FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

February 13, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            This proceeding arises under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (2006) (“Mine Act”). On January 14, 2013, Administrative Law Judge William S. Steele issued an order requiring Cobra Natural Resources, LLC (“Cobra”) to temporarily reinstate Russell Ratliff pursuant to section 105(c)(2). On January 22, 2013, Cobra filed a petition for review of that temporary reinstatement order under Commission Procedural Rule 45(f), 29 C.F.R. § 2700.45(f). This appeal is currently pending before the Commission.

            On February 4, 2013, the judge received an unopposed motion by the Secretary of Labor to incorporate an economic reinstatement agreement into the January 14 order. Commission Procedural Rule 45(e)(4), 29 C.F.R. § 2700.45(e)(4), provides that the Commission has jurisdiction over a temporary reinstatement proceeding during the appellate review of an order to temporarily reinstate a miner. Thus, the Commission will rule on the motion.

            The proposed agreement provides in pertinent part:

1. Cobra shall economically temporarily reinstate Mr. Ratliff rather than physically placing him back to work at the mine

. . . . Cobra’s obligations under this agreement shall end upon the earlier of (i) a determination by the Secretary, an Administration Law Judge, or the Federal Mine Safety and Health Review Commission (“the Commission”) that Cobra did not violate § 105(c) of the Federal Mine Safety and Health Act, 30 U.S.C. 815(c) when it terminated Mr. Ratliff’s employment on October 24, 2012, or . . .

            The provision of the proposed agreement that Cobra’s obligations shall end if and when an administrative law judge concludes that Cobra did not violate section 105(c) of the Mine Act when it terminated Ratliff’s employment is contrary to section 105(c)(2). This section provides that if the Commission, upon application by the Secretary, determines that the miner’s complaint was not frivolously brought, it “shall order the immediate reinstatement of the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2) (emphasis added).

            In Secretary of Labor on behalf of Bernardyn v. Reading Anthracite Co., 21 FMSHRC 947 (Sept. 1999), the Commission held in a section 105(c)(2) case that the judge erred in dissolving the order of temporary reinstatement. The miner had been temporarily reinstated, the administrative law judge later found that the operator had not discriminated against the miner, and the Commission granted the Secretary’s petition to review the judge’s decision. Id. at 947-48. The Commission held that “the language of the Mine Act requires that a temporary reinstatement order remain in effect while the Commission reviews the judge’s decision” on the complaint of discrimination. Id. at 949 (emphasis added); see also Sec’y of Labor on behalf of Pendley v. Highland Mining Co., 32 FMSHRC 745 (July 2010).

            The proposed agreement as currently drafted would permit Ratliff’s temporary economic reinstatement to end if the judge finds no discrimination on the underlying complaint regardless of whether the Commission had agreed to review the judge’s decision. For this reason, the Commission denies the Motion to Incorporate Economic Reinstatement Agreement into Order of Temporary Reinstatement.  

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

William E. Robinson, Esq.

Dinsmore & Shohl, LLP

900 Lee Street, Suite 600

Charleston, WV 25339

william.robinson@dinsmore.com

Mr Russell Ratliff

602 E. 7^TH Ave.

Williamson, West Virginia 25661

Latasha T. Thomas, Esq.

Office of the Solicitor

U.S. Department of Labor

618 Church Street, Suite 230

Nashville, TN 37219-2456

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge William Steele

Office of Administrative Law Judges

Federal Mine Safety & Health Review Commission

7 Parkway Ctr.

875 Greentree Rd., Suite 290

Pittsburgh, PA 15220