Secretary of Labor on behalf of George M. Swank v. Silver State Mining Company (ALJ decision, December 27, 1985)

Plain-English summary

George M. Swank brought a mine discrimination complaint against Silver State Mining Company after his employment ended. The parties agreed that Silver State would pay him $2,100 for lost wages and other expenses and waive repayment of loans it had made to him. The Secretary proposed no civil penalty, and each party agreed to bear its own costs. Judge John A. Carlson approved the agreement and ordered payment within 40 days, after which this proceeding would end. The agreement did not bind the Secretary to any separate settlement of Swank's other possible claims.

Decision snapshot

• Cited standard: No safety standard or statutory section is identified in this decision.
• Outcome: Settlement approved; Silver State to pay Swank $2,100 and waive his loans, with no civil penalty proposed.
• Key point: The discrimination proceeding would terminate after the agreed payment while possible separate claims remained outside this agreement.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. SILVER STATE MINING
DDATE:
19851227
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. WEST 85-31-DM
ON BEHALF OF
GEORGE M. SWANK,
MSHA Case No. 84-14
COMPLAINANT
Ironclad Mine v.

SILVER STATE MINING COMPANY,
RESPONDENT

DECISION APPROVING SETTLEMENT

Before: Judge Carlson

The parties, through counsel, have filed a stipulation which settles all matters at issue in this discrimination proceeding.

It should be noted that the original complaint in this case was filed by the alleged discriminatee, pro se. Later, the Secretary of Labor, who had originally declined to prosecute on behalf of the complaining miner, was granted leave to intervene under Commission Rules 2700.4(a) and (c). Rick P. Sauer, Esq., who filed his entry of appearance as private counsel for the complainant after the filing of the original pro se complaint, but before the Secretary's intervention, did not withdraw after the Secretary's intervention, and participated in the settlement negotiations and signed the agreement.

The specifics of the agreement are as follows:

1. Respondent hereby agrees to compensate George M.
Swank in the amount of $2,100.00 for loss of back wages and other expenses from his termination.

2. Respondent hereby agrees to waive payment of any and all loans made by Respondent to George M. Swank prior to his termination.

3. In the interest of achieving an expeditious disposition of Mr. Swank's claims against Respondent, the Secretary of Labor proposes no penalty be assessed against Respondent.
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4. The parties recognize that George M. Swank, through his private attorney, may have other claims against the Respondent arising from the same facts which gave rise to the discrimination action, and that those other claims may be settled in whole or in part by agreements between Mr.
Swank, acting through his private attorney, and respondent.
However, the parties agree that no such agreement will be binding on the Secretary and that the above agreement represents the sole and entire agreement to which the Secretary is a party in this action.

5. Each party agrees to bear its own costs and expenses.

Having considered the agreement, and the contents of the file, I conclude that the proposed settlement is appropriate and should be approved in all respects. Accordingly, respondent Silver State Mining Company shall pay to George M. Swank, within 40 days of the date of this decision, the sum of $2,100.00, whereupon all other provisions of the settlement agreement shall be deemed effectuated and this proceeding shall be considered terminated.

SO ORDERED.

John A. Carlson
Administrative Law Judge