FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

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

February 28, 2013

ORDER DENYING RESPONDENT’S MOTION TO AMEND TEMPORARY REINSTATEMENT ORDER

Before:            Judge Rae

            This case is before me upon a petition for assessment of a civil penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).  

            On July 2, 2010, I issued an Order of Temporary Reinstatement, which ordered Respondent to reinstate Mr. Pilon “to the position he held on February 25, 2010.” By mutual agreement the complainant was economically reinstated. On December 20, 2012, Respondent, ISP Minerals, Inc., filed a motion to amend the July 2, 2010 Order of Temporary Reinstatement issued in this matter. The Respondent seeks to suspend Mr. Pilon’s economic reinstatement from December 17, 2012 to December 31, 2012 as part of a temporary work force reduction necessitated by economic conditions.

            On December 31, 2012 the Secretary filed a Motion in Opposition to Respondent’s Motion to Amend Temporary Reinstatement Order. The Secretary argued that the Respondent provided insufficient evidence to justify amending the temporary reinstatement.

            An Administrative Law Judge retains jurisdiction to rule on any motions made to amend her underlying order of temporary reinstatement. Sec’y of Labor on behalf of York v. BR & D Enterprises, 23 FMSHRC 386, 389 (2001). Therefore, I have jurisdiction to rule on this motion.

            Congress created the temporary reinstatement provision of section 105(c) because “complaining miners might not be in the financial position to suffer even a short period of unemployment or reduced income pending the resolution of their discrimination complaint.” Sec’y of Labor on behalf of Kinnaman v. 3M Corp., 26 FMSHRC 443, 445 (May 2004)(citing S. Rep. 95-181 at 37, reprinted in Senate Subcomm. on Labor, Comm. On Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977 at 625 (1978). Section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2) states that once it is determined that an application for temporary reinstatement has not been frivolously brought, the Commission shall order immediate reinstatement. Sec’y of Labor on behalf of Gray v. North Fork Coal Corporation, 33 FMSHRC 27, 34 (Jan. 2011). The Commission has recently interpreted Section 105(c)(2) to mean that a temporary reinstatement order must remain in effect until final order on the complaint. Sec’y of Labor on behalf of Ratliff v. Cobra Natural Resources, 34 FMSHRC __, slip op. at 1-2, No. WEVA 2013-368-D (Feb. 13, 2013).

            Bona fide economic retrenchment or reduction in force tolls the discriminatee’s right to back pay. Chadrick Casebolt v. Falcon Coal Co., Inc., 6 FMSHRC 485, 499 (Feb. 1984). The operator bears the burden of establishing facts, by a preponderance of the evidence, “which would negative the existence of [back pay] liability to a given employee or which would mitigate that liability.” Sec’y of Labor on behalf of Gatlin v. KenAmerican Resources, Inc., 31 FMSHRC 1050, 1054 (Oct. 2009). The operator must show that work was not available for a discriminatee “whether through layoff, business contractions, or similar conditions.” Id. 1054-55.

            Here the Respondent did not establish bona fide economic retrenchment or reduction in force for the period of December 17, 2012 to December 31, 2012 by a preponderance of the evidence. Thus, my Order for Temporary Reinstatement must remain in effect until final order on the complaint. With its motion, the Respondent submitted two documents as evidence of a bona fide economic retrenchment for the period of December 17, 2012 to December 31, 2012. The first is a letter vaguely addressed “To whom it may concern [sic]”, that states Mr. Pilon will be laid off due to low sales volumes. Respondent’s Motion to Amend Temporary Reinstatement Order Ex. A 1. The letter is signed, not by the Human Resources Department, but by the Production Superintendent. Id. The letter includes Mr. Pilon’s seniority date and a snippet from a labor contract between the Respondent and United Steelworkers, but includes no other personnel information about Pilon- or any other employees that will be laid off. Id. The letter “estimate[s]” that the layoff time will be two weeks, but notes that it “may be extended based on customer demand schedule.” Id.

