FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

December 16, 2011

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

ORDER GRANTING MOTION FOR STAY IN PART

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

            This proceeding involves a complaint of discrimination filed by the Secretary of Labor on behalf of Cindy L. Clapp under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”), against Cordero Mining, LLC (“Cordero”). See 30 U.S.C. § 815(c). On May 4, 2010, Clapp filed a complaint with the Department of Labor’s Mine Safety and Health Administration (“MSHA”) alleging that Cordero had terminated her employment in retaliation for Clapp’s exercise of her rights under section 105(c). After MSHA’s initial investigation of Cordero’s complaint, the Secretary filed an Application for Temporary Reinstatement pursuant to section 105(c)(2) of the Act on behalf of Cordero in Commission Docket No. WEST 2010-1314-D.

            On June 24, 2010, prior to a hearing on the application, the parties filed a Joint Motion to Approve Settlement which requested that Clapp be immediately economically reinstated under the same terms of employment as if her employment had not been terminated on March 18, 2010. Docket No. WEST 2010-1314-D, Unpublished Order at 1 (June 28, 2010) (ALJ). The judge soon thereafter ordered economic reinstatement per the terms of the settlement. Id. at 2. In the motion, the parties stated that they agreed that “Clapp’s temporary reinstatement shall expire only after any Decision or other similar order from the Federal Mine Safety and Health Review Commission becomes a final order that is not appealed by the Secretary of Labor or Respondent.” Joint Mot. to Approve Settlement at 4.

            After a further investigation into the merits of Cordero’s discrimination complaint, on September 7, 2010, the Secretary filed a complaint in the instant proceeding requesting that the judge conclude that Clapp had been unlawfully discharged. The Secretary sought reinstatement for Clapp to her former position, lost wages from March 18, 2010, for the miner, expungement of the circumstances involving Clapp’s discharge from her personnel file, and the assessment of a $20,000 civil penalty against Cordero, as well as other remedial measures designed to address Cordero’s violation of the Act.

            A hearing was held and on December 5, 2011, the judge issued a decision. He concluded that Cordero violated section 105(c) “by discriminating against and discharging Cindy Clapp and otherwise interfering with her safety-complaint rights under the Act.” Docket No. West 2010- 1773-D, Slip op. at 64 (Dec. 5, 2011) (ALJ). The judge ordered Cordero to take “affirmative action necessary to effectuate the policies of the Mine Act” within 14 days from the date of his order. Id. at 65. Included was the requirement to offer Clapp full reinstatement to her former position, to make Clapp whole for her lost earnings, to remove from the mine’s files references to the unlawful discharge, to post a copy of the judge’s decision, and to pay a civil penalty of $40,000. Id.

            On December 12, 2011, Cordero filed a motion to stay enforcement of the judge’s December 5 decision. Cordero contends that the judge’s decision essentially divests the operator of its right under section 113(d)(2)(A)(i) of the Mine Act to appeal the judge’s decision within 30 days and before it becomes a final order of the Commission. See 30 U.S.C. § 823(d)(2)(A)(i). The operator also asserts that the judge’s decision violates the terms of his earlier temporary reinstatement order because it, in effect, dissolves that order before the entry of a final order by the Commission in this proceeding. Cordero requests that the stay extend 14 days beyond the Commission’s final determination in this matter, and that the Commission order the existing economic reinstatement to continue until that date.

            The Secretary does not oppose the motion for stay. On December 16, 2011, in response to the Commission’s request, Ms. Clapp submitted her views. While her statement did not directly address Cordero’s motion, she did inform the Commission that she felt that the operator “has had more than enough time to deal with this matter.”

            Having considered the parties’ submissions and the terms of the Mine Act, we hereby grant the motion in part and stay enforcement of the judge’s December 5 decision as follows. In the event that Cordero does not file a Petition for Discretionary Review (“PDR”) of the judge’s decision, the actions that the judge’s decision requires Cordero to take shall be taken by the operator no later than 17 days after the dates the judge specified in his decision. In the event that Cordero files a PDR, the stay of enforcement of the judge’s decision will automatically extend an additional 10 days while the Commission considers Cordero’s petition. In order to obtain a stay any longer than that, Cordero’s PDR must be accompanied by an application for stay pending appeal to the Commission.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Commissioner Cohen, dissenting:

            I respectfully dissent from my colleagues’ granting of a stay to Cordero Mining, LLC.

