[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)