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

Plain-English summary

Alvaro Saldivar received temporary economic reinstatement while his discrimination case against Grimes Rock proceeded, with outside earnings offset against the operator's payments. After periods when Saldivar was unavailable for work and later had no outside job, a judge ordered Grimes Rock to pay the full reinstatement wages for his available periods, less actual alternative earnings. Grimes Rock sought a stay of that enforcement order while its appeal was pending, even though the judge had separately ruled against Saldivar on the discrimination merits. The Commission denied the stay because the operator did not show likely success, economic loss was not irreparable harm, delayed payment would harm the miner, and enforcing temporary reinstatement served the public interest. It emphasized that a miner's later loss on the merits does not invalidate wages owed under an earlier temporary-reinstatement order.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)
• Outcome: Grimes Rock's motion to stay enforcement of the temporary-reinstatement payment order was denied.
• Key point: Temporary-reinstatement payments are not repayable merely because the miner later loses the discrimination case, and ordinary economic loss does not justify a stay.

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)                      :

on behalf of ALVARO SALDIVAR              :

:                                

v.                                              
:         Docket No. WEST 2021-0178-DM

:          

GRIMES ROCK, INC.                                     :

BEFORE: Traynor,
Chair; Althen and Rajkovich, Commissioners

ORDER

BY
THE COMMISSION:

This proceeding
arises under section 105(c)(2) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(c)(2) (2018) (“Mine Act”). [1] On August 17, 2022, the Commission
received from Grimes Rock, Incorporated (“Grimes Rock”) a motion to stay the Administrative
Law Judge’s June 17, 2022 order enforcing the parties’ settlement agreement for
temporary economic reinstatement of miner Alvaro Saldivar. For the reasons that
follow, we deny the operator’s motion. [2]  

I.

Factual and Procedural Background

Miner Alvaro Saldivar was terminated
from his job at Grimes Rock in January 2021. The Secretary brought a section
105(c)(2) action on his behalf and sought temporary reinstatement. A Commission
Administrative Law Judge granted the temporary reinstatement. Sec’y of Labor
on behalf of Saldivar v. Grimes Rock, Inc ., 43 FMSHRC 287 (May 2021) (ALJ).
Grimes Rock appealed, and the Commission affirmed the Judge’s order on June 11,
2021. Sec’y on behalf of Saldivar v. Grimes Rock, Inc. , 43 FMSHRC 299, 307
(June 2021). While the appeal was pending, the parties agreed to temporary
economic reinstatement, and the Judge approved the agreement on May 28, 2021. Under the agreement, because Saldivar had found work
with another employer, Grimes was responsible for paying the difference between
Saldivar’s earnings at his present job and his earnings at Grimes Rock. Unpublished
Order at 1 (May 28, 2021). The agreement was silent on what would happen if
Saldivar no longer had other employment to offset Grimes Rock’s payments. In
July of 2021, the Secretary filed a complaint for discrimination on Saldivar’s behalf.

While the parties awaited the
Judge’s decision on the merits of Saldivar’s discrimination complaint, Saldivar
was incarcerated and unavailable for work on two occasions. During these
periods, Grimes Rock’s payments were tolled pursuant to Saldivar’s
unavailability. After Saldivar’s first incarceration, Grimes filed a motion to
toll or terminate temporary reinstatement, which the Judge denied. Grimes
appealed the decision, and it is currently pending before the Commission.

After Saldivar was first released,
around November 2021, Grimes Rock resumed making payments, but there is dispute
about what was owed pursuant to the temporary reinstatement. After the miner
was released the second time in May 2022, Grimes Rock did not resume making
payments. On May 27, 2022, the Secretary filed with the Judge a motion to
enforce temporary reinstatement, which was granted on June 17, 2022. The Judge ordered Grimes Rock “to pay
Saldivar the full wages as ordered in the Reinstatement Order during the
periods of his availability to work between May 18, 2021 and June 17, 2022,
offset by his wages earned from alternative employment during that period.” Sec’y
of Labor on behalf of Saldivar v. Grimes Rock, Inc ., 44 FMSHRC___, slip op.
at 3, No. WEST 2021-0178, 2022 WL 2290543, (June 17, 2022). Simultaneous
with her order granting enforcement, the Judge issued her decision in the
merits case finding that Grimes Rock did not violate the discrimination
provisions of the Mine Act and terminating temporary reinstatement as of the
date of the decision. [3]

Grimes appealed the Judge’s order
granting the Secretary’s motion to enforce on July 13, 2022, and the appeal is
currently pending before this Commission. On August 15, 2022, MSHA issued a
section 104(a) citation to Grimes for violating the Judge’s order to enforce
temporary reinstatement. 30 U.S.C. § 814(a).  On August 17, 2022, Grimes Rock
filed for immediate stay of the Judge’s June 17 order granting enforcement.

