.
ALL AMERICAN ASPHALT
May 24, 1995
WEST 93-336-DM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
May 24, 1995
SECRETARY OF LABOR : DISCRIMINATION PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
on behalf of :
JAMES HYLES, : Docket Nos. WEST 93-336-DM
: WEST 93-436-DM
DOUGLAS MEARS, : WEST 93-337-DM
: WEST 93-437-DM
DERRICK SOTO, : WEST 93-338-DM
: WEST 93-438-DM
GREGORY DENNIS, : WEST 93-339-DM
Complainants : WEST 93-439-DM
: WEST 94-021-DM
v. :
: All American Aggregates
ALL AMERICAN ASPHALT, :
Respondent :
DECISION
Appearances: J. Mark Ogden, Esq., Office of the Solicitor, U.S.
Department of Labor, Los Angeles, California, for
Complainants; Lawrence Gartner, Esq., Naomi Young,
Esq., Gartner & Young, P.C., Los Angeles,
California, for Respondents.
Before: Judge Cetti
These consolidated discrimination proceedings arise under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801
et seq. (1988) ("Mine Act"). The proceedings were initiated by
the Secretary under Section 105(c)(2) of the Mine Act on behalf
of the Complainants James Hyles, Douglas Mears, Derrick Soto, and
Gregory Dennis.
At the close of the December 1993 hearings at Riverside,
California, the undersigned Judge issued an Order of Temporary
Reinstatement from the bench, followed by a written decision a
few days later ordering temporary reinstatement of the Claimants.
See Docket Nos. WEST 93-124, WEST 93-125, WEST 93-126, and WEST
93-127. Published in 16 FMSHRC 31 (1994).
On November 2, 1994, a decision on permanent reinstatement
was issued and published at 16 FMSHRC 2232. By agreement and
request of the parties the issue of back-pay and benefits was
severed from the hearing and decision on liability.
The November 2, 1994, decision ordered the operator All
American Asphalt to reinstate each of the Claimants to his former
position with full back-pay, benefits, and interest, at the same
rate of pay and the same status and classification that he would
now hold had he not been unlawfully discharged. The decision
also directed counsel for the parties to confer with each other
with respect to the remedies due each of the Claimants and en-
couraged the parties to reach a mutually agreeable resolution or
settlement of these matters.
The undersigned Judge also retained jurisdiction until the
remedial aspects of this case were resolved and finalized.
The November 1994 decision directed the parties to state
their respective positions on those compensation issues where
they were unable to agree and to submit their respective pro-
posals, with supporting arguments and specific proposed dollar
amounts for each category of relief.
At the request of the parties, an extension of time was
granted for submission of the position statements. The position
statements were filed by the parties on December 31, 1994. The
parties could not reach an agreement and requested a hearing on
the dollar amount of back-wages and penalties. A hearing was set
and then, without objection, was continued at the request of the
Secretary to May 8-10, 1995, in Riverside, California.
Just prior to the scheduled May 1995 hearing, the parties,
after conference calls on May 5th and May 8th, 1995, notified the
Judge that they had reached an agreement on the dollar amounts
due. They requested cancellation of the May hearing on the
grounds that it would no longer be necessary or productive in
view of a stipulation reached by the parties. The scheduled
hearing was canceled and the parties were directed to promptly
file their stipulation. The stipulation was filed on May 22,
1995.
The stipulation is attached to this decision as Exhibit A.
While the stipulation will, of course, speak for itself, it is
clear from the stipulation the parties agree to certain dollar
amounts of back-pay due each Claimant during a specified time
period for the purpose of settling the record. The stipulation,
however, is not an agreement as to entitlement thereto. respond-
ent disputes liability and reserves its right for review and
appeal.
The parties now want, and are entitled to, a prompt final
decision. I accept the stipulation filed by the parties (Ex. A)
and, subject to the terms of that stipulation, make the following
findings and awards for the agreed period prior to December 17,
1993.
I find that each of the Claimants for the period prior to
December 17, 1993, are entitled to back pay plus interest accrued
from March 15, 1993, until the date of payment in the following
amounts:
Name Amounts
James Hyles $20,837.24 plus interest
Derrick Soto $34,347.10 plus interest
Douglas Mears $38,656.34 plus interest
Gregory Dennis $36,159.32 plus interest
I find civil penalties totaling $28,000.00 appropriate for
Respondent's violations of section 105(g) of the Act as alleged
in the above-captioned proceedings. I therefore assess a civil
penalty of $28,000.00 for said violations payable to the Secre-
tary of Labor.
Based on the record and the stipulation filed May 22, 1995,
I enter the following:
ORDER
Respondent is ordered to pay the Complainants for lost wage
and interest prior to December 17, 1993, in the following
amounts:
Name Amounts
James Hyles $20,837.24 plus interest [1]
Derrick Soto $34,347.10 plus interest
Douglas Mears $38,656.34 plus interest
Gregory Dennis $36,159.32 plus interest
It is further ordered that RESPONDENT PAY a civil penalty
of $28,000.00 to the Secretary of Labor for Respondent's
violations of section 105(c) of the Mine Act as charged in the
above-captioned proceedings. All amounts payable by Respondent
pursuant to this order shall be paid within 40 days of the date
of this decision.
This is my final decision in the above-captioned dockets
and, upon full compliance with the decision, the above-captioned
dockets are dismissed.
August F. Cetti
Administrative Law Judge
Distribution:
J. Mark Ogden, Esq., Office of the Solicitor, U.S. Department
of Labor, 3247 Federal Building, 300 North Los Angeles Street,
Los Angeles, CA 90012 (Certified Mail)
William Rehwald, Esq., REHWALD, RAMESON, LEWIS & GLASNER, 5855
Topanga Canyon Blvd., Suite 400, Woodland Hills, CA 91367-4600
(Certified Mail)
Lawrence Gartner, Esq., Naomi Young, Esq., GARTNER & YOUNG, P.C.,
1925 Century Park East #2050, Los Angeles, CA 90067-2709
(Certified Mail)
/sh
**FOOTNOTES**
Interest shall be computed in accordance with the Commission's
decision in Secretary/Bailey v. Arkansas-Carbona, 5 FMSHRC 2042
(December 1983), at the adjusted prime rate announced semi-
annually by the Internal Revenue Service for the underpayment and
overpayment to taxes. Interest shall be computed from March 15,
1993, until the date of payment of back-pay awarded.