Secretary of Labor obo Alvaro Saldivar vs. Grimes Rock, Inc.

Plain-English summary

Grimes Rock and miner Alvaro Saldivar had agreed to economic reinstatement while his discrimination case was pending, with outside wages offset against what the company owed. Grimes Rock kept paying the reduced amount after Saldivar left the outside job and became unemployed, and it repeatedly sought to toll or terminate its obligation. Judge Margaret Miller held that the agreement had to be read consistently with the original order requiring full reinstatement, while excluding periods when Saldivar was unavailable for work and subtracting actual outside earnings. She ordered Grimes Rock to pay $9,723.08 past due through May 17, 2022, plus $2,810.86 for the following month. The judge denied the operator's renewed motion and ended future economic-reinstatement obligations as of June 17, 2022.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)
• Outcome: Enforcement was granted, specified past wages were ordered, the operator's renewed motion was denied, and future payment obligations ended on June 17, 2022.
• Key point: Economic reinstatement required full ordered wages for available periods, reduced only by the miner's actual earnings from other employment.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

721 19th St., Suite 443

Denver, CO 80202-2500

Office: (303)
844-5266/Fax: (303) 844-5268

SECRETARY
OF LABOR,                                 :     APPLICATION FOR

MINE
SAFETY AND HEALTH                        :     TEMPORARY REINSTATEMENT

ADMINISTRATION
(MSHA),                          :    

on behalf
of ALVARO SALDIVAR,                  :     Docket No. WEST 2021-0178

Complainant,                    :    

:

v.                                                   :

:

GRIMES
ROCK, INC.,                                        :     Mine: Grimes Rock,
Inc.

Respondent.                      :     Mine
ID: 04-05432

ORDER GRANTING SECRETARY’S MOTION TO
ENFORCE

This case is before me
upon an application for temporary reinstatement filed pursuant to section
105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (“Mine Act”), and 29 C.F.R. § 2700.45 et seq. The Secretary of Labor filed
the application on behalf of Alvaro Saldivar seeking his reinstatement as a
lube and water truck/equipment operator at the Grimes Rock mine pending the
final disposition of Saldivar’s discrimination complaint.

A hearing was held on
May 11, 2021, and one week later this Court issued a Decision and Order of
Reinstatement (“Reinstatement Order”) wherein Grimes Rock was ordered to
reinstate Saldivar. Grimes Rock appealed under Procedural Rule 45(f), and the
Commission affirmed the Reinstatement Order on June 11, 2021. While the appeal
was pending, the parties independently agreed for Saldivar to be economically
reinstated in lieu of actual reinstatement. The Court approved the agreement in
its Decision Approving Settlement and Order of Temporary Economic Reinstatement
(“Economic Reinstatement Order”) issued on May 28, 2021.

Since the issuance of
those orders, the Respondent has filed numerous motions in an effort to
terminate or pause its payment obligations. Most recently, the Respondent has
filed a Renewed Motion to Toll and Terminate Economic Temporary Reinstatement
Order in which it argues that its obligation should be suspended altogether due
to Saldivar’s changed circumstances following the hearing in this case. As
explained in the Court’s January 7, 2022 Order Denying Respondent’s Motion to
Toll Economic Reinstatement, the pertinent case law does not support the
Respondent’s contention. Therefore, its payment obligations will not be
suspended on the bases set forth in the motion.

Meanwhile, the
Secretary has submitted a related filing, a Motion to Enforce Court Ordered
Settlement Agreement. The Secretary alleges that Grimes Rock is skirting its
obligation to make Saldivar whole pending disposition of his discrimination
case. The settlement agreement reached by the parties provided that Saldivar
would receive the amount of his wages at Grimes Rock minus the amount he was
making at his then-employer Wayne J. Sand & Gravel Inc. The agreement was
silent as to what would happen if he moved on from that position, and the Respondent
continued paying the diminished amount even after Saldivar left Wayne J. Sand
& Gravel Inc. and was unemployed.

The purpose of
temporary reinstatement, as codified in the Mine Act, is “to put the miner back
to work as soon as possible so that he or she can resume earning a living while
the discrimination case is heard.” North Fork Coal Corp. , 33 FMSHRC 589,
592 (Mar. 2011). The Reinstatement Order in this case was issued to accomplish
this goal for Saldivar. The later Economic Reinstatement Order simply “described
how the parties proposed to implement relief ordered by the judge pursuant to
the Mine Act.” Id. Accordingly, I cannot “ignore that statute in
determining the construction, application, and effect” of the Economic
Reinstatement Order and the agreement between the parties incorporated within
it. Id .

The Economic
Reinstatement Order was issued in the shadow of the initial Reinstatement
Order, which mandated full and total reinstatement for Saldivar at his previous
rate of pay. I approved the parties’ settlement agreement insofar as it
adequately made Saldivar whole while his discrimination case was pending. Ambiguity
in the agreement must be interpreted to further the goal of the Mine Act and of
the original Reinstatement Order. Obligations under the Economic Reinstatement
Order can change when circumstances change, as evidenced by the tolling of the
operator’s obligation upon Saldivar’s unavailability. See Order Granting
Motion to Toll Temporary Reinstatement (April 19, 2022).

