FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Ave. NW, Suite 520N

TELEPHONE: (202)434-9958 / FAX: (202)434-9949

February 6, 2023 

 

ORDER OF TEMPORARY REINSTATEMENT

Before: Judge Sullivan 

Pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 

(“Act”), 30 U.S.C. § 801, et. seq., and 29 C.F.R. § 2700.45, on December 19, 2022, the 

Secretary of Labor (“Secretary”) filed an Application for Temporary Reinstatement of miner 

Robert M. Carlucci (“Complainant”) to his former position with Spartan Mining Company, 

LLC (“Respondent”) at its Road Fork No. 52 Mine. The application’s certificate of service 

states that it was served on Respondent by electronic mail that same day, and otherwise satisfies 

the procedural requirements of Commission Procedural Rule 45(b) in that, among other things, 

it timely “states the Secretary’s finding that the miner’s discrimination complaint was not 

frivolously brought[,] accompanied by an affidavit setting forth the Secretary’s reasons 

supporting his finding[,] and includes a copy of the miner’s complaint to the Secretary . . . .” 29 

C.F.R. § 2700.45(b).1

According to Commission Rule 45(c), a request for hearing must be filed within 10 days 

following a respondent’s receipt of the Secretary’s application for temporary reinstatement. 29 

C.F.R. § 2700.45(c). Respondent here filed no such request by the December 29, 2022 due 

date. Rather, upon assignment of this matter to the undersigned on January 5, 2023, the parties 

requested time in which to negotiate and submit an agreement under which the Complainant 

would receive economic reinstatement in lieu of immediately returning to work for Respondent. 

On February 3, 2023, the Temporary Economic Reinstatement Agreement (“Agreement”), 

signed by the Complainant and representatives of the Secretary and the Respondent, was

submitted in this case.

Despite the lack of a request for a hearing and the filing of the Agreement, I am required 

to review the contents of the Secretary’s application to determine whether the complaint in this 

instance “was not frivolously brought.” 29 C.F.R. § 2700.45(c).

1 The Discrimination Complaint (“Complaint”) filed with the Secretary’s Mine Safety and 

Health Administration by the Complainant is dated October 31, 2022, thus well within 60 days 

of the Complainant’s October 18 termination of employment. See 30 U.S.C. § 815(c)(2).

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of ROBERT M. CARLUCCI, 

 Complainant, 

 v. 

SPARTAN MINING COMPANY, LLC, 

 Respondent

TEMPORARY REINSTATEMENT

PROCEEDING

Docket No. WEVA 2023-0110 

MSHA Case No. PINE-CD 2023-01 

Mine: Road Fork No. 52 

Mine ID: 46-09522
2 

Section 105(c)(1) of the Mine Act provides that “[n]o person shall discharge . . . any 

miner . . . because such miner . . . has filed or made a complaint under or related to this Act, 

including a complaint notifying the operator . . . of an alleged danger or safety or health violation 

in a . . . mine . . . .” 30 U.S.C. § 815(c)(1). In the Application, as supported by his investigator’s 

affidavit, the Secretary alleges the following to establish the Complaint as having been not 

frivolously brought under section 105(c)(1) & (2):

(1) After working at the mine for approximately 13 months at various positions, including 

roof bolter, the Complainant, during his October 18, 2022 shift, took a shuttle car out of 

service due to its brakes failing during his operation of it, and notified mine management; 

(2) Respondent’s agents immediately took issue with Complainant’s actions, including 

Section Foreman Dale Gibson telling Complainant that he would permit him to only 

“operate a shovel” on the section. After Complainant asked for a ride to the surface to 

speak with the safety department or mine superintendent about these matters, on the way 

out of the mine Evening Shift Foreman Dickie Lester informed him that his leaving the 

mine would be considered tantamount to quitting his job there. 

(3) Upon Complainant’s arrival at work the following day, Safety Manager Scott Toler 

informed him that Respondent considered his traveling to the surface the prior day as a 

termination of his employment.

The Respondent having not opposed the Application, I agree with the Secretary that it 

establishes the Complaint to have been “not frivolously brought” in this instance. See Jim 

Walters Res., Inc. v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990) (relying upon Mine Act 

legislative history and the Supreme Court’s treatment of a similar whistleblower protection 

provision to conclude that the “not frivolously brought” standard is the equivalent of a 

“reasonable cause to believe” standard and is met when a miner’s “complaint appears to have 

merit”). 

In addition, I have reviewed the terms of the Agreement and find that they do not appear 

to reduce Complainant’s rights under section 105(c)(2). The Agreement shall remain on file in 

this proceeding. I reach no conclusion beyond that regarding the merits of the Complaint.

WHEREFORE, the Application is GRANTED, and it is ORDERED that reinstatement shall 

remain in effect until such time that the Secretary provides notification that he will not be 

bringing a discrimination case in chief on behalf of the Complainant,2

 or such a case is brought 

and there is a final determination on it by decision, approval of settlement, or other order of this 

2 Section 105(c)(3) of the Act directs the Secretary to notify a complainant whether a section 

105(c) violation occurred within 90 days of the filing of a complaint, which in this instance 

would have been no later than Monday, January 30, 2023. 30 U.S.C. § 815(c)(3). The 

Secretary’s representative is hereby ORDERED to provide an update regarding the status of the 

Secretary’s investigation of the Complaint no later than seven days from the date of this Order.
3 

court or the Commission. I retain jurisdiction over this temporary reinstatement proceeding for 

such purposes as are necessary, as provided by 29 C.F.R. § 2700.45(e)(4).

 

John T. Sullivan

 Administrative Law Judge

Distribution: 

Karen Barefield, Office of the Solicitor, U.S. Department of Labor, 201 12th Street South-Suite 

401, Arlington, Virginia 22202-5450 (barefield.karen@dol.gov) 

Jonathan R. Ellis, Steptoe & Johnson, PLLC, P.O. Box 1588, Charleston, WV 25326

(Jonathan.Ellis@Steptoe-Johnson.com) 

Robert Carlucci, PO Box 421, Matheny, West Virginia 24860