i 

July 2021 

TABLE OF CONTENTS 

COMMISSION ORDERS 

07-13-21 PEDROTTI MATERIALS, LLC WEST 2020-0275-M Page 341 

07-13-21 MINGO LOGAN COAL, LLC WEVA 2019-0320 Page 344 

07-30-21 PALM BEACH AGGREGATES LLC SE 2020-0067-RM Page 347 

ADMINISTRATIVE LAW JUDGE DECISIONS 

07-14-21 WARRIOR MET COAL MINING, 

LLC 

SE 2020-0213 Page 351 

ADMINISTRATIVE LAW JUDGE ORDERS 

07-29-21 PRAIRIE STATE GENERATING CO. LAKE 2021-0158 Page 363 

07-29-21 VULCAN CONSTRUCTION 

MATERIALS, LLC 

SE 2021-0163 Page 365 
ii 

Review was Denied in the Following Case During the Month of July 2021 

Daniel B. Lowe v. Western Environmental Testing Laboratory, Docket No. WEST 2021-0145 

(Judge Bulluck, June 16, 2021) 
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

June 13, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners

 

ORDER

BY THE COMMISSION: 

This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2018) (“Mine Act”). On May 12, 2020, Pedrotti Materials, LLC filed a motion 

seeking to reopen a penalty assessment under section 105(a) of the Mine Act, 30 U.S.C. § 

815(a), that had appeared to become a final order of the Commission. 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

Pedrotti asserts that it never received the proposed penalty assessment at issue because 

the Secretary mailed it to the wrong address. The Secretary confirms that his Mine Safety and 

Health Administration erroneously mailed the proposed assessment to an incorrect address. 

Having reviewed Pedrotti’s request and the Secretary's response, we conclude that the 

proposed penalty assessment did not become a final order of the Commission because the 

operator never received the proposed assessment. This obviates any need to invoke Rule 60(b) of 

the Federal Rules of Civil Procedure in order to consider reopening a final order. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

 v. 

PEDROTTI MATERIALS, LLC 

Docket No. WEST 2020-0275-M 

A.C. No. 04-05724-505659 

43 FMSHRC Page 341
Accordingly, the operator's motion to reopen is moot, and this case is remanded to the 

Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the 

Commission's Procedural Rules, 29 C.F.R. Part 2700. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

43 FMSHRC Page 342
Distribution: 

Jason Pedrotti 

Pedrotti Materials, LLC 

P.O. Box 994283 

Redding, CA 96099 

pedrottimaterials@gmail.com 

John M. McCracken, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC Page 343
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

July 13, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners

 

ORDER

BY THE COMMISSION: 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018) (“Mine Act”). On March 18, 2019, the Commission received from Mingo 

Logan Coal, LLC a motion seeking to reopen a penalty assessment that had become a final order 

of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

 Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

 We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that a proposed assessment was delivered on December 3, 2018, and became 

a final order on January 2, 2019. Mingo Logan asserts that there is good cause to reopen this 

matter. The mine’s assistant safety manager timely prepared the proposed assessment form, 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

 v. 

MINGO LOGAN COAL, LLC 

Docket No. WEVA 2019-0320 

A.C. No. 46-09029-478458 

43 FMSHRC Page 344
marking ten specific citations for contest.1

 However, due to an inadvertent clerical error the 

completed form was not mailed. An internal audit on February 18, 2019 revealed the mistake. 

After learning of the issue, the manager contacted counsel to file a motion to reopen the 

proceeding.2 

The Secretary does not oppose the request to reopen, but urges the operator to take steps 

to ensure that future penalty contests are timely filed. 

 Having reviewed Mingo Logan’s request and the Secretary’s response, we find that 

Mingo Logan demonstrated that its failure to timely file contest was the result of an unintentional 

mistake. We find good cause, hereby reopen this matter, and remand the case to the Chief 

Administrative Law Judge for further proceedings pursuant to the Mine Act and the 

Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the 

Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. 

See 29 C.F.R. § 2700.28. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

1

 Citation Nos. 9175236, 9178580, 9178758, 9178759, 9178584, 9178585, 9178588, 

9178589, 9175246, and 9178596. 

2

 Mingo Logan’s motion was accompanied by supporting affidivats signed by the 

employees involved. 

43 FMSHRC Page 345
Distribution: 

Kelby Thomas Gray, Esq. 

Dinsmore & Shohl LLP 

707 Virginia Street East, Suite 1300 

Charleston, WV 25301 

Kelby.gray@dinsmore.com 

John M. McCracken, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC Page 346
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

July 30, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

 

DIRECTION FOR REVIEW AND ORDER

BY THE COMMISSION: 

 These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018) (the “Mine Act”). On June 10, 2020, the contest proceeding in Docket No. 

