Secretary of Labor obo James McGoughran v. Lehigh Cement Company, LLC

Plain-English summary

Lehigh Cement and James McGoughran had agreed to economic temporary reinstatement while his discrimination case proceeded. When COVID-19 delayed the scheduled merits hearing and the Secretary declined a video hearing, the Judge suspended Lehigh's payment obligation. The Commission held that a procedural delay beyond either party's control did not justify tolling reinstatement. Tolling generally requires evidence that relevant work at the mine is unavailable, such as through a genuine layoff or shutdown, and Lehigh presented no such evidence. The Commission reversed the Judge and ordered economic reinstatement to continue under the parties' agreement.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1)-(2)
• Outcome: The tolling order was reversed, and McGoughran's economic temporary reinstatement continued.
• Key point: Hearing delay alone does not shift the Mine Act's interim economic risk from the operator to the miner when work remains available.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C.     20004‑1710

SECRETARY OF LABOR,                                     
:

MINE SAFETY AND HEALTH                        :                        

ADMINISTRATION (MSHA) on                      :

behalf of JAMES MCGOUGHRAN                  : Docket No. PENN
2019-0144-DM

:                           

v.                                                      
:                                                     

:                                                

LEHIGH CEMENT COMPANY, LLC                    :

BEFORE:     Rajkovich, Chairman; Jordan, Young, Althen, and Traynor,
Commissioners

DECISION

BY THE COMMISSION:

This temporary
reinstatement proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”).     The parties in
this proceeding filed a joint motion to economically reinstate James McGoughran
to employment with Lehigh Cement Company, LLC, which the Judge approved on
August 20, 2019.     A hearing on the merits was scheduled for June 2 to 5,
2020.     However, due to the COVID-19 pandemic, in-person hearings were
suspended for those dates.     The parties disputed whether to proceed via a
video conference.     The Judge postponed the hearing but issued an order
tolling McGoughran’s economic reinstatement effective from May 22, 2020 until a
decision is made on the merits.    

For the
reasons below, we conclude that the Judge abused her discretion by tolling the
miner’s economic reinstatement as a result of a delay in the hearing on the
merits of the related discrimination complaint.     Accordingly, we reverse the
Judge’s decision.    

I.

Factual and Procedural Background

On May 16, 2019, McGoughran filed a complaint with
the Mine Safety and Health Administration against Lehigh charging
discrimination pursuant to section 105(c)(1) of the Mine Act.     Following the
procedures prescribed in section 105(c)(2) of the Act, on August 1, 2019, the
Secretary filed an application for the temporary reinstatement of McGoughran.    

Instead of proceeding to a hearing on temporary
reinstatement, the parties jointly filed a pleading styled as a Joint Motion To
Approve Settlement Regarding Temporary Reinstatement.      On August 20,
2019, the Judge granted the motion and ordered Lehigh to temporarily
economically reinstate McGaughran, in accordance with all the terms set
forth in the parties’ Joint Motion to Approve Settlement Regarding Temporary
Reinstatement.

The basic terms of the parties’ agreement, which
were incorporated in the Judge’s order, provide that economic reinstatement was
effective as of August 1, 2019, and would terminate upon discontinuance of
MSHA’s investigation or after a final order by the Commission.     The
agreement contained a provision prohibiting the miner from requesting
unemployment benefits, but did not provide for the off-set of wages if
McGoughran obtained employment during the period of economic reinstatement.    
After issuance of the order granting temporary economic reinstatement, McGoughran
obtained alternate employment.

On October 22, 2019, the Secretary filed a section
105(c)(2) complaint on the miner’s behalf. [1]     
On January 3, 2010, the Judge scheduled a hearing on the underlying discrimination
case for June 2 to 5, 2020.    

Thereafter, the pandemic struck.     Through
sequential orders, the Commission has suspended in-person hearings through August
31, 2020.     It has, however, provided that hearings could proceed through
videoconferencing.     In the second of the sequential orders (issued on April
2, 2020) the Commission suspended in-person hearings until May 31, 2020 but
allowed for the use of remote hearings “in coordination with the parties.”    

On April 29, 2020, the Administrative Law Judge issued
an Amended Pre-Hearing Order asking the parties whether “they are amenable to
proceeding [with the hearing scheduled for June 2 to 5] with Zoom videoconferencing”
by May 11, 2020.     The Secretary was not amenable.

