<DOC>
[DOCID: f:poddey.wais]
TANGLEWOOD ENERGY, INC.
August 5, 1996
WEVA 93-339-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
August 5, 1996
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
on behalf of PERRY PODDEY :
:
v. : Docket No. WEVA 93-339-D
:
TANGLEWOOD ENERGY, INC. :
BEFORE: Holen, Marks and Riley, Commissioners[1]
DECISION
BY: Riley, Commissioner[2]
This discrimination proceeding, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act" or "Act"), raises the question of whether Administrative
Law Judge Arthur Amchan properly considered and applied certain penalty
criteria in section 110(i) of the Mine Act[3] in assessing a $100
civil penalty against Tanglewood Energy, Inc. ("Tanglewood") for
discharging Perry Poddey in violation of section 105(c)(1) of the Mine
Act, 30 U.S.C. � 815(c)(1), and whether the judge erred in deducting
unemployment compensation from back pay he awarded Poddey.[4] 15 FMSHRC
2401 (November 1993) (ALJ). For the reasons that follow, the Commission
vacates the penalty and remands for assessment consistent with this
decision, and reverses the judge's deduction of unemployment compensation.
I.
Factual and Procedural Background
Tanglewood operates the Coal Bank 12 Mine, an underground coal
mine in Randolph County, West Virginia. On November 3, 1992, Kenneth
Tenney, an inspector from the Department of Labor's Mine Safety and Health
Administration ("MSHA"), issued a citation to Tanglewood alleging a
violation of 30 C.F.R. � 75.523-3(a) (1995) because a scoop operated by
Poddey was not equipped with an automatic emergency-parking brake.[5]
15 FMSHRC at 2403; Gov't Ex. 1. Although the brake was subsequently
installed, the bolt securing it to the scoop repeatedly became loose,
rendering the brake ineffective. Id. at 2403-04. Poddey reported the
problem to the operator's mechanic, Doug McCoy, who tightened the bolt
on several occasions. Id. at 2404. On January 4, 1993, Poddey again
reported the problem to McCoy and to Section Foreman Jeff Simmons,
suggesting installation of a second bolt on the brake assembly. Id.
The maintenance crew was informed of the request, but the work was not
performed before the following morning. Id.
On January 5, Inspector Tenney inspected the scoop and discovered
that the brake was inoperable. Id. Poddey informed him that the
brake assembly bolt was loose and that he had previously reported
the problem. Id. The inspector issued a citation alleging a violation
of section 75.523-3(a). Id.; Gov't Ex. 3.
At the end of the shift, Simmons installed the second bolt on
the brake assembly. 15 FMSHRC at 2404. Simmons later recounted the
circumstances surrounding issuance of the citation to his supervisor,
Randy Key, and indicated that Poddey had a month within which to repair
the brake himself. Id. at 2405.
On January 6, upon reporting to work, Poddey was directed to
telephone Key. Id. During the conversation, Key chastised Poddey
for complaining to MSHA and advised him that it was his responsibility
to have installed the bolt. Id. at 2405-06. Poddey then confronted
Simmons, accusing him of falsely informing Key that he had deliberately
reported the brake problem to MSHA. Id. at 2406. Poddey told Simmons
that if the foreman had a problem with him, they should settle it "outside
the gate." Id.; Tr. I 116.[6] Simmons immediately called Key to inform
him of the incident. 15 FMSHRC at 2407. Key traveled to the mine and,
at the end of the shift, discharged Poddey. Id.
Poddey filed a discrimination complaint with MSHA and the
Secretary of Labor filed the present complaint pursuant to section
105(c)(2) of the Mine Act, 30 U.S.C. � 815(c)(2).[7] The Secretary
proposed that a civil penalty be assessed against Tanglewood in the
range of $2,500 to $3,000. S. Amend. Complaint at 3-4. On May 25,
1993, Poddey was temporarily reinstated to his job. 15 FMSHRC at
2407-08. The matter proceeded to hearing before Judge Amchan.
The judge determined that Tanglewood had violated section 105(c)
by discharging Poddey. Id. at 2414. He concluded Poddey had engaged
in protected activity when he reported the malfunctioning brake to the
mechanic, Simmons and Inspector Tenney, and that Poddey's discharge
was motivated in part by that protected activity. Id. at 2408-09. He
determined that, although Tanglewood fired Poddey "for what it perceived
to be a threat to . . . Simmons, or at least insubordinate behavior,"
Tanglewood had failed to rebut the prima facie case of discrimination.