SE 2020-0067-RM was dismissed as moot on grounds that the penalty assessment for the citation 

at issue had become a final order. On June 12, 2020, Palm Beach Aggregates, LLC (“Palm 

Beach”) filed a motion in Docket No. SE 2020-0067-RM seeking to reopen both the contest 

proceeding and the related penalty assessment. We construe Palm Beach’s filing as a petition for 

discretionary review of the order dismissing the contest proceeding, and a motion to reopen the 

civil penalty proceeding. 

Regarding the motion to reopen, under section 105(a) of the Mine Act, an operator who 

wishes to contest a proposed penalty must notify the Secretary of Labor no later than 30 days 

after receiving the proposed penalty assessment. If the operator fails to notify the Secretary, the 

proposed penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

 We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

PALM BEACH AGGREGATES LLC, 

v. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

PALM BEACH AGGREGATES LLC 

 

Docket No. SE 2020-0067-RM 

Docket No. SE 2021-0168

A.C. No. 08-01160-510158 

 

43 FMSHRC Page 347
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed penalty assessment was delivered on March 17, 2020, and 

became a final order of the Commission on April 16, 2020. Palm Beach asserts that internal 

processing of the proposed assessment was delayed by the operator’s response to the Covid-19 

pandemic. Specifically, a work-from-home policy was initiated on March 16, 2020, before the 

proposed assessment arrived. As a result, the proposed assessment was not received by the 

Safety Director until April 23, 2020, and was contested approximately two weeks later. 

The Secretary does not oppose the request to reopen, but urges the operator to take steps to 

ensure that future penalty contests are timely filed. 

Having reviewed Palm Beach Aggregates’ request and the Secretary’s response, we find 

that the moderate delay in contesting the proposed penalty assessment was excusable in light of 

the unusual pandemic-related circumstances. In the interest of justice, we hereby reopen the 

penalty proceeding. Accordingly, consistent with Rule 28, the Secretary shall file a petition for 

assessment of penalty within 45 days of the date of this order. 

With regard to the dismissal of the contest proceeding, we grant the operator’s timely 

petition for discretionary review. 29 C.F.R. § 2700.70. The contest proceeding was dismissed as 

moot on grounds that the proposed civil penalty for the citation at issue had not been properly 

contested, and had therefore become a final order. As we have reopened the associated penalty 

proceeding, we vacate and reverse the Judge’s dismissal order in Docket No. SE 2020-0067-RM. 

 

43 FMSHRC Page 348
We hereby consolidate the contest and penalty proceedings, and remand this matter to the 

Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the 

Commission’s Procedural Rules, 29 C.F.R. Part 2700. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

43 FMSHRC Page 349
Distribution: 

Daniel A. Kaplan 

Foley & Lardner LLP 

150 East Gilman Street 

Madison, WI 53701-1497 

dkaplan@foley.com 

John M. McCracken, Esq. 

Office of the Solicitor 

Division of Mine Safety and Health 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Chief Administrative Law Judge Glynn Voisin 

Federal Mine Safety & Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@DOL.gov 

43 FMSHRC Page 350
ADMINISTRATIVE LAW JUDGE DECISIONS

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 

July 14, 2021 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

WARRIOR MET COAL MINING, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDINGS 

Docket No. SE 2020-0213 

A.C. No. 01-01401-516467 

Docket No. SE 2020-0232 

A.C. No. 01-01401-518427 

Mine: No. 7 Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER TO PAY

Before: Judge McCarthy 

 This case is before the undersigned upon Petitions for the Assessment of Civil Penalty 

under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). 

The Solicitor has filed a motion to approve settlement proposing a reduction in the penalties 

from $61,707.00 to $33,035.00. Citations No. 9493251, 9493254, 9493165, 9493261, 9493263, 

9493249, 9493250, 9493164, and 9493167 remain unchanged, but the Solicitor justifies the 

reductions in penalties by stating there are legitimate factual and legal disputes regarding gravity 

and negligence. The Solicitor also requests that 

Citation No. 9493255 be modified to reduce the number of persons affected from two to 

one; 

Citations No. 9493257 and 9493256 be modified to reduce the likelihoods of injury or 

illness from highly likely to reasonably likely and the numbers of persons affected from 

two to one; 

Citation No. 9493166 be modified to reduce the level of negligence from high to 

moderate; 

Citations No. 9133601, 9493273, 9264049, 9264050, and 9493308 be modified to reduce 

the levels of negligence from moderate to low; 

43 FMSHRC Page 351
Citations No. 9493031 and 9493032 be modified to reduce the expected injuries or 

illnesses from fatal to permanently disabling; and 

Citation No. 9230950 be modified to reduce the level of negligence from high to low.1

The Secretary also argues that “ 

[t]he Secretary’s use of [the 30 C.F.R. § 100.3] regular assessment tables in 

settlement is a prima facie indication that the penalty reduction is fair, reasonable, 

and adequate under the facts, and protects the public interest. It is appropriate to 

defer to the judgment of the parties[] in arriving at a modified penalty based on 

the § 100.3 tables. 

Settlement Mot. at 9 (citing Vindex Energy Corp., 34 FMSHRC 223, 224 (Jan. 2012) (ALJ)). 

