Secretary of Labor obo Tyler Herrera v. Field Lining Systems, Inc. (ALJ decision, November 6, 2019)

Plain-English summary

Judge Priscilla M. Rae had previously ordered Field Lining Systems to return Tyler Herrera to his laborer position while his discrimination claim remained pending. After the company stopped employing him, the parties agreed to replace physical reinstatement with temporary economic reinstatement. The judge approved weekly pay of $910, retroactive pay from September 3 through November 4, and continued health, retirement, and seniority benefits. The agreement also required a neutral job reference and proof of each payment to the Secretary's counsel. Economic reinstatement would continue until a final order on the discrimination complaint or another order from the judge.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: The temporary economic-reinstatement agreement was approved with retroactive pay and continued benefits.
• Key point: Economic reinstatement can preserve a miner's wages, benefits, and seniority when actual temporary reinstatement ends before the merits case is resolved.

Full text (FMSHRC public release)

FEDERA L MIN E SAFET Y AN D HEALT H REVIE W COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNS Y LVANIA AVENUE,
NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

November 6, 2019

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH     

ADMINISTRATION
(MSHA), on

behalf
of TYLER HERRERA,

Petitioner,

v.

FIELD LINING SYSTEMS, INC.,

Respondent.

TEMPORARY
REINSTATEMENT PROCEEDING

Docket No. WEST 2019-0364-DM

MSHA
Case No. RM-MD-2019-11

Mine: Freeport-McMoRan Safford Inc.

Mine ID: 02-03131

ORDER GRANTING TEMPORARY ECONOMIC REINSTATEMENT [1]

Before:                        Judge Rae

This matter is before
me upon a joint motion to approve the Settlement Agreement for Temporary Economic Reinstatement (“Agreement”) filed on November 4, 2019, pursuant to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). Section 105(c) prohibits operators from discharging or otherwise discriminating against miners who have engaged in safety related protected activity, and authorizes the Secretary of Labor (“Secretary”) to apply to the Commission for miners’ temporary reinstatement, pending full resolution of the merits of their discrimination complaints. The Secretary seeks an order requiring Field Lining Systems, Inc. (“Respondent”), to temporarily economically reinstate Tyler Herrera (“Herrera”) in lieu of actual temporary reinstatement.

In a Decision and Order
issued July 11, 2019, I ordered Respondent to reinstate Herrera to the position he held on April 20, 2019, with restoration of pay, allowances, and benefits retroactive to the date he was discharged. On November 4, 2019, the parties filed for approval of the Agreement, which stated that Respondent stopped employing Herrera on September 3, 2019 and that the parties agreed Respondent will economically reinstate Herrera in lieu of actual reinstatement. The essential provisions of the Agreement are as follows:

1. Respondent
   agrees to economically reinstate Herrera to his position as laborer effective September 3, 2019. Respondent agrees to pay Herrera at his regular pay, which is $910.00 per week at a calculated at a rate of $14.00 per hour for 50 hours, and an overtime rate of $21.00 for 10 hours each week.

2. Respondent
   agrees to pay Herrera retroactively between September 3, 2019 and November 4, 2019, the period for which Herrera should have been employed by Respondent under the July 11, 2019 Decision and Order.

3. Respondent shall
   provide benefits (including but not limited to health insurance, retirement plan, and seniority accrual) associated with Herrera’s employment and consistent with those provided pre-termination. Respondent 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.

4. The first
   payment shall be due to Herrera on Respondent’s first regular weekly payday after the date this Agreement is executed by the parties. All subsequent payments shall be due on Respondent’s regular weekly paydays. All payments shall be made by regular payroll or certified check to “Tyler Herrera” and sent to the following address:

Tyler Herrera

900 East
Hollywood Lot #213

Safford, AZ
85546

Proof of each
payment shall be forwarded by email within five days of payment to the undersigned counsel for the Secretary at [email protected].

5. Respondent
   agrees to provide a neutral job reference for Herrera if contacted by potential employers.

6. If Respondent
   fails to provide payment and benefits as required by this Agreement, the Commission may sanction it.

7. Herrera’s temporary
   economic reinstatement shall terminate upon a final order on the underlying discrimination complaint or by an order of the Judge.

WHEREFORE , the motion to
approve the Settlement Agreement for Temporary Economic Reinstatement is GRANTED , and it is ORDERED that Field Lining Services, Inc. TEMPORARILY ECONOMICALLY REINSTATE Tyler Herrera, in accordance with all terms set forth in the parties’ Settlement Agreement for Temporary Economic Reinstatement of November 4, 2019.

/s/ Priscilla M. Rae

Priscilla M. Rae

Administrative
Law Judge

Distribution:

Veronica Melendez, U.S. Department of
Labor, Office of the Solicitor, 90 7th Street, Suite 3-700, San Francisco, CA 94103

Paul S. Gerding, Kutak Rock LLP, 8601 North
Scottsdale Road, Suite 300, Scottsdale, AZ 85253

Kristy
Lagumas, Field Lining Systems, Inc., 439 S. 3 rd Ave., Avondale, AZ 85323

Tyler Herrera, 900 East Hollywood Lot

213, Safford, AZ 85546

/smp

[1] The Secretary
filed this Settlement Agreement for Temporary Economic Reinstatement under the related substantive discrimination docket WEST 2019-0489, which concerns the merits of Herrera’s discrimination claim. This Order is properly filed under docket WEST 2019-0364 as an amendment to the July 11, 2019 Decision and Order.