United States Fuel Company v. Secretary of Labor (MSHA) (ALJ decision, April 23, 1984)

Plain-English summary

MSHA cited United States Fuel for refusing to reinstate miner Albert DiCaro under a December 1983 ALJ order in a discrimination case. The company contested the citation, arguing that the reinstatement order was not yet enforceable. Judge William Fauver distinguished an immediately effective temporary reinstatement order from the permanent relief he had ordered after deciding liability. On the January 10, 1984 citation date, 40 days had not passed since his December order and the Commission had not yet made it a final order. He held the enforcement citation premature and vacated it. This decision did not decide the underlying discrimination claim again or assess a civil penalty.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(3), discrimination relief; 30 U.S.C. § 823(d)(1), finality of ALJ decisions.
• Outcome: Citation 2072262 vacated because the reinstatement order was not enforceable on January 10, 1984.
• Key point: A permanent reinstatement order in a private discrimination case could not support an enforcement citation before it became effective.

Full text (FMSHRC public release)

CCASE:
UNITED STETES FUEL V. SOL (MSHA)
DDATE:
19840423
TTEXT:
~1004

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

UNITED STATES FUEL COMPANY,
CONTEST PROCEEDING
CONTESTANT
v. Docket No. WEST 84-40-R
Citation No. 2072262; 1/10/84
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
King No. 4 Mine
ADMINISTRATION (MSHA),
RESPONDENT

DECISION

Appearances: Timothy M. Biddle, Esq., and Rochelle M.
Gunner, Esq., Crowell & Moring, Washington, D.C., for Contestant;
Frederick W. Moncrief, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia, for Respondent.

Before: Judge Fauver

Pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq., U.S. Fuel contests a citation issued by the Secretary on January 10, 1984. The citation alleges that U.S. Fuel violated section 105(c)(3) of the Act by failing to comply with my December 15, 1983, order to reinstate Albert DiCaro.

The citation required abatement by January 13, 1984. U.S.
Fuel filed this contest on January 11, and an expedited hearing was held on January 12.

At the hearing, I ordered a stay of enforcement of the citation pending further notice in this proceeding.

The parties have agreed that there are no issues of material fact and the case is appropriate for decision on the record.

ISSUE

The controlling issue is whether my December 15, 1983, order requiring reinstatement was enforceable by the Secretary (MSHA) on January 10, 1984.
~1005
BACKGROUND

On May 26, 1983, I issued a decision on liability in DiCaro v. United States Fuel Company, Docket No. WEST 82-113-D: (1) adjudicating that U.S. Fuel violated section 105(c) of the Act by discharging Mr. DiCaro and (2) holding the record open for further proceedings on issues of relief, such as back pay, attorney fees, and costs. A hearing was held on the relief issues, and on December 15, 1983, I issued a decision granting relief. The order part of the decision ordered U.S. Fuel to offer Mr. DiCaro reinstatement to his former position, provided he presented medical evidence that he was able to work as a miner. It also ordered the parties to attempt to stipulate certain back pay questions and, if they could not stipulate, to submit their respective proposed amounts to me not later than 20 days from the date of the decision. The order stated that I was retaining jurisdiction over the case for the 20-day period and "until a ruling on any counter-proposals filed in such period."

In early January 1984, Mr. DiCaro appeared at U.S. Fuel's offices in Utah, presented a medical statement of his fitness for duty, and requested reinstatement under my December 1983 order. U.S. Fuel refused, stating that it would not reinstate him unless the Commission in a final decision so ordered and that U.S. Fuel had directed counsel to seek review of my decisions (of May and December, 1983).

On January 10, 1984, a federal inspector appeared at U.S.
Fuel's offices and issued Citation No. 2072262, the citation which is contested in this proceeding. The citation states:

By decision of Administrative Law Judge William Fauver of the Federal Mine Safety and Health Review Commission issued December 15, 1983, United States Fuel Company is required to offer employment to Albert DiCaro upon receipt of a medical release. The decision of Administrative Law Judge Fauver is effective upon issuance unless stayed by the Federal Mine Safety and Health Review Commission. The decision and order of relief constitute an order issued pursuant to section 109(c) of the Federal Mine Safety and Health Act of 1977, P.L. 91-173. United States Fuel is in violation of this order by failing to comply after Albert DiCaro submitted the necessary medical release stipulated in the order.
~1006
On January 10, 1984, the citation was modified as follows:

Citation No. 2072262 is hereby modified to reflect that a violation of section 105(c)(3) has occurred instead of section 109(c) as stated in the citation. Attorneys for the Department of Labor have also deemed that the citation be extended until January 13, 1984. Notice of the extension was also given to William Vrettos by phone.