However, not only is the Commission not bound by 30 C.F.R. § 100.3, but it is the purview of 

the Commission—not the Secretary or regulations issued by the Secretary—to determine 

whether a settlement is appropriate under the criteria set forth in section 110(i) of the Act. 

Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[N]either the ALJ 

nor the Commission is bound by the Secretary’s proposed penalties. . . . [W]e find no basis upon 

which to conclude that these MSHA [penalty] regulations also govern the 

Commission.”); Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3101 (Dec. 2014) (“The 

Secretary’s regulations at 30 C.F.R. Part 100 apply only to the Secretary’s penalty proposals, 

while the Commission exercises independent “authority to assess all civil penalties provided 

[under the Act]’ by applying the six criteria set forth in section 110(i).” (quoting 30 U.S.C. 

§ 820(i))). 

In order to overcome this burden, the Secretary must present evidence to a judge—

exercising his or her independent authority—to satisfy the six criteria set forth in section 110(i). 

Simply pointing to the Secretary’s regulations does not overcome this burden. Therefore, the 

undersigned rejects the Solicitor’s contention that the application of section 100.3 establishes 

a prima facie case for a reasonable settlement. 

Consequently, the undersigned evaluated the settlement agreement absent the argument 

rejected above. 

 The undersigned considered the representations and documentation submitted in this 

case, and the undersigned concludes that the proffered settlement is fair, reasonable, appropriate 

under the facts, and protects the public interest under The American Coal Co., 38 FMSHRC 

1972, 1976 (Aug. 2016), and is appropriate under the criteria set forth in section 110(i) of the 

Act. The settlement amounts are as follows: 

1

 Although there were some clerical errors in the Settlement Motion, the Secretary 

clarified the proposed settlement in an email dated July 13, 2021. This Decision reflects those 

clarifications. 

43 FMSHRC Page 352
Citation No. Assessment Settlement Citation No. Assessment Settlement

9493251 $1,076.00 $807.00 9493167 $782.00 $587.00

9493254 $482.00 $362.00 9230950 $324.00 $137.00

9493255 $2,595.00 $1,946.00 9493269 $1,166.00 $1,166.00

9493257 $19,178.00 $7,995.00 9493273 $720.00 $325.00

9493256 $19,178.00 $7,995.00 9264049 $1,166.00 $524.00

9493165 $2,394.00 $1,796.00 9149557 $351.00 $351.00

9493166 $2,394.00 $1,796.00 9264050 $144.00 $121.00

9493261 $720.00 $540.00 9493308 $144.00 $121.00

9493263 $720.00 $540.00 9493031 $482.00 $242.00

9493249 $1,076.00 $807.00 9493270 $1,166.00 $1,166.00

9493250 $2,394.00 $1,796.00 9493032 $482.00 $242.00

9133601 $1,166.00 $582.00 9493177 $144.00 $144.00

9493164 $1,263.00 $947.00

$61,707.00 $33,035.00

WHEREFORE, the motion for approval of settlement is GRANTED. 

 It is ORDERED that Citation No. 9493255 be MODIFIED to reduce the number of 

persons affected from two to one.

 It is ORDERED that Citations No. 9493257 and 9493256 be MODIFIED to reduce the 

likelihoods of injury or illness from highly likely to reasonably likely and the numbers of persons 

affected from two to one.

 It is ORDERED that Citation No. 9493166 be MODIFIED to reduce the level of 

negligence from high to moderate. 

 It is ORDERED that Citations No. 9133601, 9493273, 9264049, 9264050, and 9493308 

be MODIFIED to reduce the levels of negligence from moderate to low.

 It is ORDERED that Citations No. 9493031 and 9493032 be MODIFIED to reduce the 

expected injuries or illnesses from fatal to permanently disabling. 

 It is ORDERED that Citation No. 9230950 be MODIFIED to reduce the level of 

negligence from high to low. 

43 FMSHRC Page 353
It is further ORDERED that the operator pay a total penalty of $33,035.00 within thirty 

days of this order.2

 /s/ Thomas P. McCarthy 

 Thomas P. McCarthy 

 Administrative Law Judge 

Distribution: 

Jean C. Abreu 

C. Renita Hollins 

Office of the Solicitor 

U.S. Department of Labor 

61 Forsyth Street, S.W. 

Room 7T10 

Atlanta, GA 30303 

abreu.jean.c@dol.gov 

hollins.cordelia.r@dol.gov 

Atl.fedcourt@dol.gov 

Guy W. Hensley 

Warrior Met Coal Mining, LLC 

16243 Highway 216 

Brookwood, AL 35444 

guy.hensley@warriormetcoal.com 

2

 Payment should be sent to: Pay.gov, a service of the U.S. Department of the Treasury, 

at https://www.pay.gov/public/form/start/67564508 or, alternately, Mine Safety & Health 

Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 

63179-0390. 

