**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

1331 PENNSYLVANIA AVE.,N.W., SUITE 520N

WASHINGTON, DC20004-1710

TELEPHONE: 202-434-9900/ FAX: 202-434-9949

 

September 24, 2021

 
| SECRETARY OF LABOR, U.S.  DEPARTMENT OF LABOR on behalf of DARCY WHITE,

               Complainant,

 

                        v.

 

 

PRAIRIE STATE GENERATING CO.,

               Respondent.                                                    |   |   | TEMPORARY  REINSTATEMENT

PROCEEDING

 

Docket No. LAKE 2021-0158

MSHA Case No. VINC-CD-2021-03

 

 

 

Mine: Lively Grove Mine

Mine ID: 11-03193 |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

 

**ORDER DENYINGRESPONDENT’S**

**MOTION TODISSOLVE TEMPORARY ECONOMIC REINSTATEMENT**

 

            Pursuantto Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“MineAct” or “Act”), 30 U.S.C. §801, *et. seq.*, and 29 C.F.R. §2700.45, theSecretary of Labor (“Secretary”) on September 27, 2017, filed an Applicationfor Temporary Reinstatement of miner Darcy White (“Darcy” or “Complainant”) to herformer position with Respondent Prairie State Generating Co., (“Prairie State”or “Respondent”) at the Lively Grove Mine pending final hearing and dispositionof the case. 

 

PROCEDURALHISTORY AND PARTY CONTENTIONS

 

            OnJune 30, 2021, the Respondent filed a timely request for hearing, as well as aMotion to Dismiss Application for Temporary Reinstatement for Failure to JoinRequired Party or to Join Required Party. In its motion, Respondent stated thatComplainant was employed by Custom Staffing, a staffing agency through which Respondentsourced temporary contract workers, as needed. Accordingly, Respondent arguedthat Custom Staffing was a required party under Fed.R.Civ.P. 19(b), because CustomStaffing was necessary to effect a remedy. 

 

            TheSecretary opposed Respondent’s motion.  The Secretary argued that preliminaryinvestigation revealed no evidence that Custom Staffing engaged in anydiscriminatory conduct, and that the complete relief sought required only PrairieState as Respondent.

 

            Theundersigned deferred ruling on Respondent’s motion prior to hearing, which convenedvia Zoom videoconference on July 20, 2021. After the hearing opened, theparties requested to meet in breakout rooms to engage in settlementdiscussions. Following several attempts, the parties reached agreement on materialterms of settlement.  On July 27, 2021, the parties filed a Joint Motion toApprove Economic Reinstatement. On July 29, 2021, this administrative tribunal approvedthe Joint Motion and ordered that within 30 days the Secretary either complete hisinvestigation and make a determination on the complaint, or provide a detailed explanationwhy he could not do so.  

 

            OnAugust 25, 2021, the Secretary filed a motion stating that the Secretary wouldnot be able to complete his investigation within 30 days of the undersigned’sOrder due to new developments in the case. Specifically, the Complainant filedan Addendum on August 18, 2021, naming Custom Staffing as an additional Respondentin her discrimination complaint. 

 

            OnAugust 31, 2021, the Respondent filed a Motion to Dissolve Order Granting JointMotion to Approve Temporary Economic Reinstatement Motion and Agreement. Inthis motion, Respondent argued by analogy to the Commission’s decision in *LongBranch Energy*, 34 FMSHRC 1984 (Aug. 2021), that this tribunal should adopta test that would balance the Secretary’s need to proceed beyond the deadlinewith the prejudice the operator would face to determine that the TemporaryEconomic Reinstatement should be dissolved for failure to complete the investigationof this expedited matter within the statutory 90-day period referenced insection 105(c)(3), or the additional 30-day period encouraged by theundersigned. 

 

            Withrespect to the first step of Respondent’s proposed test—the Secretary’s burdenof establishing adequate cause—Respondent argues that the Secretary has failedto establish adequate cause for not completing its investigation into themerits of Complainant’s case. Specifically, Respondent argues that Complainantis late in filing any Addendum and that any additional investigation into an additionalrespondent should not impact the completion of the Secretary’s investigation ofPrairie State. Furthermore, Respondent argues that the Secretary and Complainant“disclaimed that Custom Staffing was a proper respondent when that issue waspending before the Court.” *Resp. Mot.* at ¶25. Respondent also allegesthat the Complainant’s Addendum amounts to a “willful delay” and is the resultof “bad faith.” *Resp. Mot.* at ¶26, 27. 