Id. at 2409, 2414. He reasoned that Poddey had been unjustly blamed
for not repairing the brake, and that Poddey's invitation to fight
Simmons and other remarks did not forfeit Poddey's statutory rights to
protection from retaliation. Id. at 2409-14.
The judge determined that, although Tanglewood had a "relatively
large number of previous violations," assessment of a $100 civil
penalty was appropriate based on his findings of gravity and negligence.
Id. at 2415. He reasoned that, while Key and Simmons provoked the
outburst leading to Poddey's discharge by unjustifiably blaming Poddey
for the violation, there was no evidence that they "did so with the
intention of generally discouraging safety complaints or cooperation
with MSHA." Id. The judge observed that the penalty was warranted
nonetheless because Poddey's discharge did, in fact, tend to inhibit
employees in exercising their rights under the Act. Id. The judge
also ordered Tanglewood to pay Poddey "full backpay and benefits with
interest, less the payments he received in unemployment compensation."
Id. at 2416.
The Secretary filed a petition for discretionary review, challenging
the civil penalty assessment and backpay award.[8]
II.
Disposition
A. Civil Penalty
1. General Principles
The Commission's judges are accorded broad discretion in
assessing civil penalties under the Mine Act. Westmoreland Coal
Co., 8 FMSHRC 491, 492 (April 1986). The Commission has cautioned,
however, that the exercise of such discretion is not unbounded and
must reflect proper consideration of the penalty criteria set forth
in section 110(i) of the Mine Act. Id., citing Sellersburg Stone Co.,
5 FMSHRC 287, 290-94 (March 1983), aff'd, 736 F.2d 1147 (7th Cir.
1984). In reviewing a judge's penalty assessment, the Commission must
determine whether the judge's findings are supported by substantial
evidence.[9] Assessments "lacking record support, infected by plain
error, or otherwise constituting an abuse of discretion are not immune
from reversal . . . ." U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June
1984). The judge must make findings of fact on the criteria that
"not only provide the operator with the required notice as to the
basis upon which it is being assessed a particular penalty, but also
provide the Commission and the courts . . . with the necessary foundation
upon which to base a determination as to whether the penalties assessed
by the judge are appropriate, excessive, or insufficient." Sellersburg,
5 FMSHRC at 292-93.
2. Negligence[10]
The Secretary argues that, in applying the negligence criterion,
the judge should have considered whether the operator intended to
commit the violation of section 105(c) rather than whether it intended
to generally discourage protected activities. S. Br. at 10. The
Secretary asserts that Tanglewood's violation was intentional, and
that the judge "ignored both logic and the law" in finding low negligence.
Id. at 11-12.
Commissioner Marks and I agree with the Secretary that the
proper inquiry before the judge in his consideration of negligence
was whether Tanglewood intended to commit the violation rather than
whether it intended to chill future protected activities. Commissioner
Marks and I disagree, however, that a finding that the operator engaged
in certain intentional conduct in violation of section 105(c) necessarily
leads to a determination of high negligence.
The Commission has previously recognized that a finding of high
negligence "suggests an aggravated lack of care that is more than
ordinary negligence." Eastern Associated Coal Corp., 13 FMSHRC 178,
187 (February 1991). Although Key's actions in discharging Poddey
were intentional, there were mitigating circumstances that do not
support a finding that such actions demonstrated an aggravated lack
of care. Tanglewood discharged Poddey for what it perceived to be a
threat, or at least insubordinate behavior, toward Simmons. 15 FMSHRC
at 2409. Poddey confronted Simmons, yelling at him, accusing Simmons of
lying when he told Key that Poddey had deliberately informed MSHA about
the brake problem, and invited Simmons to fight "outside the gate."
15 FMSHRC at 2406-07; Tr. I 116, 273; Tr. II 19-21. In view of these
mitigating circumstances, Commissioner Marks and I conclude that
substantial evidence supports the judge's finding that Tanglewood's
violation of section 105(c) involved a low level of negligence.[11]
Accordingly, the Commission affirms, in result, the judge's negligence
finding.
