<DOC>
[DOCID: f:kt2000255am.wais]

 
BR&D ENTERPRISES, INC
June 26, 2001
KENT 2000-255-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                          June 26, 2001

SECRETARY OF LABOR,              : TEMPORARY REINSTATEMENT
  MINE SAFETY AND HEALTH         :   PROCEEDING
  ADMINISTRATION, on behalf of   :
  DEWAYNE YORK,                  : Docket No. KENT 2000-255-D
               Complainant       :            BARB-CD-2000-06
          v.                     :
                                 :
BR&D ENTERPRISES, INC,           : Mine ID 15-18028
               Respondent        :

                          ORDER AMENDING
                 ORDER OF TEMPORARY REINSTATEMENT

     Presently  before  me  is a joint request by the parties  to
enter an agreed order amending  the August 29, 2000, Decision and
Order of Temporary Reinstatement,  directing that Dewayne York be
immediately  reinstated to the position  he  held  prior  to  his
termination on  May 25, 2000.  Following entry of that Order, the
parties  agreed  to  economic  reinstatement,  i.e.,  York  would
receive the same pay  and benefits he had been receiving prior to
his termination, but he  would not actually return to work.  That
agreement has been in effect since August 31, 2000, and continues
to  present.   On October 11,  2000,  the  parties  submitted  an
"Agreed Order on  Economic  Reinstatement,"  requesting  that the
Order  of  Temporary  Reinstatement  be modified to reflect their
agreement.

     Because  the  parties  had  not  addressed   the   issue  of
jurisdiction  in  their  submission,  I  declined  their request,
invited their attention to the jurisdictional issue and suggested
that  they  could  file  an  appropriate  motion  with me or  the
Commission.   The  Secretary filed a motion with the  Commission,
pursuant to Commission Procedural Rule 1(b) and Rule 60(b) of the
Federal Rules of Civil Procedure, requesting that the proceedings
be reopened and that  the case be remanded to allow me to rule on
their request.  By Order,  dated  April  20, 2001, the Commission
ruled  that  it  did  not  have  jurisdiction  to  entertain  the
Secretary's motion because the administrative law  judge  retains
jurisdiction over a temporary reinstatement docket pending  final
resolution  of the formal complaint of discrimination.  Sec'y  of
Labor on behalf of York v. BR &D Enterprises, Inc., 23 FMSHRC 386
(Apr. 2001).   The  parties  have  renewed their request that the
Decision  and  Order  of Temporary Reinstatement  be  amended  to
reflect their agreement to economic reinstatement.

                              ORDER

     Upon consideration  of  the joint request of the parties, it
is ORDERED: that the August 29, 2000, Decision and Order of 
Temporary Reinstatement is hereby amended to provide that,  in 
lieu of actual reinstatement, the Respondent may, with the 
agreement  of  the  parties, provide York  with  economic  
reinstatement as specified in the  attached Agreed Order on
Economic Reinstatement.


                              Michael E. Zielinski
                              Administrative Law Judge


Distribution:

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard  Jones  Rd.,  Suite  B-201,  Nashville, TN
37215 (Certified Mail)

J.  P. Cline III, Esq., P.O. Drawer 2220, Middlesboro,  KY  40965
(Certified Mail)

/mh





         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES


ALEXIS M. HERMAN, Secretary    )  DISCRIMINATION PROCEEDING
of Labor, United States        )
Department of Labor,           )
                               )  DOCKET NO. 2000-255-D
          Complainant          )
                               )
          v.                   )  MSHA CASE NO. BARB-CD-2000-06
                               )
BR&D ENTERPRISES, INC.,        )
                               )  MINE: BRD #3
          Respondent           )

             AGREED ORDER ON ECONOMIC REINSTATEMENT

          Upon  agreement  of  the  parties,  and being otherwise

fully advised, the Decision and Order of Temporary  Reinstatement

issued on August 29, 2000 is modified as follows:

          1.  Dewayne  York  is  to  be  economically  reinstated

rather   than   being   placed   back  to  work.   This  economic

reinstatement began on August 31,  2000.   Mr. York is to be paid

on the regularly scheduled Thursday payday, and is to receive the

same  amount  of  pay,  including overtime pay,  as  roof  bolter

operators  working  on his  former  section  at  the  mine.   His

paycheck is to be mailed to his home address.

          2.  Dewayne   York   is  also  to  be  provided  health

insurance as an employee, and is  to receive any and all benefits

which  he  would receive or to which  he  would  be  entitled  if

he were working as a roof bolter operator.

          3.  This  economic  reinstatement of Dewayne York is to

last  until  he  is  actually put back  to  work  at  his  former

position,  or until there  is  an  ultimate  resolution  of  this

matter, by settlement or final decision and order.

          4.   Respondent's  signature  on  this Agreed Order, by

counsel,  shall  not  constitute  a  waiver  of  and   respondent

expressly  retains  and reserves all rights and defenses to  this

action to which respondent  is  entitled  at law.  Further, it is

expressly acknowledged by the parties that  respondent  does  not

waive  any  of  the  procedural  requirements  imposed  upon  the

complainant  in  the  prosecution  of  the  claim subject of this

action.

          So Ordered this      day of ______________, 2000.



                                   ______________________________
                                   HONORABLE MICHAEL E. ZIELINSKI
                                   Administrative Law Judge

Agreed to by the parties:

                                     Respectfully submitted,

                                     HENRY L. SOLANO
                                     Solicitor of Labor
________________________
DEWAYNE YORK                         JAYLYNN K. FORTNEY
Complainant                          Regional Solicitor

                                     THERESA BALL
                                     Associate Regional Solicitor


_________________________            ____________________________
J. P. CLINE, III                     JOSEPH B. LUCKETT
Attorney                             Attorney

B R & D Enterprises, Inc.            U.S. Department of Labor
                                     Attorneys for Secretary