Employer Entitled To Hearing On Temporary Reinstatement

Author:Mr Michael Heenan
Profession:Ogletree, Deakins, Nash, Smoak & Stewart

Summary decision is not a substitute for a hearing in a temporary reinstatement case where the responding party requests a hearing. This was the holding of the Federal Mine Safety and Health Review Commission in Secretary of Labor (MSHA) on behalf of Reuben Shemwell v. Armstrong Coal Company Inc. and Armstrong Fabricators, Inc. (Docket KENT 2012-655-D, May 10, 2012).


A miner who complains to MSHA of being discriminatorily discharged as a result of engaging in protected safety activity is entitled to be immediately reinstated to employment pending resolution of his claim, provided it is not found to be frivolous upon preliminary investigation by MSHA. The Federal Mine Safety and Health Act mandates, that pending the outcome of the investigation:

[I]f the Secretary of Labor [MSHA] finds that such complaint was not frivolously brought, the Commission, on an expedited basis upon application of the Secretary, shall order immediate reinstatement of the miner pending final order on the complaint.

Upon the Secretary's application for temporary reinstatement, the operator is entitled to request a hearing. As noted by the Commission in the Armstrong case, if a hearing on an application for temporary reinstatement is requested, procedural rules state that "the hearing shall be held" within 10 calendar days of the request. The Commission has emphasized that this procedure establishes protections that meet the "fundamental requirement of due process." Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990). Among other things, the operator has a right to cross examine witnesses supporting the Application for Temporary Reinstatement.

The Armstrong Decision

The Commission found in Armstrong that it was error for the judge to ask the government to file a Motion for Summary Decision so he could summarily rule on reinstatement without holding a hearing. The Commission's ruling indicates that if a hearing is requested, it is indispensible.

On the basis of the Summary Decision Motion, the judge found evidence that Shemwell engaged in protected safety activity when he requested respirators to protect him from welding fumes. The judge then concluded that the coincidence in timing between Shemwell's protected activity and his discharge approximately five months later was sufficient under the "not frivolously brought" standard to provide a basis for a conclusion that the discharge was motivated in part by the protected activity. That in turn...

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