**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

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

 

 

**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 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