FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

August 1, 2012

ORDER GRANTING THE PARTIES’ JOINT MOTION FOR

ECONOMIC TEMPORARY REINSTATEMENT

Appearances:              Matt S. Shepard, Esq., Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for the Secretary of Labor;

                                    Tony Oppegard, Esq., Lexington, Kentucky, for Reuben Shemwell;

Adam K. Spease, Esq., Miller Wells, PLLC, Louisville, Kentucky,

                                    for Armstrong Coal Company, Inc., and Armstrong Fabricators, Inc.;

Daniel Z. Zaluski, Esq., Madisonville, Kentucky, for Armstrong Coal Company, Inc.

Before: Judge Feldman

            The Commission vacated the initial Order of Temporary Reinstatement issued in this matter, and remanded for further proceedings. 33 FMSHRC __ (May 2012) rev’g 33 FMSHRC __ (Apr. 2012) (ALJ). Consistent with the Commission’s directive, a hearing was held on May 23, 2012, in Owensboro, Kentucky. Following the hearing, the Secretary’s reinstatement application filed pursuant to 30 U.S.C. § 815(c)(2) on behalf of Reuben Shemwell was granted, and a decision was issued ordering Armstrong Coal Company, Inc. and/or Armstrong Fabricators, Inc., (“the Respondents”) to immediately reinstate Shemwell to the welder position he held immediately prior to his September 14, 2011, termination, or, to a similar position as a laborer at the same rate of pay and benefits, and with the same or equivalent duties assigned to him. 33 FMSHRC __ (June 2012) (ALJ). In addition, Shemwell was awarded retroactive wage payment effective as of April 25, 2012. Id. The order requiring Shemwell’s retroactive wage payment and temporary reinstatement was affirmed by the Commission. 33 FMSHRC __ (July 2012).

            As an alternative to Shemwell’s temporary reinstatement, on July 20, 2012, the Respondents filed a joint motion to approve their agreement for the economic temporary reinstatement of Shemwell. As a general matter, under the agreement, Shemwell shall receive back pay as of April 25, 2012, until the Order of Reinstatement issued on June 21,2012, is dissolved, or is otherwise no longer in effect. The terms of the agreement include the Respondents’ assurance that Shemwell will receive all benefits he would have received if he were physically working at the mine, including, but not limited to, health insurance, contributions to a §401k plan, and all relevant bonuses given to Armstrong’s welders during the temporary reinstatement period. The specific terms of the parties’ agreement are contained in the joint motion and are incorporated by reference.

            Shemwell’s economic reinstatement shall not prejudice the Respondents’ right to contest Shemwell’s discrimination complaint that currently is being investigated by the Secretary. The Secretary is urged to complete her investigation, as soon as practicable, so that this matter may proceed, if necessary, to an evidentiary hearing on the merits. Shemwell’s economic reinstatement shall remain in effect until a final decision on the merits is issued.

ORDER

            In view of the above, IT IS ORDERED that the parties’ motion to approve Shemwell’s economic reinstatement IS GRANTED.

            IT IS FURTHER ORDERED that all retroactive payment and benefits shall be provided to Shemwell by Armstrong Coal Company, Inc. and/or Armstrong Fabricators, Inc., within seven days from the date of this Order.

            IT IS FURTHER ORDERED that economic reinstatement shall remain in effect until final disposition of Shemwell’s underlying discrimination complaint.

/s/ Jerold Feldman

Jerold Feldman

Administrative Law Judge

Distribution: (Electronic and Certified Mail)

Matt S. Sheperd, Esq., Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219-2440

Tony Oppegard, Esq., Attorney for Reuben Shemwell, P.O. Box 22446, Lexington, KY 40522

Adam Spease, Esq. and Adam Scutchfield, Esq., Miller Wells, PLLC, 710 West Main Street,

4^th Floor, Louisville, KY 40202 - Counsel for Armstrong Coal Company and Armstrong Fabricators, Inc.

Dan Zaluski, Esq., Armstrong Coal Company, Inc., 407 Brown Road, Madisonville, KY 42431

/jel