Secretary of Labor obo Alvaro Saldivar v. Grimes Rock, Inc. (amended)

Read the official release (fmshrc.gov)

Plain-English summary

Alvaro Saldivar received temporary economic reinstatement after alleging that Grimes Rock fired him for safety complaints, with the company initially paying the difference between his new wages and his former mine wages. After Saldivar was incarcerated and Grimes discovered additional criminal-history information, the company sought to end or toll reinstatement. The Commission majority held that after-acquired misconduct evidence belonged in the merits case and did not justify permanently tolling temporary reinstatement on this record. It also held that reinstatement continued until the ALJ's no-discrimination decision became final, not merely until the decision was issued. The Commission affirmed enforcement of full wages after Saldivar lost his other job, granted interest, and remanded for recalculation and possible consequential damages. Commissioner Althen dissented, arguing that post-reinstatement crimes and after-acquired evidence warranted a hearing, the negotiated payment terms controlled, and the damages request was untimely.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)
• Outcome: Tolling was denied and enforcement was affirmed, the immediate dissolution was vacated, and payment, interest, and possible damages issues were remanded.
• Key point: Temporary reinstatement remains effective through agency finality and an economic agreement cannot reduce the miner below the full wages required by the reinstatement order.

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 ALVARO SALDIVAR              :

                                                            :

                    v.

: Docket No. WEST 2021-0178-DM

                                                            :

GRIMES ROCK, INC. :

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker,
Commissioners

DECISION [1]

BY:
Jordan, Chair; Rajkovich and Baker, Commissioners

This case
arises under section 105(c)(2) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(c)(2) (2018) (“Mine Act”). [2] It involves the granting of
temporary reinstatement for a miner employed by Grimes Rock, Inc. On January
17, 2022, the Commission received a petition for discretionary review
challenging an Administrative Law Judge’s order denying the operator’s motion
to toll temporary reinstatement. On July 13, 2022, the Commission received
cross-petitions from the Secretary of Labor and Grimes Rock, challenging
different parts of the Judge’s June 17, 2022 order enforcing temporary
reinstatement.

For the reasons
that follow, we affirm the Judge’s order denying the operator’s motion to toll
temporary reinstatement and affirm in part and reverse in part the Judge’s
order enforcing temporary reinstatement.

I.

Factual and Procedural Background

Complainant
Alvaro Saldivar was a miner at Grimes Rock’s mine on two separate occasions.
First, he was employed as a welder from May 2019 through July 2019. Then he
was employed as a service technician from October 5, 2020 to January 15, 2021.
Tr. 16. When Grimes Rock hired Saldivar the second time, Saldivar made the
operator aware that he had a criminal record. Saldivar alleged that while
employed at Grimes Rock the second time, he made approximately eight safety
complaints to his direct supervisor Rene Garcia and general manager Ernie
Melendez. Most of his complaints involved alleged bald tires on the water
truck he operated, but they also included a complaint about a lack of proper
training. Tr. 17-27.

During this
period, Saldivar received five disciplinary warnings from Grimes Rock. The
operator eventually terminated Saldivar on January 15, 2021, just one day after
his last safety complaint. Saldivar filed a discrimination complaint with the
Secretary of Labor’s Mine Safety and Health Administration (“MSHA”) over his
termination, and the Secretary subsequently brought a section 105(c)(2) action
and sought temporary reinstatement on Saldivar’s behalf. Temporary
reinstatement was granted by a Commission Administrative Law Judge on May 18,
2021. Sec’y of Labor on behalf of Saldivar v. Grimes Rock, Inc. , 43
FMSHRC 287 (May 2021) (ALJ). Grimes Rock petitioned for review of the Judge’s
decision, which was subsequently affirmed by the Commission. Sec’y of Labor
on behalf of Saldivar v. Grimes Rock, Inc. , 43 FMSHRC 299 (June 2021).

While Grimes
Rock’s appeal was pending, however, the parties agreed to temporary economic
reinstatement. The Judge approved the agreement on May 28, 2021. Under the
agreement, because Saldivar had found work with another employer, Grimes Rock
was responsible for paying the difference between Saldivar’s earnings at his
present job and his earnings at Grimes Rock. The agreement was silent on what
would happen if Saldivar no longer had other employment to offset Grimes Rock’s
payments. In July 2021, the Secretary filed a discrimination complaint on
Saldivar’s behalf (Docket No. WEST 2021-0265).

While the parties awaited the Judge’s
decision on the merits of Saldivar’s discrimination complaint, Saldivar was
incarcerated on two occasions. Although the agreement was also silent on what
would happen if Saldivar was unavailable for work, the Secretary agreed to toll
Grimes Rock’s payments during these periods. After Saldivar’s first
incarceration, Grimes Rock filed a motion to toll or permanently terminate the
economic reinstatement, arguing the applicability of the “after-acquired
evidence” doctrine and a “change in circumstances.” G.R. PDR 1 at 2-4. On
January 7, 2022, the Judge denied the operator’s motion and Grimes Rock filed a
petition challenging the Judge’s determination, which we granted and will
consider here.

After
Saldivar was released from his first incarceration, around November 2021,
Grimes Rock resumed making payments. However, at that time the parties
disputed what amounts were then owed pursuant to the temporary reinstatement
order. Saldivar’s second incarceration ended in May 2022. After the miner’s
second release, Grimes Rock did not resume its payments. [3]
On May 27, 2022, the Secretary filed with the Judge a motion to enforce the
settlement agreement, which was granted on June 17, 2022. The Judge ordered
Grimes Rock “to pay Saldivar the full wages as required by the temporary 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.” Sec’y of Labor on behalf of Saldivar v. Grimes Rock, Inc .,
44 FMSHRC 497 (June 2022). Simultaneous with her order granting enforcement,
the Judge issued her decision on the merits of the discrimination complaint,
concluding that Grimes Rock did not violate the discrimination provisions of
the Mine Act and dismissed the case. Sec’y
of Labor on behalf of Saldivar v. Grimes Rock, Inc ., 44 FMSHRC 473 (June
2022) (ALJ). Consequently, the Judge ordered the dissolution of the temporary
reinstatement order. She ordered that the dissolution occur on the same date
that she issued the decision on the merits.

On July 13,
2022, the parties filed cross petitions challenging different parts of the
Judge’s June 17 order. Specifically, the Secretary challenges the Judge’s
decision to terminate the temporary reinstatement order instantly, upon
issuance of her decision on the merits of the discrimination complaint. Sec’y PDR.
In turn, Grimes Rock takes issue with the duration of the temporary
reinstatement and challenges the Judge’s enforcement order. G.R. PDR 2. The
Commission has granted review of both petitions.

Finally, on
August 15, 2022, MSHA issued a section 104(a) citation to Grimes Rock for its
refusal to make the required payments in violation of the Judge’s order to
enforce. 30 U.S.C. § 814(a). On August 17, 2022, Grimes Rock filed a request for
an immediate stay of the Judge’s June 17 order granting enforcement, which was
subsequently denied by the Commission. The Secretary subsequently filed a
104(b) Order, 30 U.S.C. § 814(b), for the operator’s failure to comply with the
Judge’s enforcement order. On August 22, 2022, following the issuance of that
order, Grimes Rock finally made the payments required under the temporary
reinstatement order. [4] Three days later, the Secretary
filed a motion for interest and consequential damages for the wages Saldivar
was not able to access during the periods Grimes Rock refused to pay. Sec’y
Mot. for Interest.

II.

Disposition

Grimes
Rock’s petition challenging the Judge’s denial of its motion to toll the
Judge’s Order of Temporary Reinstatement

For
the reasons below, we conclude that the Judge did not err when she denied the
operator’s motion to permanently toll the order of temporary reinstatement.

1.
Grimes Rock failed to establish that tolling was justified.

The Mine Act directs the Commission to reinstate a miner
during the pendency of his/her discrimination complaint as long as he or she
can prove that the complaint was not frivolously brought. The scope of a
temporary reinstatement hearing is narrow, and the Judge is limited to
determining “whether the evidence mustered by the miner[] to date established
that [his or her] complaint[] [is] nonfrivolous, not whether there is
sufficient evidence of discrimination to justify permanent
reinstatement.” See Sec’y of Labor on behalf of Price v. Jim Walter
Res., Inc. , 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d , 920 F.2d
738, 744 (11th Cir. 1990) (“ JWR ”); Sec’y on behalf of Jones v.
Kingston Mining, Inc ., 37 FMSHRC 2519, 2522 (Nov. 2015).

While the scope of temporary
reinstatement proceedings is limited to determining whether the complaint is
frivolously brought, we have permitted a limited inquiry to determine whether
the obligation to reinstate a miner may be tolled due to a “change in
circumstances.” Sec’y on behalf of Gatlin v. Ken American Res., Inc .,
31 FMSHRC 1050, 1054-56 (Oct. 2009) (concluding that the duration of a
temporary reinstatement of a miner may be modified if the operator can prove
that the complainant’s inclusion in a layoff, at an idled mine, was entirely
unrelated to his protected activity).

In
previous cases, the only types of “events” that we have found may justify
tolling are those which affect the availability of relevant work at the mine
for the miner at issue, such as a layoff due to business
contractions or similar conditions and mine closure. Id .; see,
e.g., Sec’y on behalf of Russell Ratliff v. Cobra Natural Res ., 35 FMSHRC
394 (Feb. 2013) (affirming the Judge’s order finding that the operator’s
obligation to reinstate Ratliff was not tolled by a layoff because the operator
continued to mine coal, and work was available for shuttle car operators). See
also Sec’y of Labor on behalf of Anderson v. A&G Coal Corp. , 39
FMSHRC 315, 319-20 (Feb. 2017); Sec'y of Labor on behalf of Rodriguez v.
C.R. Meyer & Sons Co. , 35 FMSHRC 1183, 1187-88 (May 2013); Sec’y of Labor on behalf of McGaughran v. Lehigh Cement
Co ., 42 FMSHRC 467, 471 n.6 (July
2020). The Commission has held that “[a]n
operator generally must affirmatively prove that a layoff justifies tolling
temporary reinstatement by a preponderance of the evidence.” Cobra Natural
Res., LLC , 35 FMSHRC at 397. Additionally, the tolling inquiry is bound by
the same evidentiary standards as the initial temporary reinstatement
proceeding; the Judge is not permitted to make credibility determinations or
resolve conflicts in the evidence. Id . 98 n.3.

Grimes Rock has not established that work at the mine was
unavailable for Saldivar. Indeed, the operator offers no evidence
regarding availability of work. Instead, Grimes Rock argues that the
Commission’s doctrine on tolling should be extended to include a situation
where the operator no longer wishes to offer employment to a miner. Specifically,
Grimes Rock argues that tolling is justified because it no longer desires to
employ Saldivar due to his periods of incarceration and the criminal
allegations against him. [5] G.R. PDR 1 at 9-12. Neither the
Mine Act nor Commission precedent support the extension of the Commission’s tolling
doctrine to include the position advanced by Grimes Rock.

Congress directed that temporary relief be ordered
“pending the final order on the complaint.” 30 U.S.C. § 815(c)(2). Congress
did so because it determined that “employers should bear a proportionately
greater burden of the risk of an erroneous decision in a temporary
reinstatement proceeding.” JWR , 920 F.2d at 748; Sec’y of Labor on
behalf of Deck v. FTS Int’l Proppants, LLC , 34 FMSHRC 2388, 2390 (Sept.
2012). The Commission has traditionally allowed exceptions to that statutory
mandate only in narrow circumstances.