On
May 5, 2020, the Secretary filed a motion to oppose remote hearing on a number
of grounds including alleged difficulties in making credibility determinations
and that it was unknown whether witnesses would have reliable internet access.    
Lehigh opposed the Secretary’s motion, stating that it was prepared to go
forward with the hearing by videoconference.     Lehigh further responded that,
in the event the hearing was postponed, it requested that economic
reinstatement be tolled from the original hearing date (June 2, 2020) until the
eventual commencement of the hearing.     Lehigh argued that it “should not
have to bear the burden of the Secretary’s opposition to the remote hearing.”    
Mot. in Opp. at 2.

On
May 19, 2020, the Judge vacated the June hearing on the merits proceeding stating
the parties had “informed” her that the captioned docket had been postponed.    
Then, on May 21, the Judge issued an Amended Order vacating the June hearing
dates and noting that Lehigh had objected to postponement of the hearing.

Finally,
on May 22, 2020, the Judge issued an order in the temporary reinstatement
proceeding tolling economic reinstatement.     The Judge ruled that ongoing
economic reinstatement would unjustly enrich the miner and place the operator
in a position of economic hardship.     42 FMSHRC 371, 373 (May 2020) (ALJ).    
Noting that the continuance was due to the Secretary’s unwillingness to
participate in a remote hearing, the Judge concluded that it would be “unfair
to put such a burden on the Respondent due to circumstances not of its making.”    
Id .     Pursuant to the order, the Judge tolled McGoughran’s economic
reinstatement from the date of the order (May 22, 2020) until the Judge issues
a decision on the merits.

The
Secretary filed a petition for review, which was granted on July 1, 2020.     On
appeal, the Secretary contends that the Judge abused her discretion by altering
the terms of the parties’ economic reinstatement agreement without legal basis,
explaining that Lehigh presented no evidence (or arguments) of a change in mine
circumstances that would justify tolling. [2]     
Lehigh counters that the Judge properly considered factors such as due process
protections and balancing of interests.    

II.

Disposition

The change
in circumstance which led Lehigh to request tolling was a delay in the hearing
on the merits complaint in response to technological difficulties arising from
the coronavirus pandemic.     The question at issue is whether the Judge abused
her discretion by tolling Lehigh’s reinstatement obligation as a result of that
delay. [3]     
As discussed below, a procedural delay beyond the control of either party is
not proper grounds for tolling temporary reinstatement.     The Judge abused
her discretion by tolling without proper justification.    

Under
section 105(c)(2) of the Act, if the Secretary finds that a miner’s discrimination
complaint was not frivolously brought, “the Commission, on an expedited basis
upon application of the Secretary, shall order the immediate reinstatement of
the miner pending final order on the complaint.”  30 U.S.C. § 815(c)(2) .    
The Mine Act authorizes Judges to order temporary reinstatement to the miner’s
position with the operator, that is, to actually put the miner back to work at
the mine.     The Commission has recognized, however, that in some cases the
parties may prefer not to physically reinstate the miner, instead negotiating
an agreement wherein the miner is economically reinstated.     The terms of
that joint agreement may be accepted by the Judge in lieu of reinstatement.    
See Sec’y of Labor on behalf of Gray v. North Fork Coal Corp. , 33
FMSHRC 589, 593 (Mar. 2011), rev’d on other grounds , 691 F.3d 735 (6th
Cir. 2012).    

A Judge may
defer ruling on a temporary reinstatement application or implementing a
temporary reinstatement order in light of an economic reinstatement agreement
between the parties that is consistent with the purposes of section 105(c).    
A Judge may not order economic reinstatement on his or her own initiative.

The
Commission has recognized that the occurrence of certain events may toll an
operator’s temporary reinstatement obligation.     The types of “events” which
may justify tolling are those which would affect the availability of relevant
work at the mine for the miner at issue, such as a layoff due to business
contraction.     See Sec’y of Labor on behalf of Gatlin v. KenAmerican Res.,
Inc. , 31 FMSHRC 1050, 1054-56 (Oct. 2009) (finding the Judge erred in
failing to consider “changes that occur at the mine” and explaining that the
operator must show that work was unavailable for the discriminatee); Sec’y
of Labor on behalf of Anderson v. A&G Coal Corp. , 39 FMSHRC 315, 319-20
(Feb. 2017) (finding tolling inappropriate where the miner may not have
properly been included in the layoff).     The purpose of temporary
reinstatement is to provide the miner with an income through a return to work
until the complaint is resolved.     North Fork , 33 FMSHRC at 592.    
The obligation to temporarily reinstate may logically be tolled when work at
the mine is no longer available for the relevant miner. [4]

Operators bear the burden of showing by a
preponderance of the evidence that tolling is justified.     See Sec’y of
Labor on behalf of Ratliff v. Cobra Natural Res., LLC , 35 FMSHRC 394, 397
(Feb. 2013).     Here, the operator has not presented any evidence, or even
raised the argument, that work for this miner is not available at the mine.    
Accordingly, the necessary grounds for tolling reinstatement have not been
asserted. [5]     

