Secretary of Labor on behalf of Alvaro Saldivar v. Grimes Rock, Inc.

Plain-English summary

The Commission remanded this long-running temporary-reinstatement matter to calculate what Grimes Rock still owed Alvaro Saldivar after an earlier enforcement order and to determine interest on late payments. The Judge treated the Commission's prior rulings as settled and rejected Grimes Rock's attempts to relitigate the termination date, entitlement to interest, reimbursement, and related issues. He found that Saldivar was available for 19 workdays during the relevant 40-day period, producing $2,427.56 in additional temporary economic reinstatement payments, and accepted the Secretary's $207.24 interest calculation on earlier late-paid amounts. He also held that the duty to mitigate applicable to backpay awards did not apply to the parties' temporary economic reinstatement agreement. Grimes Rock was ordered to pay $2,634.80 within 30 days, and its request for sanctions was denied.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(2) and 823(d)(1)
• Outcome: Grimes Rock was ordered to pay $2,427.56 in temporary reinstatement payments plus $207.24 in interest, totaling $2,634.80.
• Key point: Temporary economic reinstatement is designed to maintain employment during a pending discrimination case and is not reduced by the backpay doctrine's duty to mitigate.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

Office of the Chief Administrative Law Judge

721 19th Street, Suite 443

Denver, CO 80202-2536

Email: [email protected]

|
SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION, (MSHA), on behalf of ALVARO SALDIVAR, Complainant
v.
GRIMES ROCK, INC., Respondent |
|
|
APPLICATION FOR TEMPORARY REINSTATEMENT
Docket No. WEST 2021-0178-DM MSHA Case No: WE MD 21-06
Grimes Rock, Inc. Mine ID: 04-05432 |

DECISION UPON REMAND

Before: Judge Richard W. Manning

On November 28,
2023, the Commission issued a decision in this case affirming in part and
reversing in part orders issued by former Commission Judge Margaret Miller and
remanding other matters for further determination. 45 FMSHRC 947 (Nov. 2023). The
Commission’s instructions on remand require a “recalculation of the temporary
reinstatement amount owed between the date the Judge issued the order of
enforcement and the date her merits decision became final” [1]
and “a determination of any remaining temporary reinstatement payments and interest
owed[.]” 45 FMSHRC at 961.[2]

On
August 5, 2024, I ordered the parties to file briefs on the remanded issues and
to suggest possible resolution of those issues.[3]
For the reasons set forth below, Grimes Rock is ordered to pay Saldivar a total
of $2,634.80 in temporary economic reinstatement payments and interest.

SUMMARY OF THE
PARTIES’ ARGUMENTS

The Secretary argues that Grimes Rock owes Saldivar a total of $2,634.80 in temporary economic reinstatement payments and interest. Sec’y Br. 1.

The
Secretary asserts that Grimes Rock owes Saldivar $2,427.56 in additional temporary
economic reinstatement payments for the period after Judge Miller issued her
June 17, 2022, Enforcement Order until her decision on the merits in the
discrimination case became final. Sec’y Br. 4. Judge Miller’s decision on the
merits in the discrimination case became final 40 days after its issuance,
i.e., July 27, 2022. Sec’y Br. 5-6; Sec’y Resp. 7-9. Although there were 26
workdays during the 40-day period after Judge Miller issued her decision,
Saldivar was only available to work during 19 of those days. Sec’y Br. 6. Judge
Miller previously held that Grimes Rock was not responsible for paying Saldivar
during periods he was unavailable to work. Sec’y Br. 3. Consequently, the
Secretary claims that Grimes Rock owes Saldivar $2,427.56[4]
in temporary economic reinstatement payments for the 19 workdays he was
available during the period after Judge Miller issued the Enforcement Order until
her decision on the merits became a final order of the Commission under Section
113(d)(1) of the Mine Act. Sec’y Br. 7.