            The second document is a list of employees who will be “indefinitely laid off” beginning on Monday, December 17, 2012. Respondent’s Motion to Amend Temporary Reinstatement Order Ex. A 2. Mr. Pilon’s name is on this list. Id.

            This evidence is insufficient to prove a bona fide economic retrenchment or reduction in force for the period of December 17, 2012 to December 31, 2012. First, the documents provide no insight into the economic conditions of the company. The documents clearly indicate that Mr. Pilon and a number of other employees will be indefinitely laid off, but they fail to provide other pertinent economic information: what percentage of the workforce the laid-off constitute, the sales volume at the time of the temporary lay off in relation to prior sales volumes, personnel files, or any other financial information about the company. While the letter provides proof of Pilon’s seniority, it provides limited context for his seniority date. After reading through Respondent’s motion, I am at a loss for why he was included on the list of those laid off “indefinitely.” The Respondent has not provided how many people have been hired since Pilon, the types of jobs Pilon is capable of working, or the types of jobs that were eliminated in the layoff.

            In Gatlin, the Commission found that the Respondent’s obligation for temporary economic reinstatement was tolled due to a massive workforce reduction which laid off 290 of 370 employees. See Gatlin, 31 FMSHRC 1050 (Oct. 2009). In that case the Respondent attached an affidavit that clearly supported its factual allegations about its economic conditions- including information about the “performance, skill level, and years of service” of the laid-off employees. Id. at 1051-52. The instant case differs from Gatlin because Respondent did not submit any information about Pilon’s performance and skill level. Furthermore, the Respondent did not submit any information its economic condition, what percentage of its employees were indefinitely laid off, and minimal, at best, proof of Pilon’s seniority in relation to other employees.

            Second, while the Respondent’s motion states Mr. Pilon will be laid off for two weeks, the Respondent’s exhibits underhandedly indicate that he will be laid off indefinitely. Respondent’s Motion to Amend Temporary Reinstatement Order Ex. A 2. Therefore, I do not find that the Respondent provided sufficient evidence to prove bona fide reduction in force for the period of December 17, 2012 to December 31, 2012.

            I assume that Pilon has not been temporarily laid off because up to this date I have not ruled on ISP’s Motion (even though the Respondent’s motion was filed after the temporary lay off would have begun). If Pilon was, or is currently, temporarily laid off then I would like to remind the Respondent that ISP may be liable for making Pilon whole for any loss of earnings and other benefits suffered as a result of the temporary layoff, less any net interim earnings, plus interest as prescribed by Commission precedent at the IRS “adjusted prime rate” for the period of temporary layoff. Sec’y of Labor on behalf of Clapp v. Cordero Mining, LLC, 2011 WL 7268153 (Dec. 5, 2011) at *50, *56, rev’d on other grounds, 2011 WL 7144301 (Dec. 16, 2011). Sec’y on behalf of Bailey v. Arkansas-Carnoa Co., 5 FMSHRC 2042, 2049-54 (Dec. 1985).

            Therefore, the Respondent’s Motion to Amend Temporary Reinstatement Order is DENIED.

/s/ Priscilla M. Rae

Priscilla M. Rae

Administrative Law Judge

Distribution:

Travis W. Gosselin, U.S. Department of Labor, Office of the Solicitor, 8^th Floor, 230 S. Dearborn St., Chicago, IL 60604

Meagan N. Newman, Seyfarth Shaw LLP, 131 S. Dearborn St., Suite 2400, Chicago, IL 60603

Brent I. Clark, Seyfarth Shaw LLP, 131 S. Dearborn St., Suite 2400, Chicago, IL 60603

Douglas A. Pilon, 496 A. Peterson Memorial Drive, Niagara, WI 54151

Gregory P. Seibold, Seibold Law Firm, LLC, P.O. Box 426, Florence, WI 54121

Darcy Powell, Union Steward, c/o ISP Minerals, Inc., P.O. Box 248, Pembine, WI 54156

/mep