rodriguez. The Secretary alleged that the company had not
yet reinstated Rodriguez and that this constituted a violation of Section
105(c) of the Act. The citation also alleged that the operator had indicated to
the judge that it did not intend to comply with his order until it obtained “a
final decision from the FMSHRC, although no stay [had] been entered of the
ALJ’s order.” Compl. Ex. A.

On
April 26, the Commission issued an order denying C.R. Meyer’s motion for a
stay. The same day, the company sent a letter to Rodriguez informing him that
he had been reinstated effective April 18, 2013. It notified him that it would
issue a check to him for the work days April 18 and 19 and promised to pay him
the following week for the work days April 22 through 26. The company asserts
that April 26 was the standard pay date for work on April 18 and 19. The Secretary,
on the other hand, argues that, given that the mine would not immediately
reinstate Rodriquez, the standard pay dates are immaterial to the outright
refusal to reinstate. Sec’y Cross-Mot. and Opp. at 21. Rodriguez subsequently
returned to work with C.R. Meyer and continued to work there until May 17, 2013.

The
Commission ultimately granted review of Judge Steele’s order and issued a
decision on May 10, 2013, finding that the judge had erred in excluding
evidence that C.R. Meyer no longer had pipefitting work for Rodriguez. The
parties entered into a settlement agreement resolving the discrimination case
in August 2013.

II. SUMMARY
JUDGMENT STANDARD

Commission
Rule 67 provides:

A motion for
summary decision shall be granted only if the entire record, including the
pleadings, depositions, answers to interrogatories, admissions, and affidavits,
shows:

(1)    That there is no
genuine issue as to any material facts; and

(2)    That the moving
party is entitled to summary decision as a matter of law.

29
C.F.R. § 2700.67(b).

In
reviewing the record on summary decision, the judge must consider the record “in
the light most favorable to … the party opposing the motion.” Hanson
Aggregates N.Y., Inc ., 29 FMSHRC 4, 9 (Jan. 2007) (citing Poller v.
Columbia Broad. Sys., Inc ., 368 U.S. 464, 473 (1962)). The judge should not
rely solely on the parties’ claims, but must conduct an independent review of
the record. KenAmerican Res., Inc. , 38 FMSHRC 1943, 1946 (Aug. 2016). Inferences
drawn from the facts in the record must also be viewed in the light most
favorable to the party opposing the motion. Id . (citing United States
v. Diebold, Inc ., 369 U.S. 654, 655 (1962)). Both parties allege that there
is no dispute of material fact and that this case is appropriate for summary
decision.

III. DISCUSSION

A.      The
Secretary’s Authority Under Section 104(a)

C.R. Meyer’s
principal argument is that the Secretary has no authority to issue a citation
based upon an operator’s failure to follow an Administrative Law Judge’s order
of temporary reinstatement. It argues that the citation issued by the Secretary
is “in the nature of contempt” because it attempts to impose a fine based on
the company’s failure to comply with a court order. It argues that contempt
power is ordinarily not given to administrative agencies, and so should not be
inferred. The company further argues that Section 104(a) authorizes the
Secretary to issue citations for violations of “health or safety” standards,
rules, orders, or regulations only, and that a temporary reinstatement order
should not be considered a health or safety order. C.R. Meyer concludes that MSHA
may only enforce a temporary reinstatement order in a federal district court,
and therefore the 104(a) citation should be vacated.

The Secretary
argues that Section 104(a) is plain on its face and authorizes him to issue a
citation for a violation of any order, including a temporary reinstatement
order issued by a Commission ALJ. He argues that even if the language of Section
104(a) is ambiguous, his interpretation is reasonable and entitled to
deference. The Secretary asserts that while he has the authority to enforce an
order of an ALJ in a separate proceeding in federal district court, he may also
choose to issue a citation such as the one in this case. Each is a separate and
distinct action.

