Secretary of Labor obo Darcy White v. Prairie State Generating Co.

Plain-English summary

Darcy White and Prairie State Generating reached an agreement for temporary economic reinstatement while her discrimination complaint was investigated. Judge Thomas P. McCarthy found the agreement fair, reasonable, and consistent with the Mine Act's purpose. He ordered Prairie State to provide White her former wages and the other employment terms stated in the agreement until the discrimination matter reached a final determination. Because the Secretary had passed the 90-day investigation period, the judge also ordered a determination within 30 days or a detailed explanation for further delay.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)-(3); 29 C.F.R. § 2700.45
• Outcome: Temporary economic reinstatement was approved, and the Secretary was ordered to complete the investigation or explain the delay.
• Key point: Economic reinstatement may provide interim wages and employment terms while the underlying discrimination complaint remains pending.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

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,

U.S. DEPARTMENT OF LABOR

on behalf of DARCY WHITE,

Complainant,

v.

PRAIRIE STATE GENERATING CO.,

Respondent.

TEMPORARY
REINSTATEMENT

PROCEEDING

Docket No. LAKE 2021-0158

MSHA Case No. MORG-CD-2020-08

Mine: Lively Grove Mine

Mine ID: 11-03193

ORDER GRANTING
JOINT MOTION TO APPROVE

TEMPORARY ECONOMIC
REINSTATEMENT

MOTION AND AGREEMENT

Before:            Judge McCarthy

This matter is
before the undersigned on the Secretary of Labor’s Application for Temporary
Reinstatement filed on behalf of miner Darcy White 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 July 01, 2021,
Respondent filed a Motion to Dismiss Application for Temporary Reinstatement
for Failure to Join a Required Party or To Join Required Party, wherein it
attached a Declaration from Prairie State Safety Manager, Lane Hendricks. On July
08, 2021, the Secretary filed its Response to Respondent’s Motion to Dismiss, opposing
the motion. On July 12, 2021, the Respondent filed a Reply to the Secretary’s Response,
wherein it attached the contractual agreement between Prairie State and Custom
Staffing, White’s employer.

On July 09,
2021, a Notice of Hearing was sent to the parties for a virtual hearing via Zoom
to be held on July 20, 2021. On that date, the undersigned opened the hearing
and asked the parties if there was any further possibility of exploring settlement
avenues. The parties thereafter agreed to explore settlement possibilities in breakout
rooms over Zoom. After approximately three hours, including status updates with
the undersigned, the parties and their clients reached a meeting of the minds
on material terms of settlement and placed the material terms of the tentative
agreement on the record.

On July 27,
2021, the parties filed a Joint Motion to Approve Temporary Economic
Reinstatement, as well as an Agreement Regarding Economic Reinstatement for
Darcy White. The full terms and conditions of the parties’ economic reinstatement
agreement are hereby incorporated by reference. The undersigned has reviewed
the Motion and Agreement, and the undersigned concludes 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.

ORDER

It is hereby ORDERED that Darcy White be TEMPORARILY
ECONOMICALLY REINSTATED per the terms of the parties’ Agreement, effective on
the date of this Order. White shall receive the wages she was formerly paid, as
well as other terms of her employment, as set forth in the Agreement.

This Order SHALL remain in effect until final
order or determination on the underlying discrimination complaint as set forth
in section 105(c)(2) of the Mine Act. 30 U.S.C. § 815(c)(2). The undersigned
retains jurisdiction over this temporary reinstatement
proceeding. 29 C.F.R. § 2700.45(e)(4).

Pursuant to section
105(c)(3) of the Act, the Secretary is required to notify the Complainant whether
a violation has occurred within 90 days of the receipt of the complaint. Ms.
White filed her complaint on April 20, 2021, and the Secretary is beyond the
90-day statutory requirement. The Secretary is ORDERED to complete its
investigation and to make a determination within 30 days, or to provide this tribunal
with a detailed reason for why this deadline cannot be met.  

SO ORDERED.

/s/
Thomas P. McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution: (Email)

Suzanne F. Dunne, Esq., Office
of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street, Rm. 844, Chicago,
IL 60604; [email protected]

Tony Oppegard, Esq., P.O. Box
22446, Lexington, KY 40522; [email protected]

Wes Addington, Esq., Appalachian
Citizens’ Law Center, 317 Main Street, Whitesburg, KY 41858; [email protected]

Arthur Wolfson, Esq., Fisher Phillips
LLP, Six PPG Place, Suite #830, Pittsburgh, PA 15222; [email protected]