<DOC>
[DOCID: f:ct200075.wais]

 
GABEL STONE COMPANY, INC.
CENT 2000-75-DM
February 8, 2001


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 Skyline, Suite 1000
                       5203 Leesburg Pike
                  Falls Church, Virginia 22041


                        February 8, 2001

SECRETARY OF LABOR,             : DISCRIMINATION PROCEEDING
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     : Docket No.  CENT 2000-75-DM
     ON BEHALF OF               :
     JOHN NOAKES,               : MSHA Case No.  MD 99-03
               Complainant      :
                                : Gable Quarry
          v.                    :
                                : Mine ID No. 23-02064
GABEL STONE COMPANY, INC.,      :
               Respondent       :

                      SUPPLEMENTAL DECISION
                               AND
                           FINAL ORDER

Appearances: Jennifer A. Casey, Esq., and Kristi Floyd, Esq.,
             Office of the Solicitor, U.S. Department of Labor,
             Denver, Colorado, for Complainant;
             Donald W. Jones, Esq., and Jason N. Shaffer, Esq.,
             Hulston, Jones, Gammon & Marsh, Springfield, Missouri,
             for Respondent.

Before: Judge Hodgdon

     On September 28, 2000, a decision was issued in this
proceeding determining that the Respondent had discriminated
against the Complainant by discharging him in violation of
section 105(c) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. � 815(c).  Secretary on behalf of John Noakes v. Gabel
Stone Co., Inc., 22 FMSHRC 1160 (September 2000).  The parties
were given 30 days to agree on the specific relief due Mr.
Noakes, or to submit their separate relief proposals with
supporting arguments.

     The parties failed to agree on anything.  In addition, the
Respondent objected to an affidavit of the Complainant submitted
with his brief and additional discovery was pursued.
Accordingly, all unresolved issues will be disposed of in this
decision.

                    Motion for Reconsideration

     The Respondent filed a Motion for Reconsideration of the
decision on liability on October 13, 2000.  The Secretary
responded to it on October 19.  In the motion, the company argues
that the decision improperly allowed negative inferences based on
employer business practices, omitted relevant facts and relied on
the largely uncorroborated testimony of the Complainant.  While
the motion is without merit, I will discuss it briefly.

     The Respondent asserts that "the ALJ found negative
inferences from perceived failures of the employer in handling
the poor performance of John Noakes."  (Motion at 2.)  What I
found was that there was no evidence that Gabel had taken any
action whatsoever concerning Noakes' alleged derelictions.
Therefore, the evidence did not support Gabel's claim, made long
after the fact, that he had always intended to get rid of Noakes
for poor performance.  To the extent that this lack of action
represents an "employer business practice," I made no judgment on
it one way or the other.

     The Respondent contends that the decision did not consider
Mr. Noakes' alleged refusal to work in the quarry after the MSHA
inspection.  In the first place, the evidence is contradictory as
to whether Noakes ever refused to work in the quarry.  He says
that he did not.  Resolution of this issue was not necessary to
deciding the case.  Even if Noakes had refused to work in the
quarry for safety reasons, as Gabel related, it would not change
the outcome of the case.

     The operator also claims that the decision ignored the
deposition testimony of Inspector Allen Studenski that he had
never had any problem with Gabel, who had always been cooperative
and operated a safe, clean and neat quarry.  To the extent that
this information is relevant, it would not change the outcome of
the case.

     Finally, the company maintains that Noakes' testimony is
largely uncorroborated and is, therefore, not sufficient to
support a finding of discrimination.  In the first place, this
statement is not the law.  The cases cited by Respondent, none of
which involve discrimination under the Mine Act, and the most
recent of which is a 1971 case, all involve something more than
lack of corroboration.  In the second place, Noakes' testimony is
corroborated by the testimony of Inspector Sturgill and most
significantly, as indicated in the decision, by the testimony of
Gary Gabel.

     Accordingly, the Motion for Reconsideration is DENIED.

                             Damages

     As noted above, the parties were unable to arrive at an
agreement on any of the remedies to which Mr. Noakes is entitled
under the Act.  Consequently, both parties filed briefs setting
forth their respective positions.  The Complainant seeks back
wages in the amount of $12,957.50.  The Respondent maintains that
he is not entitled to anything.  Finding that Mr. Noakes will be
made whole somewhere between the two extremes, I award back pay
of $9,157.50.