The
Secretary asserts that, utilizing the Commission’s general framework for
computation of interest in 105(c) cases set forth in Sec’y of Labor on
behalf of Bailey v. Arkansas-Carbona, 5 FMSHRC 2042 (Dec. 1983), Grimes
Rock owes Saldivar $207.24 in interest on the late paid temporary economic
reinstatement payments, i.e., those payments that were the subject of Judge
Miller’s Enforcement Order that were ultimately paid on August 22, 2022.[5]
Sec’y Br. 7-11.

Finally, the Secretary asserts that, contrary to Grimes Rock’s claims otherwise, Saldivar had no duty to mitigate temporary reinstatement, Saldivar is entitled to interest on the late paid temporary economic reinstatement payments during periods he was incarcerated and allegedly subject to arrest, and Grimes Rock is not entitled to reimbursement or offset for any amount Grimes Rock alleged that it previously paid Saldivar. Sec’y Resp. 10-15.

Grimes
Rock argues that this court should not award any additional temporary economic
reinstatement payments or interest in this matter. In support of its argument
that additional temporary economic reinstatement payments are not due, Grimes
Rock asserts that due to multiple instances of failing to get court-ordered drug
tests, admitted drug use, and incarceration, Saldivar was unavailable to work
during the entire 40-day period after Judge Miller terminated the temporary
economic reinstatement order. Grimes Br. 10-11. It argues that the temporary
reinstatement order was properly terminated as of the date of Judge Miller’s decision
in the discrimination case on the merits, and that this court should not
retroactively apply the Commission’s “wrongly decided” decision in Sec’y of
Labor on behalf of Hargis v. Vulcan Construction Materials, LLC, 46 FMSHRC
523 (Aug. 2024) (“Hargis”). Grimes Br. 11-14.

In
support of its claim that this court should not award any interest, Grimes Rock
makes several arguments, including that the Secretary and Saldivar waived and/or
forfeited any claimed right to interest by failing to timely raise that issue
before Judge Miller, that the Commission exceeded its jurisdiction in ruling on
and remanding the issue of interest to this court, and that Grimes Rock is not
obligated to [pay interest associated with the temporary
economic reinstatement order because Saldivar failed to mitigate damages
claimed]. Grimes Br. 15-22. [Further, Grimes Rock asserts
that no interest should be awarded for the period Saldivar was a fugitive or incarcerated,][that the Secretary should be estopped from claiming
any interest prior to the Commission’s November 28, 2023 decision due to prior
inconsistent statements made by Secretary regarding whether interest was
accruing], and that if interest is ordered by this court it should be at
most $803.36.[6]
Grimes Br. 22-28.

Finally, Grimes Rock argues that Judge
Miller erred when she ordered that Grimes Rock should not be reimbursed for temporary
economic reinstatement payments made to Saldivar when he was a fugitive or incarcerated
and that Grimes Rock should either be reimbursed for those payments, or
alternatively, that the same amount should be credited as an offset to any payments
that are allegedly still due.[7]
Grimes Br. 26-28.

DISCUSSION

As an initial matter, it is important to understand what issues are and are not before me. In its November 28, 2023, decision in this matter the Commission, among other things, vacated Judge Miller’s order dissolving the temporary reinstatement as of the date of the Enforcement Order and decision on the merits in the discrimination case, affirmed Judge Miller’s Enforcement Order, and granted the Secretary’s motion for interest. 45 FMSHRC 947 (Nov. 2023). Judge Miller issued her Enforcement Order on June 17, 2022, the same day as she issued her decision on the merits in the discrimination case. 44 FMSHRC 497 (June 2022)(ALJ).

I am not in a position to review already decided questions of law and fact in this case. Consequently, I do not address the issues of whether temporary economic reinstatement was properly terminated at the time Judge Miller issued her decision in the discrimination case on the merits, whether interest is appropriate, whether the Secretary waived any right to interest, whether the Commission had jurisdiction over the issue of interest and had authority to remand the issue to this court for calculation of said interest, whether the Secretary should be estopped from claiming any interest due to prior inconsistent statements made by Secretary regarding whether interest was accruing, and whether Judge Miller erred when she ordered that there would be no return or reimbursement for temporary economic reinstatement payments that had already been made to Saldivar. The remaining issues are addressed below.