It is axiomatic that an operator defending its
decision to discharge a miner in a section 105(c) proceeding no longer wishes
to employ that miner. An operator’s desire not to employ a temporarily
reinstated miner, in and of itself, is never sufficient to justify tolling. [6] If it were, every operator would be justified in
discharging every miner granted a temporary reinstatement. [7] Allowing such a justification would defeat the purpose of temporary reinstatement, which
is to “provide the miner with an income through a return to work until the
[merits] complaint is resolved.” North
Fork , 33 FMSHRC at 592. Grimes Rock
provided no other basis for tolling Saldivar’s temporary reinstatement. Therefore, we decline to extend our tolling doctrine
to include the facts present here. [8]

Tolling, in this case, was not appropriate. The Judge
did not err by declining to grant it.

2.
“After-Acquired Evidence of Wrongdoing” is not relevant in
temporary

reinstatement proceedings

Grimes Rock argues that tolling is justified because it unearthed
evidence of “wrongdoing” by Saldivar while preparing for the merits hearing.
It then sought to introduce this “after-acquired evidence” as justification for
tolling the temporary reinstatement.

The Judge refused to toll the temporary reinstatement,
instead finding that the evidence was relevant to the hearing on the merits.
We find that the Judge’s actions were not in error.

To support its position that a temporary reinstatement can be
tolled based on after-acquired evidence, Grimes Rock relies on McKennon v.
Nashville Banner Publishing Co. , 513 U.S. 352 (1995). In that case, the
Supreme Court held that evidence of wrongdoing that occurred during the
employee’s period of employment—but uncovered by the employer while conducting
discovery regarding an Age Discrimination in Employment Act complaint—may limit
available remedies for the violation. Notably the Court did not find that it
completely shields the employer from liability under the ADEA. Instead, the
Court found that such evidence may limit available remedies to an employee,
provided that the employer can first establish “that the wrongdoing was of such
severity that the employee would have been terminated on those grounds alone if
the employer had known of it at the time of the discharge.” Id . at
362-63.

For the reasons which follow, we find that McKennon is
not applicable to temporary reinstatement proceedings under the Mine Act.

Temporary reinstatement, pending a determination on the
merits of the complaint, is awarded if the Secretary demonstrates that the
miner’s complaint is not frivolous. See Jim Walter , 9 FMSHRC at 1306; Kingston
Mining, Inc ., 37 FMSHRC at 2522 (the “scope of a temporary reinstatement is
narrow, being limited to a determination by the Judge as to whether a miner’s
discrimination complaint is frivolously brought.”).

However, temporary reinstatement is not a remedy for a
violation of the Mine Act. [9] Instead, temporary reinstatement is
awarded pending a determination on the merits of the complaint . If the
miner prevails on the merits of the complaint, and the Judge finds that the
operator violated the Mine Act, only then does the Judge consider remedies for
the violation. The Commission has differentiated temporary reinstatement from
remedies and awards by recognizing that “the
purpose of temporary reinstatement 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.” Sec’y of Labor v. North Fork Coal Corp ., 33
FMSHRC 589, 592 (Mar. 2011) (citations omitted); McGaughran , 42 FMSHRC
at 470 n.4. [10]

Moreover, the after-acquired evidence doctrine requires the
employer to demonstrate that based on the new evidence of wrongdoing, the
employer would have fired the employee at the time it occurred if the employer
would have known about it. This standard requires that a Judge make
credibility determinations and resolve conflicts in the evidence, which is
inconsistent with the limited nature of a temporary reinstatement hearing. Sec’y
of Labor on behalf of Albu v. Chicopee Coal Co ., 21 FMSHRC 717, 719 (July
1999) (“[i]t [is] not the Judge’s duty, nor is it the Commission’s, to resolve
the conflict in testimony at this preliminary stage of the proceedings.”). [11]

For these reasons, an operator is not permitted to
use evidence it acquires while preparing for the case on the merits, or even
relevant evidence it failed to submit for the original hearing on temporary
reinstatement, to repeatedly relitigate the case against temporary
reinstatement. See JWR , 920 F.2d at 748 n.11 (the “not frivolously
brought” standard reflects a Congressional intent that “employers should bear a
proportionately greater burden of the risk of an erroneous decision in a
temporary reinstatement proceeding.”). [12]

Simply put, after-acquired evidence of wrongdoing may
be admissible in a full hearing on the merits of a discrimination complaint but
is not a basis to toll a temporary reinstatement order. The Judge did not err.

3. Due
   Process and Prejudice

Grimes Rock contends that the Judge deprived it of its due process
right to a meaningful hearing on its motion to terminate the temporary economic
reinstatement. G.R. PDR 1 at 16-18. We do not agree.

The motion to toll filed with the Judge did not include a
request for a separate hearing on its motion, nor was Grimes Rock entitled to
one. [13] The
Commission has recognized limited circumstances in which a Judge, prior to the
hearing on the merits, may appropriately order an intermediate hearing
regarding changed circumstances. However, in the temporary reinstatement phase
of the litigation, during which the parties may not have completed discovery,
the burdens of proof and the standard against which the evidence is evaluated
should be no different than if the issue had been heard during the initial
temporary reinstatement hearing. Cobra Natural , 35 FMSHRC at 398
n.3. The ultimate determination concerning the
appropriate remedy for any alleged discrimination, including the duration of an
operator’s reinstatement obligation, if any, is made in the proceeding on the
merits. [14] Id .
at 398.

Grimes
Rock also contends that continuing the temporary economic reinstatement despite
the emergence of new undisputed evidence caused prejudice. G.R. PDR 1 at 19. As
discussed above, after-acquired evidence is not appropriate at the temporary
reinstatement stage. We further reject any claim of economic prejudice. Congress,
in enacting the “not frivolously brought” standard, clearly intended that
employers should bear a proportionately greater burden of the risk of an
erroneous decision in a temporary reinstatement proceeding . JWR , 920
F.2d at 744, n.11. Moreover, t he Commission has
indicated that the goal of the Mine Act’s discrimination provision is to make
the miner whole until the case can be decided on the merits. Sec’y
of Labor on behalf of Rieke v. Akzo Nobel Salt , Inc ., 19 FMSHRC
1254, 1258 (July 1997) (discussing pertinent
legislative history); Sec’y of Labor on behalf of Totten v. Tk Mining
Services, LLC , 37 FMSHRC 2217, 2218-19 (Sept. 2015).

We hold that
evidence of prior behavior uncovered after the miner’s discharge but offered after
a decision granting or denying temporary reinstatement has been reached is not
appropriate for review prior to the hearing on the merits.

B.
The Secretary’s petition challenging the Judge’s dissolution of
the order of temporary reinstatement contemporaneous with her decision finding
that

Grimes
Rock did not violate section 105(c)

The Secretary
argues that the Judge abused her discretion by terminating Saldivar’s temporary
reinstatement on June 17, 2022, because the merits decision was not yet a final
order. Sec’y PDR at 2. We agree and conclude that the Judge erred when she
dissolved the temporary reinstatement order prior to the conclusion of the
Commission’s opportunity to direct review.

If the Secretary
can show that the discrimination complaint was not frivolously brought, section
105(c)(2) of the Mine Act states that “the Commission . . . shall order the
immediate reinstatement of the miner pending final order on the
complaint. . . .” 30 U.S.C. § 815(c)(2) (emphasis added). An order
issued after a determination on the merits is not final directly upon its
issuance. We have previously held that a Judge cannot terminate a
temporary reinstatement order concurrently with a decision on the merits. In Reading
Anthracite , the Commission determined that “the language of the Mine Act
requires that a temporary reinstatement order remain in effect while the
Commission reviews the judge’s decision.” Secretary ex rel. Bernardyn v.
Reading Anthracite Co ., 21 FMSHRC 947, 949 (Sept. 1999) (holding that “the
time had not yet passed for the Commission to review the judge’s decision on
the merits . . . . Accordingly, the judge’s decision had not yet become a final
Commission decision. 30 U.S.C. § 824(d)(1). Thus, the judge lacked statutory
authority to dissolve the temporary reinstatement order concurrently with his
discrimination decision or at any time before we could direct review.”); Sec’y
of Labor on behalf of Noe v. J & C Mining, LLC, and Manalapan Mining
Co ., 22 FMSHRC 705, 706 (June 2000).

In the instant
matter, the Judge erred by terminating the temporary reinstatement before this
Commission could direct review of her merits decision. Furthermore, temporary
reinstatement ends only after the merits case has become final. [15]
Neither scenario had occurred here when the Judge issued her order of
termination.

Accordingly, the Judge erred when she
ended the order of temporary reinstatement concurrently with her merits
decision. This issue is remanded to the Chief Administrative Law Judge for
recalculation of the temporary reinstatement amount owed between the date the
Judge issued the order of enforcement and the date her merits decision became
final. [16]

C.
Grimes Rock’s petition challenging the Judge’s order granting the
Secretary’s motion to enforce

Grimes Rock argues
that the Judge abused her discretion by retroactively modifying the economic
reinstatement agreement and ordering the operator to pay the full reinstatement
amount after Saldivar lost his other employment. It notes that Grimes Rock
only agreed to pay the difference between Saldivar’s earnings at the job he
secured after being terminated by Grimes Rock and what he would have been
earning at Grimes Rock. G.R. PDR 2 at 14; G.R. Reply Br. at 3-5. The operator
asserts that the Judge improperly interpreted the agreement to include implied
terms that should only have been considered upon the Secretary’s proper filing
of a motion to modify the existing order. G.R. Br. at 27-31.

We conclude that
the Judge did not err in granting the Secretary’s motion to enforce and in
finding that Grimes Rock was obligated to pay Saldivar all wages required to
make the miner whole under the original order of temporary reinstatement.

Under section
105(c)(2) of the Mine Act, if it is found that a miner’s complaint of
discrimination is 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) (emphasis added). While temporary “reinstatement” means to place
the miner back to work at the mine during the pendency of the discrimination
case, the Commission has deemed economic reinstatement an acceptable
alternative. Economic reinstatement is negotiated by joint agreement, which
may be accepted by the Judge in lieu of actual reinstatement. A Judge may not
order economic reinstatement on his or her own initiative. Sec’y on behalf of
McGoughran v. Lehigh Cement Co., LLC , 42 FMSHRC 467, 469 (July 2020); 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). In
addition, parties may renegotiate, or Judges may modify economic reinstatement
agreements to allow for the offsetting of the temporary reinstatement award by
the amount of wages earned by the miner from other employment during the
reinstatement period. North Fork Coal Corp ., 33 FMSHRC at 595-96.

Congress stated
that: “The Committee feels that this temporary reinstatement is an essential
protection for complaining miners who may not be in the financial position to
suffer even a short period of unemployment or reduced income pending the
resolution of the discrimination complaint.” S. Rep. No. 95-181, at 36-37
(1977), reprinted in Legis. Hist. at 624-25 (emphasis added). Congress
also stated that temporary reinstatement was intended “[t]o protect miners from
the adverse and chilling effect of loss of employment while [a discrimination
complaint is] being investigated.” S. Conf. Rep. No. 95-461, at 52 (1977),
reprinted in Legis. Hist. at 1330; Sec’y on behalf of Bussanich v. Centralia
Mining Co ., 22 FMSHRC 153, 161–62 (Feb. 2000).

