<DOC>
[DOCID: f:wv200058.wais]
EASTERN ASSOCIATED COAL CORP.
October 12, 2001
WEVA 2000-58-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
October 12, 2001
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION, on behalf of :
GARY DEAN MUNSON, : Docket No. WEVA 2000-58-D
Complainant : MORG-CD-2000-01
v. :
: Federal No. 2
EASTERN ASSOCIATED COAL CORP., : Mine ID 46-01456
Respondent :
DECISION
AND
FINAL ORDER
Appearances: Douglas N. White, Esq., Associate Regional
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for Complainant;
Rebecca Oblak Zuleski, Esq., Furbee, Amos, Webb &
Critchfield, P.L.L.C., Morgantown, West Virginia,
for Respondent.
Before: Judge Zielinski
This matter is before me on a complaint of discrimination
filed by the Secretary on behalf of Gary Munson pursuant to
section 105(c)(2) of the Federal Mine Safety and Health Act of
1977 (the "Act"). 30 U.S.C. � 815(c)(2). On June 25, 2001, a
Decision on Liability was issued, finding that Respondent
discriminated against Munson in violation of the Act, and
directing the parties to confer and attempt to reach agreement on
the relief to be awarded to Munson and on the amount of an
appropriate civil penalty.[1] The parties have conferred and
reached agreement on all outstanding relief issues. As noted in
the Decision on Liability, by stipulating to the specific relief
to be awarded no party has waived, or compromised in any way, any
right to seek review of this final decision.
**FOOTNOTES**
[1]: Sec'y of Labor on behalf of Munson v. Eastern
Associated Coal Corp., 23 FMSHRC 654 (June 2001).
ORDER
Accordingly, based upon the stipulation of the parties and
the Decision on Liability, which is adopted and incorporated by
reference herein, it is ORDERED that:
Reinstatement
Respondent shall reinstate Complainant in the position that
he held at the time of his suspension on December 6, 1999, at the
same mine, on the same schedule and under the same working
conditions that then existed, subject to the following condition.
As a condition of Complainant's reinstatement, he shall be placed
under the "Last Chance Agreement," a copy of which is appended to
this decision. Respondent shall adjust all benefits, including
but not limited to, pension, vacation and health benefits, to
reflect exactly what those benefits would be had Complainant not
been suspended on December 6, 1999, and shall promptly notify
insurance carriers and pension providers, as necessary, to assure
that such adjustments are made. Respondent shall provide
Complainant with training to reacquaint him with the requirements
and technical aspects of his job and to enable him to have the
same level of certification or job qualification that he held as
of December 6, 1999. The training shall be provided at
Respondent's expense and while Complainant is receiving his full
pay and benefits and shall include formal training, on-the-job
training, orientation sessions, or any other training that will
satisfy federal, state, or other applicable training requirements
necessary for him to properly and safely perform his job.
Back Pay and Interest
Respondent shall pay Complainant $16,528.20, representing
back pay, plus $2,333.84, in interest on the back pay amount,
accrued through September 1, 2001. These are gross pay figures,
from which appropriate legal deductions should be made.
Additional interest shall accrue from September 1, 2001 to the
date of payment, under the formula established in Sec'y on behalf
of Bailey v. Arkansas Carbona Co., 5 FMSHRC 2042, 2052 (Dec.
1983), as modified by Clinchfield Coal Co., 10 FMSHRC 1493, 1505-
05 (Nov. 1988). Payment shall be made within 30 days of the
issuance of this decision.
Miscellaneous Expenses
Respondent shall pay Complainant $398.07 to compensate him
for expenses he incurred as a result of the discrimination and
litigation of this case. Payment shall be made within 30 days of
the issuance of this decision.
Posting
Respondent shall post, in a prominent place at the mine,
where all miners can read it, a statement that the company will
not discipline or take any adverse action toward any miner based
upon the miner's exercise of rights under the Act. The statement
shall not include any mention of Complainant's case and shall be
posted within 30 days of issuance of this decision.
