[DOCID: f:k96-96.wais] BRUCE YOUNG AND YOGO, INC. June 21, 1996 KENT 96-96-D FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES 2 SKYLINE, 10th FLOOR 5203 LEESBURG PIKE FALLS CHURCH, VIRGINIA 22041 June 21, 1996 SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA), : Docket No. KENT 96-96-D On behalf of ANDY HOWARD, JR., : MSHA Case No. PIKE CD 95-21 Complainant : : v. : Martiki Surface Mine : Mine I.D. No. 15-07295 BLH BRUCE YOUNG AND YOGO, INC., : Respondent : DECISION APPROVING SETTLEMENT; ASSESSMENT OF CIVIL PENALTY The parties have submitted an executed settlement agreement in this matter which includes, but is not limited to, the following items: 1. Complainant, Andy Howard, Jr., agrees not to institute any further legal action arising from his alleged discharge of August 31, 1995; 2. Mr. Howard and the Secretary of Labor agree to waive permanent reinstatement for Mr. Howard; 3. Mr. Howard agrees to dismiss the appeal of his Kentucky unemployment insurance claim; 4. Respondents agree to pay Mr. Howard $4,350 for alleged mental and emotional distress in accordance with a schedule set forth in the agreement; 5. Respondents agree to expunge from Mr. Howard's personnel file any references to his separation of August 31, 1995, and any references to the discrimination complaint he filed with MSHA, or the resulting proceedings before the Federal Mine Safety and Health Review Commission; 6. Respondents agree not to inform any prospective employers of Mr. Howard of the discrimination complaint filed with MSHA, or the resulting proceedings before the Federal Mine Safety and Health Review Commission; 7. Respondents agree to provide Mr. Howard's prospective employers with only the following information: dates of employ- ment with Yogo, Inc., job title and rate of pay; 8. The parties agree that $1,000 is an appropriate civil penalty in this case. I have considered the representations set forth in settle- ment agreement and have determined that they are consistent with section 105(c) of the Act. ASSESSMENT OF CIVIL PENALTY Applying the penalty criteria set forth in section 110(i) of the Act, I conclude that a civil penalty of $1,000 is appropriate. ORDER The parties' motion for approval of the settlement agree- ment is GRANTED. Respondents Bruce Young and/or Yogo, Inc. are ordered to pay to the Secretary of Labor a civil penalty of $1,000 within 30 days of this decision. They are also ordered to pay the agreed upon compensation to Mr. Howard in accordance with the terms of the settlement agreement, and to complete making these payments no later than August 1, 1996. Upon completion of these payments, and payment of the civil penalty, this case is DISMISSED. 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 /lh