Whitesburg KY

Ruling a win ‘for all miners,’ attorney says

A ruling handed down last week by the Federal Mine Safety and Health Review Commission is a “precedent-setting victory” for all underground coal miners, says an attorney involved in the case.

The Mine Safety and Health Review Commission ruled January 7 that when a miner files a safety discrimination case with the federal Mine Safety and Health Administration (MSHA) and is “temporarily reinstated” to his job, the miner is entitled to continue drawing pay and benefits until the Commission has reached a final decision in the case.

Tony Oppegard, a Lexington attorney who specializes in coal mine safety issues, said the Commission’s ruling means that coal companies are responsible for paying temporary pay and benefits “even if MSHA, after a complete investigation, rejects the case for prosecution and the miner thereafter files his own ‘complaint of discrimination’ with the Mine Safety and Health Review Commission.”

In reaching the decision it narrowly approved in a 34-page finding by a vote of 3-2, the Commission rejected North Fork Coal Company’s argument that it no longer had to make court-ordered salary and benefit payments to fired miner Mark Gray since Secretary of Labor Hilda Solis announced that MSHA would not be filing a discrimination complaint on Gray’s behalf.

Gray was fired from his job at North Fork’s No. 4 mine at Partridge in Letcher County on May 15, 2009. Gray, of Harlan County, then filed a discrimination complaint under protections provided to underground miners by the Federal Mine Safety and Health Act. The complaint charged that Gray, a roof bolter, was fired because he had refused orders to work in unsafe conditions.

On September 2, 2009, Administrative Law Judge Gary Melick ruled that Gray’s charges had merit and ordered North Fork to reinstate Gray to his job and to pay any back pay and benefits due him. In order to keep Gray from returning to work, North Fork agreed to have Gray’s reinstatement be “economic” only.

Nearly three months later, Labor Secretary Solis informed all parties involved that MSHA would not be filing a discrimination complaint on behalf of Gray because MSHA investigators had found that “discrimination, within the confines of the Mine Act, did not occur.” Judge Melick then dissolved the order granting temporary reinstatement to Gray.

Gray, through attorneys Oppegard and Wes Addington of the Appalachian Citizens Law Center in Whitesburg, responded to Melick’s ruling by filing a discrimination complaint on his own behalf, an action which is allowed under the Mine Health and Safety Act. Gray also asked the Mine Safety and Review Commission to review Judge Melick’s order and determine whether North Fork Coal should be ordered to reinstate Gray’s temporary pay and benefits.

MSHA joined Gray in the motion for discretionary review, arguing that the Mine Safety Act requires temporary reinstatement to remain in effect until there is a final Commission order on the merits of a miner’s underlying discrimination complaint. North Fork argued that MSHA and Secretary Solis lost their standing in the case when it was announced MSHA would not pursue Gray’s discrimination complaint.

The latest ruling requires that North Fork Coal, which is now owned by Massey Energy, pay Gray’s salary and benefits retroactive to Dec. 2, 2009, the date Judge Melick dissolved his earlier order. The original agreement between North Fork and Gray called for the company to pay Gray $1,179.70 per week for the time period (based on 46.8 hours per week at $23.50 per hour regular pay and $35.25 per hour for overtime pay), plus all safety and production bonuses and other benefits. That means North Fork now owes Gray at least $68,000 and will have to continue paying him until final judgment is reached in the case, which could take another 1-1/2 years.

“It’s a victory not only for Mark, but for all miners in America,” said Oppegard.

MSHA was represented in the appeal by attorney Robin Rosenbluth of Arlington, Va. North Fork Coal is represented by Abingdon, Va., attorney Steve Hodges.

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