Civil Penalty
The Secretary proposed a civil penalty of $8,500.00, and
Respondent does not challenge the amount of the proposed penalty,
though it does contest liability. Respondent is a large operator
with a significant number of safety violations and one other
finding of discrimination. It does not contend that imposition
of a penalty in the amount of $8,500.00 would impair its ability
to remain in business and I find that the proposed penalty is
appropriate to the size of Respondent's business. The equivalent
of gravity, negligence and good faith considerations were
addressed in the Decision on Liability. As noted in the Decision
on Liability, I have rejected the Secretary's argument that
Respondent's rejection of Complainant's attempt to rescind his
economic reinstatement agreement evidences bad faith.
Based upon these considerations, Respondent is ORDERED to
pay a civil penalty of $8,500.00 within 30 days.
This constitutes the "Decision of the Judge" on Munson's
complaint of discrimination, within the meaning of Commission
Procedural Rule 69(a), 29 C.F.R. � 2700.69(a).
Michael E. Zielinski
Administrative Law Judge
Distribution:
Douglas N. White, Esq., Associate Regional Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Suite 516, Arlington,
Virginia 22203 (Certified Mail)
Rebecca J. Oblak, Esq., Atkins & Oblak, PLLC, 5000 Hampton
Center, Suite 4, Morgantown, WV 26505 (Certified Mail)
/mh
LAST CHANCE AGREEMENT
between
GARY D. MUNSON and
EASTERN ASSOCIATED COAL CORPORATION
In order to resolve issues concerning the terms of
reinstatement of Gary D. Munson, subsequentto his violation
of Article XXII(i)(4) of the National Bituminous Wage
Agreement and in order to achieve a remedy in accordance with
the decision of Administrative Law Judge Michael Zielinski
(Federal Mine Safety and Health Review Commission) in the
Mine Act case docketed as WEVA 2000-58-D, and due to the
particular circumstances of this situation, the parties agree
to the following conditions for the continuation of
Mr. Munson's employment with Eastern Associated Coal Corp.
1. Mr. Munson will be allowed to continue his
employment under a special attendance control
program that is specifically intended to
require him to work on a regular and continuing
basis. The terms of the program are as follows:
a. For the calendar year 2001:
(i) Mr. Munson may not be absent from
work for any reason other than with
Explicit prior permission of the
Manger-Preparation, Operations Manger,
or their respective successors. It is
understood that Mr. Munson may use his
remaining contractual days in accordance
with the above stipulations.
b. Beginning January 1, 2002:
(i) Mr. Munson may not be absent from
work on any scheduled shift for any
reason other that a contractually paid
absence or with explicit prior permission
of the Manager-Preparation, Operations
Manager, or their respective successors.
Such permission will not be unreasonably
withheld.
(ii) Mr. Munson may take no more than two
(2) contractually paid days off work
during any month without explicit prior
permission of the Company. Such
permission will not be unreasonably
withheld.
2. Should Mr. Munson be found guilty of any violation
of the published rules of conduct dated September
27, 2000, he may be discharged at the Company's
discretion.
3. Any violation of this Last Chance Agreement will
constitute "just cause" For Mr. Munson's discharge.
4. Mr. Munson acknowledges that this Agreement is
being entered into based upon his promise that he
can, and will, work consistently and regularly. He
understands that his inability or failure to do so
will result in his discharge.
5. Mr. Munson acknowledges that he has had an
opportunity to confer with his Union Representatives
and others of his choice regarding the terms and
conditions of this Last Chance Agreement, and that
he understands and agrees to abide by all the terms
and conditions of this agreement.
6. Mr. Munson further agrees to permit the company
(EACC) to exercise approval over any physician or
medical facility from whom or from which he proposes
to seek medical care which may result in his absence
from work. Such approval will not be unreasonably
withheld.
7. Mr. Munson acknowledges that the Company has an
Employee Assistance Program that is available to
assist with any personal problems that he may have
that would affect his ability to work regularly in
the future.
8. This Agreement is not in any way to be considered
a part of Article XXII(i) of the National Bituminous
Coal Wage Agreement.
9. This Agreement is entered into by the parties
without precedent or prejudice and shall never be
referred to in any future matters except those
involving Mr. Munson.
10. This Last Chance Agreement will continue in effect
until June 9, 2002, for this particular case only.
________________________ ________________________
Gary D. Munson Ck; 43726 Eastern Associated Coal
Corp.
________________________ ________________________
For the Union Date
xc: Mr. Blair McGill, EACC
Mr. Frank Peduti, EACC
Mr. C. Flanagan, EACC
LU1570 Mine Committee
File