<DOC>
[DOCID: f:ct9724.wais]
F & E ERECTION COMPANY
August 5, 1998
CENT 97-24-DM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
August 5, 1998
BRYCE DOLAN, : DISCRIMINATION PROCEEDING
Complainant :
v. : Docket No. CENT 97-24-DM
: MSHA Case No. SC MD 96-05
F & E ERECTION COMPANY, :
Respondent : Mine ID No. 41-00320-B96
: Bayer Alumina Plant
SUPPLEMENTAL DECISION ON RELIEF
AND
FINAL ORDER
Appearances: Errol John Dietze, Esq., Dietze & Reese,
Cuero, Texas, for the Complainant;
James S. Cheslock, Esq., Cheslock, Deely &
Rapp, San Antonio, Texas, for the Respondent.
Before: Judge Feldman
This discrimination proceeding is before me as a result
of a discrimination complaint filed on December 27, 1996,
pursuant to section 105(c)(3) of the Federal Mine Safety
and Health Act of 1977 (the Mine Act), 30 U.S.C. � 815(c)(3),
by the complainant, Bryce Dolan, against the respondent,
F&E Erection Company (F&E). On June 12, 1998, I issued a
Decision on Liability determining that Bryce Dolan's
April 16, 1996, work refusal was protected by the provisions
of section 105(c) of the Mine Act. 20 FMSHRC 591. The
Decision on Liability provided the parties with an
opportunity to file proposed orders for relief with respect
to the appropriate back pay, reasonable attorney's fees and
incidental litigation expenses to be awarded to Dolan.
Dolan filed a Proposed Order for Relief on July 13, 1998.
F&E replied to Dolan's proposed order on July 23, 1998.
Although F&E proposed alternative measures of relief, F&E
reserved its right to appeal the June 12, 1998, Decision on
Liability as well as this decision on relief.
As a general proposition, this Commission has been
delegated the broad remedial power to fashion relief for
victims of discrimination. In this regard, section 105(c)(2)
of the Mine Act states in pertinent part: "The Commission
shall have authority . . . to require a person committing a
violation of this subsection to take such affirmative action
to abate the violation as the Commission deems appropriate,
including, but not limited to . . . [awarding] back pay and
interest." 30 U.S.C. � 815(c)(2). Remedies may be tailored
to varied and diverse circumstances �provided that the
remedial relief effectuates the purpose of section 105(c)
that seeks to encourage miners to work with operators to
prevent the existence of hazardous conditions and practices.
Secretary of Labor on behalf of Dunmire & Estle v. Northern
Coal Co., 4 FMSHRC 126, 142 (February 1982);
30 U.S.C. � 801(e). Thus, back pay awards may be reduced
in appropriate circumstances where there is a failure to
mitigate damages. 4 FMSHRC at 144. A discussion of the
appropriate relief to be awarded in this matter follows.
I. Back Pay
a. Calculation of Back Pay
At the time of Dolan's termination of employment,
Dolan was scheduled to work a 50 hour week, that included
ten hours overtime. His regular hourly wage paid for a 40
hour work week was $13.00 per hour, or $520.00 per week.
Dolan was paid $19.50 per hour overtime for the ten hours
of overtime he was scheduled to work each week. Thus,
Dolan's weekly compensation totaled $715.00 per five day
50 hour week ($520.00 regular pay, $195.00 overtime). The
$715.00 weekly wages is equivalent to daily wages of
$143.00. In addition to Dolan's $715.00 weekly wages,
Dolan was entitled to a monthly "safety bonus" of $100.00.
Although F&E does not dispute Dolan's regular and
overtime hourly wage, F&E asserts Dolan's back pay should
be calculated on the basis of a 41.7 hourly work week
because Dolan had a pattern of absenteeism on many Fridays
during the fifteen week period preceding his April 16, 1996,
termination.
In resolving disputes concerning the appropriate weekly
calculation of back pay, the benefit of the doubt must be
afforded to the complainant, rather than the mine operator
that is responsible for violation of the anti-
discrimination provisions of section 105(c) of the Mine Act.