Temporary Economic
Reinstatement Payments

The Commission,
in its decision, determined Judge Miller “erred when she ended the order of
temporary reinstatement concurrently with her merits decision.” 45 FMSHRC 947, 955-956.
Accordingly, it remanded to this court the task of recalculating the temporary
economic reinstatement payments owed between the time Judge Miller issued her June
17, 2022, Enforcement Order and the date her discrimination decision on the
merits became final.[8]
Neither party appealed Judge Miller’s discrimination decision on the merits in
which she dismissed the complaint of discrimination. Accordingly, her decision
became a final order of the Commission 40 days after its issuance, i.e., July
27, 2022. Hargis v. Vulcan Construction Materials, LLC, 46 FMSHRC 523
(Aug. 2024) (“Hargis”).[9]

The
Secretary asserts, and the court agrees, that there were 26 possible workdays
during the 40-day period after Judge Miller issued her Enforcement Order.[10]

In her Enforcement
Order, Judge Miller held that Grimes Rock was not responsible for paying
Saldivar during periods he was unavailable to work.[11]
44 FMSHRC at 498. Here, although the parties agree Saldivar was unavailable to
work during the days he was incarcerated during the 40-day period[12],
they disagree regarding his availability to work during the remainder of that
period. Whereas the Secretary asserts that Saldivar was available to work
during the other possible workdays, Grimes Rock asserts that Saldivar was
unavailable to work for the entirety of the 40-day period due to multiple failures
to take drug tests and admitted drug use. I agree with the Secretary[13]
and find that Grimes Rock is responsible for temporary economic reinstatement
payments equivalent to 19 days of work, i.e., the total number of possible
workdays he was not incarcerated, which amounts to $2,427.56.[14]

Interest

The
Commission, in its decision, granted the Sercetary’s motion for interest and remanded
to this court the issue of determining the amount of interest due Saldivar on
any temporary reinstatement payments that were paid late. [15]
In Sec’y of Labor on behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042,
2051-52 (Dec. 1983) (“Arkansas-Carbona”) the Commission adopted a “quarterly
method’ for computation of interest awards. Under the Arkansas-Carbona method
interest is assessed on a quarterly basis at the adjusted prime interest rate
and begins accruing beginning with the last day of the quarter in which payment
was due until the date of payment. Id. Interest amounts accrued for each
quarter’s net unpaid amount are then summed to yield a total interest award. Id.
In Local Union 2274, District 28, United Mine Works of America v.
Clinchfield Coal Co., 10 FMSHRC 1493 (Nov. 1988) (“Clinchfield”),
the Commission retained the “quarterly method” but modified the Arkansas-Carbona
framework to switch from using the adjusted prime interest rate to the short-term
Federal rate applicable to the underpayment of taxes for the calculation of
interest due.

Here,
the Secretary applied the Commission’s Arkansas-Carbona framework, as
modified by Clinchfield, to the late temporary reinstatement payments
that were included in Judge Miller’s Enforcement Order and not paid until
August 22, 2022.[16]
Based on the Secretary’s calculations, Grimes Rock is obligated to pay Saldivar
a total of $207.24 in interest on late temporary reinstatement payments. I
agree and incorporate the Secretary’s explanation and calculations in her brief
by reference.[17]

I reject Grimes
Rock’s argument that it should not be obligated to pay interest associated with
the temporary economic reinstatement because Saldivar failed to mitigate
damages claimed. I agree with the Secretary that, although a duty to mitigate
damages exists in the context of back pay awards in discrimination cases, no
such duty exists in the context of temporary reinstatement. Sec’y Opp’n 10. As
noted by the Secretary, in Sec’y of Labor on behalf of Gray v. North Fork Coal
Corp., 33 FMSHRC 589, 592-593 (Mar. 2011), the Commission distinguished
between discrimination awards, which include back pay and a duty to mitigate,
and temporary reinstatement, the goal of which is to quickly put a miner back
to work during the pendency of the discrimination case on the merits. There,
the Commission “reject[ed] the notion that the considerations which shape back
pay award amounts, also apply, as a matter of law, to the economic reinstatement
order before us.” Id. at 593. Here, there was no back pay award which
would give rise to a duty to mitigate. Rather, the monetary amount due Saldivar
was a result of an agreement between the parties to temporarily economically reinstate
Saldivar, which was approved by Judge Miller and ultimately affirmed by the
Commission.

