**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

 

May 22, 2020
| SECRETARY  OF LABOR,

MINE  SAFETY AND HEALTH

ADMINISTRATION  (MSHA),

on  behalf of JAMES MCGAUGHRAN,

            Complainant,

            v.

 

LEHIGH  CEMENT COMPANY, LLC,

            Respondent.                               |   |   | TEMPORARY  REINSTATEMENT PROCEEDING

 

Docket  No.PENN 2019-0144-DM

MSHA Case No. NE-MD_19-05

 

 

 

Mine: Nazareth  Plant I

Mine  ID: 36-00190 |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

**ORDER TOLLING TEMPORARYREINSTATEMENT**

 

Before: Judge Rae

 

This matter comes before theCourt on Respondent’s Motion for Tolling of Economic Temporary Reinstatement. Forthe reasons set forth below, the Respondent’s Motion is granted, and the OrderGranting Temporary Economic Reinstatement istolled, effective May 22, 2020. 

 

**      I.         ****BACKGROUND**

 

OnAugust 20, 2019, I issued an Order Granting Temporary Economic Reinstatement,whereby Lehigh Cement Company, LLC (“Respondent”) was ordered to temporarily economicallyreinstate James McGaughran (“Complainant” or “McGaughran”), in accordance withall terms set forth in the parties’ Joint Motion to Approve Settlement RegardingTemporary Reinstatement. Subsequently, this matter was set for hearing fromJune 2 through 4, 2020.[1]In the interim, the COVID-19 pandemic caused the Commission to suspendin-person hearings, including the hearing scheduled for this docket. In lightof this development, the Commission offered Zoom videoconferencing as analternative for conducting hearings.

 

OnMay 5, 2020, the Secretary of Labor (“Secretary”) filed a Motion to OpposeRemote Hearing, indicating that it did not wish to participate in a hearing usingZoom videoconferencing, and requested that the hearing for this docket be continuedto a later date. By email, the Respondent agreed to a hearing via Zoomvideoconferencing, and requested that the matter proceed to hearing. On May 5,2020, I held a conference call to discuss the positions of the parties. Duringthe conference, the Secretary raised numerous objections to using Zoom,including the potential for various technological problems and issuesassociated with assessing credibility via video. However, the Respondentindicated its desire to proceed to hearing using Zoom because of the continued temporaryeconomic reinstatement obligation that Respondent had towards McGaughran, aswell as uncertainty regarding the resumption of in-person hearings. On May 11,2020, the Respondent filed an Opposition to the Secretary’s Motion to OpposeRemote Hearing, along with a Motion for Tolling of Economic TemporaryReinstatement. 

 

**    II.         ****DISCUSSION**

 

**A.   ****Temporary Reinstatement Under the Mine Act**

 

Section105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”)provides that “[a]ny miner . . . who believes that he has been discharged,interfered with, or otherwise discriminated against by any person in violationof [the Mine Act] may . . . file a complaint with the Secretary alleging suchdiscrimination.” 30 U.S.C. § 815(c)(2). Further, Section 105(c)(2) provides fortemporary reinstatement of a miner “if the Secretary finds that such complaintwas not frivolously brought,” whereby “the Commission . . . shall order theimmediate reinstatement of the miner pending final order on the complaint.” *Id.*

 

TheMine Act’s temporary reinstatement provision was included “[t]o protect minersfrom the adverse and chilling effect of loss of employment while such mattersare being investigated.” H.R. Rep. No.95-655, at 52 (1977) (Conf. Rep). Congress viewed the temporaryreinstatement provision as “an essential protection for complaining miners whomay not be in the financial position to suffer even a short period ofunemployment or reduced income pending the resolution of the discrimination complaint.”S. Rep. 95-181, at 37 (1977). 

 

**B.   ****Commission Precedent Regarding Temporary Reinstatement**

 

Asidefrom the entry of a final order on the complaint, the Mine Act does notexplicitly identify any conditions that interrupt the mine operator'sreinstatement obligation. However, Commission precedent has established thatthe obligation may be tolled or dissolved in several situations. “TheCommission has recognized that the occurrence of certain events, such as alayoff for economic reasons, may toll an operator's reinstatement obligation orthe time for which an operator is required to pay back pay to a discriminatee.”*Sec’y of Labor on behalf of Gatlin* v. *KenAmerican Res., Inc*., 31FMSHRC 1050, 1054 (Oct. 2009) (citing *Simpson v. Kenta Energy, Inc.*, 11FMSHRC 1638, 1639 (Sept. 1989)). Further, “the judge may appropriately considerevidence offered by an operator seeking to affirmatively show thatreinstatement should be tolled because of a layoff due to business contractions*or similar conditions*.” *Sec’y of Labor on behalf of Ratliff v. CobraNatural Res*., LLC, 35 FMSHRC 394, 397 (Feb. 2013) (emphasis added) (citing *Gatlin*,31 FMSHRC at 1054). 

 

TheCommission has crafted a remedy with respect to reducing any award for back payby the amount of the complainant’s unrelated interim earnings. *See**Meekv. ESSROC Corp*., 15 FMSHRC 606, 617 (1993); *Bradley v. Belva Coal Co*.,4 FMSHRC 982, 994-995 (1982). However, we are faced with an unprecedentedsituation due to the COVID-19 pandemic, which has suspended travel andcontinues to cause unforeseen difficulties—without an end date. No Commissioncase law directly addresses such a situation. 

 

**C.   ****Tolling McGaughran’s Temporary Economic Reinstatement**

 

Iconclude that the Respondent’s obligation to temporarily economically reinstateMcGaughran must be tolled. The purpose of temporary reinstatement under theMine Act is to make the miner whole while the case is pending on the merits,not for the purpose of unjustly enriching a complainant at the operator’s expense.Tolling McGaughran’s Temporary Reinstatement does not cause a chilling effector an inability for the Complainant to pursue the discrimination complaint, nordoes it run afoul of the spirit or intent of the Mine Act. Respondent hasrepresented through email conversations with the court—and without contradictionby the Secretary—that the Complainant admitted during depositions he is earningapproximately $107,000 per year in his current position, and is thereforesuffering no economic loss. 

 

Ifind that the unusual and unexpected pandemic and associated travelrestrictions have created a situation where the Respondent is put in a positionof an economic hardship, pending the lifting of restrictions at some unknowndate. Recognizing that ordering a three-day hearing with multiple witnesseswithout the willing consent of both parties would be difficult—at best—and notan expeditious resolution of the matter, I granted the Secretary’s request fora continuance over the objection of the Respondent. Therefore, I find it unfairto put such a burden on the Respondent due to circumstances not of its making,and that tolling the temporary economic reinstatement would not be contrary tothe spirit and purpose of the Mine Act in this particular situation.

** **

**ORDER**

 

Itis **ORDERED**that the Order Granting Temporary Economic Reinstatement istolled effective May 22, 2020.[2]

 

 

 

/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]The associatedDiscrimination Proceeding is docketed as PENN 2020-0015.

[2]The tollingof the Order Granting Temporary Economic Reinstatement will remain in effectuntil a decision is made on the merits.