**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

**1331 PENNSYLVANIA AVENUE, NW,SUITE 520N**

**WASHINGTON, D.C.  20004-1710**

 

 

SECRETARY OF LABOR,                               :

    MINE SAFETY AND HEALTH                   :

    ADMINISTRATION (MSHA),                     :

    on behalf of ALVARO SALDIVAR              :

                                                                :                               

                        v.                                                :       Docket No. WEST 2021-0178-DM

                                                                :           

GRIMES ROCK, INC.                                       :

 

BEFORE:  Jordan, Chair; Althen, Rajkovich, and Baker,Commissioners 

 

# DECISION**[1]**  

 

BY: Jordan, Chair; Rajkovich and Baker, Commissioners

             

This casearises under section 105(c)(2) of the Federal Mine Safety and Health Act of1977, 30 U.S.C. § 815(c)(2) (2018) (“Mine Act”).[2]  It involves the granting oftemporary reinstatement for a miner employed by Grimes Rock, Inc.  On January17, 2022, the Commission received a petition for discretionary reviewchallenging an Administrative Law Judge’s order denying the operator’s motionto toll temporary reinstatement.  On July 13, 2022, the Commission receivedcross-petitions from the Secretary of Labor and Grimes Rock, challengingdifferent parts of the Judge’s June 17, 2022 order enforcing temporaryreinstatement.  

For the reasonsthat follow, we affirm the Judge’s order denying the operator’s motion to tolltemporary reinstatement and affirm in part and reverse in part the Judge’sorder enforcing temporary reinstatement.

** **

**I.**

** **

**Factual and Procedural Background**

 

ComplainantAlvaro Saldivar was a miner at Grimes Rock’s mine on two separate occasions. First, he was employed as a welder from May 2019 through July 2019.  Then hewas employed as a service technician from October 5, 2020 to January 15, 2021. Tr. 16.  When Grimes Rock hired Saldivar the second time, Saldivar made theoperator aware that he had a criminal record.  Saldivar alleged that whileemployed at Grimes Rock the second time, he made approximately eight safetycomplaints to his direct supervisor Rene Garcia and general manager ErnieMelendez.  Most of his complaints involved alleged bald tires on the watertruck he operated, but they also included a complaint about a lack of propertraining.  Tr. 17-27.   

 

During thisperiod, Saldivar received five disciplinary warnings from Grimes Rock.  Theoperator eventually terminated Saldivar on January 15, 2021, just one day afterhis last safety complaint.  Saldivar filed a discrimination complaint with theSecretary of Labor’s Mine Safety and Health Administration (“MSHA”) over histermination, and the Secretary subsequently brought a section 105(c)(2) actionand sought temporary reinstatement on Saldivar’s behalf.  Temporaryreinstatement was granted by a Commission Administrative Law Judge on May 18,2021.  *Sec’y of Labor on behalf of Saldivar v. Grimes Rock, Inc.*, 43FMSHRC 287 (May 2021) (ALJ).  Grimes Rock petitioned for review of the Judge’sdecision, which was subsequently affirmed by the Commission.  *Sec’y of Laboron behalf of Saldivar v. Grimes Rock, Inc.*, 43 FMSHRC 299 (June 2021). 

 

While GrimesRock’s appeal was pending, however, the parties agreed to temporary economicreinstatement.  The Judge approved the agreement on May 28, 2021.  Under theagreement, because Saldivar had found work with another employer, Grimes Rockwas responsible for paying the difference between Saldivar’s earnings at hispresent job and his earnings at Grimes Rock.  The agreement was silent on whatwould happen if Saldivar no longer had other employment to offset Grimes Rock’spayments.  In July 2021, the Secretary filed a discrimination complaint onSaldivar’s behalf (Docket No. WEST 2021-0265).

 

While the parties awaited the Judge’sdecision on the merits of Saldivar’s discrimination complaint, Saldivar wasincarcerated on two occasions.  Although the agreement was also silent on whatwould happen if Saldivar was unavailable for work, the Secretary agreed to tollGrimes Rock’s payments during these periods.  After Saldivar’s firstincarceration, Grimes Rock filed a motion to toll or permanently terminate theeconomic reinstatement, arguing the applicability of the “after-acquiredevidence” doctrine and a “change in circumstances.”  G.R. PDR 1 at 2-4.  OnJanuary 7, 2022, the Judge denied the operator’s motion and Grimes Rock filed apetition challenging the Judge’s determination, which we granted and willconsider here.  

 

AfterSaldivar was released from his first incarceration, around November 2021,Grimes Rock resumed making payments.  However, at that time the partiesdisputed what amounts were then owed pursuant to the temporary reinstatementorder.  Saldivar’s second incarceration ended in May 2022.  After the miner’ssecond release, Grimes Rock did not resume its payments.[3] On May 27, 2022, the Secretary filed with the Judge a motion to enforce thesettlement agreement, which was granted on June 17, 2022.  The Judge orderedGrimes Rock “to pay Saldivar the full wages as required by the temporary reinstatementorder during the periods of his availability to work between May 18, 2021 andJune 17, 2022, offset by his wages earned from alternative employment duringthat period.”  *Sec’y of Labor on behalf of Saldivar v. Grimes Rock, Inc*.,44 FMSHRC 497 (June 2022).  Simultaneous with her order granting enforcement,the Judge issued her decision on the merits of the discrimination complaint,concluding that Grimes Rock did not violate the discrimination provisions ofthe Mine Act and dismissed the case.  *Sec’yof Labor on behalf of Saldivar v. Grimes Rock, Inc*., 44 FMSHRC 473 (June2022) (ALJ).  Consequently, the Judge ordered the dissolution of the temporaryreinstatement order.  She ordered that the dissolution occur on the same datethat she issued the decision on the merits.

 

On July 13,2022, the parties filed cross petitions challenging different parts of theJudge’s June 17 order.  Specifically, the Secretary challenges the Judge’sdecision to terminate the temporary reinstatement order instantly, uponissuance of her decision on the merits of the discrimination complaint.  Sec’y PDR. In turn, Grimes Rock takes issue with the duration of the temporaryreinstatement and challenges the Judge’s enforcement order.  G.R. PDR 2.  TheCommission has granted review of both petitions.  

 

Finally, onAugust 15, 2022, MSHA issued a section 104(a) citation to Grimes Rock for itsrefusal to make the required payments in violation of the Judge’s order toenforce.  30 U.S.C. § 814(a).  On August 17, 2022, Grimes Rock filed a request foran immediate stay of the Judge’s June 17 order granting enforcement, which wassubsequently denied by the Commission.  The Secretary subsequently filed a104(b) Order, 30 U.S.C. § 814(b), for the operator’s failure to comply with theJudge’s enforcement order.  On August 22, 2022, following the issuance of thatorder, Grimes Rock finally made the payments required under the temporaryreinstatement order.[4]  Three days later, the Secretaryfiled a motion for interest and consequential damages for the wages Saldivarwas not able to access during the periods Grimes Rock refused to pay.  Sec’yMot. for Interest.

**II.**

**Disposition**

 
    - **Grimes     Rock’s petition challenging the Judge’s denial of its motion to toll the     Judge’s Order of Temporary Reinstatement**

** **

Forthe reasons below, we conclude that the Judge did not err when she denied theoperator’s motion to permanently toll the order of temporary reinstatement.  

 

1.    Grimes Rock failed to establish that tolling was justified.  

 

The Mine Act directs the Commission to reinstate a minerduring the pendency of his/her discrimination complaint as long as he or shecan prove that the complaint was not frivolously brought.  The scope of atemporary reinstatement hearing is narrow, and the Judge is limited todetermining “whether the evidence mustered by the miner[] to date establishedthat [his or her] complaint[] [is] nonfrivolous, not whether there issufficient evidence of discrimination to justify permanentreinstatement.”  *See Sec’y of Labor on behalf of Price v. Jim WalterRes., Inc.*, 9 FMSHRC 1305, 1306 (Aug. 1987), *aff’d*, 920 F.2d738, 744 (11th Cir. 1990) (“*JWR*”); *Sec’y**on behalf of Jones v.Kingston Mining, Inc*., 37 FMSHRC 2519, 2522 (Nov. 2015).    

 

While the scope of temporaryreinstatement proceedings is limited to determining whether the complaint isfrivolously brought, we have permitted a limited inquiry to determine whetherthe obligation to reinstate a miner may be tolled due to a “change incircumstances.”  *Sec’y on behalf of Gatlin v. Ken American Res., Inc*.,31 FMSHRC 1050, 1054-56 (Oct. 2009) (concluding that the duration of atemporary reinstatement of a miner may be modified if the operator can provethat the complainant’s inclusion in a layoff, at an idled mine, was entirelyunrelated to his protected activity).  

 

Inprevious cases, the only types of “events” that we have found may justifytolling are those which affect the availability of relevant work at the minefor the miner at issue, such as a layoff due to businesscontractions or similar conditions and mine closure.  *Id*.; *see,e.g., Sec’y on behalf of Russell Ratliff v. Cobra Natural Res*., 35 FMSHRC394 (Feb. 2013) (affirming the Judge’s order finding that the operator’sobligation to reinstate Ratliff was not tolled by a layoff because the operatorcontinued to mine coal, and work was available for shuttle car operators).   *Seealso**Sec’y of Labor on behalf of Anderson v. A&G Coal Corp.*, 39FMSHRC 315, 319-20 (Feb. 2017);*Sec'y of Labor on behalf of Rodriguez v.C.R. Meyer & Sons Co.*, 35 FMSHRC 1183, 1187-88 (May 2013); *Sec’y of Labor on behalf of McGaughran v. Lehigh CementCo*., 42 FMSHRC 467, 471 n.6 (July2020).  The Commission has held that “[a]noperator generally must affirmatively prove that a layoff justifies tollingtemporary reinstatement by a preponderance of the evidence.”  *Cobra NaturalRes., LLC*, 35 FMSHRC at 397.  Additionally, the tolling inquiry is bound bythe same evidentiary standards as the initial temporary reinstatementproceeding; the Judge is not permitted to make credibility determinations orresolve conflicts in the evidence.  *Id*. 98 n.3.

 

Grimes Rock has not established that work at the mine wasunavailable for Saldivar.  Indeed, the operator offers *no evidence*regarding availability of work.  Instead, Grimes Rock argues that theCommission’s doctrine on tolling should be extended to include a situationwhere the operator no longer wishes to offer employment to a miner.  Specifically,Grimes Rock argues that tolling is justified because it no longer desires toemploy Saldivar due to his periods of incarceration and the criminalallegations against him.[5]  G.R. PDR 1 at 9-12.  Neither theMine Act nor Commission precedent support the extension of the Commission’s tollingdoctrine to include the position advanced by Grimes Rock. 

 

Congress directed that temporary relief be ordered“pending the final order on the complaint.”  30 U.S.C. § 815(c)(2).  Congressdid so because it determined that “employers should bear a proportionatelygreater burden of the risk of an erroneous decision in a temporaryreinstatement proceeding.”  *JWR*, 920 F.2d at 748; *Sec’y of Labor onbehalf of Deck v. FTS Int’l Proppants, LLC*, 34 FMSHRC 2388, 2390 (Sept.2012).  The Commission has traditionally allowed exceptions to that statutorymandate only in narrow circumstances.  

 

It is axiomatic that an operator defending itsdecision to discharge a miner in a section 105(c) proceeding no longer wishesto employ that miner.  An operator’s desire not to employ a temporarilyreinstated miner, in and of itself, is never sufficient to justify tolling.[6]  If it were, every operator would be justified indischarging every miner granted a temporary reinstatement.[7]  Allowing such a justification would defeat the purpose of temporary reinstatement, whichis to “provide the miner with an income through a return to work until the[merits] complaint is resolved.”  *NorthFork*, 33 FMSHRC at 592.  Grimes Rockprovided no other basis for tolling Saldivar’s temporary reinstatement.  Therefore, we decline to extend our tolling doctrineto include the facts present here.[8]

 

Tolling, in this case, was not appropriate.  The Judgedid not err by declining to grant it.   