ORDER

For
the reasons set forth above, Grimes Rock is ordered to pay Saldivar a total of $2,634.80
in temporary economic reinstatement payments and interest within 30 days of the
date of this decision.[18]
& [19]

** **/s/ Richard W.
Manning

Richard W. Manning

Administrative Law Judge

Distribution: (Via email and First Class Mail)

Ryan
M. Kooi, Esq. U.S. Department of Labor, Office of the Solicitor, U.S. Department
of Labor, Mine Safety and Health Division, 201 12th Street South, Suite 401, Arlington,
VA 22202-5452 ([email protected])

Kenneth
H. Moss, Esq., Mark R. Pachowicz, Esq., and Tina Amoke, Pachowicz &
Goldenring PLC, 6050 Seahawk Street, Ventura, CA 93003 ([email protected]; [email protected]; [email protected])

Alvaro
Saldivar, 2531 Taffrail Ln., Oxnard, CA 93035 ([email protected])

RWM

[1]
Judge Miller issued her decision in the discrimination case on the merits on
June 17, 2022. Sec’y of Labor on behalf of Alvaro Saldivar v. Grimes Rock
Inc., 44 FMSHRC 473 (June 2022) (ALJ). Neither party appealed that decision
in which Judge Miller dismissed the complaint of discrimination.

[2]
The history of this case is long, complicated, and has been laid out in prior
issuances by Judge Miller, the Commission, and this court. I decline to do so
again.

[3]
The Commission also remanded to this court the issue of whether consequential
damages are appropriate. On September 6, 2024, I issued an order denying the
Secretary’s motion for consequential damages. 46 FMSHRC 842 (Sept. 2024)
(ALJ).

[4]
The Secretary calculated this amount by multiplying the number of days Saldivar
was available for work during the 40-day period (i.e., 19) by the daily rate of
pay in Judge Miller’s Enforcement Order. Sec’y Br. 3, 6-7. The daily rate of pay
was calculated by dividing the gross total Judge Miller ordered Grimes Rock to
pay for the period between May 17, 2022 and June 17, 2022, which incorporated the
offset of pay from other employers, by the number of workdays Saldivar was
available to work during that period. Sec’y Br. 3, 6-7.

[5]
The Secretary provided a detailed explanation of her calculation to arrive at
the amount of interest she alleges is due. For brevity’s sake, I have not
summarized that explanation.

[6]
Grimes Rock provided a detailed explanation of its calculation to arrive at the
maximum potential amount of interest that could be ordered. For brevity’s sake,
I have not summarized that explanation.

[7]
Grimes Rock’s initial filing was captioned as a motion for summary decision.
However, for purposes of this decision, I have treated it as a brief on the
limited issues before me, which is what I instructed the parties to file in my
August 5, 2024, Order to File Briefs. Grimes Rock also filed an opposition to
the Secretary’s brief on the remanded issues, which I have treated as a
response brief. The response brief raises essentially the same arguments as the
original brief, with a few additions, including, among other things, that the
Secretary should be sanctioned for failing to inform Grimes Rock that Saldivar
was incarcerated for part of July 2022, and that any interest awarded should be
recalculated to exclude those days that Saldivar was incarcerated, avoiding
drug testing, or admitted to drug use. Grimes Resp. 1-2, 4-5, 29-31.

[8]
The Secretary, in her response to this court’s August 15, 2024 Order to Provide
Information, confirmed that Grimes Rock’s temporary economic reinstatement
obligations were satisfied through June 17, 2022.

