<DOC>
[DOCID: f:wv200058lib.wais]
EASTERN ASSOCIATED COAL CORP.
June 27, 2001
WEVA 2000-40-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 27, 2001
SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT
MINE SAFETY AND HEALTH : PROCEEDING
ADMINISTRATION, on behalf of :
GARY DEAN MUNSON : Docket No. WEVA 2000-40-D
Complainant : MORG-CD-2000-01
:
v. :
: Federal No. 2
EASTERN ASSOCIATED COAL CORP. : Mine ID 46-01456
Respondent :
ORDER DENYING MOTION TO ENFORCE ORDER OF
TEMPORARY REINSTATEMENT WITHOUT PREJUDICE
Presently before me is a motion by the Secretary for entry
of an order enforcing the order of temporary reinstatement
previously entered in this case. Respondent has opposed the
motion. For the reasons that follow, the motion is denied
without prejudice.
On March 10, 2000, following a hearing, a Decision and
Order of Temporary Reinstatement was entered, directing
Respondent, Eastern Associated Coal Corporation (EACC) to
"REINSTATE Mr. Munson to the position he held immediately prior
to December 6, 1999, or to a similar position, at the same rate
of pay and benefits, IMMEDIATELY ON RECEIPT OF THIS DECISION."
Munson, however, did not return to work at EACC, because he
agreed to economic, as opposed to actual, reinstatement, i.e.,
Munson accepted an offer from EACC to provide pay and benefits
without his physically reporting for work. The parties did not
notify the Commission of the economic reinstatement agreement
and the March 10, 2000, decision and order remains outstanding.
A few months later, Munson changed his mind about economic
reinstatement and requested that he be allowed to return to work.
EACC declined his request, taking the position that Munson should
be held to his agreement to accept economic reinstatement. The
issue was raised with the undersigned administrative law judge,
but was not resolved, in part because of a question of
jurisdiction. See the order dated September 15, 2000, noting the
withdrawal of Respondent's motion to stay economic reinstatement.
No further action was taken on Munson's request until the filing
of the instant motion on May 24, 2001. On June 25, 2001, a
Decision on Liability was issued in Commission Docket No. WEVA
2000-58-D, the formal complaint of discrimination filed on
Munson's behalf with the Commission. It was held that EACC
discriminated against Munson in violation of the Act and
directed the parties to confer on the relief to be awarded
Munson and the amount of an appropriate civil penalty.
While the Commission has recently determined that an
administrative law judge retains jurisdiction over a temporary
reinstatement docket pending final resolution of the formal
complaint of discrimination,[1] there are several questions that
have not been addressed by the parties. Accordingly, the present
motion will be denied, without prejudice to its refiling with
appropriate supporting authority.
As noted previously, the March 10, 2000, decision and order
remains outstanding. It is unclear what the Secretary can
achieve through the motion to enforce, beyond the presently
existing decision and order directing Munson's reinstatement. It
seems, therefore, that the Secretary could seek enforcement of
that order, either in the appropriate United States Circuit Court
of Appeals pursuant to 30 U.S.C. � 816(b) or in a United States
District Court pursuant to 30 U.S.C. � 818(a). Unlike an
administrative law judge, judges of those courts possess the
contempt power and have the capability of compelling compliance
with a final order of the Commission. Of course, the Secretary
would be met with EACC's defense that Munson agreed to accept
economic reinstatement.
The Secretary has stated that Munson has rescinded the
economic reinstatement agreement and requested that it be
declared "null and void." However, no authority has been cited
in support of that request, nor has a legal framework for
resolving the issues raised by the motion and EACC's defense
even been identified. Also unaddressed are issues such as
whether the Commission has jurisdiction to resolve what may be
a private contractual dispute raised by EACC's defense, or
whether such issues can or should be resolved in the first
instance by the Commission or a court.
EACC's opposition to the motion suffers from similar
shortcomings. It argues that the economic reinstatement
agreement fulfills the primary legislative intent of the
temporary reinstatement provision and that Munson should be
held to his "binding contractual agreement." However, EACC
does not address Munson's purported recission of the agreement
and no legal authority is cited in support of its arguments.
EACC likewise did not address the potential jurisdictional
issues identified above.
In light of the above, moveant has failed to carry his
burden of demonstrating entitlement to the relief requested.
Accordingly, the motion will be denied, without prejudice to
its being refiled with appropriate supporting authority. Of
course, the Secretary is also free to seek enforcement of the
March 10, 2000, decision and order through the courts.
Ultimate disposition of the merits of his discrimination
complaint may also moot the current dispute.
ORDER
The Secretary's Motion to Enforce Order of Temporary
Reinstatement is Denied, without prejudice.
Michael E. Zielinski
Administrative Law Judge
Distribution:
Douglas N. White, Esq. Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203
(Certified Mail)
Rebecca O. Zuleski, Esq., Furbee, Amos, Webb & Critchfield, PLLC,
5000 Hampton Center,
Suite 4, Morgantown, WV 26505 (Certified Mail)
/mh
**FOOTNOTES**
[1]: Sec'y of Labor on behalf of York v. BR&D Enterprises,
Inc., 23 FMSHRC 386 (Apr. 2001).