Secretary of Labor on behalf of John Cooley v. Ottawa Silica Company (ALJ decision, August 15, 1984)

Plain-English summary

The Commission had affirmed that Ottawa Silica Company discriminated against John Cooley but returned the case for a new calculation of his remedy. The parties stipulated to $28,738.08 in wages, $618.40 in vacation pay, pension contributions, and $13,226.45 in interest through June 30, 1984, with interest continuing until payment. Judge George A. Koutras corrected two figures in the attached calculations and adopted the stipulation as his final order. He ordered payment to Cooley and reinstatement as provided in his earlier decision. The stipulation's paragraph 9 refers to $33,053.17 in back wages, while paragraph 8 and Exhibit A give $29,356.48 in wages and vacation pay; both figures are preserved below.

Decision snapshot

• Cited provision: Mine Act discrimination protection, 30 U.S.C. § 815(c).
• Outcome: Corrected remedy stipulation entered; $29,356.48 in wages and vacation pay, plus pension contributions and stated interest.
• Key point: The judge adopted the parties' post-remand remedy calculation while expressly correcting two errors in the attached exhibits.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. OTTAWA SILICA
DDATE:
19840815
TTEXT:
~1979

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

SECRETARY OF LABOR,
DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. LAKE 81-163-DM
ON BEHALF OF
JOHN COOLEY,
Michigan Division Quarry
COMPLAINANT v.

OTTAWA SILICA COMPANY,
RESPONDENT

ORDER

On March 30, 1984, the Commission issued its decision in this matter reaffirming my decision that the complainant John Cooley was discriminated against in violation of section 105(c) of the Federal Mine Safety and Health Act of 1977. However, the Commission vacated my findings concerning the back pay and other benefits due the complainant, and remanded the case for a recomputation of the amount due the complainant.

In response to my Order of April 16, 1984, the parties have now filed a stipulation concerning the amount due to the complainant. Upon review and consideration of this stipulation, I conclude and find that it complies with the Commission's remand order, and a copy of the stipulation is attached hereto and incorporated by reference. However, I take note of two typographical errors in the materials attached as part of the stipulation, and they are as follows:

Exhibit B - Back Pay 2nd Quarter 1980 - Should read $2,168.08, rather than $21.68.08.

Exhibit B - Back Pay 3rd Quarter 1980 $3,542.98. The amount shown as $3,542.98, rather than $4,032.05, should be shown as the actual multiplier for each of the computations made for the periods reflected as the interest due the complainant.

Having noted the aforesaid typographical errors, the corrections noted are incorporated herein by reference, and the stipulations, as corrected, are herein entered as my final ~1980 order in this matter, and the respondent IS ORDERED to make payment to Mr. Cooley in the amounts shown, and to reinstate him as provided in my decision.

George A. Koutras
Administrative Law Judge
~1981
STIPULATION OF PARTIES ON REMAND

Now comes the parties, by their respective attorneys and, in response to the March 30, 1984 Decision of the Federal Mine Safety and Health Review Commission remanding this matter to Administrative Law Judge George Koutras for a reformulation of the remedial order, enter into the following stipulations.

1. Administrative Law Judge George Koutras' June 3, 1982 Decision ordered defendant to reinstate John Cooley with back pay from May 5, 1980.

2. John Cooley has not been reinstated.

   3. Had John Cooley been reinstated on May 5, 1980, he
      would have been furloughed by defendant due to lack of work beginning April 19, 1982.

   4. John Cooley's furlough would have continued through at
      ~1982
      least April 20, 1984. Pursuant to the collective bargaining agreement between the Michigan Division of the Ottawa Silica Company and Teamster's Local Union No. 283 (hereinafter Labor Agreement), a furlough of more than two years breaks the employee's seniority and terminates his right to recall with defendant.

   5. For the perior May 5, 1980 through April 19, 1982, John
      Cooley's wages as a laborer would have totaled $28,738.08.

   6. For the period May 5, 1980 through April 19, 1982, John
      Cooley's vacation pay would have totaled $618.40.

   7. Pursuant to the Labor Agreement, for the period May 5,
      1980 through April 19, 1982, defendant shall make pension contributions on behalf of John Cooley to the Central States Southeast and Southwest Areas Pension Fund.

   8. For the period May 5, 1980 through April 19, 1982, the
      total of John Cooley's back wages listed in paragraphs 5 throuth 7 herein is $29,356.48 and is broken down by calendar quarters in the attached Exhibit A.

   9. Under the formula provided in Bailey v Arkansas-Carbona
      Co. & Weller, 3 MSHC 1152 (Dec. 1983), interest on the $33,053.17 in back wages through June 30, 1984 is $13,226.45. The interest computations are contained in the attached sheets labeled as Exhibit B.

   10. Interest will continue to accumulate under the
       Arkansas-
       ~1983
       Carbona formula until such time as the back wages and accumulated interest are paid in full.

                                  Respectfully submitted,
       

       OTTAWA SILICA COMPANY
       By: FRANK X. FORTESCUE, ESQ. FRANCIS X. LILLY
       Brown, McGlynn & Fortescue Solicitor of Labor
       500 N. Woodward, Suite 320
       Bloomfield Hills, MI. 48013 JOHN H. SECARAS
       Regional Solicitor

                                  DAVID WIGHTMAN
                                  Attorney
       
                                  Attorneys for Raymond J. Donovan,
                                  Secretary of Labor, United States
                                  Department of Labor
       