STATUTORY PROVISIONS

Pertinent parts of the statute are as follows:

First, in section 113, which creates the Commission:

• • • • • • • • • *

      (c) The Commission is authorized to delegate to
      any group of three or more members any or all of
      the powers of the Commission, except that two
      members shall constitute a quorum of any group
      designated pursuant to this paragraph.
      (d)(1) An administrative law judge appointed by
      the Commission to hear matters under this Act
      shall hear, and make a determination upon, any
      proceeding instituted before the Commission and
      any motion in connection therewith, assigned to
      such administrative law judge by the chief
      administrative law judge of the Commission or by
      the Commission, and shall make a decision which
      constitutes his final disposition of the
      proceedings. The decision of the administrative
      law judge of the Commission 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
      by the Commission in accordance with paragraph
      (2). An administrative law judge shall not be
      assigned to prepare a recommended decision under
      this Act.
      (2) The Commission shall prescribe rules of
      procedure for its review of the decisions of
      administrative law judges in cases under this Act
      which shall meet the following standards for
      review:
      (A)(i) Any person adversely affected or aggrieved
      by a decision of an administrative law judge, may
      file and serve a petition for discretionary review
      by the Commission of such decision within 30 days
      after the issuance of such decision. Review by the
      Commission shall not be a matter of right but of
      the sound discretion of the Commission.
      (ii) Petitions for discretionary review shall be
      filed only upon one or more of the following
      grounds:
       (I) A finding or conclusion of material fact is not
      supported by substantial evidence.
      (II) A necessary legal conclusion is erroneous. (III) The decision is contrary to law or to the duly
      promulgated rules or decisions of the Commission.
      (IV) A substantial question of law, policy or discretion is
      involved.
      (V) A prejudicial error of procedure was committed. (iii) Each issue shall be separately numbered and plainly and concisely stated, and shall be supported by detailed citations to the record when assignments of error are based on the record, and by statutes, regulations, or principal authorities relied upon. Except for good cause shown, no assignment of error by any party shall rely on any question of fact or law upon which the administrative law judge
      ~1007
      had not been afforded an opportunity to pass.
      Review by the Commission shall be granted
      only by affirmative vote of two of the Commissioners
      present and voting. If granted, review shall be
      limited to the questions raised by the petition.
      (B) At any time within 30 days after the issuance
      of a decision of an administrative law judge, the
      Commission may in its discretion (by affirmative
      vote of two of the Commissioners present and
      voting) order the case before it for review but
      only upon the ground that the decision may be
      contrary to law or Commission policy, or that a
      novel question of policy has been presented. The
      Commission shall state in such order the specific
      issue of law, Commission policy, or novel question
      of policy involved. If a party's petition for
      discretionary review has been granted, the
      Commission shall not raise or consider additional
      issues in such review proceedings except in
      compliance with the requirements of this
      paragraph.

• • • • • • • • *

      (The provisions of section 557(b) of title 5,
      United States Code, with regard to the review
      authority of the Commission are hereby expressly
      superseded to the extent that they are
      inconsistent with the provisions of subparagraphs
      (A), (B), and (C) of this paragraph.)
      * * * * * * * * * *
      Second, in section 106, which provides for judicial
      review:

      Sec. 106. (a)(1) Any person adversely affected or
      aggrieved by an order of the Commission issued
      under this Act may obtain a review of such order
      in any United States court of appeals for the
      circuit in which the violation is alleged to have
      occurred or in the United States Court of Appeals
      for the District of Columbia Circuit, by filing in
      such court within 30 days following the issuance
      of such order a written petition praying that the
      order be modified or set aside.

• • • • • • • • • *

    Finally, in section 105(c), the anti-discrimination
    section:

