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[DOCID: f:penn99129.wais]
READING ANTHRACITE COMPANY
September 7, 1999
PENN 99-129-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
September 7, 1999
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
on behalf of LEONARD BERNARDYN :
:
v. : Docket Nos. PENN 99-129-D
:
: PENN 99-158-D
READING ANTHRACITE COMPANY :
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners
ORDER
BY THE COMMISSION:
In this discrimination proceeding arising under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801
et seq. (1994) ("Mine Act" or "Act"), the Secretary of Labor
has challenged, inter alia, Administrative Law Judge Avram
Weisberger's order dissolving his previously issued order
granting the temporary reinstatement of Leonard Bernardyn.
For the reasons that follow, we vacate the judge's dissolution
order.
On November 12, 1998, Bernardyn filed a discrimination
complaint with the Department of Labor's Mine Safety and
Health Administration alleging that he had been discharged by
Reading Anthracite Company ("Reading") in violation of section
105(c) of the Mine Act, 30 U.S.C. � 815(c). Mot. at 3-4.
On March 19, 1999, the judge issued an order granting the
Secretary's application to temporarily reinstate Bernardyn as
a haulage truck driver, the position he held prior to his
termination. Id. at 4; 21 FMSHRC 339, 342 (Mar. 1999) (ALJ).
On July 26, the judge issued a decision dismissing the
Secretary's complaint against Reading. 21 FMSHRC 819, 824
(July 1999) (ALJ). In his decision, the judge also "ordered
that the Order of Temporary Reinstatement, issued on March 19,
1999, . . . is hereby dissolved." Id. (emphases removed).
Reading discharged Bernardyn on August 2, 1999. Mot. at 4.
On August 24, 1999, the Secretary filed with the Commission
a petition for discretionary review of the judge's decision
vacating Bernardyn's complaint together with a "Motion to Vacate
Portion of Judge's Decision Dissolving Order of Temporary
Reinstatement or, in the Alternative, for Stay of Judge's
Decision Dissolving Order of Temporary Reinstatement." The
Secretary submits that the judge's order dissolving the order
of temporary reinstatement is legally invalid. Mot. at 5. She
explains that the judge did not have authority under the Mine
Act to issue such an order because there has not yet been a
final determination by the Commission on the merits of
Bernardyn's complaint. Id. at 5-8. Alternatively, the
Secretary argues that, under criteria the Commission has
established, a stay of the judge's order dissolving the order
of temporary reinstatement pending the Commission's review of
the underlying discrimination complaint is appropriate. Id.
at 8-16.
On August 26, 1999, Reading filed an opposition to the
Secretary's motion for relief from the judge's dissolution
order. Reading asserts that, to the extent the Secretary's
motion should be construed as the equivalent of a request for
an order granting or denying temporary reinstatement, such a
request is time-barred under Commission Procedural Rule 45(f).
R. Reply at 2. Reading also submits that none of the
Commission's criteria for evaluating stay requests supports
the Secretary's motion to stay the judge's order dissolving
the temporary reinstatement order. Id. at 7-8. The operator
also argues that the result should not be harsher for Reading
under the present circumstances than it would be when a
temporary reinstatement order is dissolved pursuant to
Commission Procedural Rule 45(g) due to the Secretary's decision
not to proceed with a complaint. Id. at 5. Reading also filed
an opposition to the Secretary's petition for discretionary
review. R. Br. in Resp. to PDR. The Commission granted review
of the judge's decision on August 27, 1999.
Section 113(d)(2)(A) specifies that review of a
judge's decision may be obtained by filing a petition for
discretionary review, which must set forth the issues being
appealed. 30 U.S.C. � 823(d)(2)(A). We note at the outset
that the Secretary's motion to vacate or stay the judge's
dissolution order was filed on the same day as the petition
for discretionary review of the judge's determination on the
merits of the discrimination complaint. Furthermore, the
motion makes explicit reference to the petition. Mot. at 4,
9. Thus, since the Secretary's motion challenges that portion
of the judge's decision dissolving his temporary reinstatement
order, we treat it as part of the Secretary's granted petition
for discretionary review.[1] See Walter Kuhl & Son, 16 FMSHRC
1405 (July 1994) (construing motion filed by Secretary as
petition for discretionary review). Accordingly, the issue
of the dissolution of the temporary reinstatement order is
properly before us. See Rock of Ages Corp., 20 FMSHRC 106,
115 n.11 (Feb. 1998) (broadly construing petition for
discretionary review), aff'd in part on other grounds, 170
F.3d 148 (2d Cir. 1998); Fort Scott Fertilizer-Cullor, Inc.,
19 FMSHRC 1511, 1514 & n.4 (Sept. 1997) (same).
Regarding Reading's suggestion that the Secretary's
challenge to the judge's dissolution order should be rejected
as untimely under Commission Procedural Rule 45(f), 29 C.F.R.
� 2700.45(f),[2] we note that Rule 45(f) covers only Commission
review of a judge's initial grant or denial of a temporary
reinstatement application. By contrast, in the instant matter,
the temporary reinstatement application was already granted by
order dated March 19. The issue presently before us is the
Secretary's challenge to the judge's dissolution of his
previously issued reinstatement order, a subject not covered by
Rule 45(f). The current matter falls outside the scope of Rule
45(f), and we therefore reject Reading's timeliness argument.
