Nally & Hamilton Enterprises, Incorporated

Plain-English summary

This remedial order followed an earlier finding that Nally & Hamilton discriminated against Clayton Nantz. Judge George A. Koutras calculated backpay through December 31, 1992, deducted interim earnings, two weeks for delayed job searching, and unemployment compensation, and awarded $17,385.36 in gross backpay plus $1,426.76 in medical expenses, with interest. The company was ordered to reinstate Nantz with backpay and benefits, expunge termination records, and pay the previously assessed $1,000 civil penalty.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c).
• Outcome: Reinstatement, backpay, medical expenses, record expungement, and payment of the $1,000 civil penalty were ordered.
• Key point: The remedial award accounted for interim earnings and mitigation, while rejecting deductions for earnings during a period when the mine would have been shut down and for an unsupported reemployment offer.

Full text (FMSHRC public release)

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 92-259-D
ON BEHALF OF CLAYTON NANTZ, :
Complainant : BARB CD 91-24
v. :
: Gray's Ridge Job
NALLY & HAMILTON ENTERPRISES, :
INCORPORATED, :
Respondent :

                           DECISION

Appearances: MaryBeth Bernui, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Complainant;
David O. Smith, Esq., Marcia A. Smith, Esq.,
Corbin, Kentucky, for the Respondent.

Before: Judge Koutras

                  Statement of the Case

 This proceeding is before me to determine the relief due the

complainant Clayton Nantz based upon my decision of November 19,
1992, finding that the respondent Nally & Hamilton Enterprises,
Incorporated, discriminated against the complainant in violation
of section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 801, et seq., 11 FMSHRC 1858.

 The parties were afforded thirty (30) days after my decision

was issued to agree to the relief due Mr. Nantz or to submit
their separate relief proposals with supporting arguments. By
letter dated December 4, 1992, the Secretary informed me that the
parties were unable to reach an agreement concerning the amount
of damages to be awarded to Mr. Nantz, and thereafter, on
December 15, 1992, the Secretary submitted a Post-Decision Brief
in support of her claim for money damages on behalf of Mr. Nantz.
The Secretary stated that pursuant to an earlier stipulation, the
medical expenses which would have been covered by Mr. Nantz's
health insurance policy had he remained employed with the
respondent amounted to $1,426.76, and that the total amount of
money damages owed Mr. Nantz for 1991 and 1992, including back
wages and medical expenses, through December 31, 1992, is

$33,194.60. The supporting documentation for the Secretary's
claim includes the following:

 1. Mr. Nantz's pay stubs while employed by the respondent
 for the payroll weeks ending on August 11, 1990, through
 April 1991 (Exhibit PT 1).

 2. Mr. Nantz's pay stubs while employed with Cloverfork
 Mining & Excavating, Inc., for the payroll weeks ending
 September 8, 1991, through December 29, 1991, including a
 stub for a production bonus for the payroll period ending
 January 5, 1992. (Exhibit PT 5).

 3. Mr. Nantz's W-2 Wage and Tax Statement for 1991, in
 connection with his employment with Cloverfork Mining &
 Excavating, Inc. (Exhibit PT 6).

 4. A backpay computation calculated by MSHA Special
 Investigator Ronnie Brock, including Mr. Brock's notes and
 an affidavit explaining his computations (Exhibits PT 2,
 PT 4).

 5. A statement by C & L Logging Owner Karen Lewis
 confirming Mr. Nantz's employment from May 6, 1992,
 to June 30, 1992, with total earnings of $1,340
 (Exhibit PT 7).

 On December 21, 1992, the respondent filed a motion to

compel the Secretary to provide under oath the tax returns of
Mr. Nantz for the years 1990, 1991, and 1992, including all
income tax W-2 and 1099 forms, and all information concerning
Mr. Nantz's income and benefits he received while not employed by
the respondent.

 On December 22, 1992, the Secretary filed a response in

opposition to the respondent's motion to compel and a request
that Mr. Nantz be reinstated no later than January 4, 1993.

