ASARCO, Incorporated

Plain-English summary

David Hopkins was discharged by ASARCO after raising safety concerns about a high scaler at the Sweetwater Mine. In an earlier decision, the judge found that the discharge violated section 105(c) of the Mine Act. This supplemental decision awarded Hopkins back pay, bonus and vacation pay, expenses, and interest, ordered ASARCO to expunge the discharge from his records, and required the company to pay an $800 civil penalty. Hopkins was also given a deadline to seek reinstatement to his former position.

Decision snapshot

• Cited provision(s): 30 U.S.C. § 815(c), 30 U.S.C. § 815(c)(2), 30 U.S.C. § 820(i)
• Outcome: Back pay and related relief were ordered, reinstatement was made available on notice, and an $800 civil penalty was assessed.
• Key point: The supplemental order translated the earlier discrimination finding into specific economic, record-clearing, reinstatement, and penalty relief.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1244 SPEER BOULEVARD #280
                  DENVER, CO 80204-3582
              303-844-3577/FAX 303-844-5268


                      July 16, 1996

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-122-DM
on behalf of :
DAVID HOPKINS, : Sweetwater Mine
Complainant :
: Mine I.D. 23-00458
v. :
:
ASARCO, INCORPORATED, :
Respondent :

          SUPPLEMENTAL DECISION AND FINAL ORDER

Appearances: Margaret A. Miller, Esq., Office of
the Solicitor, U.S. Department of Labor, Denver,
Colorado, for the Secretary of Labor and David
Hopkins; Henry Chajet, Esq., and M. Shane Edgington, Esq.,
Patton and Boggs, Washington, D.C., and Denver,
Colorado, for Asarco, Inc.

Before: Judge Manning

 This proceeding was brought by the Secretary of Labor on

behalf of David Hopkins against Asarco, Inc. ("Asarco") under
section 105(c) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1988)("Mine Act"). In a decision en-
tered March 4, 1996, I found that Mr. Hopkins' discharge violated
section 105(c) of the Mine Act. 18 FMSHRC 317 (March 1996). In
the decision, I ordered the parties to confer for the purpose of
reaching an agreement as to the appropriate amount of back pay
and other reasonable, related economic losses. The parties were
unable to agree on any of these matters. Each party submitted a
written proposal setting forth its position on these issues. The
proposals were somewhat ambiguous and, during a conference call,
I asked the parties to file supplemental proposals on or before
July 1, 1996. The Secretary filed a supplement but Asarco
elected not to do so.

               I.  FINDINGS AND CONCLUSIONS

A. Back Pay

 The Secretary states that Mr. Hopkins was unemployed for

four months before he obtained another full time job. Asarco did
not dispute this fact. His gross pay per week at Asarco was
$568.00. This amount was often increased by a shift differential
and overtime. Including shift differentials and overtime,
Hopkins' gross pay was $10,470 during the four months preceding
his discharge, May through August 1994.[1] Accordingly, I find
that he would have earned this amount during the four month
period that he was unemployed. The total amount of gross back
pay due Mr. Hopkins is $10,470.00. Asarco shall withhold appro-
priate, lawful payroll deductions for Social Security, federal
income taxes, medicare taxes, and state income taxes.

B. Bonus Pay

 The Secretary states that Mr. Hopkins is entitled to bonus

pay of $1,750.00 because that is the amount the Secretary claims
he received during the four months preceding his discharge.
Asarco contends that he is not entitled to bonus pay, but states
that he received an average bonus of $288.00 per month during the
four months preceding his discharge for a total of $1,150.00. My
examination of the payroll records reveals that Hopkins received
$1,396.00 in gross bonus pay during the four months prior to his
charge. Accordingly, I find that Mr. Hopkins is entitled to
bonus pay of $1,396.00. Asarco shall withhold appropriate,
lawful payroll deductions for Social Security, federal income
taxes, medicare taxes, and state income taxes.

C. Vacation Pay

 The Secretary states that Mr. Hopkins is entitled to four

weeks of vacation pay, two weeks for 1994 and two weeks for 1995.
The Secretary states that the total gross amount due is
$2,615.50. Asarco states that Mr. Hopkins is not entitled to any
vacation pay because he could not have earned a year's vacation
pay in the four months that he was unemployed. I find that Mr.
Hopkins is entitled to two weeks vacation pay. Section 105(c) of
the Mine Act was designed, in part, "to put an employee into the
financial position he would have been in but for the discrim-
ination." Kentucky Carbon Corp., 4 FMSHRC 1, 2 (January 1982).
Vacation pay may constitute a part of a back pay award. Northern
Coal Co., 4 FMSHRC 126, 142-43 (February 1982). Accordingly, I
find that he is entitled to two weeks vacation pay in the amount
of $1,136.00. Asarco shall withhold appropriate, lawful payroll
deductions for Social Security, federal income taxes, medicare
taxes, and state income taxes.

