<DOC>
[DOCID: f:k94-1041.wais]

 
HICO TRANSPORT, INC.
March 8, 1995
KENT 94-1041-D


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                            March 8, 1995
                                 
JERRY SLONE,                    :  DISCRIMINATION PROCEEDING
               Complainant      :
          v.                    :  Docket No. KENT 94-1041-D
                                :  BARB CD 94-08
HICO TRANSPORT, INC. AND        :
JAY CRASE,                      :  Pine Branch Coal
               Respondents      :  Sales Prep Plant # 1

                           DEFAULT DECISION

     A default judgment is hereby issued in favor of
Complainant Jerry Slone, due to the failure of Respondents
to file an answer to the complaint and to respond to show
cause orders issued by Chief Administrative Law Judge Merlin
and the undersigned.

     Mr. Slone filed a complaint with the Mine Safety and
Health Administration (MSHA) on or about November 22, 1993,
alleging that he had been discharged by Respondents in
retaliation for activities protected by the Federal Mine
Safety and Health Act, in violation of section 105(c) of
the Act, 30 U.S.C. � 815(c).  On June 16, 1994, MSHA advised
Complainant that it had concluded that a violation of
section 105(c) had not occurred.

     On July 20, 1994, Complainant commenced this action on
his own by filing a complaint with the Commission. This
action was filed pursuant to section 105(c)(3) of the Act 
which provides that if the Secretary of Labor determines 
that no violation of section 105(c) has occurred, the 
complainant shall have the right to file an action on his 
own behalf with the Commission.

     The Commission's rules of procedure at 29 C.F.R.
� 2700.43 require that within 30 days after the service of a
discrimination complaint, the respondent shall file an 
answer responding to each allegation of the complaint.
Respondents in the instant case have not responded to the
July 20, 1994, complaint.

     On November 7, 1994, Commission Chief Administrative 
Law Judge Paul Merlin issued an Order To Respondent To Show
Cause.  In that order Respondents were ordered to file an
answer within 30 days or show good reason, in writing, for
their failure to do so.  A Domestic Return Receipt form (PS
Form 3811, or "green card") indicates that the show cause 
order was received by Respondent Jay Crase at his address 
in Hallie, Kentucky, on November 15, 1994.  It appears that 
the show cause order may not have been served on Hunter 
McDonald III, who at one time was HICO Transport's 
Registered Agent for Service of Process, in Nashville, 
Tennessee.

     On January 11, 1995, this matter was assigned to the
undersigned for "appropriate proceedings."  I issued another
show cause order on January 13, 1995, essentially allowing
Respondents another four weeks, until February 10, 1995, to 
comply with the November 7, 1994 show cause order.  I 
specifically advised Respondents that failure to comply 
with my order would result in the entry of a default 
decision in favor of Complainant.

     On February 10, 1995, I received a letter from one
Bruce L. Washburn stating that he had been forward a copy
of my January 13, 1995 order by Mr. Hunter McDonald, who was
once, but apparently is no longer, associated with HICO
Transport, Inc.  Mr. Washburn's letter indicates that he had
discussed the January 13 order with Mr. Crase, the owner of
HICO Transport.

     As the Commission did not have a return receipt from 
Mr. Crase for the January 13 order, the undersigned called
him on February 22, 1995, to advise him that he must
immediately file a substantive written response to the
complaint, with a copy to Mr. Slone's counsel to avoid a
default decision.

     Since Mr. Crase has received actual notice of both
the November 1994 show cause order and the January 13, 1995
show cause order and has not filed a timely response, I find
him in default and enter judgment in favor of the 
Complainant.
                               

                                Arthur J. Amchan
                                Administrative Law Judge

Distribution:

HICO Transport, Inc., c/o Bruce Washburn, c/o Hunter 
McDonald III, 1102 17th Avenue South, Suite 401, Nashville,
TN 37212 (Certified Mail)

Jay Crase, HC 63, Box 1580, Hallie KY 41821 (Certified Mail)

Tony Oppegard, Esq., Mine Safety Project of the Appalachian
Research & Defense Fund of Kentucky, Inc., 630 Maxwelton 
Court, Lexington, KY 40508 (Certified Mail)

/lh