Lonnie Jones v. D & R Contractors (ALJ decision, October 18, 1984)

Plain-English summary

After finding that D & R Contractors unlawfully discharged Lonnie Jones, Judge Gary Melick decided the amount of relief. He held successor partnerships liable for wages Jones would have earned and ordered D & R and Ron Perkins jointly to pay $5,032.55 in back earnings and interest plus $178.15 in expenses. He also awarded Jones's counsel $6,825 in attorney fees. The Commission later reversed the judge's decision and dismissed the complaint with prejudice because D & R had been rejoined as a party after the hearing without a meaningful chance to defend the claim. This order concerns a discrimination remedy, not a mine-safety citation.

Decision snapshot

• Cited provision: 30 U.S.C. § 815(c)(1), Mine Act discrimination protection.
• Outcome: Judge awarded $5,032.55 in wages and interest, $178.15 in expenses, and $6,825 in fees; the Commission later reversed and dismissed the case.
• Key point: The judge treated later partnerships as successors liable for the remedy, but the Commission set aside the result on party-joinder grounds.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
OCT 18 1984

LONNIE JONES, : DISCRIMINATION PROCEEDING
Complainant :
v. : Docket No. KENT 83-257-D(A)
:
D & R CONTRACTORS, : BARB CD 83-19
Respondent
:

DECISION
Appearances: Jeffrey A. Armstrong, Esq., Appalachian Research and Defense Fund of Kentucky, Inc., Barboursville, Kentucky, for Complainant;
Larry E. Conley, Esq., Williamsburg, Kentucky, and Ron Perkins, Siler, Kentucky, for Respondent.
Before: Judge Melick
By decision dated May 15, 1984, it was held that the Com- plainant, Lonnie Jones, was discharged by D & R Contractors in violation of section 105(c)(1) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq., the "Act". 6 FMSHRC 1312. Hearings were thereafterheld on the issues of costs, damages, and attorneys' fees. This decision is limited to resolution of those issues. Back Pay Lonnie Jones was unlawfully removed or discharged from D & R Contractors on April 25, 1983. Whether or not that unlawful re- moval of Mr. Jones from the partnership caused a dissolution and termination of the partnership at that time is not material for purposes of liability. Even had the partnership terminated, the immediate resumption of coal mining by the remaining partners and work force in the same mine, using the same equipment under the same working conditions and methods of production and under the same business name creates a presumption of successorship with its attendant liability. Munsey v. Smitty Baker Coal Co., Inc., et. al., 2 FMSHRC 3463 ( 1980) citing EEOC v. McMillan Bloedel Containers, Inc., 503 F. 2d 1094 (6th Cir. 1974). It is not dis- puted that this businessentity continued mining operations in this manner through May 21, 1983, and that had the Complainant not been discharged, he would have earned $1,613.50 for this peri- od.

Thereafter, on July 11, 1983, a new partnership agreement was executed, creating another business entity named D & R Con- tractors with three of the original nine partners (Ron Perkins, Ronnie Siler, and Tony Lambdin). A third partnership, D & R Con- tractors, commenced business on August 29, 1983, and included the same three original partners.
In Munsey v. Smitty Baker Coal Co., Inc., et al., supra, the Commission applied the criteria set forth in EEOC v. McMillan Bloedel Containers, Inc., supra, in resolving the question of successorship. Those criteria are as follows: (1) whether the successor company had notice of the charge, (2) the ability of the predecessor to provide relief, (3) whether there has been a substantial continuity of business operations, (4) whether the new employer uses the same plan, (5) whether he uses the same or substantially the same work force, (6) whether he uses the same or substantially the same supervisory personnel, (7) whether the same jobs exist under substantially the same working conditions, (8) whether he uses the same machinery, equipment, and methods of production, and (9) whether he produces the same product.
The undisputed evidence shows that the purported managing partner and a partner common to all three partnerships, Ron Per- kins, has had notice of discrimination'proceedings brought by the Complainant Lonnie Jones as early as May 1983 when Jones filed his first complaint with the Federal Mine Safety and Health Admin- istration. Subsequently, Mr. Jones moved to join D & R Contrac- tors in these proceedings before this Commission on August 2, 1983. Since the law of Kentucky charges each partner with the knowledge of any one of its partners regarding partnership af- fairs, it is apparent that the "partners" in the successor part- nerships, D & R Contractors, had knowledge through Ron Perkins of the continuing litigation concerning Lonnie Jones. See Kentucky Revised Statutes, section 362.205.
The evidence also shows that Jones would have continued work- ing for the successor partnerships had he not been unlawfully discharged and the evidence shows that the successor partnerships did continue in business. Accordingly, full relief would not be available to the Complainant without the joinder of the successor partnerships. I also observe that the subsequent partnerships continued mining operations under the same name in another mine owned by Mingo Coal Company with three of the original partners. The undisputed evidence also shows that the subsequent partner- ships continued to produce coal using machinery leased, as be- fore, from the Mingo Coal Company.