 

2.    “After-Acquired Evidence of Wrongdoing” is not relevant intemporary 

reinstatement proceedings  

 

Grimes Rock argues that tolling is justified because it unearthedevidence of “wrongdoing” by Saldivar while preparing for the merits hearing. It then sought to introduce this “after-acquired evidence” as justification fortolling the temporary reinstatement.  

 

The Judge refused to toll the temporary reinstatement,instead finding that the evidence was relevant to the hearing on the merits. We find that the Judge’s actions were not in error.  

 

To support its position that a temporary reinstatement can betolled based on after-acquired evidence, Grimes Rock relies on *McKennon v.Nashville Banner Publishing Co.*, 513 U.S. 352 (1995).  In that case, theSupreme Court held that evidence of wrongdoing that occurred during theemployee’s period of employment—but uncovered by the employer while conductingdiscovery regarding an Age Discrimination in Employment Act complaint—may limitavailable remedies for the violation.  Notably the Court did not find that itcompletely shields the employer from liability under the ADEA.  Instead, theCourt found that such evidence may limit available remedies to an employee,provided that the employer can first establish “that the wrongdoing was of suchseverity that the employee would have been terminated on those grounds alone ifthe employer had known of it at the time of the discharge.”  *Id*. at362-63.  

 

For the reasons which follow, we find that *McKennon* isnot applicable to temporary reinstatement proceedings under the Mine Act.   

 

Temporary reinstatement, pending a determination on themerits of the complaint, is awarded if the Secretary demonstrates that theminer’s complaint is not frivolous.  *See Jim Walter*, 9 FMSHRC at 1306; *KingstonMining, Inc*., 37 FMSHRC at 2522 (the “scope of a temporary reinstatement isnarrow, being limited to a determination by the Judge as to whether a miner’sdiscrimination complaint is frivolously brought.”).  

 

However, temporary reinstatement is not a remedy for aviolation of the Mine Act.[9]  Instead, temporary reinstatement isawarded*pending a determination on the merits of the complaint*.  If theminer prevails on the merits of the complaint, and the Judge finds that theoperator violated the Mine Act, only then does the Judge consider remedies forthe violation.  The Commission has differentiated temporary reinstatement fromremedies and awards by recognizing that “thepurpose of temporary reinstatement is to put the miner back to work as soon aspossible so that he or she can resume earning a living while the discriminationcase is heard.”  *Sec’y of Labor v. North Fork Coal Corp*., 33FMSHRC 589, 592 (Mar. 2011) (citations omitted); *McGaughran*, 42 FMSHRCat 470 n.4.[10]

 

Moreover, the after-acquired evidence doctrine requires theemployer to demonstrate that based on the new evidence of wrongdoing, theemployer would have fired the employee at the time it occurred if the employerwould have known about it.  This standard requires that a Judge makecredibility determinations and resolve conflicts in the evidence, which isinconsistent with the limited nature of a temporary reinstatement hearing. * Sec’yof Labor on behalf of Albu v. Chicopee Coal Co*., 21 FMSHRC 717, 719 (July1999) (“[i]t [is] not the Judge’s duty, nor is it the Commission’s, to resolvethe conflict in testimony at this preliminary stage of the proceedings.”).[11]

 

 For these reasons, an operator is not permitted touse evidence it acquires while preparing for the case on the merits, or evenrelevant evidence it failed to submit for the original hearing on temporaryreinstatement, to repeatedly relitigate the case against temporaryreinstatement.  *See JWR*, 920 F.2d at 748 n.11 (the “not frivolouslybrought” standard reflects a Congressional intent that “employers should bear aproportionately greater burden of the risk of an erroneous decision in atemporary reinstatement proceeding.”).[12]    

 

Simply put, after-acquired evidence of wrongdoing maybe admissible in a full hearing on the merits of a discrimination complaint butis not a basis to toll a temporary reinstatement order.  The Judge did not err.

 

3.     DueProcess and Prejudice

 

Grimes Rock contends that the Judge deprived it of its due processright to a meaningful hearing on its motion to terminate the temporary economicreinstatement.  G.R. PDR 1 at 16-18.  We do not agree.  

 

The motion to toll filed with the Judge did not include arequest for a separate hearing on its motion, nor was Grimes Rock entitled toone.[13]  TheCommission has recognized limited circumstances in which a Judge, prior to thehearing on the merits, may appropriately order an intermediate hearingregarding changed circumstances.  However, in the temporary reinstatement phaseof the litigation, during which the parties may not have completed discovery,the burdens of proof and the standard against which the evidence is evaluatedshould be no different than if the issue had been heard during the initialtemporary reinstatement hearing.  *Cobra Natural*, 35 FMSHRC at 398n.3.  The ultimate determination concerning theappropriate remedy for any alleged discrimination, including the duration of anoperator’s reinstatement obligation, if any, is made in the proceeding on themerits.[14]  *Id*.at 398.  

 

 GrimesRock also contends that continuing the temporary economic reinstatement despitethe emergence of new undisputed evidence caused prejudice.  G.R. PDR 1 at 19.  Asdiscussed above, after-acquired evidence is not appropriate at the temporaryreinstatement stage.  We further reject any claim of economic prejudice.  Congress,in enacting the “not frivolously brought” standard, clearly intended thatemployers should bear a proportionately greater burden of the risk of anerroneous decision in a temporary reinstatement proceeding*.  JWR*, 920F.2d at 744, n.11.  Moreover, the Commission hasindicated that the goal of the Mine Act’s discrimination provision is to makethe miner whole until the case can be decided on the merits.  *Sec’yof Labor on behalf of Rieke v. Akzo Nobel Salt*, *Inc*., 19 FMSHRC1254, 1258 (July 1997) (discussing pertinentlegislative history);*Sec’y of Labor on behalf of Totten v. Tk MiningServices, LLC*, 37 FMSHRC 2217, 2218-19 (Sept. 2015).

** **

We hold thatevidence of prior behavior uncovered after the miner’s discharge but offered aftera decision granting or denying temporary reinstatement has been reached is notappropriate for review prior to the hearing on the merits.

 

 

 

 

 

**B.   ****The Secretary’s petition challenging the Judge’s dissolution ofthe order of temporary reinstatement contemporaneous with her decision findingthat**

**GrimesRock did not violate section 105(c)**

** **

The Secretaryargues that the Judge abused her discretion by terminating Saldivar’s temporaryreinstatement on June 17, 2022, because the merits decision was not yet a finalorder.  Sec’y PDR at 2.  We agree and conclude that the Judge erred when shedissolved the temporary reinstatement order prior to the conclusion of theCommission’s opportunity to direct review.

 

If the Secretarycan show that the discrimination complaint was not frivolously brought, section105(c)(2) of the Mine Act states that “the Commission . . . shall order theimmediate reinstatement of the miner *pending final order*on thecomplaint. . . .”  30 U.S.C. § 815(c)(2) (emphasis added).  An orderissued after a determination on the merits is not final directly upon itsissuance.** **We have previously held that a Judge cannot terminate atemporary reinstatement order concurrently with a decision on the merits.  In *ReadingAnthracite*, the Commission determined that “the language of the Mine Actrequires that a temporary reinstatement order remain in effect while theCommission reviews the judge’s decision.”  *Secretary ex rel. Bernardyn v.Reading Anthracite Co*., 21 FMSHRC 947, 949 (Sept. 1999) (holding that “thetime had not yet passed for the Commission to review the judge’s decision onthe merits . . . . Accordingly, the judge’s decision had not yet become a finalCommission decision.  30 U.S.C. § 824(d)(1).  Thus, the judge lacked statutoryauthority to dissolve the temporary reinstatement order concurrently with hisdiscrimination decision or at any time before we could direct review.”); *Sec’yof Labor on behalf of Noe v. J & C Mining, LLC, and**Manalapan MiningCo*., 22 FMSHRC 705, 706 (June 2000).  

 

In the instantmatter, the Judge erred by terminating the temporary reinstatement before thisCommission could direct review of her merits decision.  Furthermore, temporaryreinstatement ends only after the merits case has become final.[15] Neither scenario had occurred here when the Judge issued her order oftermination.

Accordingly, the Judge erred when sheended the order of temporary reinstatement concurrently with her meritsdecision.  This issue is remanded to the Chief Administrative Law Judge forrecalculation of the temporary reinstatement amount owed between the date theJudge issued the order of enforcement and the date her merits decision becamefinal.[16]  

**C.   ****Grimes Rock’s petition challenging the Judge’s order granting theSecretary’s motion to enforce**

 

Grimes Rock arguesthat the Judge abused her discretion by retroactively modifying the economicreinstatement agreement and ordering the operator to pay the full reinstatementamount after Saldivar lost his other employment.  It notes that Grimes Rockonly agreed to pay the difference between Saldivar’s earnings at the job hesecured after being terminated by Grimes Rock and what he would have beenearning at Grimes Rock.  G.R. PDR 2 at 14; G.R. Reply Br. at 3-5.  The operatorasserts that the Judge improperly interpreted the agreement to include impliedterms that should only have been considered upon the Secretary’s proper filingof a motion to modify the existing order.  G.R. Br. at 27-31.  

 

We conclude thatthe Judge did not err in granting the Secretary’s motion to enforce and infinding that Grimes Rock was obligated to pay Saldivar all wages required tomake the miner whole under the original order of temporary reinstatement.

 

Under section105(c)(2) of the Mine Act, if it is found that a miner’s complaint ofdiscrimination is not frivolously brought, “the Commission, on an expeditedbasis upon application of the Secretary, shall order the immediate*reinstatement*of the miner pending final order on the complaint.”  30U.S.C. § 815(c)(2) (emphasis added).  While temporary “reinstatement” means to placethe miner back to work at the mine during the pendency of the discriminationcase, the Commission has deemed economic reinstatement an acceptablealternative.  Economic reinstatement is negotiated by joint agreement, whichmay be accepted by the Judge in lieu of actual reinstatement.  A Judge may notorder economic reinstatement on his or her own initiative.  *Sec’y on behalf ofMcGoughran v. Lehigh Cement Co., LLC*, 42 FMSHRC 467, 469 (July 2020); *Sec’yof Labor on behalf of Gray v. North Fork Coal Corp*., 33 FMSHRC 589, 593(Mar. 2011), *rev’d on other grounds*, 691 F.3d 735 (6th Cir. 2012).  Inaddition, parties may renegotiate, or Judges may modify economic reinstatementagreements to allow for the offsetting of the temporary reinstatement award bythe amount of wages earned by the miner from other employment during thereinstatement period.  *North Fork Coal Corp*., 33 FMSHRC at 595-96. 

 

Congress statedthat: “The Committee feels that this temporary reinstatement is an essentialprotection for complaining miners who may not be in the financial position tosuffer even a short period of unemployment *or reduced income* pending theresolution of the discrimination complaint.”  S. Rep. No. 95-181, at 36-37(1977), *reprinted in* Legis. Hist. at 624-25 (emphasis added).  Congressalso stated that temporary reinstatement was intended “[t]o protect miners fromthe adverse and chilling effect of loss of employment while [a discriminationcomplaint is] being investigated.” S. Conf. Rep. No. 95-461, at 52 (1977),reprinted in Legis. Hist. at 1330; *Sec’y on behalf of Bussanich v. CentraliaMining Co*., 22 FMSHRC 153, 161–62 (Feb. 2000).  