This case turns on a question of
statutory interpretation, and thus the first issue to address is “whether
Congress has directly spoken to the precise question at issue.” Chevron
U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842 (1984). If the
statute is clear and unambiguous, effect must be given to its language. Id .
at 842-43. If the statute is ambiguous, the Commission gives deference to the
Secretary’s interpretation according to its “power to persuade.” See United
States v. Mead Corp ., 533 U.S. 218 (2001); Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944); Knox Creek Coal Corp. v. Sec’y of Labor, Mine Safety
& Health Admin ., 811 F.3d 148, 160 (4th Cir. 2016); N. Fork Coal
Corp. v. Fed. Mine Safety & Health Review Comm’n , 691 F.3d 735, 743
(6th Cir. 2012). The weight given to the Secretary’s position depends
upon “the thoroughness evident in its consideration, the validity of its
reasoning, [and] its consistency with earlier and later pronouncements,” among
other factors. Skidmore , 323 U.S. at 140; N. Fork Coal , 691 F.3d
at 743.

The relevant statutory provision here, Section
104(a), provides as follows:

If, upon
inspection or investigation, the Secretary or his authorized representative
believes that an operator of a coal or other mine subject to this chapter has
violated this chapter, or any mandatory health or safety standard, rule,
order , or regulation promulgated pursuant to this chapter , he
shall, with reasonable promptness, issue a citation to the operator.

30 U.S.C. § 814(a) (emphasis added). A
reading of this provision of the Mine Act clearly authorizes the Secretary to
issue a citation for a violation of any order, including a temporary
reinstatement order. Section 105(c)(2) provides that upon receipt of a
discrimination complaint, “if the Secretary finds that such complaint was not
frivolously brought, the Commission … shall order the immediate reinstatement
of the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2). Thus,
a temporary reinstatement order is clearly “promulgated pursuant to” the Act,
and one of the ways the Secretary may enforce an order is by issuing a 104(a)
citation.

C.R. Meyer asserts that
there is some ambiguity in the provision by arguing that “orders” enforceable
under 104(a) are limited to “health or safety … orders.” Resp. Mot. at 7. It
cites the “series-qualifier” canon of statutory construction, under which a
modifier at the beginning or end of a list of terms applies to all terms in the
list, so long as the modifier makes sense with all of the terms. Id.
(citing United States v. Laraneta, 700 F.3d 983, 989 (7th Cir. 2012)). Thus,
the company argues that when Congress authorized the Secretary to issue
citations for violations of “ any mandatory health or safety standard, rule,
order, or regulation promulgated pursuant to this chapter,” Congress intended
the words “health or safety” to be a limiter on “rule, order, or regulation.” However, the
Supreme Court has stated that the series-qualifier canon should not be applied
where contextual cues point to another meaning. Lockhart v. United States ,
136 S. Ct. 958, 964–65 (2016). In the Mine Act, “mandatory health or safety
standard” is a defined term referring to a specific set of regulations, see
30 U.S.C. § 803(l), and it is
used throughout the Act. See, e.g., 30 U.S.C. § 811 (directing
the Secretary to develop “improved mandatory health or safety standards”); 30
U.S.C. § 821 (providing
compensation for miners upon closure of a mine for the operator’s failure to
comply with “any mandatory health or safety standards”); 30 U.S.C. § 814(e)(1)
(providing enhanced enforcement mechanisms for a “pattern of violations of
mandatory health or safety standards”). Thus, it is most likely that Congress
intended to invoke a term of art in Section 104(a) and did not intend
“mandatory health or safety” to apply to all of the terms in that provision.

