Emerald Mines Corporation

Plain-English summary

The Commission had previously found Emerald Mines liable for discriminating against Michael Hogan and Robert Ventura and remanded the case to Judge George A. Koutras to determine remedies. Based on the parties' stipulation, the judge ordered Emerald to pay back pay and interest to both miners, reimburse specified hearing and litigation expenses, remove the suspensions from their attendance records, and pay a $100 civil penalty. The order also required Emerald to treat the discipline as having no future effect unless the Commission's decision was reversed on appeal.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(c)(1)
• Outcome: The judge ordered specified back pay, interest, expenses, record corrections, and a $100 civil penalty under the Commission's remand.
• Key point: The supplemental order resolved the remedy phase of a discrimination case after the Commission had determined liability.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. EMERALD MINES
DDATE:
19861107
TTEXT:

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       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. PENN 83-141-D
EX. REL. MICHAEL HOGAN MSHA Case No. PITT CD 83-3
AND ROBERT VENTURA,
COMPLAINANTS Emerald No. 1 Mine

      v.

EMERALD MINES CORPORATION,
RESPONDENT

               SUPPLEMENTAL DECISION AND ORDER

Before: Judge Koutras

                      Statement of the Case

 On July 31, 1986, the Commission issued its decision in this

matter and reversed my decision of December 20, 1983, dismissing
the complaint. Secretary of Labor, et al., v. Emerald Mines
Corporation, 8 FMSHRC 1066 (July 1986). At 8 FMSHRC 1075, the
Commission noted that "There is no dispute that the five-day
suspension of Hogan and Ventura was motivated by the
complainants' protected activity," and it remanded the matter to
me for determination of appropriate remedies.

 In response to my orders issued subsequent to the remand,

the parties have filed a stipulation and agreement as to the
issues of back pay and other remedies, and they are in pertinent
part as follows:

     1. The parties agree and stipulate herein as to the
appropriate amounts of back pay, hearing and litigation
expenses and civil penalties. The parties also agree
that this stipulation contains any and all remedies
which might be considered appropriate, that no further
hearings are necessary in this matter and that an order
pertaining to Complainants' remedies may be entered.

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2. By entering into this stipulation Emerald does not
admit any violation of the Act, that it is liable for any
penalties or remedies contained herein, or that Messrs.
Hogan and Ventura are entitled to any relief as set forth
herein. Emerald fully intends to seek review of the Commission's
decision finding it liable for such penalties and remedies and
enters into this stipulation principally to expedite that process.

     3. Michael Hogan would have earned the following
amounts of pay for the days he was suspended from work
and for days he sought excusal from work pertaining to
the litigation of this matter:

                    Straight    Lunch
     Date             Time     Overtime    Total

December 28, 1982    38.83      9.96        47.79
December 29, 1982    95.58      8.96       104.54
December 30, 1982    95.58      8.96       104.54
December 31, 1982    95.58      8.96       104.54
January 3, 1983      93.18      8.74       101.92
January 4, 1983      93.18      8.74       101.92
January 11, 1983     93.18      8.74       101.92
August 2, 1983       68.78      9.26        78.04
August 23, 1983     101.98      9.56       111.54
August 24, 1983     101.98      9.56       111.54

     4. The total amount of back pay for Mr. Hogan is
$968.29. Total interest on the back pay through October
31, 1986 is $386.63.

     5. In addition, Mr. Hogan incurred expenses of $42.12
for telephone calls.

     6. Mileage expenses for Mr. Hogan would be 92 miles
for two trips to Washington, Pennsylvania for the hearing
and 26 miles for one trip to Waynesburg, Pennsylvania
to meet with the MSHA special investigator. The
applicable rate of reimbursement at the time was 20.5
cents a mile for a total mileage expense of $24.19.

     7. Robert Ventura would have earned the following
amounts of back pay for the days he was suspended from
work and for days he sought excusal from work
pertaining to the litigation of this matter:

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Straight Lunch
Date Time Overtime Total

December 28, 1982    38.83      8.96        47.79
December 29, 1982    95.58      8.96       104.54
December 30, 1982    95.58      8.96       104.54
December 31, 1982    95.58      8.96       104.54
January 3, 1983      93.18      8.74       101.92
January 4, 1983      93.18      8.74       101.92
January 11, 1983     93.18      8.74       101.92
August 2, 1983       80.52     10.37        90.89
August 23, 1983     107.32     10.07       117.39
August 24, 1983     107.32     10.07       117.39

     The total amount of back pay for Mr. Ventura is $992.84.
Total interest on the back pay is $394.93.

     8. Mileage expenses for Mr. Ventura would be 60 miles
for two trips to Washington, Pennsylvania for the
hearing and 50 miles for one trip to Waynesburg to meet
with the MSHA special investigator. The applicable rate
of reimbursement at the time was 20.5 cents per mile
for a total mileage expense of $22.55.

     9. The parties would agree upon civil penalties in the
amount of $100.00.

     10. Emerald stipulates that the discipline Mr. Hogan
and Mr. Ventura received arising out of this incident
will be considered by it to have no future effect and
null and void (unless the Commission's decision is
reversed by the Circuit Court of Appeals). Emerald
will, however, maintain such records of this matter as
would be appropriate to any litigation. Any such
records will not, however, be contained in the
personnel files of Mr. Hogan and Mr. Ventura. The
attendance records of each individual will be modified
to remove any reference to their suspensions. Emerald
also agrees that it will not communicate any
information pertaining to the suspensions which Mr.
Hogan and Mr. Ventura received and which are the
subject of this litigation or any other information
pertaining to this litigation to any person who makes
inquiry of Emerald concerning employment of Mr. Hogan
or Mr. Ventura.

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In view of the fact that the stipulations by the
parties included interest computations through October
31, 1986, the parties agreed by letter dated October 30,
1986, that interest accrues on the back pay for Michael
Hogan at the rate of $0.24 a day and the back pay for
Robert Ventura at the rate of $0.25 a day until their
awards are paid.

                            ORDER

 In view of the aforesaid stipulations and agreements, IT IS

ORDERED THAT:

     1. Respondent pay to complainant Michael Hogan back pay
in the amount of $968.29, plus interest in the amount
of $386.63, through October 31, 1986, and interest in
the amount of $0.24 a day thereafter until paid.

     2. Respondent pay to complainant Michael Hogan hearing
and litigation expenses in the amount of $42.12 for
telephone calls, and $24.19 for mileage expenses.

     3. Respondent pay to complainant Robert Ventura back
pay in the amount of $992.84, plus interest in the
amount of $394.93, through October 31, 1986, and
interest in the amount of $0.25 a day thereafter until
paid.

     4. Respondent pay to complainant Robert Ventura mileage
expenses in the amount of $22.55.

     5. Respondent pay a civil penalty assessment in the
amount of $100 for a violation of section 105(c)(1) of
the Act.

     6. Respondent will forthwith comply with the
requirements of Stipulation No. 10 with respect to the
personnel records and other matters stated therein
concerning the employment status of Mr. Hogan and Mr.
Ventura.

 IT IS FURTHER ORDERED that all payments of back pay,

interest, and miscellaneous expenses noted above be paid to

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Mr. Ventura and Mr. Hogan within thirty (30) days of the date of
this Supplemental Decision and Order, and that respondent remit
to MSHA within this same period the sum of $100 as a civil
penalty assessment for the violation in question.

                       George A. Koutras
                       Administrative Law Judge