[9]
Grimes Rock argues that Hargis was “wrongly decided and should not be
applied to this case[.]” Grimes Br. 14. I reject the argument. I note that the
Commission, in its decision in this matter, specifically referenced that the
issue of the proper termination date for temporary reinstatement was before it
in the Hargis case. 45 FMSHRC at 956 n. 16.

[10]
By the court’s reasoning, the 26 days include a five-day work week and excludes
holidays from the total number of possible workdays during the 40-day period.

[11]
Judge Miller specifically noted two separate “periods of unavailability.” 44
FMSHRC at 498. A review of the record reveals that Saldivar was incarcerated
during those two periods.

[12] Both parties
attached to their respective briefs documentation supporting the fact that
Saldivar was incarcerated from July 6, 2022 to July 15, 2022. Sec’y Br. Ex. 5;
Grimes Br. Ex. 9, 40.

[13]
I reject Grimes Rock’s argument that Saldivar was unavailable for the entire
40-day period. Failure to drug test and admitted drug use, while certainly not
advisable, do not amount unavailability. Saldivar was available for work during
that period, he had been employed as a welder by a different employer and,
consistent with Judge Miller’s determination in the Enforcement Order, his
earnings at other employment have been used to offset the total amount that
would have otherwise been due for the days he was available during the 40-day
period.

[14]
The court agrees with the Secretary regarding how this amount was calculated
and incorporates the Secretary’s explanation in her brief as part of this decision.

[15]
The Secretary, in both her original motion for interest filed with the
Commission and her brief filed with this court, did not seek interest on the unpaid
temporary economic reinstatement payments discussed above, i.e., payments for
the period after the Enforcement Order was issued until the discrimination
decision on the merits became final.

[16]
Judge Miller’s Enforcement Order required Grimes Rock to pay a total of
$12,533.94 in past due temporary economic reinstatement payments for a period between
November 2021 and June 2022, i.e., three quarters beginning with the fourth
quarter of 2021 and ending in the second quarter of 2022. As a result, interest
accrued during the first, second and third quarters of 2022 until Grimes Rock
paid $12,533.94 on August 22, 2022. The short-term Federal rate applicable to
the underpayment of taxes for the three subject quarters was 3% for Q1, 4% for
Q2 and 5% for Q3 2022. IRS Quarterly Interest Rates, https://www.irs.gov/payments/quarterly-interest-rates
(last visited November 18, 2024). Utilizing the appropriate rates for the
relevant quarters, and August 22, 2022 as the date which interest stopped
accruing, the Secretary arrived at a total of $207.24 in interest pursuant to
the instructions outlined in Arkansas-Carbona and Clinchfield.
Sec’y Br. 7-11.

[17]
I reject Grimes Rock’s argument that interest should not be awarded for the
period Saldivar was a fugitive or incarcerated. In Clinchfield the
Commission cited the NLRB’s explanation that the purpose of interest is to compensate
for the loss of use of money. 10 FMSHRC at 1500. Here, the Commission granted
the Secretary’s motion for interest and held that Grimes Rock was obligated to
pay interest on payments that were paid late to Saldivar. Neither Judge
Miller’s Enforcement Order ordering the subject payments, nor the Commission’s
decision on review, allowed for further adjustment of those payments based upon
whether Saldivar was a fugitive or incarcerated. Moreover, the ordered payments
already reflect a reduction that accounts for when Saldivar was incarcerated. Consistent
with the Commission’s decision granting the Secretary’s motion for interest,
interest must be paid for all periods in which it accrued on the $12,533.94 in late
paid temporary economic reinstatement payments.

[18]
Grimes Rock’s request for sanctions included in its response brief is DENIED.
Counsel for the Secretary attested that, prior to September of 2024, the
Secretary had no knowledge of Saldivar’s incarceration during July 2022, i.e.,
the days for which the Secretary agrees Grimes Rock does not owe temporary
economic reinstatement payments. Sec’y Reply. 1-2 and Ex. 1.