 

Consistent with thelegislative history, the Commission has held that “the purpose of the temporaryreinstatement provisions is to put the miner, during the time he [or she]pursues [a] discrimination claim, *in no worse a position than he [or she] waswhile working for the operator.*”*  See**North Fork*, 33 FMSHRCat 597-98 (emphasis added).  We have noted that a “Judge may defer ruling on atemporary reinstatement application or implementing a temporary reinstatementorder in light of an economic reinstatement agreement between the parties *thatis consistent with the purposes of section 105(c)*.”  *Lehigh Cement*,42 FMSHRC at 469 (emphasis added).    

 

A miner is not“reinstated” if the miner is receiving less pay than what he or she would havereceived if the termination had not occurred.  Under an order of temporaryreinstatement, it is the operator’s responsibility to ensure that the miner isno worse off than when employed by the operator prior to the discriminationcomplaint.  This status quo requirement remains even when the miner no longerhas any alternative employment to offset the operator’s payment.  Here, whenthe Judge first awarded Saldivar temporary reinstatement, her decisionspecifically reinstated “Mr. Saldivar to his former position at the mine . . .at the same rate of pay and with all benefits, including any raises, that hereceived prior to discharge, pending a final Commission order on the complaintof discrimination.”  *Grimes Rock*, 43 FMSHRC 287, 292 (May 2021).  Thedecision was subsequently affirmed by the Commission.  *Grimes Rock*, 43FMSHRC 299 (June 2021).  The parties then agreed to economic reinstatement andbecause Saldivar had secured other employment at that time, Grimes Rock’spayments were set at the difference between Saldivar’s earnings at his new joband what he would have been making at Grimes Rock.  

 

Although theagreement was silent on what would happen if Saldivar no longer had otheremployment to offset Grimes Rock’s payments, interpreting that silence to meanthat Grimes Rock is responsible for something less than what is required to“reinstate” Saldivar would not be “consistent with the purposes of section105(c).”  It is also difficult to believe that the Secretary and miner wouldagree to any compensation that was less than what the Judge had already awardedor to any terms that would “put [Saldivar] . . . *in [a] worse [] positionthan he was while working for the operator*.”  *See**North Fork*,33 FMSHRC at 597-98.  There is no indication in the record that Saldivarintended to waive any portion of the full wages to which he was statutorilyentitled.[17]  Likewise, we see no sign in theJudge’s decision approving settlement that she intended to approve anyagreement that would run afoul of the Mine Act by placing the miner in asituation that would make him less than whole.  

 

In fact, in theJudge’s Order granting the Secretary’s motion to enforce, she stated that: “TheEconomic Reinstatement Order was issued in the shadow of the initialReinstatement Order, which mandated full and total reinstatement for Saldivarat this previous rate of pay.  I approved the parties’ settlement agreementinsofar as it adequately made Saldivar whole while his discrimination case waspending.”  ALJ Ord. Gr. Sec’y Mot. to Enforce at 2 (June 17, 2022).  Shefurther noted that her initial order was issued to accomplish the goal of thetemporary reinstatement provision and the order approving economicreinstatement simply “‘described how the parties proposed to implement reliefordered by the Judge pursuant to the Mine Act.’”  *Id*., *quoting**NorthFork*, 33 FMSHRC at 592.   

 

We conclude thatany economic reinstatement agreement and any order issued by a Judge must beconsistent with the purpose of the temporary reinstatement provision of theMine Act, which is to make the miner whole.  See *North Fork*, 33 FMSHRCat 593; *Lehigh Cement*, 42 FMSHRC at 469.  

 

Grimes Rock arguesthat California statutory rules of contract interpretation govern the temporaryreinstatement agreement, therefore any ambiguity in the agreement as to theoperator’s payment obligations in the event of Saldivar’s loss of alternativeemployment must be construed against the Secretary.  G.R. PDR 2 at 18-23.  Wereject this argument.  The parameters of any temporary reinstatement agreementare first dictated by the statute, and any ambiguity shall be interpreted tofurther the purposes of the Mine Act.[18]  A private agreement simply cannottrump a valid order of temporary reinstatement issued pursuant to section105(c).  In light of this, it would have been reasonable for all involved toassume that in the event Saldivar no longer had other employment, Grimes Rock’spayments would automatically revert to the full amount under the Judge’soriginal order, which was still in place.

 

Conversely, GrimesRock goes on to assert that it was implied in the agreement that “Mr. Saldivarwould act in good faith and exercise reasonable efforts at maintaining anemployable status,” which he failed to do.  G.R. PDR 2 at 11.  We reject thisnotion as the Mine Act does not require a miner to mitigate an operator’stemporary reinstatement obligation, which includes agreeing to offset anoperator’s payments due to other employment.  A miner’s only obligation tomitigate in a section 105(c) proceeding is limited to the consideration ofbackpay in the merits case.  However, we have already distinguished backpayawards from wages owed under temporary reinstatement.  *North Fork*, 33FMSHRC at 592.  

 

We also find unpersuasiveGrimes Rock’s argument that it would not have agreed to full economicreinstatement.  G.R. PDR 2 at 21.  Given the mandates of the Mine Act and theJudge’s original reinstatement order, the operator’s agreement was notnecessary.  If Grimes Rock had not opted for economic reinstatement, it wouldhave had to physically reinstate Saldivar at his full pay.  In any event,Saldivar was entitled to receive his full wages.  “Economic reinstatement” allowsthe miner the benefit of receiving his or her normal pay, while permitting theoperator to avoid bringing the miner back into the workplace.  See *LehighCement*, 42 FMSHRC at 469.

 

We conclude thatan economic reinstatement agreement must work in tandem with any existing orderof temporary reinstatement and cannot deprive a miner of the full wages owedunder and intended by the Mine Act’s temporary reinstatement provision.[19]   

 

Finally, Grimes Rockmaintains that it was deprived of its due process right to a hearing, which it contendsit was entitled to if the Judge was going to impose an increased paymentamount.  We disagree.  A temporary reinstatement hearing was held and an orderissued temporarily reinstating Saldivar “at the same rate of pay and with allbenefits, including any raises, that he received prior to discharge, pending afinal Commission order on the complaint of discrimination.”  *Grimes Rock*,43 FMSHRC at 292.  As we have stated, the settlement agreement could not divestMr. Saldivar of any pay owed to him under the original order and served only todescribe his manner of reinstatement.  Finally, contrary to Grimes Rock’sassertion, the Judge did not increase the amount Grimes Rock owed to Saldivar. The operator simply lost the benefit of Saldivar’s other employment offsettingits payments.  The operator was due no additional hearing.  

 

 Accordingly, we reject thenotion that the Judge retroactively modified the parties’ settlement agreementand conclude that the Judge did not err in granting the Secretary’s motion toenforce.    

 

**D.   ****Secretary’s motion for interest and consequential damages**

 

The Commission grants theSecretary’s motion for interest.  Specifically, Grimes is obligated to payinterest, pursuant to section 105(c)(2) of the Mine Act, on any yet unpaid temporaryreinstatement payments owed to Saldivar.  In addition, Grimes is obligatedto pay interest on any temporary reinstatement payments that were paid late toSaldivar.  On remand, the Judge should determine the amounts of anyremaining temporary reinstatement payments owed as well as interest owed. 

 

Additionally,on remand, the Judge should determine whether consequential damages as a resultof Grimes’ failure to timely comply with the Judge’s orders areappropriate.  *See e.g., Amos Hicks v. Cobra Mining*, 14 FMSHRC 50(Jan. 1992). 

**III.**

**Conclusion**

 

Forthe foregoing reasons, we affirm the Judge’s order denying the operator’smotion to toll temporary reinstatement.  We vacate the Judge’s order dissolvingthe temporary reinstatement as of the date of her order and decision, andremand it for assignment to a Judge for recalculation of the temporaryreinstatement amount owed between the date the Judge issued the order ofenforcement and the date her merits decision became final.  We affirm theJudge’s order enforcing temporary reinstatement.  Finally, we grant theSecretary’s motion for interest and consequential damages and remand thismatter for a determination of any remaining temporary reinstatement paymentsand interest owed as well as a determination on whether consequential damagesare appropriate.

 

 

 

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

 

 

 

/s/ Marco M. Rajkovich,Jr.

MarcoM. Rajkovich, Jr., Commissioner

 

 

 

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner 

 

 

 

 

**Commissioner Althen, dissenting:**

            I respectfully dissent.

**I. **

** **

**FACTUAL BACKGROUND**

 

            OnOctober 6, 2020, Saldivar submitted an employment application to Grimes.  Theapplication signed by Saldivar asked: “Have you ever been convicted of, pleadguilty/no contest to a crime?”  Saldivar responded, “possession of a loadedfirearm.”  G.R. PDR 1, Decl. of Pachowicz, Ex 6.  Saldivarcertified that the answers were true and acknowledged that falsification wouldbe grounds for dismissal.  Despite his certification and acknowledgment, it isnow indisputable that Saldivar lied on the application.

 

            In2021, the Secretary requested temporary reinstatement on behalf of Saldivar. An Administrative Law Judge (“ALJ”) temporarily reinstated Saldivar on May 18,2021.  Afterward, the parties entered into an economic reinstatement agreementexplicitly prescribing the terms of his reinstatement – namely, the moniesSaldivar would receive from Grimes.  This prescribed amount was the differencebetween the salary Grimes had paid Saldivar and the amount Saldivar earned at anew job.1  The ALJ accepted the parties’agreement and entered an Order containing the terms of the agreement. 

 

 

 

 

AfterSaldivar’s discrimination complaint, Grimes acquired evidence that contrary toSaldivar’s certified statement the prior year, Saldivar previously wasconvicted of, among other things:

 

a.    Willfully causing or permitting achild to be placed in a situation where his or her person or health is endangered,

b.    Being under the influence of cocaine, cocaine base, heroin, methamphetamine, orphencyclidine while in the immediate personal possession of a loaded, operablefirearm,

c.    Commission of a felony afterrelease on bail of own recognizance,

d.    Possessing an assault weapon.

e.    Possession of a controlledsubstance while armed with a loaded, operable firearm, 

f.     Possessing a sawed-off shotgun orrifle, and

g.    Carrying a loaded firearm in avehicle2

 

*People v.Saldivar*, Case No. 2016002309,Superior Court of California, County of Ventura, available athttps://secured.countyofventura.org/courtservices/Information/

CaseInformationSearch.aspx(last visited Aug. 28, 2023).3

 

            Whileon temporary reinstatement, on September 16, 2021, Saldivar pled guilty to atheft charge.  He subsequently spent 75 days in the Ventura County, Californiajail.  The Secretary recognized that Saldivar committed the crime and agreedthat Grimes need not make temporary reinstatement payments to Saldivar duringhis incarceration.

 

           On November 29,2021, Grimes filed a motion to toll temporary reinstatement.  Grimes madeseveral arguments, including (1) after-acquired evidence that Saldivar failedto disclose prior severe crimes on his certified employment application despitenotice that a failure to report fully could cause discharge and (2) Saldivar’scriminal misconduct after his reinstatement.  On January 7, 2022, the ALJdenied Grimes’s motion to toll without a hearing.  The ALJ failed even toconsider Saldivar’s post-reinstatement criminality.  Indeed, the ALJ neitherconsidered nor ruled on the impact of Saldivar’s criminality uponreinstatement. 

 

  As a result, thiscase does not present the Commission with the normal process of reviewingfactual findings for substantial evidence.  The ALJ made no factual findingsrelated to Saldivar’s criminality to review.  However, the commission of thecrimes is undisputed.  Further, the ALJ’s denial of the motion to toll did notdiscuss the legal effect of post-reinstatement criminality.  Therefore, the ALJdecision made no legal findings relevant to the Commission’s review.  