Within this framework I conclude that, indeed, the subse- quent partnerships were successor business entities and therefore were also liable for damages sustained by Mr. Jones in connection with his unlawful discharge on April 25, 1983. Munsey, supra.
Accordingly, the successor partnerships are liable for the pay Mr. Jones could have earned working for these successor entities. It is not disputed that for the relevant period, July 11, 1983, through September 17, 1983, Jones would have earned $3,059.00. Jones earned $180 during this period in other work and this is deductible from the back pay award. The undisputed calculation of interest due on the back pay award through September 30, 1984, is $540.05.

Expenses
The parties have stipulated that Mr. Jones expended $90 in witness fees. The evidence further shows that Jones traveled 430 miles in connection with the preparation of the case and atten- dance at hearings. Applying the applicable mileage rate of 20.5¢ per mile, he is entitled to $88.15 in mileage fees. No interest has been requested on these expenses.

Attorney Fees
Respondent does not dispute the reasonableness of the attor- ney fees sought by counsel for Mr. Jones, but contends that fees attributable to the period before the joinder of D & R Contrac- tors in these proceedings are not chargeable to D & R Contractors. To the extent that counsel for Mr. Jones did in fact cause delay in these proceedings by his failure to have joined D & R Contrac- tors in the initial complaint, there is some merit to the conten- tion. I observe, however, that the time involved for the prepara- tion of trial in this case would not have differed significantly whether or not D & R Contractors had been joined initially. Un- der the circumstances, I have made a downward adjustment of 6 hours in the fee application attributable only to the time reason- ably spent in matters specifically related to the late joinder of D & R Contractors.
Accordingly, I find that counsel devoted 105 hours to the proceedings in this case. Utilizing the uncontested proposed rate of $65 per hour, I conclude that counsel for Mr. Jones is to be awarded $6,825 in attorneys fees. No further adjustments are warranted. Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 19801.

ORDER

D & R Contractors and Ron Perkins are hereby ordered, joint- ly and severally, to pay to Lonnie Jones within 10 days of the date of this decision the amount of $5,032.55 in back earnings and interest and the amount of $178.15 in expenses. D & R Con- tractors and Ron Perkins are further ordered, jointly and several- ly, to pay within 10 days of the date of this decision the amount of $6,825.00 in attorney fees to Jeffrey Armstrong, Esq.

Gary Melick
Assistant Chief Administrative Law Judge

Distribution:

Jeffrey A. Armstrong, Esq., Appalachian Research and Defense Fund of Kentucky, Inc., P.O. Box 919, Barboursville, KY 40906 (Certi- fied Mail)

Larry E. Conley, Esq., P.O. Box 577, 102 South Third Street, Wil- liamsburg, KY 40769 (Certified Mail)

Ron Perkins, D & R Contractors, P.O. Box 54, Siler, KY 40763 (Certified Mail)

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