Secretary of Labor on behalf of George Rice v. Nally & Hamilton Enterprises

Plain-English summary

The Secretary obtained an amended order temporarily reinstating miner George Rice while MSHA considered his discrimination claim against Nally & Hamilton Enterprises. The parties then asked to substitute a temporary economic-reinstatement agreement that was retroactive to September 22, 2022. The agreement allowed the operator to require Rice's physical return after October 21 with five days' written notice; otherwise, economic reinstatement would continue until a final Commission order, dissolution of the agreement, or another agreed date. Judge Thomas McCarthy found the agreement fair, reasonable, appropriate, and protective of the public interest. He modified the prior physical-reinstatement order to incorporate the agreement and ordered the parties to comply with it.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)
• Outcome: The temporary economic-reinstatement agreement was approved and incorporated into the prior reinstatement order.
• Key point: The approved agreement substituted economic reinstatement while preserving the operator's option to call the miner back to physical work with advance notice.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE
LAW JUDGES

1331 PENNSYLVANIA AVE.,
N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE: 202-434-9900
/ FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH       

ADMINISTRATION
(MSHA) on behalf of GEORGE RICE,

Complainant

v.

NALLY
& HAMILTON ENTERPRISES,

Respondent

TEMPORARY
REINSTATEMENT PROCEEDING

Docket
No. KENT 2022-0118

MSHA
Case No. BARB-CD-2022-03

Mine:
Meadow Branch Mine

Mine
ID: 15-19890

ORDER GRANTING JOINT
MOTION TO APPROVE TEMPORARY ECONOMIC REINSTATEMENT AGREEMENT

Before:                        Judge
McCarthy

This matter is before me on the Secretary of Labor’s
Application for Temporary Reinstatement filed on behalf of miner George Rice
pursuant to Section 105(c) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801, et seq., as amended (“Mine Act”), and 29 C.F.R. § 2700.45.
On September 26, 2022, I issued an Amended Order granting temporary physical
reinstatement to Rice. On September 28, 2022, the parties filed a Joint Motion
to Approve a Temporary Economic Reinstatement Agreement (“Motion”).

The Agreement is “retroactive to September
22, 2022” and will “remain in effect until and through October 21, 2022.” Should
Nally & Hamilton want Rice “to physically return to work on Monday, October
24, 2022, or at any date thereafter, Nally & Hamilton shall inform Rice in
writing no less than five (5) days prior to the date it expects Rice to
physically return to work that it elects its option for him to physically
return to work pursuant to the September 26, 2022 Amended Order Granting
Temporary Reinstatement issued by Judge McCarthy, rather than receive the
economic temporary reinstatement benefits provided under this Economic TR
Agreement.”

Unless Nally & Hamilton exercises its
option to have Rice physically return to work after October 21, 2022, “then the
Economic Temporary Reinstatement of Rice shall remain in effect until the entry
of a final order of the Federal Mine Safety & Health Review Commission
(“the Commission”) regarding Rice’s underlying discrimination complaint (MSHA
Case No. BARB-CD-2022-03) or until the ALJ’s order approving this Agreement is
dissolved, whichever shall occur first - with the exception that the parties
may agree to extend this Agreement until another date certain.”

The full terms and conditions of the
parties’ economic reinstatement agreement are hereby incorporated by reference.
I have reviewed the joint settlement motion and I conclude that the proposed economic
reinstatement agreement is fair, reasonable, appropriate, and protects the
public interest because it will further the intent and purpose of the Mine Act.

For the foregoing reasons, my Amended Order
issued September 26, 2022 is hereby MODIFIED to reflect the terms of the
economic reinstatement agreement described by the parties in their Motion. The
parties are ORDERED to comply with all of the terms and conditions
contained therein.

This Order approving temporary economic
reinstatement expires consistent with the terms of the parties’ agreement. The
Secretary must promptly determine whether or not he will file a complaint with
the Commission under section 105(c)(2) of the Act and so advise the Respondent
and this tribunal.

/s/ Thomas P.
McCarthy

Thomas P. McCarthy

Administrative
Law Judge

Distribution:

Thomas Hamilton

Nally &
Hamilton Enterprises

Saltsman Willett
Deton & Hamilton, PSC

212 E. Stephen
Foster Avenue

Bardstown, KY
40004

[email protected]  

Joseph Mattingly

JOSEPH H.
MATTINGLY, PLLC

P.O. Box 678 - 104
West Main Street

Lebanon, Kentucky
40033

[email protected]

Tony Oppegard

P.O. Box 22446

Lexington, KY
40522

[email protected]

Wes Addington

Appalachian
Citizens’ Law Center

317 Main Street

Whitesburg, KY
41858

[email protected]

Jennifer M. Tag

Office of the
Solicitor

U. S. Department
of Labor

618 Church Street

Suite 230

Nashville,
Tennessee 37219

[email protected]

/vgr