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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9950 / FAX: 202-434-9949

 

May 22, 2020

 ORDER TOLLING TEMPORARY REINSTATEMENT

Before: Judge Rae

This matter comes before the Court on Respondent’s Motion for Tolling of Economic 

Temporary Reinstatement. For the reasons set forth below, the Respondent’s Motion is granted, 

and the Order Granting Temporary Economic Reinstatement is tolled, effective May 22, 2020. 

I. BACKGROUND

On August 20, 2019, I issued an Order Granting Temporary Economic Reinstatement, 

whereby Lehigh Cement Company, LLC (“Respondent”) was ordered to temporarily 

economically reinstate James McGaughran (“Complainant” or “McGaughran”), in accordance 

with all terms set forth in the parties’ Joint Motion to Approve Settlement Regarding Temporary 

Reinstatement. Subsequently, this matter was set for hearing from June 2 through 4, 2020.1

 In 

the interim, the COVID-19 pandemic caused the Commission to suspend in-person hearings, 

including the hearing scheduled for this docket. In light of this development, the Commission 

offered Zoom videoconferencing as an alternative for conducting hearings.

On May 5, 2020, the Secretary of Labor (“Secretary”) filed a Motion to Oppose Remote 

Hearing, indicating that it did not wish to participate in a hearing using Zoom videoconferencing, 

and requested that the hearing for this docket be continued to a later date. By email, the 

Respondent agreed to a hearing via Zoom videoconferencing, and requested that the matter 

proceed to hearing. On May 5, 2020, I held a conference call to discuss the positions of the 

parties. During the conference, the Secretary raised numerous objections to using Zoom, 

including the potential for various technological problems and issues associated with assessing 

credibility via video. However, the Respondent indicated its desire to proceed to hearing using 

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

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

on behalf of JAMES MCGAUGHRAN,

 Complainant,

 

 v.

LEHIGH CEMENT COMPANY, LLC,

 Respondent.

TEMPORARY REINSTATEMENT

PROCEEDING

Docket No. PENN 2019-0144-DM

MSHA Case No. NE-MD_19-05

Mine: Nazareth Plant I

Mine ID: 36-00190
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Zoom because of the continued temporary economic reinstatement obligation that Respondent 

had towards McGaughran, as well as uncertainty regarding the resumption of in-person hearings. 

On May 11, 2020, the Respondent filed an Opposition to the Secretary’s Motion to Oppose 

Remote Hearing, along with a Motion for Tolling of Economic Temporary Reinstatement.

II. DISCUSSION

A. Temporary Reinstatement Under the Mine Act

Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”) 

provides that “[a]ny miner . . . who believes that he has been discharged, interfered with, or 

otherwise discriminated against by any person in violation of [the Mine Act] may . . . file a 

complaint with the Secretary alleging such discrimination.” 30 U.S.C. § 815(c)(2). Further, 

Section 105(c)(2) provides for temporary reinstatement of a miner “if the Secretary finds that 

such complaint was not frivolously brought,” whereby “the Commission . . . shall order the 

immediate reinstatement of the miner pending final order on the complaint.” Id. 

The Mine Act’s temporary reinstatement provision was included “[t]o protect miners 

from the adverse and chilling effect of loss of employment while such matters are being 

investigated.” H.R. REP. NO. 95-655, at 52 (1977) (Conf. Rep). Congress viewed the temporary 

reinstatement provision as “an essential protection for complaining miners who may not be in the 

financial position to suffer even a short period of unemployment or reduced income pending the 

resolution of the discrimination complaint.” S. REP. 95-181, at 37 (1977). 

B. Commission Precedent Regarding Temporary Reinstatement

Aside from the entry of a final order on the complaint, the Mine Act does not explicitly 

identify any conditions that interrupt the mine operator's reinstatement obligation. However, 

Commission precedent has established that the obligation may be tolled or dissolved in several 

situations. “The Commission has recognized that the occurrence of certain events, such as a 

layoff for economic reasons, may toll an operator's reinstatement obligation or the time for which 

an operator is required to pay back pay to a discriminatee.” Sec’y of Labor on behalf of Gatlin v. 

KenAmerican Res., Inc., 31 FMSHRC 1050, 1054 (Oct. 2009) (citing Simpson v. Kenta Energy, 

Inc., 11 FMSHRC 1638, 1639 (Sept. 1989)). Further, “the judge may appropriately consider 

evidence offered by an operator seeking to affirmatively show that reinstatement should be tolled 

because of a layoff due to business contractions or similar conditions.” Sec’y of Labor on behalf 

of Ratliff v. Cobra Natural Res., LLC, 35 FMSHRC 394, 397 (Feb. 2013) (emphasis added) 

(citing Gatlin, 31 FMSHRC at 1054). 

The Commission has crafted a remedy with respect to reducing any award for back pay 

by the amount of the complainant’s unrelated interim earnings. See Meek v. ESSROC Corp., 15 

FMSHRC 606, 617 (1993); Bradley v. Belva Coal Co., 4 FMSHRC 982, 994-995 (1982). 

However, we are faced with an unprecedented situation due to the COVID-19 pandemic, which 

has suspended travel and continues to cause unforeseen difficulties—without an end date. No 

Commission case law directly addresses such a situation. 
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C. Tolling McGaughran’s Temporary Economic Reinstatement

I conclude that the Respondent’s obligation to temporarily economically reinstate 

McGaughran must be tolled. The purpose of temporary reinstatement under the Mine Act is to 

make the miner whole while the case is pending on the merits, not for the purpose of unjustly 

enriching a complainant at the operator’s expense. Tolling McGaughran’s Temporary 

Reinstatement does not cause a chilling effect or an inability for the Complainant to pursue the 

discrimination complaint, nor does it run afoul of the spirit or intent of the Mine Act. 

Respondent has represented through email conversations with the court—and without 

contradiction by the Secretary—that the Complainant admitted during depositions he is earning 

approximately $107,000 per year in his current position, and is therefore suffering no economic 

loss.

I find that the unusual and unexpected pandemic and associated travel restrictions have 

created a situation where the Respondent is put in a position of an economic hardship, pending 

the lifting of restrictions at some unknown date. Recognizing that ordering a three-day hearing 

with multiple witnesses without the willing consent of both parties would be difficult—at best—

and not an expeditious resolution of the matter, I granted the Secretary’s request for a 

continuance over the objection of the Respondent. Therefore, I find it unfair to put such a 

burden on the Respondent due to circumstances not of its making, and that tolling the temporary 

economic reinstatement would not be contrary to the spirit and purpose of the Mine Act in this 

particular situation.

ORDER

It is ORDERED that the Order Granting Temporary Economic Reinstatement is tolled 

effective May 22, 2020.

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 Priscilla M. Rae

Administrative Law Judge

Distribution:

M. del Pilar Castillo, Office of the Solicitor, U.S. Department of Labor, 170 S. Independence 

Mall West, Suite 630E, Philadelphia, PA 19106, Castillo.M.Pilar@dol.gov

Margaret Lopez, Carin Burford, OGLETREE, DEAKINS, NASH, SMOAK & STEWART P.C., 

1909 K Street NW, Suite 1000, Washington, DC 20006, margaret.lopez@ogletree.com, 

carin.burford@ogletreedeakins.com

 2 The tolling of the Order Granting Temporary Economic Reinstatement will remain in 

effect until a decision is made on the merits.