43 FMSHRC Page 354
ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9950 / FAX: 202-434-9949 

July 14, 2020 

 

ORDER DENYING MOTION TO ENFORCE ORDER

Before: Judge Rae 

 This matter comes before the Court upon the Secretary of Labor’s (“Secretary”) Motion 

to Enforce Order (“Motion”). For the reasons set forth below, the Secretary’s Motion is denied. 

I. BACKGROUND 

On August 20, 2019, I issued an Order Granting Temporary Economic Reinstatement 

(“Order”) ordering Lehigh Cement Company, LLC (“Respondent”) to economically reinstate 

James McGaughran in accordance with all terms set forth in the parties’ Joint Motion to Approve 

Settlement Regarding Temporary Reinstatement.I issued the Order in the temporary 

reinstatement proceeding, Docket No. PENN 2019-0144. Subsequently, I was assigned this 

discrimination proceeding—Docket No. PENN 2020-0015—which concerns the merits of 

McGaughran’s discrimination complaint. I set a hearing date of June 2-4, 2020 for the 

discrimination proceeding. Subsequently, I postponed the hearing until October 27-30, 2020 due 

to COVID-19. 

On May 11, 2020, Respondent filed a Motion for Tolling of Economic Temporary 

Reinstatement. On May 22, 2020, I issued the Order Tolling Temporary Reinstatement under the 

temporary reinstatement docket, Docket No. PENN 2019-0144. The Secretary filed a Petition for 

Discretionary Review of my Order Tolling Temporary Reinstatement, which the Commission 

granted on July 1, 2020. The matter is currently pending before the Commission.

II. DISCUSSION 

The Secretary’s Motion alleges that Respondent is not honoring the Order. Specifically, 

the Secretary alleges that Respondent failed to pay McGaughran the entire amount he is owed 

under Respondent’s Annual Incentive Plan (“Incentive Plan”). The Incentive Plan provides 

Respondent’s eligible employees with “an incentive compensation opportunity for improving

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of JAMES MCGAUGHRAN, 

 Complainant, 

 

 v. 

LEHIGH CEMENT COMPANY, LLC, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. PENN 2020-0015-DM 

 

Mine: Nazareth Plant I 

Mine ID: 36-00190 

43 FMSHRC Page 355
operating performance within their areas of responsibility during the ‘plan year.’” Mot. to 

Enforce Order Ex. 1, at 1. The Secretary seeks an order requiring Respondent to pay 

McGaughran $12,000.00, which the Secretary claims represents the remainder of the Incentive 

Plan payment that Respondent has withheld from McGaughran.1 

Conversely, Respondent claims it is in full compliance with the Order. Respondent 

argues that payments under the Incentive Plan are a discretionary “bonus,” not a “benefit” that 

McGaughran is entitled to under the Order. Resp’t’s Opp’n to Mot. to Enforce Order, at 3-5. 

Although Respondent made a partial Incentive Plan payment to McGaughran, Respondent now 

maintains that the Order does not require Respondent to make any Incentive Plan payment to 

McGaughran. Id. at 6-7. For that reason, Respondent seeks an order requiring McGaughran to 

return the partial Incentive Plan payment to Respondent. 

Ultimately, I cannot resolve the issues raised by the Secretary’s Motion at the present 

time because the Motion is not properly before me and because I lack jurisdiction over the 

temporary reinstatement proceeding. The Secretary filed the instant Motion under the incorrect 

docket. The instant discrimination proceeding solely concerns the merits of McGaughran’s 

discrimination claim, not issues addressing compliance with the Order. Rather, the matter of 

enforcing compliance with the Order would be properly filed under Docket No. PENN 2019-

0144, the temporary reinstatement proceeding. 

However, this Court would lack jurisdiction to address the substance of the Secretary’s 

Motion even if it were filed under the temporary reinstatement docket. Per Commission Rule 

45(e), “[a] Judge’s order temporarily reinstating a miner is not a final decision within the 

meaning of [Section] 2700.69, and[,] except during appellate review of such order by the 

Commission or courts, the Judge shall retain jurisdiction over the temporary reinstatement 

proceeding.” 29 C.F.R. §2700.45(e)(4) (emphasis added); see also BR&D Enters., Inc., 

23 FMSHRC 386, 389 (Apr. 2001). During the Commission’s review of the Order, the Court 

does not retain jurisdiction over the temporary reinstatement proceeding.2

 29 C.F.R. 

§ 2700.45(e)(4).

1 From 2016 through 2019, Respondent paid McGaughran an incentive payment that 

ranged from 15% to 17% of his annual salary. McGaughran Decl. ¶ 5. The Incentive Payment 

Respondent paid McGaughran in April 2020 represented approximately 7% of his annual salary. 

Id. ¶¶ 6, 7. 

2 Even if I had jurisdiction, I would find that payments under the Incentive Plan are not a 

“benefit” that McGaughran is entitled to under the Order. Payments under the Incentive Plan are 

solely at the discretion of Respondent to award. Further, Section VI.D of the Incentive Plan 

states that “incentive payments . . . shall not be deemed a part of a participant’s regular, recurring 

compensation for purposes of calculating payments or benefits from any Company benefit plan 

or severance program.” Mot. to Enforce Order Ex. 1, at 7. 