The Noakes Affidavit

     Attached to the Complainant's brief was his affidavit
providing details of his attempts to find a job after his
discharge.  Since this affidavit contained information not in the
record, the Respondent filed a motion to strike the affidavit,
or, in the alternative, to reopen the record.  Concluding that
the affidavit could not be considered unless the record was
reopened and the Respondent given an opportunity to cross-examine
the Complainant and provide rebuttal evidence, I held a telephone
conference call with the parties.  They agreed that the
Complainant would be deposed rather than holding a supplementary
hearing.

     Before taking the deposition, the Respondent requested
releases from the Complainant to obtain records from the various
state, school and employment agencies to which the Complainant
claimed to have had dealings.  Counsel for the Secretary said
that releases would not be necessary as they would furnish all
available documentation.  This documentation was mailed to the
Respondent and the judge on December 19, 2000.

     By letter dated December 20, 2000, counsel for the
Respondent requested subpoenas for two employment agencies,
Manpower Staffing and Penmac Personnel, in West Plains, Missouri;
for Town Square Internet; the Missouri Division of Family
Services, Missouri Employment and Training Program; the Missouri
Department of Labor and Industrial Relations, Division of
Employment Security; and Southwest Missouri State University.  In
a subsequent telephone conference call, I advised the parties
that I would issue subpoenas for the two employment agencies, but
would not issue them for the other entities since the documents
furnished by the Secretary clearly indicated that nothing else
was available.

     By a letter dated January 16, 2001, counsel for the
Respondent stated that, because they had not been issued all the
subpoenas requested, they had chosen not to take Noakes'
deposition.  Instead, counsel renewed the objection to the
affidavit, or, in the alternative, offered into evidence two
statements given by Noakes to the Division of Employment
Security.

     The Respondent did not request a supplemental hearing when
offered the opportunity to do so and elected not to take Noakes'
deposition for its own reasons.  Accordingly, the motion to
strike Noakes' affidavit is DENIED.  The Secretary has not
responded to Respondent's offer of Noakes' statements; however,
they appear to be relevant and are admitted into evidence as
Respondent's Exhibits 76 and 77.

Back Pay

     The company argues that Noakes is not entitled to back pay
because he failed to mitigate his damages by reasonably searching
for a suitable alternative job and because he became a full-time
college student in January 1999.  I find neither of these
arguments persuasive.


     Mitigation of Damages

     The Commission has long held, with respect to damages in
discrimination cases, that:

               The central purpose of the Mine Act is
          to promote safety and health among the
          nation's miners.  To accomplish that goal it
          is essential that miners be encouraged to
          report unsafe conditions free from the threat
          of retaliation and subsequent economic loss.
          Thus, we are persuaded that upon a finding of
          discrimination, a presumption of the right to
          monetary relief arises and such relief should
          be denied only where "compelling reasons"
          otherwise dictate.  Moreover, if monetary
          relief is denied, the bases for the failure
          to make the aggrieved party whole must be
          articulated.

Secretary on behalf of Gooslin v. Kentucky Carbon Corp., 4 FMSHRC
1, 2 (January 1982) (emphasis added).

     Thus, any analysis of damages due to Noakes as the result of
being discriminated against begins with a presumption that he is
entitled to such damages.  Turning to the Respondent's first
argument, the burden is on the operator to rebut this presumption
by showing that Noakes did not make a reasonable job search.
Secretary on behalf of Jackson v. Mountain Top Trucking Co., Inc.
et al, 21 FMSHRC 1207, 1214 (November 1999); Metric Constructors,
Inc., 6 FMSHRC 226, 233 (February 1984).

     The Respondent's assertion that Noakes did not present any
evidence that he looked for work, without more, falls short of
rebutting the presumption.  In Metric Constructors, the judge
awarded full back pay to two complainants, neither of whom
appeared at the hearing, one having died and the other serving in
the Navy overseas, holding that the company had not shown a lack
of reasonable effort to mitigate.  The Commission held that the
judge did not err, stating:  "We recognize that there are
circumstances, such as those at hand, under which a complainant
may not appear to testify.  However, an operator may prepare for
that possibility by initiating pre-trial discovery relating to
the issue of mitigation."  Id.  Here, the company had the
opportunity to cross-examine the Complainant and did not ask him
any questions concerning his efforts to find another job.

