FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

August 29, 2012

BEFORE: Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners

DECISION

BY: Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners

            This temporary reinstatement proceeding arises under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (2006) (“Mine Act”). On August 20, 2012, the Commission received from Star Mine Services, Inc. (“Star”) a petition for review of Administrative Law Judge William Steele’s August 16, 2012 decision and order temporarily reinstating Justin Slaton. On August 23, 2012, the Commission received the Secretary of Labor’s opposition to the petition. For the reasons that follow, we accept the petition for review and affirm the Judge’s order requiring the temporary reinstatement of Mr. Slaton.

            Slaton was employed by Star, an independent contractor, as an outby support worker at the Cardinal Mine, which was operated by Warrior Coal, LLC (“Warrior”). 34 FMSHRC , slip op. at 3-4, No. KENT 2012-1298-D (Aug. 16, 2012) (ALJ) (“slip op.”). On May 29, 2012, Slaton filed a complaint of discrimination with the Department of Labor’s Mine Safety and Health Administration, alleging in effect that he had been terminated due to his exercise of activity protected by section 105(c) of the Mine Act, 30 U.S.C. § 815(c). Id. at 4. On July 6, 2012, the Secretary filed an Application for Temporary Reinstatement in which she requested that Slaton be reinstated to “the position he held immediately prior to his termination or to a similar position at the same rate of pay, same shift assignment, and with the same or equivalent duties.” Application at 2-3. Star requested a hearing, and a hearing was held before the Judge on August 8, 2012.

            On August 16, the Judge issued a decision concluding that the application for temporary reinstatement was not frivolously brought. Slip op. at 12. The Judge ordered Star to reinstate Slaton “to his former position as Outby Support Worker at Warrior Coal, LLC’s Cardinal Mine at the same rate of pay and with the insurance benefits that he would have received but-for his discharge.” Id.

            Star seeks review of the Judge’s order requiring it to reinstate Slaton to his position at Warrior’s Cardinal Mine. Star contends that it does not have the authority to compel Warrior to use specific miners. The operator requests that the Commission dissolve the temporary reinstatement order or modify the language of the order directing reinstatement at Warrior’s Cardinal Mine.

            The Secretary opposes the petition and notes that the issue raised by Star on appeal was not raised before the Judge and hence is not properly before the Commission. See 30 U.S.C. § 823(d)(2)(A)(iii). The Secretary also argues that Star currently employs miners at the Cardinal Mine, and that Star should be able to accomplish Slaton’s reinstatement. She states that if events occur that establish that Star cannot accomplish Slaton’s reinstatement, Star could pursue the matter with the Judge.

            Having reviewed the parties’ submissions, we deny the relief sought by Star. Accordingly, we affirm the Judge’s August 16 decision temporarily reinstating Slaton. We intimate no view as to the ultimate merits of this case.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution

J. Todd P’Pool, Esq.

P’Pool & Riddle, PLLC

220 North Main Street

Madisonville, KY 42431

 for Star Mine Services, Inc.

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 William S. Steele

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

7 Parkway Center

875 Greentree Road, Suite 290

Pittsburgh, PA 15220