43 FMSHRC Page 356
Therefore, I deny the Secretary’s Motion to Enforce Order because the Motion is not 

properly before me and because I lack jurisdiction over the temporary reinstatement proceeding 

pending review by the Commission. 

ORDER 

The Secretary’s Motion to Enforce Order is DENIED. 

/s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

Distribution: 

M. del Pilar Castillo, Office of the Solicitor, U.S. Department of Labor, 170 S. Independence

Mall West, Suite 630E, Philadelphia, PA 19106, Castillo.M.Pilar@dol.gov

Margaret Lopez, Carin Burford, OGLETREE, DEAKINS, NASH, SMOAK & STEWART P.C., 

1909 K Street NW, Suite 1000, Washington, DC 20006, margaret.lopez@ogletree.com, 

carin.burford@ogletreedeakins.com

43 FMSHRC Page 357
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE N. W., SUITE 520N 

WASHINGTON, D.C. 20004-1710 

TELEPHONE NO.: 202-434-9933 

TELECOPIER NO.: 202-434-9949

July 25, 2020 

ORDER ON RESPONDENT’S MOTION TO COMPEL 

PRODUCTION OF DOCUMENTS 

 Respondent, Yager Materials Corp., through Counsel, filed, on July 21, 2020, a Motion to 

Compel Production of Documents. (“Motion”). The Court held a conference call with the parties 

on July 23, 2020 to discuss the Motion. During that call the also Court issued its rulings on the 

subjects identified in the Motion. This Order memorializes the Court’s rulings. 

 The Motion requested the following documents: Copies of the statement or memorandum 

of interview of any interview of Mr. Whitmore; Copies of the statements or memoranda of 

interviews of any management witness; Copies of all exhibits the Secretary intends to introduce 

at hearing on the Secretary’s Application for Temporary Reinstatement in this matter; Copies of 

any documents Mr. Fugate relied upon in preparing his Declaration. Motion at 2-3.

SECRETARY OF LABOR, U.S. 

DEPARTMENT OF LABOR on behalf of 

WILLIAM R. WHITMORE, 

 Complainant 

 v. 

YAGER MATERIALS CORP., 

 Respondent 

 TEMPORARY REINSTATEMENT 

Docket No. KENT 2020-0116-DM 

Mine: Riverside Stone Mine 

Mine ID: 15-00081 

Docket No. KENT 2020-0117-DM 

Mine: Riverside Stone Mine 

Mine ID: 15-18549 

43 FMSHRC Page 358
 The Secretary responded to the Motion via an email, objecting to it on the basis that it ran 

afoul of several of the Commission’s Procedural Rules, including claims that the response to the 

Motion would not be due until the day of the temporary reinstatement hearing or later and that 

discovery was not expressly contemplated for a hearing on a temporary reinstatement 

application. The full text of the Secretary’s email response is footnoted here.1 

1

 The Secretary’s Attorney stated in his email that he “request[ed] oral argument on this 

matter [asking that the Court] [p]lease permit [him] a brief, if unorthodox, rejoinder: As the 

parties are aware, by Rule, a response to the Respondent’s Motion is not due for eight days from 

service, which would be July 29, 2020, the day of the hearing. 29 C.F.R. 2700.10(d). Any 

discovery served under the Rules would not be due for 25 days from service. 29 C.F.R. 

2700.57(c). If we call what [Respondent’s Attorney] served on July 17, 2020 “Document 

Requests,” the responses from the Secretary would not be due until August 11, 2020. The Rules 

also clearly state that discovery must be completed at least 20 days before a hearing. 29 C.F.R. 

2700.56(e). We are within 20 days of hearing and were when the requests were served. Even [the 

Respondent’s attorney’s] arbitrary deadline of this Friday [July 24, 2020] (after he conceded his 

initial arbitrary deadline of tomorrow) has not passed for the Secretary’s responses. So, to have 

any discussion of what the Rules permit, we must ignore the plain language of the foregoing 

rules, and the deadline that the Respondent, itself, set. The Respondent and the Secretary agree 

on one thing: the Commission Rules do not expressly contemplate discovery commencing after a 

request for a hearing on an Application for Temporary Reinstatement: (d) Initiation of discovery. 

Discovery may be initiated after an answer to a notice of contest, an answer to a petition for 

assessment of penalty, or an answer to a complaint under section 105(c) or 111 of the Act has 

been filed. 30 U.S.C. 815(c) and 821. 29 C.F.R. 2700.56(d). Absent from this list is the request 

for a Temporary Reinstatement hearing. This absence is intentional in light of the unique scope 

of such a hearing and the speed at which it must be completed. If the rules contemplated 

discovery prior to a Temporary Reinstatement hearing, they would necessarily have set forth 

things like the scope of such discovery in light of the limited scope of the hearing, alternate time 

frames for service of requests and responses, and a blanket exemption from Rule 2700.56(e). 