3. Gravity[12]
The Secretary argues that, in determining gravity, the judge
erred in considering whether the operator "intended to `generally
discourag[e] safety complaints or cooperation with MSHA'" and
that, rather, a chilling effect on protected activities should be
presumed for any violation of section 105(c). S. Br. at 12-15,
quoting 15 FMSHRC at 2415. The Secretary submits that the judge
should have considered "what effect on miners the violation in
fact created." Id. at 12. He asserts that the gravity of
Tanglewood's violation was serious because there was compelling
evidence that Poddey's discharge had a severe chilling effect on
Poddey and other miners at the No. 12 Coal Bank. Id. at 15-18.
Contrary to the Secretary's assertions, it appears that
the judge's reference to the operator's intent to discourage
safety complaints or cooperation with MSHA was related only to
his consideration of the negligence criterion. Consistent with
the Commission's recent holding in Secretary of Labor on behalf
of Carroll Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 552,
558 (April 1996), Commissioner Holen and I reject the Secretary's
argument that a chilling effect on protected activities should be
presumed for any violation of section 105(c). In Carroll Johnson,
the Commission explained that the Mine Act does not provide for such
a presumption and that references to chilling effect in the legislative
history are made in connection with the temporary reinstatement
provision "to protect miners from the adverse and chilling effect of
loss of employment." Id. (citations omitted). The Commission noted
that "Congress intended that section 105(c) would protect miners against
the chilling effect of employment loss they might suffer as a result
of illegal discharge" and that Congress did not intimate that a
chilling effect should be presumed for every violation. Id. The
Commission concluded that determinations of whether a chilling
effect resulted from a section 105(c) violation should be made on
a case-by-case basis. Id.
In making such a determination, the Commission held that both
subjective and objective evidence should be considered and that a
finding of chilling effect does not a fortiori mean the gravity of
the violation is high. Id. at 558-59. For objective evidence, the
Commission recognized the appropriateness of considering whether the
adverse action "reasonably tended to discourage miners from engaging
in protected activities," citing by analogy authority relating to the
enforcement of section 8(a)(1) of the National Labor Relations Act,
29 U.S.C. � 158(a)(1) (1994). Id. at 558, citing in part Teamsters
Local Union No. 171 v. NLRB, 863 F.2d 946, 954 (D.C. Cir. 1988), cert.
denied sub nom. A.G. Boone Co. v. NLRB, 490 U.S. 1065 (1989); Southwest
Regional Joint Bd., Amalgamated Clothing Workers of Am. v. NLRB, 441
F.2d 1027, 1031 (D.C. Cir. 1970). Subjective evidence of a chilling
effect includes testimony of the complainant or other miners. Id.
at 559.
Applying this test, Commissioner Holen and I reject the
Secretary's contention that Poddey's discharge created a chilling
effect at the mine. The Secretary relies upon Inspector Tenney's
testimony that, after Poddey's discharge, he received such comments
from miners at Coal Bank No. 12 as, "Don't tell anybody I said so."
S. Br. at 16. Such subjective evidence reveals that, although miners
were cautious and wary of retaliation, they were nonetheless
communicating their safety and health concerns. Nor do Commissioner
Holen and I find objective evidence of a chilling effect. As the
judge found, "there is no indication that [Tanglewood] would have
so retaliated but for the unusual circumstances of this case." 15
FMSHRC at 2415. Because Poddey was discharged in part as a result
of his heated confrontation with Simmons, the discharge would not
"reasonably tend[] to discourage miners from engaging in protected
activities." Carroll Johnson, 18 FMSHRC at 558.
To the extent the judge found that Poddey's discharge tended
to create a chilling effect (15 FMSHRC at 2415), Commissioner
Holen and I conclude for the reasons discussed above that such a
finding is not supported by substantial evidence. Accordingly,
the Commission affirms the judge's finding of low gravity.
4. History of Previous Violations[13]
The Secretary argues that, although the judge correctly
found the operator had a "relatively large number of previous
violations," the judge erred in failing to give weight to those
violations because there was no evidence of violations of section
105(c). S. Br. at 18. The Secretary avers that an operator's
complete history of violations should be considered and that the
judge ignored such evidence including that the operator was
delinquent in the payment of penalties, and that numerous prior
violations involved "a significant threat to miner safety." Id.
at 18-23.
