<DOC>
[DOCID: f:k95-769d.wais]

 
BRUCE YOUNG, d/b/a/ BNA TRUCKING AND YOGO, INC.
January 17, 1996
KENT 95-769-D


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                           January 17, 1996


SECRETARY OF LABOR,                :   TEMPORARY REINSTATEMENT
  MINE SAFETY AND HEALTH           :   PROCEEDING
  ADMINISTRATION (MSHA),           :
  On behalf of WILLIAM DELONG,     :   Docket No. KENT 95-769-D
               Complainant         :   MSHA Case No. PIKE CD 95-16
          v.                       :
                                   :   Martiki Surface Mine
BRUCE YOUNG, d/b/a BNA             :   Mine I.D. No. 24-01490
  TRUCKING AND YOGO, INC.,         :
               Respondent          :
                                   :
SECRETARY OF LABOR,                :   DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA),           :   Docket No. KENT 95-770-D
  On behalf of WILLIAM DELONG,     :   MSHA Case No. PIKE CD 95-16
               Complainant         :
          v.                       :   Martiki Surface Mine
                                   :   Mine I.D. No. 24-01490
BRUCE YOUNG, d/b/a BNA             :
  TRUCKING AND YOGO, INC.,         :
               Respondent          :


                    DECISION APPROVING SETTLEMENT;
                     ASSESSMENT OF CIVIL PENALTY

     The parties have submitted an executed settlement agreement
in this matter which includes the following items:

     1.  Complainant, William DeLong, agrees not to institute
any further legal action arising from his alleged discharge of
February 23, 1995;

     2.  Respondents agree to reinstate Mr. DeLong as of October 10,
1995, as a truck driver for Yogo, Inc., at a rate of $7.00 per hour;

     3.  Respondents agree that DeLong shall have seniority as a
truck driver for Yogo from the date of his first employment with
Respondent Bruce Young d/b/a BNA Trucking in August, 1994;

     4.  Respondents agree to provide to Mr. Delong and the Secretary
of Labor a seniority list of all truck drivers employed by Yogo,
Inc., as of October 10, 1995;

     5. Respondents agree that layoffs, if they occur, will be
based on the aforementioned seniority list;

     6.  Respondents agree to pay Mr. DeLong $5,000 for alleged
mental and emotional distress in accordance with a schedule set
forth in the agreement;

     7.  Respondents deny any violations of section 105(c) of the
Act.

     I have considered the representations set forth in settlement
agreement and have determined that they are consistent with section
105(c) of the Act.  I do note that regardless of Respondents' denial
of any violation of the Act, the order approving the settlement in
this matter is enforceable to the same extent as any other order of
the Commission under section 106(b) of the Act.

                     ASSESSMENT OF CIVIL PENALTY

     The parties have left assessment of the civil penalty to the
undersigned judge.  Applying the penalty criteria set forth in section
110(i) of the Act, and particularly noting the good faith demonstrated
by Respondents in reinstating Mr. DeLong, I conclude that a civil
penalty of $500 is appropriate.

                                ORDER

     The parties motion for approval of the settlement agreement
is GRANTED.  Since the parties have informed the undersigned that
BNA Trucking is no longer in business, Respondents Bruce Young and/or
Yogo, Inc. are ordered to pay to the Secretary of Labor a civil
penalty of $500 within 30 days of this decision.


                                   Arthur J. Amchan
                                   Administrative Law Judge


Distribution:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN  37215-2862

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

Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S.C.,
415 Second Street, P.O. Box 351, Pikeville, KY  41502-0351

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