FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, D.C. 20001

November 26, 2008

Appearances:  Thomas A. Paige, Esq., U.S. Department of Labor, Arlington, Virginia,

                        on behalf of the Complainant

                        Richard P. Ranson, Esq., Ranson & Kane, P.C., Colorado Springs, Colorado,

                        on behalf of the Respondent

Before:            Judge Barbour

DISSOLUTION OF ORDER OF TEMPORARY ECONOMIC REINSTATEMENT

AND

DISMISSAL OF PROCEEDING

            In this proceeding arising under Section 105(c ), 30 U.S.C. § 815(c), of the Federal Mine Safety and Health Act of 1977 (Mine Act or Act), 30 U.S.C. § 801, et. seq., the Secretary of Labor, through her Mine Safety and Health Administration (MSHA) and on behalf of Peter J. Phillips, applied for the temporary reinstatement of Mr. Phillips, an employee of A&S Construction Company (A&S). Mr. Phillips was discharged by A&S on September 13, 2007. On February 11, 2008, Mr. Phillips filed a complaint with MSHA alleging his discharge was motivated by protected safety complaints. MSHA conducted a preliminary special investigation of Mr. Phillips’ complaint and determined it was not frivolous. The finding resulted in the Secretary’s temporary reinstatement application. The Commission received the application on May 22, 2008.

            On May 23, 2008, the application was assigned to me. On May 27, 2008, I scheduled the matter to be heard on June 4, in Pueblo, Colorado. Subsequently, counsels conferred and reached an agreement to economically reinstate Mr. Phillips. They further agreed a hearing on the Secretary’s application was unnecessary. Therefore, the hearing was canceled, and on June 6, 2006, I ordered Mr. Phillips’ economic reinstatement “at the same rate of pay, with the same benefits, and for the same work period he held prior to his discharge.” Order of Temporary Economic Reinstatement. As part of the economic reinstatement, the parties and I agreed the Secretary would promptly investigate Mr. Phillips’ underlying discrimination complaint and determine whether she would bring a complaint of discrimination on behalf of Mr. Phillips under section 105(c)(2) of the Act. (A&S was, of course, obligated to pay Mr. Phillips while the investigation was ongoing.) I requested then counsel for the Secretary, James Crawford, to advise me periodically of the status of the investigation. Pursuant to my request, on July 2, 2008, counsel stated a final determination was anticipated “within the next few weeks to a month, if not sooner.” Secretary’s Update on Merits Determination (Update) 1-2. On August 1, 2008, counsel stated a final determination “will be made within the next two weeks.” Update 1-2. On September 10, 2008, counsel stated a determination would be made “as soon as possible.” Update 2. Following the September update, Mr. Crawford retired, and the matter was transferred to Thomas Paige.

            On November 10, 2008, the Commission received a notice from Mr. Paige that the Secretary did not intend to proceed under Section 105(c)(2) of the Act on Mr. Phillips’ behalf.

Mr. Paige further stated Mr. Phillips had been notified by letter dated November 3, 2008, of the Secretary’s decision and of his right to file a complaint on his own behalf under Section 105(c)(3). 30 U.S.C. § 815(c)(3). Counsel also stated:

                        [I]t is the Secretary’s position that the . . . Order of

                        Temporary Economic Reinstatement . . . remains in

                        effect until there is a final order of the Commission

                        disposing of Mr. Phillips’s case, and that such order

                        cannot be dissolved before that time without violating

                        the clear language of the statute. The Order of

                        Temporary Economic Reinstatement must remain

                        in effect if Mr. Phillips decides to proceed on his

                        own behalf. [T]he Secretary . . . will oppose any

                        motion . . . [to dismiss] the order of temporary

                        [economic] reinstatement prior to the date the

                        complaint is finally disposed of.

            Notice of the Secretary’s Intent Not to Proceed 1-2. Attached to the Secretary’s notice was the November 3 letter to Mr. Phillips in which the Assistant Director of MSHA’s Technical Compliance and Investigation Office advised Mr. Phillips MSHA had “determined that facts disclosed during the investigation do not constitute a violation of Section 105(c)” and “[t]herefore, discrimination, within the confines of the Mine Act, did not occur.” Id., Exh. A.

            On November 10, the Commission also received a request from A&S to schedule a hearing to determine, in view of the Secretary’s conclusion Mr. Phillips’ termination did not violate the Act, whether Mr. Phillips’ complaint was frivolously brought and/or whether the reinstatement proceeding should be dismissed and the order of temporary economic reinstatement rescinded. Respondent’s Request to Set Matter for Hearing [and] Motion to Dismiss.

            On November 14, following discussions with counsels and with the agreement of Mr. Phillips, I scheduled a telephonic oral argument on A&S’s request and motion. I stated in part, “At issue is the effect of the Secretary’s Notice of Intent Not to Proceed Under Section 105(c)(2) of the Act on the . . . Order of Temporary Economic Reinstatement.” Order Scheduling Oral Argument. Because of the need for a speedy resolution of the issue, I advised the parties I would orally rule on the request and motion and, once I received the transcript, I would confirm the ruling in writing. I added, “The written ruling will be the basis for any appeal to the Commission.” Id.

            On November 18, 2008, the argument went forward as scheduled. Counsels and Mr. Phillips participated. At the conclusion of the argument I held as follows:

                        The fundamental issue before me is the continuing viability of

                        an order of temporary reinstatement once the Secretary has

                        decided the facts under[ly]ing . . . [a] miner’s complaint . . .

                        [do] not constitute a violation of Section 105(d). With all

                        due respect . . . , I disagree with the Secretary’s position

                        [– as ably argued by her counsel – ] that the [O]rder of Temporary

                        Economic Reinstatement must remain in effect if Mr. Phillips

                        decides to proceed on his own behalf.

