FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

February 27, 2013

ORDER GRANTING TEMPORARY ECONOMIC REINSTATEMENT

            This matter is before me upon an Application of Temporary Reinstatement, filed by the Secretary on December 27, 2012, pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(c)(2), for an order requiring GS Materials, Incorporated, to temporarily reinstate Randy White to his former position as sand plant superintendent at its Lemon Springs Mine, or to a similar position at the same rate of pay, with the same benefits, the same number of hours, and with the same or equivalent duties assigned to him. Section 105(c) prohibits operators from discharging or otherwise discriminating against miners who have engaged in safety related protected activity, and authorizes the Secretary to apply to the Commission for miners’ temporary reinstatement, pending full resolution of the merits of their discrimination complaints.

            The Application is supported by the Declaration of MSHA Special Investigator Larry David Smith, II, and a copy of the Discrimination Complaint filed by White on November 7, 2012. The Application alleges that White was fired in retaliation for having made a safety complaint to his supervisor regarding the inadequacy of an eight hour MSHA refresher training class held by GS Materials on October 12, 2012.

            The parties negotiated a Settlement Agreement on Temporary Reinstatement, setting forth for my approval a proposal that resolves all issues in controversy respecting this proceeding. The essential provisions of the agreement are as follows: 

1. GS Materials agrees to economically reinstate White to full pay and benefits at the current rate for his former position at GS Materials’ Lemon Springs mine, consistent with his work schedule and average time on the job during the twelve months preceding his termination from employment, effective January 7, 2013;

2. White will not report for duty at GS Materials’ Lemon Springs Mine during the term of his temporary reinstatement. Instead, White is free to pursue any and all other employment opportunities other than with GS Materials;

3. GS Materials agrees to continue to provide benefits, if applicable, including but not limited to, 401(k) payments, health insurance, life insurance and accidental death or dismemberment insurance, in accordance with the terms of the settlement agreement;

4. Economic temporary reinstatement of White shall continue pending final order on White’s related Discrimination Complaint, unless otherwise ordered upon motion of a party.

            WHEREFORE, the Application for Temporary Reinstatement is GRANTED, and it is ORDERED that GS Materials, Incorporated, TEMPORARILY ECONOMICALLY REINSTATE Randy White to the position of sand plant superintendent, effective March 1, 2013, in accordance with all terms set forth in the parties’ February 15, 2013, settlement agreement.

/s/ Jacqueline R. Bulluck

Jacqueline R. Bulluck

Administrative Law Judge

Distribution:

Kristina T. Harrell, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, S.W., Room 7T10, Atlanta, GA 30303

Diana Schroeher, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D, Beltsville, MD 20705

Randy White, 9057 Old Switchboard Road, Snow Hill, NC 27349

/ss