 

           On January 17,2022, the Commission granted a Petition for Discretionary Review challengingthe ALJ’s denial of tolling.  In early 2022, Saldivar again went to jail – thistime, for failure to appear.  Grimes again filed a motion to toll.  Saldivarspent sixty-five days in jail.  The ALJ granted tolling only for the periodSaldivar was in jail.  Again, Grimes filed a Petition for Discretionary Reviewof the ALJ’s refusal to toll, and the Commission granted review.  TheCommission issues its decision on tolling today, long after the ALJ absolvedGrimes from the discrimination claim and long after Grimes paid Saldivar tensof thousands of dollars.

 

On June 17, 2022, five months after aremote hearing, the ALJ foundGrimes had not discriminated against Saldivar and dissolved the TemporaryReinstatement Order.  That same day, six months after Saldivar’s release fromjail, the ALJ granted the Motion to Enforce filed by the Secretary in May.  TheALJ’s Enforcement Order explicitly required Grimes to pay Saldivar $12,533.94. The Secretary expressly requested this amount, subject to minor adjustmentsafter the filing.  The Secretary did not seek any consequential damages, and theALJ never considered a claim for consequential damages.  See Sec’y Motion toEnforce (May 27, 2022).

                                                                                                                                                                                                   

            On July 13, 2022, theSecretary filed a Petition for Review challenging the ALJ’s dissolution oftemporary reinstatement on June 17, arguing the Mine Act entitled Saldivar tocontinue temporary reinstatement until the expiration of any period of appealor thirty days after the ALJ’s decision if neither the Secretary nor Saldivarfiled an appeal.  On July 13, 2022, Grimes filed a Petition for Reviewchallenging the ALJ’s grant of the Secretary’s motion to enforce.  TheCommission granted both petitions.  

 

            On August 25, 2022,approximately 69 days after the ALJ found no discrimination and 39 days afterthe period for filing a Petition for Review, the Secretary filed a Motion for 

Consequential Damages directly with theCommission.  

 

**II.**

 

**TOLLINGREINSTATEMENT**

** **

**A.   ****The commission of crimes duringtemporary reinstatement and after-acquired evidence of dischargeable misconductwarranting termination may limit compensation**

The Supreme Court has recognized that after-acquiredevidence warranting termination may limit compensation to the period before adefendant obtains such evidence.  Further, dischargeable misconduct duringregular employment, permanent reinstatement, or temporary reinstatementwarrants termination of employment.

In *McKennon v. Nashville Banner Publ’g Co.*, 513U.S. 352 (1995), the Supreme Court considered new facts supportingtermination, which the employer only learned about after discharging theemployee.  The Court held that compensation would cease when the employerlearned of the employee’s actions justifying termination.  It stated that:  

 

The proper boundaries of remedial relief in the generalclass of cases where, after termination, it is discovered that the employee hasengaged in wrongdoing, must be addressed by the judicial system in the ordinarycourse of further decisions, for the factual permutations and the equitableconsiderations they raise will vary from case to case.  We do conclude thathere, and as a general rule in cases of this type, neitherreinstatement nor front pay is an appropriate remedy.  ***It would be bothinequitable and pointless to order the reinstatement of someone the employerwould have terminated, and will terminate, in any event and upon lawfulgrounds.***

 . ..  

***Once an employer learns about employeewrongdoing that would lead to a legitimate discharge, we cannot require theemployer to ignore the information***, even if it is acquired during the course of discovery in asuit against the employer and even if the information might have goneundiscovered absent the suit.  The beginning point in the trial court’sformulation of a remedy should be calculation of backpay from the date of theunlawful discharge to the date the new information was discovered.

 

*Id*. at 361-62 (emphasisadded).4

 

            The majority’s position on Grimes’s presentation of new crimes andafter-acquired evidence flouts this Supreme Court precedent.  The Court hascogently and directly held that after-acquired evidence makes it inequitableand pointless to continue the reinstatement of someone the employer would haveterminated, and will terminate, in any event, upon lawful grounds.  Necessarily, this principle applies equally to newmisconduct, 

 

            Themajority “stresses” that the factualallegations raised by the operator “were relevant to, and were considered bythe Judge in, the case on the merits, where the operator prevailed.” Slip op. at6 n.7.  In so doing, the majority recognizes that the factual allegations ofnew misconduct and after-acquired evidence may point to denial ofreinstatement.  However, despite the Supreme Court’s instruction, they aresatisfied to allow such new events to linger unreviewed until a hearing on themerits.  Here, the delay was for eight months.

            Moreover,the ALJ did not consider theafter-acquired evidence and new misconduct in her decision issued in June2022.  The majority’s misstatement that the ALJ considered such evidence andthe ALJ’s failure to consider the evidence demonstrates the wrongfulness of themajority’s willingness to accept a delay of many months to assesspost-reinstatement events and evidence disqualifying Saldivar from permanentreinstatement.  Having recognized that the new evidence and events are relevantto continued employment, the majority endorses the “inequitable andpointless” process of not permitting a hearing regarding a complainant whom theoperator could terminate based on after-acquired evidence or post-reinstatementmisconduct.

**B.   ****TheCommission Errs by Refusing to Consider Evidence of Misconduct After Reinstatementand After-Acquired Evidence**

** **

1.    Criminal activity by areinstated person after reinstatement justifies discharge.

The Mine Act provides crucial safety andhealth protection for miners.  Section 105(c) of the Act supports thoseprotections.   There, the Act prohibits discrimination against a miner becauseof the exercise of any of the protections of the Act.  Section 105(c) furtherseeks to assure that miners will not suffer a temporary loss of employmentbecause of exercising a protected right.  It provides for the temporaryreinstatement of a miner if the Secretary presents a “non-frivolous” claim ofdiscrimination.5  These are essential rights.

            The Mine Act, however, doesnot exempt miners from the obligation of all workers to observe the legally requirednorms of society at work and away from work.  In this case, undisputed evidencedemonstrated that Saldivar engaged in criminal misconduct for which he servedtwo jail sentences totaling several months and lied on his employmentapplication.  

This case presents a significant issueof first impression for the Commission:  Does temporary reinstatement protect areinstated complainant from discipline if the complainant engages in criminalwrongdoing, resulting in incarceration after reinstatement?  Thespecific criminal wrongdoing in the case is theft, followed by failure toappear.  However, as a case of first impression, the case also presents thebroader question of the effect of criminal misconduct by or incarceration of areinstated complainant after reinstatement.

After temporaryreinstatement, Saldivar committed crimes of theft and failure to appear.  Thereis no dispute over his guilt or his jail terms.  The Secretary does not disputethat such crimes occurred and agrees that Saldivar was not entitled to paywhile in jail.6  

** **

            The Mine Act does not differ from generalemployment law for discipline motivated by a reason other than protectedactivity.  Unless employees have a contract, employers may discharge employeesfor any reason that is not unlawful.  *Engquist v. Oregon Dept. of Agr*.,553 U.S. 591, 606 (June 2008) (“The basic principle of at-will employment isthat an employee may be terminated for a good reason, bad reason, or no reasonat all.” (citing *Andrews v. Louisville & Nashville R. Co*., 406 U.S.320, 324 (May 1972))).  Employment at-will is the law in California.  *Guz v.Bechtel Nat’l Inc.*, 24 Cal. 4th 317, 335 (Oct. 2000); *Cittadino v.BrandSafway Services, LLC*, 2023 WL 3440407 (E.D. Cal May 2023) (“Under California law, there is a strong statutorypresumption of ‘at will’ employment.”).  There is no doubt that absent a claimof discrimination or other legal impediments, the employer could refuse tore-employ the worker.  

 

In this case, the issue is whether a reinstated workerhas a right to return to reinstatement if the attempt to return is after a jailterm for theft.  Does a reinstated workerhave more rights than a regular employee?  Does the Secretary’s presentationmonths earlier of a non-frivolous claim protect a complainant from the ordinaryprospect of discipline for post-reinstatement misconduct warranting dischargeor after-acquired evidence of misconduct warranting discipline?  Is areinstated complainant legally entitled to engage in crimes or other unsafe ordangerous actions and retain or regain reinstatement with no questions asked byhis employer?

 

            A diligent review does not disclose anydispensation in the Mine Act for crimes committed by reinstated employees. Reinstated employees should and must follow the lawful requirements imposedupon all workers.  One does not suppose that even the majority would supportcontinued reinstated employment if the reinstated complainant stopped coming towork or committed safety violations in the workplace.  It would not matterwhether such conduct is a “change of circumstances” or simply “misconduct.”7 The availability of discipline would be the same. 

 

Unfortunately, the majority decisionfails to fulfill the most fundamental requirements of appellate adjudication—afair representation of the appellant’s argument and presentation of aprincipled legal basis for the appellate decision.  

The majority bases its decisionregarding tolling upon a misrepresentation of Grimes’s position and the issuein the case.  The majority says Grimes seeks to extend tolling to “a situation where the operator no longer wishes tooffer employment to a miner.  Specifically, Grimes Rock argues that tolling isjustified because it no longer desires to employ Saldivar due to his periods ofincarceration and the criminal allegations against him.”  Slip op. at 5.

The assertion that Grimes argues that it simply nolonger wished to employ Saldivar is wrong – a makeweight for an erroneousdecision.  Grimes bases its argument upon Commission case law that a “change ofcircumstances” may warrant tolling.  Indeed, elsewhere, in its opinion, themajority expressly notes that a “change of circumstances” is a reason fortolling.  Slip op. at 4. 

 

Grimes argues that criminal misconduct by acomplainant after temporary reinstatement is a “changed circumstance” thatwarrants tolling the employment of the miscreant complainant.  This argumentclaims that reinstatement does not make a complainant immune from theconsequences of criminal misconduct after reinstatement.  Grimes does notassert that temporary reinstatement may be tolled based upon a “wish” butrather on the confessed criminal misconduct of the complainant afterreinstatement.

 

Grimes correctly contends that just as an employer mayterminate the position of a regular employee or a permanently reinstatedemployee for criminal misconduct, temporary reinstatement does not create ahaven from the results of criminal mischief that occurs after the temporaryreinstatement.  Discipline may occur when a reinstated employee engages inpost-reinstatement misconduct warranting discipline.

 

This same logic applies to Saldivar’s time in jailwhen he would not have been able to work.  An employee would not expect tomaintain employment after being absent due to a jail sentence.  Moreover, neitherthe majority nor the Secretary dares go as far as to assert that Saldivarshould have received temporary reinstatement while in jail. They both say thatthe Mine Act demands an operator rehire an individual after a stint ofunavailability to work due to the individual’s intentional misconduct.   

 

            The majority doubles down on itsmisinterpretation of Grimes’s argument by finding that Grimes’s claim that anoperator may discipline a temporarily reinstated complainant who engages inpost-reinstatement criminal misconduct would mean that in every instance, anoperator could discharge any temporarily reinstated worker, regardless of the occurrenceof misconduct.  Slip op. at 5.  That finding drawn from its misstatement ofGrimes’s argument is facially incorrect—another makeweight for error.  

 

The fundamental issue is whether misconduct by atemporarily reinstated complainant may constitute a circumstance permittingdiscipline.  The specific misconduct in this case is theft and failure toappear.  Here, a temporarily reinstated complainant committed crimes afterreinstatement for which an operator normally could, and almost certainly would,discipline a permanently reinstated worker or regular employee.  It issenseless to find that the operator must wait for perhaps many months for adecision on the merits of the discrimination claim before acting on the newmisconduct.8  In this case, the gap betweenmisconduct and a final decision was eight months.  In another currently pendingcase, the gap between reinstatement and a finding on the merits was 17 months,and the case has been pending upon review for nearly a year. * Sec’y onbehalf of Hargis v. Vulcan Constr. Materials, LLC*,**SE 2021-0163,2022-001, 2022-013.

