**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

OFFICE OF THECHIEF ADMINISTRATIVE LAW JUDGE

1331Pennsylvania Ave. NW, Suite 520N

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

 

            

**ORDER GRANTING UNOPPOSED MOTION TO TOLL TEMPORARY ECONOMICREINSTATEMENT**

 

Before:             Judge McCarthy

 

**ProceduralBackground**

 

            Thiscase is before the undersigned upon an Application for Temporary Reinstatementfiled by the Secretary of Labor pursuant to section 105(c)(2) of the FederalMine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (“Mine Act”), and29 C.F.R. § 2700.45. On June 12, 2023, the Secretary filed anapplication on behalf of miner Phillip Bowman (“Complainant”) seeking hisreinstatement to his former position as a rock truck driver at the Twilight MtrSurface Mine operated by Lexington Coal Company, LLC.[1]

 

            OnJune 29, 2023, the Secretary filed a Settlement Agreement and Joint Motion forTemporary Economic Reinstatement. The terms of the agreement provide for theComplainant to receive economic reinstatement with Lexington Coal Company inlieu of immediately returning to work.  The undersigned approved thisSettlement Agreement on July 10, 2023, and held that 

 

the parties were to comply with the terms and conditions in theJoint Motion,” and “that this economic reinstatement shall remainin effect until such time that the Secretary provides notification that he willnot be bringing a discrimination case in chief on behalf of the Complainant, orsuch a case is brought and there is a final determination on it by Commissiondecision, approval of settlement, or other order of this tribunal or theCommission.

 

OrderGranting Joint Motion for Economic Reinstatement at 2-3.  The undersignedretained jurisdiction over this temporary reinstatement proceeding for suchpurposes as are necessary, as provided by 29 C.F.R. § 2700.45(e)(4). 

 

            OnAugust 25, 2023, the Respondent filed a Motion to Toll [the] EconomicReinstatement Order, claiming that the Mine was idled on July 11, 2023 – theday after the temporary economic reinstatement was Ordered in this matter. TheMotion further claimed that the mine had been idled due to “a downturn in thecoal market resulting in all of its production coal miners being laid off bythe Lexington [sic].” Mot. to Toll Economic Reinstatement Order at 2. Insupport of its assertions, the Respondent attached an Affidavit signed by mine superintendentCasey Miracle, which briefly describes the shutdown at Lexington's surface minein Boone County, West Virginia. That affidavit avers, in part, that

 

1.    Complainantwas previously employed as rock truck operator at the Twilight Surface Mine inBoone County, West Virginia; 

2.    Asof July 11, 2023, coal production at the Lexington's Twilight Surface Mine hasbeen idled and all employees have either been laid off or transferred;

3.    Noperson with the Complainant’s specific skill set is currently working at theTwilight Surface Mine; 

4.    Complainantwould have been laid off from working at the Twilight Surface Mine on July 11,2023, along with the other coal miners with a similar skill set.

 

Aff. of CaseyMiracle at ¶¶ 3-7.

 

            On Thursday September 21,2023, the undersigned held a conference call with the parties to discuss hisconcerns regarding the then-pending request to toll Complainant’s temporaryeconomic reinstatement.  More specifically, the undersigned expressed concern that1) the Mine was idled nearly contemporaneously with the issuance of my July 10,2023 Order granting Complainant’s temporary economic reinstatement; 2) while Respondent’scounsel referenced a downturn in the metallurgical coal market in her motion,this downturn was not referenced in Mr. Miracle’s affidavit or substantiated byany other evidence; 3) no explanation was provided for why Complainant wasineligible for transfer to another mine facility operated by Lexington Coal; and4) there was no indication whether the layoff was temporary or permanent.  Duringthe call, counsel for the Respondent confirmed that on or about July 25, 2023, asingle payment was remitted to Complainant under the terms of my Order. Counselfor the Secretary indicated that the Secretary was pursuing the underlyingdiscrimination case.[2] The undersigned requested that Respondent’s counsel prepare a revised motionaddressing my concerns. 

 

On September 27,2023, the Respondent filed a Revised Verified Motion to Toll EconomicReinstatement Order. The Revised Motion included a Revised Affidavit from CaseyMiracle (Exhibit 1) and copies of 1) Commission case law, and 2) samples ofnon-precedential ALJ decisions resolving motions to toll temporaryreinstatement (Exhibit 2). Mr. Miracle’s revised affidavit states as follows:

 

1.             I [Casey Miracle] am currently employed as a Superintendent ofLexington Coal Company, LLC ("Lexington") and have been employed insuch a capacity since February 22, 2022.

2.             I****am therefore authorized and qualified to create this Affidavitand have personal knowledge of the facts contained therein.

