FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

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

May 10, 2012

DECISION AND ORDER APPROVING SETTLEMENT AGREEMENT, APPROVING WITHDRAWAL OF AMENDED TEMPORARY REINSTATEMENT APPLICATION, AND DISMISSING AMENDED TEMPORARY REINSTATEMENT APPLICATION

            This case is before me on an Amended Application for Temporary Reinstatement brought by the Secretary of Labor, on behalf of Robert A. Albrecht, under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d) (Mine Act). Albrecht’s initial discrimination complaint was filed with MSHA on January 3, 2012. MSHA special investigator, Thomas J. Pavlat filed his declaration in support of said complaint on February 9, 2012.

            On February 10, 2012, the Secretary filed her initial Application for Temporary Reinstatement on behalf of Albrecht under section 105(c)(2) of the Mine Act. The February 10, 2012 Application was amended on February 13, 2012. The Amended Application seeks the reinstatement of Albrecht to the position he would have held but for the alleged discriminatory November 22, 2011 layoff/termination of Albrecht, pending final disposition of the complaint before the Commission.

            On February 17, 2012, Respondent, by counsel, pursuant to Commission Rule 45(c), requested a hearing on the Secretary’s Amended Application. On February 20, 2012, Respondent recalled Albrecht from layoff, effectively reinstating him, but at a lesser rate of pay and benefits than he had received at the time of his layoff/termination. Given Albrecht’s recall and ongoing settlement discussions, the parties and the undersigned agreed to an extension of the hearing date until May 8, 2012, should the parties be unable to settle this matter.

            On or about February 27, 2012, the Secretary filed a Motion in Limine to Exclude Respondent’s Evidence Regarding Its Affirmative Defenses, as set forth in its Request for Hearing. Thereafter, on March 13, 2012, Respondent filed its Response to Motion in Limine, arguing that the evidence it seeks to present at hearing is relevant to determining whether Albrecht should be reinstated with the same pay and benefits he held prior to his lay-off and to show that Albrecht’s complaint allegations are frivolous.

            On March 13, 2012, the Secretary filed her Reply and argued that the only issue in a temporary reinstatement hearing is whether the discrimination complaint was frivolously brought, and upon a finding that a complaint is not frivolously brought, the complainant shall be reinstated to the same or substantially equivalent position, with the same pay and benefits.

            During the most recent conference calls with the parties on April 30 and May 7, 2012, I advised that I would reserve ruling of the Secretary’s Motion in Limine until the issue arose in the crucible of hearing, should the parties remain unable to settle this matter. I also informed the parties that I would issue a Bench Decision. On May 4, 2012, the parties filed a joint stipulation of facts.

            A hearing on the Amended Application was held on May 8, 2012 in Rockford, Illinois. Prior to commencement of the hearing, the parties reached a global settlement, which encompassed an additional discrimination complaint filed by Albrecht since his recall, and certain 104(a) citations. The Settlement Agreement was executed by all parties (the Secretary, the Respondent, and Albrecht) and resolved, inter alia, all pending claims arising out of Albrecht’s discrimination complaints and the Secretary’s Amended Application for Temporary Reinstatement. It was received in to the record by the undersigned as Jt. Exh. 1. Pursuant to the terms of the Settlement Agreement, the Secretary agreed to withdraw her Amended Application.

            Having reviewed the terms of the Settlement Agreement and found them to be consistent with statutory criteria under section 110(i) of the Act and to effectuate the purposes and policies of the Mine Act, I issued a Bench Order Approving the Parties’ Joint Motion to Approve Settlement Agreement, the Secretary’s Withdrawal of Temporary Reinstatement Application, As Amended, and Dismissing Temporary Reinstatement Application, As Amended. I hereby confirm that Bench Order by this written Decision and Order.                                 

                                                                        ORDER

           Accordingly, IT IS ORDERED that the all-party Settlement Agreement (Jt. Exh. 1) is APPROVED, the Secretary’s withdrawal of her Temporary Reinstatement Application, as amended, is APPROVED, and this proceeding is DISMISSED.

                                                                        /s/ Thomas P. McCarthy

                                                                        Thomas P. McCarthy

                                                                        Administrative Law Judge

Distribution:

James R. Pirages, Esq., and Eileen Caver, Esq., Hinshaw & Culbertson, LLP, 100 Park Ave., P.O. Box 1389, Rockford, IL 61105-1389

Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street, Suite 844, Chicago, IL 60604

Robert A. Albrecht, Union Representative, 1307 W. Longhollow Rd., Elizabeth, IL 61028

Stephen Russo, Union Representative, 4477 Linden Drive, Rockford, IL 61109

/tjr