Secretary of Labor, on behalf of Arnold J. Sparks, Jr. v. Allied Chemical Corporation (ALJ decision, January 25, 1983)

Plain-English summary

After a court decision and a Commission remand, Judge Joseph B. Kennedy returned to a discrimination case involving Allied Chemical's refusal to pay a miner representative for walkaround time. The Secretary did not oppose reinstating the judge's earlier discrimination finding. The operator had sought a stay while another petition reached the Supreme Court, but that petition was denied. The judge reinstated three paragraphs of his 1979 order and required Allied Chemical to pay a $100 penalty by February 11, 1983. This order did not concern a contested safety citation, so citation outcome labels do not apply.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 813(f) and 815(c), walkaround participation and discrimination.
• Outcome: Parts of the 1979 discrimination order reinstated; $100 penalty due February 11, 1983.
• Key point: Following remand, the judge reinstated paragraphs 1, 2, and 6 of his September 1979 order.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. ALLIED CHEMICAL
DDATE:
19830125
TTEXT:
~164

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

SECRETARY OF LABOR,
Complaint of Discharge,
MINE SAFETY AND HEALTH
Discrimination, or
ADMINISTRATION (MSHA),
Interference
ON BEHALF OF
ARNOLD J. SPARKS, JR.,
Docket No. WEVA 79-148-D
COMPLAINANT
Shannon Branch Coal Mine v.

ALLIED CHEMICAL CORPORATION,
RESPONDENT

ORDER REINSTATING DECISION AND ORDER
OF SEPTEMBER 27, 1979

On May 20, 1982, the Commission remanded the captioned matter for "further proceedings consistent with the court's decision" in UMWA v. FMSHRC, 671 F.2d 615 (D.C. Cir. 1982), cert. denied October 12, 1982, _ U.S. _.

Accordingly, on July 1, 1982, the trial judge issued an order to show cause why his decision and order of September 27, 1979 should not be reinstated.

Counsel for the Secretary responded saying he had no objection to reinstatement of my finding of discrimination in Allied's refusal to pay walkaround compensation. 1 FMSHRC 1451 (1979). Counsel for the operator suggested reinstatement be stayed pending disposition of a petition for certiorari in Helen Mining et. al. The petition for certiorari was denied on October 12, 1982.

In the meantime the American Electric Power Company through its coal subsidiaries filed contests designed to provoke relitigation of the issue of the applicability of section 103(f) to "spot" inspections. Under settled principles of issue preclusion, however, and by the specific terms of the Commission's order of remand, relitigation of the issue in these matters is foreclosed.

The record shows that while its appeal was pending counsel for Allied assured the Commission that all but paragraphs 1, 2 and 6 of my order of September 27, 1979, had been obeyed. Accordingly, it is ~165
ORDERED that in compliance with the order of remand paragraphs 1, 2 and 6 of my order of September 27, 1979, be, and hereby are, REINSTATED and the operator pay a penalty of $100 on or before Friday, February 11, 1983.

Joseph B. Kennedy
Administrative Law Judge