Consistent with the
legislative history, the Commission has held that “the purpose of the temporary
reinstatement provisions is to put the miner, during the time he [or she]
pursues [a] discrimination claim, in no worse a position than he [or she] was
while working for the operator. ” See North Fork , 33 FMSHRC
at 597-98 (emphasis added). We have noted that 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) .” Lehigh Cement ,
42 FMSHRC at 469 (emphasis added).

A miner is not
“reinstated” if the miner is receiving less pay than what he or she would have
received if the termination had not occurred. Under an order of temporary
reinstatement, it is the operator’s responsibility to ensure that the miner is
no worse off than when employed by the operator prior to the discrimination
complaint. This status quo requirement remains even when the miner no longer
has any alternative employment to offset the operator’s payment. Here, when
the Judge first awarded Saldivar temporary reinstatement, her decision
specifically reinstated “Mr. Saldivar to his former position at the mine . . .
at the same rate of pay and with all benefits, including any raises, that he
received prior to discharge, pending a final Commission order on the complaint
of discrimination.” Grimes Rock , 43 FMSHRC 287, 292 (May 2021). The
decision was subsequently affirmed by the Commission. Grimes Rock , 43
FMSHRC 299 (June 2021). The parties then agreed to economic reinstatement and
because Saldivar had secured other employment at that time, Grimes Rock’s
payments were set at the difference between Saldivar’s earnings at his new job
and what he would have been making at Grimes Rock.

Although the
agreement was silent on what would happen if Saldivar no longer had other
employment to offset Grimes Rock’s payments, interpreting that silence to mean
that Grimes Rock is responsible for something less than what is required to
“reinstate” Saldivar would not be “consistent with the purposes of section
105(c).” It is also difficult to believe that the Secretary and miner would
agree to any compensation that was less than what the Judge had already awarded
or to any terms that would “put [Saldivar] . . . in [a] worse [] position
than he was while working for the operator .” See North Fork ,
33 FMSHRC at 597-98. There is no indication in the record that Saldivar
intended to waive any portion of the full wages to which he was statutorily
entitled. [17] Likewise, we see no sign in the
Judge’s decision approving settlement that she intended to approve any
agreement that would run afoul of the Mine Act by placing the miner in a
situation that would make him less than whole.

In fact, in the
Judge’s Order granting the Secretary’s motion to enforce, she stated that: “The
Economic Reinstatement Order was issued in the shadow of the initial
Reinstatement Order, which mandated full and total reinstatement for Saldivar
at this previous rate of pay. I approved the parties’ settlement agreement
insofar as it adequately made Saldivar whole while his discrimination case was
pending.” ALJ Ord. Gr. Sec’y Mot. to Enforce at 2 (June 17, 2022). She
further noted that her initial order was issued to accomplish the goal of the
temporary reinstatement provision and the order approving economic
reinstatement simply “‘described how the parties proposed to implement relief
ordered by the Judge pursuant to the Mine Act.’” Id ., quoting North
Fork , 33 FMSHRC at 592.

We conclude that
any economic reinstatement agreement and any order issued by a Judge must be
consistent with the purpose of the temporary reinstatement provision of the
Mine Act, which is to make the miner whole. See North Fork , 33 FMSHRC
at 593; Lehigh Cement , 42 FMSHRC at 469.

Grimes Rock argues
that California statutory rules of contract interpretation govern the temporary
reinstatement agreement, therefore any ambiguity in the agreement as to the
operator’s payment obligations in the event of Saldivar’s loss of alternative
employment must be construed against the Secretary. G.R. PDR 2 at 18-23. We
reject this argument. The parameters of any temporary reinstatement agreement
are first dictated by the statute, and any ambiguity shall be interpreted to
further the purposes of the Mine Act. [18] A private agreement simply cannot
trump a valid order of temporary reinstatement issued pursuant to section
105(c). In light of this, it would have been reasonable for all involved to
assume that in the event Saldivar no longer had other employment, Grimes Rock’s
payments would automatically revert to the full amount under the Judge’s
original order, which was still in place.

Conversely, Grimes
Rock goes on to assert that it was implied in the agreement that “Mr. Saldivar
would act in good faith and exercise reasonable efforts at maintaining an
employable status,” which he failed to do. G.R. PDR 2 at 11. We reject this
notion as the Mine Act does not require a miner to mitigate an operator’s
temporary reinstatement obligation, which includes agreeing to offset an
operator’s payments due to other employment. A miner’s only obligation to
mitigate in a section 105(c) proceeding is limited to the consideration of
backpay in the merits case. However, we have already distinguished backpay
awards from wages owed under temporary reinstatement. North Fork , 33
FMSHRC at 592.

We also find unpersuasive
Grimes Rock’s argument that it would not have agreed to full economic
reinstatement. G.R. PDR 2 at 21. Given the mandates of the Mine Act and the
Judge’s original reinstatement order, the operator’s agreement was not
necessary. If Grimes Rock had not opted for economic reinstatement, it would
have had to physically reinstate Saldivar at his full pay. In any event,
Saldivar was entitled to receive his full wages. “Economic reinstatement” allows
the miner the benefit of receiving his or her normal pay, while permitting the
operator to avoid bringing the miner back into the workplace. See Lehigh
Cement , 42 FMSHRC at 469.

We conclude that
an economic reinstatement agreement must work in tandem with any existing order
of temporary reinstatement and cannot deprive a miner of the full wages owed
under and intended by the Mine Act’s temporary reinstatement provision. [19]

Finally, Grimes Rock
maintains that it was deprived of its due process right to a hearing, which it contends
it was entitled to if the Judge was going to impose an increased payment
amount. We disagree. A temporary reinstatement hearing was held and an order
issued temporarily reinstating Saldivar “at the same rate of pay and with all
benefits, including any raises, that he received prior to discharge, pending a
final Commission order on the complaint of discrimination.” Grimes Rock ,
43 FMSHRC at 292. As we have stated, the settlement agreement could not divest
Mr. Saldivar of any pay owed to him under the original order and served only to
describe his manner of reinstatement. Finally, contrary to Grimes Rock’s
assertion, the Judge did not increase the amount Grimes Rock owed to Saldivar.
The operator simply lost the benefit of Saldivar’s other employment offsetting
its payments. The operator was due no additional hearing.

Accordingly, we reject the
notion that the Judge retroactively modified the parties’ settlement agreement
and conclude that the Judge did not err in granting the Secretary’s motion to
enforce.

D.
Secretary’s motion for interest and consequential damages

The Commission grants the
Secretary’s motion for interest. Specifically, Grimes is obligated to pay
interest, pursuant to section 105(c)(2) of the Mine Act, on any yet unpaid temporary
reinstatement payments owed to Saldivar. In addition, Grimes is obligated
to pay interest on any temporary reinstatement payments that were paid late to
Saldivar. On remand, the Judge should determine the amounts of any
remaining temporary reinstatement payments owed as well as interest owed.

Additionally,
on remand, the Judge should determine whether consequential damages as a result
of Grimes’ failure to timely comply with the Judge’s orders are
appropriate. See e.g., Amos Hicks v. Cobra Mining , 14 FMSHRC 50
(Jan. 1992).

III.

Conclusion

For
the foregoing reasons, we affirm the Judge’s order denying the operator’s
motion to toll temporary reinstatement. We vacate the Judge’s order dissolving
the temporary reinstatement as of the date of her order and decision, and
remand it for assignment to a Judge for recalculation of the temporary
reinstatement amount owed between the date the Judge issued the order of
enforcement and the date her merits decision became final. We affirm the
Judge’s order enforcing temporary reinstatement. Finally, we grant the
Secretary’s motion for interest and consequential damages and remand this
matter for a determination of any remaining temporary reinstatement payments
and interest owed as well as a determination on whether consequential damages
are appropriate.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ Marco M. Rajkovich,
Jr.

Marco
M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner Althen, dissenting:

        I respectfully dissent.

I.

FACTUAL BACKGROUND

        On

October 6, 2020, Saldivar submitted an employment application to Grimes. The
application signed by Saldivar asked: “Have you ever been convicted of, plead
guilty/no contest to a crime?” Saldivar responded, “possession of a loaded
firearm.” G.R. PDR 1, Decl. of Pachowicz, Ex 6. Saldivar
certified that the answers were true and acknowledged that falsification would
be grounds for dismissal. Despite his certification and acknowledgment, it is
now indisputable that Saldivar lied on the application.

        In

2021, the Secretary requested temporary reinstatement on behalf of Saldivar.
An Administrative Law Judge (“ALJ”) temporarily reinstated Saldivar on May 18,
2021. Afterward, the parties entered into an economic reinstatement agreement
explicitly prescribing the terms of his reinstatement – namely, the monies
Saldivar would receive from Grimes. This prescribed amount was the difference
between the salary Grimes had paid Saldivar and the amount Saldivar earned at a
new job. 1 The ALJ accepted the parties’
agreement and entered an Order containing the terms of the agreement.

After
Saldivar’s discrimination complaint, Grimes acquired evidence that contrary to
Saldivar’s certified statement the prior year, Saldivar previously was
convicted of, among other things:

a.
Willfully causing or permitting a
child to be placed in a situation where his or her person or health is endangered,

b.
Being under the influence of cocaine, cocaine base, heroin, methamphetamine, or
phencyclidine while in the immediate personal possession of a loaded, operable
firearm,

c.
Commission of a felony after
release on bail of own recognizance,

d.
Possessing an assault weapon.

e.
Possession of a controlled
substance while armed with a loaded, operable firearm,

f.
Possessing a sawed-off shotgun or
rifle, and

g.
Carrying a loaded firearm in a
vehicle 2

People v.
Saldivar , Case No. 2016002309,
Superior Court of California, County of Ventura, available at
https://secured.countyofventura.org/courtservices/Information/

CaseInformationSearch.aspx
(last visited Aug. 28, 2023). 3

        While

on temporary reinstatement, on September 16, 2021, Saldivar pled guilty to a
theft charge. He subsequently spent 75 days in the Ventura County, California
jail. The Secretary recognized that Saldivar committed the crime and agreed
that Grimes need not make temporary reinstatement payments to Saldivar during
his incarceration.

       On November 29,

2021, Grimes filed a motion to toll temporary reinstatement. Grimes made
several arguments, including (1) after-acquired evidence that Saldivar failed
to disclose prior severe crimes on his certified employment application despite
notice that a failure to report fully could cause discharge and (2) Saldivar’s
criminal misconduct after his reinstatement. On January 7, 2022, the ALJ
denied Grimes’s motion to toll without a hearing. The ALJ failed even to
consider Saldivar’s post-reinstatement criminality. Indeed, the ALJ neither
considered nor ruled on the impact of Saldivar’s criminality upon
reinstatement.

As a result, this
case does not present the Commission with the normal process of reviewing
factual findings for substantial evidence. The ALJ made no factual findings
related to Saldivar’s criminality to review. However, the commission of the
crimes is undisputed. Further, the ALJ’s denial of the motion to toll did not
discuss the legal effect of post-reinstatement criminality. Therefore, the ALJ
decision made no legal findings relevant to the Commission’s review.