 On January 4, 1993, the respondent filed a response to the

Secretary's claim, and it took issue with the Secretary's
position with respect to the gross income earned by Mr. Nantz
following his termination, the amount of damages that Mr. Nantz
is entitled to, and the methodology and computations used by the
Secretary in support of her claim on behalf of Mr. Nantz.
Following the receipt of the respondent's January 4, 1993,
response, I held a telephone conference with the parties that
same day, and they were afforded an opportunity to present
further arguments in support of their respective positions in
this matter, including the motion to compel, and the request for

Mr. Nantz's immediate reinstatement. Thereafter, on January 5,
1993, I issued an order which included the following rulings and
directives:

 1. The Secretary was ordered to produce a copy of
 Mr. Nantz's 1991 tax return, and the respondent's motion to
 compel production of Mr. Nantz's 1990 and 1992 tax returns
 was denied.

 2. The Secretary was ordered to obtain a sworn affidavit
 from Mr. Nantz concerning any employments held or income
 received from the date of the hearing of August 12, 1992, to
 the present.

 3. The Secretary was ordered to obtain an affidavit or a
 W-2 tax statement from C & L Logging Company, regarding
 Mr. Nantz's 1992 income.

 4. The Secretary was ordered to obtain from Mr. Nantz
 statements concerning any unemployment compensation benefit
 payments received in 1991 and 1992.

 5. The Secretary's request for Mr. Nantz's immediate
 reinstatement was denied.

 The Secretary was afforded fifteen days to comply with my

order, and the respondent was given an opportunity to respond to
the Secretary's submissions within fifteen days after the
Secretary's filing.

 By letter dated January 11, 1993, and received on

January 14, 1993, the Secretary filed her response in compliance
with my order of January 5, 1993, and submitted Mr. Nantz's 1991
tax return, an affidavit from Mr. Nantz concerning employments
since the August 12, 1992, hearing, an affidavit from the owner
of C & L Logging Company, and information regarding Mr. Nantz's
unemployment compensation payment benefits for 1991 and 1992.

                The Secretary's Position

Back Wages

 Based on the weekly payroll stubs submitted by Mr. Nantz and

the payroll records submitted by the respondent, covering a 32-
week period beginning with the pay period ending August 11, 1990,
and ending with the week of April 14, 1991, the Secretary
calculates that Mr. Nantz worked a total of 1,390.5 hours over
this time period, and that his average work week was 43.45 hours.
The evidence establishes that while he was employed with the
respondent, Mr. Nantz earned $10.50 per hour for up to 40 hours
per week, and $15.75 per hour for overtime hours worked in excess
of 40 per week. The Secretary's back wage calculations are based

on an average salary of 40 hours per week at $10.50 per hour,
plus 3.5 hours of overtime at $15.75 per hour, for a total gross
weekly salary of $475.12. The Secretary points out that there
are several weeks in 1990 where the pay information submitted is
listed as "unknown" because Mr. Nantz did not have pay stubs in
his possession for those weeks, and the respondent only submitted
payroll information for 1991 at the hearing. These weeks were
not included by the Secretary in calculating Mr. Nantz's average
weekly pay rate. Further, the Secretary did not use the week of
April 20, 1991, in her calculations because this was the week
Mr. Nantz was terminated prior to completing the work week.

 The Secretary has submitted a back wage computation

calculated by Inspector Brock on a quarterly basis with interest
computed in accordance with the Commission's decision in
Secretary v. Arkansas-Carbona, 5 FMSHRC 2043 (December 1983), and
the submission includes Mr. Brock's notes and an affidavit
explaining his computations. The Secretary does not dispute the
fact that the hourly employees at the subject mine were laid off
from August 14, 1991, through September 30, 1991. Under the
circumstances, Mr. Brock did not calculate any back wages owed to
Mr. Nantz during the layoff period. However, the Secretary
points out that Mr. Nantz's interim earnings of $2,565, from his
employment at Cloverfork Mining Company during the layoff period
were not counted against Mr. Nantz's back wages with the
respondent since he would not have been employed by the
respondent during that period.

 The record reflects that Mr. Nantz had interim work with

Cloverfork Mining Company from September through December, 1991.
He earned $11,150.53, through the pay period ending
December 22, 1991; $186 for the pay period ending December 29,
1991; and he received a production bonus of $115.15, for the pay
period ending January 5, 1992. In making his calculations,
Inspector Brock added the $186 to Mr. Nantz's 1991 fourth-quarter
interim earnings, and included the $115.15, as part of
Mr. Nantz's 1992 first-quarter interim earnings.

