Gabel Stone Company, Inc.

Plain-English summary

Gabel Stone asked the Commission to reconsider its direction for review of a backpay award and penalty. The Commission denied the motion because it was filed outside the 10-day deadline in 29 C.F.R. § 2700.78 and counsel did not provide a compelling explanation for the delay. The Commission also noted that the judge had already considered the company's size when reducing the penalty under the Mine Act's penalty criteria. The existing order therefore remained in place.

Decision snapshot

• Cited authority: 29 C.F.R. § 2700.78; 30 U.S.C. § 820(i)
• Outcome: The motion for reconsideration was denied as untimely.
• Key point: A motion for reconsideration must meet the Commission's filing deadline and explain the late filing compellingly.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                        May 11, 2001

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
on behalf of JOHN NOAKES :
:
v. : Docket No. CENT 2000-75-DM
:
GABEL STONE COMPANY, INC. :
:

BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners

                                          ORDER

BY THE COMMISSION:

    On April 13, 2001, the Commission received a Motion for Reconsideration of Request for

Review on Penalty Issued against Respondent from Gabel Stone Company (“Gabel Stone”). Under
Commission Procedural Rule 78, 29 C.F.R. § 2700.78, a motion for reconsideration must be filed
within 10 days after a decision or order by the Commission. The Commission issued its direction
for review, expressly limiting review to the issues of John Noakes’ mitigation of damages and the
amount of the backpay award, on March 20, 2001. Gabel Stone’s motion for reconsideration is thus
untimely under the Commission’s rules.

     Gabel Stone, which is represented by counsel, has not presented a compelling explanation

for the late-filing of its motion for reconsideration. Counsel for Gabel Stone claims that the reason
for its motion for reconsideration is because he learned on April 9, 2001, of a February 2001
government agency report that encouraged agencies to give small businesses relief from harsh
monetary penalties. Mot. at 2. However, the appropriateness of the penalty to “the size of the
business of the operator charged” is one of the six criteria that must be considered in the assessment
of the penalties pursuant to section 110(i) of the Federal Mine Safety and Health Act, 30 U.S.C.
§ 820(i), and the record demonstrates that the judge expressly relied on this factor in reducing the
amount of the penalty assessed against Gabel Stone in this case. 23 FMSHRC 171, 179 (Feb.
2001) (ALJ).

                                      23 FMSHRC 479

     Finally, Gabel Stone presents no evidence that its counsel misunderstood the Commission’s

filing requirements.1 Accordingly, the Motion for Reconsideration is denied.

                                          Mary Lu Jordan, Chairman




                                          James C. Riley, Commissioner




                                          Theodore F. Verheggen, Commissioner




                                          Robert H. Beatty, Jr., Commissioner




    1
        The Commission has previously reopened final Commission orders and excused the

late-filing of petitions for discretionary review when parties’ counsel misunderstood the
Commission’s filing requirements. See Turner v. New World Mining, Inc., 14 FMSHRC 76, 77
(Jan. 1992) (finding sufficient allegation that counsel misinterpreted deadline for filing petition);
Boone v. Rebel Coal Co., 4 FMSHRC 1232, 1233 (July 1982).

                                      23 FMSHRC 480

Distribution

Jason N. Shaffer, Esq.
Donald W. Jones, Esq.
Hulston, Jones, March & Shaffer
2060 East Sunshine
Springfield, MO 65804

Cheryl Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

                              23 FMSHRC 481