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Judge tells firm to rehire miner

A federal Administrative Law Judge (ALJ) has ordered Cumberland River Coal Company (CRCC) to immediately reinstate a Letcher County coal miner to his former position with the company.

Charles Scott Howard, who lives at Roxana, filed a safety discrimination complaint against CRCC with the Mine Safety & Health Administration (MSHA) on May 16, alleging that he had been discharged that day because of his numerous safety-related activities. Howard was severely injured in an underground mining accident at CRCC’s Band Mill mine in July 2010 and was on the verge of returning to work when he was discharged.

According to his discrimination complaint, Howard was released to return to work by a neurologist on May 11. He alleged that on May 13 CRCC instructed him to take annual safety retraining on May 16 and 17, and to report for work on May 18.

However, the complaint claims that while he was receiving his annual retraining on May 16, CRCC notified him that his workers compensation benefits were being terminated, that he could not return to work on May 18, and that he no longer had a job with the company.

On May 27, MSHA filed an Application for Temporary Reinstatement on Howard’s behalf with the Federal Mine Safety & Health Review Commission in Washington, D.C. MSHA asked that CRCC be required to reinstate Howard to his former job until his discrimination case was resolved.

According to the Review Commission’s procedural rules, a company against which a temporary reinstatement order is sought has 10 days from receipt of the Application for Temporary Reinstatement in which to request a hearing on the application.

On June 9, Howard’s attorneys — Tony Oppegard of Lexington and Wes Addington of Whitesburg — filed a motion with the Review Commission for the immediate reinstatement of Howard, claiming that CRCC had not requested a hearing within the 10-day time deadline and that CRCC had therefore waived its right to a hearing.

On June 13, CRCC filed a motion to dismiss the Application for Temporary Reinstatement or, in the alternative, to set a hearing date. The company admitted that it had received the Temporary Reinstatement Application from MSHA’s attorney via FAX on May 27, but it argued that the time for filing the request for a hearing didn’t begin to run until it had received the application via certified mail on June 3. On June 15, Chief Judge Robert J. Lesnick rejected CRCC’s argument. The judge also denied the company’s request for a hearing and ordered the immediate reinstatement of Howard.

This is the fifth safety discrimination complaint that Howard has filed against CRCC in the last 4 years. On August 10, 2010, a federal ALJ ruled that CRCC discriminated against Howard when it issued a written warning to him because he had shown a videotape of leaking mine seals at a public hearing held by MSHA in Lexington. And on September 4, 2009, another federal ALJ ordered CRCC to temporarily reinstate Howard to his former position after he was laid off by the company in May 2009. In his decision of June 15, Chief Judge Lesnick also noted that the order of temporary reinstatement that was issued by the Review Commission in 2009 was still in effect.

Mary Sue Taylor of Nashville, Tennessee represents MSHA in this case. CRCC is represented by Timothy Biddle and Willa Perlmutter of the Washington, D.C., law firm Crowell & Moring.

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