 The record further reflects that Mr. Nantz had interim work

with C&L Logging from May 6, 1992 through June 30, 1992, and that
he earned $1,340. In making his calculations, Inspector Brock
subtracted these interim earnings from the back wages owed
Mr. Nantz in the second quarter of 1992.

 Mr. Nantz executed an affidavit on January 7, 1993, stating

that he has been unemployed since the August 12, 1992, hearing
and has not received any interim earnings during this period of
time. Based on all of the evidence and information filed by the
Secretary, including the calculations made by Inspector Brock,
the Secretary concludes that the total back wages owed to

Mr. Nantz for 1991 through December 31, 1992, including overtime
and interest, and subtracting all interim earnings, is
$31,767.84.

Medical Expenses

 It would appear that the parties are in agreement that the

amount of medical expenses that would have been covered under
Mr. Nantz's health insurance policy had he remained employed with
the respondent is $1,426.76. The Secretary has added this amount
to the claimed back wages amount, for a total claim of
$33,194.60.

Unemployment Compensation Benefits

 The Secretary has submitted statements from the Kentucky

Department for Unemployment Services reflecting that Mr. Nantz
received unemployment compensation benefits in 1992 amounting to
$8,005, and 1991 payments amounting to $2,260. The parties agree
that the question of whether or not Mr. Nantz's backpay
compensation may be reduced by the amount of unemployment
benefits paid to him is a matter within the discretion of the
presiding judge, Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983).
The respondent takes the position that had Mr. Nantz's employment
not been terminated, he would not have received these benefits
and he should not be allowed to reap a windfall by receiving
backpay in addition to unemployment insurance benefits with no
offset. Under the circumstances, the respondent believes that
the benefit payments received by Mr. Nantz should be subtracted
from any backpay award. The Secretary takes no position on this
question other than to stipulate that it is within the discretion
of the presiding judge.

                  Respondent's Position

Gross Income Lost

 In response to the Secretary's claims on behalf of

Mr. Nantz, the respondent first addresses the gross income that
Mr. Nantz would have received had he continued to be employed by
the respondent. The respondent takes the position that any award
of backpay for Mr. Nantz should be computed on the basis of the
evidence it submitted at the hearing which reflects that for the
15-week period from January 5, 1991 through April 13, 1991,
Mr. Nantz's average work week was only 39.6 hours. Since this
was the tax year immediately preceding Mr. Nantz's termination,
the respondent believes that it more accurately reflects its
mining activity at the time of the termination as opposed to the
Secretary's computation which includes the preceding year
(8/11/90 through 4/13/91, for an average of 43.45 hours).

 The respondent is in agreement with the Secretary's

computation to the extent that the 6.5 weeks from August 14,
1991, through September 30, 1991, should be omitted since no
income was lost by Mr. Nantz during this period because of an
undisputed layoff which would have affected him.

 The respondent asserts that the 13 weeks for the months of

October through December 1991, that are totally discounted by the
Secretary's computation is erroneous. The respondent disagrees
with the Secretary's apparent position that since Mr. Nantz
earned more at Cloverfork than he would have earned had he still
been employed by the respondent during this period of time, that
difference should not be counted in the backpay computation. The
respondent believes that it is illogical and unreasonable not to
include all income earned by Mr. Nantz from Cloverfork as part of
the backpay computation. The respondent further submits that it
is likewise not reasonable to disregard gross wages earned by
Mr. Nantz at Cloverfork during August 14, 1991 through
September 30, 1991, when he would have been laid off by the
respondent.

 The respondent suggests that the gross income lost by

Mr. Nantz can be computed simply as follows:

   1) Based on the respondent's 39.6 hour work week
   computation at $10.50 per hour, Mr. Nantz's gross weekly
   earnings with the respondent would have been $415.80. For
   the week of his termination ending April 21, 1991, Mr. Nantz
   would have had gross income of $315, with a loss of $100.80
   that week. The period from April 22, 1991 through
   December 31, 1992, consists of 88 weeks, and subtracting the
   6.5 lay off weeks would leave 81.5 work weeks at the weekly
   rate of $415.80, or $33,887.70. Adding the $100.80 loss of
   income during the week of the termination would then result
   in a total gross income loss of $33,988.50, for the period
   April 16, 1991 through December 31, 1992.