     The operator has cited some federal circuit court of appeals
cases which indicate, at least with regard to the Americans with
Disabilities Act and employment discrimination, that the
Complainant has to present some evidence of reasonable efforts to
mitigate before the burden shifts to the company to show that no
reasonable undertaking was made.  However, even if the law in
these specialized areas changes the Commission law set out above,
the Respondent's argument still fails because the Complainant's
affidavit filed with his penalty brief convincingly demonstrates
that he made a reasonable effort to find, and did eventually
find, another job.[1]  Thus, Noakes cannot be denied back pay on
these grounds.

     Full-time Student

     The Respondent next contends that the Complainant is not
entitled to back pay after he became a full-time student.  Again,
the burden is on the operator to show that Noakes was not looking
for work while he was attending college and would not have been
able to work if it became available.  Mountain Top Trucking et
al, 21 FMSHRC at 1214.  In support of its


position, the company has taken two statements of the Complainant
out of context and cited the general rule concerning full-time
attendance in school.  Neither demonstrates that Noakes is not
entitled to back pay.

     The company quotes the statement of Noakes in a January 25,
1999, report on his work searches to the Missouri Department of
Employment Security that:  "I will not quit school to go to
work."  (Resp. Ex. 76.)  Likewise, it quotes a February 16, 1999,
report that:  "I would not give up my schooling to accept full
time work if the work conflicted with my class hours."  (Resp.
Ex. 77.)  Both of these, it claims, demonstrate that Noakes was
neither available nor looking for work.

     The fact is, however, that Noakes was attending school full-
time at night, from 5:30 p.m. to 8:30 p.m.  (Resp. Exs. 76 and
77.)  In both reports, Noakes stated that he was seeking and
available for full-time work during the day.  As the Eighth
Circuit Court of Appeals stated, in a case cited by the
Respondent:  "Some full-time students, those who attend classes
at night, for example, are also full-time employees . . . ."
Washington v. Kroger Co., 671 F.2d 1072, 1079 (8th Cir. 1982).
Thus, while the general rule is that one who is attending school
full-time is neither available nor looking for work, there are
exceptions to the rule.  See, e.g., Brady v. Thurston Motor
Lines, Inc., 753 F.2d 1269, 1276 (4th Cir. 1985); Hanna v.
American Motors Corp., 724 F.2d 1300, 1308 (7th Cir. 1984).
Indeed, the evidence in this case is that Noakes subsequently
obtained a full-time job which he performed while attending
school full-time.

     In sum, I find that the Respondent has failed to meet its
burden of establishing that the Complainant is not entitled to
back pay either because he did not make a reasonable attempt to
find another job or because he was attending school full-time.
Accordingly, I conclude that Mr. Noakes is entitled to back pay.

     Amount of Back Pay

     The Complainant has requested $12,957.50 in back pay, as
follows:  $2,660.00 from the date of his discharge, December 3,
1998, until he began working part time, February 2, 1999;
$6,780.00 from the time he began working part time until he began
working full time, July 16, 1999; and $3,517.50 from July 16
until the date of his brief, October 27, 2000.[2]  (Comp. Br. at
2-3.)  I find that the Complainant is entitled to back pay of
$9,157.50.

     There is no dispute that the normal work week at Gabel Stone
is 45 hours per week, performed at nine hours per day.  Nor is
there any dispute that Mr. Noakes was earning $7.00 per hour for
the first 40 hours and received time and one half, or $10.50, for
the five hours overtime
each week.[3]  Consequently, he earned $332.50 per week ($7.00 x
40 hrs. + $10.50 x 5 hrs. = $332.50).  The Complainant claims
that he was out of work for eight weeks.  (Id.)  Consequently, he
is entitled to $2,660.00 for the eight weeks ($332.50 x 8 =
$2,660.00).

