**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

 

OFFICEOF ADMINISTRATIVE LAW JUDGES

72119th ST. SUITE 443

DENVER,CO 80202-2500

TELEPHONE:303-844-5266 FAX: 303-844-5268

 

April 14, 2020

 

| SECRETARY OF LABOR

MINE SAFETY AND HEALTH        

ADMINISTRATION (MSHA) obo MICHAEL SALVO,

  Complainant,

 

                        v.

 

PILOT THOMAS LOGISTICS dba THOMAS PETROLEUM, LLC, 

 

                           Respondent.                                                        |  

 

  |   | TEMPORARY REINSTATEMENT PROCEEDING

 

Docket No. WEST 2020-0214-DM

MSHA Case No. WE MD 20-05

 

 

 

 

Mine: Goldstrike Mine

Mine ID: 26-01089 (A2612)

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

** **

**ORDER GRANTINGTEMPORARY ECONOMIC REINSTATEMENT**

 

 

Before:                        Judge Gill

 

            This case involves an Application for TemporaryReinstatement filed by the Secretary of Labor (Secretary) on behalf ofcomplainant, Michael Salvo, against Respondent, Pilot Thomas Logistics dbaThomas Petroleum, LLC, pursuant to section 105(c)(2) of the Federal Mine Safetyand Health Act of 1977, 30 U.S.C. § 815(c)(2). On April 8, 2020, the partiessubmitted a Joint Motion for Temporary Economic Reinstatement that included theindividual terms of the settlement. 

 

Pursuant to the terms of the JointMotion, the parties move for an order that would temporarily, economicallyreinstate Salvo during the investigation and litigation of the merits of Salvo’sFebruary 14, 2020, discrimination complaint by the Mine Safety and HealthAdministration (MSHA). Specifically, the parties agree that Salvo’s temporaryreinstatement shall be subject to the following terms and conditions: 

 

(1)  The Secretary asserts that the complaint of discriminationfiled by Complainant Michael Salvo under Section 105(c) of the Federal MineSafety and Health Act of 1977 (“Mine Act”) was not frivolously brought.

 

(2)  Without admitting that Mr. Salvo’s complaint was notfrivolously brought, Respondent agrees to the entry of an Order of TemporaryEconomic Reinstatement pending investigation of the merits of Mr. Salvo’sdiscrimination complaint to the Mine Safety and Health Administration and thecompletion of any subsequent litigation on a complaint filed by the Secretaryof Labor regarding Mr. Salvo’s discrimination complaint.

 

(3)  The parties agree that, due to the distances involved andthe need for quick action in this matter electronic signatures orelectronically scanned signatures shall be deemed valid. 

 

(4)  Respondent agrees to economically reinstate Mr. Salvo tohis position as an equipment/haul truck operator, effective upon the approvalof this Settlement and Order Granting Temporary Economic Reinstatement by aFederal Mine Safety and Health Review Commission (“Commission”) AdministrativeLaw Judge (“ALJ”). Respondent agrees to pay Mr. Salvo a gross pay of $1,579.29per pay period subject to normal deductions. 

 

(5)  Respondent shall provide benefits (including but notlimited to retirement plan and seniority accrual) associated with Mr. Salvo’semployment, in which he participated or was a beneficiary and consistent withthose provided pre-termination except for health insurance. Respondent maydeduct all applicable tax withholdings and other withholdings on the same basisas generally required for payment of other benefits pursuant to its policiesand practices applicable to other employees.

 

(6)  The first payment shall be due to Mr. Salvo on Respondent’sfirst regular weekly pay day after the date of approval of this SettlementAgreement by an ALJ. All subsequent payments shall be due on Respondent’sregular weekly pay days. All payments shall be made by regular payroll orcertified check to “Michael Salvo” and deposited directly into Mr. Salvo’s bankaccount as Respondent did pre-termination.

