Gabriel Mining Company, Inc.

Plain-English summary

Billie D. Martin alleged that Gabriel Mining Company fired him after he refused to perform electrical and mechanical work for which he was not qualified. Gabriel Mining did not claim certified mail containing the complaint, did not answer an order directing a response, and did not appear at the scheduled hearing, so the judge found it in default. Martin did not seek reinstatement, and the judge awarded $12,800 in back pay for the period from October 1 through December 5, 1986, with interest calculated under the cited formula. Payment was ordered within 30 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)
• Outcome: After default, the judge awarded $12,800 in back pay plus interest and ordered payment within 30 days.
• Key point: When the operator defaulted and the complainant did not seek reinstatement, the relief was limited to back wages for the period of unemployment and presumed availability for reemployment.

Full text (FMSHRC public release)

CCASE:
BILLIE MARTIN V. GABRIEL MINING
DDATE:
19870813
TTEXT:

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           Federal Mine Safety and Health Review Commission
                 Office of Administrative Law Judges

BILLIE D. MARTIN, DISCRIMINATION PROCEEDING
COMPLAINANT
KENT 87-64-D
v.
BARB CD 87-05
GABRIEL MINING COMPANY, INC.,
RESPONDENT

                               DECISION

Appearances: Billie D. Martin, Evarts, Kentucky, Pro Se.

Before: Judge Weisberger

Statement of the Case

 On February 2, 1987, Complainant filed a complaint with the

Commission, pursuant to Section 105(c) of the Federal Mine Safety
and Health Act of 1977, alleging, in essence, that he was fired
by Respondent because he refused to do electrical and mechanical
work for which he was not qualified. The records of the
Commission indicate that the Complainant sent Respondent, via
certified mail, return receipt requested, a letter containing his
complaint. Respondent did not claim the letter and it was
returned to the Complainant.

 On April 7, 1987, Chief Judge Paul Merlin sent Respondent,

via Certified Mail, return receipt requested, an order directing
Respondent to answer the Complainant within 30 days. The order
further notified Respondent that failure to comply with the order
will be deemed cause for the issuance of an order of default. The
Respondent did not claim this letter, and it was returned to the
Commission. The Respondent did not answer the order dated April
7, 1987.

 On July 8, 1987, a notice sent to Respondent, via Certified

Mail, return receipt requested and via regular mail, scheduling a
hearing in the above matter for July 30, 1987 in Knoxville,
Tennessee. The Respondent did not claim the Registered Letter
containing the notice of hearing, and it was returned to the
Office of Administrative Law Judges. The notice sent regular mail
was not returned. At the hearing, on July 30, 1987, the
Complainant appeared and testified on his on behalf. The
Respondent did not appear.

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On August 6, 1987, on Order was issued finding the Respondent in
default.

 Inasmuch as the Respondent has been found to have been in

default, the only issue presently to be decided is the scope of
relief that Complainant is entitled. It was the Complainant's
uncontradicted testimony that while employed at Respondent's mine
in Bailey's Creek, Kentucky, his salary was $10 an hour. He
further testified that he worked 8 hour a day, and 40 hours a
week. It was further his testimony that after he was fired by
Respondent on October 1, 1986, he was unemployed until mid
December 1986, when he entered into a partnership driving a
truck. The Complainant's partner uses the receipts of the
partnership to pay all obligations of the partnership and the
remainder is split between the Complainant and his partner. It
was the Complainant's testimony that in the 32 weeks that he has
been involved in this partnership, until July 24, 1986, he has
earn $120 a week. The 32 weeks compute from December 8, through
July 24. Inasmuch as the Complainant has not requested
reinstatement, it is concluded that Respondent is responsible for
payment of the Complainant's back wages only during the time that
he was unemployed and presumably available for reemployment by
Respondent.

 Accordingly, it is ORDERED that, within 30 days of the date

of this decision, the Respondent pay the Complainant $12,800 as
back pay for the period between October 1 and December 5, 1986.
With interest to be calculated in accordance with the formula in
Secretary/Bailey v. Arkansas Carbona, 5 FMSHRC 2042 (1984).

                              Avram Weisberger
                              Administrative Law Judge
                              (703) 756Ä6210