            On December 5, 2011 Judge Thomas P. McCarthy issued a 66-page Decision and Order involving a complaint of discrimination under section 105(c) of the Mine Act. 30 U.S.C. § 815(c). The complainant, Cindy Clapp, is a shovel operator with 28 years of experience as a miner. Judge McCarthy noted that Ms. Clapp’s “co-workers and managers consistently lauded her as a very safe and productive shovel operator, who set the standard.” Slip op. at 4. The judge found that after Cordero brought in new supervisors for Ms. Clapp’s crew, between February 2009 and March 2010, Ms. Clapp repeatedly made complaints about safety to Cordero, and was met by refusals and anger on the part of her supervisors. These confrontations about unsafe working conditions escalated in March 2010 and, according to the judge, included Cordero’s intimidation of Ms. Clapp and another miner who joined with her in making safety complaints. On March 18, 2011 Cordero terminated Ms. Clapp’s employment because of alleged insubordination. According to Judge McCarthy, Cordero also retaliated against the miner who had joined Ms. Clapp in making safety complaints.

            Judge McCarthy concluded that Ms. Clapp had engaged in protected activity under the Mine Act, that Cordero took adverse action against her after 28 years of service, and that the adverse action was motivated by retaliatory animus against Ms. Clapp’s safety complaints. The judge further concluded that the reason proffered by Cordero for firing Ms. Clapp – her alleged insubordination – was a pretext.

            Having concluded that Cordero violated the Mine Act in firing Ms. Clapp, Judge McCarthy ordered Cordero to cease and desist from discharging or otherwise discriminating against Ms. Clapp or any other miner because they have engaged in protected activity, and from interfering with miners in the exercise of rights guaranteed them by section 105(c)(1) of the Mine Act. The judge also ordered that within 14 days of the Order, Cordero must take affirmative action including the reinstatement of Ms. Clapp to her former job with back pay, the removal from its files of any reference to the unlawful discharge of Ms. Clapp, the payment of a civil penalty to the Secretary of Labor in the amount of $40,000 (double what the Secretary had proposed), and the posting of the judge’s Decision and Order for 60 consecutive days in conspicuous places including all places where notices to miners are customarily posted. In making this Order, Judge McCarthy stated that he was “troubled by the chilling effect that Clapp’s discharge has had on other miners’ willingness to step forward and engage in protected activity under the Act.” Slip. op. at 64. In this context the judge noted that one subpoenaed witness testified that she was “terrified” to testify against Cordero because of fear of retaliation, Slip. op. at 63 n.52, and that two other subpoenaed witnesses “broke down in tears on the witness stand for fear of Respondent’s retaliation against them.” Slip. op. at 64.

            On December 12, 2011 Cordero filed a motion to stay enforcement of Judge McCarthy’s Order.

            The Commission recognizes that a stay constitutes “extraordinary relief” and requires the party seeking the stay to satisfy the following factors: (1) likelihood of prevailing on the merits of the appeal; (2) irreparable harm 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. Stillwater Mining Co. , 18 FMSHRC 1756, 1757 (Oct. 1996). Cordero’s motion for a stay makes no assertion that it will prevail on appeal, no assertion of irreparable harm, and no assertion that a stay is in the public interest. In the absence of assertions which the Commission requires, the stay should be denied.

            Cordero’s motion to stay does make the claim that “The Requested Stay Will Not Harm Complainant,” arguing that the economic reinstatement order will still be in effect. Mot. at 5. However, Ms. Clapp, in her statement to the Commission regarding the stay, recounts in detail the devastating effect of the firing on her and her family for two years, and states that “Cordero has had more than enough time to deal with this matter.” Statement at 2. Ms. Clapp also states:

I have been terminated for nearly two years and the co-workers that came forward hoping to make a difference in the workplace for safety feel that we can’t make a difference, that nothing has changed at work and that it is over and that we aren’t protected.

