**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OFADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Ave.NW, Suite 520N

TELEPHONE: (202)434-9958/ FAX: (202)434-9949

 

 
| SECRETARY OF LABOR

  MINE SAFETY AND HEALTH

  ADMINISTRATION (MSHA),

  on behalf of TRACY A. LEWIS,

                           Complainant,

 

                        v.

 

TIP TOP MATERIALS, LLC,

                           Respondent                                                                                |   |   | TEMPORARY REINSTATEMENT

 

Docket No. VA 2021-0008-D

MSHA Case No.: NORT-CD 2021-03

 

 

 

 

Mine: Tip Top Materials, LLC

Mine ID: 44-07399 |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

**ORDER OF TEMPORARY ECONOMIC REINSTATEMENT**

 

Before:             Judge Young

 

This matter is before me on anapplication for temporary reinstatement filed by the Secretary of Labor(“Secretary”) on behalf of Tracy Lewis (“Complainant”) pursuant to section105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30U.S.C. § 815(c)(2), against Tip Top Materials, LLC (“Tip Top”). The Secretaryfiled the Application for Temporary Reinstatement on February 26, 2021. The Respondent did not file a timely Request for Hearing,and the temporary reinstatement of Tracy A. Lewis was ordered by me on March11, 2021.

 

The Respondent subsequentlyretained counsel and the parties to this case – the Secretary; Tracy A. Lewis;and Tip Top Materials, LLC - through their respective counsel filed a JointMotion to Approve Economic Temporary Reinstatement Agreement for Tracy A. Lewison March 16, 2021. Pursuant to the Agreement, Tip Top, effective March 12, 2021,shall place Lewis “in the same financial and legal position that he would be inhad he physically returned to work” while his discrimination case on the meritsis pending.

 

The Agreement sets forth the termsof the temporary economic reinstatement, including Complainant’s rate of payand benefits. Lewis shall be paid every Friday via a check mailed to him at8717 Lewis Mountain Road, Pound, VA 24279. The Agreement includes other termsand conditions which are incorporated into this order by reference.

 

**ORDER**

 

I have considered therepresentations and documentation submitted in this case and I conclude thatthe terms set forth in the Agreement are appropriate under section 105(c)(2) ofthe Mine Act. Consequently, the Agreement is **APPROVED** and Tip Top is **ORDERED**to economically temporarily reinstate Tracy A. Lewis pursuant to the terms andconditions set forth in the Agreement.

 

This Order **SHALL** remain in effect until such time asthere is a final determination in this matter by hearing and decision, approvalof settlement, or other order of this court or the Commission. 

 

            Iretain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R. § 2700.45(e)(4).The Secretary **SHALL** provide a report on the status of the underlyingdiscrimination complaint **as soon as possible**. Counsel for the Secretary **SHALL**also **immediately** notify my office of any settlement or of any determinationthat Tip Top Materials, LLC, did not violate Section105(c) of the Act.

 

 

 

 

/s/Michael G. Young

                                                                                    MichaelG. Young

                                                                                    AdministrativeLaw Judge

 

 

Distribution (Via Certified Mail & E-mail)

 

LaShanta Harris, Esq., U.S. Dept. of Labor, Office of the RegionalSolicitor, 201 12 Street South, Suite #401, Arlington, VA 22202, Harris.LaShanta@dol.gov

 

Dennis E. Jones, Esq., 230 Charwood Drive, Suite A,Abingdon, VA 24210; dejones@bvu.net

 

Wes Addington, Esq., Appalachian Citizens’ Law Center, 317Main Street, Whitesburg, KY 41858, wes@aclc.org

 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522, tonyoppegard@gmail.com