**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

**721 19th St., Suite 443**

**Denver, CO 80202-2500**

**Office: (303)844-5266/Fax: (303) 844-5268**

 

 

SECRETARYOF LABOR,                                 :     APPLICATION FOR 

 MINESAFETY AND HEALTH                        :      TEMPORARY REINSTATEMENT 

 ADMINISTRATION(MSHA),                          :     

 on behalfof ALVARO SALDIVAR,                  :     Docket No. WEST 2021-0178

                                    Complainant,                    :     

                                                                              :

                        v.                                                   :

                                                                              :

GRIMESROCK, INC.,                                        :     Mine: Grimes Rock,Inc.

                                    Respondent.                      :     MineID: 04-05432

** **

**ORDER GRANTING SECRETARY’S MOTION TOENFORCE**

 

This case is before meupon an application for temporary reinstatement filed pursuant to section105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 etseq. (“Mine Act”), and 29 C.F.R. § 2700.45 et seq. The Secretary of Labor filedthe application on behalf of Alvaro Saldivar seeking his reinstatement as alube and water truck/equipment operator at the Grimes Rock mine pending thefinal disposition of Saldivar’s discrimination complaint. 

 

A hearing was held onMay 11, 2021, and one week later this Court issued a Decision and Order ofReinstatement (“Reinstatement Order”) wherein Grimes Rock was ordered toreinstate Saldivar. Grimes Rock appealed under Procedural Rule 45(f), and theCommission affirmed the Reinstatement Order on June 11, 2021. While the appealwas pending, the parties independently agreed for Saldivar to be economicallyreinstated in lieu of actual reinstatement. The Court approved the agreement inits Decision Approving Settlement and Order of Temporary Economic Reinstatement(“Economic Reinstatement Order”) issued on May 28, 2021. 

 

Since the issuance ofthose orders, the Respondent has filed numerous motions in an effort toterminate or pause its payment obligations. Most recently, the Respondent hasfiled a Renewed Motion to Toll and Terminate Economic Temporary ReinstatementOrder in which it argues that its obligation should be suspended altogether dueto Saldivar’s changed circumstances following the hearing in this case. Asexplained in the Court’s January 7, 2022 Order Denying Respondent’s Motion toToll Economic Reinstatement, the pertinent case law does not support theRespondent’s contention. Therefore, its payment obligations will not besuspended on the bases set forth in the motion. 

 

Meanwhile, theSecretary has submitted a related filing, a Motion to Enforce Court OrderedSettlement Agreement. The Secretary alleges that Grimes Rock is skirting itsobligation to make Saldivar whole pending disposition of his discriminationcase. The settlement agreement reached by the parties provided that Saldivarwould receive the amount of his wages at Grimes Rock minus the amount he wasmaking at his then-employer Wayne J. Sand & Gravel Inc. The agreement wassilent as to what would happen if he moved on from that position, and the Respondentcontinued paying the diminished amount even after Saldivar left Wayne J. Sand& Gravel Inc. and was unemployed.

 

The purpose oftemporary reinstatement, as codified in the Mine Act, is “to put the miner backto work as soon as possible so that he or she can resume earning a living whilethe discrimination case is heard.” *North Fork Coal Corp.*, 33 FMSHRC 589,592 (Mar. 2011). The Reinstatement Order in this case was issued to accomplishthis goal for Saldivar. The later Economic Reinstatement Order simply “describedhow the parties proposed to implement relief ordered by the judge pursuant tothe Mine Act.” *Id.* Accordingly, I cannot “ignore that statute indetermining the construction, application, and effect” of the EconomicReinstatement Order and the agreement between the parties incorporated withinit. *Id*. 

 

The EconomicReinstatement Order was issued in the shadow of the initial ReinstatementOrder, which mandated full and total reinstatement for Saldivar at his previousrate of pay. I approved the parties’ settlement agreement insofar as itadequately made Saldivar whole while his discrimination case was pending. Ambiguityin the agreement must be interpreted to further the goal of the Mine Act and ofthe original Reinstatement Order. Obligations under the Economic ReinstatementOrder can change when circumstances change, as evidenced by the tolling of theoperator’s obligation upon Saldivar’s unavailability. *See* Order GrantingMotion to Toll Temporary Reinstatement (April 19, 2022). 