3.             I wish to clarify the statements made during my Affidavit datedAugust 25, 2023; I am the ***only***employee of Lexington who wastransferred from Twilight. Upon information and belief, I was transferredbecause I am the Superintendent of the operation and such a specific skillsetwas required at another of Lexington's operations, being one hour andforty-five minutes northwest.

4.             On or about the first week of July, 2023, the Twilight layoffwas coordinated by Lexington's management; upon information and belief, suchdecision was made as a result of its loss of a high price sales contract.

5.             I was instructed by management at approximately ***8:00 a.m.***onJuly 10, 2023 and it was necessary to lay off the employees on July 11, 2023.

6.             The layoff was strictly due to the coal market decreaseLexington faced, beginning during the first week of July 2023. Specifically,there became low demand for Lexington's Metallurgical coal product mined fromTwilight. Lexington could not afford to operate Twilight until and unless itsecured another order to fill the void.

7.             There are currently no individuals with [Complainant]’s skillset working for Lexington at the Twilight Surface Mine.

8.             There were no transfers available for any other employees.

9.             All employees with [Complainant]'s skill set were laid off onJuly 11, 2023.

10.          [Complainant] would have been laid off on July 11, 2023 with theother coal miners with his skill set working for Lexington atthe Twilight Surface Mine.

 

For the reasons that follow, theundersigned tolls Complainant’s economic reinstatement as of the date of thisOrder.  

 

 

 

**Analysis**

 

“The Commission hasrecognized that the occurrence of certain events, such as a layoff for economicreasons, may toll an operator's reinstatement obligation.” *MSHA obo RobertGatlin v. KenAmerican Resources, Inc*., 31 FMSHRC 1050, 1054 (Oct. 2009). This“limited inquiry to determine whether the obligation to reinstate a miner maybe tolled even when it has been established that the miner's discriminationcomplaint is not frivolous,” must be consistent with the “narrow scope oftemporary reinstatement proceedings.” *MSHA obo Dustin Rodriguez v. C.R.Meyer & Sons Co.*, 2013 WL 2146640, *3 (May, 2013). Accordingly, 

 

[a]n operatorgenerally must affirmatively prove that a layoff justifies tolling temporaryreinstatement by a preponderance of the evidence. *Gatlin,* 31 FMSHRC at1055. However, if the objectivity of the layoff as applied to the miner iscalled into question in the temporary reinstatement phase of the litigation,judges must apply the “not frivolously brought” standard contained in section105(c)(2) of the Mine Act to the miner's claim.

 

*MSHA obo Russell Ratliff v. Cobra NaturalResources, LLC*,2013 WL 865606, *4 (Feb. 2013). “In other words, temporary reinstatement shouldbe granted and not tolled unless the operator shows that the claim that thelayoff arose at least in part from protected activity is frivolous.” *C.R.Meyer & Sons*, 2013 WL 2146640, *3.

 

            The Commission has found that tollingis an affirmative defense and an operator must make a showing by apreponderance of the evidence that no work was available for the miner. *KenAmericanResources*, 31 FMSHRC at 1054-55; *Cf*., *Chadrick Casebolt*, 6FMSHRC 485, 499 (Feb. 1984) (“if business conditions result in a reduction inthe work force the right to back pay is tolled because a discriminatee is entitledto back pay only for the period during which he would have worked but for theunlawful discrimination.”). 

 

In this case, Respondentinitially submitted limited evidence to carry its burden to prove, by apreponderance of the evidence, that layoffs at the Mine justify tollingComplainant’s temporary economic reinstatement.*See**Gatlin,* 31FMSHRC at 1054.  The only submission provided in support of the Motion to TollTemporary Economic Reinstatement was Casey Miracle’s affidavit. That affidavitmakes a passing reference to a possible change in the economic conditions atthe Mine, stating that, “as of July 11, 2023, Lexington’s Twilight Surface Minehas been idled.” Aff. of Casey Miracle at ¶ 5. Withinthe affidavit, Mr. Miracle states further that “there are currently noindividuals with [Complainant’s] skill set working for Lexington Coal Company,LLC at the Twilight Surface Mine,” and “were it not for this honorable Court'sTemporary Reinstatement Order, [Complainant] would have been laid off on July11, 2023 with the other coal miners with his skill set working for LexingtonCoal Company, LLC at the Twilight Surface Mine.” *Id.*at ¶¶ 6-7. Mr.Miracle did not expound on the reasons for Respondent’s decision to idleproduction at the Twilight Surface Mine, such as a market downturn or otherexternalities that might lawfully motivate that decision. *See Id.*at ¶5. Nor did he provide any justification at all for his employer’s decision toeither terminate or transfer every employee previously assigned to the TwilightSurface Mine. *See Id.*at ¶ 4. Furthermore, other than stating thatComplainant “was previously employed as a rock truck operator,” Mr. Miracle providedno details concerning Complainant’s skill set or credentials. *See Id.*at¶ 4. There was nothing provided in Miracle’s initial affidavit explaining whyComplainant would have been ineligible for transfer or reassignment rather thantermination, except for the conclusory statement that “[Complainant] would havebeen laid off on July 11, 2023 with the other coal miners with his skill set.” Aff.of Casey Miracle at ¶ 7. 