       On January 17,

2022, the Commission granted a Petition for Discretionary Review challenging
the ALJ’s denial of tolling. In early 2022, Saldivar again went to jail – this
time, for failure to appear. Grimes again filed a motion to toll. Saldivar
spent sixty-five days in jail. The ALJ granted tolling only for the period
Saldivar was in jail. Again, Grimes filed a Petition for Discretionary Review
of the ALJ’s refusal to toll, and the Commission granted review. The
Commission issues its decision on tolling today, long after the ALJ absolved
Grimes from the discrimination claim and long after Grimes paid Saldivar tens
of thousands of dollars.

On June 17, 2022, five months after a
remote hearing, the ALJ found
Grimes had not discriminated against Saldivar and dissolved the Temporary
Reinstatement Order. That same day, six months after Saldivar’s release from
jail, the ALJ granted the Motion to Enforce filed by the Secretary in May. The
ALJ’s Enforcement Order explicitly required Grimes to pay Saldivar $12,533.94.
The Secretary expressly requested this amount, subject to minor adjustments
after the filing. The Secretary did not seek any consequential damages, and the
ALJ never considered a claim for consequential damages. See Sec’y Motion to
Enforce ( May 27, 2022).

        On July 13, 2022, the

Secretary filed a Petition for Review challenging the ALJ’s dissolution of
temporary reinstatement on June 17, arguing the Mine Act entitled Saldivar to
continue temporary reinstatement until the expiration of any period of appeal
or thirty days after the ALJ’s decision if neither the Secretary nor Saldivar
filed an appeal. On July 13, 2022, Grimes filed a Petition for Review
challenging the ALJ’s grant of the Secretary’s motion to enforce. The
Commission granted both petitions.

        On August 25, 2022,

approximately 69 days after the ALJ found no discrimination and 39 days after
the period for filing a Petition for Review, the Secretary filed a Motion for

Consequential Damages directly with the
Commission.

II.

TOLLING
REINSTATEMENT

A. The commission of crimes during
temporary reinstatement and after-acquired evidence of dischargeable misconduct
warranting termination may limit compensation

The Supreme Court has recognized that after-acquired
evidence warranting termination may limit compensation to the period before a
defendant obtains such evidence. Further, dischargeable misconduct during
regular employment, permanent reinstatement, or temporary reinstatement
warrants termination of employment.

In McKennon v. Nashville Banner Publ’g Co. , 513
U.S. 352 (1995), the Supreme Court considered new facts supporting
termination, which the employer only learned about after discharging the
employee. The Court held that compensation would cease when the employer
learned of the employee’s actions justifying termination. It stated that:

The proper boundaries of remedial relief in the general
class of cases where, after termination, it is discovered that the employee has
engaged in wrongdoing, must be addressed by the judicial system in the ordinary
course of further decisions, for the factual permutations and the equitable
considerations they raise will vary from case to case. We do conclude that
here, and as a general rule in cases of this type, neither
reinstatement nor front pay is an appropriate remedy. It would be both
inequitable and pointless to order the reinstatement of someone the employer
would have terminated, and will terminate, in any event and upon lawful
grounds.

. .
.

Once an employer learns about employee
wrongdoing that would lead to a legitimate discharge, we cannot require the
employer to ignore the information , even if it is acquired during the course of discovery in a
suit against the employer and even if the information might have gone
undiscovered absent the suit. The beginning point in the trial court’s
formulation of a remedy should be calculation of backpay from the date of the
unlawful discharge to the date the new information was discovered.

Id . at 361-62 (emphasis
added). 4

        The majority’s position on Grimes’s presentation of new crimes and

after-acquired evidence flouts this Supreme Court precedent. The Court has
cogently and directly held that after-acquired evidence makes it inequitable
and pointless to continue the reinstatement of someone the employer would have
terminated, and will terminate, in any event, upon lawful grounds. Necessarily, this principle applies equally to new
misconduct,

        The

majority “stresses” that the factual
allegations raised by the operator “were relevant to, and were considered by
the Judge in, the case on the merits, where the operator prevailed.” Slip op. at
6 n.7. In so doing, the majority recognizes that the factual allegations of
new misconduct and after-acquired evidence may point to denial of
reinstatement. However, despite the Supreme Court’s instruction, they are
satisfied to allow such new events to linger unreviewed until a hearing on the
merits. Here, the delay was for eight months.

        Moreover,

the ALJ did not consider the
after-acquired evidence and new misconduct in her decision issued in June
2022. The majority’s misstatement that the ALJ considered such evidence and
the ALJ’s failure to consider the evidence demonstrates the wrongfulness of the
majority’s willingness to accept a delay of many months to assess
post-reinstatement events and evidence disqualifying Saldivar from permanent
reinstatement. Having recognized that the new evidence and events are relevant
to continued employment, the majority endorses the “inequitable and
pointless” process of not permitting a hearing regarding a complainant whom the
operator could terminate based on after-acquired evidence or post-reinstatement
misconduct.

B. The
Commission Errs by Refusing to Consider Evidence of Misconduct After Reinstatement
and After-Acquired Evidence

1.
Criminal activity by a
reinstated person after reinstatement justifies discharge.

The Mine Act provides crucial safety and
health protection for miners. Section 105(c) of the Act supports those
protections. There, the Act prohibits discrimination against a miner because
of the exercise of any of the protections of the Act. Section 105(c) further
seeks to assure that miners will not suffer a temporary loss of employment
because of exercising a protected right. It provides for the temporary
reinstatement of a miner if the Secretary presents a “non-frivolous” claim of
discrimination. 5 These are essential rights.

        The Mine Act, however, does

not exempt miners from the obligation of all workers to observe the legally required
norms of society at work and away from work. In this case, undisputed evidence
demonstrated that Saldivar engaged in criminal misconduct for which he served
two jail sentences totaling several months and lied on his employment
application.

This case presents a significant issue
of first impression for the Commission: Does temporary reinstatement protect a
reinstated complainant from discipline if the complainant engages in criminal
wrongdoing, resulting in incarceration after reinstatement? The
specific criminal wrongdoing in the case is theft, followed by failure to
appear. However, as a case of first impression, the case also presents the
broader question of the effect of criminal misconduct by or incarceration of a
reinstated complainant after reinstatement.

After temporary
reinstatement, Saldivar committed crimes of theft and failure to appear. There
is no dispute over his guilt or his jail terms. The Secretary does not dispute
that such crimes occurred and agrees that Saldivar was not entitled to pay
while in jail. 6

        The Mine Act does not differ from general

employment law for discipline motivated by a reason other than protected
activity. Unless employees have a contract, employers may discharge employees
for any reason that is not unlawful. Engquist v. Oregon Dept. of Agr .,
553 U.S. 591, 606 (June 2008) (“The basic principle of at-will employment is
that an employee may be terminated for a good reason, bad reason, or no reason
at all.” (citing Andrews v. Louisville & Nashville R. Co ., 406 U.S.
320, 324 (May 1972))). Employment at-will is the law in California. Guz v.
Bechtel Nat’l Inc. , 24 Cal. 4th 317, 335 (Oct. 2000); Cittadino v.
BrandSafway Services, LLC , 2023 WL 3440407 (E.D. Cal May 2023) (“ Under California law, there is a strong statutory
presumption of ‘at will’ employment.”). There is no doubt that absent a claim
of discrimination or other legal impediments, the employer could refuse to
re-employ the worker.

In this case, the issue is whether a reinstated worker
has a right to return to reinstatement if the attempt to return is after a jail
term for theft. Does a reinstated worker
have more rights than a regular employee? Does the Secretary’s presentation
months earlier of a non-frivolous claim protect a complainant from the ordinary
prospect of discipline for post-reinstatement misconduct warranting discharge
or after-acquired evidence of misconduct warranting discipline? Is a
reinstated complainant legally entitled to engage in crimes or other unsafe or
dangerous actions and retain or regain reinstatement with no questions asked by
his employer?

        A diligent review does not disclose any

dispensation in the Mine Act for crimes committed by reinstated employees.
Reinstated employees should and must follow the lawful requirements imposed
upon all workers. One does not suppose that even the majority would support
continued reinstated employment if the reinstated complainant stopped coming to
work or committed safety violations in the workplace. It would not matter
whether such conduct is a “change of circumstances” or simply “misconduct.” 7
The availability of discipline would be the same.

Unfortunately, the majority decision
fails to fulfill the most fundamental requirements of appellate adjudication—a
fair representation of the appellant’s argument and presentation of a
principled legal basis for the appellate decision.

The majority bases its decision
regarding tolling upon a misrepresentation of Grimes’s position and the issue
in the case. The majority says Grimes seeks to extend tolling to “a situation where the operator no longer wishes to
offer employment to a miner. Specifically, Grimes Rock argues that tolling is
justified because it no longer desires to employ Saldivar due to his periods of
incarceration and the criminal allegations against him.” Slip op. at 5.

The assertion that Grimes argues that it simply no
longer wished to employ Saldivar is wrong – a makeweight for an erroneous
decision. Grimes bases its argument upon Commission case law that a “change of
circumstances” may warrant tolling. Indeed, elsewhere, in its opinion, the
majority expressly notes that a “change of circumstances” is a reason for
tolling. Slip op. at 4.

Grimes argues that criminal misconduct by a
complainant after temporary reinstatement is a “changed circumstance” that
warrants tolling the employment of the miscreant complainant. This argument
claims that reinstatement does not make a complainant immune from the
consequences of criminal misconduct after reinstatement. Grimes does not
assert that temporary reinstatement may be tolled based upon a “wish” but
rather on the confessed criminal misconduct of the complainant after
reinstatement.

Grimes correctly contends that just as an employer may
terminate the position of a regular employee or a permanently reinstated
employee for criminal misconduct, temporary reinstatement does not create a
haven from the results of criminal mischief that occurs after the temporary
reinstatement. Discipline may occur when a reinstated employee engages in
post-reinstatement misconduct warranting discipline.

This same logic applies to Saldivar’s time in jail
when he would not have been able to work. An employee would not expect to
maintain employment after being absent due to a jail sentence. Moreover, neither
the majority nor the Secretary dares go as far as to assert that Saldivar
should have received temporary reinstatement while in jail. They both say that
the Mine Act demands an operator rehire an individual after a stint of
unavailability to work due to the individual’s intentional misconduct.

        The majority doubles down on its

misinterpretation of Grimes’s argument by finding that Grimes’s claim that an
operator may discipline a temporarily reinstated complainant who engages in
post-reinstatement criminal misconduct would mean that in every instance, an
operator could discharge any temporarily reinstated worker, regardless of the occurrence
of misconduct. Slip op. at 5. That finding drawn from its misstatement of
Grimes’s argument is facially incorrect—another makeweight for error.

The fundamental issue is whether misconduct by a
temporarily reinstated complainant may constitute a circumstance permitting
discipline. The specific misconduct in this case is theft and failure to
appear. Here, a temporarily reinstated complainant committed crimes after
reinstatement for which an operator normally could, and almost certainly would,
discipline a permanently reinstated worker or regular employee. It is
senseless to find that the operator must wait for perhaps many months for a
decision on the merits of the discrimination claim before acting on the new
misconduct. 8 In this case, the gap between
misconduct and a final decision was eight months. In another currently pending
case, the gap between reinstatement and a finding on the merits was 17 months,
and the case has been pending upon review for nearly a year. Sec’y on
behalf of Hargis v. Vulcan Constr. Materials, LLC , SE 2021-0163,
2022-001, 2022-013.