   2) Based on the Secretary's 43.45 hour work week
   computation, or gross wages of $475.12 per week, Mr. Nantz
   would have lost $105 for the week ending April 21, 1991,
   plus 81.5 weeks at $475.12 per week, or $38,722.28, for a
   total gross income lost for the period April 16, 1991
   through December 31, 1992 of $38,827.28.

 Based on the aforementioned arguments and computations, the

respondent believes that Mr. Nantz's gross income loss for the
relevant periods in question would be no more than $33,988.50
rather than $38,827.28.

Gross Income Received

 The respondent agrees that the purpose of damages in this

case is to make Mr. Nantz whole. However, it takes the position
that since Mr. Nantz had a duty to mitigate his damages by
seeking employment, all of the gross income, including
unemployment insurance income, that he received for the period
April 16, 1991, through December 31, 1992, should be subtracted
in determining his compensable damages. The respondent points
out that had Mr. Nantz's employment with the respondent not been
terminated, he would not have had any of the income he
subsequently received during the period April 16, 1991,
through December 31, 1992, from the following sources:

Source of income Amount Time period

Cloverfork Mining & Excavating $11,451.68 (9/91-1/5/92)
C & L Logging $ 1,340.00 (5/6/92-6/30/92)
Unemployment insurance $ 2,260.00 (1991)
Unemployment insurance $ 8,005.00 (1992)
TOTAL $ 23,056.68

 The respondent takes issue with the Secretary's discounting

of any income earned by Mr. Nantz during the lay off period
covering August 14, 1991 through September 30, 1991, simply
because he would not have been employed with the respondent
during that time. The respondent believes that whatever income
Mr. Nantz earned following his termination should be deducted
from the gross wages he would have earned with the respondent.

 The respondent points out what it believes is an error in

the figures submitted by the Secretary with respect to
Mr. Nantz's employment with Cloverfork Mining. The respondent
asserts that although the Secretary has stated that Mr. Nantz
earned $2,565, during the period August 14, 1991, through
September 30, 1991, the payroll check stubs submitted by the
Secretary (Exhibit PT 5), for the weeks during this period only
total $1,707.

 The respondent believes that the Secretary's failure to

subtract the difference between Mr. Nantz's fourth quarter 1991
earnings with Cloverfork Mining ($8,771.53), and the backpay he
would have earned in that quarter ($6,176.56), in computing
backpay (Brock affidavit, Exhibit P 4), on the ground that the
interim earnings were greater than the backpay, is unreasonable
and unfair. The respondent argues that had Mr. Nantz continued
in the respondent's employ, he would not have had this additional
income and it should therefore be subtracted in full from any
backpay award.

 The respondent asserts that although the W-2 payroll records

submitted by Mr. Nantz establish that he had gross income from

Cloverfork Mining of $11,451.68, the Secretary only subtracted a
total of $6,291.71 for gross income from Cloverfork following his
termination. The respondent concludes that this is clearly
erroneous, and it believes that in determining any compensable
damages due Mr. Nantz, the total gross income he received
following his termination ($23,056.68), should simply be
subtracted from the total gross income he lost. The respondent's
calculations in this regard are as follows:

           $33,988.50 (39.6 hours)
          -$23,056.68
           $10,931.82

            $38,827.28 (43.45 hours)
           -$23,056.68
            $15,770.60

Deductible Weeks

 Citing Metric Constructors, Inc., 3 FMSHRC 1260 (February

1984), aff'd, Brock v. Metric Constructors, Inc., 766 F.2d 469
(11th Cir. 1985), the respondent argues that Mr. Nantz's backpay
claim should be barred because of his admitted failure to
immediately seek other employment, or, in the alternative, that
at least two weeks of backpay should be deducted in computing
damages.

 The respondent maintains that any backpay award in this case

should be reduced by a four-month or seventeen-week period
because of the Secretary's unreasonable delay in bringing this
action within a 120-day period as provided by the Act and the
Commission's rules. Conceding that it did not attempt to prove
that the delay made any of its witnesses unavailable or its
defense to the complaint impossible, the respondent points out
that it has never agreed that the delay should not be considered
in computing a backpay award.