Initial disclosures, rather than discovery, would be more appropriate given the tight deadlines 

between the request for a hearing and the hearing itself, but the Rules contain no such provisions. 

As I explained to [the Respondent’s Attorney]: he wants discovery, the complainant (I am sure) 

wants discovery, and the Secretary wants discovery. Why does the Respondent get discovery and 

not the Secretary or the Complainant? The time frame for a Temporary Reinstatement hearing 

does not allow the parties the opportunity to serve discovery and to lodge good-faith objections 

to such requests. As we have here, we are essentially preparing for the hearing at the same time 

we are having a discovery dispute. If all of the parties, as the Respondent argues, are allow[ed] to 

serve discovery, the week before the hearing will be filled with constant expedited discovery 

battles for which the Rules set forth no time frames. This current issue only came to a head 

because the Secretary’s counsel affirmatively stated that discovery was not permitted. Had the 

undersigned waited until this Friday to do so, the issue would not be before the Tribunal until 

three days before the hearing. Had the Secretary served discovery responses with objections, the 

same problem would have arisen. Finally, since the Rules set forth no limit on discovery for 

[a]Temporary Reinstatement proceeding, who is to decide the scope of what is permissible for 

such requests and how many requests can be served? There is simply no guidance available on 

 (continued...) 

43 FMSHRC Page 359
 At the outset of the July 23, 2020 conference call with the parties to discuss the Motion, 

the Court informed that it considered the Secretary’s Counsel’s procedural objections to have 

been waived by virtue of his email response. 

 The Court’s rulings on the Motion were also informed by the Commission’s procedural 

rules on the subject of Temporary reinstatement Proceedings at 29 CFR 2700.45. It is noted that 

subsection (d) of that section provides that “[t]he scope of a hearing on an application for 

temporary reinstatement is limited to a determination as to whether the miner's complaint was 

frivolously brought. The burden of proof shall be upon the Secretary to establish that the 

complaint was not frivolously brought. In support of his application for temporary 

reinstatement, the Secretary may limit his presentation to the testimony of the 

complainant. The respondent shall have an opportunity to cross-examine any witnesses called 

by the Secretary and may present testimony and documentary evidence in support of its position 

that the complaint was frivolously brought.” Id. (emphasis added). In that regard, the Court 

notes that there is no reference to the MSHA investigator’s declaration. Rather, the focus is upon 

the testimony of the complainant and that the Secretary’s presentation can rely solely upon that.2

1. The Respondent’s request for copies of the statement or memorandum of interview 

of any interview of Mr. Whitmore 

Apart from the Court’s ruling that the Secretary had waived issues regarding the due date 

for a response to the motion, the Court informed the parties that it did not view the Respondent’s 

request for copies of the statement or memorandum of interview of any interview of Mr. 

Whitmore to be properly denominated as “discovery,” at least in the classic sense of that term. 

The Court explained its reasoning for this determination, noting that all the Respondent had, and 

all that the Court had as well, was the Complainant’s signed, but unfairly uninformative May 18, 

2020, “Discrimination Report.” That document contained a typed “Summary of Discriminatory 

Action,” which stated in its entirety the following: 

I was suspended on April 23, 2020, then discharged on April 29, 2020, from my 

job as the Maintenance Manager at Riverside Stone underground and surface 

mines because of numerous protected safety activities that I engaged in. 

Discrimination Report, May 18, 2020. 

1

 (...continued) 

what the permissible scope of discovery is in light of the ‘not frivolously brought’ standard. It is 

inconsistent that a party would be burdened with a broader scope of discovery than its burden of 

proof at an expedited hearing. The Rules contain no guidance on these issues because discovery 

was not completed, and was specifically excluded, for Temporary Reinstatement hearings.” July 

21, 2020 email from the Secretary to the Court. 

2

 As explained infra with regard to the Respondent’s request for copies of the statement 

or memorandum of interview of any interview of Mr. Whitmore, the Court considered the 

Respondent’s discovery request to actually be a request for a complete statement of the 

Complaint from the Complainant Whitmore. 

43 FMSHRC Page 360
The “Discrimination Complaint” document itself was no more enlightening. At its 

heart, it informed of the Complainant’s name, rate of pay, job title and the address of the 

Respondent’s mine and the names of four individuals employed by the Respondent alleged to be 

responsible for the discriminatory action.3 Discrimination Complaint, May 19, 2020. 

Importantly, the Discrimination Complaint added nothing, that is to say it provided no 

additional information whatsoever regarding any particulars about the alleged protective activity. 

It was only through the vehicle of the Secretary’s “Declaration of Freddie Fugate,” 

identified as a “senior special investigator” employed by MSHA, that some particulars about the 

nature of the Complainant’s discrimination complaint were first revealed. Of course, Mr. Fugate 

has no more first-hand knowledge about the Complainant’s allegations than the Court. 

