1

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 

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
2

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

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

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. 
3

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.

 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