All Commissioners agree with the Secretary that the judge's
consideration of previous violations is not limited to only those
involving section 105(c). The Commission has explained that "section
110(i) requires the judge to consider the operator's general history
of previous violations . . . . Past violations of all safety and
health standards are considered for this component." Carroll Johnson,
18 FMSHRC at 557, quoting Peabody Coal Co., 14 FMSHRC 1258, 1264
(August 1992) (emphasis added). All Commissioners disagree with the
Secretary, however, that the judge was required to consider evidence of
the operator's alleged delinquency in the payment of civil penalties.
As the Commission recently held in Secretary of Labor on behalf of
James Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 841, 850 (June
1996), an operator's delinquency in regard to payment of civil penalties
"is not one of the criteria set forth in section 110(i) of the Mine Act
for consideration in the assessment of penalties." Commissioner Holen
and I also reject the Secretary's argument that the judge was constrained
to consider the seriousness of the previous violations. Such consideration
is not required by section 110(i) of the Act or by the Secretary in his
regulations for proposing penalties. See, e.g., 30 C.F.R. � 100.3(c).
Nonetheless, the judge's terse finding that Tanglewood had
"a relatively large number of previous violations" (15
FMSHRC at 2415) does not provide the necessary foundation
for our review of the appropriateness of the $100 penalty,
which was a significant reduction of the $2,500 to $3,000
penalty proposed by the Secretary. See Dolese Bros. Co., 16
FMSHRC 689, 695 (April 1994) (adequate findings are
"critical" where a judge assesses a penalty that
significantly departs from that proposed by the Secretary).
Accordingly, the Commission vacates the penalty and remands
for the assessment of a civil penalty with further findings.
B. Unemployment Compensation[14]
In Meek v. Essroc Corp., 15 FMSHRC 606 (April 1993), a
three-member majority of the Commission adopted as agency policy
the deduction of unemployment compensation from backpay awards.
Id. at 618. The majority reasoned that the issue was a matter of
agency discretion and that such a deduction comports with the
Mine Act's goal of making miners whole. Id. at 616-18. It noted
that the "Commission seeks to fashion relief that is just and
does not overcompensate the discriminatee." Id. at 617 (citation
omitted). The majority stated that the employer would still be
required to place the discriminatee in the position he was in but
for the unlawful discrimination, but that the employer should not
additionally compensate the miner for funds that he or she received
as earnings for working during the interim or as unemployment
compensation. Id. at 617-18. The majority noted that when "an
individual receives unemployment compensation, his previous employer
is, as a result, taxed at an increased rate, depending upon the
degree of experience rating." Id. at 618 n.11 (citation omitted).
Commissioner Backley dissented in Meek, concluding that,
although the deduction of unemployment compensation was a matter
of agency discretion, the majority had abused its discretion.
Id. at 621. He concluded that the majority had acted arbitrarily
by relying upon a rationale rejected by the Supreme Court in NLRB
v. Gullett Gin Co., 340 U.S. 361 (1951). Commissioner Backley
explained that, in finding that the NLRB acted properly within
its discretion by refusing to deduct unemployment compensation
from back pay, the Supreme Court rejected the arguments that
unemployment compensation should be treated as earnings or
considered as direct payments from the employer and properly set
off against back pay. Id. at 621-22, citing Gullett, 340 U.S. at
363, 364. Commissioner Backley further concluded in his Meek
dissent that the majority's policy failed to fairly balance the
interests of the parties, noting that by ensuring that "illegally
discharged miners not receive a windfall, [the majority] has
adopted a national policy which will at times provide an employer
with a windfall" under state unemployment compensation laws, and
that their choice of employer over the victim of wrongdoing
seemed "illogical and unfair." Id. at 625 (emphasis in
original). Commissioner Backley also noted the majority of
courts of appeals have opted not to deduct unemployment
compensation, and that four circuits (the Third, Fourth, Ninth,
and Eleventh) have removed the matter from district court
discretion, holding as a matter of law that unemployment
compensation should not be deducted from backpay awards.[15] Id.
at 623.
In Secretary of Labor on behalf of Nantz v. Nally & Hamilton
Enterprises, Inc., 16 FMSHRC 2208 (November 1994), the Commission
again considered the appropriateness of deducting unemployment
compensation from backpay awards. Before the Commission, the
Secretary urged the Commission "to adopt Commissioner Backley's
position" in Meek.[16] Id. at 2221. Two Commissioners voted to
affirm the judge's decision to deduct unemployment compensation
based on the reasoning and conclusions set forth in Meek. 16
FMSHRC at 2216-20. Two Commissioners voted to reverse based on
the rationale of Commissioner Backley's dissent in Meek.[17] Id.
at 2221-29. The effect of the tie vote was to let stand the
judge's ruling. Id. at 2208 n.1 (citation omitted).