        As

stressed above, Grimes’ argument and the undisputed facts of Saldivar’s crimes
present a case of first impression regarding the consequences of
post-reinstatement misconduct. Saldivar’s specific acts of post-reinstatement
misconduct were theft and failure to appear, both of which resulted in many
weeks of incarceration. The case raises an important legal question of the
effect of post-reinstatement misconduct. 9

        Nonetheless,

the majority states it is not ruling on this seminal question and issues
no principled guidance regarding tolling for post-reinstatement misconduct.
The majority proclaims its lack of principled reasoning: “We take no position
on whether our narrow tolling doctrine could be extended to other fact patterns
not raised by this case.” Slip op. at 6 n.7.

The majority does not explain why a reinstated
complainant may commit crimes or other acts warranting discipline without any
disciplinary consequence. The majority does not base its decision on any legal
principle or reasoning. By doing so, in derogating proper appellate
adjudication, the majority fails to provide any principled legal basis for its
decision or guidance to ALJs. It simply says, “no discipline” in this case.

By not taking any position on the
possibility of discipline for misconduct, the majority decision is simply an
arbitrary and unreasoned refusal to permit any adverse consequences to flow
from Saldivar’s criminal conduct. 10 Because this decision is limited to
Saldivar and Saldivar alone, readers and ALJs may draw no legal principle from
the majority decision. It is a decision without any underlying principle.

        Moreover, the opinion does

not appear to be a “majority” decision. In footnote 5, the opinion states that
Commissioner Rajkovich, perhaps writing only for himself, would find it
reasonable to consider changes in a miner’s circumstances on a case-by-case
basis. Apparently or possibly, unlike the Chair and Commissioner Baker, he
recognizes a right to impose discipline for misconduct.

The decision states that Commissioner
Rajkovich fully joins the entire opinion. However, it does not state whether
Chair Jordan and Commissioner Baker agree with Commissioner Rajkovich’s
opinion. It appears Chair Jordan and Commissioner Baker neither deny nor
affirm that post-reinstatement misconduct can warrant tolling. They “take no
position on it.” Slip op. at 6 n.7. However, Commissioner Rajkovich finds
that the tolling doctrine extends to discipline for misconduct. Do Chair
Jordan and Commissioner Baker join Commissioner Rajkovich? 11 The
Commission leaves the public and ALJs with a unanimous decision but without a
majority decision on whether an employer may terminate a reinstated employee
for crimes of theft and failure to appear. The majority opinion is a refusal
to explain its joint decision and an “add-on” opinion by Commissioner Rajkovich
about which Chair Jordan and Commissioner Baker express no opinion.

The result is a tottering legal standard
that cannot stand on its own weight. Worse yet, these flaws are by design.
The majority appears to want to craft an amorphous standard for tolling that
allows for ad hoc review whereby the result can be bent to suit the desires of
the Commission without regard for any underpinning legal rule. How can the
regulated community, the Secretary, or Commission ALJs know whether temporary
reinstatement can be tolled in a particular situation? One can only guess.
Without a principled finding, they will find no help in the majority’s
decision.

        Finally, as discussed further below, the majority’s

finding that Grimes was not entitled to a hearing is contrary to due process
and recent Commission precedent. In Secretary
of Labor on behalf of Torres v. W.G. Yates & Sons Construction Company , the Commission
unanimously found that the Secretary was entitled to a hearing on tolling at
which she could present evidence concerning the tolling of reinstatement. 2023 WL 5170092 ( July 2023). The Commission required an appropriate hearing to provide
“ the parties with the opportunity to present
evidence on tolling outside of the initial temporary reinstatement hearing.” Id .
at 4 n.4. 12 Obviously, it is wrong for the
Commission to accord the Secretary greater rights to defend against tolling
than operators have in asserting tolling. Such inconsistent decisions may
raise questions regarding the impartiality of Commission decisions.

        By reflexively neutering the right of an

operator in a position such as Grimes to discipline a temporarily reinstated
worker for misconduct after initial reinstatement, the majority effectively opts
for the immunization of reinstated workers from redress for misconduct. Such a
decision is not acceptable.

2.
Indisputable Evidence
Demonstrates That Saldivar Told Material Lies in Applying for Employment with
Grimes.

Documentary evidence submitted by Grimes demonstrates
that Saldivar’s employment application asked if he had been convicted of or
pled guilty to a crime. Saldivar replied that he had been convicted of
“possession of a loaded firearm.” Grimes hired Saldivar despite such a
confessed conviction. Court records found and submitted after reinstatement
disclosed that Saldivar lied on the application. He had been convicted of
several felonious crimes far more severe than possessing a firearm. Saldivar’s
lie on his application meets an expressly written condition for discharge.

Saldivar had pled guilty or admitted to multiple
felonies: (1) carrying a loaded firearm in a vehicle, (2) child endangerment
(two counts), (3) possession of an assault weapon, (4) committing a crime while
on bail, (5) the offer for sale/transfer/possession of a short-barreled rifle
or shotgun, and (6) possession of a controlled substance while in possession of
a firearm. People v. Saldivar , Case No. 2016002309 Superior Court of
California, County of Ventura.

The Commission permits post-temporary
reinstatement hearings on whether changed circumstances warrant tolling. Sec’y
on behalf of Ratliff v. Cobra Nat. Res., LLC , 35 FMSHRC 394 (Feb. 2013). It is insensible to read
the Mine Act to permit tolling on changed circumstances through the closure of
a mine or layoffs but not to permit such hearings when the operator discovers
dispositive evidence after the initial hearing of new and different gross
misconduct by the complainant.

        An

operator may not attempt to relitigate the temporary reinstatement hearing by
asserting new evidence to show the miner did not engage in the protected
activity claimed at the initial hearing or that the operator’s original reason
for terminating the miner was not motivated by protected activity. 13
However, in this case, the after-acquired evidence does not relate to an
alleged protected activity or the motivation for the initial discipline. It is
free-standing, newly acquired evidence for which Grimes may disqualify Saldivar
from resumed employment. 14

          Courts have recognized the application of after-acquired

evidence to a variety of statutes. Russell
v. Microdyne Corp., 65 F.3d 1229,
1240 (4 th Cir.
1995) ; Mardell v. Harleysville Life Ins. Co., 65 F.3d 1072, 1073-74 (3 rd Cir. 1995) ; Wallace v. Dunn Constr. Co. , 62 F.3d 375, 378
(11th Cir. 1995); Wehr v. Ryan’s
Family Steak Houses, Inc ., 49 F.3d
1150, 1153 (6 th Cir. 1995) ; Manard v. Fort Howard Corp ., 47 F.3d 1067, 1067 (10 th Cir. 1995) .
See also LA Film School, LLC & Its Branch, La Recording Sch., LLC &
California Fed’n of Teachers & Brandii Grace , 358 NLRB 130, 141-42
(Mar. 2012), John Cuneo , 298 NLRB 856 (June 1990); Marshall Durbin Poultry
Co. , 310 NLRB 68, 70 (Jan. 1993), aff’d in relevant part , 39 F.3d
1312 (5th Cir. 1994) (NLRA); Crapp v. City of Miami Beach , 242 F.3d
1017, 1021 (11th Cir. 2001) (Title VII); Miller v. AT&T Corp. , 250
F.3d 820, 837 (4th Cir. 2001) (Family and Medical Leave Act); Wallace v.
Dunn Constr. Co. , 62 F.3d 374, 378 (11th Cir. 1995) (Title VII and the
Equal Pay Act).

        ALJ Lewis applied the

after-acquired evidence principle in Sec’y of Labor on behalf of McKinsey v.
Pretty Good Sand Co., Inc , 36 FMSHRC 2843, 2870 (Nov. 2014).
Although the operator failed to mount an effective affirmative defense, the ALJ
found that an independent ground existed for dismissal. Prior threats made by
the miner were of such a nature as to render the complainant unfit for
employment. Therefore, the ALJ limited backpay to the date the operator
learned of the threats. 15 Id . The critical point is
that the complainant did not have any right to damages or, in this case, to
reinstatement for a period after new evidence demonstrated that the operator
would have discharged him legitimately for proscribed conduct . As the Supreme Court said in McKennon ,
waiting months for an inevitable termination of an undeserved benefit is
inequitable and unfair. That is especially true when, as here, the operator
may not recapture the undeserved payments. 16

III.

Grimes
was entitled to BE Heard on its motions to toll.

        Due

process requires a hearing at a meaningful time and in a meaningful manner. Mathews
v. Eldridge, 424 U.S. 319 (1976). Most often, litigants think of a hearing
as an appearance before a tribunal during which witnesses testify and introduce
evidence. However, at its most fundamental level, Mathews means a right
to be “heard” – a right for an impartial tribunal to listen to a party’s
arguments and reach a reasoned and impartial decision.

        In this case, the ALJ did not merely fail

to hold an evidentiary hearing; the ALJ struck the entire “fact” section of
Grimes’ argument from the record and further struck from the record Grimes’
argument based on those facts. She ordered:

It is ORDERED
that Section III [the facts section] of Respondent’s Motion to Toll, as
well as any other portion of the motion or other document filed that recites or
relies upon those “facts,” be STRIKEN from the record.

Order at 4 (Jan. 7, 2022). Thus, the ALJ did not even
consider Grimes’ argument that forms of post-reinstatement misconduct, such as
theft, may warrant tolling. The ALJ found that only a lack of work for the
reinstated individual warrants tolling. She did not listen to – that is, hear
Grimes’ position.

        If Chair Jordan and Commissioner Baker

mean to imply that only the absence of available work can cause tolling so that
crimes, unsafe acts, threats of violence, refusal to perform work, and other
such actions do not permit tolling, then the ALJ did not need to hear Grimes’
argument because no crimes or safety violations could warrant tolling. As seen
above, however, such a ruling would be repugnant to the purposes of the Mine
Act and employment law generally in the face of after-acquired evidence of
misconduct and post-reinstatement misconduct.

        Crimes by an employee constitute a

legitimate reason for discharge unless a claimant proves discrimination.
Moreover, even if, as Commissioner Rajkovich would require, a pre-existing
“policy” was necessary to discharge an employee for criminality, how could
Grimes have “proved” that fact without an adversarial, evidentiary hearing? It
did “prove” its policy to discharge lying job applicants. Indeed, as seen
above, the Commission has held that the Secretary is entitled to a hearing. Cobra
Natural Res., 35 FMSHRC at 397. Not only was Grimes not given a
chance to provide such proof, but as set forth above, the ALJ refused even to
hear the argument or permit the attachment of evidence to its motion. It is
impossible to discern how Grimes failed to “prove” its position when the ALJ
neither listened to Grimes’ position nor permitted the admission of any
evidence regarding its position to the record.

Finally, we need only point to W.G. Yates & Sons, supra , to show that the Commission has unanimously recognized
entitlement to a hearing in tolling cases. 2023 WL 5170092 at 4 n.4. If the
Secretary must have a legal right to challenge tolling based upon undisputed
facts, the operator must have a right to present facts, even though undisputed,
warranting tolling.

