Graymont Western U.S., Inc. (ALJ decision, August 22, 2003)

Plain-English summary

Graymont Western U.S., Inc. faced a civil penalty proceeding related to a prior finding that it violated the Mine Act by terminating James Womack in a discrimination case. The Secretary initially sought a $12,000 penalty and later moved to approve a settlement that reduced the penalty to $5,000. The separate settlement of Womack's discrimination case was confidential. In this civil penalty case, Graymont did not admit a violation, but the judge explained that the settlement established one for Mine Act purposes. Judge Jerold Feldman found the settlement appropriate under the statutory criteria, approved it, and ordered payment within 30 days. The case was to be dismissed after timely payment.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(3) and 820(i)
• Outcome: The settlement was approved, the penalty was reduced from $12,000 to $5,000, and the case was ordered dismissed after timely payment.
• Key point: A Mine Act settlement may establish a violation for enforcement purposes even when the operator does not admit liability.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001

August 22, 2003

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 2003-347-M
Petitioner : A.C. No. 45-03260-00000
:
v. :
:
GRAYMONT WESTERN U.S., INC., :
Respondent : Tacoma Plant

DECISION APPROVING SETTLEMENT

Before:  Judge Feldman

This civil penalty matter concerns a discrimination complaint filed pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(3) (1994) (the "Act"), by James Womack against Graymont Western US Inc. ("Graymont"). Following an evidentiary hearing, it was determined that Graymont's termination of Womack's employment violated section 105(c) of the Act. Decision on Liability, 25 FMSHRC 235 (May 2003) (ALJ). After filing proposals for relief, the parties agreed to settle this matter. On August 20, 2003, I issued a Supplemental Decision and Final Order Approving Settlement. The parties agreed that the settlement terms would remain confidential. Consequently, the settlement agreement was placed under seal subject to review only by the Commission or other appellate body.

In accordance with the provisions of Commission Rule 44(b), 29 C.F.R. § 2700.44(b), the Secretary was provided with a copy of the Decision on Liability so that she could initiate a civil penalty proceeding for the subject 105(c) violation. 25 FMSHRC at 265. As a consequence of Womack's discrimination case, on June 17, 2003, the Secretary filed a petition for assessment of civil penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977 (the Act) that has been assigned as Docket No. WEST 2003-347-M. The Secretary's petition sought to impose a $12,000 civil penalty.

On July 17, 2003, the Secretary filed a motion to approve a settlement agreement and to dismiss this case. A reduction in civil penalty from $12,000 to $5,000 is proposed. The settlement terms stipulate that nothing in the parties' agreement shall be construed as an admission by Graymont that it violated section 105(c) of the Mine Act. See Amax Lead Company of Missouri, 4 FMSHRC 975, 980 (June 1982) (a violation is established for Mine Act purposes as a consequence of a settlement even though the respondent does not admit that a violation occurred).

I have considered the representations and documentation submitted in this case, and I conclude that the proffered settlement is appropriate under the criteria set forth in Section 110(i) of the Act. WHEREFORE, the motion for approval of settlement IS GRANTED, and IT IS ORDERED that Graymont Western US Inc., pay a civil penalty of $5,000 within 30 days of this Decision, and, upon receipt of timely payment, the civil penalty matter in Docket No. WEST 2003-347-M is case IS DISMISSED.

Jerold Feldman

Administrative Law Judge

Distribution:

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Boulevard, 22nd Floor, Arlington, VA 22209-3939

Robert Leinwand, Esq., Stole Rives, LLP, 900 S.W. Fifth Avenue, Suite 2600, Portland, OR 97204

/hs