Aggregates Manager Digital Magazine
Issue link: https://read.dmtmag.com/i/103664
precludes the operator from presenting any evidence regarding its affirmative defenses. Counsel for mine operators disagrees with the Secretary's assertion; nevertheless, this is the stance taken by the Secretary. MSHA's increased emphasis on discrimination enforcement, combined with the low legal hurdle that a miner is required to scale in order to receive temporary reinstatement, may significantly increase the number of discrimination complaints and temporary reinstatements. This is particularly true if MSHA becomes more lax in its "gatekeeper" function, which would seem to be a logical outcome of the top-down edict to make such cases a priority. Additionally, if MSHA is successful in obtaining temporary reinstatement for more miners, discrimination cases could increase even more because of the "grapevine effect." An operator's monetary outlay when faced with temporarily reinstating a miner is likely to be significant, even if an ALJ determines, ultimately, that the miner's claims are without merit. It is not unusual for an operator that has been ordered to economically reinstate a miner to pay more than a year's worth of wages, benefits, and bonuses to a miner before the case is eventually resolved, and that is in addition to the cost of defending itself against a meritless claim. To add insult to injury, even if a miner's discrimination complaint is meritless, the operator cannot recoup the funds paid out as part of the economic reinstatement. Values Based Leadership If there is any consolation for operators, it comes in the form of two decisions issued, respectively, by the Sixth and Seventh Circuit Court of Appeals [Vulcan Construction Materials, L.P., v. FMSHRC, Docket No. 11-2860 (7th Cir. Oct. 25, 2012); North Fork Coal Corp. v. Gray, Docket Nos. 113398/3684 (6th Cir. Aug. 14, 2012)]. Both courts determined that a miner's right to temporary reinstatement ends when the Secretary decides not to pursue the case further. Previously, the Commission had held that a temporary reinstatement order could not be dissolved, even if the Secretary was no longer involved in the case and the miner continued to pursue the case independently. These decisions may be cold comfort, however, for an operator that finds itself facing temporary reinstatement of a miner it knows was terminated for legitimate and non-discriminatory reasons. While the vast majority of operators actively support miner involvement in promoting a safer work environment, the current regulatory environment lacks any sort of effective mechanism to weed out meritless claims against innocent operators in the early stages of investigation and litigation. Consequently, MSHA's increased emphasis on seeking temporary reinstatement may leave a responsible, safety-conscious operator with a bad taste in its mouth and a large hole in its pocketbook. AM Charles "Charlie" Luck IV President and CEO, Luck Companies An AGG1 Academy Special Event Monday, March 18, 2013 | 8:30-10:30 A.M. Gonzalez Convention Center, San Antonio, Texas At this AGG1 Academy special event, Charlie Luck will share how Value Based Leadership has played a significant role in igniting the potential of associates and empowering them to drive exceptional business performance. During an interactive breakout session, Luck Stone and Luck Companies leaders will challenge you to think about the positive impact you can have on your business, your life and the lives of others. Don't miss this special event! Space is limited, so reserve your seat now at www.agg1.org or convention.nssga.org. NSG2505_VBL_AggMan_Half.indd 1 NSSGA_AGRM0113pg35.indd 1 11/28/12 10:30 AM 35 AGGREGATES MANAGER12/16/12 2013 AM January 9:29