Secretary of Labor v. CalPortland Company (Commission decision, May 22, 2020)

Plain-English summary

A judge approved a settlement requiring CalPortland to pay a $17,500 discrimination penalty only if its liability in the related miner-discrimination case was ultimately upheld. After the Commission reversed that liability decision, the Secretary and CalPortland asked to vacate the conditional penalty and dismiss this case, but the judge concluded that she no longer had authority to act. The Commission granted review and stayed further proceedings, including briefing. Because the Ninth Circuit was reviewing the discrimination decision, the Commission directed the parties to seek dismissal if that decision survived review. It said the stay would instead be lifted and the cases consolidated if the discrimination decision was vacated and returned to the Commission.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c); 29 C.F.R. § 2700.44(b)
• Outcome: Review was granted and the penalty proceeding was stayed pending final court review of the related discrimination case.
• Key point: The conditional penalty case would be dismissed if the Commission's discrimination reversal stood, but consolidated with the discrimination case if that reversal was vacated.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004‑1710

SECRETARY OF LABOR,                              :

MINE SAFETY AND HEALTH                     :

ADMINISTRATION (MSHA)                        :

:         Docket No. WEST 2019-205-M

v.                                              
:

:

CALPORTLAND COMPANY                        
:

BEFORE: Rajkovich, Chairman;
Jordan, Young, Althen, and Traynor, Commissioners

DIRECTION FOR REVIEW AND STAY ORDER

BY: THE COMMISSION

This
civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”). In the underlying case, Docket No. WEST 2018-402-DM, a Commission Judge found that mine operator CalPortland Company (“CalPort”) had discriminated against miner Robert Thomas, in violation of section 105(c) of the Act, 30 U.S.C. § 815(c). 40 FMSHRC 1503 (Dec. 2018) (ALJ) . Upon CalPort’s subsequent petition in that case, the Commission agreed to review the Judge’s decision.

While that review
was pending, the Secretary of Labor initiated a penalty proceeding in this docket. Pursuant to Commission Procedural Rule 44(b), 29 C.F.R. § 2700.44(b), the Secretary filed a petition for assessment of penalty against CalPort for its violation of section 105(c). The case was assigned to the same Judge who had decided the discrimination case.

The Secretary
and CalPort subsequently moved the Judge to approve their proposed settlement of the penalty, with CalPort agreeing to pay the penalty only in the event that its liability for discriminating against Thomas was eventually upheld by the Commission (and, potentially, in any subsequent federal court appeal by CalPort). In a decision issued March 21, 2019, the Judge approved the settlement agreement and conditionally ordered CalPort to pay $17,500 in accordance with the agreement between the parties.

On
January 29, 2020, the Commission issued a decision reversing the Judge’s discrimination decision. 42 FMSHRC 43 (Jan. 2020). Consequently, two days later the Secretary filed an unopposed motion to vacate the conditional penalty and dismiss this proceeding. When the Judge did not act on that motion, the Secretary and CalPort, on April 8, 2020, jointly moved for the requested relief. In an order dated April 17, 2020, the Judge denied the motion, stating that her authority to take action in the case had ceased upon the issuance of her March 2019 order.

Consequently,
on May 7, 2020, CalPort filed with the Commission its Motion to Reopen and Petition for Discretionary Review (hereinafter “PDR”). Therein, CalPort states that the Secretary does not oppose the Commission granting review, vacating the conditional penalty, and dismissing this proceeding. PDR at 1. According to the PDR, the parties agreed that, in the event any Commission decision vacating the Judge’s decision is itself later vacated on court review, the Secretary at that point would initiate a renewed penalty proceeding. Id . at 16.

Having
considered the PDR, and reviewed the Judge’s decisions and orders in this proceeding, we grant review and stay further proceedings, including briefing.

The
decision of the Commission in the underlying discrimination case is presently the subject of court review. Thomas v. CalPortland Co. and FMSHRC , No. 20-70541 (9th Cir. docketed Feb. 26, 2020). Consequently, the parties are instructed that, if upon final resolution of court review in that case the decision of the Commission is upheld, they should jointly move the Commission to lift the stay in this proceeding, vacate the conditional penalty, and dismiss the proceeding. Conversely, should the Commission’s discrimination decision be vacated as a result of court review, upon the return of that case to the Commission, we shall, sua sponte, lift the stay here and consolidate the penalty proceeding with the discrimination case, before conducting such further proceedings that are necessitated upon remand.

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Arthur R. Traynor, III

Arthur R. Traynor, III, Commissioner