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[DOCID: f:lk9988.wais]

 
SPROULE CONSTRUCTION CO.
September 24, 1999
LAKE 99-88-DM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                       September 24, 1999


SECRETARY OF LABOR,             : DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. LAKE 99-88-DM
  on behalf of STEVEN SHAFFER,  : NC MD 98-04
               Complainant      :
               v.               : Portable No. 2
                                : Mine ID 11-03204
SPROULE CONSTRUCTION CO.,       :
               Respondent       :

                            DECISION

Appearances: Denise C. Hockley-Cann, Esq., Office of the
             Solicitor, U.S. Department of Labor, Chicago,
             Illinois for Complainant;
             Richard P. Reichstein, Esq., Chicago, Illinois 
             for Respondent.

Before: Judge Bulluck

     This case concerns a discrimination proceeding filed
pursuant to Section 105(c) of the Federal Mine Safety and 
Health Act of 1977,  30 U.S.C. §815(c)(3). The  Secretary, 
on behalf of Steven  Shaffer,  alleges  that  Shaffer was 
unlawfully  discharged  on  May  29,  1998,  and  seeks  
reinstatement of Shaffer  with  back  pay,  interest  and  
benefits, and expungement of Shaffer's personnel record of 
all references to the incidents surrounding the protected 
activity. Additionally, the Secretary seeks orders directing 
Sproule to cease and desist discriminatory activities
directed at all miners, posting of a notice of violation, 
and imposition of a $1,500.00 civil penalty.

     A hearing on the merits was convened on August 3, 1999, 
in Dubuque, Iowa, during which MSHA Inspector Stephen Field
testified. Based on information gleaned from the inspector's
testimony, the  Parties  entered  into  a  discussion  and 
negotiated a settlement. Under the terms of the agreement, 
Sproule is required  to take the following action:

     1.  pay to the Secretary, for the benefit of Steven 
     Shaffer, the sum of $2,000.00;

     2.  expunge Steven Shaffer's personnel file of any and 
     all references  to the incidents giving  rise  to  his 
     May 29, 1998 discharge;

     3.    post a "Notice to all Employees" affirming its
     commitment to section 105(c) of the Mine Act, and 
     setting  forth miners' rights under section 105(c); 
     and

     4.   pay a civil money penalty in the amount of $750.00 
     for the discrimination violation.

The settlement was approved at hearing, and that determination 
is hereby confirmed.


                                ORDER

     The settlement is appropriate and is  in  the  public 
interest. WHEREFORE, the approval of settlement is GRANTED, 
and it is ordered that Sproule comply with the terms of the
settlement agreement, as set forth above, and pay a civil 
penalty of $750.00 within 30 days  of  the  date  of  this 
decision.  Upon  Sproule's  compliance with all  terms  of 
settlement, this proceeding is DISMISSED.


                                Jacqueline R. Bulluck
                                Administrative Law Judge
                                (703) 756-6210


Distribution:

Denise C. Hockley-Cann, Esq., Janet M. Graney, Esq., Office 
of the Solicitor, U.S. Department of Labor, 230  S. Dearborn 
Street, 8th Floor, Chicago, IL 60604 (Certified Mail)

Richard P. Reichstein, Esq., Chicago, IL 60602 (Certified
Mail)

Mr. Steven Shaffer, P. O. Box 3302, Dubuque, IA 3302-52004
(Certified Mail)

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