 I find that he is not entitled to two weeks of vacation pay

for calendar year 1995, however. The Secretary argues that he
lost 1995 vacation time because his new employer would not allow
him to take a two-week vacation in 1995. Mr. Hopkins was dis-
charged in September 1994. I believe that the Secretary's
request for 1995 vacation pay is misplaced. He had not accrued
such leave at the time of his discharge and Asarco cannot be held
responsible for the vacation leave policies of Hopkins' new
employer.

D. Miscellaneous Expenses

 The Secretary contends that Mr. Hopkins is entitled to

$247.00 for miscellaneous expenses related to the prosecution of
this proceeding and looking for a new job. Reimbursement of
hearing expenses and other similar expenses "is an appropriate
form of remedial relief." Northern Coal, 4 FMSHRC at 144.
Accordingly, this request is granted.

 The Secretary also requests that Mr. Hopkins be reimbursed

for the pay he lost to attend his deposition and the hearing in
this matter. Asarco contends that it should not be responsible
for any compensation Mr. Hopkins may have lost as a result of
attending his deposition or hearing. I disagree. I hold that he
is entitled to $973.00 for this item, which the Secretary repre-
sents is the pay he lost for attending his deposition and the
hearing. Asarco did not dispute this amount.

E. Interim Earnings

 Mr. Hopkins obtained temporary employment before he started

working for his current employer. According to his 1994 federal
tax return, his gross earnings were $2,510.00. This amount is to
be subtracted from the back pay due.

F. Interest

 Mr. Hopkins is entitled to interest on his back pay award.

The Secretary asks for $2,011.06 in interest. The Secretary used
gross back pay and gross bonus pay when making the interest cal-
culation. In addition, the Secretary did not follow the formula
for calculating interest that the Commission established in
Arkansas-Carbona Co., 5 FMSHRC 2042, 2051-53 (December 1983) and
modified in Clinchfield Coal Co., 10 FMSHRC 1493, 1504-06 (Novem-
ber 1988). I find that the interest calculation should be based
on his net pay not his gross pay. It is not possible for me to
determine exactly what his net pay will be since the parties were
unable to agree on the amount of net back pay that Mr. Hopkins is
due. Accordingly, I have calculated the interest based on Mr.
Hopkins net pay during the four months preceding his termination
based on my examination of the payroll records. Mr. Hopkins' net
bonus pay is also included in the calculations. I calculated the
interest using the method established by the Commission in the
cases set forth above. My calculations are set forth on the
worksheet. The total interest owed through July 31, 1996 is
$1,040.00.

G. Total Amount of Back Pay, Interest, and Expenses

 1.  Back pay = $10,470.00 minus payroll deductions.

 2.  Bonus pay = $1,396.00 minus payroll deductions.

 3.  Vacation pay = $1,136.00 minus payroll deductions.

 4.  Miscellaneous expenses = $1,220.

 5.  Interest through 7/31/96 = $1,040.00.

 6.  Interim earnings of $2,510.00 shall be subtracted from
     the amount due.

 H. Reinstatement

 At the hearing Mr. Hopkins was asked whether he would want
 to go back to work at the Sweetwater Mine if reinstatement
 was ordered.  He replied:  "I can't answer for sure.  Quite
 possibly, I would go back."  (Tr. 909).  In my decision of
 March 4, 1996, I asked the parties to stipulate to the
 position and salary to which Mr. Hopkins should be
 reinstated, if he seeks reinstate-ment.  18 FMSHRC at 335.
 The parties did not reach an agreement.  In the Secretary's
 submission, counsel for the Secretary states that "Mr.
 Hopkins seeks reinstatement to his former position with
 ASARCO, including any pay raises, seniority, or other
 benefits that he would have received had his employment
 continued."  (Secretary's Response to ALJ's Order at 1).

 The time has come for Mr. Hopkins to determine whether he
 wants to be reinstated.  He cannot wait to see whether his
 prospects are better with his present employer or with
 Asarco.  If Mr. Hopkins wishes to be reinstated, he must
 notify the appropriate officials at Asarco's Sweetwater Mine
 as soon as possible, but no later that August 16, 1996.  If
 Mr. Hopkins fails to provide such notification on or before
 August 16, 1996, he waives all rights to reinstatement.

