Tolbert v. Chaney Creek Coal Corporation

Plain-English summary

Ronald Tolbert asked the Commission to reopen his discrimination case so he could pursue collection of a judgment for back pay and attorney's fees from Chaney Creek Coal Corporation. The Commission noted that the judge's discrimination decision had become final and that Chaney Creek had not obtained appellate review. It held that enforcement of the Commission's judgment belongs with the Secretary of Labor, who may seek compliance in federal court. The Commission denied Tolbert's motion to reopen.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(1), 815(c)(3), 816, 818, and 823(d)(1)
• Outcome: The motion to reopen was denied.
• Key point: A request to collect a final Commission judgment is an enforcement matter for the Secretary of Labor, not a basis for reopening the discrimination proceeding.

Full text (FMSHRC public release)

CCASE:
RONALD TOLBERT V. CHANEY CREEK COAL
DDATE:
19871110
TTEXT:

                                   FMSHRC-WDC
           NOVEMBER 10, 1987

RONALD TOLBERT

v.                 Docket No. KENT 86-123-D

CHANEY CREEK COAL CORPORATION

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

                ORDER

BY THE COMMISSION:

In this discrimination case that arose under the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982),
counsel for complainant Ronald Tolbert has filed a motion requesting
the Commission to reopen the proceeding for purposes related to
enforcement of the Commission's final decision. Respondent Chaney
Creek Coal Corporation ("Chaney Creek") has opposed the motion. For
the following reasons, the motion is denied.

This case was commenced by a discrimination complaint filed

with the Commission by Mr. Tolbert pursuant to section 105(c)(3)
of the Mine Act. 30 U.S.C. $ 815(c)(3). On March 16, 1987,
Commission Administrative Law Judge Gary Melick issued a decision
concluding that Chaney Creek had discriminated against Tolbert in
violation of section 105(c)(1) of the Act, 30 U.S.C. $ 815(c)(1),
by refusing to rehire him from layoff status because he had testified
on behalf of Odell Maggard in the latter's discrimination case before
the Commission (Docket Nos. KENT 86-1-D, etc.). 9 FMSHRC 580 (March
1987) (ALJ). The judge also ordered Chaney Creek to offer Tolbert
employment. On May 12, 1987, the judge issued a remedial order
directing Chaney Creek to pay Tolbert $14,453 in back pay and interest
through April 8, 1987, as well as any additional back pay and interest
to date of reinstatement, and $16,900 in attorney's fees. 9 FMSHRC

Page 2

929 (May 1987)(ALJ). The judge referred the case to the Secretary of
Labor for the proposal of a civil penalty.

On June 8, 1987, Chaney Creek petitioned the Commission for

review of the judge's decision. The Commission issued a notice on
June 22, 1987, stating that review was not directed. Accordingly,
pursuant to operation of the statute, the judge's decision became a
final decision

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of the Commission on June 22, 1987, 40 days after its issuance.
30 U.S.C. $ 823(d)(1). Chaney Creek did not seek review of the
judge's decision in a United States Court of Appeals. 30 U.S.C.
$ 816(a).

Tolbert's motion to reopen alleges that Chaney Creek

reinstated Tolbert on May 28, 1987, but to date has paid him
only $2,500 of the back pay and $1,000 of the attorney's fees
owed under the Commission's final decision. The motion further
alleges that Chaney Creek has claimed financial inability to pay
and, on September 16, 1987, proposed settling the Commission's
judgment by paying Tolbert 35-50 cents on the dollar. Tolbert
asserts that two other mining corporations and John Chaney
individually are successors and/or alter egos of Chaney Creek,
possess the financial ability to satisfy the judgment debt, and
should be brought into this proceeding as successors under the
Commission's successorship doctrines as enunciated in Secretary on
behalf of James Corbin et al. v. Sugartree Corp.. et al., 9 FMSHRC 394
(March 1987), pet. for review filed, No. 87-3391 (6th Cir. April 29,
1987). Tolbert requests the Commission to remand this matter to the
formerly presiding administrative law judge for further proceedings.
The operator has filed an opposition.

The essential nature of the remedy sought by Tolbert is

collection of a judgment debt. This relief involves, inter ali ,
enforcement and execution of the Commission's final decision in this
matter. Such an enforcement request is properly directed to the
Secretary of Labor. Under the Mine Act, the Secretary is empowered
to seek compliance with Commission orders in the federal courts. See
30 U.S.C. $$ 816(b) & 818. We need not and do not express any opinion
as to other avenues of relief that may be available to Tolbert.

Accordingly, Tolbert's motion to reopen is denied.

              Ford B. Ford, Chairman

              Richard V. Backley, Commissioner

              Joyce A. Doyle, Commissioner

              James A. Lastowka, Commissioner

              L. Clair Nelson, Commissioner

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Distribution

Tony Oppegard, Esq.
Appalachian Research & Defense
Fund of Kentucky, Inc.
P.0. Box 360
Hazard, Kentucky 41701

Thomas W. Miller, Esq.
Miller, Griffin & Marks, P.S.C.
700 Security Trust Bldg.
Lexington, Kentucky 40507

John Chaney
Route 1, Box 286
East Bernstadt, Kentucky 40729

Billy Chaney, President
B.D.C. Coal Corporation
Route 1, Box 286-B
East Bernstadt, Kentucky 40729

Ann Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203