 

            Asstressed above, Grimes’ argument and the undisputed facts of Saldivar’s crimespresent a case of first impression regarding the consequences ofpost-reinstatement misconduct.  Saldivar’s specific acts of post-reinstatementmisconduct were theft and failure to appear, both of which resulted in manyweeks of incarceration.  The case raises an important legal question of theeffect of post-reinstatement misconduct.9

 

            Nonetheless,the majority states it is not ruling on this seminal question and issuesno principled guidance regarding tolling for post-reinstatement misconduct. The majority proclaims its lack of principled reasoning: “We take no positionon whether our narrow tolling doctrine could be extended to other fact patternsnot raised by this case.”  Slip op. at 6 n.7.

  

The majority does not explain why a reinstatedcomplainant may commit crimes or other acts warranting discipline without anydisciplinary consequence.  The majority does not base its decision on any legalprinciple or reasoning.  By doing so, in derogating proper appellateadjudication, the majority fails to provide any principled legal basis for itsdecision or guidance to ALJs.  It simply says, “no discipline” in this case.  

 

By not taking any position on thepossibility of discipline for misconduct, the majority decision is simply anarbitrary and unreasoned refusal to permit any adverse consequences to flowfrom Saldivar’s criminal conduct.10  Because this decision is limited toSaldivar and Saldivar alone, readers and ALJs may draw no legal principle fromthe majority decision.  It is a decision without any underlying principle.

            Moreover, the opinion doesnot appear to be a “majority” decision.  In footnote 5, the opinion states thatCommissioner Rajkovich, perhaps writing only for himself, would find itreasonable to consider changes in a miner’s circumstances on a case-by-casebasis.  Apparently or possibly, unlike the Chair and Commissioner Baker, herecognizes a right to impose discipline for misconduct.  

The decision states that CommissionerRajkovich fully joins the entire opinion.  However, it does not state whetherChair Jordan and Commissioner Baker agree with Commissioner Rajkovich’sopinion.  It appears Chair Jordan and Commissioner Baker neither deny noraffirm that post-reinstatement misconduct can warrant tolling.  They “take noposition on it.”  Slip op. at 6 n.7.  However, Commissioner Rajkovich findsthat the tolling doctrine extends to discipline for misconduct.  Do ChairJordan and Commissioner Baker join Commissioner Rajkovich?11  TheCommission leaves the public and ALJs with a unanimous decision but without amajority decision on whether an employer may terminate a reinstated employeefor crimes of theft and failure to appear.  The majority opinion is a refusalto explain its joint decision and an “add-on” opinion by Commissioner Rajkovichabout which Chair Jordan and Commissioner Baker express no opinion.

The result is a tottering legal standardthat cannot stand on its own weight.  Worse yet, these flaws are by design. The majority appears to want to craft an amorphous standard for tolling thatallows for ad hoc review whereby the result can be bent to suit the desires ofthe Commission without regard for any underpinning legal rule.  How can theregulated community, the Secretary, or Commission ALJs know whether temporaryreinstatement can be tolled in a particular situation?  One can only guess. Without a principled finding, they will find no help in the majority’sdecision. 

            Finally, as discussed further below, the majority’sfinding that Grimes was not entitled to a hearing is contrary to due processand recent Commission precedent.  In *Secretaryof Labor on behalf of Torres v. W.G. Yates & Sons Construction Company***,**the Commissionunanimously found that the Secretary was entitled to a hearing on tolling atwhich she could present evidence concerning the tolling of reinstatement.  2023 WL 5170092**(**July 2023).  The Commission required an appropriate hearing to provide“the parties with the opportunity to presentevidence on tolling outside of the initial temporary reinstatement hearing.”  *Id*.at 4 n.4.12  Obviously, it is wrong for theCommission to accord the Secretary greater rights to defend against tollingthan operators have in asserting tolling.  Such inconsistent decisions mayraise questions regarding the impartiality of Commission decisions.

            By reflexively neutering the right of anoperator in a position such as Grimes to discipline a temporarily reinstatedworker for misconduct after initial reinstatement, the majority effectively optsfor the immunization of reinstated workers from redress for misconduct.  Such adecision is not acceptable.

2.    Indisputable EvidenceDemonstrates That Saldivar Told Material Lies in Applying for Employment withGrimes.

Documentary evidence submitted by Grimes demonstratesthat Saldivar’s employment application asked if he had been convicted of orpled guilty to a crime.  Saldivar replied that he had been convicted of“possession of a loaded firearm.” Grimes hired Saldivar despite such aconfessed conviction.  Court records found and submitted after reinstatementdisclosed that Saldivar lied on the application.  He had been convicted ofseveral felonious crimes far more severe than possessing a firearm.  Saldivar’slie on his application meets an expressly written condition for discharge.   

 

Saldivar had pled guilty or admitted to multiplefelonies: (1) carrying a loaded firearm in a vehicle, (2) child endangerment(two counts), (3) possession of an assault weapon, (4) committing a crime whileon bail, (5) the offer for sale/transfer/possession of a short-barreled rifleor shotgun, and (6) possession of a controlled substance while in possession ofa firearm.  *People v. Saldivar*, Case No. 2016002309 Superior Court ofCalifornia, County of Ventura.

 

The Commission permits post-temporaryreinstatement hearings on whether changed circumstances warrant tolling.  *Sec’y**on behalf of**Ratliff v. Cobra Nat. Res., LLC*, 35 FMSHRC 394 (Feb. 2013).  It is insensible to readthe Mine Act to permit tolling on changed circumstances through the closure ofa mine or layoffs but not to permit such hearings when the operator discoversdispositive evidence after the initial hearing of new and different grossmisconduct by the complainant.

** **

**           **Anoperator may not attempt to relitigate the temporary reinstatement hearing byasserting new evidence to show the miner did not engage in the protectedactivity claimed at the initial hearing or that the operator’s original reasonfor terminating the miner was not motivated by protected activity.13 However, in this case, the after-acquired evidence does not relate to analleged protected activity or the motivation for the initial discipline.  It isfree-standing, newly acquired evidence for which Grimes may disqualify Saldivarfrom resumed employment.14

 

            * *Courts have recognized the application of after-acquiredevidence to a variety of statutes.  *Russellv. Microdyne Corp.,* 65 F.3d 1229,1240 (4th Cir.1995); *Mardell v. Harleysville Life Ins.*  Co., 65 F.3d 1072, 1073-74 (3rd Cir. 1995); *Wallace v. Dunn Constr. Co.*, 62 F.3d 375, 378(11th Cir. 1995); *Wehr v. Ryan’sFamily Steak Houses, Inc*., 49 F.3d1150, 1153 (6th Cir. 1995); *Manard v. Fort Howard Corp*., 47 F.3d 1067, 1067 (10th Cir. 1995). *See also LA Film School, LLC & Its Branch, La Recording Sch., LLC &California Fed’n of Teachers & Brandii Grace*, 358 NLRB 130, 141-42(Mar. 2012),***John Cuneo*, 298 NLRB 856 (June 1990); *Marshall Durbin PoultryCo.*, 310 NLRB 68, 70 (Jan. 1993), *aff’d in relevant part*, 39 F.3d1312 (5th Cir. 1994) (NLRA); *Crapp v. City of Miami Beach*, 242 F.3d1017, 1021 (11th Cir. 2001) (Title VII); *Miller v. AT&T Corp.*, 250F.3d 820, 837 (4th Cir. 2001) (Family and Medical Leave Act); *Wallace v.Dunn Constr. Co.*, 62 F.3d 374, 378 (11th Cir. 1995) (Title VII and theEqual Pay Act).

 

            ALJ Lewis applied theafter-acquired evidence principle in *Sec’y of Labor on behalf of McKinsey v.Pretty Good Sand Co., Inc*,**36 FMSHRC 2843, 2870 (Nov. 2014). Although the operator failed to mount an effective affirmative defense, the ALJfound that an independent ground existed for dismissal.  Prior threats made bythe miner were of such a nature as to render the complainant unfit foremployment.  Therefore, the ALJ limited backpay to the date the operatorlearned of the threats.15  *Id*.  The critical point isthat the complainant did not have any right to damages or, in this case, toreinstatement for a period after new evidence demonstrated that the operatorwould have discharged him legitimately for proscribed conduct.  As the Supreme Court said in *McKennon*,waiting months for an inevitable termination of an undeserved benefit isinequitable and unfair.  That is especially true when, as here, the operatormay not recapture the undeserved payments.16

 

**III.**

** **

**Grimeswas entitled to BE Heard on its motions to toll.**

** **

**           **Dueprocess requires a hearing at a meaningful time and in a meaningful manner.  *Mathewsv. Eldridge,*424 U.S. 319 (1976).  Most often, litigants think of a hearingas an appearance before a tribunal during which witnesses testify and introduceevidence.  However, at its most fundamental level, *Mathews*means a rightto be “heard” – a right for an impartial tribunal to listen to a party’sarguments and reach a reasoned and impartial decision.   

 

            In this case, the ALJ did not merely failto hold an evidentiary hearing; the ALJ struck the entire “fact” section ofGrimes’ argument from the record and further struck from the record Grimes’argument based on those facts.  She ordered: 

 

It is **ORDERED**that Section III [the facts section] of Respondent’s Motion to Toll, aswell as any other portion of the motion or other document filed that recites orrelies upon those “facts,” be **STRIKEN**from the record.

 

Order at 4 (Jan. 7, 2022).  Thus, the ALJ did not evenconsider Grimes’ argument that forms of post-reinstatement misconduct, such astheft, may warrant tolling.  The ALJ found that only a lack of work for thereinstated individual warrants tolling.  She did not listen to – that is, hearGrimes’ position.  

 

            If Chair Jordan and Commissioner Bakermean to imply that only the absence of available work can cause tolling so thatcrimes, unsafe acts, threats of violence, refusal to perform work, and othersuch actions do not permit tolling, then the ALJ did not need to hear Grimes’argument because no crimes or safety violations could warrant tolling.  As seenabove, however, such a ruling would be repugnant to the purposes of the MineAct and employment law generally in the face of after-acquired evidence ofmisconduct and post-reinstatement misconduct.    

 

            Crimes by an employee constitute alegitimate reason for discharge unless a claimant proves discrimination. Moreover, even if, as Commissioner Rajkovich would require, a pre-existing“policy” was necessary to discharge an employee for criminality, how couldGrimes have “proved” that fact without an adversarial, evidentiary hearing?  Itdid “prove” its policy to discharge lying job applicants.  Indeed, as seenabove, the Commission has held that the Secretary is entitled to a hearing.  *CobraNatural Res.,*35 FMSHRC at 397.* *Not only was Grimes not given achance to provide such proof, but as set forth above, the ALJ refused even tohear the argument or permit the attachment of evidence to its motion.  It isimpossible to discern how Grimes failed to “prove” its position when the ALJneither listened to Grimes’ position nor permitted the admission of anyevidence regarding its position to the record.

 

Finally, we need only point to *W.G. Yates & Sons, supra*, to show that the Commission has unanimously recognizedentitlement to a hearing in tolling cases.  2023 WL 5170092 at 4 n.4.  If theSecretary must have a legal right to challenge tolling based upon undisputedfacts, the operator must have a right to present facts, even though undisputed,warranting tolling.

 

            The majority does not have principledgrounds for finding Grimes was not entitled to even the possibility of tollingSaldivar’s reinstatement.  They cannot explain why.  They do not permit any disruptionin the reinstatement of a confessed criminal. 

 

            In*Secretary**on behalf of**RobertGatlin v. KenAmerican Resources, Inc.*31FMSHRC 1050, 1054 (Oct. 2009), the Commission found that “the Judge abused herdiscretion when she determined that a temporary reinstatement order requires aminer to be employed under any circumstance, regardless of changes that occurat the mine after issuance of the temporary reinstatement order.”  The Commissionviolates its own well-stated principle without hearing Grimes’ argument.