 

Accordingly, I findthat the Respondent is obligated to pay Saldivar the full amount ordered in theoriginal Reinstatement Order offset by his pay from other employers for theperiod elapsed between May 18, 2021 and June 17, 2022, minus any periods ofunavailability. The Secretary has agreed in his motion that those periods ofunavailability include August 6 through November 14, 2021 and March 30 throughMay 17, 2022. Grimes Rock is not responsible for compensating Saldivar while hewas unavailable during those periods of time. The company has argued in manyrepetitious filings that it is not responsible to pay Saldivar during his timesof unavailability, and the Secretary has agreed to that assertion. In his motionseeking pay for Saldivar, the Secretary lists, in detail, the times Saldivar wasavailable or unavailable for work, as well as the times that Saldivar mitigatedthe amount owed with alternative employment. Grimes Rock responded to theSecretary’s motion with some information about payments made to Saldivar, butdid not supply any facts to dispute the times and amounts set forth by theSecretary. Hence, there are no facts in the record that contradict Saldivar’savailability to work for all times outside of the two above-listed periods ofunavailability. If the Respondent had any **factual** information refutingthe Secretary’s calculations of economic reinstatement, it has had ample timeto supply those facts. Grimes Rock files incessant motions, often duplicativeand irrelevant, but nonetheless has had every opportunity to supply factsinstead of conjecture in its constant filings. 

 

Grimes Rock claims thatit should be entitled to a hearing on the issue of missed pay, asserting thatit has the right to question whether Saldivar has been looking for work. Hereagain, Grimes Rock misunderstands the nature of temporary reinstatement. Insteadof barraging the Court with countless “renewed” motions, the Respondent shouldtake the time to understand the law, and to allow the Court time to address theimportant and underlying issue of discrimination.  Every minute spent readingand digesting these tedious motions only sets back the time the Court has toissue a final decision in this case.  Accordingly, the Respondent’s motions toterminate the temporary reinstatement and its motion for a hearing are herebydenied. 

 

WHEREFORE, the Secretary’sMotion to Enforce Court Ordered Settlement Agreement is **GRANTED**. TheRespondent is **ORDERED** to pay Saldivar the full wages as ordered in theReinstatement Order during the periods of his availability to work between May18, 2021 and June 17, 2022, offset by his wages earned from alternativeemployment during that period. The Respondent shall pay $9,723.08[1] that is past due for the periodbefore May 17, 2022, and is further obligated to pay a gross total of $2,810.86[2] for the period between May 17and June 17, 2022. Future payment obligations under the Economic ReinstatementOrder are hereby **TERMINATED** as of this date. The Respondent’s renewedmotion is **DENIED**. 

 

 

 

 

/s/Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

 

 

Distribution:(Electronic Mail and Certified Mail)

 

Karla Malagon, U.S. Department of Labor, Office of theSolicitor, 350 S. Figueroa Street, Suite 370, Los Angeles, CA 90071, malagon.karla@dol.gov

 

Jessica M. Flores, U.S. Department of Labor, Office of theSolicitor, 350 S. Figueroa Street, Suite 370, Los Angeles, CA 90071, Flores.Jessica@dol.gov

 

Peter Goldenring, Pachowicz & Goldenring PLC, 6050Seahawk Street, Ventura, CA 93003, peter@pglaw.law

 

Mark R. Pachowicz, Pachowicz & Goldenring PLC, 6050Seahawk Street, Ventura, CA 93003, mark@pglaw.law

 

Alvaro Saldivar, 1241 Lookout Drive, Oxnard, CA 93035, saldivarwelding@icloud.com

 

----

[1] The Secretary does not allege nonpayment beforeNovember 8, 2021. Calculations are based on the table below. Information in thetable comes from both parties’ submissions in this case. The difference betweenthe final amounts owed here and in the Secretary’s motion is accounted for bythe April 1 check, as included in the Respondent’s response. 
| **Pay Period Begins  With** | **Amount Due**        | **Amount Paid** | **Amount Owed**  |
|------------------------------|-----------------------|-----------------|------------------|
| 11/8/2021                    | $     1,583.26        | $  1,068.39     | $   514.87       |
| 11/22/2021                   | $     3,166.53        | $  2,136.78     | $  1,029.75      |
| 12/6/2021                    | $     3,166.53        | $  2,136.78     | $  1,029.75      |
| 12/20/2021                   | $     3,166.53        | $  2,136.78     | $  1,029.75      |
| 1/3/2022                     | $     3,166.53        | $  2,136.78     | $  1,029.75      |
| 1/17/2022                    | $     3,166.53        | $  2,136.78     | $  1,029.75      |
| 1/31/2022                    | $     1,250.66*       | $  1,250.66     | $     0.00       |
| 2/14/2022                    | $     3,166.53        | $  1,250.66     | $  1,915.87      |
| 2/28/2022                    | $     2,616.53*       | $  2,136.78     | $   479.75       |
| 3/14/2022                    | $     3,166.53        | $  2,136.00     | $  1,030.53      |
| 3/28/2022                    | $      633.31         | $     0.00      | $   633.31       |
| **TOTAL**                    | **$    28,249.47**    | **$ 18,526.39** | **$  9,723.08**  |

* Periods of mitigation. 

[2] This figure wascalculated by subtracting the wages from Saldivar’s new employment (proratedfor 22 workdays) from his previous wages from Grimes Rock (prorated for 23 daysof availability).