<DOC>
[DOCID: f:p951d-2.wais]

 
READING ANTHRACITE COMPANY
November 22, 1995
PENN 95-1-D


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          November 22, 1995

SECRETARY OF LABOR,             :  DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :  Docket No. PENN 95-1-D
  on behalf of                  :  MSHA Case WILK CD 94-01
  WILLIAM KACZMARCZYK,          :
               Complainant      :  Ellangowan Refuse Bank 
            v.                  :    No. 45
                                :
READING ANTHRACITE COMPANY,     :
               Respondent       :

          DECISION ON DAMAGES; ASSESSMENT OF CIVIL PENALTY

Appearances: Stephen D. Turow, Esq., Office of the Solicitor, 
             U.S. Department of Labor, Arlington, Virginia,
             for Complainant;
             Martin J. Cerullo, Esq., Cerullo, Datte &
             Wallbillich, P.C., Pottsville, Pennsylvania,
             for Respondent.

Before: Judge Amchan

                              Background

     On October 15, 1993, Complainant, William Kaczmarczyk, was
transferred from a light duty position at Respondent's mine to 
workers compensation status. He filed a complaint with the U.S. 
Department of Labor alleging that this action was taken in 
retaliation for his activities as a walkaround representative 
during an MSHA inspection that was completed on October 14, 1993.

     The Secretary of Labor filed a complaint with the Commission
on Mr. Kaczmarczyk's behalf and an application for his temporary
reinstatement to his light duty position.  After a hearing on the
application I found the complaint "not frivolous" and ordered 
Complainant temporarily reinstated on September 12, 1994.

     On May 24, 1995, after a second hearing, I found that
Complainant's transfer to light duty violated �105(c) of the Act.
One month before that decision the Secretary filed a motion to
enforce the temporary reinstatement order, alleging that Respondent
had "constructively suspended" Complainant by repeatedly pressuring
him to do tasks that were beyond his physical limitations between
April 17, and 20, 1995[1].  After a third hearing, I ruled on June 
21, 1995, that Respondent had violated the terms of the order, but
that it had not "constructively suspended" Mr. Kaczmarczyk.

     The May 24, 1995 decision on liability directed the parties to
inform me within thirty days whether they could stipulate as to the
amount of damages and an appropriate civil penalty.  After an 
enlargement of that period, the parties advised that they could not
reach agreement on these issues.  Thereafter a fourth hearing was
held on September 28, 1995, on the issue of damages. That hearing 
primarily concerned Mr. Kaczmarczyk's claim that he was unable to
refinance his mortgage loan due to the discriminatory transfer to
workers compensation.  However, in its post-hearing brief,
Complainant and the Secretary withdrew their claim in this regard.

                          Stipulated Damages

     The parties have stipulated that Mr. Kaczmarczyk is entitled
to the following amounts to compensate for economic loss suffered 
as the result of his discriminatory transfer:

     Lost Compensation and Benefits, Lost Overtime and Workers'
     Compensation Payments: $4,342.42 (Jt. Exh. DH-1 & DH-1A)[2].

     Interest: $600 (Letter of Secretary's counsel dated
     November 13, 1995).

                           Disputed Amounts

     The Secretary contends that Complainant is also entitled
to interest on the amount of unemployment compensation benefits 
received.  I reiterate the holding of my order of August 16, 1995,
that Mr. Kaczmarczyk is not entitled to such payments since he had
the use of these funds while he was on workers compensation.

     Complainant seeks $156.00 for travel expenses incurred as the
result of his search for alternative employment while he was on 
workers compensation.  Respondent contends it should be required to
reimburse him for $87, because those expenses incurred in trips not
required by its compensation carrier should be excluded.

     I conclude that Complainant is entitled to the $156 claimed
because he would not have taken these trips but for the 
discriminatory transfer.   Moreover, I believe Mr. Kaczmarczyk 
was not acting unreasonably in going beyond what was required of
him in seeking alternative employment.