        The majority does not have principled

grounds for finding Grimes was not entitled to even the possibility of tolling
Saldivar’s reinstatement. They cannot explain why. They do not permit any disruption
in the reinstatement of a confessed criminal.

        In

Secretary on behalf of Robert
Gatlin v. KenAmerican Resources, Inc. 31
FMSHRC 1050, 1054 (Oct. 2009), the Commission found that “the Judge abused her
discretion when she determined that a temporary reinstatement order requires a
miner to be employed under any circumstance, regardless of changes that occur
at the mine after issuance of the temporary reinstatement order.” The Commission
violates its own well-stated principle without hearing Grimes’ argument.

IV.

THE MOTION TO ENFORCE
WAS IMPROPERLY GRANTED.

A. Facts Related to the Motion to Enforce

        On

May 18, 2021, the ALJ issued an Order requiring Grimes to reinstate Saldivar
temporarily. After that, the parties negotiated a “settlement agreement”
providing economic reinstatement for Saldivar instead of actual temporary
reinstatement. On May 27, 2021, the Secretary and Grimes filed a “Settlement
Agreement and Joint Motion for Temporary Economic Reinstatement.” 17
In the attached proposed Decision Approving Settlement, the parties mutually
agreed upon a settlement that stated:

        Respondent shall economically reinstate

Mr. Saldivar to his position as a miner starting May 19, 2021, effective as of
the entry of this Decision and Order. Respondent shall pay the difference
between Mr. Saldivar’s earnings at his present place of employment Wayne J.
Sand and Gravel and Grimes Rock Inc. based on the average amount of hours worked
at each place of employment at his regular rate of pay for the first forty
hours and at the overtime rate for any hours over forty. Based on these
calculations, Respondent shall pay $2,136.78 per pay period (bi-weekly, every 2
weeks) subject to normal deductions. Mr. Saldivar will not report for duty
with Grimes Rock Inc. during the temporary economic reinstatement period.

        On May 28, 2021, the ALJ entered an “Order Approving

Settlement Order of Temporary Economic Reinstatement.” The Order stated,

I accept the representations and modifications of the
Secretary as set forth in the motion. I have considered the documentation
submitted, find that the terms are reasonable, and conclude that the proposed
settlement is appropriate under the Mine Act. The joint motion for temporary
economic reinstatement is hereby GRANTED . The Respondent is ORDERED to
pay Mr. Saldivar $2,134.78 per pay period (every two weeks), subject to normal
deductions, and to otherwise comply with the terms of the settlement agreement.

Order at 2 (May 2021).

The Secretary and Grimes submitted a proposed economic
reinstatement Order to the ALJ under which payments would cease if Saldivar
obtained employment at an equal or higher pay rate. However, the settlement
agreement between the parties did not contain such a provision. The ALJ’s
Order accepted the terms of the settlement agreement and did not take any note
of or provide for that condition in the parties’ Proposed Decision. Thus, the
ALJ’s Order followed the terms of the settlement agreement rather than the
proposed order.

        After Saldivar’s release from

prison in November 2021, understandably, Saldivar lost his then-current
employment . Grimes continued to obey the settlement agreement and Order
to make payments of 2,134.78 per pay period to Saldivar. The Secretary did not
seek to amend the Economic Temporary Reinstatement Order entered at Grimes’ and
the Secretary’s mutual request. Instead, months after Saldivar lost his
active employment, the Secretary filed a “motion to enforce” in which the
Secretary argued that, although Grimes had been paying the amount explicitly
required by the ALJ’s Order, that Order “implicitly” required additional
payments from Grimes. 18

        The ALJ found no discrimination; she granted the motion to

enforce on the same day. Subsequently, Grimes filed a Petition for
Discretionary Review with the Commission, challenging the ALJ’s decision on the
motion to enforce. The Commission granted the Petition. However, the
Secretary did not wait for the Commission to act on Grimes’ Petition.

        On August 15, 2022, the Secretary issued a section 104(a)

citation to Grimes for failing to make the required payments, violating the
Judge’s Order to enforce. 30 U.S.C. § 814(a). The suddenly aroused Secretary
waited only two days. On August 17, 2022, MSHA issued another 104(a) citation
against Grimes. Subsequently, on August 22, 2022, MSHA issued a 104(b) Order.
At that time, MSHA informed Grimes that it faced penalties of $10,000 a day
and/or closure of the mine. MSHA, having applied the heavy hand of government
coercion from which there could be no redress, Grimes capitulated and paid the
sum required by the decision on enforcement. 19

B.
Discussion

        The majority decision does not cite any case for accepting

the Secretary’s argument that a clear, precise, and explicit settlement
agreement between the parties implemented by an ALJ Order contains implicit or
unwritten obligations. Moreover, Commission precedent demonstrates that any
such implicit agreement would only flow one way. Sec’y
of Labor v. North Fork Coal Corp .,
33 FMSHRC 589, 594 (Mar. 2011) . There, the
Commission enforced the wording of the settlement agreement and did not find
any implicit agreement that the settlement should be enforced only to make the
complainant whole. “ Unlike back pay awards,
Commission judges do not decide the terms of economic reinstatement
agreements. The agreement which formed the basis of the judge’s order was
arrived at after negotiations between the parties.” Id . at 593.

        The Commission refused an

additional offset for the employer. Id . at 595. In this case, the
Commission finds it would not enforce the negotiated agreement and subsequent
order embodying the agreement. 20

        Here, the Commission holds that bitter medicine for the

operator is a sweet relief for the complainant. It accords no weight to the
fact that an explicit settlement with potential benefits for both sides was
negotiated between the parties and then embodied in an “Order” by the Judge. The
agreement of the parties and the complementary Order by the ALJ are irrelevant
to the majority’s decision. Again, the Opinion does not cite any authority for
changing an explicit agreement of the parties based upon a finding of what the
parties must have implicitly decided. The Opinion finds that the Order did not
need to be modified to require a change of terms. Under
the Opinion’s reasoning, a complainant could negotiate an agreement with an
offset to avoid returning to the job. Then, immediately after obtaining the
Judge’s Order, the employee could quit the offsetting job and be entitled to
full pay from the operator.

        The Mine Act neither recognizes nor endorses economic

reinstatement instead of actual reinstatement. Economic reinstatement is a
non-statutory procedure through which the Commission permits the parties to
substitute a private agreement for the prescribed statutory right to actual
reinstatement. Both had competent counsel. However, that private, negotiated
agreement becomes an enforceable Order by dint of the ALJ’s Order. Thus, a
complainant does not need to go to state court to enforce the agreement between
the parties.

        Because such agreements are non-statutory, the ALJ does not

help negotiate a mutually acceptable agreement. The Mine Act does not
authorize Commission Judges to substitute economic reinstatement for actual
reinstatement. For that reason, such agreements, as in this case, are often
styled as a “settlement” of an Order to Temporarily Reinstate.

The Commission has held:

The
obligation to comply with the terms of that order as written, with no offset,
will continue unless and until the parties negotiate a new agreement and it is
entered as a superceding [sic] order by the judge, or either party invokes the
judge’s continuing jurisdiction and the judge modifies or rescinds the existing
order. In the event a motion is submitted to modify or rescind the previously
entered consent order, the judge is required to examine all the relevant
circumstances, in accordance with section 105(c) of the Mine Act, and not just
whether the miner or operator still consents to it.

North Fork , 33 FMSHRC at 595.

        In short, the Commission endorses the loss of

Grimes’s position on two critical matters without a hearing or any motion
before the Commission to modify an explicit Order based upon mutual agreement
of the parties. This decision is a profound setback for due process before the
Commission.

V.

THE SECRETARY’S MOTION FOR
CONSEQUENTIAL DAMAGES IS

UNTIMELY AND BEYOND THE COMMISSION’S
JURISDICTION.

A.
Relevant Facts

        The Mine Act grants the Commission specific

jurisdiction. The Commission does not have jurisdiction over a motion filed
directly with it over unlitigated claims. Further, the Secretary’s attempt to
obtain consequential damages from the Commission is untimely. Finally, the
Secretary has not even attempted to show good cause or any justification for
seeking extraordinary relief through a motion to file a new claim directly
before the Commission. The Opinion does not even consider the issues.

        Upon filing the complaint on behalf of Saldivar, the

Secretary became his legal representative. Immediately, the Secretary
negotiated and submitted a written settlement agreement on Saldivar’s behalf
calling for Grimes to pay Saldivar a specific dollar amount. The ALJ
subsequently entered an Order confirming the requirement for Grimes to pay
Saldivar $2,134.78 per pay period. As discussed above, the Secretary asserts
Grimes should have known the agreement and subsequent ALJ Order did not mean
what they said because the law imposed an obligation upon Grimes to pay more if
Saldivar lost his job regardless of a binding Order agreed upon by the parties
with the assistance of counsel.

        When Saldivar left jail in November 2021, Grimes continued to

comply with its mutually agreed upon settlement and ALJ’s Order’s explicit
terms—a position logical to all but the Secretary and Commission. Moreover,
despite being Saldivar’s representative, the Secretary took no action.

        The Secretary waited five months and then filed a motion to

change the settlement agreement and the Order by claiming an implied
obligation. Given that the Secretary’s Solicitor served as counsel for
Saldivar, if the Secretary thought Saldivar was entitled to larger payments,
she immediately should have filed a motion to amend the ALJ’s Order. Instead,
the Solicitor sat on her hands, allowing his damages to accrue. Only now,
after completing the case before the ALJ, claims Grimes should pay monetary
damages.

        The Secretary now asserts any harm is Grimes’ fault because

it should have known the Order did not mean what it said but carried an
implicit obligation to increase payments. In fact, of course, if Saldivar
suffered consequential harm due to the Secretary’s inaction, it is due to the
Secretary’s failure as his representative. 21

B.
The Commission does not have jurisdiction to hear the Secretary’s
Untimely Motion.

The Mine Act grants the Commission specific
jurisdiction. Section 113(d)(2)(A)(i) states:

Any person adversely affected or aggrieved by a
decision of an administrative law judge, may file and serve a petition for
discretionary review by the Commission of such decision within 30 days after
the issuance of such decision. Review by the Commission shall not be a matter
of right but of the sound discretion of the Commission.

30 U.S.C. § 823(d)(2)(A)(i).

Section 113(d)(2)(A)(ii) provides:

Petitions
for discretionary review shall be filed only upon one or more of the following
grounds:

(I) A finding
or conclusion of material fact is not supported by substantial evidence.

(II) A necessary legal conclusion is erroneous.

(III) The decision is contrary to law or to the duly promulgated rules or
decisions of the Commission.

(IV) A substantial question of law, policy or discretion is involved.

(V) A prejudicial error of procedure was committed.

30 U.S.C.
§ 823(d)(2)(A)(ii).

The Commission is an
institution of appellate review. Ignoring the jurisdictional prerequisite for
Commission jurisdiction, the Secretary does not seek to obtain a review of an
ALJ decision but instead asserts a new claim not raised before the ALJ.
Indeed, the Secretary does not cite any of the jurisdictional prerequisites of
the Mine Act for Commission jurisdiction. The Secretary did not file a timely
Petition for Discretionary Review because the ALJ had given Saldivar everything
the Secretary sought in granting the Motion to Enforce. The Secretary does not
press an assignment of error by the ALJ. She filed a new claim against Grimes
directly with the Commission.