II.

Disposition

Commission
Procedural Rule 45(f) provides that, with respect to an order granting
temporary reinstatement, “[t]he filing of a petition shall not stay the effect
of the Judge’s order unless the Commission so directs; a motion for such a stay
will be granted only under extraordinary circumstances.” 29 C.F.R. § 2700.45(f);
Sec’y of Labor on behalf of Shaffer v. The Marion County Coal Co ., 40
FMSHRC 39, 45 (Feb. 2018); Sec’y of Labor on behalf of Billings v. Proppant
Specialists, LLC , 33 FMSHRC 2383, 2386 (Oct. 2011).

In Secretary
on behalf of Price and Vacha v. Jim Walter Resources, Inc ., 9 FMSHRC 1312
(Aug. 1987), the Commission held that a party seeking a stay pending review of
a temporary reinstatement decision or order must make an adequate showing with
respect to the four factors set forth in Virginia Petroleum Jobbers
Association v. Federal Power Commission , 259 F.2d 921 (D.C. Cir. 1958). These
four factors are: (1) a likelihood that the moving party will prevail on the
merits of its appeal; (2) irreparable harm to it if the stay is not granted;
(3) no adverse effect on other interested parties; and (4) a showing that the
stay is in the public interest. 259 F.2d at 925; see also UMWA on
behalf of Franks & Hoy v. Emerald Coal Res., LP , 35
FMSHRC 2373 , 2374 (Aug. 2013). The Commission made clear that a stay
constitutes “extraordinary relief.” 35 FMSHRC at 2374; see also W.S. Frey
Co. , 16 FMSHRC 1591 (Aug. 1994). The burden is on the movant to provide
“sufficient substantiation” of the requirements for the stay. Stillwater
Mining Co ., 18 FMSHRC 1756, 1757 (Oct. 1996).

We conclude that
Grimes Rock has failed to demonstrate “extraordinary circumstances.” We,
therefore, deny its motion to stay.

A.    
Likelihood that Grimes Rock will prevail on appeal

Grimes Rock
argues that the Judge retroactively modified the parties’ settlement agreement by
requiring the operator to pay the full reinstatement amount after Saldivar no
longer had other employment, which was more than the agreed upon amount (the
difference between Saldivar’s earnings at his present job and his earnings at
Grimes Rock). GR Mot. to Stay. at 6. It asserts that the Judge improperly
interpreted the agreement to include implied terms that should only have been
considered upon the Secretary’s proper filing of a motion to modify the
existing order. Id . at 6-7.

The operator’s
argument of retroactive modification is not sufficiently persuasive. This is
especially so given the purpose of the temporary reinstatement provision, which
is to put the miner, during the time he pursues his discrimination claim, in no
worse a position than he was while working for the operator. See North
Fork Coal Corp ., 33 FMSHRC 589, 597-98 (Mar. 2011). Grimes Rock provides
state contract law in furtherance of its contention, but it neglects to discuss
this state law in the context of the Mine Act’s temporary reinstatement
provision. In fact, it completely fails to offer any support from the Mine Act
or mine safety case law to support its argument. GR Mot. to Stay at 6-7. For
purposes of this Motion to Stay, we conclude that it was not unreasonable for
all involved to assume that in the event Saldivar were no longer employed
elsewhere, Grimes Rock’s payments would automatically revert to the full amount
under the Judge’s Order, consistent with the purpose of temporary reinstatement.
Thus, we conclude that the operator has not sufficiently substantiated its
likelihood of prevailing.

However, even if
Grimes Rock were to prevail on its argument that the Judge erred by
retroactively modifying the parties’ agreement, a stay is not warranted because
Grimes Rock fails to establish the remaining three Virginia Petroleum factors.
As the Commission has recognized, where a probability of success on the merits
is established, an inadequate showing with regard to the other three factors
nevertheless still prevents the grant of a stay pending review. See Sec’y
of Labor on behalf of Rodriguez v. C.R. Meyer and Sons Co. , 35 FMSHRC 811,
812–13 (Apr. 2013) (citing Virginia Petroleum , 259 F.2d at 926).