 

            Withrespect to the second step of Respondent’s proposed test—the operator’s burdenof showing actual prejudice arising from the delay—Respondent argues (1) thatthe continuation of its requirement to pay Complainant is “manifestly prejudicial,”and (2) that because the Secretary has provided no end date for the investigation,he has unduly delayed the matter such that it constitutes prejudice against Respondent. 

 

            Ina brief footnote, Respondent suggested in the alternative that if the undersignedwas disinclined to dissolve the Order Granting Temporary Economic Reinstatement,it should toll the Order during the period of investigation.

 

            OnSeptember 7, 2021, prior to the Secretary or Complainant submitting theirresponses to the Respondent’s motion, the undersigned convened a conference call,wherein the undersigned noted certain strengths in Respondent’s motion and askedwhy it should not be granted. 

 

            OnSeptember 13, 2021, the Secretary filed its Opposition to Respondent’s Motionfor Dissolution, wherein it argued that Respondent “asks for a severe andextraordinary remedy without citing any case law in support of its request.” *Sec’yResp.* at ¶7. The Secretary argued that the only grounds recognized by theCommission to dissolve a Temporary Reinstatement are if the Secretary’sinvolvement in the case ends, and it can be tolled only if there is no longerwork at the mine for the Complainant. Neither of these circumstances apply to theinstant case, so therefore it may not be tolled or dissolved. 

 

            TheSecretary further argues that the Respondent’s proposed test based on *Long BranchEnergy*, 34 FMSHRC 1984, is inappropriate because civil penalty cases aredifferent from Temporary Reinstatement cases in crucial ways. Congress madeclear its intention that employers should bear the greater burden of risk in a TemporaryReinstatement proceeding. As a result, the Commission has never applied *LongBranch* to a Temporary Reinstatement case.

 

            TheSecretary also argued that even if this tribunal were to adopt Respondent’s proposedbalancing test, Respondent has not shown either undue delay or actualprejudice. Contrary to the Respondent’s assertions, the Secretary states that therewas no “bad faith” in the instant case. Complainant was not represented by counselwhen she filed her initial complaint, and it is entirely reasonable that shewould amend her complaint after retaining and consulting with counsel. Furthermore,the Secretary’s earlier position opposing Custom Staffing as a necessary partyonly stated that it was not necessary to effectuate the desired remedy. However,the issue presented by Complainant’s Addendum is that Custom Staffing was partof the discrimination alleged. The Secretary contends that Respondentimproperly conflates these two issues in order to arrive at its conclusion ofundue delay.

 

            TheSecretary further argues that Respondent has not made any showing of actualprejudice. The requirement to pay a miner under Temporary Reinstatement is notprejudice; it “is the nature of temporary reinstatement.” *Sec’y Resp.* at¶13. Citing the Commission’s decision in *Secretary ex rel. Hale v. 4-A CoalCo., Inc*., the Secretary argues that the Respondent’s reliance on inconvenienceor cost is misplaced, because prejudice means a “deprivation of a meaningful opportunityto defend against the claim.” 8 FMSHRC 905, 908 (June 1986). The Secretaryargues that the inconvenience that Respondent relies on is entirely speculativebecause it rests on what may occur if the investigation proceeds indefinitely. Furthermore,he argues that the decision to choose temporary economic reinstatement in lieuof actual reinstatement was the Respondent’s, and it cannot claim prejudice dueto its agreement to forgo the value of Complainant’s labor.  

 

            OnSeptember 13, 2021, the Complainant, through counsel, similarly submitted aResponse to Respondent’s Motion, which incorporated the arguments made by theSecretary. Additionally, Complainant’s counsel cavils that the September 7,2021 conference call was inappropriate because it was essentially an off-the-recordsurprise oral argument that may inform the undersigned’s decision prior toComplainant or the Secretary having submitted written responses. 

 

            TheComplainant’s counsel strenuously objected to Respondent’s accusations of “willfuldelay” and “bad faith” in filing the “eleventh-hour” Addendum to White’sdiscrimination complaint. He explained that the timing of the filing of the addendumwas due to the heavy caseload that Complainant’s counsel is currently handling,as well as research on the “cat’s paw” theory of liability.

 

            OnSeptember 20, 2021, the Respondent filed a Reply to the Complainant’s andSecretary’s Responses, wherein it argued that the Secretary did not establishor show adequate cause for the delay. Respondent questioned the timing of theSecretary’s inclusion of Custom Staffing, and ultimately why adding this party impactsthe conclusion of the investigation of Prairie State.

