[DOCID: f:kt97317.wais] A & J FUELS, INC. May 5, 1998 KENT 97-317-D FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES 2 SKYLINE, 10th FLOOR 5203 LEESBURG PIKE FALLS CHURCH, VIRGINIA 22041 May 5, 1998 SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA), : Docket No. KENT 97-317-D ON BEHALF OF : MSHA Case No. BARB CD 97-11 MICHAEL BROWN, : MSHA Case No. BARB CD 97-12 Complainant : v. : Mine No. 1 : Mine ID 15-02755 BOOGAR MAN MINING, INC., : DEMA COAL COMPANY, INC., : A & J FUELS, INC., BARRY MOORE, : and FREDDIE HUNTER, : Respondents : DECISION Before: Judge Hodgdon This case is before me on a Complaint of Discrimination under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c). The complaint alleges that the Complainant, Michael Brown, was discharged by Respondent Boogar Man Mining, Inc. for complaining about being required to work under unsupported roof and that when he returned for his final paycheck, a month later, he was "threatened with bodily harm, threatened with a knife, and was intimidated and harassed by Barry Moore and Freddie Hunter [principals of Boogar Man] for filing" a discrimination complaint.[1] For the reasons set forth below, I affirm the Default Decision issued against Respondents Boogar Man Mining, Inc., Barry Moore and Freddie Hunter and I approve the settlement reached between the Complainant and Respondents Dema Coal Company, Inc. and A & J Fuels, Inc. Procedural Background On December 1, 1997, an Order to Show Cause was issued to the Respondents in this case, ordering them to show cause why a default decision should not be entered against them for failure to respond to any of the pleadings filed by the Complainant or orders issued in the case. Respondents Dema Coal Company, Inc. and A & J Fuels Inc., responded to the order; Respondents Boogar Man Mining, Inc., Barry Moore and Freddie Hunter did not. Consequently, on January 16, 1998, a Default Decision was issued against Respondents Boogar Man, Moore and Hunter finding them jointly and severally liable for any and all damages and remedial action ordered at the conclusion of the case and individually liable for the civil penalties assessed against them by the Secretary. Dema Coal and A & J were permitted to file an answer to the complaint and to respond to the charges of discrimination. A hearing was set for May 5, 1998. Settlement Agreement Respondents Dema Coal and A & J and the Secretary on behalf of the Complainant and on her own behalf, by counsel, have filed a motion to approve a settlement agreement. The agreement provides that the Complainant waives his request for permanent reinstatement; that Dema Coal and A & J will pay him back wages of $1,500.00, which represents the total of all back wages owed him by Dema Coal and A & J; and, that the civil penalty assessed against Dema Coal will be reduced from $2,500.00 to $500.00, to be paid in two equal installments. Having considered the representations and documentation submitted, I conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i) and is in the public interest. Accordingly, the motion for approval of settlement is GRANTED. The provisions of the agreement will be carried out in the order at the end of this decision. Enforcement of Default Decision The Secretary has filed a motion to enforce the default decision against Respondents Boogar Man, Barry Moore and Freddie Hunter. The motion requests the following: 1. A finding that Michael Brown was unlawfully discrim- inated against, threatened, intimidated and harassed by Respondents in violation of section 105(c) of the Act; 2. An order directing Respondents, their officers, agents, servants, employees, and "all other persons in active concert of participation with them," to cease and desist their discriminatory activities directed toward Michael Brown; 3. An order that all references to his discriminatory discharge be completely expunged from the employment record of Michael Brown. 4. An order directing Respondents to pay damages in the amount of $7,938.60, which is the amount equal to the wages which Michael Brown lost as a result of the discrimination which occurred, including interest calculated using the short-term federal underpayment rate, all medical and hospital expenses, and any and all other damages suffered and incurred by the miner as a result of and from the date of his discriminatory discharge; and 5. An order assessing civil penalties against Boogar Man Mining in the amount of $10,000.00, Barry Moore in the amount of $2,000.00 and Freddie Hunter in the amount of $3,000.00, for their violations of section 105(c) of the Act. Based on the January 16, 1998, Default Decision, the motion of the Secretary is GRANTED. ORDER I find that Respondents Boogar Man Mining, Inc., Barry Moore and Freddie Hunter discriminated against, threatened, intimidated and harassed Complainant Michael Brown in violation of section 105(c) of the Act. Accordingly, it is ORDERED that they, as well as their officers, agents servants and employees, shall cease and desist their discriminatory activities directed against Michael Brown; that they shall expunge from the employment record of Michael Brown all references to his discriminatory discharge; and that they shall, jointly and severally, pay damages to Michael Brown in the amount of $7,938.60. Respondent Boogar Man Mining, Inc., is ORDERED TO PAY a penalty in the amount of $10,000.00 within 30 days of the date of this decision. Respondent Barry Moore is ORDERED TO PAY a penalty of $2,000.00 within 30 days of the date of this decision. Respondent Freddie Hunter is ORDERED TO PAY a penalty of $3,000.00 within 30 days of the date of this decision. On receipt of payment of the civil penalties by Respondents Boogar Man Mining, Inc., Barry Moore and Freddie Hunter and compliance with the requirements ordered above, the proceeding against them will be DISMISSED. In accordance with the settlement agreement, Respondents Dema Coal Company, Inc., and A & J Fuels, Inc., are ORDERED TO PAY back wages to the Complainant in the amount of $1,500.00. Respondent Dema Coal Company, Inc., is ORDERED TO PAY a penalty of $500.00 as follows: $250.00 within 30 days of the date of this order and $250.00 within 60 days of the date of this decision. On payment of back wages and receipt of payment of the penalty, the proceeding against them will be DISMISSED. The hearing scheduled for May 5, 1998, is CANCELED. T. Todd Hodgdon Administrative Law Judge Distribution: Mary Beth Bernui, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 (Certified Mail) Billy R. Shelton, Esq., Baird, Baird, Bard & Jones, P.S.C., 841 Corporate Drive, Suite 101, Lexington, KY 40503 (Certified Mail) Mr. Freddie Hunter, Agent for Service, Boogar Man Mining, Inc., Route 194, Cow Creek, Box 300, Allen, KY 41601 (Certified and Regular Mail) Mr. Barry Moore, Box 1323, Martin, KY 41649 (Certified and Regular Mail) Mr. Michael Brown, P.O. box 483, McDowell, KY 41647 (Certified Mail) /fb ***FOOTNOTES*** [1] Dema Coal Company, Inc., leased Mine No. 1 to Boogar Man Mining, Inc., and then to A & J Fuels, Inc.