FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

            The Secretary states the “difficulties” “appear[ ] . . . calculated to embarrass and harass Mr. Pendly” and she asserts Highland and its agents “appear to be subjecting . . . [Mr. Pendley] to petty harassment.”Sec’s Br. 2. To remedy this, the Secretary wants an order enforcing the original order of temporary reinstatement and again directing Mr. Pendley’s “reinstatement in his prior or equivalent position”. Sec’s Mot. 2. The Secretary also wants the enforcement order to require “appropriate work assignments in line with the number of hours in a shift and comparable to assignments given to other miners in the same position.” Id. 2-3. The Secretary further wants the order to require Mr. Pendley “receive all benefits, in pay and otherwise, including seniority list status, and equipment that he normally would have been awarded or received had he not been discharged.” Sec’s Mot. 3. Additionally, the Secretary wants Highland to “ensure[ ] . . . Mr. Pendley is not harassed or treated disparately based upon his reinstatement or other protected activity”, and she wants a copy of the enforcement order posted on a bulletin board in a “common area” of the mine. Id.

            In response, Highland either denies the Secretary’s allegations or claims incidents regarding the direction of its work force are wholly within its prerogatives as Mr. Pendly’s employer. Highland asserts Mr. Pendley’s health insurance was in fact reinstated on June 6, 2007 back to its original effective date so that Mr. Pendley never suffered a lapse of coverage; that the letter detailing his work assignments was issued to all three miners holding the job of supply man after Mr. Pendley appeared to be confused about his work duties and that all of the work assignments were completely within Mr. Pendley’s job description; that Highland has no evidence the letter was placed on the mine bulletin board; that the “dummy incident” was directed at another employee, not at Mr. Pendley; that Mr. Pendley’s “man-light” was assigned to him on June 8, and that in the interim other lights were available and apparently were used by Mr. Pendley; that Mr. Pendley was in fact on the seniority list whether his name appeared on a posted roster or not, that he was offered a job based on his seniority during the week of June 18 and that he turned it down. Finally, the company argues the Act does not provide for a copy of any order arising as a result of the Secretary’s motion to be placed on a mine bulletin board. Highland’s Response 1-6. Like the Secretary, Highland supports its assertions with affidavits.

RULING

            The motion is DENIED. Virtually all of the things the Secretary seeks are included sub silentio in the original order of reinstatement, which, requires Highland to reinstate Pendley to his prior position or to an equivalent position, at the same rate of pay and with equivalent duties. The requirement Pendley return to his old job or to an equivalent position carries with it the requirement he return under the same circumstances that would exist if he had not been suspended. In other words, under the original order, Mr. Pendley was required to be assigned to his usual work duties or to those someone in his position normally would be assigned. Moreover, under the original order Mr. Pendly was required to receive the same benefits and equipment he previously received or to be given the benefits and the equipment someone in his position normally would receive. Further, under the original order, Mr. Pendley was required to be returned to his old place on the seniority list or to the place he would have held had he not been suspended, and he was required to be treated as he had been treated prior to his suspension or to be treated as all other miners in his position currently are treated.

            To issue a detailed order specifying requirements and prohibitions included in the previous order would be to engage in an essentially meaningless exercise. If the Secretary believes the initial order is not being fully enforced, her remedy is to go to a United States district court and seek injunctive relief, a restraining order or other appropriate relief. Like it or not, the Commission and its judges have no authority to enforce their own orders. 30 U.S.C. §818(a)(1)(A).

            Further, and as noted, all of the Secretary’s allegations have been challenged, and the process of resolving the factual conflicts created by the challenges would involve the Commission and the parties in a hearing concerning not so much the basis for the original order as new allegations of discrimination. Such allegations are reserved in the first instance for the employee to complain of and for the Secretary to investigate. It is the Secretary, not the Commission, who is required to make the initial findings regarding whether the complained of incidents constitute prohibited discrimination.

            While I recognize I have continuing jurisdiction over the original reinstatement order (29 C.F.R. §2700.45(e)(4)), I also recognize, as should the parties, that all disputes involving implementation of the original order are not amenable to resolution by the Commission. With the possibility of still more complaints looming on the horizon, rather than moving for orders to enforce orders, it behooves all involved to redouble their efforts to promptly settle the pending matters and to end what promises to be interminable litigation. In the meantime, the Secretary should advise Mr. Pendley regarding the realities of the work place and the Secretary’s and Commission’s inability to right every perceived wrong or slight, and Highland should consider offering Mr. Pendley economic reinstatement to minimize the chances of future allegations of discrimination. In the alternative, Highland should make every effort to ensure Mr. Pendley’s reinstatement in fact and in appearance comports with the letter and intent of the original order.

                                                                        David F. Barbour

                                                                        Administrative Law Judge

                                                                        (202) 434-9980

Distribution:

Jonathan R. Hammer, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22^nd Floor West, Arlington, VA 22209-2247

Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park Plaza, Suite 310, Lexington, KY 40517

Mr. Lawrence Pendley, P.O. Box 84, Browder, KY 42326

/rao