Secretary of Labor on behalf of Kelly Rawley v. J.L. Sherman Excavation

Plain-English summary

Kelly Rawley alleged that J.L. Sherman Excavation fired or laid him off after he complained about loader brakes and was told not to speak with an MSHA inspector, then failed to recall him when seasonal work resumed. The parties settled the temporary-reinstatement application by economically reinstating Rawley as crusher supervisor pending MSHA's merits determination. The company agreed to pay 44 hours weekly at his regular and overtime rates, provide prior employment benefits, issue neutral references, and document each payment. The Judge approved the agreement and ordered MSHA to report its merits determination within 60 days.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(1) and 815(c)(2)
• Outcome: The temporary-reinstatement settlement was approved and its economic-reinstatement terms were ordered.
• Key point: Economic reinstatement can protect a miner during the investigation without resolving whether the operator actually discriminated.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9953 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA)

on
behalf of KELLY RAWLEY,

Complainant,

v.

J.L.
SHERMAN EXCAVATION,

Respondent.

TEMPORARY
REINSTATEMENT PROCEEDING:

Docket
No. WEST 2016-467-DM

MSHA
Case No. WE MD 16-07

Mine
ID: 45-03100

Mine:
J.L. Sherman Excavation

APPROVAL OF
SETTLEMENT AND ORDERS TO COMPLY

Before:                        Judge
Barbour

Pursuant to Section 105
(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2),
the Secretary of Labor (“the Secretary”) has filed an application for the
temporary reinstatement of Kelly Rawley to the position of crusher supervisor
at a portable crushing plant owned and operated by J.L. Sherman Excavation
(“the company”). The Secretary seeks Mr. Rawley’s reinstatement pending a final
disposition of Mr. Rawley’s complaint of discrimination in which Mr. Rawley
asserts he was illegally laid off by the company in October 2015 and then
illegally denied re-employment in April 2016 when other company employees were
called back to work. Upon the company’s failure to offer re-employment, Mr.
Rawley filed the previously mentioned discrimination complaint with the
Secretary’s Mine Safety and Health Administration (“MSHA”). A copy of the
complaint is attached to the Secretary’s application. In the complaint, Mr.
Rawley states:

I
was the crusher supervisor . . . until October 6, 2015[.]

I
had an ongoing argument about the brakes on the [No. 51]

980
front end loader . . . . An MSHA Inspector showed up

that
day and I was told by the owner[,] Jeff Sherman[,]

do
not talk to that inspector because I talk to[o] much[.]

We
argued and I was fired[.]

On
[November 24, 2015, I withdrew my [previous]

discrimination
complaint based on my return as

crusher
supervisor in the spring which will

apparently
not happen.[[1]
].

Application,
Exh. A.

In April 2016,
Mr. Rawley filed a second discrimination complaint which MSHA. The agency
assigned Owens to investigate the complaint. Owens concluded evidence exists
that Mr. Rawley was prevented from speaking with an MSHA inspector and was
permanently let go in part because he complained about safe working conditions
with regard to the No. 51 980 front end loader. Therefore, Owens found that Mr.
Rawley’s complaint was not frivolously brought. Upon learning of this
determination, the Secretary, through counsel, filed the subject application to
temporarily reinstate Mr. Rawley pending a final resolution of Mr. Rawley’s
April 2016 complaint.

The Commission’s
Chief Judge assigned the case to the court, and the court, through its law
clerk, contacted counsels to schedule a conference call. The court intended to
propose an expedited date for hearing the application. However, before the call
was made, counsels advised the court’s law clerk that they agreed to settle the
application by economically reinstating Mr. Rawley until a determination can be
made by MSHA if Mr. Rawley’s complaint has merit and, if so, until a hearing on
Mr. Rawley’s discrimination complaint can be held and the matter can be finally
decided. On May 23, 2016, the court received the parties Settlement Agreement
and Joint Motion for Temporary Economic Reinstatement. The pertinent terms of
the agreement are as follows:

4.)
[The company] agrees to economically reinstate Mr. Rawley to

his position as a crusher supervisor, effective upon the approval of this
Settlement

and Order . . . . [The company] agrees to pay Mr. Rawley at his regular rate of
pay

for $19 per hour for the first 40 hours per week and $28 per hour over 40
[hours]

per work week subject to normal deductions. [The company] agrees to pay

Mr. Rawley for 44 hours per week.

5.) [The
company] shall provide benefits (if any, including but not

limited
to health insurance, retirement plan, and seniority accrual) associated

with Mr.
Rawley’s employment and consistent with those provided pre-

termination. [The
company] may deduct all applicable tax withholdings and

other withholdings on the
same basis as generally required for payment of other

benefits pursuant to its
policies and practices applicable to other employees.