F&E's assumption that Dolan would not have reported to work
on Fridays is speculative and does not provide an adequate
basis for reducing Dolan's normal weekly wage. Accordingly,
the amount for calculation of back pay shall be $715.00 per
week ($143.00 per day) plus a safety bonus of $100.00 per
month.
b. Period of Back Pay
Dolan contends he is entitled to back pay and bonuses
of $49,576.50 for the period April 17, 1996, through
July 25, 1997, when he started receiving Temporary Income
Benefits under the Texas Workers Compensation Law, Labor
Code � 401.001 et seq.
F&E argues Dolan is entitled to back pay during the
period April 17, 1996, through June 5, 1996, when Dolan's
physician certified that Dolan was under his care for a
"significant illness" and that Dolan was "unable to engage
in employment in his usual trade, or in any other form of
employment." (Ex. C-8).
Dolan received a total of $4,221.00 in unemployment
benefits for the period from April 21, 1996 through
August 11, 1996.[1] The Commission has determined that
unemployment benefits shall not be deducted from back pay
awarded to a complainant in a discrimination proceeding.
See Secretary of Labor on behalf of Poddey v. Tanglewood
Energy, Inc., 18 FMSHRC 1315, 1323-25 (August 1996)
(citations omitted).
Dolan was hired by the United Kensington Group as a
construction worker on August 11, 1996. Dolan quit the
following day on August 12, 1996, because of reported
physical problems. Dolan testified that he believes he is
totally disabled and that he has been unable to work since
quitting his job with the United Kensington Group on
August 12, 1996. In this regard, Dolan testified that he
has not looked for work since August 12, 1996. Dolan
currently does household chores and his wife is employed.
Dolan applied for state workers compensation benefits
alleging disability as of August 12, 1996. Dolan has
received Texas Workers Compensation Temporary Income
Benefits for the period July 25, 1997, to the present.
Temporary Income Benefits represent lost wages that are
paid until a determination is made regarding eligibility
to Impairment Income Benefits, which represent payment for
disability. Labor Code, �� 408.103, 408.121. Temporary
Income Benefits continue until it is determined that the
employee has reached maximum medical improvement at which
time entitlement to Impairment Income Benefits is
determined. Id. at � 408.102.
There is no record evidence of any state agency
determination that Dolan has been determined to be disabled,
or the effective date of such disability. Dolan's
eligibility for workers compensation benefits for the
period April 17, 1996, through July 24, 1997, has not been
resolved.
As a threshold matter, whether Dolan is disabled is
beyond the scope of this proceeding. Although I have
concluded that Dolan expressed good faith, reasonable
concerns about his exposure to the hazards of lead
contamination, this is not the appropriate forum for
determining whether Dolan's health was, in fact, adversely
affected by his F&E employment. See 20 FMSHRC at 605. In
any event, Dolan is not claiming back pay as of
July 25, 1997, the date Dolan began Temporary Income
Benefits under the Texas State Worker Compensation program.
While I am sensitive to the Commission's obligation to
endeavor to make a complaining miner whole, Dolan's claim
for back wages from August 12, 1996, until July 25, 1997,
a period during which he alleges to be totally disabled,
and a period during which he admits that he has not looked
for work, must be rejected. Back pay cannot be awarded
for a period during which Dolan alleges that he has been
unable to work. In this regard, the Commission has
determined that "back pay may be reduced in appropriate
circumstances where an employee incurs a willful loss of
earnings (fails to mitigate damages)." Dunmire & Estle,
4 FMSHRC at 144 (emphasis added).
In the absence of a medical determination that Dolan
was disabled during the period for which back wages have
been claimed, Dolan's loss of earnings due to his decision
not to look for work must be characterized as voluntary.
If his complaints of disability ultimately are
substantiated by adequate objective medical findings, his
loss of earnings will no longer be considered voluntary.
At such time Dolan will be entitled to workers
compensation disability benefits from August 12, 1996,
through July 24, 1997, the period of back pay claimed.
My determination that Dolan is not entitled to back
pay as of August 12, 1996, is based on his admission that
he has removed himself from the labor market as of that
date. 20 FMSHRC at 598. While it is true, as F&E
contends, that Dolan's physician opined that he has been
disabled since June 5, 1996, Dolan looked for work and
obtained employment until August 12, 1996. Giving Dolan
the benefit of the doubt that he was looking for work prior
to August 12, 1996, the period for calculating back pay
shall be from April 17, 1996, the day after he severed his
F&E employment, until August 11, 1996, the day prior to the
date that Dolan alleges he became totally disabled.
