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[DOCID: f:kazz2.wais]

 
READING ANTHRACITE COMPANY
March 15, 1996
PENN 95-1-D


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W.,  6TH FLOOR

                       WASHINGTON,  D.C.  20006


                            March 15, 1996

SECRETARY OF LABOR,               :
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA),          :
  on behalf of                    :
  WILLIAM KACZMARCZYK             :
                                  :
          v.                      :    Docket No. PENN 95-1-D
                                  :
READING ANTHRACITE COMPANY        :


BEFORE:  Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners


                               DECISION

BY THE COMMISSION:

     This discrimination proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine
Act").  On May 24, 1995, Administrative Law Judge Arthur J. Amchan
determined that the Reading Anthracite Company ("Reading") had violated
section 105(c) of the Mine Act, 30 U.S.C. � 815(c), when it transferred
William Kaczmarczyk from a light duty position to workers' compensation
status.  17 FMSHRC 784 (May 1995) (ALJ).  On September 28, 1995, a
hearing was held on the issues of civil penalty and damages.  17
FMSHRC 2065, 2066 (November 1995) (ALJ).  The parties stipulated that
Kaczmarczyk was entitled to receive $4,942.42 "to compensate for economic
loss" as a result of the discrimination.  Id. at 2066.  The judge
awarded an additional $156 to compensate Kaczmarczyk for travel expenses
that he incurred in seeking another job, for total "damages" of $5,098.42.
Id. at 2066-67, 2069.

     In December 1995, Reading paid Kaczmarczyk $3,945.06.  Reading
apparently treated all or most of the monetary award as wages subject
to income tax withholding.  On December 22, 1995, the Secretary filed
a petition for discretionary review with the Commission.  The Secretary
stated that an attempt was made to resolve the dispute with Reading's
counsel but that Reading was unwilling to retreat from the position
that the monetary award was subject to withholding allowances and taxes.
PDR at 3. The Secretary sought review from the Commission, rather than
reconsideration from the judge, because the judge no longer had
jurisdiction under Commission Rule 69(b), 29 C.F.R. � 2700.69(b) (1995),
once his decision issued. Id. at 1-2.  The Secretary concluded that,
"[s]ince the record is unclear as to the intention of the parties and
the judge's order is not clear on the issue of allocation of the
monetary award,"the matter should be remanded to the judge for
clarification.  Id. at 3-4.  Reading did not respond. 

     On December 29, 1995, the Commission granted the petition and
stayed briefing pending further order of the Commission.

     Apparently Reading does not dispute that, under the terms of
the stipulation approved by the judge and his further order regarding
travel expenses in the amount of $156, Kaczmarczyk is entitled to a
gross amount of $5,098.42.  There is, however, disagreement between the
parties as to whether that amount is subject to income tax withholding
in its entirety.  That issue is  governed by the terms of the Internal
Revenue Code, not the Mine Act.  In order for both Reading and
Kaczmarczyk to treat the damage award properly for income tax purposes,
the basis for the stipulated damages must be categorized in appropriate
detail.

     Accordingly, we remand the matter for further appropriate proceedings.


                         Mary Lu Jordan, Chairman

                         Joyce A. Doyle, Commissioner

                         Arlene Holen, Commissioner

                         Marc Lincoln Marks, Commissioner

                         James C. Riley, Commissioner