**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

1331 PENNSYLVANIA AVE.,N.W., SUITE 520N

WASHINGTON, DC20004-1710

TELEPHONE: 202-434-9900/ FAX: 202-434-9949

 
| SECRETARY  OF LABOR

MINE  SAFETY AND HEALTH        

ADMINISTRATION  (MSHA) on behalf of GEORGE RICE,

                            Complainant

 

                        v.

 

NALLY  & HAMILTON ENTERPRISES,

                            Respondent                                                                                 |   |   | TEMPORARY  REINSTATEMENT PROCEEDING

 

Docket  No. KENT 2022-0118

MSHA  Case No. BARB-CD-2022-03

 

 

 

Mine:  Meadow Branch Mine

Mine  ID: 15-19890

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

**ORDER GRANTING JOINTMOTION TO APPROVE TEMPORARY ECONOMIC REINSTATEMENT AGREEMENT**

 

Before:                        JudgeMcCarthy

 

This matter is before me on the Secretary of Labor’sApplication for Temporary Reinstatement filed on behalf of miner George Ricepursuant to Section 105(c) of the Federal Mine Safety and Health Act of 1977,30 U.S.C. § 801, et seq., as amended (“Mine Act”), and 29 C.F.R. § 2700.45.On September 26, 2022, I issued an Amended Order granting temporary physicalreinstatement to Rice. On September 28, 2022, the parties filed a Joint Motionto Approve a Temporary Economic Reinstatement Agreement (“Motion”).

The Agreement is “retroactive to September22, 2022” and will “remain in effect until and through October 21, 2022.” ShouldNally & Hamilton want Rice “to physically return to work on Monday, October24, 2022, or at any date thereafter, Nally & Hamilton shall inform Rice inwriting no less than five (5) days prior to the date it expects Rice tophysically return to work that it elects its option for him to physicallyreturn to work pursuant to the September 26, 2022 Amended Order GrantingTemporary Reinstatement issued by Judge McCarthy, rather than receive theeconomic temporary reinstatement benefits provided under this Economic TRAgreement.” 

 

Unless Nally & Hamilton exercises itsoption to have Rice physically return to work after October 21, 2022, “then theEconomic Temporary Reinstatement of Rice shall remain in effect until the entryof a final order of the Federal Mine Safety & Health Review Commission(“the Commission”) regarding Rice’s underlying discrimination complaint (MSHACase No. BARB-CD-2022-03) or until the ALJ’s order approving this Agreement isdissolved, whichever shall occur first - with the exception that the partiesmay agree to extend this Agreement until another date certain.”

 

The full terms and conditions of theparties’ economic reinstatement agreement are hereby incorporated by reference.I have reviewed the joint settlement motion and I conclude that the proposed economicreinstatement agreement is fair, reasonable, appropriate, and protects thepublic interest because it will further the intent and purpose of the Mine Act.

 

For the foregoing reasons, my Amended Orderissued September 26, 2022 is hereby **MODIFIED**to reflect the terms of theeconomic reinstatement agreement described by the parties in their Motion. Theparties are **ORDERED**to comply with all of the terms and conditionscontained therein.

 

This Order approving temporary economicreinstatement expires consistent with the terms of the parties’ agreement. TheSecretary must promptly determine whether or not he will file a complaint withthe Commission under section 105(c)(2) of the Act and so advise the Respondentand this tribunal.

 

 

 

 

/s/ Thomas P.McCarthy

Thomas P. McCarthy

                                                                        AdministrativeLaw Judge

 

 

 

Distribution:

Thomas Hamilton

Nally &Hamilton Enterprises 

Saltsman WillettDeton & Hamilton, PSC

212 E. StephenFoster Avenue

Bardstown, KY40004 

sth@ky-atty.com

 

Joseph Mattingly 

JOSEPH H.MATTINGLY, PLLC

P.O. Box 678 - 104West Main Street

Lebanon, Kentucky40033

joe@mattinglylawoffices.com

 

Tony Oppegard

P.O. Box 22446

Lexington, KY40522

tonyoppegard@gmail.com

 

 

Wes Addington

AppalachianCitizens’ Law Center

317 Main Street

Whitesburg, KY41858

wes@aclc.org

 

Jennifer M. Tag

Office of theSolicitor

U. S. Departmentof Labor

618 Church Street

Suite 230

Nashville,Tennessee 37219 

Tag.Jennifer.M@dol.gov

 

 

/vgr