FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 26, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER DENYING MOTION FOR STAY

BY THE COMMISSION:

            This temporary reinstatement proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On April 17, 2013, Administrative Law Judge William S. Steele issued a decision and order temporarily reinstating Dustin Rodriguez to employment with C.R. Meyer and Sons Company (“C.R. Meyer”), pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2). 35 FMSHRC __, slip op. at 25. On April 23, 2013, C.R. Meyer filed a petition for review of that decision and order with the Commission, accompanied by a motion to stay the judge’s order reinstating the miner. On April 24, 2013, the Secretary of Labor filed a response in opposition to the motion for stay, and requested that the Commission deny the motion. For the reasons that follow, we deny the motion for stay.

I.

Factual and Procedural Background

            The facts of this case are set forth in detail in the judge’s April 17, 2013 decision and order. Slip op. at 5-18. On February 25, 2013, Mr. Rodriguez filed a discrimination complaint with the Department of Labor’s Mine Safety and Health Administration (“MSHA”) alleging that C.R. Meyer’s discharge of him on January 25, 2013, while he was working for it on its contract project at Molycorp Inc.’s Pass Mine and Mill in Mountain Pass, California, amounted to discrimination in violation of section 105(c) of the Mine Act. The Secretary filed an Application for Temporary Reinstatement on March 25, 2013, requesting an order requiring the operator to temporarily reinstate Mr. Rodriguez to his former position of journeyman pipefitter. C.R. Meyer requested a hearing, which was held on April 10, 2013.

            Two days prior to the hearing, the Secretary filed a motion in limine, seeking an order from the judge limiting the evidence that the operator could present at the temporary reinstatement hearing, including evidence with respect to establishing that its obligation to reinstate Mr. Rodriguez pursuant to section 105(c)(2) was temporarily tolled in this instance due to economic reasons. At the hearing, the judge ruled that C.R. Meyer could not introduce any evidence on the issue of tolling of reinstatement, though he did permit a proffer by its counsel regarding that evidence. Slip op. at 4, 22-23; Tr. 9-10, 114-18.

            The operator has limited its petition for review of the judge’s reinstatement order to his finding on the issue of tolling the reinstatement obligation and the evidentiary ruling he made on the issue. The operator is not challenging the judge’s conclusion that the Secretary established that Mr. Rodriguez’s application for temporary reinstatement had not been frivolously brought.

II.

Disposition

            In Secretary on behalf of Price and Vacha v. Jim Walter Resources, Inc., 9 FMSHRC 1312 (Aug. 1987), the Commission held that a party seeking a stay pending review of a temporary reinstatement decision or order must make an adequate showing with respect to the four factors set forth in Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958): (1) a likelihood that the moving party will prevail on the merits of its appeal; (2) irreparable harm to it if the stay is not granted; (3) no adverse effect on other interested parties; and (4) a showing that the stay is in the public interest. The court there also made clear that a stay constitutes “extraordinary relief.” Id.; see also W.S. Frey Co., 16 FMSHRC 1591 (Aug. 1994). Accordingly, the Commission’s temporary reinstatement procedural rule provides that the Commission will stay a judge’s order temporarily reinstating a miner “only under extraordinary circumstances.” 29 C.F.R. § 2700.45(f).

            The burden is on the movant to provide “sufficient substantiation” of the requirements for the stay. Stillwater Mining Co., 18 FMSHRC 1756, 1757 (Oct. 1996). Where a probability of success on the merits is established, an inadequate showing with regard to the other three factors nevertheless still prevents the grant of a stay pending review. Virginia Petroleum, 259 F.2d at 926. Even assuming arguendo that the operator here has established a likelihood of such success, we find that it has failed to adequately satisfy the other factors and failed to make the required showing of “extraordinary circumstances.” Thus we deny its motion for stay.

A.        Whether C.R. Meyer Will Suffer Irreparable Harm Should a Stay Not Issue

            C.R. Meyer argues that it should not have to pay Mr. Rodriguez wages and benefits during its appeal of the judge’s reinstatement order, given that there is allegedly no work available for him with the company. It further contends that it expects to ultimately prevail in the discrimination case, but will be irreparably harmed because it will not be able to recover the sums it paid to Mr. Rodriguez in the meantime under the reinstatement order. Mot. at 3. The Secretary responds that there is nothing preventing the operator from placing the miner in any position for which he is qualified, and thus benefitting from his work while he is temporarily reinstated. S. Resp. at 14-15.