Accordingly, the Fugate Declaration serves as a mere conduit, recounting the allegations 

made by the Complainant and nothing more than that. Thus, the Court does not consider it farfetched to analogize the Fugate Declaration as akin to an individual relating a story over a fence 

to a neighbor. And it is that serious shortcoming that formed the basis of the Court’s problem 

with the inadequacy of the declaration. The story may be an accurate retelling, or it may not, but 

for purposes of defending a discrimination complaint under due process, a respondent has a right 

to more. The Respondent is entitled to the Complainant’s first-hand accounting of the basis for 

his discrimination complaint. Fundamental fairness demands this. See, e.g., Sec. v. Cumberland 

Coal Resources, 32 FMSHRC 442 (May 2010), wherein the Commission stated that the 

“concepts of fundamental fairness [ ] require that every litigant receive adequate notice of 

charges made against it.” Id. at 449. 

Accordingly, during the conference call, the Court ordered that copies of the statement or 

memorandum of interview of any interview of Mr. Whitmore be provided. 

2. Copies of the statements or memoranda of interviews of any management witness 

The Court ruled during the conference call that this request was denied. The basis for that 

ruling was that such statements, if they exist, are not necessary in the context of the Secretary’s 

burden in an application for temporary reinstatement. If the Secretary did intend to introduce 

such documents, the Court’s order for the parties’ prehearing exchange would cover those.4

 As 

an aside, the Court opined that it would be highly unusual for any management witness to have 

made a statement without receiving a copy of it. 

 

3

 Four individuals are named in Complaint itself as those responsible for the 

discriminatory action: Bryan Ory, Rick Voyles, Tammy Wimsatt, and Lisa Weldman, but there 

is no information tying those individuals to Whitmore’s Discrimination Report. 

4

 The Court had previously ordered that the parties conduct their prehearing exchange by 

Friday, July 24, 2020. The parties submitted those exchanges pursuant to that order. 

43 FMSHRC Page 361
3. Copies of all exhibits the Secretary intends to introduce at hearing on the 

Secretary’s Application for Temporary Reinstatement in this matter 

This request, as alluded to above, was covered by the Court’s prehearing exchange order. 

4. Copies of any documents Mr. Fugate relied upon in preparing his Declaration. 

As the Court ruled that Mr. Fugate’s declaration could not serve as a substitute for copies 

of the statement or memorandum of interview of any interview of Mr. Whitmore, this request 

was denied. The Court considered that such other documents, if they exist, would more 

appropriately be the subject for possible discovery in a full hearing on the merits in the 

complainant’s discrimination complaint, but not in the context of a temporary reinstatement 

application. It is noted that such a request could run afoul of attorney-client or deliberative 

process claims. 

Accordingly, having ruled on the four aspects of the Respondent’s Motion, this matter 

has been disposed of and will now proceed to the hearing on the application for temporary 

reinstatement set to commence on Wednesday, July 29, 2020 at 9:00 a.m. EDT. 

SO ORDERED. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

Distribution: 

Thomas J. Motzny, Office of the Solicitor, U. S. Department of Labor, U. S. Department of 

Labor, 618 Church Street, Suite 230, Nashville, TN 37219 motzny.thomas.j@dol.gov 

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

Wes Addington, Appalachian Citizens’ Law Center, 317 Main Street, Whitesburg, KY 41858 

wes@aclc.org 

Arthur M. Wolfson, Fisher Phillips, Six PPG Place, Suite 830, Pittsburg, PA 15222 

awolfson@fisherphillips.com

43 FMSHRC Page 362
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 

July 29, 2021 

ORDER GRANTING JOINT MOTION TO APPROVE 

TEMPORARY ECONOMIC REINSTATEMENT 

MOTION AND AGREEMENT 

Before: Judge McCarthy 

This matter is before the undersigned on the Secretary of Labor’s Application for 

Temporary Reinstatement filed on behalf of miner Darcy White pursuant to section 105(c) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq., as amended (“Mine 

Act”), and 29 C.F.R. § 2700.45. On July 01, 2021, Respondent filed a Motion to Dismiss 

Application for Temporary Reinstatement for Failure to Join a Required Party or To Join 

Required Party, wherein it attached a Declaration from Prairie State Safety Manager, Lane 

Hendricks. On July 08, 2021, the Secretary filed its Response to Respondent’s Motion to 

Dismiss, opposing the motion. On July 12, 2021, the Respondent filed a Reply to the Secretary’s 

Response, wherein it attached the contractual agreement between Prairie State and Custom 

Staffing, White’s employer. 

On July 09, 2021, a Notice of Hearing was sent to the parties for a virtual hearing via 

Zoom to be held on July 20, 2021. On that date, the undersigned opened the hearing and asked 

the parties if there was any further possibility of exploring settlement avenues. The parties 

thereafter agreed to explore settlement possibilities in breakout rooms over Zoom. After 

approximately three hours, including status updates with the undersigned, the parties and their 

clients reached a meeting of the minds on material terms of settlement and placed the material 

terms of the tentative agreement on the record. 