** **

**IV.**

 

**  THE MOTION TO ENFORCEWAS IMPROPERLY GRANTED.**

**A.   ****Facts Related to the Motion to Enforce**

** **

**           **OnMay 18, 2021, the ALJ issued an Order requiring Grimes to reinstate Saldivartemporarily.  After that, the parties negotiated a “settlement agreement”providing economic reinstatement for Saldivar instead of actual temporaryreinstatement.  On May 27, 2021, the Secretary and Grimes filed a “SettlementAgreement and Joint Motion for Temporary Economic Reinstatement.”17 In the attached proposed Decision Approving Settlement, the parties mutuallyagreed upon a settlement that stated: 

 

            Respondent shall economically reinstateMr. Saldivar to his position as a miner starting May 19, 2021, effective as ofthe entry of this Decision and Order.  Respondent shall pay the differencebetween Mr. Saldivar’s earnings at his present place of employment Wayne J.Sand and Gravel and Grimes Rock Inc. based on the average amount of hours workedat each place of employment at his regular rate of pay for the first fortyhours and at the overtime rate for any hours over forty.  Based on thesecalculations, Respondent shall pay $2,136.78 per pay period (bi-weekly, every 2weeks) subject to normal deductions.  Mr. Saldivar will not report for dutywith Grimes Rock Inc. during the temporary economic reinstatement period.

 

            On May 28, 2021, the ALJ entered an “Order ApprovingSettlement Order of Temporary Economic Reinstatement.” The Order stated, 

 

I accept the representations and modifications of theSecretary as set forth in the motion.  I have considered the documentationsubmitted, find that the terms are reasonable, and conclude that the proposedsettlement is appropriate under the Mine Act.  The joint motion for temporaryeconomic reinstatement is hereby **GRANTED**.  The Respondent is **ORDERED**topay Mr. Saldivar $2,134.78 per pay period (every two weeks), subject to normaldeductions, and to otherwise comply with the terms of the settlement agreement.

 

Order at 2 (May 2021).  

 

The Secretary and Grimes submitted a proposed economicreinstatement Order to the ALJ under which payments would cease if Saldivarobtained employment at an equal or higher pay rate.  However, the settlementagreement between the parties did not contain such a provision.  The ALJ’sOrder accepted the terms of the settlement agreement and did not take any noteof or provide for that condition in the parties’ Proposed Decision.  Thus, theALJ’s Order followed the terms of the settlement agreement rather than theproposed order.  

 

            After Saldivar’s release fromprison in November 2021, understandably, Saldivar lost his then-currentemployment.  Grimes continued to obey the settlement agreement and Orderto make payments of 2,134.78 per pay period to Saldivar.  The Secretary did notseek to amend the Economic Temporary Reinstatement Order entered at Grimes’ andthe Secretary’s mutual request.  Instead, *months* after Saldivar lost hisactive employment, the Secretary filed a “motion to enforce” in which theSecretary argued that, although Grimes had been paying the amount explicitlyrequired by the ALJ’s Order, that Order “implicitly” required additionalpayments from Grimes.18

 

            The ALJ found no discrimination; she granted the motion toenforce on the same day.  Subsequently, Grimes filed a Petition forDiscretionary Review with the Commission, challenging the ALJ’s decision on themotion to enforce.  The Commission granted the Petition.  However, theSecretary did not wait for the Commission to act on Grimes’ Petition.  

 

            On August 15, 2022, the Secretary issued a section 104(a)citation to Grimes for failing to make the required payments, violating theJudge’s Order to enforce.  30 U.S.C. § 814(a).  The suddenly aroused Secretarywaited only two days.  On August 17, 2022, MSHA issued another 104(a) citationagainst Grimes.  Subsequently, on August 22, 2022, MSHA issued a 104(b) Order. At that time, MSHA informed Grimes that it faced penalties of $10,000 a dayand/or closure of the mine.  MSHA, having applied the heavy hand of governmentcoercion from which there could be no redress, Grimes capitulated and paid thesum required by the decision on enforcement.19

**B.   ****Discussion**

            The majority decision does not cite any case for acceptingthe Secretary’s argument that a clear, precise, and explicit settlementagreement between the parties implemented by an ALJ Order contains implicit orunwritten obligations.  Moreover, Commission precedent demonstrates that anysuch implicit agreement would only flow one way.  *Sec’yof Labor v. North Fork Coal Corp*.,33 FMSHRC 589, 594 (Mar. 2011).  There, theCommission enforced the wording of the settlement agreement and did not findany implicit agreement that the settlement should be enforced only to make thecomplainant whole.  “Unlike back pay awards,Commission judges do not decide the terms of economic reinstatementagreements.  The agreement which formed the basis of the judge’s order wasarrived at after negotiations between the parties.”  *Id*. at 593.

 

            The Commission refused anadditional offset for the employer.  *Id*. at 595.  In this case, theCommission finds it would not enforce the negotiated agreement and subsequentorder embodying the agreement.20

 

            Here, the Commission holds that bitter medicine for theoperator is a sweet relief for the complainant.  It accords no weight to thefact that an explicit settlement with potential benefits for both sides wasnegotiated between the parties and then embodied in an “Order” by the Judge.  Theagreement of the parties and the complementary Order by the ALJ are irrelevantto the majority’s decision.  Again, the Opinion does not cite any authority forchanging an explicit agreement of the parties based upon a finding of what theparties must have implicitly decided.  The Opinion finds that the Order did notneed to be modified to require a change of terms.  Underthe Opinion’s reasoning, a complainant could negotiate an agreement with anoffset to avoid returning to the job.  Then, immediately after obtaining theJudge’s Order, the employee could quit the offsetting job and be entitled tofull pay from the operator. 

 

            The Mine Act neither recognizes nor endorses economicreinstatement instead of actual reinstatement.  Economic reinstatement is anon-statutory procedure through which the Commission permits the parties tosubstitute a private agreement for the prescribed statutory right to actualreinstatement.  Both had competent counsel.  However, that private, negotiatedagreement becomes an enforceable Order by dint of the ALJ’s Order.  Thus, acomplainant does not need to go to state court to enforce the agreement betweenthe parties.  

 

            Because such agreements are non-statutory, the ALJ does nothelp negotiate a mutually acceptable agreement.  The Mine Act does notauthorize Commission Judges to substitute economic reinstatement for actualreinstatement.  For that reason, such agreements, as in this case, are oftenstyled as a “settlement” of an Order to Temporarily Reinstate. 

 

The Commission has held:

 

Theobligation to comply with the terms of that order as written, with no offset,will continue unless and until the parties negotiate a new agreement and it isentered as a superceding [sic] order by the judge, or either party invokes thejudge’s continuing jurisdiction and the judge modifies or rescinds the existingorder.  In the event a motion is submitted to modify or rescind the previouslyentered consent order, the judge is required to examine all the relevantcircumstances, in accordance with section 105(c) of the Mine Act, and not justwhether the miner or operator still consents to it.

 

*North Fork*, 33 FMSHRC at 595.

 

            In short, the Commission endorses the loss ofGrimes’s position on two critical matters without a hearing or any motionbefore the Commission to modify an explicit Order based upon mutual agreementof the parties.  This decision is a profound setback for due process before theCommission.  

 

 

 

 

**V.**

 

**  THE SECRETARY’S MOTION FORCONSEQUENTIAL DAMAGES IS**

**UNTIMELY AND BEYOND THE COMMISSION’SJURISDICTION.**

**A.   ****Relevant Facts**

**           **The Mine Act grants the Commission specificjurisdiction.  The Commission does not have jurisdiction over a motion fileddirectly with it over unlitigated claims.  Further, the Secretary’s attempt toobtain consequential damages from the Commission is untimely.  Finally, theSecretary has not even attempted to show good cause or any justification forseeking extraordinary relief through a motion to file a new claim directlybefore the Commission.  The Opinion does not even consider the issues.

 

            Upon filing the complaint on behalf of Saldivar, theSecretary became his legal representative.  Immediately, the Secretarynegotiated and submitted a written settlement agreement on Saldivar’s behalfcalling for Grimes to pay Saldivar a specific dollar amount.  The ALJsubsequently entered an Order confirming the requirement for Grimes to paySaldivar $2,134.78 per pay period.  As discussed above, the Secretary assertsGrimes should have known the agreement and subsequent ALJ Order did not meanwhat they said because the law imposed an obligation upon Grimes to pay more ifSaldivar lost his job regardless of a binding Order agreed upon by the partieswith the assistance of counsel.  

 

            When Saldivar left jail in November 2021, Grimes continued tocomply with its mutually agreed upon settlement and ALJ’s Order’s explicitterms—a position logical to all but the Secretary and Commission.  Moreover,despite being Saldivar’s representative, the Secretary took no action.  

 

            The Secretary waited five months and then filed a motion tochange the settlement agreement and the Order by claiming an impliedobligation.  Given that the Secretary’s Solicitor served as counsel forSaldivar, if the Secretary thought Saldivar was entitled to larger payments,she immediately should have filed a motion to amend the ALJ’s Order.  Instead,the Solicitor sat on her hands, allowing his damages to accrue.  Only now,after completing the case before the ALJ, claims Grimes should pay monetarydamages.

 

            The Secretary now asserts any harm is Grimes’ fault becauseit should have known the Order did not mean what it said but carried animplicit obligation to increase payments.  In fact, of course, if Saldivarsuffered consequential harm due to the Secretary’s inaction, it is due to theSecretary’s failure as his representative.21

**B.   ****The Commission does not have jurisdiction to hear the Secretary’sUntimely Motion.**         

The Mine Act grants the Commission specificjurisdiction.  Section 113(d)(2)(A)(i) states: 

 

Any person adversely affected or aggrieved by adecision of an administrative law judge, may file and serve a petition fordiscretionary review by the Commission of such decision within 30 days afterthe issuance of such decision.  Review by the Commission shall not be a matterof right but of the sound discretion of the Commission.

 

30 U.S.C. § 823(d)(2)(A)(i).  

 

Section 113(d)(2)(A)(ii) provides:

 

Petitionsfor discretionary review shall be filed only upon one or more of the followinggrounds:

 

(I) A findingor conclusion of material fact is not supported by substantial evidence.(II) A necessary legal conclusion is erroneous.(III) The decision is contrary to law or to the duly promulgated rules ordecisions of the Commission.(IV) A substantial question of law, policy or discretion is involved.(V) A prejudicial error of procedure was committed.

 

30 U.S.C.§ 823(d)(2)(A)(ii).

            

The Commission is aninstitution of appellate review.  Ignoring the jurisdictional prerequisite forCommission jurisdiction, the Secretary does not seek to obtain a review of anALJ decision but instead asserts a new claim not raised before the ALJ. Indeed, the Secretary does not cite any of the jurisdictional prerequisites ofthe Mine Act for Commission jurisdiction.  The Secretary did not file a timelyPetition for Discretionary Review because the ALJ had given Saldivar everythingthe Secretary sought in granting the Motion to Enforce.  The Secretary does notpress an assignment of error by the ALJ.  She filed a new claim against Grimesdirectly with the Commission.  

 

            Having failed to seek a modification of the Judge’stemporary reinstatement order and waiting six months to take any enforcementaction, the Secretary failed to make any claim for consequential damages. There is no decision of fact or law by the ALJ for the Commission to review.  

 

            Finally, the Secretary does not attempt to provide anyexcuse, let alone good cause, for the failure to present any issue of otherdamages to the ALJ.  Saldivar forfeited any claim for damages not pressedbefore the ALJ.  

