FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, N.W.

Washington, DC 20004-1710

Telephone No.: 202-434-9933

Telecopier No.: 202-434-9954

November 23, 2012

Order Approving Temporary Reinstatement Agreement

Before: Judge Moran

            This temporary reinstatement proceeding arises under Section 105(c) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”). On November 1, 2012 the Commission received the Secretary’s Application for Temporary Reinstatement of the complaining miner, Todd Fagg. On November 6, 2012 the case was assigned to the Court. On November 20, 2012 the parties submitted a Joint Motion for Temporary Reinstatement. As stated in the Settlement Agreement and Joint Motion for Temporary Reinstatement, the terms of the agreement are as follows:

1. The Secretary asserts that miner Todd Fagg’s complaint of discrimination in violation of Section 105(c) of the Federal Mine Safety and Health Act of 1977 (“The Mine Act"), 30 U.S.C. §801, et seq., and 29 C.F.R. §2700.45, was not frivolously brought.

2. Without in any way admitting that the said complaint was not frivolously brought, and solely for the purposes of avoiding the cost and expense of a hearing on the issue of temporary reinstatement, and only until the merits of Complainant's discrimination complaint has been resolved, Respondent agrees to the entry of an Order of Temporary Reinstatement and not to oppose same.

3. The parties further agree, due to the distances involved and the need for quick action in this matter, that facsimile signatures and signatures on electronically submitted documents shall be deemed valid, and documents with original signatures shall follow immediately by mail.

4. By this Joint Motion, the parties hereby agree to settle this temporary reinstatement proceeding on the terms described herein, and move that this settlement be approved and that an Order be entered granting economic temporary reinstatement of Mr. Fagg to his position as Assistant Supervisor - Technical II ("Assistant Supervisor") at Respondent's Argenta Mine and Mill located at 13 miles east of Battle Mountain, Nevada 89820.

5. Pursuant to this economic reinstatement, Respondent must:

a. (economically/employ Mr. Fagg at his Assistant Supervisor position at the Argenta Mine and Mill at the same rate of pay, ($30.61 per hour) for straight time and ($45.91 per hour) for overtime, that he was paid immediately prior to his suspension and eventual termination on August 28, 2012.

 b. economically employ Mr. Fagg at his Assistant Supervisor position at the Argenta Mine and Mill for the same number of hours (40 hours straight time and 10 hours overtime) that he worked immediately prior to his suspension and eventual termination on August 28,2012.

c. pay Mr. Fagg a prorated boot allowance of $5.77 (FIVE DOLLARS AND SEVENTY-SEVEN CENTS) per two-week pay period. d. pay Mr. Fagg a $95.00 (NINTY-FIVE DOLLARS AND ZERO CENTS) allowance per pay period in lieu of providing him a company cellular telephone for personal use, a company vehicle for personal use, and a company gas card for personal use.

e. pay Mr. Fagg $3,467.77 (THREE THOUSAND FOUR HUNDRED AND SIXTY-SEVEN DOLLARS AND SEVENTY-SEVEN CENTS) every two weeks on Respondent's regularly scheduled pay days, from which Respondent may deduct all required tax withholdings from Mr. Fagg's pay checks. This $3,347.77 amount is the sum of 40 hours at $30.61 an hour, ten hours of overtime at $45.91 an hour, the $5.77 boot allowance, and the $95.00 telephone, vehicle, and gas card allowance.

f. deposit this $3,467.77 amount due Mr. Fagg via electronic transfer into the same bank account that Respondent had been electronically transferring his bi weekly pay immediately prior to his termination. This first payment is due on the first regularly occurring payday after the effective date of Mr. Fagg's reinstatement

g. issue Mr. Fagg, by the tenth of every month, a copy of his pay stubs for the electronic deposits that Respondent made to him in the previous month by

sending them to the following address via first class United States mail:

