Consolidation Coal Company (Commission decision, March 31, 1997)

Plain-English summary

This discrimination proceeding involved miners who refused work and later sought back pay and other relief. The Commission had already reversed the judge's earlier determination that the refusal was unreasonable and unprotected, then remanded for back-pay and penalty proceedings. The Commission denied Consolidation Coal's February petition for discretionary review but granted its later petition and directed review of the judge's March 6 penalty decision. The Commission said the penalty decision might be contrary to law because the judge may not have made all findings required by 30 U.S.C. § 820(i).

Decision snapshot

• Cited provision(s): 30 U.S.C. § 820(i), 30 U.S.C. § 823(c), 30 U.S.C. § 823(d)(2)(B)
• Outcome: One petition for discretionary review was denied, a later petition was granted, and the Commission directed review of the penalty decision.
• Key point: Commission review may be directed when an ALJ penalty decision may omit findings required by the Mine Act's statutory penalty criteria.

Full text (FMSHRC public release)

[DOCID: f:hannah.wais]

CONSOLIDATION COAL COMPANY
March 31, 1997
LAKE 94-704-D

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1730 K STREET NW, 6TH FLOOR

WASHINGTON, D.C. 20006

March 31, 1997

SECRETARY OF LABOR,
:
MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA), : on behalf of KENNETH HANNAH, : PHILIP PAYNE, and FLOYD MEZO :
: Docket No. LAKE 94-704-D
v. :
:
CONSOLIDATION COAL COMPANY :

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners[1]

DIRECTION FOR REVIEW AND ORDER

BY THE COMMISSION:

This discrimination proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). On December 10, 1996, the Commission reversed Administrative Law Judge Gary Melick's determination that the miners' work refusal was unreasonable and unprotected and his finding that the operator's subsequent conduct did not violate the Mine Act and remanded this matter to the judge for computation of a backpay award and assessment of a civil penalty. 18 FMSHRC 2085 (December 1996). On February 5, 1997, the judge issued a partial decision, stating that the parties had agreed to the amounts of backpay and interest to be awarded, but that significant issues remained concerning the assessment of a civil penalty. 19 FMSHRC 435 (February 1997) (ALJ). On February 18, 1997, Consolidation Coal Company ("Consolidation") filed a petition for discretionary review of that decision. Thereafter, on March 6, 1997, the judge issued a final decision on the assessment of a civil penalty. 19 FMSHRC _____ (March 1997. On March 28, 1997, Consolidation filed an additional petition for discretionary review of the March 6, 1997 decision.

Consolidation's February 18, 1997 petition for discretionary review is denied.

Consolidation's March 28, 1997 petition for discretionary review is granted. In addition, pursuant to section 113(d)(2)(B) of the Mine Act, 30 U.S.C. § 823(d)(2)(B), the Commission on its own motion, directs review of the March 6, 1997 decision on the ground that it may be contrary to law in that the judge may have failed to make all the requisite findings under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), in assessing penalties against Consolidation.

Mary Lu Jordan, Chairman

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

Mary Lu Jordan, Chairman

For the Commission:

FOOTNOTES

[1]: Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of the Commission.