Former Miner Not Eligible for Reinstatement After Complaint

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By Lars-Eric Hedberg

Oct. 24 — A miner who filed a discrimination complaint against a company that purchased the mine he worked at, but didn’t hire him, is not entitled to temporary reinstatement, a federal appeals court ruled ( CalPortland Co. v. Fed. Mine Safety & Health Review Comm’n , 2016 BL 349638, D.C. Cir., No. 16-01094, 10/20/16 ).

Senior Circuit Judge David Sentelle, writing for the panel, concluded in an Oct. 20 opinion that under Section 105(c)(2) Federal Mine Safety and Health Act, 30 U.S.C § 815(c)(2), Jeffrey Pappas was not eligible for temporary reinstatement at the Oro Grande cement plant in San Bernardino County, Calif.

According to Section 105(c)(2), a miner or “applicant for employment” may file a discrimination complaint, and the the Federal Mine Safety and Health Review Commission, upon application of the Secretary, can order the reinstatement of the miner pending a ruling on the complaint.

In 2014, Pappas was working as a miner at the plant, which was owned by Martin Marietta Materials Inc., when he told management about potentially unsafe directions from a supervisor. After they failed to address them, he notified a Mine Safety and Health Administration inspector, who issued violations. Pappas was later fired that year, after which, he filed a discrimination complaint and, pursuant to a Federal Mine Safety and Health Review Commission settlement, the company reinstated him.

In June 2015, CalPortland Co. Inc., purchased the plant and three other facilities, but the agreement did not include Martin’s labor force. To staff the plant without shutting down the kiln, CalPortland sought and received hiring advice from Martin’s human resources manager, who eventually joined CalPortland. It extended offers to 115 out of 130 applicants but not to Pappas, who was given a severance package, according to the opinion.

Pappas filed his discrimination complaint in December 2015, and the Department of Labor filed an application for temporary reinstatement. An administrative law judge granted the application and the review commission affirmed ( Sec’y of Labor v. CalPortland Co., FMSHRC, No. WEST 2016-156-DM, 2/8/16).

The discrimination complaint is pending.

An Applicant, Not a Miner

Sentelle granted CalPortland’s petition for review and vacated the review commission’s decision and order.

He rejected the review commission and Secretary of Labor’s argument that the term “miner” is ambiguous—specifically that Pappas was “was both a ‘miner’ and an ‘applicant for employment’ at the Oro Grande cement plant.”

No language in the statute supports the argument that the reinstatement provision applies to a physical facility rather than an employer, he wrote.

“Applying section 105(c)(2) to the facts of this case, because he had “no prior work history” and “no prior relationship” with CalPortland, we conclude that Pappas was an applicant for employment for purposes of his discrimination complaint against CalPortland,” Sentelle wrote.

Brian P. Lundgren of Davis Grimm Payne & Marra, Seattle, argued for CalPortland.

Edward Waldman of the U.S. Department of Labor, Arlington, Va., argued for the Secretary of Labor and review commission.

To contact the reporter on this story: Lars-Eric Hedberg in Washington, D.C. at lhedberg@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The opinion of the U.S. Court of Appeals for the District of Columbia Circuit in CalPortland Co. v. Fed. Mine Safety & Health Review Comm’n is available at http://src.bna.com/jzV.

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