<DOC>
[DOCID: f:va95-69m.wais]

 
CARDINAL STONE COMPANY
August 25, 1995
VA 95-69-DM


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                           August 25, 1995

SECRETARY OF LABOR,          : TEMPORARY REINSTATEMENT
  MINE AND SAFETY AND HEALTH : PROCEEDING
  ADMINISTRATION (MSHA),     :
  ON BEHALF OF               : Docket No. VA 95-69-DM
DELBERT W. BENNETT,          : MSHA Case No. NE MD 95-05
               Applicant     :
                             : Grayson Quarry
          v.                 :  
                             :
CARDINAL STONE COMPANY,      :
               Respondent    :
                             :

                   ORDER OF TEMPORARY REINSTATEMENT

     On August 11, 1995, the Secretary filed an 
application for temporary reinstatement on behalf of 
Delbert W. Bennett.  The application for temporary 
reinstatement was mailed to Cardinal Stone Company, 
(Respondent), by certified mail, return receipt requested.

     On August 25, 1995, the Secretary filed a motion for 
temporary reinstatement.  Attached to the motion is a 
copy of a return receipt, indicating receipt by 
Respondent of the application for temporary reinstatement 
on August 14, 1995.  To date, the Respondent has not 
advised the Chief Administrative Law Judge on his 
designee, whether a hearing is requested.  The Secretary 
asserts that Respondent has not notified the Secretary 
whether a hearing is requested.

     29 C.F.R. � 2700.45(C) provides, as pertinent, as 
follows:

     Within 10 days following receipt of the Secretary's
application for temporary reinstatement, the person 
against whom relief is sought shall advise the 
Commission's Chief Administrative Law Judge or his 
designee, and simultaneously notify the Secretary, whether
a hearing on the application is requested.  If no hearing 
is requested, the Judge assigned to the matter shall 
review immediately the Secretary's application and if 
based on the contents thereof the Judge determines that 
the miner's complaint was not frivolously brought, he 
shall issue immediately a written order of temporary
reinstatement.

     More than ten days have elapsed following receipt by
Respondent of the Secretary's a application for temporary
reinstatement.  No request has been received from the 
Respondent requesting a hearing on the application.  I
have reviewed the Secretary's application. Based on the 
contents thereof, I determine that the complaint of 
Delbert W. Bennett was not frivolously brought.

     According, it is ORDERED, that the respondent 
reinstate Delbert W. Bennett to the position he held 
immediately prior to being fired or to a similar position
at the same rate of pay, and with the same or equivalent
duties assigned to him.  It is further ORDERED that the
reinstatement shall remain in effect pending a final 
order by the Commission upon Applicant's Complaint of 
Discrimination.
                        

                                Avram Weisberger
                                Administrative Law Judge
                               (703) 756-5233


Distribution:

Caryl Casden, Esq., Office of the Solicitor, U.S. 
Department of Labor, 4015 Wilson Blvd., Suite 516, 
Arlington, VA 22203 (Certified Mail)

Cardinal Stone Company, Route 1, Box 452, Galax, VA 24333
(Certified Mail)

Delbert W. Bennett, 108 Pickshin Drive, Dobson, NC 27017 
(Certified Mail)