In line with this
interpretation, the Commission has upheld a 104(a) citation issued for a violation
of an order that did not directly involve health or safety. See Hopkins Cty.
Coal, LLC , 38 FMSHRC 1317, 1336-37 (June 2016). In Hopkins County Coal ,
the Secretary requested personnel records from a mine operator as part of a
discrimination investigation, as permitted under Section 103(h) of the Act. Id .
at 1317. When the mine operator refused to produce the records, the Secretary
issued a 104(a) citation for a violation of Section 103(h). Id . The mine
continued to refuse, and the Secretary issued a failure to abate order pursuant
to Section 104(b) of the Act. Id . When the mine refused again, the
Secretary issued a second 104(a) citation for a violation of the failure to
abate order. Id . at 1336-37. While the Commission noted that the initial
104(a) violation “may not present an immediate safety risk,” it nevertheless
upheld the failure to abate order and the subsequent 104(a) citation. Id .
It noted that this outcome was “consistent with the remedial nature of the Act,
its structure, and its progressive enforcement scheme of increasingly severe
sanctions that are applied when an operator incurs repeated violations and
refuses to comply.” Id . at 1336.

Even if Congress
did intend to limit the Secretary’s citation power to violations of “mandatory
health or safety orders” as argued by the mine, it is likely that a temporary
reinstatement order would fall under the broader definition of “health or
safety.” The legislative history of the Mine Act is clear that the
anti-discrimination provisions of the Act are intended to encourage miners to
“be active in matters of safety and health” and to “play an active part in the
enforcement of the Act” so as to increase the effectiveness of the Act. S. Rep.
No. 95-181, at 35 (1977). A temporary reinstatement order enforcing the
anti-discrimination provisions of the Act is thus intended to improve mine
safety and health and could therefore be considered a “health or safety order.”

Next, C.R. Meyer
argues that the citation at issue is “in the nature of contempt” because it
attempts to impose a fine
based on the company’s failure to comply with a court order. The company argues
that contempt power is ordinarily not given to administrative agencies, and
should not be inferred absent clear wording to the contrary. The company thus argues
that the Secretary’s only means of enforcing a temporary reinstatement order is
to seek an injunction in federal district court and that the Secretary may not
also use the sanctions associated with a citation. This argument relies on
language in the Supreme Court case Interstate Commerce Commission v. Brimson ,
in which the Court observed that “ a subordinate administrative or
executive tribunal … could not, under our system of government, and
consistently with due process of law, be invested with authority to compel
obedience to its orders by a judgment of fine or imprisonment.” 154 U.S. 447,
485 (1894), overruled on other grounds by Bloom v. Illinois , 391
U.S. 194, 198–200 (1968). Brimson involved enforcement of an
administrative subpoena in a federal court of appeals, and several courts of
appeals have subsequently applied its language in finding that administrative
agencies do not have the power to enforce their own subpoenas. See NLRB v.
Interbake Foods, LLC , 637 F.3d 492, 497–98 (4th Cir. 2011); NLRB v.
Detroit Newspapers , 185 F.3d 602, 605–06 (6th Cir. 1999); NLRB v. Int'l
Medication Sys., Ltd. , 640 F.2d 1110, 1115–16 (9th Cir. 1981); cf . Atl.
Richfield Co. v. U.S. Dept. of Energy , 769 F.2d 771, 793 (D.C. Cir. 1984). It
is important to note that in this case the order was not issued by the agency
attempting to enforce the order, as a subpoena typically is, but instead was
issued by a separate agency, the Commission. There is no precedent in the
Commission body of cases, or the court of appeals that prohibit the Secretary
from issuing both a 104(a) citation for a violation of a temporary
reinstatement order and simultaneously proceeding in the federal district court
to enforce the order.  