                        As I read the Act, the authority to issue an order of temporary

                        reinstatement arises under Section 105(c)(2)[,] [which] states

                        . . . [that an] order of temporary reinstatement remains in effect

                        “pending final order on the complaint.” [In my view] the

                        complaint referenced in this quote is the miner’s complaint as

                        made to and investigated by the Secretary. [A] [“]final order[”]

                        on the miner’s complaint is reached when the Secretary [advises]

                        the miner[,] as she has done in this proceeding[,] that “Your

                        complaint of discrimination under Section 105( c) has been

                        investigated. A careful review of the information gathered

                        during the investigation has been made. On the basis of that

                        record, MSHA has determined that facts disclosed during the

                        investigation . . . [do] not constitute a violation of section

                        105(c).”

                        With regard to the complaint the miner has filed with the

                        Secretary[, w]hat could be more final? The Secretary’s

                        involvement with the complaint has ended. The temporary

                        reinstatement proceeding has ended. [As the Act states,][ i]f

                        the miner wishes to proceed on his [or her] own behalf, under

                        Section 105(c)(3) . . . [h]e [or she] must “file an action on

                        his [or her] own behalf before the Commission.” It is worth

                        noting Section 105(c)(2), which authorizes temporary re-

                        instatement, speaks to the Secretary. Section 105(c)(3),

                        which does not authorize temporary reinstatement, speaks

                        to the miner. While I am cognizant of counsel for the

                        Secretary’s argument that I must defer to the Secretary’s

                        interpretation of Section 105(c)(2) and Section 105(c)(3),

                        I do not find the[se] provisions ambiguous [and therefore

                        obligating deference]. To me, they clearly stand for the

                        proposition that an order of temporary reinstatement must

                        end once the Secretary decides not to proceed.

                        The Commission’s rules in this regard [t]rack the statute.

                        Under . . . Rule 40(b), for a miner to proceed on . . . [his

                        or her] own behalf, a new complaint must be filed . . . .

                        This complaint is a new action, one separate from the

                        Secretary’s application for temporary reinstatement. Not

                        only do the Act and Commission’s rules treat miner’s

                        complaints and the Secretary’s application for temporary

                        reinstatement as separate and distinct from the miner’s

                        complaint on his [or her] own behalf under Section

                        105(c)(3), so does the Commission[’]s docket office,

                        which long has docketed actions for temporary

                        reinstatement separate from actions brought under

                        Section 105(c)(3). Moreover, and more importantly,

                        the remedies available to the miner under Section

                        105(c)(3) do not, and I emphasize “not”, include

                        temporary reinstatement. Rather, if he or she prevails,

                        the miner is made economically whole in part by back

                        pay and interest.

                        The remedial provisions in Section 105(c)(2) and

                        [Section] 105(c)(3) represent a balancing . . . of interests

                        . . . [underlying] [C]ongress’s desire to encourage [miners]

                        to actively participate in furthering health and safety under

                        the Act. Congress recognized [miners] have an interest in

                        being protected against possible discrimination they

                        may suffer as a result of . . . activities on behalf of health[,]

                        . . . safety and enforcement[,]. . . Congress also recognize[d]

                        . . . operators have an interest . . . [in] control[ling] their

                        workforce. By providing temporary reinstatement under

                        Section 105(c)(2), [C]ongress determined . . . operators

                        should bear the greater burden while the Secretary concludes

                        whether, in her view, a miner’s complaint of discrimination

                        has [merit]. But [C]ongress also recognize[d] the operator’s

                        interest in controlling its workforce by making reinstatement

                        [and its resulting burden] temporary[.] [A]s the 11^th Circuit

                        noted, deprivation of an employer’s right to control the

                        makeup of its . . . workforce is [“only a] temporary one that

                        can be rectified by the Secretary’s decision not to bring

                        a formal complaint or [by] a decision on the merits in the

                        employe[r]’s favor.[”] . . . [Jim Walter Resources v. Federal

                        Mine Safety and Health Review Commission,

                        920 F.2d738, 748 n. 11 (emphasis in original)]. It seems clear

                        to me the Court believed the temporary nature of reinstatement

                        under Section 105(c)(2) meant . . . reinstatement could end

                        with, as the Court stated, “[t]he Secretary’s decision not to

                        bring a formal complaint” [Id.], and the right of the operator

                        to control its workforce could be returned [to the operator]

                        as the miner contemplated whether or not to proceed on his

                        or her own behalf under Section 105(c)(3).

                        For these reasons, and given the Secretary’s conclusion

                        . . . [based on] the information gathered during her in-

                        investigation of Mr. Phillips’ complaint . . . [that Mr.

                        Phillips suffered] no discrimination within the confines of

                        the Act[,] I conclude the [O]rder of Temporary [Economic]

                        Reinstatement entered on June 5, 2008, should be dissolved

                        and this matter should be dismissed.

                        I will dissolve the order and dismiss this proceeding in a

                        written order confirming this . . . [oral ruling]. Until such

                        written order is issued, the order of temporary economic

                        reinstatement will remain in effect.

            Tr. 25-30 (editorial changes added).

ORDER

            For the reasons stated above, the Order of Temporary Economic Reinstatement entered by me on June 6, 2008, IS DISSOLVED and this proceeding IS DISMISSED.

David F. Barbour

Administrative Law Judge

Distribution: (Certified Mail & by Facsimile)

Thomas A. Paige, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., 22^nd Floor West, Arlington, VA 22209-2247

Peter J. Phillips, 112 W. 6^th Street, Florence, CO 80226

Richard P. Ranson, Esq., Ranson & Kane, P.C., 3475 Briargate Blvd., Suite 201, Colorado Springs, CO 80920

/ej