 The respondent asserts that by rejecting foreman Farley's

offer to return to work, or Farley's offer to attempt to put him
back to work unless he was paid his backpay in full, Mr. Nantz
has in effect failed to mitigate his damages by not pursuing this
offer pending litigation of his claim for backpay. Since the
offer took place sometime in June or July 1991, the respondent
argues that Mr. Nantz's rejection of the Farley offer
disqualifies him for any backpay weeks after June or July 1991.
Giving Mr. Nantz the benefit of assuming that the offer was made
at the end of July 1991, the respondent concludes that Mr. Nantz
should be entitled to backpay for no more than 15 weeks, from
April 16, 1991, through July 31, 1991, less the two (2) weeks he
did not seek employment, or a total of 13 weeks.

 The respondent agrees that the medical damages are

$1,426.76, and that they should be added to any backpay award.
The respondent submits that the backpay award with interest and
medical damages could range from $17,481.23, based upon a 43.45
hour work week and without subtracting any weeks for the
Secretary's delay, Mr. Nantz's delay in seeking employment, or
his rejection of reemployment, but including unemployment
insurance, to a low figure of $6,237, on the basis of a 39.6 hour
work week for only the 13 weeks preceding Mr. Nantz's rejection
of the offer of reemployment, but not deducting for any income
received since the record fails to establish whether he received
any income during that period of time, although he may have
received some small amount of unemployment insurance benefits.
The various possible calculations submitted by the respondent are
included as an attachment to this decision.

                  Findings and Conclusions

 In a discrimination case, the amount of backpay to be

awarded as part of the remedial remedy is the difference between
what the employee would have earned but for his wrongful
termination and his actual interim earnings. OCAW v. NLRB, 547
F.2d 598, 602 D.C. Cir. 1976); cert. denied, 429 U.S. 1078
(1977), cited and followed by the Commission in Northern Coal
Company, 4 FMSHRC 126 (February 1982), and Belva Coal Company,
4 FMSHRC 982 (June 1982). Further, the employee must make a
reasonably diligent effort to mitigate his loss of income or
other damages, and his failure to do so may, in appropriate
circumstances, result in a reduction of any backpay award, OCAW
v. NLRB, supra; Northern Coal Company, supra.

 In the Belva Coal Company case, supra, at 4 FMSHRC 994-995,

the Commission stated as follows:

        In Northern Coal Co., 4 FMSHRC 126, 144 (1982), we
   followed precedent established under the National Labor
   Relations Act and defined back pay as the sum equal to the
   gross pay the miner would have earned but for the
   discrimination, less his "actual net interim earnings."
   "Net interim earnings" is an accepted term of art which does
   not refer to net earnings in the usual sense (gross pay
   minus various withholdings). Rather, the term describes the
   employee's gross interim earnings less those expenses, if
   any, incurred in seeking and holding the interim employment-
   expenses that the employee would not have incurred had he
   not suffered the discrimination. To remove any possible
   confusion, we will henceforth refer to the term as "actual
   interim earnings." See OCAW v. NLRB, 547 F.2d 598, 602
   (D.C. Cir. 1976), cert. denied, 429 U.S. 1078 (1977).


 In Secretary/Bailey v. Arkansas Carbona, 5 FMSHRC 2042

(December 1983), the Commission stated as follows:

        Back pay and interest shall be computed by the
   "quarterly" method. See Florida Steel Corp., 231 NLRB at
   652; F.W. Woolworth Co., 90 NLRB 289 (1950), approved NLRB
   v. Seven-Up Bottling Co., 344 U.S. 344 (1953). Under this
   method (referred to as the "Woolworth formula," after the
   NLRB's decision in the case of the same name, supra),
   computations are made on a quarterly basis corresponding to
   the four quarters of the calendar year. Separate
   computations of back pay are made for each of the calendar
   quarters involved in the back pay period. Thus, in each
   quarter, the gross back pay, the actual interim earnings, if
   any, and the net back pay are determined.

                         Back Wages

 The Secretary's back wage calculations are based on an

average weekly salary based on a 40-hour week at $10.50 per hour,
plus 3.5 weekly hours of overtime at $15.75 per hour, for a total
gross weekly salary of $475.12. The Secretary's calculations are
based on Mr. Nantz's wage and hour history covering a 32-week
period prior to his termination on April 16, 1991, rather than
the shorter 15-week period covering only the year 1991, as
submitted by the respondent. I take note of the fact that in
calculating Mr. Nantz's average weekly pay rate, the Secretary
did not include several weeks in 1990 where the pay information
was not known or documented, or the week of April 20, 1991, when
Mr. Nantz was terminated and did not finish the week.