The Commission's decision in Nantz was appealed to the U.S.
Court of Appeals for the Sixth Circuit. The appeal was dismissed
on motion, without resolution of the issue of deduction of
unemployment compensation. Secretary of Labor v. Nally &
Hamilton Enterprises, No. 94-4325, 6th Cir. (June 21, 1995).
In Secretary of Labor on behalf of Wamsley v. Mutual Mining,
Inc., 80 F.3d 110 (4th Cir. 1996), the court reversed that
portion of a Commission administrative law judge's decision
directing the Secretary to deduct unemployment compensation from
the backpay awards of five miners who had been discharged in
violation of section 105(c) of the Act. Id. at 116. The
administrative law judge's decision had adhered to Meek, 15
FMSHRC at 616-18. Id. at 113. In reaching its conclusion, the
Court relied upon Martin v. Occupational Safety and Health Review
Comm'n, 499 U.S. 144 (1991), in which the Supreme Court
recognized that the Secretary's reasonable interpretation of a
regulation promulgated by the Secretary, pursuant to her
authority under the Occupational Safety and Health Act of 1970,
29 U.S.C. � 651 et seq. (1994) ("OSH Act"), was entitled to
deference over a reasonable, but conflicting, interpretation by
the Occupational Safety and Health Review Commission ("OSHRC").
Wamsley, 80 F.3d at 114. The Wamsley Court analogized that this
Commission, which it considered a "neutral arbiter" that
possesses "nonpolicy-making adjudicative powers," should have
deferred to the interpretation disallowing deduction of
unemployment compensation advanced by the Secretary, whom it
considered to be endowed with "historical familiarity and
policymaking expertise."[18] Id. at 114-15, quoting Martin, 499
U.S. at 153, 154, 155.[19]
In the instant case, Judge Amchan, citing Meek, directed
that Poddey's backpay award be reduced by the amount of
unemployment compensation he had received. 15 FMSHRC at 2416.
Commissioner Marks and I are persuaded by the rationale of the
dissents in Meek, 15 FMSHRC at 621-26, and Nantz, 16 FMSHRC at
2221-29, that unemployment compensation should not be deducted
from backpay awards. Therefore, the Commission's holding that
unemployment compensation benefits should be deducted, enunciated
in Meek and Nantz, is overruled. Accordingly, the Commission
reverses the judge's deduction of unemployment compensation from
Poddey's backpay award. Because the instant case arises within
the Fourth Circuit, the court's holding in Wamsley also requires
reversal of the judge's deduction.
III.
Conclusion
For the reasons discussed above, the Commission affirms in
result the judge's finding of low negligence, affirms his finding
of low gravity, vacates the penalty and remands for assessment
with further findings on the operator's history of previous
violations. The Commission reverses the judge's deduction of
unemployment compensation from Poddey's backpay award.
James C. Riley, Commissioner
**FOOTNOTES**
[1]: Chairman Jordan has recused herself in this matter.
Pursuant to section 113(c) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. � 823(c), Commissioners Holen, Marks and I
have designated ourselves a panel of three Commissioners to
exercise the powers of the Commission.
[2]: I am the only Commissioner in the majority on all
issues presented.
[3]: Section 110(i) sets forth six criteria for assessment
of penalties under the Act.
The Commission shall have authority to
assess all civil penalties provided in [the
Act]. In assessing civil monetary penalties,
the Commission shall consider 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.
30 U.S.C. � 820(i).
[4]: Section 105(c)(1) provides in part:
No person shall discharge or in any
manner discriminate against or cause to be
discharged or cause discrimination against or
otherwise interfere with the exercise of
statutory rights of any
miner . . . because such miner . . . has
filed or made a complaint under or related to
this [Act], including a complaint notifying
the operator . . . of an alleged danger or
safety or health violation in a coal or other
mine . . . .
30 U.S.C. � 815(c)(1).
[5]: Section 75.523-3(a) provides in part that, "[e]xcept
for personnel carriers, rubber-tired, self-propelled electric
haulage equipment used in the active workings of underground coal
mines shall be equipped with automatic emergency-parking brakes .