     The Complainant claims $6,780.00 for the period that he
worked part time on the weekends.  This was arrived at by
subtracting the amount he earned on the weekends, $50.00 x 24
weeks = $1,200.00, from the amount he would have earned at Gabel
Stone, $332.50 x 24 weeks = $7,980.00.  (Id. at 3.)  It appears
that the Complainant has miscalculated; there were only 23 weeks
between February 2 and July 16, 1999.  Therefore, I will award
him $6,497.50 [$332.50 x 23 weeks ($7647.50)-$50.00 x 23 weeks
($1,150.00) = $6,497.50]

     The Complainant also claims $3,517.50 as the pay
differential between what he would have earned at Gabel Stone and
what he earns working full time for Town Square Internet.
However, I find that he is not entitled to any back pay after he
began working full time.  The Commission has held that a mine
operator is not required to pay a former employee back pay for
any period of time after which he has unequivocally indicated
that he does not wish to return to his former employment.
Secretary on behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC
2042, 2055 (December 1983).

     In this case, Noakes did not request reinstatement when he
filed his complaint with MSHA, (Comp. Ex. 3), nor did he request
it in the Complaint of Discrimination he filed with the
Commission on October 22, 1999.  On the other hand, he never
expressly stated that he would decline reinstatement.
Nevertheless, taking into consideration that he did not request
reinstatement, that he began attending school and taking courses
in a different field than mining, and that he began working full
time in a totally unrelated type of work on July 16, 1999, I
conclude that he unequivocally indicated that he did not wish to
return to his former employment on July 16, 1999.

     Accordingly, I conclude that Mr. Noakes is entitled to back
pay in the amount of $9,157.50 plus interest calculated until the
date of payment in the manner required by the Commission.[4]
                     Civil Penalty Assessment

     The Secretary has proposed a penalty of $10,000.00 for this
violation of the Act.  However, it is the judge's independent
responsibility to determine the appropriate amount of penalty in
accordance with the six penalty criteria set out in section
110(i) of the Act, 30 U.S.C. � 820(i).  Sellersburg Stone Co. v.
FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Secretary on behalf
of Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 552, 555
(April 1996).

     The Assessed Violation History Report for Gabel Stone for
the two years preceding the company's discriminatory action shows
that the operator was cited for 11 violations.  (Comp. Ex. 1.)
Eight of the citations were issued for violations observed during
the inspection initiated by Noakes' 103(g) complaint.  Only four
of the 11 violations were designated as "significant and
substantial."[5]  From this, I find that the Respondent has a
good history of prior violations.

     Gabel Stone has only five to seven employees, including
Joyce and Gary Gabel.  Consequently, I find that Gabel Stone is a
very small business.

     I find that the operator was highly negligent.  After being
specifically advised that firing a miner who filed a 103(g)
complaint, 30 U.S.C. � 813(g), was a violation of section 105(c),
he fired the Complainant anyway.  Then he later tried to make it
appear that the Complainant had quit.

     The company argues that a $10,000.00 penalty would
"devastate" the employer.  (Resp. Br. at 8.)  Unfortunately, the
only evidence presented on this issue was the bald assertion by
the operator that in 1999 the company "grossed 400,000 and we
operate on about a 10 percent.  We paid taxes forty some thousand
dollars. A $10,000 fine would take 25 percent."  (Tr. 710.)  The
burden is on the operator to show that the penalty will adversely
affect its ability to remain in business.  Sellersburg Stone Co.,
736 F.2d at 1153 n.14.  The operator's statement clearly is
insufficient to meet this burden.  See Broken Hill Mining Co., 19
FMSHRC 673, 677 (April 1977) (must submit financial information
or other specific evidence to meet burden).  Further-more, even
assuming that the company's net profits were $40,000.00, the
penalty would come out of the gross, not the net.  Consequently,
I find that the penalty will not adversely affect Gabel Stone's
ability to remain in business.

     The Secretary asserts that the gravity of this violation was
serious because "a `chilling effect' on protected activities
naturally occurs by virtue of the very fact that the miner was
punished for reporting safety problems."  (Sec. Br. at 9.)  This
argument is based on the legislative history of the Act.
However, the Commission has held that:

          Contrary to the Secretary's assertions, this
          legislative history does not suggest that a
          chilling effect should be presumed to result
          from every section 105(c) violation.  In our
          view, Congress intended that section 105(c)
          would protect miners against the chilling
          effect of employment loss they might suffer
          as a result of an illegal discharge.  We
          therefore hold that the Mine Act does not
          support such a presumption and that a
          determination of whether a chilling effect
          resulted from a section 105(c) violation is
          to be made on a case-by-case basis.

Jim Walter Resources, Inc., 18 FMSHRC at 558.

