**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

 

 
| 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 |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

**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).

 

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 

 

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).

 

 

 

 

/s/John T. Sullivan

                                                                                    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

----

[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).

[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.