        Having failed to seek a modification of the Judge’s

temporary reinstatement order and waiting six months to take any enforcement
action, the Secretary failed to make any claim for consequential damages.
There is no decision of fact or law by the ALJ for the Commission to review.

        Finally, the Secretary does not attempt to provide any

excuse, let alone good cause, for the failure to present any issue of other
damages to the ALJ. Saldivar forfeited any claim for damages not pressed
before the ALJ.

        In summary, the Secretary failed to file a Petition for

Discretionary Review as required by the Mine Act, failed to identify any of the
jurisdictional grounds in section 113(d)(2)(A)(ii), failed to identify any assignment
of error, failed to present the issue to the ALJ, and failed to provide any
reasonable cause for such failures. Sometimes, parties must live with the
action or inaction of their counsel. This case is one of those times.

VI.

CONCLUSION

          In summary, the majority misrepresents the issues

presented. It presents a willful and unexplained refusal to accept that
Saldivar’s crimes may have consequences. It does not establish any principled
guidance for ALJs to apply in future cases. No legal principle may be gleaned
from the majority’s decision, especially considering Commissioner Rajkovich’s
separate comment. The majority does not
rule whether post-reinstatement crimes or theft may warrant discipline or
tolling. It finds only, and without explanation,
that Saldivar’s crimes could not toll temporary reinstatement in this case.

        I respectfully dissent.

/s/ William I. Althen

William I. Althen, Commissioner

Distribution:

Peter
Goldenring, Esq.

Pachowicz
& Goldenring PLC

6050
Seahawk Street

Ventura,
CA 93003

[email protected]

Mark
R. Pachowicz, Esq.

Pachowicz
& Goldenring PLC

6050
Seahawk Street

Ventura,
CA 93003

[email protected]

Alvaro
Saldivar

1241
Lookout Drive

Oxnard,
CA 93035

[email protected]

Susannah M. Maltz, Esq.

U.S.
Department of Labor

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Karla Malagon, Esq.

U.S.
Department of Labor

Office
of the Solicitor

350 S. Figueroa Street, Suite 370

Los Angeles, CA 90071

[email protected]

Jessica M. Flores, Esq.

U.S.
Department of Labor

Office
of the Solicitor

350
S. Figueroa Street, Suite 370

Los
Angeles, CA 90071

[email protected]

Bruce
L. Brown, Esq.

U.S.
Department of Labor

Office
of the Solicitor

350
S. Figueroa Street, Suite 370

Los Angeles, CA 90071

[email protected]

Melanie
Garris

U.S.
Department of Labor

Office
of Civil Penalty Compliance

Mine
Safety and Health Administration

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety & Health Review Commission

Office
of the Chief Administrative Law Judge

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]

[1] Due to a clerical error, this Decision is being
amended pursuant to 29 C.F.R. § 2700.79.

[2] 30
U.S.C. § 815(c)(2) provides in pertinent part:

Any miner . . . who believes that he has been
discharged, interfered with, or otherwise discriminated against by any person
in violation of this subsection may, within 60 days after such violation
occurs, file a complaint with the Secretary alleging such discrimination. Upon
receipt of such complaint, the Secretary shall forward a copy of the complaint
to the respondent and shall cause such investigation to be made as he deems
appropriate. Such investigation shall commence within 15 days of the
Secretary’s receipt of the complaint, and if the Secretary finds that such
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.

[3] On April 7, 2022, Grimes Rock filed
an “update” with the Commission informing it of Saldivar’s second incarceration.
That same day, it also filed with the Judge a renewed “Motion to Toll and
Terminate the Economic Temporary Reinstatement Order,” putting forth the same
new information offered in its update to the Commission and requesting
permanent termination of temporary economic reinstatement. On April 19, the
Judge granted the operator’s second request to toll the temporary economic
reinstatement from the date of her order until Saldivar was once again
available for work. Order Granting Mot. to Toll at 3. The Judge denied the
operator’s request for reimbursement of funds already paid to the Complainant. Id .
at 4. The Judge did not address the operator’s request to permanently terminate
the economic reinstatement order.

[4] In addition to Citation No. 9619114 (the 104(a)
Citation issued on August 17, 2022) and Order No. 9619115 (the 104(b) Order
issued on August 22, 2022), a second citation, No. 9619116, was issued on
August 22, 2022, alleging that Grimes Rock continued to conduct work at the
mine site despite its non-compliance with Order No. 9619115. See WEST
2022-0333, WEST 2022-0334, and WEST 2022-0335.

[5] Grimes Rock also argues that temporary reinstatement
should be dissolved because it can show that Saldivar lied about his safety
complaints and elements of his criminal record. G.R. PDR 1 at 12, 15. Consideration
of such evidence is appropriate at the discrimination hearing on the merits,
not during the temporary reinstatement phase of the proceeding.

[6] Commissioner Rajkovich joins the majority regarding
all its substantive holdings. In addition, he also notes that the Secretary in
this case accepted Saldivar’s physical unavailability for work (during his
incarceration) as sufficient justification for tolling. He would find it
reasonable to consider changes in a miner’s circumstances on a case-by-case
basis. However, the operator must still prove unavailability, i.e., that
because of those changed circumstances the miner could not work at the mine .
Here, Grimes Rock offered no indication of a company policy or history of
barring miners with criminal records from employment. Oral Arg. Tr. at 8. Nothing
the operator has presented suggests that work was unavailable to Saldivar
because he had previously been incarcerated.

[7] Our dissenting colleague argues that at-will
employment principles should apply to miners who are employed on a temporary
reinstatement. Slip op. at 20-21. As the dissent notes, under at-will
employment principles an employee not covered by an employment contract may be
terminated for a good reason, bad reason, or no reason at all. Engquist v.
Oregon Dept. of Agr. , 553 U.S. 591, 606 (2008). Here, however, we are
dealing with the Mine Act, in which Congress enacted specific statutory
requirements to govern temporary reinstatement. The Commission’s role is to
interpret the Mine Act so as to “give practical effect to Congress’s intent,
rather than frustrate it.” U.S. v. Heckenliable , 446 F.3d 1048, 1051
(10th Cir. 2006) citing United States v. Am. Trucking Assn’s , 310 U.S.
534, 542 (1940). As noted above, Congress created temporary reinstatement to
ensure miners would receive relief pending a decision on the merits of their
claims. 30 U.S.C. § 815(c)(2). If the dissent’s view is correct, temporary
reinstatement provides no protection to miners whatsoever, they could be fired
for “no reason.” Allowing operators to discharge miners on temporary
reinstatement for “no reason at all” would substantially undermine Congress’
intent to have employers bear a disproportionately greater share of the burden
of an erroneous decision in a temporary reinstatement proceeding. See, e.g.,
JWR , 920 F.2d at 748. We also note that Grimes Rock provided no evidence
that it generally discharged miners with criminal records, nor that it
maintained any policy to that effect.

[8] Our decision does not, as our dissenting colleague
suggests, provide absolute “immunity” from discipline for miners receiving
temporary reinstatement. Our ruling is not intended to provide a broad,
advisory statement regarding the scope of temporary reinstatement. As is
appropriate, we considered only the relevant facts in this particular case. See
Wade Sand & Gravel Co. , 37 FMSHRC 1874, 1877-78 (Sept. 2015) (holding
that the Commission, like Federal Courts, does not issue advisory opinions). Based
on those facts we determined that the tolling doctrine should not be extended
to include the instant circumstances. We take no position on whether our narrow
tolling doctrine could be extended to other fact patterns not raised by this
case. Further, we stress that the factual allegations raised by the operator
were relevant to, and were consider by the Judge in, the case on the merits,
where the operator prevailed.

In addition, our dissenting colleague implies that this footnote, and
other sections of the majority decision, solely represent the views of Chair
Jordan and Commissioner Baker. Slip op. at 23. That is not accurate. This
footnote, and the other portions of this decision, are the joint opinion of the
majority unless otherwise expressly stated.

[9] In this case the parties agreed to economic
reinstatement. However, in the absence of such an agreement and pursuant to the
Mine Act, a miner ordinarily returns to his former position and the mine
operator receives the benefits of his labor .

[10] There
was evidence that Saldivar might have been less than forthcoming on his
employment application about the full extent of his criminal history. But there
is also evidence that the company may have chosen not to further investigate
after being placed on notice that Saldivar had a criminal past. Regardless,
this evidence would have required the Judge to weigh potentially conflicting
evidence and make credibility and value determinations, which are not
appropriate actions to take during the temporary reinstatement phase. Rockwell Mining, LLC , 43 FMSHRC at 165-66, 168.

[11] However, Grimes Rock knew at the time that it hired
Saldivar that he had some criminal history. Therefore, any hearing on the
after-acquired evidence regarding other unlawful activity would require the ALJ
to determine whether the operator’s claim that it sought to discharge Saldivar
solely because of his newly disclosed unlawful behavior was credible. Put
simply, the Judge would have to determine whether the operator sought to
discharge Saldivar because of his criminal behavior or if it was motivated (or
partially motivated) by his protected activity. That would require making
credibility determinations and resolving conflicts in evidence, which is not
appropriate at the temporary reinstatement stage.

[12] Our dissenting colleague cites to Secretary
on behalf of McKinsey v. Pretty Good Sand Co., Inc. , 36 FMSHRC 2843, 2870
(Nov. 2014) (ALJ) for the proposition that after-acquired evidence is relevant
in a temporary reinstatement proceeding. Slip op. at 26. However, we note that
that decision concerns a determination on the merits of a 105(c) case. As we
note elsewhere, after-acquired evidence may be relevant at that stage of the
proceeding. See infra at 9.

[13] The Commission recently issued Sec’y on behalf of
Collins v. Crimson Oak Grove Resources, LLC , 45 FMSHRC____, SE
2023-0235 (Oct. 11, 2023) in which we set forth the due process requirements
for temporary reinstatement proceedings. In that case we noted that a single, pre-deprivation
hearing in which the ALJ does not weigh disputed evidence has long been held as
“far exceeding” the Constitutional requirements of due process. Id . citing
Brock v. Roadway Exp. , 481 U.S. 252 (1987) and JWR , 920 F.2d 738
(11th Cir. 1990). In light of that holding, there is no basis for the assertion
that an operator is constitutionally entitled to additional hearings on motions
within the temporary reinstatement proceeding.

[14] During the pendency of this PDR, the Judge held the
merits hearing in the discrimination case on January 25-27, 2022 and issued her
decision on June 17, 2022. See Docket No. WEST 2021-265.

[15] Our dissenting colleague discusses, at length,
concerns regarding prolonged periods of temporary reinstatement during the
appeals process after a hearing on the merits in which an operator prevails. Slip
op. at 19-25. In the instant case, Grimes Rock prevailed on the merits case and
that decision was not appealed. 44 FMSHRC 473 (June 2022) (ALJ). Saldivar’s
temporary reinstatement has now ended. As a result, we do not believe that our
colleague’s concerns regarding lengthy appeals are implicated here.

[16] Whether the final termination date of temporary
reinstatement is properly determined by the 30-day language in section
105(c)(2), 30 U.S.C. § 815(c)(2), or by the 40-day language in section
113(d)(1), 30 U.S.C. § 823(d)(1), is currently under consideration before the
Commission in Jason Hargis v. Vulcan Construction Materials Incorporated ,
SE-2021-0163.