       ~1984
       EXHIBIT A

   Period Wages Vacation Total

4/1/80-6/30/80 2,168.08 2,168.08
2,168.08

7/1/80-9/30/80 3,490.08 8 hrs. x 6.61 3,542.96
$52.88

10/1/80-12/31/80 3,694.96 3,694.96
3,694.96

1/1/81-3/31/81 3,742.72 3,742.72

4/1/81-6/30/81 3,801.20 3,801.20
3,801.20

7/1/81-9/30/81 3,859.68 16 hrs. x 7.31 3,976.64
$116.96

10/1/81-12/31/81 4,072.48 4,072.48

1/1/82-3/31/82 3,075.84 3,075.84

4/1/82-6/30/82 833.04-- 56 hrs. x 8.01 1,281.60
$448.56

TOTAL
$28,738.08 $618.40 $29,356.48
~1985
EXHIBIT B

Back Pay 2nd Quarter 1980 $21.68.08

3rd Quarter 80 2,168.08 x 91 days x .0003333 = 65.758516

4th Quarter 80 2,168.08 x 90 days x .0003333 = 65.035895

1st Quarter 81 2,168.08 x 90 days x .0003333 = 65.035895

2nd Quarter 81 2,168.08 x 90 days x .0003333 = 65.035895

3rd Quarter 81 2,168.08 x 90 days x .0003333 = 65.035895

4th Quarter 81 2,168.08 x 90 days x .0003333 = 65.035895

1st Quarter 82 2,168.08 x 90 days x .0005555 = 108.393159

2nd Quarter 82 2,168.08 x 90 days x .0005555 = 108.393159

3rd Quarter 82 2,168.08 x 90 days x .0005555 = 108.393159

TOTAL
716.12

Back Pay 3rd Quarter 1980 3542.96

4th Quarter 80 4,032.05 x 91 days x .0003333 = 107.45903

1st Quarter 81 4,032.05 x 90 days x .0003333 = 106.27817

2nd Quarter 81 4,032.05 x 90 days x .0003333 = 106.27817

3rd Quarter 81 4,032.05 x 90 days x .0003333 = 106.27817

4th Quarter 81 4,032.05 x 90 days x .0003333 = 106.27817

1st Quarter 82 4,032.05 x 90 days x .0005555 = 177.13028

2nd Quarter 82 4,032.05 x 90 days x .0005555 = 177.13028

3rd Quarter 82 4,032.05 x 90 days x .0005555 = 177.13028

TOTAL
1063.96
~1987
Back Pay 4th Quarter 1980 $3,694.96

1st Quarter 81 3,694.96 x 91 days x .0003333 = 112.06924

2nd Quarter 81 3,694.96 x 90 days x .0003333 = 110.83771

3rd Quarter 81 3,694.96 x 90 days x .0003333 = 110.83771

4th Quarter 81 3,694.96 x 90 days x .0003333 = 110.83771

1st Quarter 82 3,694.96 x 90 days x .0005555 = 184.72952

2nd Quarter 82 3,694.96 x 90 days x .0005555 = 184.72952

3rd Quarter 82 3,694.96 x 90 days x .0005555 = 184.72952

TOTAL
998.77

Back Pay 1st Quarter 1981 $3,742.72

2nd Quarter 81 3,742.72 x 91 days x .0003333 = 113.51782

3rd Quarter 81 3,742.72 x 90 days x .0003333 = 112.27037

4th Quarter 81 3,742.72 x 90 days x .0003333 = 112.27037

1st Quarter 82 3,742.72 x 90 days x .0005555 = 187.11728

2nd Quarter 82 3,742.72 x 90 days x .0005555 = 187.11728

3rd Quarter 82 3,742.72 x 90 days x .0005555 = 187.11728

TOTAL
899.41

Back Pay 2nd Quarter 1981 $3801.20

3rd Quarter 81 3,801.20 x 91 days x .0003333 = 115.29153

4th Quarter 81 3,801.20 x 90 days x .0003333 = 114.02459

1st Quarter 82 3,801.20 x 90 days x .0005555 = 190.04099

2nd Quarter 82 3,801.20 x 90 days x .0005555 = 190.04099

3rd Quarter 82 3,801.20 x 90 days x .0005555 = 190.04099

TOTAL
799.44
~1988
Back Pay 3rd Quarter 1981 $3,976.64

4th Quarter 81 3,976.64 x 91 days x .0003333 = 120.61268

1st Quarter 82 3,976.64 x 90 days x .0005555 = 198.81211

2nd Quarter 82 3,976.64 x 90 days x .0005555 = 198.81211

3rd Quarter 82 3,976.64 x 90 days x .0005555 = 198.81211

TOTAL
717.05

Back Pay 4th Quarter 1981 $4,072.48

1st Quarter 82 4,072.48 x 91 days x .0005555 = 205.86590

2nd Quarter 82 4,072.48 x 90 days x .0005555 = 203.60363

3rd Quarter 82 4,072.48 x 90 days x .0005555 = 203.60363

TOTAL
613.07
~1989
Back Pay 1st Quarter 1982 $3,075.84

2nd Quarter 82 3,075.84 x 91 days x .0005555 = 155.48524

3rd Quarter 82 3,075.84 x 90 days x .0005555 = 153.77662

TOTAL
309.26

Back Pay 2nd Quarter 1982 $1,281.60
3rd Quarter 82 1,281.60 x 91 days x .0005555 = 64.78

Back Pay $29,356.48

4th Quarter 82 29,356.48 x 90 days x .0005555 = 1,467.6772

1st Quarter 83 29,356.48 x 90 days x .0004444 = 1,174.1417

2nd Quarter 83 29,356.48 x 90 days x .0004444 = 1,174.1417

3rd Quarter 83 29,356.48 x 90 days x .0003055 = 807.1564

4th Quarter 83 29,356.48 x 90 days x .0003055 = 807.1564

1st Quarter 84 29,356.48 x 90 days x .0003055 = 807.1564

2nd Quarter 84 29,356.48 x 90 days x .0003055 = 807.1564

TOTAL
7,044.59