 

DISPOSITION

 

            Whilethe undersigned is sympathetic to Respondent’s frustration with the Secretary’scontinued inability to conclude its investigation within the timeframe statedin the Act, the Motion to Dissolve or Toll the Temporary Economic Reinstatementmust be denied. 

 

            Congressviewed the discrimination provision of the Mine Act as having a central place inensuring the health and safety of miners. In the Senate Report accompanying the1977 Mine Act, the Committee stated this sentiment clearly: 

 

Ifour national mine safety and health program is to be truly effective, minerswill have to play an active part in the enforcement of the Act. The Committeeis cognizant that if miners are to be encouraged to be active in matters ofsafety and health, they must be protected against any possible discrimination whichthey might suffer as a result of their participation.

 

S. Rep. No. 95-181 at 34(1977), *reprinted in* Senate Subcomm. on Labor, Comm. on HumanRes., 95th Cong., *Legislative History of the Federal Mine Safety andHealth Act of 1977*, at 623-624 (1978). Indeed, it was for this reason thatCongress explained that the scope of protected activities should be “broadly”interpreted and that the Section be “construed expansively.” *Id.*However,Congress understood that a right with a delayed remedy would be hollow, so itincluded a provision for temporary reinstatement of the miner. (“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.” *Id.* at 35.) Though Congress included shorttimeframes for the investigation and complaint, it was abundantly clear that nominer should suffer as a result of delay, stating, “[i]t should be emphasized,however, that these time frames are not intended to be jurisdictional. *Thefailure to meet any of them should not result in the dismissal of thediscrimination proceedings; the complainant should not be prejudiced because ofthe failure of the Government to meet its time obligations*.” *Id.* at36 (emphasis added). Based on the Act and congressional intent, neither a judgenor the Commission can lightly dissolve or toll a temporary reinstatement. 

 

            While the lawgives the Secretary a great deal of flexibility in meeting its deadlines, itdoes not allow for an investigation to proceed indefinitely. By its verynature, a temporary reinstatement was intended to be temporary, and evidence ofundue delay by the Secretary, along with actual prejudice to the Respondent,may be grounds for a court to take extraordinary action. Such an inquiry must closelyexamine the facts of the case to determine if extraordinary action inwarranted. In this case at this time, even acceptingRespondent’s proposed *Long Branch* test, which balances the Secretary’sneed to proceed against the prejudice faced by the Respondent, a dissolution ortolling of the Order Granting Temporary Economic Reinstatement is not yetwarranted. 

 

            TheSecretary justified its need for additional time in this case by informing thistribunal that on August 18, 2021, Complainant filed an Addendum to herdiscrimination complaint naming Custom Staffing as an additional Respondent toher complaint. *Sec’y Response to TR Order* at ¶5. Complainant had notreceived legal advice when she filed her initial complaint and did notunderstand the legal distinctions between Prairie State and Custom Staffing. *Sec’yOpposition to Resp. Motion* at ¶3. The Secretary has confirmed that within aweek of receiving this Addendum, it began requesting documents and interviewsfrom Custom Staffing and is diligently investigating the allegations. *Id.*at ¶6.

 

            TheSecretary should have concluded his investigation into this expedited case in amore timely manner, but the employment relationship in this case is morecomplicated than in most instances. This has led to disagreements over whetherthe Complainant’s employment was actually terminated because she remainedemployed for Custom Staffing, even after being removed from the Prairie Stateassignment. *Resp. Mot. To Dismiss* at ¶3-11. There were disagreements onwhether a remedy could be effectuated by Prairie State alone, because thecontract between Prairie State and Custom Staffing appeared to be silent onwhether Prairie State could recall someone for a temporary work assignment. *Resp.Reply to Sec’y Opposition*. These are not issues that arise in most discriminationcases. And while Respondent is free to structure its business and employmentrelationships in whatever manner it chooses, its complaint about delay is lessconvincing when a complicated employment relationship takes longer to investigate.

 

            With regards to questionof prejudice, Respondent argues that it is prejudiced in two ways. The first isthat it must continue to pay Complainant during the course of theinvestigation, and the second is “the potentially infinite delay proposed bythe Secretary.” *Resp. Motion to Dissolve TR* at ¶21, 28. Both of thesereasons fail to demonstrate actual prejudice. In considering whether a delay bythe Secretary in making a discrimination determination has resulted inprejudice such that a dismissal may be appropriate, the Commission has heldthat the Respondent must show that “such delay prejudicially deprives a respondentof a meaningful opportunity to defend the claim.” *Sec’y ex rel. Hale v. 4-ACoal Co. Inc*., 8 FMSHRC 905, 908 (June 1986).