 

            In summary, the Secretary failed to file a Petition forDiscretionary Review as required by the Mine Act, failed to identify any of thejurisdictional grounds in section 113(d)(2)(A)(ii), failed to identify any assignmentof error, failed to present the issue to the ALJ, and failed to provide anyreasonable cause for such failures.  Sometimes, parties must live with theaction or inaction of their counsel.  This case is one of those times.

** **

**VI.  **

** **

**CONCLUSION**

 

              In summary, the majority misrepresents the issuespresented.  It presents a willful and unexplained refusal to accept thatSaldivar’s crimes may have consequences.  It does not establish any principledguidance for ALJs to apply in future cases.  No legal principle may be gleanedfrom the majority’s decision, especially considering Commissioner Rajkovich’sseparate comment.  The majority does notrule whether post-reinstatement crimes or theft may warrant discipline ortolling.  It finds only, and without explanation,that Saldivar’s crimes could not toll temporary reinstatement in this case.

 

            I respectfully dissent.

 

/s/ William I. Althen

William I. Althen, Commissioner 

 

 

Distribution:

 

PeterGoldenring, Esq. 

Pachowicz& Goldenring PLC 

6050Seahawk Street 

Ventura,CA 93003 

peter@pglaw.law

 

MarkR. Pachowicz, Esq. 

Pachowicz& Goldenring PLC 

6050Seahawk Street 

Ventura,CA 93003 

mark@pglaw.law

 

AlvaroSaldivar 

1241Lookout Drive 

Oxnard,CA 93035 

saldivarwelding@icloud.com 

 

Susannah M. Maltz, Esq. 

U.S.Department of Labor 

Officeof the Solicitor 

U.S.Department of Labor 

MineSafety and Health Division 

20112th Street South, Suite 401 

Arlington,VA 22202-5452 

maltz.susannah.m@dol.gov

 

EmilyToler Scott, Esq. 

Counselfor Appellate Litigation 

Officeof the Solicitor 

U.S.Department of Labor 

MineSafety and Health Division 

20112th Street South, Suite 401 

Arlington,VA 22202-5452 

scott.emily.t@dol.gov

 

AprilNelson, Esq. 

AssociateSolicitor 

Officeof the Solicitor 

U.S.Department of Labor 

MineSafety and Health Division 

20112th Street South, Suite 401 

Arlington,VA 22202-5452 

Nelson.April@dol.gov 

 

Karla Malagon, Esq.

U.S.Department of Labor

Officeof the Solicitor

350 S. Figueroa Street, Suite 370

Los Angeles, CA 90071

malagon.karla@dol.gov

 

Jessica M. Flores, Esq.

U.S.Department of Labor

Officeof the Solicitor

350S. Figueroa Street, Suite 370

LosAngeles, CA 90071

Flores.Jessica@dol.gov

 

BruceL. Brown, Esq.

U.S.Department of Labor

Officeof the Solicitor

350S. Figueroa Street, Suite 370

Los Angeles, CA 90071

Brown.Bruce.L@dol.gov

 

MelanieGarris

U.S.Department of Labor

Officeof Civil Penalty Compliance

MineSafety and Health Administration

20112th Street South, Suite 401

Arlington,VA 22202-5452

Garris.Melanie@dol.gov

 

ChiefAdministrative Law Judge Glynn F. Voisin

FederalMine Safety & Health Review Commission

Officeof the Chief Administrative Law Judge

1331Pennsylvania Avenue, NW, Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov

----

[1]  Due to a clerical error, this Decision is beingamended pursuant to 29 C.F.R. § 2700.79.

 

[2] 30U.S.C. § 815(c)(2) provides in pertinent part: 

 

Any miner . . . who believes that he has beendischarged, interfered with, or otherwise discriminated against by any personin violation of this subsection may, within 60 days after such violationoccurs, file a complaint with the Secretary alleging such discrimination. Uponreceipt of such complaint, the Secretary shall forward a copy of the complaintto the respondent and shall cause such investigation to be made as he deemsappropriate. Such investigation shall commence within 15 days of theSecretary’s receipt of the complaint, and if the Secretary finds that suchcomplaint was not frivolously brought, the Commission, on an expedited basisupon application of the Secretary, shall order the immediate reinstatement ofthe miner pending final order on the complaint.

[3] On April 7, 2022, Grimes Rock filedan “update” with the Commission informing it of Saldivar’s second incarceration.That same day, it also filed with the Judge a renewed “Motion to Toll andTerminate the Economic Temporary Reinstatement Order,” putting forth the samenew information offered in its update to the Commission and requestingpermanent termination of temporary economic reinstatement. On April 19, theJudge granted the operator’s second request to toll the temporary economicreinstatement from the date of her order until Saldivar was once againavailable for work. Order Granting Mot. to Toll at 3. The Judge denied theoperator’s request for reimbursement of funds already paid to the Complainant. *Id*.at 4. The Judge did not address the operator’s request to permanently terminatethe economic reinstatement order.

 

[4] In addition to Citation No. 9619114 (the 104(a)Citation issued on August 17, 2022) and Order No. 9619115 (the 104(b) Orderissued on August 22, 2022), a second citation, No. 9619116, was issued onAugust 22, 2022, alleging that Grimes Rock continued to conduct work at themine site despite its non-compliance with Order No. 9619115. *See* WEST2022-0333, WEST 2022-0334, and WEST 2022-0335.**

 

[5] Grimes Rock also argues that temporary reinstatementshould be dissolved because it can show that Saldivar lied about his safetycomplaints and elements of his criminal record. G.R. PDR 1 at 12, 15. Considerationof such evidence is appropriate at the discrimination hearing on the merits,not during the temporary reinstatement phase of the proceeding. 

 

[6] Commissioner Rajkovich joins the majority regardingall its substantive holdings. In addition, he also notes that the Secretary inthis case accepted Saldivar’s physical unavailability for work (during hisincarceration) as sufficient justification for tolling. He would find itreasonable to consider changes in a miner’s circumstances on a case-by-casebasis. However, the operator must still prove unavailability, i.e., thatbecause of those changed circumstances the miner *could not work at the mine*.Here, Grimes Rock offered no indication of a company policy or history ofbarring miners with criminal records from employment. Oral Arg. Tr. at 8. Nothingthe operator has presented suggests that work was unavailable to Saldivarbecause he had previously been incarcerated. 

 

[7] Our dissenting colleague argues that at-willemployment principles should apply to miners who are employed on a temporaryreinstatement. Slip op. at 20-21. As the dissent notes, under at-willemployment principles an employee not covered by an employment contract may beterminated for a good reason, bad reason, or no reason at all. *Engquist v.Oregon Dept. of Agr.*, 553 U.S. 591, 606 (2008). Here, however, we aredealing with the Mine Act, in which Congress enacted specific statutoryrequirements to govern temporary reinstatement. The Commission’s role is tointerpret the Mine Act so as to “give practical effect to Congress’s intent,rather than frustrate it.” *U.S. v. Heckenliable*, 446 F.3d 1048, 1051(10th Cir. 2006) *citing United States v. Am. Trucking Assn’s*, 310 U.S.534, 542 (1940). As noted above, Congress created temporary reinstatement toensure miners would receive relief pending a decision on the merits of theirclaims. 30 U.S.C. § 815(c)(2). If the dissent’s view is correct, temporaryreinstatement provides no protection to miners whatsoever, they could be firedfor “no reason.” Allowing operators to discharge miners on temporaryreinstatement for “no reason at all” would substantially undermine Congress’intent to have employers bear a disproportionately greater share of the burdenof an erroneous decision in a temporary reinstatement proceeding. *See, e.g.,JWR*, 920 F.2d at 748. We also note that Grimes Rock provided no evidencethat it generally discharged miners with criminal records, nor that itmaintained any policy to that effect.

 

[8] Our decision does not, as our dissenting colleaguesuggests, provide absolute “immunity” from discipline for miners receivingtemporary reinstatement. Our ruling is not intended to provide a broad,advisory statement regarding the scope of temporary reinstatement. As isappropriate, we considered only the relevant facts in this particular case. *SeeWade Sand & Gravel Co.*, 37 FMSHRC 1874, 1877-78 (Sept. 2015) (holdingthat the Commission, like Federal Courts, does not issue advisory opinions). Basedon those facts we determined that the tolling doctrine should not be extendedto include the instant circumstances. We take no position on whether our narrowtolling doctrine could be extended to other fact patterns not raised by thiscase. Further, we stress that the factual allegations raised by the operatorwere relevant to, and were consider by the Judge in, the case on the merits,where the operator prevailed.

 

In addition, our dissenting colleague implies that this footnote, andother sections of the majority decision, solely represent the views of ChairJordan and Commissioner Baker. Slip op. at 23. That is not accurate. Thisfootnote, and the other portions of this decision, are the joint opinion of themajority unless otherwise expressly stated. 

[9] In this case the parties agreed to economicreinstatement. However, in the absence of such an agreement and pursuant to theMine Act, a miner ordinarily returns to his former position and the mineoperator receives the benefits of his labor.

 

[10] Therewas evidence that Saldivar might have been less than forthcoming on hisemployment application about the full extent of his criminal history. But thereis also evidence that the company may have chosen not to further investigateafter being placed on notice that Saldivar had a criminal past. Regardless,this evidence would have required the Judge to weigh potentially conflictingevidence and make credibility and value determinations, which are notappropriate actions to take during the temporary reinstatement phase. *Rockwell Mining, LLC*, 43 FMSHRC at 165-66, 168.

 

[11] However, Grimes Rock knew at the time that it hiredSaldivar that he had some criminal history. Therefore, any hearing on theafter-acquired evidence regarding other unlawful activity would require the ALJto determine whether the operator’s claim that it sought to discharge Saldivarsolely because of his newly disclosed unlawful behavior was credible. Putsimply, the Judge would have to determine whether the operator sought todischarge Saldivar because of his criminal behavior or if it was motivated (orpartially motivated) by his protected activity. That would require makingcredibility determinations and resolving conflicts in evidence, which is notappropriate at the temporary reinstatement stage. 

 

[12] Our**dissenting colleague cites to*Secretaryon behalf of McKinsey v. Pretty Good Sand Co., Inc.*, 36 FMSHRC 2843, 2870(Nov. 2014) (ALJ) for the proposition that after-acquired evidence is relevantin a temporary reinstatement proceeding. Slip op. at 26. However, we note thatthat decision concerns a determination on the merits of a 105(c) case. As wenote elsewhere, after-acquired evidence may be relevant at that stage of theproceeding. *See infra* at 9. 

 

[13] The Commission recently issued *Sec’y on behalf ofCollins**v. Crimson Oak Grove Resources, LLC*, 45 FMSHRC____, SE2023-0235 (Oct. 11, 2023) in which we set forth the due process requirementsfor temporary reinstatement proceedings. In that case we noted that a single, pre-deprivationhearing in which the ALJ does not weigh disputed evidence has long been held as“far exceeding” the Constitutional requirements of due process. *Id*. *citingBrock v. Roadway Exp.*, 481 U.S. 252 (1987) and *JWR*, 920 F.2d 738(11th Cir. 1990). In light of that holding, there is no basis for the assertionthat an operator is constitutionally entitled to additional hearings on motionswithin the temporary reinstatement proceeding. 

 

[14] During the pendency of this PDR, the Judge held themerits hearing in the discrimination case on January 25-27, 2022 and issued herdecision on June 17, 2022. *See* Docket No. WEST 2021-265.

 

[15] Our dissenting colleague discusses, at length,concerns regarding prolonged periods of temporary reinstatement during theappeals process after a hearing on the merits in which an operator prevails. Slipop. at 19-25. In the instant case, Grimes Rock prevailed on the merits case andthat decision was not appealed. 44 FMSHRC 473 (June 2022) (ALJ). Saldivar’stemporary reinstatement has now ended. As a result, we do not believe that ourcolleague’s concerns regarding lengthy appeals are implicated here. 

