FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

August 6, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER DENYING APPLICATION FOR STAY PENDING REVIEW

BY THE COMMISSION:

            This discrimination 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” or “Act”). On June 3, 2013, a Commission Administrative Law Judge issued a decision holding that Emerald Coal Resources, LP (“Emerald”) had discriminated against the two complaining miners, Mark Franks and Ronald Hoy, when it had suspended each for seven days. Three days later the judge issued an amended decision, extending the time period for the operator to take certain remedial measures, including the remittance of back pay to the miners, from the 10 days specified in the original decision to 30 days. See slip op. at 1 n.1, 12 (June 6, 2013).

            On June 25, pursuant to section 113(d) of the Act, 30 U.S.C. § 823(d), Emerald filed a timely petition for discretionary review (“PDR”) of the judge’s decision as amended. On July 9, the Commission directed the case for review.

            With its PDR, Emerald also filed a motion to stay enforcement of the judge’s order on the ground that the 30-day time period specified for compliance conflicted with Emerald’s right to seek Commission review of the judge’s decision. In an order dated June 28, we granted that motion in part. We extended the period the judge provided for compliance to July 16.

            In our order, we noted that Emerald had asked that the Commission grant a stay of enforcement of the judge’s amended decision and order until such time as there is a final Commission determination in this matter. We stated that should we grant Emerald’s petition for review, we would then decide whether a further stay was appropriate under the applicable standard for a stay pending review. By July 15, six days after we directed the case for review, Emerald had not yet submitted a request for a stay that addressed the factors that we consider in deciding whether to grant a stay pending appeal. Consequently, we issued an order that day stating that a stay beyond July 16 would not be granted at that time. On July 16, Emerald submitted an application for a stay pending review. On July 31, the United Mine Workers of America, on behalf of the two miners, filed a response in opposition to the application.

            Emerald is obligated to do the following under the judge’s decision. (1) Emerald must pay Franks $1,168.68 plus interest, and Hoy $1,963.93 plus interest. (2) Emerald must post the judge’s decision, along with a notice explaining that the company had been found to have discriminated, is required to remedy that discrimination, and is not to discriminate again. The notice is also to explain what miners should do in the event they feel they have been discriminated against. (3) Emerald is also required to remove from the personnel records of the two miners the reprimands they received in connection with their suspensions. Slip op. at 12.

            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 must satisfy the factors set forth in Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C. Cir. 1958): (1) a likelihood that the 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. Id. at 925. The court also made clear that a stay constitutes “extraordinary relief.” Id.; see also W.S. Frey Co., 16 FMSHRC 1591 (Aug. 1994). 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).

            We need not discuss the likelihood that Emerald will prevail on appeal to dispose of the application for stay, for we see no irreparable harm to Emerald should it prevail. “[E]conomic 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), and in any event Emerald can seek reimbursement from the two miners in the event the Commission overturns the judge’s decision. In addition, if the Commission reverses the judge’s decision, Emerald can notify employees by posting the Commission decision just as prominently as it did the judge’s decision. As for the miners’ personnel records, those can be easily updated if the judge’s decision is overturned. In the interim, it would adversely affect the miners to leave those reprimands in their files.

            We can discern no public interest in issuing a stay in this case. To the contrary, the remedial measures ordered by the judge are fully consistent with the public interest, expressed in the Mine Act, in minimizing the harm to miners from actions which may have been discriminatory. Consequently, the stay application is denied.

/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:

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222

Laura Karr, Esq.

United Mine Workers of America

International Headquarters

18354 Quantico Gateway Dr., Suite 200

Triangle, VA 22172

Ronald Hoy

13 Bonasso Drive

Fairmont, WV 26554

Mark Franks

253 Braddock Ave.

Uniontown, PA 15401

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 Margaret A. Miller

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

721 19^th Street, Suite 443

Denver, CO 80202-5268