There are 83 work days during the period April 17, 1996,
through August 11, 1996. Consequently Dolan shall be
awarded total back pay of $12,269.00, plus interest,
constituting $11,869.00 (wages of $143.00 per
day _ 83 days) plus $400.00 in bonuses ($100.00 per
month _ four months), less earnings of $174.40 paid United
Kensington Group, Inc., for work performed on August 11 to
August 12, 1996.[2] Thus, F&E shall pay net back pay in
the amount of $12,094.60, less applicable federal, state
and local taxes.
II. Reasonable Attorney's Fees
Section 105(c)(3) of the Act provides, in pertinent part:
Whenever an order is issued sustaining the
complainant's charges under this subsection, a sum
equal to the aggregate amount of all costs and
expenses (including attorney's fees) as determined by
the Commission to have been reasonably incurred by the
miner . . . in connection with [ ] the institution and
prosecution of such proceedings shall be assessed
against the person committing such violation.
Dolan has claimed attorney's fees of $23,745.00 as
reflected in a detailed itemized statement of services
rendered. This total constitutes attorney services of 121
hours @ $125.00 per hour, and paralegal services of
215 hours @ $40.00 per hour.
F&E does not allege that the attorney and paralegal
hours claimed in this matter are unreasonable. Nor does
F&E assert that the claimed hourly rates of $125 and $40
per hour for attorney and paralegal fees, respectively,
are unreasonable. Rather, F&E argues that attorney fees
for services rendered prior to November 30, 1997, should
be limited to $5,000.00 based on Dolan's answer to
Interrogatory No. 8 in response to F&E's second set of
interrogatories that reflects that Dolan had agreed to pay
counsel a flat fee of $5,000.00, win or loose, for
services rendered in this litigation.
Thus, F&E contends the appropriate attorney fee to be
awarded should be $9,766.25 calculated by adding $5,000.00
for services rendered prior to the November 30, 1997,
interrogatory response, and $4,766.25 for the services
rendered by Dolan's counsel and his paralegal after
November 30, 1997, based on the 89_ attorney hours and 31�
paralegal hours of work that reportedly occurred after
November 30, 1997, as detailed in Dolan's itemized bill for
services.
As noted above, F&E does not assert that the hourly
fees and total hours claimed by Dolan's counsel in this
proceeding are exorbitant. In fact, additional discovery
and a second hearing in this proceeding were necessitated
by F&E's adherence to its assertion that burning was an
accepted industry alternative to chipping and grinding as a
safe method of lead abatement. While F&E is entitled to
advance its defense as it chooses, given the provisions of
section 105(c)(3) of the Act that provide for reimbursement
of litigation expenses, F&E must bear the burden of
reimbursing Dolan for the additional legal services and
expert witness fees necessary to rebut F&E's defense.
Consequently, the hourly rates and hourly totals claimed by
Dolan's counsel are entirely reasonable.
F&E's assertion that it is entitled to rely on Dolan's
initial legal fee arrangement of $5,000.00 is unconvincing.
Significantly, F&E is not a party in privity to that fee
agreement. Dolan and counsel were free to renegotiate their
agreement at any time as circumstances dictated. While it
is not uncommon for attorneys to reduce fees based on a
client's inability to pay, the fact that attorney fees are
recoverable in this proceeding is a legitimate basis for
Dolan to disavow his initial reduced fee agreement.
In the final analysis, an operator that violates the
anti-discrimination provisions of section 105(c) of the
Mine Act cannot rely on a miner's inability to pay
reasonable attorney fees to mitigate its statutory
obligation to reimburse the miner for reasonable
litigation expenses. Having prevailed in this matter,
Dolan's counsel, like F&E's counsel, is entitled to
reasonable fees for services rendered.
Having concluded that it has neither been contended nor
shown that the attorney fees claimed are unreasonable, F&E
shall pay Dolan's legal fees in the total amount of the
$23,745.00 as claimed. While I am aware that the attorney
fees awarded are approximately double the back pay awarded
to Dolan, it is the reasonableness of the attorney fee
request in a given case, rather than the proportionality
of the request, that governs the appropriate fee to be
awarded. Moreover, the potential deterrent value of this
case, that hopefully will heighten industry awareness to
the dangers associated with the lead abatement process,
must also be considered. See Copeland v. Marshall,
641 F.2d 880, 906-08 (D.C. Cir. 1980); see also Munsey v.
Smitty Baker Coal Company, Inc., 3 FMSHRC 2056 (1981);
Simpson v. Kenta Energy, Inc., 7 FMSHRC 272 (1985).