B.    
Irreparable harm to Grimes Rock if Stay is denied

Grimes Rock argues that it will
have no recourse to get its money back should it prevail on its appeals. GR
Mot. at 7-8. [4] This argument too must fail. “It is .
. . well settled that economic loss does not, in and of itself, constitute
irreparable harm.” Wisconsin Gas Co. v. FERC , 758 F.2d 669, 674 (D.C.
Cir. 1985); see also Virginia Petroleum , 259 F.2d at 925 (“Mere
injuries, however substantial, in terms of money, time and energy necessarily
expended in the absence of a stay, are not enough.”); Rodriguez , 35
FMSHRC at 813. Moreover, the fact that Grimes Rock ultimately prevailed in the
discrimination proceeding does not change the outcome here. As we have
previously stated, to accept this argument “would effectively nullify the
temporary reinstatement provisions of the Mine Act.” North Fork , 33
FMSHRC at 597. Reinstated miners often are not ultimately successful on the
merits of their discrimination claims, even when their claim is brought by the
Secretary pursuant to section 105(c)(2). Id. ; Baird v. PCS Phosphate
Co ., 33 FMSHRC 127, 129-30 (Feb. 2011). There is nothing in the Mine Act
which contemplates that the miner would be expected to repay the amounts paid
pursuant to the reinstatement order. North Fork , 33 FMSHRC at 597.  Indeed,
that would run counter to the intent of the provision, which is to provide
immediate relief to a complaining miner while he or she waits for the case to
be decided. Id .

In this case, the operator chose
to forego the services of the miner and opted for economic reinstatement
instead. As the Secretary points out, had Saldivar been temporarily reinstated
to his work at the mine, the operator would not have been able to recoup the
wages paid for his labor. The result is the same for temporary economic
reinstatement. Furthermore, we have held that “if the operator chooses to pay
the miner while foregoing the miner’s labor, there is no right for the operator
to seek reimbursement from the miner should the miner not eventually prevail on
his or her discrimination claim.” Id. at 593. 

C.    
Adverse effect on Miner Saldivar

Grimes Rock
argues that the Commission should find that the minimal amount of time Saldivar
will have to wait for the Commission to decide the pending appeals pales in
comparison to the significant amount of money the operator stands to lose. GR
Mot. to Stay at 8-9. However, the temporary reinstatement provision was
intended to protect the miner not the operator. In enacting the Mine Act,
Congress stated the essential reasoning behind the temporary reinstatement
remedy: “The Committee feels that this temporary reinstatement is an essential
protection for complaining miners who may not be in the financial position to
suffer even a short period of unemployment or reduced income pending the
resolution of the discrimination complaint.” S. Rep. No. 95-181, at 37 (1977),
reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History
of the Federal Mine Safety and Health Act of 1977, at 625 (1978) (“Legis.
Hist.”).

Here, Mr.
Saldivar was lawfully awarded temporary reinstatement by a Commission Judge
under the Mine Act, while he awaited resolution of his discrimination
complaint. As previously stated, the purpose of the temporary reinstatement
provision is to put the miner, during the time he pursues his discrimination
claim, in no worse a position than he was while working for the operator. See
North Fork , 33 FMSHRC at 597-98. Because Saldivar has not received the full
wages he would have received if he had still been working at Grimes Rock, as contemplated
by the Mine Act, this Commission cannot conclude that he would not be adversely
affected.   

D.    
Public interest

Grimes Rock
argues that no public interest will be served by forcing it to pay Saldivar
additional wages when the Judge has already determined that the miner was
properly discharged. It asserts that “[e]xtorting” $12,533 may be in the best
interest of the miner but not in the interest of the public. GR Mot. to Stay at
9.

First, the
outcome of a discrimination proceeding has no bearing on the outcome of the
temporary reinstatement proceeding. See Grimes Rock , 43 FMSHRC at 303 (“[T]he
requirements for a full discrimination proceeding do not affect the ‘not
frivolously brought’ standard in a temporary reinstatement case.”). This is so
even after the discrimination case has been decided and the temporary
reinstatement case remains ongoing pursuant to an order of temporary
reinstatement issued prior to the dissolution of the merits case.