 

Mr. Miracle’srevised affidavit ameliorates many of the foregoing concerns. First, he describeshow the decision to idle production at the Mine was motivated by "lowdemand for Lexington’s Metallurgical coal” following the “loss of a high pricesales contract.” Rev. Aff. of Casey Miracle at ¶¶ 4, 6.[3]Mr. Miracle further averred that “Lexington couldnot afford to operate Twilight until and unless it secured another order tofill the void.” *Id.*at ¶ 6. In addition, Miracle now avers that afterthe decision to idle the Twilight Surface Mine was made, only Mr. Miracle – asthe mine superintendent – was transferred to another mine facility operated bythe Respondent. *See id.*at ¶ 3. No other employees at the TwilightSurface Mine were eligible for transfer, and all other employees, includingthose individuals with a skill set similar to Complainant’s, were laid off.  *Seeid.*at ¶¶ 7-9.

 

The Secretary hasnot filed an opposition to the motion to toll or otherwise submitted anyevidence to rebut Respondent’s evidence.  Thus, the only evidence that may beconsidered at this time are the Respondent's evidentiary submissions, as wellas any relevant evidence from the original application for temporaryreinstatement. Considering the totality of the Respondent's evidence and thelack of any evidence from the Secretary to the contrary, the undersigned findsthat the Respondent has met its burden. As a result, my July 10, 2023 OrderGranting Joint Motion for Economic Reinstatement shall be tolled.

 

The undersignedmust next consider the effective date of tolling and whether the Respondentmaintains any obligation to remit additional payments to Complainant.  In its initial motion Respondent argued that tollingshould be effective on July 11, 2023, the date production was idled at theMine. The Respondent cites *Wiggins v. E. Assoc. Coal Corp.*and *Caseboltv. Falcon Coal Co., Inc*.**in support of the proposition that “a backpay award ends upon the date of a layoff.” *See*7 FMSHRC 1766, 1772-73(Nov. 1985); 6 FMSHRC 485, 486 (Feb. 1984). This case law is inapposite.  Inthe former case, the Commission reviewed an ALJ Decision following adiscrimination hearing on the merits, a hearing that Wiggins had requestedpursuant to 30 U.S.C. § 815(c)(3) after the Secretary declined to prosecute acase on his behalf. *See Wiggins*,**7 FMSHRC at 1768. In the lattercase, Casebolt did not seek economic reinstatement and conceded that hesuffered no loss of pay from any alleged discrimination, instead seeking broader“make whole” remedies. *See Casebolt*, 6 FMSHRC at 486. Neither caseinvolved the approval of a temporary reinstatement order at any stage of theproceedings, and calculation of any ‘back pay’ occurred only after the complainantswere afforded the opportunity to present a full case on the merits.

 

The Respondentalso relies on *MSHA o/b/o Clinton Ray Ward v. Argus Energy WV, Inc*.,a non-precedential ALJ decision attached as Exhibit 2 to the Respondent’sinitial Motion to Toll Economic Reinstatement Order. The Respondent contendsthat “the present situation is very similar to the one reviewed by ALJ Steelewhile rendering [that] decision.” Mot. to Toll Economic Reinstatement Order at2. However, unlike the present situation, Judge Steele’s decision resolved amotion to dissolve temporary reinstatement *after*the Judge had already deniedthe Discrimination Complaint on the merits. Moreover, the motion to dissolvethe temporary reinstatement order was filed in that case on December 12, 2023,which was more than two weeks before the mine was set to idle on December 25,2023. By contrast, the idling of the Mine and layoff in this case was notraised until well after my July 10, 2023 Order GrantingJoint Motion for Economic Reinstatement.  Indeed, more than six weekspassed before Respondent filed its initial August 25, 2023 motion alleging thatthe idling of production and layoff constituted sufficient changedcircumstances to justify tolling of my Order. *See**Gatlin,* 31FMSHRC at 1054. This delay occurred despite the fact that the mine was idledthe day after issuance of my Order and a mere twelve days after the partiesagreed to a potential settlement regarding the then-outstanding reinstatementrequest. The Respondent cannot now claim that its payment obligations should betolled retroactively to July 11, 2023, when Respondent was responsible for the 45-daydelay between the July 11 layoff and the August 25, 2023 filing of its initialmotion to toll my July 10, 2023 Order Granting Joint Motion for EconomicReinstatement.