            “It is . . . well-settled that economic loss does not, in and of itself, constitute irreparable harm.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985); see also Virginia Petroleum, 259 F.2d at 925 (“Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough.”). Moreover, like the proceeding before the judge, the review process is an expeditious one. Consequently, we cannot agree there will be substantial harm to the operator in having to comply with the temporary reinstatement order in the meantime.

            As for Meyer’s second argument, it is one that, if accepted, would effectively nullify the temporary reinstatement provisions of the Mine Act. A reinstated miner might not ultimately succeed on the merits of his discrimination claim. However, there is nothing in the Mine Act which contemplates that the miner would be expected to repay the amounts paid pursuant to the reinstatement order. Indeed, that would run counter to the intent of the provision, which is to provide immediate relief to a complaining miner while he or she waits for the case to be decided. See Sec’y of Labor on behalf of Bowling v. Perry Transport, Inc., 15 FMSHRC 196, 197-98 (Feb. 1993). In return, the operator would receive the services of the miner, should it want to make use of them.

            Consequently, we disagree with the operator that not staying the temporary reinstatement order while we consider its appeal will lead to it suffering irreparable harm. The economic cost it bears will be relatively short-lived, and can be mitigated by making use of Mr. Rodriguez’s services.

B.        Whether Other Interested Parties Would be Adversely Affected by a Stay

            In enacting the Mine Act, Congress stated the essential reasoning behind the temporary reinstatement remedy: “The Committee feels that this temporary reinstatement is an essential protection for complaining miners who may not be in the financial position to suffer even a short period of unemployment or reduced income pending the resolution of the discrimination complaint.” S. Conf. Rep. No. 95-461, at 37 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 1315 (1978) (“Legis. Hist.”). There is nothing in the record in this case that leads us to believe that Mr. Rodriguez somehow falls outside the scope of Congressional concern about the need for immediate temporary relief for miners who may have been discharged for making safety complaints. Consequently, we conclude that Mr. Rodriguez would be adversely affected by the stay requested by C.R. Meyer.

C.        Whether a Stay Would Serve the Public Interest

            While a stay of the judge’s temporary reinstatement here may serve the private interest of C.R. Meyer, we fail to see how it would serve the public interest, as set forth by Congress in the Mine Act’s temporary reinstatement provisions. Congress “clearly intended that employers should bear a proportionately greater burden of the risk of an erroneous decision in a temporary reinstatement proceeding.” Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 748 n.11 (11th Cir. 1990). The legislative history of the Mine Act indicates that section 105(c)’s prohibition against discrimination is to be “construed expansively to assure that miners will not be inhibited in any way in exercising any rights afforded by the legislation.” S. Rep. No. 95-181, at 36, Legis. Hist. at 624. Recognizing the important role that individual miners play in ensuring a safe and healthy working environment, Congress was also acutely aware that “mining often takes place in remote sections of the country where work in the mines offers the only real employment opportunity.” S. Rep. No. 95-181, at 35, Legis. Hist. at 623. We thus conclude that the public interest clearly is better served by denying a stay of the temporary reinstatement order.

III.

Conclusion

            For the foregoing reasons, we deny C.R. Meyer’s motion for stay of temporary reinstatement pending appeal. The judge’s order remains fully in effect, and, as stated by the judge, as of April 17, 2013, C.R. Meyer “is ORDERED to provide immediate reinstatement to Rodriguez, at the journeyman pipefitter’s rate of pay for the same number of hours worked, and with the same benefits, as at the time of his discharge.” Slip op. at 25.

                                                                                    ____________________________________

                                                                                    Mary Lu Jordan, Chairman

                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner

                                                                                    ____________________________________

                                                                                    Patrick K. Nakamura, Commissioner

Distribution:

Dustin Rodriguez

1464 Labrador Drive

Las Vegas, NV 89142

David Hertel, Esq.

Eric Eisenmann, Esq.

Whythe, Hirschboeck, Dudek S.C.

555 East Wells St., Suite 1900

Milwaukee, WI 53202-3819

dhertel@whdlaw.com

eeisenmann@whdlaw.com

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Jerald S. Feingold, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Administrative Law Judge Wm. S. Steele

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

7 Parkway Ctr.,

875 Greentree Rd., Suite 290

Pittsburgh, PA 15220