• • • • • • • • • *

      (c)(1) No person shall discharge or in any manner
      discriminate against or cause to be discharged or
      cause discrimination against or otherwise
      interfere with the exercise of the statutory
      rights of any miner, representative of miners or applicant for employment in any coal or other mine subject to this Act because such miner, representative of miners or applicant for employment has filed or made a complaint under or related to this Act, including a complaint notifying the operator or the operator's agent, or the representative of the miners at the coal or other mine of an alleged danger or safety or health violation in a coal or other mine, or because such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential transfer under a standard published pursuant to section 101 or because such miner, representative of miners or applicant for employment has instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right afforded by this Act.
      ~1008
      (2) Any miner or applicant for employment or
      representative of miners 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. If
      upon such investigation, the Secretary determines
      that the provisions of this subsection have been
      violated, he shall immediately file a complaint
      with the Commission, with service upon the alleged
      violator and the miner, applicant for employment,
      or representative of miners alleging such
      discrimination or interference and propose
      an order granting appropriate relief. The Commission
      shall afford an opportunity for a hearing (in
      accordance with section 554 of title 5, United
      States Code, but without regard to subsection
      (a)(3) of such section) and thereafter shall issue
      an order, based upon findings of fact, affirming,
      modifying, or vacating the Secretary's proposed
      order, or directing other appropriate relief. Such
      order shall become final 30 days after its
      issuance. The Commission shall have authority in
      such proceedings to require a person committing a
      violation of this subsection to take such affirmative
      action to abate the violation as the Commission deems
      appropriate, including, but not limited to, the
      rehiring or reinstatement of the miner to his
      former position with back pay and interest. The
      complaining miner, applicant, or representative
      of miners may present additional evidence on his
      own behalf during any hearing held pursuant to his
      paragraph.
      (3) Within 90 days of the receipt of a complaint
      filed under paragraph (2), the Secretary shall
      notify, in writing, the miner, applicant for
      employment, or representative of miners of his
      determination whether a violation has occurred. If
      the Secretary, upon investigation, determines that
      the provisions of this subsection have not been
      violated, the complainant shall have the right,
      within 30 days of notice of the Secretary's
      determination, to file an action in his own behalf
      before the Commission, charging discrimination or
       interference in violation of paragraph (1). The
      Commission shall afford an opportunity for a
      hearing (in accordance with section 554 of title
      5, United States Code, but without regard to
      subsection (a)(3) of such section), and thereafter
      shall issue an order, based upon findings of fact,
      dismissing or sustaining the complainant's charges
      and, if the charges are sustained, granting such
      relief as it deems appropriate, including, but not
      limited to, an order requiring the rehiring or
      reinstatement of the miner to his former position
      with back pay and interest or such remedy as may
      be appropriate. Such order shall become final 30
      days after its issuance. Whenever an order is
      issued sustaining the complainant's charges under
      this subsection, a sum equal to the aggregate
      amount of all costs and expenses (including
      attorney's fees) as determined by the Commission
      to have been reasonably incurred by the miner,
      applicant for employment or representative of
      miners for, or in connection with, the institution
      and prosecution of such proceedings shall be
      assessed against the person committing such
      violation. Proceedings under this section shall be
      expedited by the Secretary and the Commission. Any
      order issued by the Commission under this
      paragraph shall be subject to judicial review in
      accordance with section 106. Violations by any
      person of paragraph (1) shall be subject to the
      provisions of sections 108 and 110(a).
      * * * * * * * * * *
      ~1009
      OPINION

  The statutory distinction between temporary and final
  reinstatement orders is significant in considering the issue here. Section 105(c)(2) provides that a temporary reinstatement order "shall order immediate reinstatement . . . pending final order on the complaint." In contrast, section 105(c)(3), which authorizes permanent reinstatement orders, states, "such order shall become final 30 days after its issuance." In addition, the Commission's Rules provide that an administrative law judge's temporary reinstatement order "shall be effective upon receipt or actual notice" (29 C.F.R 2700.44(a)), but do not contain such a provision for a judge's order granting permanent reinstatement. [ note, also, that in Gooslin v. Kentucky Carbon Corp., 3 FMSHRC 1707, 1711 n. 5 (1981), in directing review of a judge's decision, the Commission specified that his temporary reinstatement order was to "remain in effect pending our decision" on review. This type provision does not appear in the Commission's review orders in cases in which the judge did not issue a temporary reinstatement order but, on the merits, did issue a permanent reinstatement order.

  Considering the statutory language, and the Commission's
  rules and practices, I conclude that reference to an "order" of the Commission in section 105(c)(3) means a final order of the Commission and that an order of an administrative law judge does not become a final order of the Commission until 40 days have passed without the Commission ordering review of the judge's order. On the date of the citation, January 10, 1984, my order of December 15, 1983, was not a final order of the Commission because 40 days had not elapsed since its issuance. Also, since not even 30 days had elapsed since its issuance, even if "order" as used in section 105(c)(3) meant a judge's order (rather than a final order of the Commission, as I hold), the December, 1983 order had not become effective under section 105(c)(3).

                    CONCLUSIONS OF LAW
  

  1. My order of December 15, 1983, was not a final order of
     the Commission as of January 10, 1984, and was not effective as an enforceable order as of that date.

  2. The Secretary's citation issued on January 10, 1984, is
     invalid because the December 15, 1983 order was not enforceable on January 10, 1984.
     ~1010
     ORDER

  WHEREFORE IT IS ORDERED that Citation No. 2072262, issued
  and modified on January 10, 1984, is hereby VACATED.

                      William Fauver
                      Administrative Law Judge