 I. Civil Penalty

 The Secretary seeks a civil penalty of $5,000.00.  Asarco
 contends that the proposed penalty is excessive "in light of
 the good faith demonstrated by ASARCO here and the lack of a
 prior history of discrimination claims at the Sweetwater
 Mine."  (Asarco's Reply at 3).  Based on the record in this
 case and the penalty criteria at section 110(i) of the Mine
 Act I find that a civil penalty of $800.00 is appropriate.
 The Sweetwater Mine has a history of 49 violations in the
 two years preceding Hopkins' discharge.  It does not have a
 history of any violations of section 105(c) of the Mine Act.
 The mine produces about 1.3 millions tons a year and employs
 about 90 hourly workers and 9 salaried employees
 underground.  (Tr. 774).  Asarco is a large operator.  The
 penalty is appropriate for the size of the busi-ness and
 will not affect its ability to stay in business.

 In my decision on the merits, I made the following findings:

           Asarco was diligent in attempting to
      discover why Hopkins was concerned about the
      high scaler.  I credit Asarco's evidence that
      the Sweetwater Mine encourages miners to
      raise safety complaints and that management
      attempts to address these safety concerns.
      Indeed, the mine has never had a discrim-
      ination claim under the Mine Act prior to
      this case.  In the particular facts of this
      case, however, I find that [mine management]
      did not address Hopkins' safety concerns "in
      a way that his fears reasonably should have
      been quelled."

18 FMSHRC at 326-27 (citation omitted). I find that Asarco's
negligence was low and that the gravity of the violation was low.
Based on the record, I also find that Asarco's discharge of Mr.
Hopkins will not have a significant chilling effect on miners who
wish to exercise their rights under the Mine Act at the Sweet-
water Mine. See, Secretary on behalf of Johnson v. Jim Walter
Resources, Inc., 18 FMSHRC 552, 557-59 (April 1996). Several
other miners did not consider the high scaler to be unsafe and
were willing to operate it. Under the facts of this case, it is
unlikely that miners will be reluctant to refuse to work in the
face of hazardous conditions or reluctant to raise safety issues
because of Mr. Hopkins' termination.

 The good faith criterion is difficult to apply in the con-

text of this case. Section 110(i) defines the criterion as "the
demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of the violation."
A mine operator must abate a condition described in a citation or
order issued under section 104 of the Mine Act whether or not he
believes that the condition constitutes a violation. Thus, good
faith is concerned with how quickly and seriously a mine operator
tries to abate a condition after the citation is issued. In a
discrimination case, there is no obligation on a mine operator to
reinstate a discharged miner simply because the Secretary has
brought an action under 105(c). In this case, the Secretary did
not seek to have Mr. Hopkins temporarily reinstated. Thus,
Asarco was not required to rapidly comply with the alleged
violation. Nothing in the record convinces me that Asarco's
contest of the discrimination complaint was frivolous or was
filed in bad faith. Rather, Asarco believed, in good faith, that
its dis-charge of Mr. Hopkins did not violate section 105(c) of
the Mine Act. As stated above, Asarco was diligent in attempting
to dis-cover why Hopkins was concerned about the high scaler.
Accord-ingly, I find that Asarco demonstrated good faith.

                        II.  ORDER

 A.  On or before August 16, 1996, Respondent shall pay David

Hopkins back pay, interest, and miscellaneous expenses to be com-
puted in accordance with this decision, as summarized in section
I.G., above. Respondent shall also make payments to the appro-
priate federal and state tax agencies of the withholdings speci-
fied above.

 B.  On or before August 16, 1996, David Hopkins shall notify

appropriate officials of the Sweetwater Mine whether he wants to
be reinstated to his former position at the mine. If reinstate-
ment is sought, Respondent shall reinstate David Hopkins to the
same seniority, pay, status, benefits, and job conditions that
would apply to his employment had he not been discharged.

 C.  Respondent shall expunge from David Hopkins' personnel

records all references to its discharge of him as a result of the
events of September 8, 1994.

 D.  Respondent is ordered to pay a civil penalty of $800.00

for the violation of section 105(c) of the Mine Act.

 E.  My decision of March 4, 1996, and this supplemental

decision and order shall constitute my final disposition of this
proceeding.

                          Richard W. Manning
                          Administrative Law Judge

Distribution:

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Depart-
ment of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716 (Certified Mail)

Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW,
Washington, DC 20037-1350(Certified Mail)

M. Shane Edgington, Esq., PATTON BOGGS, 1660 Lincoln Street,
Suite 1975, Denver, CO 80264 (Certified Mail)

RWM

FOOTNOTES

This figure is $8.00 higher than that calculated by the
Secretary due to differences in rounding techniques. The
Secretary submitted Mr. Hopkins' payroll records for this period.
All of my calculations in this case are based on these records
and Mr. Hopkins' 1994 federal tax return. All of my calculations
are shown on a worksheet that I hereby make a part of the
official record in this case. I am sending a copy of this
worksheet to the parties but I am not attaching it to this
decision.