 After careful consideration of the arguments advanced by the

parties, I conclude and find that the Secretary's computations
are both reasonable and proper and provide a more accurate and
realistic base for computing Mr. Nantz's average weekly gross pay
for purposes of calculating his damages. I accept and adopt the
Secretary's calculation of $475.12, as a reasonably accurate
reflection of Mr. Nantz's average gross weekly wages, and I
reject the respondent's argument to the contrary.

 I take note of the fact that the interim employment

information and calculations submitted by the parties basically
cover the period beginning the week after Mr. Nantz's termination
on April 16, 1991, through December 31, 1992. Any damages due
Mr. Nantz will have to be adjusted to account for the subsequent
time period before his actual reinstatement or payment of
damages.

 The parties are in agreement that the 6.5 week mine layoff

from August 14, 1991, through September 30, 1991, which would
have affected Mr. Nantz, should not be included in calculating
the work weeks lost by Mr. Nantz as a result of his termination.

Utilizing the respondent's calculations based on the Secretary's
$475.12 weekly gross wage, which I have adopted, I conclude and
find that Mr. Nantz would have lost $105 for the week ending
April 21, 1991, plus 81.5 weeks at $475.12 per week, or
$38,722.28, for a total gross income lost for the period
April 16, 1991, through December 31, 1992, of $38,827.28.

               Back Wages Adjustments/Deductions

Interim Earnings

 The record reflects that Mr. Nantz had gross earnings of

$11,451.68, for employment with Cloverfork Mining & Excavating
during September, 1991 through February 5, 1992, and gross
earnings of $1,340, for employment with C & L Logging during
May 6, 1992, through June 30, 1992. I agree with the
respondent's position that the sum total of these interim
earnings should be deducted from any backpay award to Mr. Nantz.
However, I disagree with the respondent's position that the
failure by the Secretary to offset $2,565 in Cloverfork Mining
earnings by Mr. Nantz during the lay off period was unreasonable.
The parties agree that Mr. Nantz would not have been employed
during the layoff period, and they have taken this into account
by not counting the layoff period as part of their back wage
computation. By the same token, if Mr. Nantz had not been
terminated, he would have been out of work during the layoff
period and could have used that time to either work at another
job or stay home. The fact that he worked another job during the
time when he would have otherwise been laid off should not be
held against him, and he should not be penalized by deducting any
wages earned during the layoff from any backpay award. Under the
circumstances, the respondent's arguments are rejected, and I
conclude and find that the Secretary's discounting of the wages
earned during the layoff period was reasonable and proper.

 As noted earlier, the amount of any backpay award in a

discrimination case is the difference between what the miner
would have earned but for the discrimination and his actual
interim earnings. Except for my rejection of the respondent's
arguments that the $2,565 earned by Mr. Nantz from Cloverfork
Mining during the August/September 1991 mine layoff, should be
offset from any backpay award, I otherwise agree with the
respondent's position that the sum total of Mr. Nantz's interim
earnings should be deducted from what he would have otherwise
earned had he not been terminated. I reject the Secretary's
failure to subtract the difference between Mr. Nantz's fourth
quarter 1991 Cloverfork Mining earnings of $8,771.53, and the
$6,176.56, backpay he would have earned in that quarter, from his
overall backpay award.

 I conclude and find that Mr. Nantz's interim earnings of

$1,340 with C & L Logging should be deducted from the $38,827.28,
income lost for the period April 16, 1991, through December 31,
1992. I further conclude and find that $8,886.68, in interim
earnings from Cloverfork Mining ($11,451.68 less $2,565.00)
should be deducted from the income lost during this same time
period.

Mitigation of Damages

 An employee who has been discriminated against by his

employer must make a reasonable effort to seek alternative
employment following his unlawful termination. Ocaw v. NLRB,
547 F.2d 598, 603 (D.C. Cir. 1976), cert. denied, 429 U.S. 1078
(1977). Any determination as to what constitutes a "reasonable
effort" is made on the peculiar facts of the case. NLRB v.
Madison Courier Inc., 472 F.2d 1307, 1318 (D.C. Cir. 1972).