The only rationale presented by Lehigh is that it is
unfair for economic reinstatement to continue during a period of procedural
delay due to the COVID-19 pandemic.     The Judge accepted this justification,
finding it “unfair to put such a burden on the Respondent due to circumstances
not of its making.”     42 FMSHRC at 373.     However, the delay in the hearing
has no effect on availability of work at the relevant mine for this miner, nor
is it alleged that the Secretary or miner engaged in any wrongful action
causing delay.     The delay was simply the result of technological concerns
arising from events beyond either party’s control and with no connection to
availability of work.     The rationale presented by the operator and accepted
by the Judge does not justify tolling reinstatement.

Notably, although the Judge wished to proceed with a
remote hearing, she did not order the parties to do so.     Instead, the Judge
acquiesced in the Secretary’s position and delayed the hearing in order to
allow it to be held in-person, then found this delay unfair to the operator.    
Essentially, this case involves the issue of which party should bear the
“hardship” of the delay.     Under the Mine Act, if a mine operator has a duty
to reinstate a miner, the operator must continue to fulfill that obligation
during the period prior to a reinstatement hearing.     Temporary reinstatement
is an essential protection for miners, and Congress intended employers to bear
the proportionately greater burden of risk in temporary reinstatement
proceedings.     Jim Walter Res., Inc. v. FMSHRC , 920 F.2d 738, 748 n.11
(11th Cir. 1990).     The Commission does not accept the position that a miner
who had been reinstated and returned to work could be laid off due to a delay
in a hearing beyond the control of either party.

The Commission is dealing as effectively as possible with
the inevitable delays arising from the pandemic. [6]     
We expect temporary reinstatement hearings to be conducted as quickly as
possible consistent with due process.     Delays legitimately related to the
COVID-19 pandemic do not present a reason for foregoing the operation of the
Mine Act or for tolling reinstatement.    

Here, neither party has presented evidence, or even
argued, that work for this miner is not available at the mine.     Therefore,
the necessary grounds for tolling reinstatement have not been asserted.     Accordingly,
McGoughran’s economic reinstatement shall continue under the terms of that
agreement.

III.

Conclusion

For the
foregoing reasons, we conclude that a delay in the hearing in the proceeding on
the merits is not a proper justification for tolling economic reinstatement.    
Accordingly, we reverse the Judge’s decision.

/s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Chairman

/s/
Mary Lu Jordan

Mary
Lu Jordan, Commissioner

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

/s/
Arthur R. Traynor, III

Arthur
R. Traynor, III, Commissioner

[1]     
The proceeding on the merits is found in Docket No. PENN 2020-0015-DM.

[2]     
The Secretary also argued that the tolling period identified by the Judge,
which exceeded the tolling period requested by Lehigh, also constituted an
abuse of discretion.     As discussed below, we find that tolling was not
appropriate under these circumstances.     Accordingly, we need not address the
length of the tolling period.

[3]     
The Commission has held that Judge’s orders tolling reinstatement are reviewed
under an abuse of discretion standard.     Abuse of discretion may be found
when there is no evidence to support the decision, or if the decision is based
on an improper understanding of the law.     See Sec’y of Labor on behalf of
Gatlin v. KenAmerican Res., Inc. , 31 FMSHRC 1050, 1053-54 (Oct.
2009).    

[4]     
Lehigh argues that tolling may be justified by more than a change in the
availability of work at the mine, claiming that the Judge properly considered
factors such as the need for an expedited hearing and the speculative nature of
the harms outlined by the Secretary.     However, these factors are more
appropriately considered when deciding whether to continue the hearing in the
first place, not once the hearing is already delayed.     Moreover, the single
case Lehigh cites for expanding tolling justifications deals with remedies and
awards, which the Commission has differentiated from temporary reinstatement.    
Resp. to Complainant’s Pet. for Review at 10 (citing Cruz v. Puerto Rican
Cement Co. , 7 FMSHRC 487 (Apr. 1985)); see North Fork , 33 FMSHRC at
593.    

[5]     
The Judge indicates that tolling is justified in part based on theories of economic
harm to the operator and unjust enrichment of the miner.     While we do not
analyze the merits of these justifications, we note that they are unrelated to
the availability of work at the mine and were not raised by the moving party.

[6]     
Lehigh emphasizes that the current pandemic presents unprecedented challenges.    
Response at 11.     We note that tolling due to the pandemic may well be
justified in some instances if related to the availability of work at the
mine , for example if the mine is shut down for health reasons.     In this
instance, no evidence or arguments have been presented that the pandemic has
impacted work at the mine.