                    Assessment of A Civil Penalty

     The Secretary seeks assessment of an $8,000 civil penalty for
Respondent's violation of �105(c).  However, the Commission assesses 
penalties without regard to the Secretary's proposal in accordance 
with six factors specified in section 110(i) of the Act. I assess
a penalty of $2,000.

     The parties have stipulated with regard to three of the six 
statutory factors.  They have agreed that MSHA properly considered 
Respondent's size and previous history of violations in proposing 
an $8,000 penalty.  The parties also stipulated that such a penalty
would not affect Reading Anthracite's ability to stay in business. 
My assessment of the other three factors is as follows:

     Gravity of the Violation:  As Respondent points out,  Mr.
     Kaczmarczyk suffered a rather modest economic loss as the
     result of his transfer on October 15, 1993.  Indeed, much 
     of the money due him is for additional workers compensation
     benefits that he should have been paid even if the transfer
     had not occurred or had not been discriminatory.



  **FOOTNOTES**

       [1]: The temporary reinstatement order stated that Respondent
  could not require Complainant to perform tasks that he was
  incapable of doing.

       [2]: Respondent has agreed to reimburse the unemployment
compensation fund for the $14,539.00 paid to Mr. Kaczmarczyk.


     Nevertheless, a section 105(c) violation is a serious matter,
even if the economic loss to the miner is small.  Such violations, 
if not discouraged, inhibit miners from exercising their rights 
under the Act, and are likely to adversely affect safety.

     Ironically, the civil penalty may be somewhat more important
in deterring violations of section 105(c) in cases where the
economic loss to the miner is small than it is in cases where
the loss is large.  A large backpay award is itself a powerful
deterrent.  Thus, the rather modest economic loss suffered by
Mr. Kaczmarczyk cuts both ways in assessing an appropriate
civil penalty.

     In assessing a lower penalty than that proposed by the
Secretary I am influenced in large part by my conclusion that
the nexus between Complainant's protected activity and his
transfer was far from overwhelming.  I concluded that such a
nexus existed largely due to statements made by Safety
Director David Wolfe during and after the October 1993 MSHA
inspection.  Complainant served as a walkaround representative. 
However, as previously noted, nothing Mr. Kaczmarczyk did during 
this inspection would suggest a reason for retaliation.  There
appears to be a considerable degree of animus towards Mr.
Kaczmarczyk that may arise from other issues with management.

     Negligence:  Respondent did not accidently transfer
Mr. Kaczmarczyk to workers compensation, it did so intentionally.
Nevertheless, there is little in the record to suggest that 
Respondent intended to discourage Complainant, or other miners,
from exercising their rights under the Act.  Mr. Wolfe's statement 
that citations issued to Respondent were "another reason" for the
transfer was made in the course of a heated exchange concerning 
other issues as well.  I am not convinced that Wolfe sought to
discourage the exercise of miners' rights under the Act.

     Good Faith In Attempting to Achieve Rapid Compliance:
Respondent did reinstate Complainant as ordered.  However,
over the course of four days in April 1995, Respondent
repeatedly pressured him to do tasks beyond his physical
limitations in contravention of the temporary reinstatement
order.

     On the other hand, Respondent believed, and I ultimately
found, that Complainant was not justified in leaving work
without permission on April 20, 1995, and staying home until
May 1, 1995. Nevertheless, Respondent agreed to his reinstatement 
on May 1, 1995, without discipline.  I believe this should be
considered in assessing a civil penalty, as well as the violation
of the temporary reinstatement order.

                                ORDER

     Respondent is hereby ordered within thirty days of this
decision to:

     1. Pay to Mr. Kaczmarczyk the amount of damages specified
        herein;

     2. Pay to the Secretary of Labor a $2,000 civil penalty.


                                Arthur J. Amchan
                                Administrative Law Judge


Distribution:

Stephen D. Turow, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203 
(Certified Mail)

Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, P.C., 
Second Street & Laurel Blvd., P.O. Box 450, Pottsville, PA 17901 
(Certified Mail)


/lh