Finally, an interpretation permitting
the Secretary to issue a citation for the failure to comply with a temporary
reinstatement order is consistent with the policies underlying the temporary
reinstatement provision. The legislative history of the Act indicates that
Congress believed temporary reinstatement to be “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. Rep. No. 95-181, at 37 (1977). Consistent with
this concern, the discrimination provision emphasizes the need for temporary
reinstatement orders to be processed quickly: once a miner files a complaint,
the Secretary must begin an investigation within 15 days; and if he finds that
the complaint was not frivolously brought, he must apply for the Commission to
order “immediate” temporary reinstatement “on an expedited basis.” 30 U.S.C. §
815(c)(2). Further, the low standard of proof for obtaining a temporary
reinstatement order reflects Congress’s intention to place the burden of the
risk of an erroneous decision on employers rather than miners. See Jim
Walter Res., Inc. v. Fed. Mine Safety & Health Review Comm’n , 920 F.2d
738, 748 n.11 (11th Cir. 1990). It is thus unlikely that Congress intended to
require the Secretary to seek enforcement of temporary reinstatement orders
solely in federal court, which would substantially delay the proceedings and leave
the miner without compensation. Therefore, I conclude that Section 104(a)
authorizes the Secretary to issue a citation for a violation of a temporary
reinstatement order in addition to any enforcement in the federal district
court.

B.      The
Violation

In
order to prevail on the Cross-Motion for Summary Decision, the Secretary must
demonstrate that the undisputed facts prove that a violation of Judge Steele’s
order occurred. In this case, the facts are well established based on the
pleadings, the decision from the related discrimination case, and the
affidavits and documentation submitted by the parties with their motions for
summary decision. The controversy instead lies in the parties’ understanding of
the law. After careful consideration of the record and the parties’ arguments, I
find that the Secretary has proven a violation.

Judge
Steele’s April 17 order required C.R. Meyer 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.” Sec’y
on behalf of Rodriguez v. C.R. Meyer & Sons Co ., 35 FMSHRC 981, 1005
(Apr. 2013). The record shows that on April 26, the company sent Rodriguez a
letter of reinstatement and issued him a paycheck for his first two days of
reinstatement, April 18 and 19. In the intervening days between the order and the
letter send to Rodriguez, Erik Eisenmann, counsel for C.R. Meyer, expressed in
a telephone conference with the judge that the company planned to appeal Judge
Steele’s order and would not comply with it until it received a decision from
the Commission. The company subsequently filed its petition for review with the
Commission on April 23, along with a motion to stay the order pending appeal. At
that time the company had taken no steps to show that it was complying with the
order. The Secretary filed a complaint in federal district court on April 24 seeking
to compel the company to comply, and on April 25 issued the 104(a) citation at
issue here. The Commission denied the company’s motion for a stay on April 26. 

C.R.
Meyer asserts that it timely complied with Judge Steele’s order when it issued
a paycheck to Rodriguez on April 26. It claims that April 26 was the regular
pay date for the two days following the date of the order, April 18 and 19, and
thus there was no delay in Rodriguez’s pay. It argues that its reinstatement of
Rodriguez was therefore within the reasonable bounds of “immediate”
reinstatement as required by the order. I am not persuaded by the argument. The
company waited nine days after the date of the order to notify Rodriguez of his
reinstatement. While it argues that it paid him as soon as practicable under
its payroll system, it has produced no evidence for the delay in sending him a
reinstatement letter. While I accept the company’s argument that “immediate”
should be interpreted as “as soon as practicable,” I do not find that C.R.
Meyer’s actions were within that time frame.

The
company further argues that the Secretary has inappropriately relied on
Eisenmann’s statement about refusing to comply with the order, and that such a
statement of intention is not a legitimate basis for a citation. However, I
base my finding of a violation not so much on the statements of Eisenmann, but
rather on the company’s failure to notify Rodriguez of his reinstatement. [2]
Nevertheless, I note that Eisenmann’s statement is relevant to the fact that
the mine refused to put Rodriquez back to work until the Commission issued some
type of ruling and is also relevant to the negligence analysis for this
violation.  

Finally,
C.R. Meyer’s delay in reinstating Rodriguez is not excused by its April 23 motion
to stay Judge Steele’s order. Under Commission Procedural Rule 45, “The filing
of a petition shall not stay the effect of the Judge’s order unless the
Commission so directs; a motion for such a stay will be granted only under
extraordinary circumstances.” 29 C.F.R. § 2700.45(f). Thus, the stay would not
have gone into effect until granted by the Commission, which it was not in this
case.  