6.) The first
payment shall be due to Mr. Rawley on [the company’s] first

regular
weekly pay day after the date of approval of this Settlement Agreement

by an administrative law
judge. All subsequent payments shall be due on [the

company’s] regular weekly
pay days. All payments shall be made by regular

payroll or certified check
to “Kelly Rawley” and sent to the following address:

Kelly
Rawley

P.O.
Box 0045

Laclede,
ID   83841

Proof of each
payment shall be forwarded by email within five days to

[email protected].

7.) [The
company] agrees to provide a neutral job

reference
for Mr. Rawley if contacted by potential

employers.

8.) If [the
company] fails to provide payment and benefits as

required by
this Settlement Agreement and Motion . . . the Commission

may sanction
[the company].

9.) Mr. Rawley’s
economic temporary reinstatement shall

terminate
upon a finding by the Secretary that Section 105(c)(1) has

not been violated. Alternatively,
if the Secretary finds that the

discrimination complaint
has merit and the Secretary files a

Complaint of
Discrimination pursuant to Section 105(c)(2)

with the Commission, Mr. Rawley’s economic temporary

reinstatement shall expire
only after entry of a

final order on the
Complaint.

APPROVAL
OF THE SETTLEMENT

The settlement
protects the economic interest of Mr. Rawley while the merits of his
discrimination complaint are determined. At the same time, it recognizes the
limits of Mr. Rawley’s proposed economic reinstatement. For these reasons, the
court concludes the settlement faithfully reflects the purpose of section
105(c)(2), and the agreement IS APPROVED.

ORDER

THE
COMPANY’S REQUIREMENTS UNDER THE ORDER

Given the
court’s approval of the settlement the company SHALL comply in full with
the terms of the settlement agreement. In particular it SHALL:

(1)               
Economically
reinstate Mr. Rawley to his position as a crusher supervisor, effective the
date of this Order and it SHALL pay Mr. Rawley at his regular rate of
pay of $19 per hour for the first 40 hours per week and $28 per hour over hours
over 40 hours per week, subject to normal deductions, and it SHALL PAY
Mr. Rawley for 44 hours per week each week that he is economically reinstated;

(2)               
Provide
benefits (if any, including but not limited to health insurance, retirement
plan, and seniority accrual) associated with Mr. Rawley’s employment and
consistent with those provided pre-termination. [The company] may deduct all
applicable tax withholdings and other withholdings on the same basis as
generally required for payment of other benefits pursuant to its policies and
practices applicable to other employees;

(3)               
Pay
Mr. Rawley his first payment on [the company’s] first regular weekly pay day
after the date of this Approval and Order. All subsequent payments SHALL
be due on [the company’s] regular weekly pay days. All payments SHALL be
made by regular payroll or certified check to “Kelly Rawley” and SHALL be sent
to the address specified in the agreement. The company SHALL forward
proof of each payment by email to [email protected]
within five days of each payment;

(4)               
Provide
a neutral job reference for Mr. Rawley to any potential employer.

THE
SECETARY’S REQUIREMENTS UNDER THE ORDER

To expedite the Secretary’s
consideration of Mr. Rawley’s complaint, the Secretary SHALL no later than
60 days from the date of this Order, advise Mr. Rawley, the company, and the
court as to its determination whether section 105(c)(1) has been violated. If
the conclusion of the Secretary is that the company did not violate section
105(c)(1), Mr. Rawley’s temporary economic reinstatement SHALL end and
from that time forward the company will be under no obligation to pay Mr.
Rawley or to comply with any other provisions of the agreement. If the
Secretary concludes Mr. Rawley’s discrimination complaint has merit and that
the company violated section 105(c)(1), the Secretary SHALL forthwith
file a discrimination complaint with the Federal Mine Safety and Health Review
Commission on Mr. Rawley’s behalf.

/s/ David F.
Barbour

David
F. Barbour

Administrative
Law Judge

Distribution:
(Certified Mail)

Bruce
L. Brown, Associate Regional Solicitor, U.S. Department of Labor, Office of the
Solicitor, 300 Fifth Avenue, Suite 1120 Seattle, WA   98104

Robin
R. McCroskey, Esq., 405 W. Walnut, Suite 4, Newport, WA   99156

Kelly
Rawley, P.O. Box 0045, Laclede, ID   83841

/db

[1]
According to MSHA’s
investigator, Corey Owens, Mr. Rawley’s original discrimination complaint was
filed on November 12, 2015. Application, Exh. B 3. Owens states that after Mr.
Rawley filed the complaint he was told by a company representative that he had
not been fired. Instead, the representative described his work hiatus as a
“layoff” and told Mr. Rawley that he would be brought back to work in 2016 when
the mine’s seasonal closure ended. Id. However, on April 12, 2016, Mr.
Rawley learned that he would not be brought back to work. Id.