 

The firstreason that Respondent invokes to establish prejudice is true in every temporaryreinstatement case and cannot constitute actual prejudice. As the Commissionrecently stated:

 

Under the Mine Act, if a mineoperator has a duty to reinstate a miner, the operator must continue to fulfillthat obligation during the period prior to a reinstatement hearing. Temporaryreinstatement is an essential protection for miners, and Congress intendedemployers to bear the proportionately greater burden of risk in temporaryreinstatement proceedings.

*Sec’y of Labor obo JamesMcGoughran v. Lehigh Cement Co., LLC*, 42FMSHRC 467, 471 (July 2020). Insofar as Respondent is arguing that it isprejudiced because it is paying Complainant while not receiving any labor inreturn, this too cannot constitute prejudice because Respondent chose temporaryeconomic reinstatement in lieu of temporary reinstatement.[1]

 

            The second reason thatRespondent advances to establish prejudice must also fail as it is toospeculative at this time. The Secretary’s inability to provide at present adate for the end of its investigation is not proof that it will proceed indefinitely.Indeed, if the Secretary’s investigation drags on for too long without goodreason, and the Respondent can show actual prejudice at that time, theundersigned will consider a renewal of this Motion with updated facts and argumentsHowever, that moment has not yet arrived.

 

            TheRespondent further suggests that the undersigned toll the Temporary EconomicReinstatement pending completion of the investigation. This option is simplynot permissible under existing Commission caselaw, although the undersigned issympathetic to this alternative. In a recent decision, the Commission held thata judge abused her discretion when she tolled a temporary reinstatement due totechnical difficulties that led to delays in the hearing. *Lehigh Cement,*42 FMSHRC 467. In reversing the judge, the Commission succinctly outlined theparameters of when a judge should toll temporary reinstatement:

 

TheCommission has recognized that the occurrence of certain events may toll anoperator's temporary reinstatement obligation. The types of “events” which mayjustify tolling are those which would affect the availability of relevant workat the mine for the miner at issue, such as a layoff due to businesscontraction. *See Sec'y of Labor on behalf of Gatlin v. KenAmerican Res.,Inc.*, 31 FMSHRC 1050, 1054-56 (Oct. 2009) (finding the Judge erred infailing to consider “changes that occur at the mine” and explaining that theoperator must show that work was unavailable for the discriminatee); *Sec'yof Labor on behalf of Anderson v. A&G Coal Corp.*, 39 FMSHRC 315, 319-20(Feb. 2017) (finding tolling inappropriate where the miner may not haveproperly been included in the layoff). The purpose of temporary reinstatementis to provide the miner with an income through a return to work until thecomplaint is resolved. *North Fork*, 33 FMSHRC at 592. The obligation totemporarily reinstate may logically be tolled when work at the mine is no longeravailable for the relevant miner.

*Id.* at 470.  The Commission explicitly rejected respondent’s argumentsthat tolling was justified by factors other than availability of work at themine, and also rejected the Judge’s justification for tolling due to economicharm to the operator and unjust enrichment of the miner. *Id.*at n. 4, 5.

**WHEREFORE**,the Respondent’s Motion to Dissolve Order Granting Joint Motion to ApproveTemporary Economic Reinstatement Motion and Agreement is **DENIED, WITHOUTPREJUDICE**.

 

            Itis **FURTHER ORDERED** that the Secretary shall provide to the undersigned adetailed status update on the investigation and when it is expected to becompleted every 21 days until a determination has been made or a new motionfiled by Respondent Prairie State.

 

 

 

                                                                                    ThomasMcCarthy

                                                                                    AdministrativeLaw Judge

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Distribution: (Email)

 

Suzanne F. Dunne, Esq., Officeof the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street, Rm. 844, Chicago,IL 60604; dunne.suzanne@dol.gov

 

Tony Oppegard, Esq., P.O. Box22446, Lexington, KY 40522; tonyoppegard@gmail.com

 

Wes Addington, Esq., AppalachianCitizens’ Law Center, 317 Main Street, Whitesburg, KY 41858; wes@aclc.org

 

Arthur Wolfson, Esq., Fisher PhillipsLLP, Six PPG Place, Suite #830, Pittsburgh, PA 15222; awolfson@fisherphillips.com

 

/mzm

----

[1] The Respondent is free to move for temporary economicreinstatement in lieu of economic reinstatement. *See Sec’y of Labor oboDustin Rodriguez v. C.R. Meyer and Sons Co*., 35 FMSHRC 811, 813-814 (April2013) (“The economic cost it bears ... can be mitigated by making use of [theminer’s] services.”)