. . ."
[6]: References to "Tr. I" are to the transcript of the
hearing that took place on September 1, 1993; "Tr. II" references
are to the September 2 transcript.
[7]: Section 105(c)(2) provides in part:
Any miner . . . who believes that he has
been discharged, interfered with, or
otherwise discriminated against by any person
in violation of this subsection may, within
60 days after such violation occurs, file a
complaint with the Secretary alleging such
discrimination. Upon receipt of such
complaint, the Secretary shall forward a copy
of the complaint to the respondent and shall
cause such investigation to be made as he
deems appropriate. . . . If upon such
investigation, the Secretary determines that
the provisions of this subsection have been
violated, he shall immediately file a
complaint with the Commission . . . alleging
such discrimination or interference and
propose an order granting appropriate relief.
30 U.S.C. � 815(c).
[8]: Tanglewood declined to file a brief.
[9]: The Commission is bound by the substantial evidence
test when reviewing an administrative law judge's factual
determinations. 30 U.S.C. � 823(d)(2)(A)(ii)(I).
"Substantial evidence" means "such relevant evidence as a
reasonable mind might accept as adequate to support [the
judge's] conclusion." Rochester & Pittsburgh Coal Co., 11
FMSHRC 2159, 2163 (November 1989), quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). While the
Commission does not lightly overturn a judge's factual
findings and credibility resolutions, neither is it bound to
affirm such determinations if only slight or dubious
evidence is present to support them. See, e.g., Krispy
Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir.
1984); Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255,
1263 (7th Cir. 1980). The Commission is guided by the
settled principle that, in reviewing the whole record, an
appellate tribunal must also consider anything in the record
that "fairly detracts" from the weight of the evidence that
supports a challenged finding. Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951).
[10]: All Commissioners vote to affirm the judge's finding
of low negligence. Commissioners Marks and I agree that the
proper inquiry before the judge was whether Tanglewood
intended to commit the violation of section 105(c).
Commissioner Holen concludes that the proper inquiry was
whether the violation resulted from more than ordinary
negligence. Slip op. at 13 (Commissioner Holen,
concurring).
[11]: Commissioner Marks and I note that the Secretary in
his regulations for proposing civil penalties defines high
negligence in part by the lack of mitigating circumstances.
See 30 C.F.R. � 100.3(d).
[12]: Commissioner Holen and I affirm in result the judge's
finding of low gravity. Commissioner Marks would recognize
a presumption of chilling effect on protected activities in
every instance of a section 105(c) violation and would
reverse the judge's finding of low gravity.
[13]: All Commissioners remand the judge's history of
previous violations determination for further findings. All
Commissioners reject the Secretary's argument that the judge
erred in failing to consider the operator's payment history.
Commissioner Holen and I also reject the Secretary's argument
that the judge was required to consider the seriousness of past
violations. Commissioner Holen further rejects his argument that
the judge erred in failing to consider that the mine had been
targeted under MSHA's Joint Mine Assistance Program.
[14]: All Commissioners reverse the judge's deduction of
unemployment compensation from Poddey's backpay award.
Commissioner Marks and I reach our determination based on the
rationale set forth in the dissents in Meek v. Essroc Corp., 15
FMSHRC 606, 621-26 (April 1993), and Secretary of Labor on behalf
of Nantz v. Nally & Hamilton Enterprises, Inc., 16 FMSHRC 2208,
2221-29 (November 1994). All Commissioners reverse based on the
applicability of the court's holding in Secretary of Labor on
behalf of Wamsley v. Mutual Mining, Inc., 80 F.3d 110 (4th Cir.
1996) to the instant case, which arises in the Fourth Circuit.
[15]: Meek did not appeal the Commission's decision.
[16]: The Secretary was not a party to Meek.
[17]: The dissenting Commissioners also noted that
subsequent to the issuance of Meek, the Eighth Circuit
reversed the district court's deduction of unemployment
compensation from a backpay award in a case arising under
the Age Discrimination in Employment Act, 29 U.S.C.
� 621 et seq. (1994), stating in part that, "no circuit that
has considered the matter has determined that unemployment
benefits should, as a general rule, be deducted from backpay
awards in discrimination cases." 16 FMSHRC at 2227-28,
quoting Gaworski v. ITT Commercial Finance Corp., 17 F.3d
1104, 1113 (8th Cir. 1994) (emphasis omitted). The Eighth
Circuit joined the majority of circuits in holding as a
matter of law that unemployment benefits should not be
deducted from backpay awards. Gaworski, 17 F.3d at 1114.