 

As noted above, during the September 21,2023 conference call, counsel for the Respondent confirmed that a singlepayment was remitted to Complainant on or about July 25, 2023. The Respondent,however, was obligated to continue to comply with the terms and conditions ofmy economic reinstatement Order which “shall remain in effect until such timethat the Secretary provides notification that he will not be bringing adiscrimination case in chief on behalf of the Complainant, or such a case isbrought and there is a final determination on it by Commission decision,approval of settlement, or other order of this tribunal or the Commission.” OrderGranting Joint Motion for Economic Reinstatement at 2-3. Rather than complyingwith that Order, Respondent apparently unilaterally ceased payments toComplainant after July 25, 2023, without leave of this tribunal and a fullmonth before filing its initial motion to toll. In previous cases, theCommission has rebuked a mine operator for unilaterally cutting off payments toan alleged discriminatee on the date of a reduction-in-force rather than on thedate of modification of an order. *Gatlin*, 31 FMSHRC 1050, n. 2. In *Gatlin*,the Commission stated that “[r]ather than determining unilaterally that theworkforce reduction justified terminating Mr. Gatlin’s reinstatement, [theRespondent] should have moved the Judge to modify the ... Order.” *Id.*,citing *Consolidation Coal Co.*, 14 FMSHRC 956, 970 (June 1992) (“[N]o operator is freeto take the law into its own hands by deciding for itself what the law meansand how it can best be applied.”). If the Respondent here had continuedpayment to the miner pursuant to the temporary economic reinstatement Order,that money would not be recoverable by the Respondent even though its July 11,20223 layoff warranted tolling the temporary economic reinstatement. *See**Sec’yof Labor obo Dustin Rodriguez v. C.R. Meyer and Sons Co*., 35 FMSHRC 811,813-814 (Apr. 2013) (“[T]hereis nothing in the Mine Act which contemplates that the miner would be expectedto repay the amounts paid pursuant to the reinstatement order. Indeed, thatwould run counter to the intent of the provision, which is to provide immediaterelief to a complaining miner while he or she waits for the case to bedecided.”)

 

Consistent with the reasoning in *Gatlin,*because the terms of my July 10, 2023 Order remained in effect untilsuch time as the period of reinstatement is modified, Complainant Bowman shouldhave continued to receive economic reinstatement until the date of this Ordergranting tolling.  *Gatlin*, 31 FMSHRC at1055 (“Thus, KenAmerican must continue to comply with the terms of theAugust 31 Order and pay Mr. Gatlin until the matter is resolved by the Judge.”).

 

**Order**

** **

It is **ORDERED**that Complainant’s temporary economic reinstatement is **TOLLED**as of****October4, 2023, the date of this Order. 

 

It is **ORDERED**thatRespondent remit to Complainant any payments that are still due under the termsof my July 10, 2023 Order Granting Joint Motion for Economic Reinstatement fromJuly 25 until October 4, 2023. 

 

It is further **ORDERED** that theRespondent shall inform the Secretary, Complainant, and this tribunal if theTwilight Mtr Surface Mine is brought back into production, or any employees arerecalled from layoff.

 

 

 

 

                                                                                    /s/Thomas P. McCarthy

                                                                                    ThomasP. McCarthy

                                                                                    AdministrativeLaw Judge

 

 

 

Distribution(Electronic Mail):

 

Kyle D. Stelmack,Esq.

Office of theRegional Solicitor

U.S. Department ofLabor 

1835 MarketStreet, Mailstop SOL/22

Philadelphia, PA19103 

Stelmack.kyle.d@dol.gov

 

HelenaRacin Jackson, Esq.

685Hambley Blvd., Suite 1-A

Pikeville,KY 41501

hj@hrjacksonlaw.com

 

 

/cbb

----

[1] The followingallegations are delineated within the Secretary’s application and MSHA’sspecial investigator’s affidavit affixed as Exhibit A thereto:

 

1)     Complainant beganworking as a truck driver at the Twilight Surface Mine in October 2021;

2)     On or about April3, 2023, Complainant informed his foreman that rock truck number 252 CAT 777had no air conditioning and was releasing exhaust fumes into the cab of thetruck; 

3)     On April 4, 2023,Complainant downed rock truck number 252 CAT 777 and informed his foreman thathe would not drive the truck in its current condition;

4)     On April 5, 2023,he was told to run rock truck number 252 CAT 777 in its then current conditionor to go home. Complainant then contacted MSHA and reported his concerns withthe truck;

5)     On April 6, 2023,MSHA inspectors issued a citation which identified conditions consistent withthose alleged by Complainant (Ex. C);

6)     Complainant was“discriminatorily terminated” on April 19, 2023. App. at 8.

 

[2] Upon questioningfrom the undersigned, counsel for the Secretary indicated that MSHA had confirmedthat there was a layoff at the Mine, but had not investigated whether the layoffor partial closing itself was motivated by protected activity.  

[3] No otherdocumentation establishing loss of this contract was provided.