 

[16] Whether the final termination date of temporaryreinstatement is properly determined by the 30-day language in section105(c)(2), 30 U.S.C. § 815(c)(2), or by the 40-day language in section113(d)(1), 30 U.S.C. § 823(d)(1), is currently under consideration before theCommission in *Jason Hargis v. Vulcan Construction Materials Incorporated*,SE-2021-0163.  

[17] This is not to suggest a miner could waive astatutory entitlement through an economic temporary reinstatement agreement. 

 

[18] TheCommission has previously rejected the argument “that the issue raised . . .should be decided solely by reference to contract law.” *North Fork*, 33FMSHRC at 592. We reasoned that we cannot ignore the Mine Act in determiningthe construction, application, and effect of an economic reinstatementagreement. *Id*.; s*ee also**R. Mullins v. Beth-Elkhorn Coal Corp.*,9 FMSHRC 891, 899 (May 1987) (citations omitted) (reasoning that “we do notdecide cases in a manner which permits parties’ private agreements to overcome. . . miners’ protected rights”). 

 

[19] Our dissenting colleague would hold that the parties’agreement to economically reinstate a miner would supersede the requirements ofthe Mine Act. Slip op. at 28-31. In short, the dissent would allow the economicreinstatement agreement to set the terms of the parties’ relationship duringthe temporary reinstatement. For the reasons outlined in this section, wedisagree. However, we would also note that given this conclusion, the dissentis not internally consistent. Specifically, the parties’ temporary economicreinstatement agreement did not contain any provision that allowed Grimes toterminate or discipline Saldivar. Further, it does not expressly create anemployment relationship; it creates an obligation for Grimes to pay Saldivarregardless of work. If the parties’ agreement alone sets the terms for theparties’ relationship, it is unclear how our dissenting colleague reached hisother conclusions in this case: that is, that Saldivar was an employee ofGrimes and Grimes was entitled to discharge him for alleged misconduct. 

1 Theparties’ agreement explicitly provided,

 

RespondentagreestopayMr.SaldivarthedifferenceinearningsathispresentplaceofemploymentWayneJ.SandandGravelInc.andGrimesRockInc. . . . Basedonthese calculations,GrimesRockInc.willpay Mr.Saldivar$2,136.78onabi-weeklybasis.

 

Sett. Agreement and J. Mot. for Temp.Econ. Reinst. at 3 (May 27, 2021).

 

 An ALJ does not have authorityto order temporary economic reinstatement. *Sec’y on behalf of JamesMcGoughran, v. Lehigh Cement Co.*, LLC, 42 FMSHRC 467, 469 (July 2020). (“AJudge may not order economic reinstatement on his or her own initiative.”). Becausean ALJ may not order economic reinstatement on his or her own initiative, theterms of the parties’ settlement govern the terms for economic reinstatement. Itis useful to repeat, therefore, that based upon mutual agreement of theparties, the ALJ ordered Grimes to pay the specific amount of $2,134.78 per payperiod. If Saldivar had found work paying more than his other employer at thetime of the agreement, the Commission would not hear an argument by Grimes foran “implicit” offset to keep Saldivar’s compensation the same as he was makingat Grimes. *See Sec’y of Labor v. North Fork Coal Corp*., 33 FMSHRC 589,594 (Mar. 2011). 

 

2 My colleagues say,“Grimes Rock knew at the time that it hired Saldivar that he had some criminalhistory” (Slip op. at 8 n.10), thereby wholly ignoring the gross disparitybetween the minimal statement on the application and Saldivar’s laterdemonstrated criminal record. “Some criminal history” understates and minimizesSaldivar’s crimes set forth above.  More importantly, under their line ofreasoning, no crimes by Saldivar before or after reinstatement wouldsuffice to permit discharge through tolling.

 

3  See also CAL PENAL § 273a(a) (child endangerment); CAHLTH & S § 11550(e)(1) (under the influence with firearm); CAL PENAL §12022.1(b) (commission of felony on bail); CAL PENAL § 30605(a) (assaultweapon); CA HLTH & S § 11370.1 (possession of controlled substances with afirearm); CAL PENAL § 33215 (sawed-off shotgun or rifle); CAL PENAL § 25850(a)(loaded firearm in vehicle).

4 The Court consideredthe possibility of an employer doing discovery into a discharged employee’sbackground to obtain after-acquired evidence. However, such consideration didnot alter its decision. *McKennon*, 513 U.S. at 363.

### 5The Commission has not defined “non-frivolous.”The United States Court of Appeals for the Eleventh Circuit analogized the“non-frivolous” standard to a reasonable cause to believe standard. It held“there is virtuallyno rational basis for distinguishing between the stringency of this standard[non-frivolous] and the ‘reasonable cause to believe’ standard that wasimplicitly upheld in *Roadway Express.”**Jim Walter Res., Inc. v. FMSHRC*, 920 F.2d 738, 747(11th Cir. 1990). 

6This does not mean that the Secretary was not entitled to a hearing to addressthe issues. Indeed, the Commission very recently unanimously recognized thereason for and right to a hearing in a tolling case. *Sec’y of Labor on behalf of Torres v. W.G. Yates & Sons Constr.Co.*, 2023 WL 5170092**(**July 2023).

7 Nonetheless, it isentirely accurate to refer to the commission of crimes, safety violations,repeated absences, etc. as a “change of circumstances.” When a worker deviatesfrom the normal and routine duties, it is a change of circumstance.

8 The majority triplesdown on its misstatement of Grimes argument by asserting that this dissent’smention of “at-will” principles means the dissent would construe the Mine Actas providing “no protection” because reinstatement could be tolled “for noreason at all.” Slip op. at 5 n.6. The issue before the Commission is whetherpost-reinstatement misconduct may permit tolling of reinstatement. It is aserious issue. The majority should such eschew obvious and trivialmisrepresentations based upon the unremarkable observation that an employerordinarily may discharge an employee who seeks to return to work after severalmonths in jail for theft. 

 

9 It bears repeatingthat the Supreme Court has cogently established a point regardingafter-acquired evidence that is equally applicable to post-reinstatementmisconduct—namely, that “[i]t would be bothinequitable and pointless to order the reinstatement of someone the employerwould have terminated, and will terminate, in any event and upon lawfulgrounds.”*McKennon*, 513 U.S. at 361. 

 

10 The majority incorrectly assertsthat the Administrative Law Judge considered Saldivar’s criminality in making afinal decision on the underlying discrimination claim. The ALJ did not eventake Saldivar’s criminality into account in considering the motion to toll letalone the final decision on the merits.

 

11 Having recognizedthe possible right of an employer to toll reinstatement for post-reinstatementmisconduct, Commissioner Rajkovich writes that Grimes did not positively“prove” in its motion that it would discharge a worker for theft. Thus, heasserts the novel proposition that the proponent of a motion must prove itsclaim to a level of summary disposition on the face of the motion. Undisputedevidence proved Saldivar’s lies and crimes—suitable reasons for discharge. TheSecretary had a right to challenge Grimes’s claim. Moreover, CommissionerRajkovich errs in saying Grimes’s “offered no indication of a company policy.” Slipop. at 5 n.5. Grimes introduced its employment application warning applicantsthat they could be fired for lying on the application. That is the proof,however unnecessary at this stage, of Grimes’s policies. It should suffice. Moreover,Commissioner Rajkovich suggestion would require an employer to have a“one-size-fits-all” discipline program. That is not correct. An employer mayand should mete out discipline according to the offense and the employee’srecord. To illustrate, unless unlawful discrimination is the basis fordiffering treatment, an employer may discharge one employee for misconduct andretain a different employee who engages in the same misconduct. Jobperformance, history with the employer, circumstances of the event, and manyother factors may result in different consequences for the two employees. Finally,one may rightly suggest that not many handbooks explicitly say: “We willdischarge you for going to jail for theft.” 

 

12 This puts to restthe fallacious argument by the majority that all issues regarding reinstatementmust be resolved in the initial hearing.

13Delays within theCommission means that an operator may have to maintain a properly dischargedindividual in its workforce or pay significant amounts to an undeservingcomplainant for extended periods. Correctly expedited decisions by theCommission would get miners back to deserved status or save operators theproblem of maintaining a discharged worker at its worksite or making tens ofthousands of dollars in unrecoverable payments to an undeserving individual.

 

14 It is undisputedthat Saldivar committed post-reinstatement crimes. If an operator wouldlawfully fire the charged miner for those actions, the discrimination claimcannot be won and is, therefore, frivolous. *Sec’y of Labor on behalf ofShaffer v. Marion Cty. Coal Co.*, 40 FMSHRC 39, 47 (Feb. 2018).

 

15 The majorityasserts that *Pretty Good Sand* is not relevant because it was decidedafter a hearing. Slip op. at 8 n.11. Of course, that is a convincing argumentfor why the ALJ should have held a hearing in this case. The decision shows acomplainant is not entitled to continued pay or backpay past the point ofacquisition of the new evidence of misconduct. If “after-acquired” evidencecannot be used before a final hearing, the principle becomes meaninglessbecause at that point the operator will have paid the complainant undeservedmonies but will not have any opportunity for recapture. The *raison d’etre*of after-acquired evidence is that the complainant is not entitled tocompensation after acquisition of evidence justifying the termination.

 

16 For some reason, mycolleagues stray into an erroneous irrelevancy by writing that temporaryreinstatement is not a remedy for violation of the Mine Act. The Mine Actprohibits discrimination, and discrimination is a violation of the Mine Act. Temporaryreinstatement is a remedy for a nonfrivolous assertion of a violation of theMine Act rather than a proven violation. Separately, my colleagues showsympathy to Saldivar by deliberately downplaying the blatant lying on hisemployment application. They write “Saldivar might have been less thanforthcoming on his employment application about the full extent of his criminalhistory.” Slip op. at 7 n.9.

17 As therepresentative of Saldivar, the Secretary negotiated the settlement agreementwith Grimes. 

 

18  The Secretarybases much of her argument on allegations related to California contract lawand particularly on a complicated and irrelevant California family courtdecision between quarreling divorcees. Grimes continued to obey the ALJ’s Orderand parties’ mutual agreement. The Secretary failed for months to take theappropriate action by filing a motion to modify the original Order. Anyeconomic injuries suffered by Saldivar between November and June areattributable to the Secretary’s lassitude rather than to Grimes adherence tothe ALJ’s Order. 

                                                                                                                 

19 On August 17, 2022,Grimes filed a motion to stay the ALJ’s enforcement decision. The Commissionmeaninglessly denied the stay on August 30, 2022, days after Grimes had fallento government might.

 

20  In economic reinstatement,the discharged employee agrees to forego actual reinstatement provided theemployee receives satisfactory economic reinstatement. Such agreements varybecause they are negotiated agreements in which each party seeks to obtainbenefits from avoiding actual reinstatement. We easily understand the benefitseach party seeks. The discharged employee gets money without any obligation towork. The employer avoids bringing a discharged employee back into theworkforce. The parties may contemplate that the employee may get another jobthereby doubling his income or, conversely the employee may lose existingalternative employment reducing total income. The strength of the of theparties’ desires for a return to employment determines the content of aneconomic reinstatement agreement. The Commission decision today turns this goodfaith negotiation in which each party may make concessions into a secret “headsI win, tails you lose” negotiation for the discharged employee.

21 The Secretary failsto note that Saldivar spent at least 140 days in jail and, consequently, missedat least ten pay periods of $2,136.78—that is, a total of $21,367.80. Plus, hemissed at least six pay periods from the other employer during the initialincarceration at approximately $1,000 a pay period. Therefore, Saldivar’s owncriminal conduct caused him to lose three times as much income as the amount“lost” by Grimes’ adherence to the ALJ’s Order.