Aggregates Manager Digital Magazine
Issue link: https://read.dmtmag.com/i/93285
by Meredith A. Kapushion Rock Sixth Circuit overrides Secretary of Labor on temporary reinstatement of terminated miners. REINSTATEMENT CLAIMS Mine Safety and Health Administration's (MSHA) approach in recent years. When a miner files a discrimination complaint with MSHA under sec- tion 105(c) of the Mine Act, MSHA conducts an investigation to assess the merits of the complaint. Where the complaining miner has been terminated, MSHA has the authority to seek temporary rein- statement once it concludes that the miner's com- plaint is "not frivolously brought." This conclusion is reached prior to the conclusion of MSHA's inves- tigation of the merits of the complaint. Typically, the reinstatement agreed upon is "economic," but the complaining miner can seek an actual return to work. Once the investigation is concluded, the Sec- retary of Labor decides whether to pursue the claim on the miner's behalf or abandon it. Reining in M Meredith A. Kapushion practices in Jackson Kelly PLLC's Denver office as part of its Occupational Safety and Health Practice Group. She can be reached at 303- 390-0520 or makapushion@ jacksonkelly.com. 30 Until recently, it was the practice to dissolve the temporary reinstatement following a determina- tion by the Secretary of Labor that she will not pursue the discrimination complaint on behalf of the miner. However, within the past few years, the Secretary has taken the position that a miner must continue to be temporarily reinstated, even once the Secretary has determined no discrimination occurred, if the miner chooses to pursue a claim on his own. Until there is a final decision by the Fed- eral Mine Safety and Health Review Commission. on the merits of the claim, the miner must be rein- stated. This has the effect of holding mine operators hostage to weak or frivolous claims, and costing them wages and legal fees until the claims can be finally adjudicated, which may take several years. The question of whether the Mine Act requires this ongoing temporary reinstatement was the main AGGREGATES MANAGER October 2012 ine operators and miners familiar with the procedures for temporary reinstatement under the Mine Act may be aware of the shift in the issue in dispute in a recent Sixth Circuit decision. The case arose after North Fork Coal Corp. fired Mark Gray on May 15, 2009. Gray subsequently filed a discrimination complaint with MSHA pursu- ant to section 105(c) of the Mine Act, alleging he was terminated for making safety-related complaints. The Secretary found that the complaint was not frivolously brought and filed an application for tem- porary reinstatement. The parties jointly agreed to economic reinstatement for Gray. Once her inves- tigation was completed, however, the Secretary in- formed the Administrative Law Judge that she would not be pursuing the discrimination complaint. The ALJ dissolved the economic reinstatement, and Gray then filed his own discrimination action pursuant to section 105(c)(3) of the Mine Act. The ALJ's decision to dissolve the economic reinstatement went before the Federal Mine Safety and Health Commission. In a 3-2 split decision, the Commission reversed the decision of the ALJ and held that temporary reinstatement was re- quired until Gray's individual action was resolved by a final order. North Fork appealed the Com- mission's decision to the Sixth Circuit Court of Appeals. In North Fork Coal Corp. v. Gray, Docket Nos. 11-3398/3684 (6th Circuit, Aug. 14, 2012), the Sixth Circuit determined that the Mine Act does not require such continued temporary rein- statement after the Secretary determines that the miner's complaint lacks merit, reversing the Com- mission decision. In reaching its decision, the Sixth Circuit relied on the language of the Mine Act. The question was whether the statutory reference to a "final order on the complaint" referred to a decision by the Secretary as to whether to pursue the complaint or whether it referred to a final decision by the Commission. The court noted that the term is am-