Accordingly, I find
that the Respondent is obligated to pay Saldivar the full amount ordered in the
original Reinstatement Order offset by his pay from other employers for the
period elapsed between May 18, 2021 and June 17, 2022, minus any periods of
unavailability. The Secretary has agreed in his motion that those periods of
unavailability include August 6 through November 14, 2021 and March 30 through
May 17, 2022. Grimes Rock is not responsible for compensating Saldivar while he
was unavailable during those periods of time. The company has argued in many
repetitious filings that it is not responsible to pay Saldivar during his times
of unavailability, and the Secretary has agreed to that assertion. In his motion
seeking pay for Saldivar, the Secretary lists, in detail, the times Saldivar was
available or unavailable for work, as well as the times that Saldivar mitigated
the amount owed with alternative employment. Grimes Rock responded to the
Secretary’s motion with some information about payments made to Saldivar, but
did not supply any facts to dispute the times and amounts set forth by the
Secretary. Hence, there are no facts in the record that contradict Saldivar’s
availability to work for all times outside of the two above-listed periods of
unavailability. If the Respondent had any factual information refuting
the Secretary’s calculations of economic reinstatement, it has had ample time
to supply those facts. Grimes Rock files incessant motions, often duplicative
and irrelevant, but nonetheless has had every opportunity to supply facts
instead of conjecture in its constant filings.

Grimes Rock claims that
it should be entitled to a hearing on the issue of missed pay, asserting that
it has the right to question whether Saldivar has been looking for work. Here
again, Grimes Rock misunderstands the nature of temporary reinstatement. Instead
of barraging the Court with countless “renewed” motions, the Respondent should
take the time to understand the law, and to allow the Court time to address the
important and underlying issue of discrimination.  Every minute spent reading
and digesting these tedious motions only sets back the time the Court has to
issue a final decision in this case.  Accordingly, the Respondent’s motions to
terminate the temporary reinstatement and its motion for a hearing are hereby
denied.

WHEREFORE, the Secretary’s
Motion to Enforce Court Ordered Settlement Agreement is GRANTED . The
Respondent is ORDERED to pay Saldivar the full wages as ordered in the
Reinstatement Order during the periods of his availability to work between May
18, 2021 and June 17, 2022, offset by his wages earned from alternative
employment during that period. The Respondent shall pay $9,723.08 [1] that is past due for the period
before May 17, 2022, and is further obligated to pay a gross total of $2,810.86 [2] for the period between May 17
and June 17, 2022. Future payment obligations under the Economic Reinstatement
Order are hereby TERMINATED as of this date. The Respondent’s renewed
motion is DENIED .

/s/
Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

Distribution:
(Electronic Mail and Certified Mail)

Karla Malagon, U.S. Department of Labor, Office of the
Solicitor, 350 S. Figueroa Street, Suite 370, Los Angeles, CA 90071, [email protected]

Jessica M. Flores, U.S. Department of Labor, Office of the
Solicitor, 350 S. Figueroa Street, Suite 370, Los Angeles, CA 90071, [email protected]

Peter Goldenring, Pachowicz & Goldenring PLC, 6050
Seahawk Street, Ventura, CA 93003, [email protected]

Mark R. Pachowicz, Pachowicz & Goldenring PLC, 6050
Seahawk Street, Ventura, CA 93003, [email protected]

Alvaro Saldivar, 1241 Lookout Drive, Oxnard, CA 93035, [email protected]

[1] The Secretary does not allege nonpayment before
November 8, 2021. Calculations are based on the table below. Information in the
table comes from both parties’ submissions in this case. The difference between
the final amounts owed here and in the Secretary’s motion is accounted for by
the April 1 check, as included in the Respondent’s response.

Pay Period Begins
With

Amount Due

Amount Paid

Amount Owed

11/8/2021

$     1,583.26

$  1,068.39

$   514.87

11/22/2021

$     3,166.53

$  2,136.78

$  1,029.75

12/6/2021

$     3,166.53

$  2,136.78

$  1,029.75

12/20/2021

$     3,166.53

$  2,136.78

$  1,029.75

1/3/2022

$     3,166.53

$  2,136.78

$  1,029.75

1/17/2022

$     3,166.53

$  2,136.78

$  1,029.75

1/31/2022

$     1,250.66*

$  1,250.66

$     0.00

2/14/2022

$     3,166.53

$  1,250.66

$  1,915.87

2/28/2022

$     2,616.53*

$  2,136.78

$   479.75

3/14/2022

$     3,166.53

$  2,136.00

$  1,030.53

3/28/2022

$      633.31

$     0.00

$   633.31

TOTAL

$    28,249.47

$ 18,526.39

$  9,723.08

• Periods of mitigation.

[2] This figure was
calculated by subtracting the wages from Saldivar’s new employment (prorated
for 22 workdays) from his previous wages from Grimes Rock (prorated for 23 days
of availability).