Section 105(c)(2) of the Mine Act states that, once it has
been determined that an application for temporary reinstatement
has not been frivolously brought, the Commission, "shall order
the immediate reinstatement of the [complaining] miner pending
final order on the complaint." 30 U.S.C. � 815(c)(2) (emphasis
added). Section 113(d)(1) of the Act 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. � 824(d)(1)
(emphasis added). Therefore, the language of the Mine Act
requires that a temporary reinstatement order remain in
effect while the Commission reviews the judge's decision.
In the instant matter, when the judge purportedly
dissolved the temporary reinstatement order, the time had not
yet passed for the Commission to review the judge's decision
on the merits of Bernardyn's discrimination complaint.
Accordingly, the judge's decision had not yet become a final
Commission decision. 30 U.S.C. � 824(d)(1). Thus, the judge
lacked statutory authority to dissolve the temporary
reinstatement order concurrently with his discrimination
decision or at any time before we could direct review. Since
we have granted the Secretary's petition for review of the
judge's determination on the merits, the judge's dismissal
of the complaint will not become a final decision under
section 113(d)(1) of the Act until we review and issue a
decision upon that matter. Accordingly, the judge's
purported dissolution of the temporary reinstatement order
is legally invalid.
We also find unpersuasive Reading's suggestion that it
would be inequitable to reinstate Bernardyn following the
judge's dissolution order, when Commission Procedural Rule
45(g), 29 C.F.R. � 2700.45(g)[3], permits dissolution of a
temporary reinstatement order upon the Secretary's decision
not to proceed on the complaint. Rule 45(g) provides for the
judge's dissolution of a temporary reinstatement order if
the Secretary determines that no discrimination occurred.
29 C.F.R. � 2700.45(g). This is a "gap filling" provision
designed to deal with a situation not addressed by the statute
C the status of a temporary reinstatement order following a
determination by the Secretary that there has been no violation
of section 105(c). In the instant matter, the Secretary
determined that discrimination had occurred and filed a
complaint on behalf of Bernardyn. Under these circumstances,
the statutory language of section 105(c)(2), which provides
for maintenance of the temporary reinstatement order pending
final determination on the merits of the complaint, must be
followed.[4]
We find the facts and circumstances that led the
Secretary to move for the dissolution or stay of the judge's
order unusual. Indeed, the issue of the propriety of such an
order is one of first impression. Unlike an appeal of a
temporary reinstatement order taken when the order is first
issued, see 29 C.F.R. � 2700.45(f), at issue in this case is
the ultimate fate of such a temporary reinstatement order at
the close of proceedings before one of our judges. Although
we dispose of this issue in our ruling today, we recognize
that Bernardyn's reinstatement imposes additional obligations
on the parties. Therefore, we will order expedited briefing
in this case according to the following schedule: the
Secretary's brief shall be filed no later than September 21,
1999. Reading's response brief shall be filed no later than
25 days after service of the Secretary's brief. The Secretary
may file a reply brief within 5 days of service of Reading's
response brief. All briefs shall be filed and served by
facsimile.[5]
For the foregoing reasons, we vacate the judge's order
dissolving his previously issued temporary reinstatement order
of Bernardyn, and order the immediate temporary reinstatement
of the complainant pending a final Commission decision on the
complaint.
Mary Lu Jordan, Chairman
Marc Lincoln Marks,
Commissioner
James C. Riley, Commissioner
Theodore F. Verheggen,
Commissioner
Robert H. Beatty, Jr.,
Commissioner
Distribution
By facsimile and first class mail
Martin J. Cerullo, Esq.
Cerullo, Datte & Wallbillich, P.C.
P.O. Box 450
Pottsvile, PA 17901
Colleen Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041
**Footnotes:**
[1] The decision issued by the judge which is the
subject of the Secretary's PDR affected both the temporary
reinstatement previously granted by the judge in Docket No.
PENN 99-129-D and the underlying discrimination issue in
Docket No. PENN 99-158-D, effectively consolidating those
dockets.
[2] Commission Procedural Rule 45(f) provides that
"[r]eview by the Commission of a Judge's written order
granting or denying an application for temporary reinstatement
may be sought by filing with the Commission a petition for
review with supporting arguments within 5 days following
receipt of the Judge's written order." 29 C.F.R. � 2700.45(f).
[3] Commission Procedural Rule 45(g) provides, in
pertinent part: "If, following an order of temporary
reinstatement, the Secretary determines that the provisions
of section 105(c)(1), 30 U.S.C. 815(c)(1), have not been
violated, the Judge shall be so notified and shall enter an
order dissolving the order of reinstatement." 29 C.F.R.
� 2700.45(g).
[4] In light of our disposition based on the statutory
language of sections 105(c)(2) and 113(d)(1), we need not
address the Secretary's alternative argument requesting a stay
of the judge's order.
[5] Commissioner Beatty agrees in principle with his
colleagues regarding the need to expedite briefing in this
case. He would, however, expand this principle to direct
expedited briefing on review of a judge's decision on the
merits before the Commission in all cases in which there is
an underlying temporary reinstatement order. He also believes
that the Commission should issue its ruling no later than
60 days after the close of briefing in such cases.