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[DOCID: f:penn99129.wais]

 
READING ANTHRACITE COMPANY
September 7, 1999
PENN 99-129-D

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006

                        September 7, 1999

SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
  on behalf of LEONARD BERNARDYN :
                                 :
          v.                     : Docket Nos. PENN 99-129-D
                                 :
                                 :             PENN 99-158-D
READING ANTHRACITE COMPANY       :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
        Commissioners

                              ORDER

BY THE COMMISSION:

     In this discrimination proceeding arising under the 
Federal Mine Safety and Health Act of 1977, 30 U.S.C.  801 
et seq. (1994) ("Mine Act" or "Act"), the Secretary of Labor 
has challenged, inter alia, Administrative Law Judge Avram
Weisberger's order dissolving his previously issued order
granting the temporary reinstatement of Leonard Bernardyn. 
For the reasons that follow, we vacate the judge's dissolution 
order.  

     On November 12, 1998, Bernardyn filed a discrimination
complaint with the Department of Labor's Mine Safety and 
Health Administration alleging that he had been discharged by 
Reading Anthracite Company ("Reading") in violation of section 
105(c) of the Mine Act, 30 U.S.C.  815(c).  Mot. at 3-4. 
On March 19, 1999, the judge issued an order granting the 
Secretary's application to temporarily reinstate Bernardyn as 
a haulage truck driver, the position he held prior to his 
termination.  Id. at 4; 21 FMSHRC 339, 342 (Mar. 1999) (ALJ).  
On July 26, the judge issued a decision dismissing the 
Secretary's complaint against Reading.  21 FMSHRC 819, 824 
(July 1999) (ALJ).  In his decision, the judge also "ordered 
that the Order of Temporary Reinstatement, issued on March 19, 
1999, . . . is hereby dissolved."  Id. (emphases removed). 
Reading discharged Bernardyn on August 2, 1999.  Mot. at 4.

     On August 24, 1999, the Secretary filed with the Commission
a petition for discretionary review of the judge's decision
vacating Bernardyn's complaint together with a "Motion to Vacate
Portion of Judge's Decision Dissolving Order of Temporary
Reinstatement or, in the Alternative, for Stay of Judge's
Decision Dissolving Order of Temporary Reinstatement."  The
Secretary submits that the judge's order dissolving the order 
of temporary reinstatement is legally invalid. Mot. at 5. She
explains that the judge did not have authority under the Mine 
Act to issue such an order because there has not yet been a 
final determination by the Commission on the merits of 
Bernardyn's complaint.  Id. at 5-8.  Alternatively, the 
Secretary argues that, under criteria the Commission has 
established, a stay of the judge's order dissolving the order 
of temporary reinstatement pending the Commission's review of 
the underlying discrimination complaint is appropriate. Id. 
at 8-16.

     On August 26, 1999, Reading filed an opposition to the
Secretary's motion for relief from the judge's dissolution 
order. Reading asserts that, to the extent the Secretary's 
motion should be construed as the equivalent of a request for 
an order granting or denying temporary reinstatement, such a 
request is time-barred under Commission Procedural Rule 45(f). 
R. Reply at 2. Reading also submits that none of the 
Commission's criteria for evaluating stay requests supports 
the Secretary's motion to stay the judge's order dissolving 
the temporary reinstatement order. Id. at 7-8. The operator 
also argues that the result should not be harsher for Reading 
under the present circumstances than it would be when a 
temporary reinstatement order is dissolved pursuant to 
Commission Procedural Rule 45(g) due to the Secretary's decision 
not to proceed with a complaint.  Id. at 5. Reading also filed 
an opposition to the Secretary's petition for discretionary 
review.  R. Br. in Resp. to PDR.  The Commission granted review 
of the judge's decision on August 27, 1999.  

     Section 113(d)(2)(A) specifies that review of a 
judge's  decision may be obtained by filing a petition for 
discretionary review, which must set forth the issues being 
appealed. 30 U.S.C.  823(d)(2)(A).  We note at the outset 
that the Secretary's motion to vacate or stay the judge's 
dissolution order was filed on the same day as the petition 
for discretionary review of the judge's determination on the 
merits of the discrimination complaint.  Furthermore, the 
motion makes explicit reference to the petition.  Mot. at 4, 
9. Thus, since the Secretary's motion challenges that portion 
of the judge's decision dissolving his temporary reinstatement 
order, we treat it as part of the Secretary's granted petition 
for discretionary review.[1]  See Walter Kuhl & Son, 16 FMSHRC 
1405 (July 1994) (construing motion filed by Secretary as 
petition for discretionary review). Accordingly, the issue 
of the dissolution of the temporary reinstatement order is 
properly before us.  See Rock of Ages  Corp., 20 FMSHRC 106, 
115 n.11 (Feb. 1998) (broadly construing petition for 
discretionary review), aff'd in part on other grounds, 170 
F.3d 148 (2d Cir. 1998); Fort Scott Fertilizer-Cullor, Inc., 
19 FMSHRC 1511, 1514 & n.4 (Sept. 1997) (same).  

     Regarding Reading's suggestion that the Secretary's
challenge to the judge's dissolution order should be rejected 
as untimely under Commission Procedural Rule 45(f), 29 C.F.R. 
 2700.45(f),[2] we note that Rule 45(f) covers only Commission
review of a judge's initial grant or denial of a temporary
reinstatement application.  By contrast, in the instant matter,
the temporary reinstatement application was already granted by
order dated March 19.  The issue presently before us is the
Secretary's challenge to the judge's dissolution of his
previously issued reinstatement order, a subject not covered by
Rule 45(f).  The current matter falls outside the scope of Rule
45(f), and we therefore reject Reading's timeliness argument.  

