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[DOCID: f:pn99158y.wais]
READING ANTHRACITE COMPANY
March 4, 2002
PENN 99-158-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 4, 2002
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
on behalf of :
LEONARD M. BERNARDYN, : Docket No. PENN 99-158-D
Complainant : PENN 99-129-D
:
v. : WILK CD 99-01
:
READING ANTHRACITE COMPANY, :
Respondent : Wadesville Pit
: Mine ID 36-01977
ORDER
Appearances: Troy E. Leitzel, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Complainant;
Martin J. Cerullo, Esq., Cerullo, Datte &
Wallbillich, Pottsville, Pennsylvania, for the
Respondent.
Before: Judge Weisberger
On February 1, 2002, I issued a partial decision, in this
matter, based on the Commission's remand, 23 FMSHRC 924 (2001),
and found, based on the law of the case as set forth by the
Commission, that the Secretary had established that Bernardyn
was discharged in violation of Section 105(c) of the Act. The
partial decision indicated that it would not be final until a
further Order is issued regarding the scope of Bernardyn's
relief and the amount of civil penalties to be assessed against
the Respondent.
1. Relief Due to Bernardyn
The parities submitted a series of stipulations regarding
the scope of relief due Bernardyn and, based upon the
stipulations, which I adopt, it is ORDERED as follows:
a. Bernardyn is due back wages in the gross amount of
$14,870.32 in principle, plus interest less legal
deductions.[1]
b. Bernardyn is due reimbursable health benefits in the
amount of $571.80 in principle plus interest.
c. Reading Anthracite Company will purge the personnel
file of Leonard Bernardyn of any reference to his
termination on November 10, 1998.
d. Bernardyn is due a credit in vacation hours earned in
the amount of $507.04 plus a $25.00 Christmas bonus
in principle plus interest.
2. Assessment of Penalty Against Reading
Inasmuch as it has been found that Reading violated Section
105 of the Act, a penalty must be assessed pursuant to Section
110 of the Federal Mine Safety and Health Act of 1977. Section
110(i) of the Act provides that the following factors are to be
considered by the Commission in accessing a civil monetary
penalty: The operator's history of previous violations, the
appropriateness of such penalty to the size of the business of
the operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in business, the
gravity of the violation, and the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
The parties stipulated that Reading has an annual coal
production of approximately 231,564 production tons per year,
that the Wadesville Pit Mine produces approximately 29,151 tons
of coal per year, that the imposition of the proposed civil
penalties will have no affect on Reading's ability to remain in
business, that Reading was accessed approximately 27 violations
over 82 inspection days during the 24 months preceding the
issuance of the subject 105(c) violation, and that Reading was
assessed three previous 105(c) violations.
The remaining factors of gravity, negligence and good faith
have not been agreed to be the parties.[2]
a. Gravity
In evaluating the gravity of a Section 105 violation, the
Commission has held that the proper analysis is whether the
discharge had a chilling effect on other miners. (See Jim Walter
Resources, Inc., 18 FMSHRC 552, 558-559 (Apr. 1996). In the case
at bar, Bernardyn was discharged after he had informed Reading's
superintendent that he had been driving cautiously due to
slippery road conditions. Hence, it can be concluded that his
discharge could reasonably tend to discourage other miners from
driving slowly in slippery conditions. Also, Bernardyn's
discharge occurred after he had contacted his safety
representative on a C.B. radio. It thus can be found that the
discharge of Bernardyn, would reasonably discourage other miners
from contacting their safety representative on a C.B. radio.
Thus it concluded that the gravity of the violation was high.
b. Negligence
The decision that Reading failed to establish its
affirmative defense, and did discharge Bernardyn in violation of
Section 105(c) of the Act, was based upon findings made by the
Commission, 23 FMSHRC, supra, which led to a conclusion, based on
the law of the case, that Bernardyn was disparately treated by
Reading. In this connection, the following were found to be the
law of the case: that there was no evidence in the record of
prior difficulties Reading may have had with Bernardyn swearing;
that Reading violated its policy in terminating Bernardyn; that
there was no substantial evidence to support a finding that
Bernardyn's broadcast of his cursing over the C.B. radio
materially distinguished his cursing episode from previous
cursing incidents; and that there was not substantial evidence
to support a decision that Bernardyn was not subject to
disparate treatment based on a finding that other individuals
made a profane remark only once, whereas Bernardyn had used
profanity unstop for approximately eight to ten minutes. Hence,
in light of these findings, it is concluded that Bernardyn was
subject to disparate treatment by Reading, which defeats
Reading's affirmative defense. Thus, it must be concluded that
the level of Reading's negligence with regard to the violation
herein was high.
c. Good Faith
The violative act herein, i.e., discharging Bernardyn on
November 10, 1998, in violation of Section 105 of the Act, was
initiated and executed by Reading. Reading did not make any
attempt to abate this violation by reinstating Bernardyn until
March 19, 1999, when it was ordered to do so in a decision
issued on that date ordering Reading to reinstate Bernardyn
subsequent to a hearing initiated by the Secretary's
Application for Temporary Reinstatement (21 FMSHRC 339 (Mar.
1999)). Subsequently, on July 26, 1999, Reading terminated
Bernardyn upon the issuance of an order dissolving the initial
order of temporary reinstatement (21 FMSHRC 819 (July 1999)).
Reading did not reinstate Bernardyn until September 1, 1999,
when the Commission vacated the initial dissolution of the
temporary reinstatement order (22 FMSHRC 298 (Mar. 2000)).
Within this context, I find that Reading was lacking in some
good faith attempt to abate the violative discharge of
Bernardyn.
d. Penalty Amount
Considering all the above factors, and giving considerable
weight to the high level of gravity and negligence, I conclude
that a penalty of $5,000 is appropriate.
e. Order
It is Ordered that, within 30 days of this Decision,
Reading shall pay a civil penalty of $5,000.
It is Further Ordered that this Order become incorporated
in the Partial Decision issued on February 1, 2002, and that
the Partial Decision is now Final.
Avram Weisberger
Administrative Law Judge
Distribution: (Certified Mail)
Troy E. Leitzel, Esq., Office of the Solicitor, U.S. Department
of Labor, Suite 630 East, Curtis Center, 170 S. Independence
Mall West, Philadelphia, PA 19106-3306
Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, P.O. Box
450, Pottsville, PA, 17091
/sc
**FOOTNOTES**
[1]:Interest is to be calculated using the Short-Term
Federal Underpayment Rate as explained by the Commission in
Secretary v. Clinchfield 10 FMSHRC 1493, 1504 (1998).
[2]:The 110(i) factors of gravity, negligence, and good
faith will be analyzed as they relate to Reading's violation of
Section 105 of the Act, i.e., unlawfully discharging Bernardyn.
In contrast, Reading's brief analyzes these factors as they
relate to physical conditions which provided the basis for
Bernardyn's protected activity. Inasmuch as Reading's brief does
not discuss negligence, gravity, and good faith as they relate to
Reading's violative discharge of Bernardyn, the arguments set
forth in the brief need not be discussed.