On July 27, 2021, the parties filed a Joint Motion to Approve Temporary Economic 

Reinstatement, as well as an Agreement Regarding Economic Reinstatement for Darcy White. 

The full terms and conditions of the parties’ economic reinstatement agreement are hereby 

incorporated by reference. The undersigned has reviewed the Motion and Agreement, and the 

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. MORG-CD-2020-08 

Mine: Lively Grove Mine 

Mine ID: 11-03193 

43 FMSHRC Page 363
undersigned concludes that the proposed economic reinstatement agreement is fair, reasonable, 

appropriate, and protects the public interest because it will further the intent and purpose of the 

Mine Act. 

ORDER 

It is hereby ORDERED that Darcy White be TEMPORARILY ECONOMICALLY 

REINSTATED per the terms of the parties’ Agreement, effective on the date of this Order. 

White shall receive the wages she was formerly paid, as well as other terms of her employment, 

as set forth in the Agreement. 

This Order SHALL remain in effect until final order or determination on the underlying 

discrimination complaint as set forth in section 105(c)(2) of the Mine Act. 30 U.S.C. § 

815(c)(2). The undersigned retains jurisdiction over this temporary reinstatement proceeding. 29 

C.F.R. § 2700.45(e)(4). 

Pursuant to section 105(c)(3) of the Act, the Secretary is required to notify the 

Complainant whether a violation has occurred within 90 days of the receipt of the complaint. 

Ms. White filed her complaint on April 20, 2021, and the Secretary is beyond the 90-day 

statutory requirement. The Secretary is ORDERED to complete its investigation and to make a 

determination within 30 days, or to provide this tribunal with a detailed reason for why this 

deadline cannot be met. 

SO ORDERED. 

 /s/ Thomas P. McCarthy 

 Thomas P. 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 

43 FMSHRC Page 364
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 Pennsylvania Ave. NW, Suite 520N 

WASHINGTON, DC 20004-1710 

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

July 29, 2021 

ORDER GRANTING TEMPORARY ECONOMIC REINSTATEMENT 

OF JASON HARGIS 

Before: Judge Young 

 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, the Secretary of Labor (“Secretary”) on July 

16, 2021, filed an Application for Temporary Reinstatement of miner Jason Hargis 

(“Complainant”) to his former position with Vulcan Construction Materials, LLC, 

(“Respondent”) at Respondent’s mine pending final hearing and disposition of the case. 

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

following receipt of the Secretary’s application for temporary reinstatement. 29 C.F.R. 

§ 2700.45(c). The Secretary’s certificate of service states that the Application for Temporary 

Reinstatement of Complainant was served on Respondent by electronic mail on July 16, 2021. 

On a July 26, 2021 conference call, the Respondent told this Court that it would not be seeking a 

hearing in this matter. 

 On July 28, 2021, the parties further submitted a Joint Motion to Approve Settlement 

Regarding Temporary Economic Reinstatement. The Agreement sets forth the terms of the 

temporary economic reinstatement, including Complainant’s rate of pay and benefits, the date 

that economic reinstatement shall begin, and other terms, which are incorporated into this Order 

by reference. 

 The Secretary has found that the Complaint was not frivolously brought and has provided 

evidence supporting that determination. The Respondent does not contest the determination. 

Therefore, consistent with Section 105(c)(2) of the Act, the temporary economic reinstatement of 

Jason Hargis is granted. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of JASON HARGIS, 

 Complainant, 

 v. 

VULCAN CONSTRUCTION 

MATERIALS, LLC, 

 Respondent 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. SE 2021-0163 

MSHA Case No.: BARB-CD-2021-02 

Mine: Wilson County Quarry 

Mine ID: 40-00131 

43 FMSHRC Page 365
ORDER 

 

It is hereby ORDERED that Jason Hargis be TEMPORARILY ECONOMICALLY 

REINSTATED, effective July 27, 2021. Hargis shall receive the wages he was formerly paid, as 

well as other terms of his employment, as set forth in the Agreement. 

This Order SHALL remain in effect until such time as there is a final determination in 

this matter by hearing and decision, approval of settlement, or other order of this court or the 

Commission. 

 I retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R. 

§ 2700.45(e)(4). The Secretary SHALL provide a report on the status of the underlying 

discrimination complaint as soon as possible. Counsel for the Secretary SHALL also 

immediately notify my office of any settlement or of any determination that Vulcan 

Construction Materials, LLC, did not violate Section 105(c) of the Act. 

 /s/ Michael G. Young 

Michael G. Young 

 Administrative Law Judge 

Distribution (Via Certified Mail & Email) 

William K. Doran, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 1909 K Street, N.W., Suite 

1000, Washington, DC 20006 (william.doran@ogletree.com) 

Christopher M. Smith, Office of the Solicitor, U. S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 (smith.christopher.m@dol.gov) 

Elaine M. Youngblood, Ortale Kelley, 330 Commerce Street, Suite 110, Nashville, TN 37201, 

(eyoungblood@ortalekelley.com)

43 FMSHRC Page 366