Todd Fagg

134 Indian Springs Ct.

Battle Mountain, NV 89820

h. provide to Mr. Fagg and his family the same level of benefits that Respondent provided to them immediately prior to his suspension and eventual termination on August 28,2012, including, but not limited to:

            i. Respondent agrees to provide the same medical, dental, and vision health coverage for Mr. Fagg and qualified dependents and Respondent agrees to pay the premiums and costs associated with this coverage in the same manner that it paid immediately prior to his suspension and eventual termination on August 28, 2012, and to deduct from Mr. Fagg's gross pay Mr. Fagg's portion of such premiums in the same manner that it deducted immediately prior to his suspension and eventual termination on August 28,2012;

            ii Respondent agrees to pay the premiums that it paid immediately prior to his suspension and eventual termination on August 28,2012, of a life insurance policy for Mr. Fagg wherein the value of such policy is at least equal to one-year of his pay - $87,313 (EIGHTY-SEVEN THOUSAND THREE HUNDRED AND THIRTEEN DOLLARS) and to deduct from Mr. Fagg's gross pay Mr. Fagg's portion of such premiums in the same manner that it deducted immediately prior to his suspension and eventual termination on August 28,2012;

            iii Respondent agrees to deduct 5% (FIVE PERCENT) of Mr. Fagg's bi-weekly pay and contribute that amount to his 401(k) plan subject to company policy and the applicable maximum contribution laws;

iv. Respondent agrees to make a matching contribution equal to 5% (FIVE PERCENT) of Mr. Fagg's bi-weekly pay to his 401 (k) plan subject to Respondent's policy governing such contributions and the applicable maximum contribution laws;

            v. Respondent agrees that Mr. Fagg shall remain eligible to participate in Respondent's Pension Plan on the same terms as prior to his August 28, 2012 termination, which includes a contribution by Respondent to that pension plan of 2% (TWO PERCENT) of Mr. Fagg's base salary subject to Respondent's policy governing such contributions;

i. issue the Secretary's counsel, by the tenth of every month, a copy of Mr. Fagg's pay stubs for the electronic deposits that Respondent made to him in the previous month by sending them to the following address via first class United States mail:

            Norman E. Garcia, Esq., Office of the Solicitor United States Department of Labor

            90 Seventh Street, Rm. 3-700, San Francisco, California 94105.

In lieu of sending these pay stubs by United States first class mail, Respondent can send them by e-mail to the following e-mail address garcia.norman@dol.gov.

6. Mr. Fagg's reinstatement will be effective on the date that the Federal Mine Safety and Health Review Commission enters an Order of Temporary Reinstatement in this matter.

7. Each party agrees that the Administrative Law Judge shall continue to have jurisdiction over all aspects of the economic temporary reinstatement until the Administrative Law Judge issues an order dissolving the economic temporary reinstatement.

8. If Respondent fails in any way to provide payment and benefits as required by this Settlement Agreement and Joint Motion for Temporary Reinstatement, the parties agree that the Administrative Law Judge and/or the Federal Mine Safety and Health Review Commission may seek sanctions against Respondent.

9. Each party agrees to bear all fees and other expenses, including any court costs or attorney's fees incurred by such party in connection with the temporary reinstatement stage of this proceeding and any attorney's fees which may be available under the Equal Access to Justice Act as amended.

WHEREFORE, the Joint Motion for Temporary Reinstatement is GRANTED.

It is further ORDERED that the Secretary initiate a conference call with the Court at 202 577 6809 or reach the Court via email at wmoran@fmshrc.gov on December 26, 2012, or before that date, of her determination regarding whether discrimination occurred in violation of the Mine Act.

                                                                                    /s/ William B. Moran

                                                                                    William B. Moran

                                                                                    Administrative Law Judge

Distribution:

Norman E. Garcia, Esq. , Office of the Solicitor

U.S. Department of Labor

90 Seventh Street, Suite 3-7000

San Francisco, California 94103

Facsimile: 415 625 7772

Garcia.Norman@DOL.GOV

Stephanie C. Larocco, Esq.

Seyfarth Shaw, LLP

131 South Dearborn Street, Suite 2400

Chicago, IL 60603-5577

Tel: (312) 460 5000

SchristiansenLaRocco@seyfarth.com