**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

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

****

**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 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).

 

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

----

[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.