Secretary of Labor o/b/o Keene v. S & M Coal Company, Inc. (Commission decision, February 9, 1990)

Plain-English summary

This discrimination case returned to the Commission after the D.C. Circuit affirmed in part and reversed in part an earlier Commission decision. The court upheld the conclusion that Prestige Coal was not a successor in interest to S&M Coal, but held that Tolbert P. Mullins could be personally liable for offering to reemploy Bobby G. Keene under allegedly illegal and unsafe conditions. The Commission reinstated the judge’s conclusion that Mullins discriminated against Keene by refusing to reemploy him. It also reinstated the order requiring Mullins and S&M jointly and severally to pay Keene the costs, back pay, and interest awarded by the judge, and to pay the assessed civil penalty.

Decision snapshot

• Cited authority: 30 U.S.C. § 801 et seq.
• Outcome: Prestige’s successor liability remained vacated, while Mullins’s individual discrimination liability and the related monetary relief were reinstated.
• Key point: An individual who offers reemployment under allegedly illegal and unsafe conditions may be personally liable for a separate discriminatory act.

Full text (FMSHRC public release)

CCASE:
BOBBY KEENE (MSHA) V. S&M, MULLINS & PRESTIGE COAL DDATE: 19900209 TTEXT:

FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION WASHINGTON, D.C.
February 9, 1990

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of BOBBY G. KEENE

v. Docket No. VA 86-34-D

S&M COAL COMPANY, INC.
TOLBERT P. MULLINS, and
PRESTIGE COAL COMPANY, INC.

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, Commissioners

ORDER

BY THE COMMISSION:

This discrimination case arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982)("Mine Act" or "Act"), is before us on remand from an opinion of the United States Court of Appeals for the District of Columbia Circuit, affirming in part and reversing in part our prior decision in this matter. Secretary of Labor on behalf of Bobby G. Keene v. Tolbert P. Mullins, etc., 888 F.2d 1448 (1989), aff'g in part & rev'g in part, 10 FMSHRC 1145 (September 1988). At issue before the Court were the liability of Prestige Coal Co., Inc. ("Prestige") as a successor-in-interest to S&M Coal Co., Inc. ("S&M") for S&M's discriminatory discharge of Keene and the individual liability of Tolbert P. Mullins for offering to reemploy Keene under allegedly illegal and unsafe conditions.

The Court affirmed the Commission's conclusion that Prestige was not a successor-in-interest to S&M (888 F.2d at 1453-54), but held that the

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Commission erred in ruling that Mullins offer of rehire was not a separate act of unlawful discrimination for which Mullins was personally liable (888 F.2d at 1450-53). The Court's action leaves standing the Commission's vacation of that portion of the judge's remedial order regarding Prestige and reverses the Commission's vacation of that portion of the order regarding Mullins.

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Accordingly, the judge's conclusion that Mullins as an individual discriminated against Keene in violation of the Act in his refusal to reemploy Keene is reinstated. That portion of the judge's order requiring Mullins jointly and severally with S&M to pay Keene costs and back pay and to pay a civil penalty is reinstated. S&M and Mullins are ordered to pay Keene the costs, back pay and interest awarded by the judge and to pay the civil penalty assessed by the judge. Interest is to be calculated according to the formula set forth by the Commission in Secretary on behalf of Bailey v. Arkansas-Carbona, 5 FMSHRC 2642 (December 1983), and, as applicable, Loc. U. 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (November 1988), pet. for review filed, No. 88-1873 (D.C. Cir. December 16, 1988)(see also 54 Fed. Reg. 2226 (January 19, 1989)).

Distribution

Dennis D. Clark, Esq.
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Daniel R. Bieger, Esq.
E. Gay Leonard, Esq.
Copeland, Molinary & Bieger
P.0. Box 1296
Abingdon, Virginia 24210