[17] This is not to suggest a miner could waive a
statutory entitlement through an economic temporary reinstatement agreement.

[18] The
Commission has previously rejected the argument “that the issue raised . . .
should be decided solely by reference to contract law.” North Fork , 33
FMSHRC at 592. We reasoned that we cannot ignore the Mine Act in determining
the construction, application, and effect of an economic reinstatement
agreement. Id .; s ee also R. Mullins v. Beth-Elkhorn Coal Corp. ,
9 FMSHRC 891, 899 (May 1987) (citations omitted) (reasoning that “we do not
decide cases in a manner which permits parties’ private agreements to overcome
. . . miners’ protected rights”).

[19] Our dissenting colleague would hold that the parties’
agreement to economically reinstate a miner would supersede the requirements of
the Mine Act. Slip op. at 28-31. In short, the dissent would allow the economic
reinstatement agreement to set the terms of the parties’ relationship during
the temporary reinstatement. For the reasons outlined in this section, we
disagree. However, we would also note that given this conclusion, the dissent
is not internally consistent. Specifically, the parties’ temporary economic
reinstatement agreement did not contain any provision that allowed Grimes to
terminate or discipline Saldivar. Further, it does not expressly create an
employment relationship; it creates an obligation for Grimes to pay Saldivar
regardless of work. If the parties’ agreement alone sets the terms for the
parties’ relationship, it is unclear how our dissenting colleague reached his
other conclusions in this case: that is, that Saldivar was an employee of
Grimes and Grimes was entitled to discharge him for alleged misconduct.

1 The
parties’ agreement explicitly provided,

Respondent agrees to
pay Mr. Saldivar the
difference in earnings at his present place of employment Wayne J. Sand and Gravel Inc . and Grimes Rock Inc . . . . Based on these calculations, Grimes Rock Inc. will pay Mr . Saldivar $2 , 136 . 78 on a bi-weekly basis.

Sett. Agreement and J. Mot. for Temp.
Econ. Reinst. at 3 (May 27, 2021).

An ALJ does not have authority
to order temporary economic reinstatement. Sec’y on behalf of James
McGoughran, v. Lehigh Cement Co. , LLC, 42 FMSHRC 467, 469 (July 2020). (“A
Judge may not order economic reinstatement on his or her own initiative.”). Because
an ALJ may not order economic reinstatement on his or her own initiative, the
terms of the parties’ settlement govern the terms for economic reinstatement. It
is useful to repeat, therefore, that based upon mutual agreement of the
parties, the ALJ ordered Grimes to pay the specific amount of $2,134.78 per pay
period. If Saldivar had found work paying more than his other employer at the
time of the agreement, the Commission would not hear an argument by Grimes for
an “implicit” offset to keep Saldivar’s compensation the same as he was making
at Grimes. See Sec’y of Labor v. North Fork Coal Corp ., 33 FMSHRC 589,
594 (Mar. 2011).

2 My colleagues say,
“Grimes Rock knew at the time that it hired Saldivar that he had some criminal
history” (Slip op. at 8 n.10), thereby wholly ignoring the gross disparity
between the minimal statement on the application and Saldivar’s later
demonstrated criminal record. “Some criminal history” understates and minimizes
Saldivar’s crimes set forth above. More importantly, under their line of
reasoning, no crimes by Saldivar before or after reinstatement would
suffice to permit discharge through tolling.

3 See also CAL PENAL § 273a(a) (child endangerment); CA
HLTH & S § 11550(e)(1) (under the influence with firearm); CAL PENAL §
12022.1(b) (commission of felony on bail); CAL PENAL § 30605(a) (assault
weapon); CA HLTH & S § 11370.1 (possession of controlled substances with a
firearm); CAL PENAL § 33215 (sawed-off shotgun or rifle); CAL PENAL § 25850(a)
(loaded firearm in vehicle).

4 The Court considered
the possibility of an employer doing discovery into a discharged employee’s
background to obtain after-acquired evidence. However, such consideration did
not alter its decision. McKennon , 513 U.S. at 363.

5 The Commission has not defined “non-frivolous.”
The United States Court of Appeals for the Eleventh Circuit analogized the
“non-frivolous” standard to a reasonable cause to believe standard. It held
“there is virtually
no rational basis for distinguishing between the stringency of this standard
[non-frivolous] and the ‘reasonable cause to believe’ standard that was
implicitly upheld in Roadway Express.” Jim Walter Res., Inc. v. FMSHRC , 920 F.2d 738, 747
(11th Cir. 1990).

6
This does not mean that the Secretary was not entitled to a hearing to address
the issues. Indeed, the Commission very recently unanimously recognized the
reason for and right to a hearing in a tolling case. Sec’y of Labor on behalf of Torres v. W.G. Yates & Sons Constr.
Co. , 2023 WL 5170092 ( July 2023).

7 Nonetheless, it is
entirely accurate to refer to the commission of crimes, safety violations,
repeated absences, etc. as a “change of circumstances.” When a worker deviates
from the normal and routine duties, it is a change of circumstance.

8 The majority triples
down on its misstatement of Grimes argument by asserting that this dissent’s
mention of “at-will” principles means the dissent would construe the Mine Act
as providing “no protection” because reinstatement could be tolled “for no
reason at all.” Slip op. at 5 n.6. The issue before the Commission is whether
post-reinstatement misconduct may permit tolling of reinstatement. It is a
serious issue. The majority should such eschew obvious and trivial
misrepresentations based upon the unremarkable observation that an employer
ordinarily may discharge an employee who seeks to return to work after several
months in jail for theft.

9 It bears repeating
that the Supreme Court has cogently established a point regarding
after-acquired evidence that is equally applicable to post-reinstatement
misconduct—namely, that “[i] t would be both
inequitable and pointless to order the reinstatement of someone the employer
would have terminated, and will terminate, in any event and upon lawful
grounds.” McKennon , 513 U.S. at 361.

10 The majority incorrectly asserts
that the Administrative Law Judge considered Saldivar’s criminality in making a
final decision on the underlying discrimination claim. The ALJ did not even
take Saldivar’s criminality into account in considering the motion to toll let
alone the final decision on the merits.

11 Having recognized
the possible right of an employer to toll reinstatement for post-reinstatement
misconduct, Commissioner Rajkovich writes that Grimes did not positively
“prove” in its motion that it would discharge a worker for theft. Thus, he
asserts the novel proposition that the proponent of a motion must prove its
claim to a level of summary disposition on the face of the motion. Undisputed
evidence proved Saldivar’s lies and crimes—suitable reasons for discharge. The
Secretary had a right to challenge Grimes’s claim. Moreover, Commissioner
Rajkovich errs in saying Grimes’s “offered no indication of a company policy.” Slip
op. at 5 n.5. Grimes introduced its employment application warning applicants
that they could be fired for lying on the application. That is the proof,
however unnecessary at this stage, of Grimes’s policies. It should suffice. Moreover,
Commissioner Rajkovich suggestion would require an employer to have a
“one-size-fits-all” discipline program. That is not correct. An employer may
and should mete out discipline according to the offense and the employee’s
record. To illustrate, unless unlawful discrimination is the basis for
differing treatment, an employer may discharge one employee for misconduct and
retain a different employee who engages in the same misconduct. Job
performance, history with the employer, circumstances of the event, and many
other factors may result in different consequences for the two employees. Finally,
one may rightly suggest that not many handbooks explicitly say: “We will
discharge you for going to jail for theft.”

12 This puts to rest
the fallacious argument by the majority that all issues regarding reinstatement
must be resolved in the initial hearing.

13 Delays within the
Commission means that an operator may have to maintain a properly discharged
individual in its workforce or pay significant amounts to an undeserving
complainant for extended periods. Correctly expedited decisions by the
Commission would get miners back to deserved status or save operators the
problem of maintaining a discharged worker at its worksite or making tens of
thousands of dollars in unrecoverable payments to an undeserving individual.

14 It is undisputed
that Saldivar committed post-reinstatement crimes. If an operator would
lawfully fire the charged miner for those actions, the discrimination claim
cannot be won and is, therefore, frivolous. Sec’y of Labor on behalf of
Shaffer v. Marion Cty. Coal Co. , 40 FMSHRC 39, 47 (Feb. 2018).

15 The majority
asserts that Pretty Good Sand is not relevant because it was decided
after a hearing. Slip op. at 8 n.11. Of course, that is a convincing argument
for why the ALJ should have held a hearing in this case. The decision shows a
complainant is not entitled to continued pay or backpay past the point of
acquisition of the new evidence of misconduct. If “after-acquired” evidence
cannot be used before a final hearing, the principle becomes meaningless
because at that point the operator will have paid the complainant undeserved
monies but will not have any opportunity for recapture. The raison d’etre
of after-acquired evidence is that the complainant is not entitled to
compensation after acquisition of evidence justifying the termination.

16 For some reason, my
colleagues stray into an erroneous irrelevancy by writing that temporary
reinstatement is not a remedy for violation of the Mine Act. The Mine Act
prohibits discrimination, and discrimination is a violation of the Mine Act. Temporary
reinstatement is a remedy for a nonfrivolous assertion of a violation of the
Mine Act rather than a proven violation. Separately, my colleagues show
sympathy to Saldivar by deliberately downplaying the blatant lying on his
employment application. They write “Saldivar might have been less than
forthcoming on his employment application about the full extent of his criminal
history.” Slip op. at 7 n.9.

17 As the
representative of Saldivar, the Secretary negotiated the settlement agreement
with Grimes.

18 The Secretary
bases much of her argument on allegations related to California contract law
and particularly on a complicated and irrelevant California family court
decision between quarreling divorcees. Grimes continued to obey the ALJ’s Order
and parties’ mutual agreement. The Secretary failed for months to take the
appropriate action by filing a motion to modify the original Order. Any
economic injuries suffered by Saldivar between November and June are
attributable to the Secretary’s lassitude rather than to Grimes adherence to
the ALJ’s Order.

19 On August 17, 2022,
Grimes filed a motion to stay the ALJ’s enforcement decision. The Commission
meaninglessly denied the stay on August 30, 2022, days after Grimes had fallen
to government might.

20 In economic reinstatement,
the discharged employee agrees to forego actual reinstatement provided the
employee receives satisfactory economic reinstatement. Such agreements vary
because they are negotiated agreements in which each party seeks to obtain
benefits from avoiding actual reinstatement. We easily understand the benefits
each party seeks. The discharged employee gets money without any obligation to
work. The employer avoids bringing a discharged employee back into the
workforce. The parties may contemplate that the employee may get another job
thereby doubling his income or, conversely the employee may lose existing
alternative employment reducing total income. The strength of the of the
parties’ desires for a return to employment determines the content of an
economic reinstatement agreement. The Commission decision today turns this good
faith negotiation in which each party may make concessions into a secret “heads
I win, tails you lose” negotiation for the discharged employee.

21 The Secretary fails
to note that Saldivar spent at least 140 days in jail and, consequently, missed
at least ten pay periods of $2,136.78—that is, a total of $21,367.80. Plus, he
missed at least six pay periods from the other employer during the initial
incarceration at approximately $1,000 a pay period. Therefore, Saldivar’s own
criminal conduct caused him to lose three times as much income as the amount
“lost” by Grimes’ adherence to the ALJ’s Order.