<DOC>
[DOCID: f:wv93-339.wais]
TANGLEWOOD ENERGY, INC.
January 7, 1997
WEVA 93-339-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 7, 1997
SECRETARY OF LABOR, : DICRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 93-339-D
on behalf of PERRY PODDEY, : MSHA Case No. MORG CD 93-01
Complainant :
: Coal Bank No. 12
v. : Mine ID No. 46-07062
:
TANGLEWOOD ENERGY, INC., :
Respondent :
REMAND DECISION and ORDER
Before: Judge Koutras
Statement of the Case
This case concerns a decision of November 29, 1993, by
former Commission Judge Arthur Amchan, concluding that the
respondent violated section 105(c) of the Mine Act in discharging
the complainant Perry Poddey on January 6, 1993, and assessing a
civil penalty of $100 against the respondent for the violation,
15 FMSHRC 2401 (November 1993), and a subsequent decision of
January 25, 1994, awarding damages and other relief to Mr.
Poddey, 16 FMSHRC 176 (January 1994).
Judge Amchan's damages decision reflects that the parties
stipulated to the damages amount due Mr. Poddey, and the judge
stated as follows in this regard at 16 FMSHRC 176:
* * * * Pursuant to this stipulation,
Respondent is hereby ordered to pay Mr. Poddey
$9,094.38. This figure represents the back wages
due Mr. Poddey from January 7, 1993, through May
17, 1993 minus $4,000 received in unemployment
compensation benefits from the state of West
Virginia. It also includes interest calculated at
the short-term federal interest rate on all net
backpay earnings (gross backpay minus unemployment
insurance benefits) through the end of calendar
year 1993, payment for Mr. Poddey's travel
expenses related to this case, and compensation
for one day of work missed to attend the hearing
in this matter.
The Secretary filed an appeal of Judge Amchan's decision,
and the issues on appeal included Judge Amchan's civil penalty
assessment of $100 for the violation, a "significant reduction of
the $2,500 to $3,000 penalty proposed by the Secretary," and his
reduction of Mr. Poddey's backpay award by the amount of
unemployment compensation he had received.
On August 5, 1996, the Commission issued its decision
reversing Judge Amchan's deduction of unemployment compensation
from Mr. Poddey's backpay award, and vacating his $100 penalty
assessment, 18 FMSHRC 1315, 1326 (August 1996). The matter was
remanded for a penalty assessment with further findings on the
respondent's history of prior violations. The case was
reassigned to me for further adjudication.
The parties were afforded an opportunity to further resolve
this matter in accordance with the Commission's remand, and in
response to my remand order of October 29, 1996, the petitioner
advised me by letter dated January 2, 1997, that the parties have
reached a dispositive agreement of the case. The agreement is as
follows:
The parties have agreed that $1,000.00, is an
appropriate penalty, given the determinations made
by the Federal Mine Safety and Health Review
Commission concerning negligence, gravity, and the
operator's history of previous violations.
In addition, the parties agree that, pursuant
to the Commission's ruling, the $4,000.00,
received by Perry Poddey as unemployment
compensation should not be deducted from his back
pay award, and that additional interest is due on
the unpaid portion of the back pay award from the
date of Judge Amchan's Decision and Order to the
present.
Order
In view of the foregoing, IT IS ORDERED as
follows:
1). The respondent shall pay a civil penalty
assessment of $1,000, for its violation of section
105(c) of the Act. Payment is to be made to MSHA
within thirty (30) days of the date of this
decision and order.
2). In addition to the $9,094.38, damage
award that the respondent was ordered to pay by
Judge Amchan in his January 25, 1994, Decision on
Damages, 16 FMSHRC 176 (January 1994), the
respondent shall pay to the complainant Perry
Poddey, the sum of $4,000, received in
unemployment compensation benefits from the state
of West Virginia, and previously deducted from his
back pay award, with interest from the date of
Judge Amchan's Decision and Order of November 29,
1993, to the present, 15 FMSHRC 2401, 2416
(November 1993). Interest should be computed in
accordance with the short-term Federal rate
applicable to the underpayment of taxes.
Clinchfield Coal Co., 10 FMSHRC 1493 (November
1988).
Payment shall be made to the Complainant
Perry Poddey within thirty (30) days of this
Remand Decision and Order.
George A. Koutras
Administrative Law Judge
Distribution:
James Blair, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Certified Mail)
Paul O. Clay, Jr., Esq., Laurel Creek Road, P.O. Box
746, Fayettville, WV 25840 (Certified Mail)
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