 In Metric Constructors, Inc., 6 FMSHRC 232 (February 1984),

aff'd, Brock, ex rel Parker v. Metric Constructors Inc., 766 F.2d
469, 473 (11th Cir. 1985), the Commission affirmed a Commission
Judge's denial of one week of back pay for an employee who failed
to make a reasonable effort to seek employment during the week
following his termination. The Commission also approved the
Judge's following and applying NLRB cases under the National
Labor Relations Act.

 The respondent concludes that Mr. Nantz's failure to look

for other work for two or three weeks after his employment
termination waiting to see if the respondent would call him back
to work was clearly nonsensical. Relying on the decision in
Metric Constructors, Inc., supra, the respondent submits that at
least three weeks of any back pay award should be deducted
because of Mr. Nantz's failure to seek employment during the
period immediately following his termination.

 Mr. Nantz confirmed that he waited two or three weeks after

he was terminated before looking for other work waiting to see if
the respondent would call him back to work (Tr. 27). Mr. Nantz
explained that he heard nothing further from Mr. Farley after his
termination of April 16, 1991, regarding any offers of
reemployment, and he stated that "I just kept waiting on him to
call, and he never called" (Tr. 82-83).

 I take note of the fact that the Secretary did not use the

week that Mr. Nantz was terminated in calculating his backpay.
However, the Secretary does not address Mr. Nantz's admission
that he waited for an additional two weeks before looking for
other work, nor does the Secretary address the respondent's
arguments with respect to this issue.

 After careful consideration of the argument advanced by the

respondent, I conclude and find that Mr. Nantz's failure to begin
his search for work during the three or four days following his
termination was not unreasonable. However, I further conclude
and find that it was unreasonable for Mr. Nantz to wait an
additional two weeks before looking for work. I find no credible
evidence to support any conclusion that Mr. Nantz had any
reasonable expectation of being rehired by the respondent
following his termination, and he admitted that he made no effort
to contact mine management to seek reemployment and stated that
he "wouldn't work for a man who did not pay him". Under the
circumstances, I conclude and find that two-weeks should be
deducted from Mr. Nantz's backpay award. Accordingly, I have
deducted $950.24 ($475.12 x 2) from Mr. Nantz's backpay award.

           Unemployment Compensation Payments

 The parties are in agreement that any reduction of backpay

due for unemployment payments is a matter of discretion with the
presiding Judge. Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983),
affirming in part its prior decision on this issue in Boich v.
FMSHRC, 704 F.2d 275 (6th Cir. 1983).

  The respondent maintains that all gross income received by

Mr. Nantz subsequent to his termination, including unemployment
compensation payments, should be subtracted from his compensable
damages. The respondent concludes that if Mr. Nantz had not been
terminated and remained in its employ, he would not have received
any of the 1991 and 1992 income which has been documented in this
case.

 A backpay award pursuant to the Act is an equitable remedy

intended to make the victim of discrimination in violation of
section 105(c) of the Act whole and to restore him to his prior
economic status absent the discrimination. I find no compelling
reason for providing Mr. Nantz additional recovery for his lost
wages over and above his backpay with interest by not deducting
the unemployment compensation payments he has received.

 The respondent has been assessed a civil penalty of $1,000,

for its discriminatory conduct which resulted in Mr. Nantz's
employment termination on April 16, 1991. Since the penalty
assessment is a punitive sanction intended to deter further
discriminatory conduct by the respondent, I find no compelling
reason or circumstances for imposing an additional sanction
against the respondent by not crediting it with the unemployment
payments received by Mr. Nantz. Under the circumstances, I
conclude and find that any unemployment benefit payments received
by Mr. Nantz should be deducted from his compensable damages.
Accordingly, I have deducted $10,265.00, in 1991 and 1992
unemployment compensation payments received by Mr. Nantz from his

backpay award covering the period April 16, 1991, through
December 31, 1992.