Second, while
the operator is correct that it is in the best interest of Saldivar to allow
the enforcement order to proceed, we do not agree that such outcome is not also
in the public’s interest. Congress “clearly intended that employers should bear
a proportionately greater burden of the risk of an erroneous decision in a
temporary reinstatement proceeding.” Jim Walter Res., Inc. v. FMSHRC ,
920 F.2d 738, 748 n.11 (11th Cir. 1990). The legislative history of the Mine
Act indicates that section 105(c)’s prohibition against discrimination is to be
“construed expansively to assure that miners will not be inhibited in any way
in exercising any rights afforded by the legislation.” S. Rep. No. 95-181, at
36, Legis. Hist. at 624. There is a clear public interest in protecting miners’
temporary reinstatement rights. See also Rodriguez , 35 FMSHRC at

814. We thus conclude that the public interest is best served by denying a stay
     of the temporary reinstatement order, as opposed to granting the stay, which would
     only serve Grimes Rock’s private interest.

III.

Conclusion

Miner Saldivar’s
ultimate failure to succeed in his discrimination case does not invalidate his
previous award for temporary reinstatement, nor does it place him outside of
the scope of miners contemplated by Congress in enacting the temporary
reinstatement provision. Because Grimes Rock failed to demonstrate requisite extraordinary
circumstances for the reasons discussed above, we deny the operator’s motion to
stay.  

/s/ Arthur R. Traynor, III

Arthur
R. Traynor, III, Chair

/s/ William I.
Althen

William I. Althen,
Commissioner

/s/ Marco M. Rajkovich,
Jr.

Marco M. Rajkovich,
Jr., Commissioner

Distribution:

Peter
Goldenring

Pachowicz
& Goldenring PLC

6050
Seahawk Street

Ventura,
CA 93003

[email protected]

Mark
R. Pachowicz

Pachowicz
& Goldenring PLC

6050
Seahawk Street

Ventura,
CA 93003

[email protected]

Alvaro
Saldivar

1241
Lookout Drive

Oxnard,
CA 93035

[email protected]

Susannah M. Maltz, 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]

Emily
Toler Scott

Counsel
for Appellate Litigation

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]

April Nelson, Esq.

Associate
Solicitor

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]

Karla Malagon

U.S. Department of Labor

Office of the Solicitor

350 S. Figueroa Street, Suite 370

Los Angeles, CA 90071

[email protected]

Jessica M. Flores

U.S. Department of Labor

Office of the Solicitor

350 S. Figueroa Street, Suite 370

Los Ángeles, CA 90071

[email protected]

Bruce L. Brown

U.S. Department of Labor

Office of the Solicitor

350 S. Figueroa Street, Suite 370

Los Ángeles, CA 90071

[email protected]

Melanie Garris

U.S. Department of Labor

Office of Civil Penalty Compliance

Mine Safety and Health
Administration

201 12th Street South, Suite 401

Arlington, VA 22202-5452

[email protected]

Administrative Law Judge Margaret
Miller

Federal Mine Safety Health Review
Commission

721 19th Street, Suite 443

Denver, CO 80202-2500

[email protected]

Chief Administrative Law Judge Glynn
F. Voisin

Federal Mine Safety & Health
Review Commission

1331 Pennsylvania Avenue, NW, Suite
520N

Washington, DC 20004-1710

[email protected]  

[1] 30 U.S.C. § 815(c)(2) provides in
pertinent part:

Any
miner . . . who believes that he has been discharged, interfered with, or
otherwise discriminated against by any person in violation of this subsection
may, within 60 days after such violation occurs, file a complaint with the
Secretary alleging such discrimination. Upon receipt of such complaint, the
Secretary shall forward a copy of the complaint to the respondent and shall
cause such investigation to be made as he deems appropriate. Such investigation
shall commence within 15 days of the Secretary’s receipt of the complaint, and
if the Secretary finds that such complaint was not frivolously brought, the
Commission, on an expedited basis upon application of the Secretary, shall
order the immediate reinstatement of the miner pending final order on the
complaint.

[2]  The Commission’s denial of the motion to stay does
not constitute a decision upon the merits of the issues currently on appeal in
the Temporary Reinstatement proceeding.

[3]   Sec’y
of Labor on behalf of Saldivar v. Grimes Rock, Inc ., 44 FMSHRC___, slip op. at 15, No. WEST
2021-0265, (June 17, 2022), 2022 WL 2290545.

[4]  Grimes Rock also contends that if there is no
immediate stay, it will be subjected to every punishment and fine the Secretary
can assert for non-compliance with an order that is before the Commission on
appeal. GR Mot. to Stay at 7. However, the operator can properly challenge any citation
or order before a Commission Administrative Law Judge in accordance with 30
U.S.C. § 815(a).