By Ellen Smith
Temporary economic reinstatement of a miner in a discrimination case under §105(c) is appropriate only during an MSHA investigation, and can continue only if MSHA accepts the miner’s case after the investigation, according to a ruling by the 6th Circuit Court of Appeals.
The Aug. 14 ruling overturns a decision by the Federal Mine Safety and Health Review Commission that allowed miner Mark Gray to collect economic reinstatement from North Fork Coal while he individually pursued his discrimination case against the company after MSHA had determined that his discrimination complaint was without merit.
In a split decision in January 2011, FMSHRC had ruled that Gray’s temporary reinstatement, paid by North Fork Coal Co., was to continue until his individual complaint was resolved by a final order of the Commission. Commission Chairman Mary Lu Jordan and Commissioner Patrick Nakamura based this holding on the plain language of § 815(c) of the 1977 Mine Act. Commissioner Robert Cohen concurred, but found the language of § 815(c) to be ambiguous, requiring deference to the interpretation of the Secretary. Commissioners Michael Duffy and Michael Young dissented, asserting that the plain language of the Mine Act required the dissolution of temporary reinstatement when the Secretary decided not to pursue Gray’s complaint.
The case was one of first impression, and the court had to determine whether the Mine Act mandates that a miner’s temporary reinstatement may continue after the Secretary determines that the miner’s complaint lacks merit.
While the court did not find “plain meaning” in the statute, it did state that the Secretary of Labor was entitled to deference, especially in “applying her expertise in advocating for a particular interpretation of the Mine Act.” The court also agreed with the Secretary that even though she was not pursuing the case on behalf of the miner, she still has “a strong interest in ensuring that all provisions of the Act are interpreted correctly to protect miner safety. Because the Secretary herself is not pursuing an action on behalf of a miner does not mean she is not ‘charged with . . . administering’ the Mine Act.”
However, “In this case, we conclude that the position advanced by the Secretary is not persuasive. Indeed, her position is inconsistent with over 27 years of accepted practice under an unaltered statute. When all relevant factors are considered, we hold that the most reasonable interpretation of the Mine Act is that the order of temporary reinstatement dissolves when the Secretary determines that no violation has occurred,” the court said.
In addition to the 27-year policy, the 6th Circuit also noted legislation introduced by both chambers of Congress in 2011 that would have provided for temporary reinstatement during the pendency of the miner’s individual “action,” but the legislation was never enacted. “From the enactment of the Mine Act in 1977, until 2006, the Secretary accepted the Commission’s practice and did not challenge the requirement that temporary reinstatement cease upon her determination of no Mine Act violation … the statutory language and structure, legislative history, and other relevant factors demonstrate Congress’s judgment that once the Secretary determines that no violation of the Mine Act has occurred, the public interest in mandating continued reinstatement is substantially lessened. Accordingly, we hold that upon the Secretary’s determination that discrimination in violation of the Mine Act has not occurred, a miner is no longer entitled to temporary reinstatement.”
North Fork Coal Corp. v. Federal Mine Safety and Health Review Commission; Secretary of Labor; Mark
Gray; U.S. Court of Appeals for the 6th Circuit, No. 11-3398.