     The Complainant testified that he made the 103(g) complaint
rather than taking the matter up with Gary Gabel because he
feared Gabel's reaction.  However, he gave no basis, such as
previous reactions by Gabel to such complaints, to support his
belief.  He also testified that he thought other employees were
afraid to bring safety matters to Gabel's attention.  Contrarily,
two of those employees testified that they were not afraid.
Significantly, no one testified as to their concerns, or lack
thereof, after the Complainant was fired.

     Despite this conflicting evidence, I find that Gabel's
reaction to the complaint, manifested at the time of the
inspection, and his subsequent termination of Noakes would
reasonably tend to discourage the other miners at this small
operation from engaging in protected activities.  Therefore, I
find that a chilling effect probably did result from the
violation and that the gravity of the violation was serious.

     Finally, I find that the Respondent did not demonstrate good
faith in abating this violation.  There is no evidence that he
did anything to abate it.  Further, as noted previously, when
discussing the matter with the MSHA District Supervisor who had
advised him about section 105(c) of the Act, Gabel attempted to
cover-up the matter by stating that Noakes had quit.

     Taking all of these factors into consideration, I conclude
that an appropriate penalty in this case is $5,000.00.  I am
reducing the penalty mainly because of the size of the company.
I am also taking into consideration the $9,157.50 in back pay I
am awarding, which serves two functions:  "to further the
purposes of the Act by deterring retaliatory actions, and to put
an employee into the financial position he would have been in but
for the discrimination."  Kentucky Carbon Corp., 4 FMSHRC at 2
(citation omitted).

                              Order

     Accordingly, having previously found that Gabel Stone Co.,
Inc., discriminated against John Noakes by discharging him on
December 3, 1998, it is ORDERED that:

     1.  My September 28, 2000, decision in this matter is FINAL.

     2.  The Respondent PAY John Noakes $9,157.50 in back
     pay, within 30 days of the date of this decision, for
     the period from December 4, 1998, until July 16, 1999,
     with interest computed using the Arkansas-
     Carbona/Clinchfield Coal Co. method.

     3.  Gabel Stone Co., Inc. is ORDERED TO PAY a civil
     penalty in the amount of $5,000.00, for its violation
     of section 105(c) of the Act, within 30 days of the
     date of this decision.


                              T. Todd Hodgdon
                              Administrative Law Judge


Distribution:  (Certified Mail)

Jennifer Casey, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716

Donald W. Jones, Esq., Hulston, Jones, Gammon & Marsh, 2060 E.
Sunshine, Springfield, MO 65804


/nt


**FOOTNOTES**

     [1]   In the September 28 decision, the parties were advised
that if a further  hearing  was needed on the remedial aspects of
the case, such a request should  be  made.   22  FMSHRC  at 1169.
While  it  would  have  been better if the Secretary had followed
this  procedure rather than  submitting  an  affidavit  with  the
brief,  the  failure  to  do  so  does  not  make  the  affidavit
inadmissable.  The Respondent was given the opportunity to cross-
examine the Complainant on the matters contained in the affidavit
and elected not to do so.

     [2]  The Respondent has not made any offer as to the  amount
of back pay to which the Complainant should be entitled.

     [3]   While  there  is  evidence  in  the  record that Gabel
employees occasionally also worked on the weekend, Noakes had not
done  so  for  several  months  and  he  makes no claim  for  any
additional overtime.

     [4]  The proper method of calculating  interest  on back pay
is:  Amount of interest = The quarter's net back pay x  number of
accrued  days  of interest (from the last day of that quarter  to
the date of payment)  x the short-term federal underpayment rate.
Secretary on behalf of  Bailey  v. Arkansas Carbona Co., 5 FMSHRC
2042, 2052 (December 1983), as modified  by Clinchfield Coal Co.,
10 FMSHRC 1493, 1505-06 (November 1988).  The applicable interest
rates and daily interest factors may be obtained  on the Internet
at:  www.nlrb.gov/ommemo/ommemo.html.

     [5]  The "significant and substantial" terminology  is taken
from  section 104(d)(1) of the Act, 30 U.S.C. � 814(d)(1),  which
distinguishes   as   more   serious  any  violation  that  "could
significantly  and substantially  contribute  to  the  cause  and
effect of a . . . mine safety or health hazard."