Gabriel Mining Company, Inc.

Plain-English summary

Otis M. Schmoldt 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 the mailed complaint or answer the judge's order, and it did not appear at the scheduled hearing, so the judge found it in default. The judge ordered reinstatement, $13,200 in back pay reduced by $2,000 in unemployment benefits, and $402 in additional back pay until reinstatement, with interest on the first award. The order required payment within 30 days and set August 24, 1987 as the reinstatement date.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)
• Outcome: Default relief included reinstatement, $13,200 in back pay less unemployment benefits, $402 in additional back pay, and continuing pay at that rate until reinstatement.
• Key point: The judge awarded back pay and reinstatement after the operator defaulted and credited the complainant's uncontradicted testimony about unemployment and replacement work.

Full text (FMSHRC public release)

CCASE:
OTIS SCHMOLDT V. GABRIEL MINING
DDATE:
19870813
TTEXT:

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

OTIS M. SCHMOLDT, DISCRIMINATION PROCEEDING
COMPLAINANT
KENT 87-65-D
v.
BARB CD 87-06
GABRIEL MINING COMPANY,
INC.,
RESPONDENT

                                 DECISION

Appearances: Otis M. Schmoldt, Le Junior, Kentucky, Pro Se.

Before: Judge Weisberger

Statement of the Case

 On March 30, 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 he was unemployed from the date he
was fired by Respondent on October 17, 1986 through July 7, 1987,
when he obtained a position driving a truck at $3.35 and hours
working 12 hours a day, 5 days a week. For the first 2 weeks of
his job he was paid for 80 hours at $3.35 an hour and 26 hours at
one and half times $3.35 an hour. It also was the Complainant's
testimony that during the period that he was unemployed, from
October 17, 1986 to July 7, 1987, the only income that he had
consisted of $2,000 he received as unemployment insurance
benefits.

    Based upon all of the above it is ORDERED that:

         1. The Respondent shall, by August 24, 1987 reinstate
         the Complainant to the position that he previously held
         on October 17, 1986, at the previous rate of pay.

         2. The Respondent shall, within 30 days from the date
         of this decision, pay the Complainant the sum of
         $13,200 as back pay for the period from October 17,
         1986, through July 3, 1987, as reduced by the amount of
         unemployment insurance benefits received during that
         period. Interest shall be paid to the Complainant by
         the Respondent as calculated in accordance with the
         formula in Secretary/Bailey v. Arkansas Carbona, 5
         FMSHRC 2042 (1984).

         3. The Respondent shall, within 30 days from the date
         of the decision, pay the Complainant the sum of $402 as
         back pay for the period from July 7, 1987, through July
         24, 1987. The Respondent shall continue to pay the
         Complainant at this rate of pay until the Complainant
         is reinstated.


                              Avram Weisberger
                              Administrative Law Judge
                              (703) 756Ä6210