Secretary of Labor obo Louis Silva, Jr. v. Aggregate Industries WRC, Inc. (ALJ decision, May 22, 2018)

Plain-English summary

Aggregate Industries had been providing Louis Silva temporary economic reinstatement while his Mine Act discrimination case was pending. Judge Richard W. Manning later dismissed Silva's underlying discrimination complaint after an evidentiary hearing. Because no party petitioned for Commission review and the Commission did not direct review, that merits decision was due to become final on May 27, 2018. Under Commission precedent, temporary reinstatement remains in place only until the discrimination decision becomes final. The judge therefore dissolved the economic-reinstatement order effective May 27 and dismissed the temporary-reinstatement proceeding.

Decision snapshot

• Cited authority: Section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2)
• Outcome: Temporary economic reinstatement was dissolved effective May 27, 2018, and the proceeding was dismissed.
• Key point: Temporary reinstatement continues through the merits litigation but ends when a decision rejecting the underlying discrimination claim becomes final.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

Office of
Administrative Law Judges

721 19th Street, Suite
443

Denver, CO 80202-2536

303-844-3577/FAX
303-844-5268

May 22, 2018

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

on
behalf of LOUIS SILVA, JR.,

Applicant

v.

AGGREGATE
INDUSTRIES WRC, INC.,

Respondent

TEMPORARY
REINSTATEMENT

PROCEEDING

Docket
No. WEST 2017-265-DM

MSHA
No. RM MD 2017-05

Morrison
Plant

Mine
ID 05-00864

ORDER DISSOLVING
ORDER OF TEMPORARY REINSTATEMENT

ORDER OF
DISMISSAL

This
matter is before me on an application for temporary reinstatement filed by the Secretary of Labor (“Secretary”) on behalf of Louis Silva, Jr, pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(2), against Aggregate Industries WRC, Inc. Silva was terminated from his position with Aggregate Industries on January 19, 2017.

On March 20, 2017, I granted the parties’ Joint Motion to Approve Terms of Economic Reinstatement and I ordered Aggregate Industries to provide temporary economic reinstatement to Silva. The terms of the reinstatement are described in the motion. As of this date, my order of temporary reinstatement is still in effect.

On
April 17, 2018, following an evidentiary hearing, I issued a decision dismissing Louis Silva’s underlying discrimination complaint in Docket No. WEST 2017-482-DM. 40 FMSHRC_____ (April 2018) (ALJ). Section 113(d)(l) of the Mine Act states: "The decision of the administrative law judge ... shall become the final decision of the Commission 40 days after its issuance unless within such period the Commission has directed that such decision shall be reviewed .... " 30 U.S.C. § 824(d)(l). No party filed a petition for discretionary review with the Commission under section 113(d)(2)(A) and the Commission did not order the case for review under section 113(d)(2)(B). 30 U.S.C. § 823(d)(2)(A)
& (B). As a consequence, my decision in WEST 2017-482-DM will become a final decision of the Commission on May 27, 2018.

In Sec’y
on behalf of Bernardyn v. Reading Anthracite Co., 21 FMSHRC 947 (Sept. 1999), the Commission held that a judge’s order of temporary reinstatement must remain in place until his decision on the merits of the discrimination complaint becomes a final decision of the Commission. Because I determined that Aggregate Industries did not discriminate against Silva, he is no longer entitled to temporary economic reinstatement.

For
the reasons discussed above, my March 20, 2017 order of temporary economic reinstatement is hereby DISSOLVED effective May 27, 2018 and Aggregate Industries is no longer required to comply with the terms of the parties’ Joint Motion to Approve Terms of Economic Reinstatement as of that date. Consequently, this proceeding is hereby DISMISSED .

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Karen
W. Bobela, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Boulevard, Suite 515, Denver, CO 80204

Matthew
M. Linton, Ogletree, Deakins, Nash, Smoak & Stewart, PC, 1700 Lincoln Street,

Suite
4650, Denver, Colorado 80203            

RWM