FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19^TH Street, Suite 443

Denver, CO 80202-2536

303-844-3577/FAX 303-844-5268

November 26, 2012

ORDER GRANTING THE PARTIES’ JOINT MOTION TO APPROVE SETTLEMENT

ORDER OF TEMPORARY ECONOMIC REINSTATEMENT

            This matter is before me on an application for temporary reinstatement filed by the Secretary of Labor (“Secretary”) on behalf of Robert Mitchell, pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(2), against Vulcan Construction Materials, LP (“Vulcan”). Mitchell was terminated from his position as a front-end loader operator on May 9, 2012.

            On November 21, 2012, the parties filed a Settlement Agreement and Motion for Temporary Economic Reinstatement (“Joint Motion”). The parties agreed that miners with Mitchell’s position and seniority are currently subject to a seasonal layoff that started on November 9, 2012, and are not presently employed at the mine. The settlement reached by the parties requires Vulcan to economically reinstate Mitchell from the date he would have been called back to work based on his seniority if he had not been terminated on May 9, 2012.

            The Joint Motion provides a detailed description of the terms of the economic reinstatement and the rights and responsibilities of the parties, which are all incorporated into this order by reference. The Joint Motion sets forth the regular pay, overtime pay, and benefits that Mitchell is entitled to. Benefits include health, retirement plan, and seniority accrual benefits. Vulcan must ensure that “Mitchell’s seniority status and all benefits attributed to that be uninterrupted and continue to accrue as if he was never terminated.” (Joint Motion ¶ 7).

            I have considered the representations and documentation submitted in this case and I conclude that the Joint Motion is appropriate under section 105(c)(2) of the Mine Act. The Joint Motion is GRANTED and the proposed settlement of this temporary reinstatement proceeding is APPROVED. The parties are ORDERED to comply with all the terms and conditions set forth in the Joint Motion. The Secretary is ORDERED to complete her investigation of the underlying discrimination complaint as soon as possible. The Secretary shall provide a report on the status of MSHA’s investigation of the discrimination complaint by no later than January 4, 2013. If the parties settle the underlying discrimination case, counsel for the Secretary shall immediately notify my office. Counsel for the Secretary shall also immediately notify my office if the Secretary determines that Vulcan did not violate section 105(c) of the Mine Act. I retain jurisdiction over this temporary reinstatement proceeding.

                                                                        /s/ Richard W. Manning

                                                                        Richard W. Manning

                                                                        Administrative Law Judge 

Distribution:

Elizabeth M. Kruse, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street, Room 844, Chicago, IL 60604 (Kruse.Elizabeth@dol.gov; and First Class Mail)

William K. Doran, Esq., Ogletree, Deakins, Nash, 1909 K Street, NW., Suite 1000, Washington, DC 20006-1152 (William.Doran@ogletreedeakins.com; First Class Mail)

Robert Mitchell, 14 Park Avenue, Cherry, IL 61317 (First Class Mail)

RWM