<DOC>
[DOCID: f:k96-389d.wais]

 
LOST CREEK MINING, INC.
October 30, 1996
KENT 96-389-D


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                           October 30, 1996

SECRETARY OF LABOR,                 :  TEMPORARY REINSTATEMENT
  MINE SAFETY AND HEALTH            :  PROCEEDING
  ADMINISTRATION (MSHA),            :
      on behalf of DOUGLAS MARTIN,  :  Docket No. KENT 96-389-D
                     Complainant    :
                                    :
            v.                      :  PIKE CD 96-09
                                    :
LOST CREEK MINING, INC.,            :  Mine No. 1
                     Respondent     :

                            DECISION APPROVING SETTLEMENT

Before:  Judge Barbour

     This case concerns an application for temporary reinstatement
filed pursuant to section 105(c)(2) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815(c)(2) ("ACT").  The
Secretary on behalf of Douglas Martin seeks Martin's immediate
reinstatement pending a finding on Martin's associated complaint
of discrimination (Docket No. KENT 96-390-D), which alleges
that on July 2, 1996, Martin was illegally discharged because
he refused to comply with a work order that he believed was
unsafe.

     On September 27, 1996, the parties orally advised me they
had agreed to settle both this temporary reinstatement proceeding
and the discrimination proceeding.  Subsequently, they filed a
motion seeking approval of settlement and dismissal of the
proceedings.

     Under the terms of the settlement, Respondent is required:

           l. [To] Expunge from its personnel files all
     records of and references to the July 2, 1996 discharge
     of . . . Martin.

           2.  On or before September 30, 1996, [to]
     permanently reinstate Martin to his former employment
     position with all seniority, status and benefits
     including, but not limited to, a rate of pay of $11.25
     per hour.

           3. [To] pay. . . Martin the sum of $1,700.00 in
     satisfaction of damages. . .[in] 3 monthly installment
     payments by certified check, cashier's check, or money
     order which shall be made payable to "Douglas Martin"
     and delivered directly to . . . Martin on the last
     Friday of each month, the first payment of $570.00
     being due on Friday, October 25, 1996, the second
     payment of $570.00 being due on Friday, November 29,
     1996, and the final payment of $560.00 being due on
     Friday, December 27, 1996.

          4. [To] pay a civil money penalty in the amount of
     $2,500.00 for the discrimination violation. . .. [in]
     4 quarterly installment payments of $625.00 each, the
     first payment being due on November 1, 1996, the second
     payment being due on February 1, 1997, the third
     payment being due on May 1, 1997, and the final payment
     being due on August 1, 1997 (Joint Motion at 2).

     In a decision pertaining solely to Docket No. KENT 96-390-D,
I have approved these terms and ORDERED Respondent to comply
with them.  In view of that approval and of the parties agreement
that Martin be reinstated, it is clear that the Secretary's
application for temporary reinstatement may be DISMISSED.


                                  David Barbour
                                  Administrative Law Judge
                                  (703) 756-5232


Distribution:

Brian W. Dougherty, Esq., Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215-
2862 (Certified Mail)

Jody L. Samons, President, Lost Creek Mining, Inc., P. O. Box 848,
Prestonsburg, KY 41653 (Certified Mail)

Mr. Douglas D. Martin, Box 220, Grethel, KY 41631 (Certified Mail)

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