Id. at 1. This is a remarkable statement of the futility felt by the Cordero miners in their attempts to vindicate rights guaranteed to them by the Mine Act. Moreover, Ms. Clapp’s statement is entirely consistent with Judge McCarthy’s findings and conclusions.

            It is clear to me that there is no basis for delaying the provisions of the judge’s order which require that Ms. Clapp’s personnel file be purged of references to her unlawful discharge, and that the judge’s Decision and Order be posted in conspicuous places including all places where notices to miners are customarily posted. With regard to the former provision, the judge noted in his Decision that Ms. Clapp has encountered difficulty finding other work since her firing because of what is contained in her personnel file at Cordero. Slip op. at 59, 64. With regard to the latter provision, the findings by Judge McCarthy about Cordero’s intimidation of, and retaliation against, its miners for voicing safety concerns, together with Ms. Clapp’s statement to the Commission regarding her co-workers’ feelings about their inability to make a difference in the workplace for safety compel the conclusion that the posting of Judge McCarthy’s Decision and Order should not be stayed. Nor has Cordero shown a basis for staying the provisions of the Order which require Cordero to reinstate Ms. Clapp to her job at the mine. The granting of a stay on reinstatement presupposes that the economic reinstatement which Ms. Clapp has received pending the issuance of the judge’s Decision and Order is the equivalent of having her job back, with the right and opportunity to work for her paycheck. However, it must be recognized that Ms. Clapp has been receiving economic reinstatement because the Secretary sought temporary reinstatement pursuant to section 105(c)(2) of the Mine Act. The parties then settled this issue by filing a Joint Motion to Approve Settlement providing for economic reinstatement – Ms. Clapp would receive her pay and benefits but would not report to work. Obviously, Cordero made the decision to enter into this settlement – and thus pay Ms. Clapp for not working – because it did not want her at the mine. Pursuant to Judge McCarthy’s Decision and Order, Ms. Clapp is now entitled to full reinstatement, not merely temporary reinstatement or economic reinstatement.

            The nub of Cordero’s motion to stay is the argument that the order with its 14-day provisions is invalid because section 105(c)(2) of the Mine Act provides that:

The Commission shall afford an opportunity for a hearing . . . and thereafter shall issue an order, based upon findings of fact, affirming, modifying, or vacating the Secretary’s proposed order, or directing other appropriate relief. Such order shall become final 30 days after its issuance.

 30 U.S.C. § 815(c)(2). Cordero also cites section 113(d)(1) of the Mine Act which states: “The decision of the administrative law judge . . . shall become the final decision of the Commission 40 days after its issuance unless within such period the Commission has directed that such decision shall be reviewed . . .” 30 U.S.C. § 823(d)(1). Thus, as noted by my colleagues, Cordero contends that the judge’s Decision and Order essentially divests it of its right to appeal the decision within 30 days and before it becomes a final order of the Commission.

            I reject the contention that the judge’s Order, with its provision for affirmative action within 14 days, is inconsistent with the terms of the Mine Act. It certainly does not divest Cordero of its right to appeal the decision. The provisions of finality in sections 105(c)(2) and 113(d)(1) should be interpreted to mean that the judge’s order goes into effect, but is not enforceable during the period provided for appeal – in other words, no sanctions can be imposed during the appeal period for disobedience of the order. But the lack of finality does not mean that the order is necessarily ineffective, or that a party must necessarily be excused from obeying it. Rather, reading the judge’s order together with the terms of the Mine Act results in a situation where, if Cordero chooses to disobey the order, no sanctions can be imposed against it until the order becomes final. Obviously, if the Decision and Order should be vacated by the Commission or a Court of Appeals, there can be no sanctions for disobeying it. However, if Cordero chooses to disobey the order after 14 days of its issuance, sanctions can be imposed for such disobedience if and when the order becomes final. The choice is Cordero’s.

            Hence, I dissent from the granting of the stay.

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution

Gregory W. Tronson, Esq.

Office of the Solicitor

U.S. Department of Labor

1999 Broadway, Suite 1600

Denver, CO 80202

Kristin R. B. White, Esq.

Jackson Kelly

1099 18^th Street, Suite 2150

Denver, CO 80202

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22^nd Floor

Arlington, VA 22209-2296

Administrative Law Judge Thomas P. McCarthy

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021