     Section 105(c)(2) of the Mine Act states that, once it has
been determined that an application for temporary reinstatement
has not been frivolously brought, the Commission, "shall order
the immediate reinstatement of the [complaining] miner pending
final order on the complaint."  30 U.S.C.  815(c)(2) (emphasis
added).  Section 113(d)(1) of the Act states:  "The decision of
the administrative law judge . . . 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 . . . ."  30 U.S.C.  824(d)(1) 
(emphasis added).  Therefore, the language of the Mine Act 
requires that a temporary reinstatement order remain in 
effect while the Commission reviews the judge's decision.  

     In the instant matter, when the judge purportedly 
dissolved the temporary reinstatement order, the time had not 
yet passed for the Commission to review the judge's decision 
on the merits of Bernardyn's discrimination complaint.  
Accordingly, the judge's decision had not yet become a final 
Commission decision. 30 U.S.C.  824(d)(1).  Thus, the judge 
lacked statutory authority to dissolve the temporary 
reinstatement order concurrently with his discrimination 
decision or at any time before we could direct review. Since 
we have granted the Secretary's petition for review of the 
judge's determination on the merits, the judge's dismissal 
of the complaint will not become a final decision under 
section 113(d)(1) of the Act until we review and issue a
decision upon that matter.  Accordingly, the judge's 
purported dissolution of the temporary reinstatement order 
is legally invalid. 

     We also find unpersuasive Reading's suggestion that it 
would be inequitable to reinstate Bernardyn following the 
judge's dissolution order, when Commission Procedural Rule 
45(g), 29 C.F.R.  2700.45(g)[3], permits dissolution of a 
temporary reinstatement order upon the Secretary's decision 
not to proceed on the complaint.  Rule 45(g) provides for the 
judge's dissolution of a temporary reinstatement order if 
the Secretary determines that no discrimination occurred. 
29 C.F.R.  2700.45(g).  This is a "gap filling" provision 
designed to deal with a situation not addressed by the statute 
C the status of a temporary reinstatement order following a 
determination by the Secretary that there has been no violation 
of section 105(c).  In the instant matter, the Secretary 
determined that discrimination had occurred and filed a 
complaint on behalf of Bernardyn.  Under these circumstances, 
the statutory language of section 105(c)(2), which provides 
for maintenance of the temporary reinstatement order pending 
final determination on the merits of the complaint, must be 
followed.[4] 

     We find the facts and circumstances that led the 
Secretary to move for the dissolution or stay of the judge's 
order unusual. Indeed, the issue of the propriety of such an 
order is one of first impression.  Unlike an appeal of a 
temporary reinstatement order taken when the order is first 
issued, see 29 C.F.R.  2700.45(f), at issue in this case is 
the ultimate fate of such a temporary reinstatement order at 
the close of proceedings before one of our judges.  Although
 we dispose of this issue in our ruling today, we recognize 
that Bernardyn's reinstatement imposes additional obligations 
on the parties.  Therefore, we will order expedited briefing 
in this case according to the following schedule:  the 
Secretary's brief shall be filed no later than September 21, 
1999.  Reading's response brief shall be filed no later than 
25 days after service of the Secretary's brief.  The Secretary 
may file a reply brief within 5 days of service of Reading's 
response brief.  All briefs shall be filed and served by 
facsimile.[5]

     For the foregoing reasons, we vacate the judge's order
dissolving his previously issued temporary reinstatement order 
of Bernardyn, and order the immediate temporary reinstatement 
of the complainant pending a final Commission decision on the 
complaint.
                              
                                                                                
                              Mary Lu Jordan, Chairman  
                                                                                                                                       
                              Marc Lincoln Marks, 
                                Commissioner
                                                                                                                                      
                              James C. Riley, Commissioner
                                                                                                                                    
                              Theodore F. Verheggen, 
                                Commissioner
                                                                                                                                    
                              Robert H. Beatty, Jr., 
                                Commissioner

Distribution
   By facsimile and first class mail

Martin J. Cerullo, Esq.
Cerullo, Datte & Wallbillich, P.C.
P.O. Box 450
Pottsvile, PA 17901

Colleen Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA  22203

Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

**Footnotes:**

     [1]   The decision issued by the judge which is the 
subject of the Secretary's PDR affected both the temporary 
reinstatement previously granted by the judge in Docket No. 
PENN 99-129-D and the underlying discrimination issue in 
Docket No. PENN 99-158-D, effectively consolidating those 
dockets. 

     [2]   Commission Procedural Rule 45(f) provides that
"[r]eview by the Commission of a Judge's written order 
granting or denying an application for temporary reinstatement 
may be sought by filing with the Commission a petition for 
review with supporting arguments within 5 days following 
receipt of the Judge's written order." 29 C.F.R.  2700.45(f).

     [3]   Commission Procedural Rule 45(g) provides, in
pertinent part:  "If, following an order of temporary
reinstatement, the Secretary determines that the provisions 
of section 105(c)(1), 30 U.S.C. 815(c)(1), have not been 
violated, the Judge shall be so notified and shall enter an 
order dissolving the order of reinstatement."  29 C.F.R. 
 2700.45(g).

     [4]   In light of our disposition based on the statutory
language of sections 105(c)(2) and 113(d)(1), we need not 
address the Secretary's alternative argument requesting a stay 
of the judge's order. 

     [5]   Commissioner Beatty agrees in principle with his
colleagues regarding the need to expedite briefing in this 
case. He would, however, expand this principle to direct 
expedited briefing on review of a judge's decision on the 
merits before the Commission in all cases in which there is 
an underlying temporary reinstatement order. He also believes 
that the Commission should issue its ruling no later than
 60 days after the close of briefing in such cases.