Bruce Young, d/b/a BNA Trucking and Yogo, Inc.

Plain-English summary

William DeLong brought a Mine Act discrimination case arising from his alleged February 23, 1995 discharge by BNA Trucking and Yogo, Inc. The parties agreed to reinstate him as a truck driver as of October 10, 1995, recognize his seniority from his first employment in August 1994, and pay him $5,000 for alleged mental and emotional distress. The respondents denied violating section 105(c) of the Act, and the judge found the settlement consistent with that provision. Because the parties left the civil penalty to the judge, Judge Arthur J. Amchan assessed a $500 penalty, payable within 30 days.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c); 30 U.S.C. § 820(i)
• Outcome: The settlement was approved, DeLong was to be reinstated with seniority and $5,000 compensation, and a $500 civil penalty was assessed.
• Key point: A settlement approval order is enforceable even when the respondents deny violating the Mine Act.

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

                     January 17, 1996

SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT
MINE SAFETY AND HEALTH : PROCEEDING
ADMINISTRATION (MSHA), :
On behalf of WILLIAM DELONG, : Docket No. KENT 95-769-D
Complainant : MSHA Case No. PIKE CD 95-16
v. :
: Martiki Surface Mine
BRUCE YOUNG, d/b/a BNA : Mine I.D. No. 24-01490
TRUCKING AND YOGO, INC., :
Respondent :
:
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-770-D
On behalf of WILLIAM DELONG, : MSHA Case No. PIKE CD 95-16
Complainant :
v. : Martiki Surface Mine
: Mine I.D. No. 24-01490
BRUCE YOUNG, d/b/a BNA :
TRUCKING AND YOGO, INC., :
Respondent :

             DECISION APPROVING SETTLEMENT;
              ASSESSMENT OF CIVIL PENALTY

 The parties have submitted an executed settlement agreement

in this matter which includes the following items:

 1. Complainant, William DeLong, agrees not to institute

any further legal action arising from his alleged discharge of
February 23, 1995;

 2. Respondents agree to reinstate Mr. DeLong as of

October 10, 1995, as a truck driver for Yogo, Inc., at a rate
of $7.00 per hour;

 3. Respondents agree that DeLong shall have seniority as a

truck driver for Yogo from the date of his first employment with
Respondent Bruce Young d/b/a BNA Trucking in August, 1994;
4. Respondents agree to provide to Mr. Delong and the
Secretary of Labor a seniority list of all truck drivers employed
by Yogo, Inc., as of October 10, 1995;

 5. Respondents agree that layoffs, if they occur, will be

based on the aforementioned seniority list;

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 6. Respondents agree to pay Mr. DeLong $5,000 for alleged

mental and emotional distress in accordance with a schedule set
forth in the agreement;

   7.   Respondents deny any violations of section 105(c) of the

Act.

 I have considered the representations set forth in settle-

ment agreement and have determined that they are consistent
with section 105(c) of the Act. I do note that regardless of
Respondents’ denial of any violation of the Act, the order
approving the settlement in this matter is enforceable to the
same extent as any other order of the Commission under section
106(b) of the Act.

                 ASSESSMENT OF CIVIL PENALTY

 The parties have left assessment of the civil penalty to the

undersigned judge. Applying the penalty criteria set forth in
section 110(i) of the Act, and particularly noting the good faith
demonstrated by Respondents in reinstating Mr. DeLong, I conclude
that a civil penalty of $500 is appropriate.

                            ORDER

 The parties motion for approval of the settlement agreement

is GRANTED. Since the parties have informed the undersigned that
BNA Trucking is no longer in business, Respondents Bruce Young
and/or Yogo, Inc. are ordered to pay to the Secretary of Labor a
civil penalty of $500 within 30 days of this decision.

                              Arthur J. Amchan
                              Administrative Law Judge

Distribution:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862

Tony Oppegard, Esq., Mine Safety Project of the
Appalachian Research & Defense Fund of Kentucky, Inc.,
630 Maxwelton Court, Lexington, KY 40508

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Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S.C.,
415 Second Street, P.O. Box 351, Pikeville, KY 41502-0351

/lh