Babcock Mining Co.; Henry McCoy, individually and as operator of Babcock Mining Co.; Virgil McMillion, individually and as operator of McMillion Enp., Inc., McMillion Enp., Inc. (ALJ decision, November 30, 1987)

Plain-English summary

David Willis's discrimination proceeding concerned two discharges from Babcock Mining and the later operation of the mine by McMillion Enp. The supplemental default decision found that the respondents violated section 105(c) of the Mine Act. It imposed joint and several liability for $6,340 in back pay, $570.60 in interest, and a $550 civil penalty, while noting that Babcock Mining had filed for bankruptcy. Judge William Fauver ordered Henry McCoy, Virgil McMillion, and McMillion Enp. to pay the back pay, interest, and penalty within 30 days.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: The respondents were found liable for a section 105(c) discrimination violation and ordered to pay back pay, interest, and a civil penalty.
• Key point: The default decision imposed joint and several liability for lost wages, interest, and a civil penalty after discriminatory discharges.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) BABCOCK MINING
DDATE:
19871130
TTEXT:

Page 2

~1989

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. WEVA 87-106-D
ON BEHALF OF DAVID WILLIS,
COMPLAINANT
HOPE CD 86-24
HOPE CD 87-2 v.
No. 1 Mine
BABCOCK MINING CO.;
HENRY MCCOY, INDIVIDUALLY
AND AS OPERATOR OF BABCOCK
MINING CO.; VIRGIL MCMILLION,
INDIVIDUALLY AND AS OPERATOR
OF MCMILLION ENP., INC.,
MCMILLION ENP., INC.,
RESPONDENTS

SUPPLEMENTAL DEFAULT DECISION

Before: Judge Fauver

Pursuant to the Default Decision entered on October 20, 1987, and the affidavits filed with Complainant's proposed order for relief, the following further Findings of Fact, Conclusions of Law and Order are entered herein:

FINDINGS OF FACT

1. Complainant David Willis worked an average of 44 hours
   per week at Babcock Mining Co., and earned a regular rate of
   $10.00 per hour, and an overtime rate of $15.00 per hour.

   2. Mr. Willis was discriminatorily fired from Babcock
      Mining Co. on September 29, 1986, and subsequently reinstated on October 1, 1986. Mr. Willis was again discriminatorily fired from Babcock Mining Co. on October 20, 1986. Babcock Mining Co. ceased operations on December 10, 1986.

   3. McMillion Enp., Inc., began operating the subject mine
      on January 5, 1987, and ceased operations on February 13, 1987.

   4. Mr. Willis was not successful in finding employment
      between October 20, 1986 and February 13, 1987.

                             CONCLUSIONS OF LAW
      

      1. The Commission has jurisdiction in this proceeding.

Page 3

~1990
2. Respondents violated 105(c) of the Federal Mine Safety and Health Act, 30 C.F.R. 801 et seq. as alleged in this proceeding. They are jointly and severally liable for back pay due David Willis totalling $6,340.00, together with interest of $570.60, which has been computed in accordance with the formula set forth in Secretary ex rel. Bailey v. Arkansas Carbona Company, 5 FMSHRC 2042 (1983).

3. Respondents are assessed a civil penalty of $550.00 for the above violation, and they are jointly and severally liable for such civil penalty.

4. Respondent Babcock Mining Co. is jointly and severally liable with the other Respondents for the above back pay, interest, and civil penalty. However, inasmuch as Babcock Mining Co. has filed for bankruptcy, an order requiring it to make such payments will not be entered in this proceeding.

ORDER

WHEREFORE IT IS ORDERED that:

1. Respondents Henry McCoy, Virgil McMillion and McMillion Enp., Inc., shall pay the above back pay of $6,340.00 and interest of $570.60 to Complainant David Willis within 30 days of this Order. If payment is not made within such period, interest on the back pay shall continue to accrue under the formula in the above Arkansas Carbona Company decision until payment in full is made to David Willis.

2. Respondents Henry McCoy, Virgil McMillion and McMillion Enp., Inc., shall pay the above civil penalty of $550.00 within 30 days of this Order.

William Fauver
Administrative Law Judge