Delay in Filing Complaint

 The respondent's contention that Mr. Nantz's backpay award

should be reduced by a four-month or seventeen-week period
because of the Secretary's unreasonable delay in filing the
complaint with the Commission IS REJECTED. The respondent has
not proved that it has been prejudiced by any delay and in fact
concedes that any delay did not make any of its witnesses
unavailable, or that it had any adverse impact on its ability to
defend the complaint. Further, in my decision of November 2,
1992, I rejected the respondent's arguments with respect to any
unreasonable delay by the Secretary, 11 FMSHRC 1882-1883, and my
findings and conclusions in this regard are herein incorporated
by reference and they are REAFFIRMED. I conclude and find that
Mr. Nantz's backpay award should not be reduced because of the
asserted delay by the Secretary.

Rejected Reemployment Offer

 The respondent's assertion that Mr. Nantz should be

disqualified for any backpay subsequent to July 31, 1991, because
he failed to mitigate his damages by rejecting foreman William
Farley's offer to put him back to work, or to "attempt" to put
him back to work, IS REJECTED. This issue was previously raised
by the respondent and I rejected its arguments and found no
credible evidence to support any conclusion that Mr. Farley made
any bona fide offer to rehire Mr. Nantz. Indeed, the evidence
reflects that Mr. Nantz's replacement was immediately hired by
foreman Wayne Fisher when Mr. Nantz was effectively terminated on
April 16, 1991, and that this was done with mine superintendent
Louis Hamilton's blessing. Under all of these circumstances, my
previous findings and conclusions are herein adopted by reference
and REAFFIRMED, and I conclude and find that Mr. Nantz's backpay
award should not be reduced because of any purported offer by
mine management to reemploy Mr. Nantz, or any rejection of this
offer by Mr. Nantz.
ORDER

 0n the basis of the foregoing findings and conclusions,

including the reductions made for Mr. Nantz's interim earnings
with Cloverfork Mining and C & L Logging, his waiting two weeks
after his termination to begin looking for work, and his
unemployment compensation payments, I conclude and find that the
gross backpay award for Mr. Nantz for the period April 16, 1991,
through December 31, 1992, less interest, is $17,385.36. I also
conclude and find that Mr. Nantz is entitled to an additional sum

of $1,426.76, for medical expenses which the parties agree he
would have been entitled to under the respondent's health
insurance plan had he remained employed with the respondent.

 IT IS ORDERED THAT:

 1. My decision in this case, issued on November 19,
 1992, is now final.

 2. The respondent shall reinstate Mr. Nantz to his
 former position with full backpay and benefits, with
 interest, from April 16, 1991, the date of his
 termination, and adjusted to the date of his
 reinstatement, at the same rate of pay, on the same
 shift, and with the same status and classification that
 he would now hold had he not been unlawfully
 terminated. The gross backpay award due Mr. Nantz
 pursuant to this decision shall be subject to the usual
 and normal withholdings. Backpay and interest will
 continue to accrue until Mr. Nantz is reinstated and
 paid.

 The interest accrued with respect to Mr. Nantz's
 backpay award shall be computed in accordance with the
 Commission's decision in Local Union 2274, UMWA v.
 Clinchfield Coal Co., 10 FMSHRC 1493 (November 1988),
 aff'd sub nom. Clinchfield Coal Co. v. FMSHRC, 895 F.2d
 773 (D.C. Cir., 1990), and calculated in accordance
 with the formula in Secretary/Bailey v. Arkansas
 Carbona, 5 FMSHRC 2042 (December 1983), and at the
 adjusted prime rate announced semi-annually by the
 Internal Revenue Service for the underpayment and
 overpayment of taxes.

 3. The respondent shall reimburse and pay to Mr. Nantz
 $1,426.76, with interest, in medical expenses which would
 have been covered by his medical insurance had he not been
 terminated.

 4. The respondent shall expunge from Mr. Nantz's personnel
 file and/or company records all references to the
 circumstances surrounding his employment termination of
 April 16, 1991.

 5. The respondent shall pay to the Secretary (MSHA), a
 civil penalty assessment of $1,000, for the discriminatory
 violation which has been sustained.



 The respondent shall comply with this Order within thirty

(30) days of the date of this final decision.

                            George A. Koutras
                            Administrative Law Judge

Attachment

Distribution:

MaryBeth Bernui, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
32715 (Certified Mail)

David O. Smith, Marcia A. Smith, Esqs., 100 West Center Street,
P.O. Box 699, Corbin, KY 40702 (Certified Mail)

/ml