 

(7)  Respondent agrees to continue its practice of not providingjob references and potential employers will be provided standard dates ofemployment and job title. 

 

(8)  Mr. Salvo’s economic temporary reinstatement shallterminate upon a finding by the Secretary that Section 105(c)(1) of the MineAct has not been violated, or if the investigation or discrimination proceedingis otherwise discontinued for any reason that is permitted under the Act andits regulations. Alternatively, if the Secretary finds that the discriminationcomplaint has merit and the Secretary files a Complaint of Discriminationpursuant to Section 105(c)(2) with the Commission, Mr. Salvo’s economictemporary reinstatement shall expire only after any decision or other similarorder on such Complaint from the Federal Mine Safety and Health ReviewCommission becomes a final order that is not appealed by the Secretary orRespondent.

 

(9)  Mr. Salvo understands and agrees that he is not entitled torequest or collect any unemployment compensation benefits during the economictemporary reinstatement period.

 

(10)The Secretary represents that the terms of this SettlementAgreement and Joint Motion for Temporary Economic Reinstatement have beenconveyed to Mr. Salvo, who has agreed to the terms of the economic temporaryreinstatement. 

 

(11)The parties further agree that by entering into asettlement agreement of the temporary reinstatement proceeding, in which thestandard of review is limited, Respondent reserves all rights, including alllegal and factual defenses it has to the substantive Section 105(c) complaint,and that none are waived. By agreeing to economic temporary reinstatement ofMr. Salvo, Respondent does not concede in any way the merits of Mr. Salvo’sclaims and nothing herein shall be construed as an admission of liability bythe Respondent. Further this agreement may not be relied upon by either partyfor any reason other than to enforce its terms during the pendency of thetemporary reinstatement order.

 

I have reviewed the Joint Motionand determined that it reflects a clear meeting of the minds on the issue oftemporary economic reinstatement, as required by Commission precedent. I havefurther determined that the parties’ agreement is consistent with the purposesof the Act and Section 110(i) of the Act. Upon consideration of the foregoing,the Joint Motion for Temporary Economic Reinstatement is **GRANTED**. 

 

Accordingly, pursuant to the termsof the parties’ agreement, Respondent is **ORDERED**to economicallyreinstate Michael Salvo, as specified in the Joint Motion, as approved herein. Theparties are **FURTHER ORDERED**to comply with all of the individual provisionsthe parties agreed upon and included in the Joint Motion. 

 

            As set forth in the parties’ Joint Motion, thisOrder Granting Temporary Economic Reinstatement is not open-ended. If MSHAdetermines that there is insufficient evidence to proceed on Salvo’sdiscrimination complaint, this order will terminate on the date of MSHA’sdetermination. *See N. Fork Coal Corp. v. FMSHRC*, 691 F.3d 735, 744-46(6th Cir. 2012); *Vulcan Constr. Materials, L.P. v. FMSHRC*, 700 F.3d 297,309 (7th Cir. 2012). Otherwise, it will end upon final order on the underlyingdiscrimination complaint. 30 U.S.C. § 815(c)(2). Therefore, the Secretary mustpromptly determine whether or not he will file a complaint with the Commissionunder section 105(c)(2) of the Act and so advise the Respondent and thistribunal. 

 

 

 

 

/s/L. Zane Gill

                                                                        L.Zane Gill 

                                                                        AdministrativeLaw Judge

 

 

 

 

Distribution:

 

Michael Salvo, 1320 AmberWay, Elko, NV 89801 blue472@yahoo.com

 

Jessica M. Flores, Esq., U.S.Department of Labor, Office of the Solicitor, 90 7th St, Ste 3-700,San Francisco, CA 94103 flores.jessica@dol.gov

 

David L. Zwisler, Esq., Ogletree, Deakins, Nash, Smoak &Stewart, P.C., 2000 S Colorado Blvd, Tower 3, Ste 900, Denver, CO 80222 david.zwisler@ogletree.com

 

/kb