Jack Parks v. L & M Coal Corporation (ALJ decision, May 21, 1982)

Plain-English summary

An earlier decision found that L & M Coal Corporation had unlawfully discharged miner Jack Parks, and that liability ruling was affirmed on review. This later proceeding set the amount due to Parks under the existing remedy. Judge James A. Broderick found that the company had notice of the hearing even though it did not appear. He ordered $41,146.18 in back wages and interest, $7,150.23 in legal expenses, $6,629.12 in benefit fund contributions, and $61.97 in litigation expenses, all payable within 30 days. Upon payment, Parks would no longer be entitled to reinstatement or further relief for the discharge under the 1969 Coal Mine Safety Act.

Decision snapshot

• Cited standards: None; this order quantifies relief for a prior discrimination ruling.
• Outcome: $54,987.50 in total back pay, interest, fees, contributions, and expenses ordered; no new mine safety penalty assessed.
• Key point: The judge calculated the monetary remedy after the earlier liability decision had been affirmed.

Full text (FMSHRC public release)

CCASE:
JACK PARKS V. L&M COAL
DDATE:
19820521
TTEXT:
~919

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

JACK PARKS,
Complaint of Discharge,
APPLICANT
Discrimination, or Interference
v.
Docket No. NORT 75-377
L & M COAL CORPORATION,
RESPONDENT

DECISION

Appearances: Mary Lu Jordan, Esq., United Mine Workers of America, Washington, D.C., for Applicant
No appearance for Respondent

Before: Administrative Law Judge Broderick

STATEMENT OF THE CASE

The case is before me on a motion filed by Applicant for a post decision hearing to determine the amount due Applicant as back wages, costs and expenses pursuant to the order in my decision of November 9, 1977. The decision was affirmed by the Commission (2 FMSHRC 2815) and the Court of Appeals for the Fourth Circuit (Unpublished Opinion October 7, 1981 No. 80-1320).

A Notice of Hearing was issued March 30, 1982, scheduling a hearing in Abingdon, Virginia, for April 29, 1982. On March 30, 1982, counsel for Respondent filed a motion to withdraw as counsel because he had been appointed to a Judicial position in Virginia. Counsel stated that he had advised his client of the motion and suggested that he retain other counsel.

On April 2, 1982, I issued an order granting the motion of counsel to withdraw and notifying Respondent of the time and place of the hearing. The notice was sent by certified mail and returned unclaimed April 29, 1982. On April 27, 1982, I called Respondent's former attorney who stated that he sent a copy of the notice of hearing to Respondent when he received it, but had not heard from Respondent. On ~919
April 27, 1982, I attempted to call Respondent's President, W. L. Lanningham, at his home (there was no listing for the corporation). My Secretary talked to a person who identified herself as his wife and asked Mr. Lanningham to call. No call was received. Under the circumstances, I find that Respondent was notified of the hearing. No one appeared on his behalf.

Evidence was received at the hearing and submitted subsequent to the hearing by Complainant on the issues of back pay, interest, legal expenses and costs of litigation. Based on the evidence submitted and on the entire record, I make the following decision on the amounts due Complainant:

BACK PAY

My order directed Respondent to pay Complainant full back wages from the date of discharge (May 9, 1975) to the date he is reinstated with interest thereon computed at the rate of 6 percent per annum. Respondent was permitted to deduct from the back wages due under the order, any wages Complainant received from other employment. Complainant is seeking back pay only for the period from May 9, 1975 to December 5, 1977.

1. Back pay, including vacation pay, holiday pay, unused sick leave pay and cost of living allowances which Complainant would have received for the period in question totals $37,708.45. Interim earnings total $7,318.69. The net back pay due Complainant is $30,389.76.

2. Interest on the net back pay at the rate of 6 percent per annum totals $10,756.42. My order directed that interest be paid at 6 percent although under the formula followed by the NLRB and by me in more recent decisions, the rate would fluctuate between 6 percent and 20 percent for the periods involved. I am using the rate of 6 percent per annum since my order specified payment of interest at 6 percent.

3. Complainant is entitled to have payments made to the United Mine Workers Health and Retirement Fund on his behalf as part of back wages. The amount that would have been paid for the period involved is $6,629.12.

LEGAL EXPENSES

1. At the time the case was tried Complainant was represented by an attorney in private who was engaged by the United Mine Workers. When the UMW counsel took over the case directly, the UMW ~920 paid the private counsel the sum of $5,329.46. UMW attorneys, based on their salaries, health and pension benefits, are entitled additionally to a total of $1,820.77.

2. Complainant had costs in the amount of $61.97 for attendance at the hearing in Abingdon.

ORDER

Respondent shall within 30 days of the date of this decision pay the following amounts pursuant to my order of November 9, 1977:

1. To Complainant Jack Parks the sum of $41,146.18 as back wages and interest.

2. To Complainant Jack Parks and the United Mine Workers of America the sum of $7,150.23 as attorneys fees and legal expenses.

3. To the United Mine Workers Health and Retirement Fund on behalf of Complainant Jack Parks the sum of $6,629.12 as employer contributions to the Pension and Benefit Trusts.

4. To Complainant Jack Parks the sum of $61.97 as incidental expenses of litigation.

IT IS FURTHER ORDERED that upon payment of the above amounts, Complainant will not be entitled to reinstatement, nor will he have any other claim against Respondent under the Coal Mine Safety Act of 1969, resulting from his discharge on May 9, 1975.

James A. Broderick
Administrative Law Judge