Accordingly,
I find that a violation occurred.

.          

IV. PENALTY

The principles
governing the authority of Commission Administrative Law Judges to assess civil
penalties de novo for violations of the Mine Act are well established. Section
110(i) of the Mine Act delegates to the Commission and its judges “authority to
assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The duty
of proposing penalties is delegated to the Secretary. 30 U.S.C. §§ 815(a),
820(a). Thus, when an operator notifies the Secretary that it intends to
challenge a penalty, the Secretary petitions the Commission to assess the
penalty. 29 C.F.R. § 2700.28. The Act requires that in assessing civil monetary
penalties, the judge must consider six statutory penalty criteria: the
operator’s history of violations, its size, whether the operator was negligent,
the effect on the operator’s ability to continue in business, the gravity of
the violation, and whether the violation was abated in good faith. 30 U.S.C. §
820(i). In keeping with this statutory requirement, the Commission has held
that judges must make findings of fact on the statutory penalty criteria. Sellersburg
Stone Co ., 5 FMSHRC 287, 292 (Mar. 1983), aff'd , 736 F.2d 1147, 1152
(7th Cir. 1984). Once these findings have been made, a judge’s penalty
assessment for a particular violation is an exercise of discretion “bounded by
proper consideration of the statutory criteria and the deterrent purposes
underlying the Act’s penalty scheme.” Id . at 294; see also Cantera
Green , 22 FMSHRC 616, 620 (May 2000).

In this case, I
find the gravity of the violation was lessened due to the fact that the miner
was reinstated within nine days of the ALJ’s order. With regard to negligence,
the statements of Eisenmann indicate that the company intentionally refused to
comply with the judge’s order. The violation was not abated in good faith;
rather, the company waited until receiving a decision on its motion to stay to
comply with the judge’s order. The Secretary did not introduce the company’s
history of violations or its size but both are available on the MSHA website. Therefore,
I take judicial notice of the company’s record as indicated in the MSHA Mine
Data Retrieval System, which shows a history of few violations in the fifteen
months prior to this violation and that this contractor is a small operator. The
mine did not raise the defense of its inability to pay the proposed penalty. In
view of these factors, I find that a penalty of $308.00 as proposed by the
Secretary is appropriate.

V. ORDER

Based on my review of the record and the
applicable law, I find that there is no dispute of material fact and the
Secretary is entitled to summary decision as a matter of law. Respondent’s Motion
for Summary Decision is hereby DENIED and the Secretary’s Cross-Motion
for Summary Decision is GRANTED . Respondent is hereby ORDERED to
pay the Secretary of Labor the sum of $308.00 within 30 days of the date of
this decision. Upon receipt of payment, the contest case is DISMISSED .

/s/ Margaret A.
Miller

Margaret
A. Miller

Administrative
Law Judge

Distribution:
(U.S. First Class Mail)

Natalie
Nardecchia, U.S. Department of Labor, Office of the Solicitor, 350 S. Figueroa
St., Suite 350, Los Angeles, CA 90071

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

Erik
K. Eisenmann, Husch Blackwell LLP, 555 E. Wells St., Suite 1900, Milwaukee, WI
53202

[1] . The Secretary does not agree with the
mine’s description of Rodriguez’s discharge but argues that it is not material
to the citation that is the subject of this case.   See Sec’y Cross-Mot.
and Opp. at 21.

[2] The parties
dispute the meaning of the statement by Eisenmann in the conference call that
“Our position is that we are not going to reinstate Mr. Rodriguez at the very
least until we get a decision from the Commission.” Sec’y Cross-Mot., Ex. 2
(Conference Call Transcript). The Secretary argues that Eisenmann was referring
to a decision on the merits of the reinstatement order, while C.R. Meyer argues
that he was referring to a decision on the motion to stay pending appeal. In
either case, the mine did not intend to immediately put the miner back to work.