III. Miscellaneous Litigation Expenses
Dolan has also claimed total miscellaneous litigation
expenses of $7,790.0.21 for such items including, inter
alia, expert witness fees, court reporter and transcript
fees incidental to trial and depositions, postage,
telephone bills and service of subpoenas. With the
exception of the $662.00 claimed for telephone bills, and
the $161.00 claimed for "fax" expenses that are not
documented expenses, F&E does not specifically contest
any of the other litigation expenses claimed.
Having been a participant in several telephone
conferences initiated by counsel, and having been the
recipient of telephone inquiries and facsimiles, I am aware
that long-distance telephone and facsimile expenses have
been incurred. However, it is true that the exact amount
of these expenses has not been documented. Thus, on
balance, I am awarding reasonable reimbursement of $250.00
for telephone and facsimile expenses rather than the
$823.00 claimed. Accordingly, F&E shall pay total
miscellaneous litigation expenses of $7,217.21.
ORDER
In view of the above, IT IS ORDERED THAT:
1. The Decision on Liability issued on
June 12, 1998, and this Supplemental Decision on Relief
constitute the final decision in this proceeding.
2. F&E Erection Company SHALL PAY the complainant,
Bryce Dolan, back pay plus bonuses of $12,094.60, less
applicable federal, state and local taxes, plus accrued
interest until payment of back pay is made, for the
period April 17, 1996 through August 11, 1996. The
interest accrued with respect to back pay shall be
computed according to the Commission's decision in Local
Union 2274, UMWA v. Clinchfield Coal Co.,
10 FMSHRC 1483 (1988), aff'd sub nom. Clinchfield Coal
Co. v. FMSHRC, 895 F.2d 773 (D.C. Cir. 1990), and
calculated in accordance with the formula in Secretary
o/b/o Bailey v. Arkansas Carbona, �5 FMSHRC 2042 (1984).
Using this formula, the applicable interest rate for
April 17, 1996, through June 30, 1996, is 8% (.0002222
daily interest factor); the applicable interest rate for
July 1, 1996, through March 31, 1998, is 9% (.0002500
daily interest factor); and the applicable interest rate
for April 1, 1998, through September 30, 1998, is 8%
(.0002222 daily interest factor).
3. F&E Erection Company SHALL PAY Bryce Dolan's
attorney's fees of $23,745.00.
4. F&E Erection Company SHALL PAY Bryce Dolan's
miscellaneous litigation expenses of $7,217.21.
5. F&E Erection Company SHALL EXPUNGE from Bryce
Dolan's personnel records, and/or company personnel
records, all references to Dolan's complaints that
ultimately resulted in his April 12, 1996, termination
of employment and all references to the fact that Dolan
has filed the subject discrimination complaint in this
matter.
6. F&E Erection Company SHALL POST a copy of the
June 12, 1998, Decision on Liability and this
Supplemental Decision on Relief at ALCOA's Point
Comfort Plant in a conspicuous, unobstructed location
where notices to employees are customarily posted for
a period of 60 consecutive days from the date of this
Supplemental Decision and Final Order.
7. F&E Erection Company SHALL COMPLY with the
above enumerated orders within 30 days of the date of
this decision.
8. Upon timely compliance with the orders
enumerated above, this discrimination complaint IS
DISMISSED.
Jerold Feldman
Administrative Law Judge
Distribution:
Errol John Dietze, Esq., Dietze & Reese, 108 N. Esplande,
P.O. Box 841, Cuero, TX 77954 (Certified Mail)
James S. Cheslock, Esq., Cheslock, Deely & Rapp, P.C.,
405 N. St. Mary's Street, Suite 600, San Antonio, TX 78205
(Certified Mail)
Edward P. Clair, Associate Solicitor, Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Room 420, Arlington, Virginia 22203 (Certified Mail)
\mh
[1] This information is taken from Dolan's answer to
the respondent's first set of interrogatories filed on
March 21, 1997.
[2] Dolan reported that he earned $174.40 at United
Kensington Group, Inc., in his answer to the respondent's
first set of interrogatories filed on March 21, 1997.