[18]: I do not subscribe to the rationale enunciated by the
court in Wamsley. As the Commission recognized in Drummond
Co., 14 FMSHRC 661, 674-75 (May 1992), the "Mine Act
expressly empowers the Commission to grant review of
`question[s] of law, policy or discretion,' and to direct
review sua sponte of matters that are `contrary to . . .
Commission policy' or that present a `novel question of
policy . . . .'" Id., quoting 30 U.S.C.
�� 823(d)(2)(A)(ii)(IV) & (B). I agree that, since Congress
authorized the Commission to direct such matters for review,
it intended that the Commission possess "the necessary
adjudicative power to resolve them." Drummond, 14 FMSHRC at
675. I suggest that the Supreme Court expressly applied its
holding in Martin only to the "division of powers between
the Secretary and the Commission under the OSH Act" (499
U.S. at 157) because no comparable policy jurisdiction was
expressly granted to OSHRC. Drummond, 14 FMSHRC at 675
n.15.
[19]: I observe that the Supreme Court in Martin and the
Fourth Circuit in Wamsley reached their determinations
without citing and applying the analytical framework of
Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984).
Commissioner Holen, concurring:
I agree with the majority in result on all issues but disagree
with their rationale on the issues of negligence, history of violations,
and the deduction of unemployment compensation from back pay awards.
I.
Negligence
Commissioners Marks and Riley conclude that the proper inquiry
before the judge in determining negligence was whether the operator
intended to commit the violation. Slip op. at 5. Although the
operator did so intend, they affirm the judge's conclusion of low
negligence only because there were mitigating circumstances. Slip op.
at 5-6.
I agree in result that the operator's negligence here was low,
but I disagree that the proper inquiry before the judge was whether
the violation resulted from intentional conduct or that an intentional
violation absent mitigating circumstances necessarily establishes high
negligence. Under Commission case law, the proper inquiry as to
negligence is whether the violation resulted from more than ordinary
negligence. Higher levels of negligence and unwarrantable conduct are
found only when the operator's conduct is determined to have been
aggravated. In Mettiki Coal Corp., 13 FMSHRC 760 (May 1991), the
Commission stated:
'Highly negligent' conduct involves more than
ordinary negligence and would appear, on its
face, to suggest unwarrantable failure.
Thus, if an operator has acted in a highly
negligent manner with respect to a violation,
that suggests an aggravated lack of care that
is more than ordinary negligence.
13 FMSHRC at 770, quoting Eastern Associated Coal Corp., 13 FMSHRC
178, 187 (February 1991). In Mettiki, the Commission found that
the operator's intentional conduct in modifying electrical equipment,
although violative, did not result from high negligence. 13 FMSHRC
at 770-71. See also American Mine Services, Inc., 15 FMSHRC 1830,
1831-33 (September 1993), and cases cited therein.
II.
History of Violations
I agree with the majority that, in assessing a civil penalty,
the judge should consider an operator's previous violations of all
standards and that an operator's delinquency in the payment of civil
penalties should not be considered because delinquency is not one of
the section 110(i) criteria. I agree with Commissioner Riley that the
judge did not err in failing to consider the seriousness of the
operator's previous violations because such consideration is not
required under section 110(i) of the Mine Act. Slip op. at 8.
The opinion does not address the Secretary's argument that the
judge erred in his penalty assessment in failing to consider that the
mine had been targeted as a problem mine under MSHA's Joint Mine
Assistance Program. S. Br. at 23. I would reject the Secretary's
argument because such consideration is not specified under section 110(i).
I note, in addition, that such consideration also is absent from the
Secretary's regulations that govern his penalty proposals. 30 C.F.R.
� 100.3.
III.
Deduction of Unemployment Compensation
Commissioners Marks and Riley reverse the judge's deduction of
unemployment compensation from Mr. Poddey's back pay award because
they disagree with the Commission's precedent. Slip op. at 11. I
take strong exception to their casual approach in overruling the
Commission's established law.
I concur with the majority's disposition of deduction of
unemployment compensation because I am constrained to do so by
the decision of the United States Court of Appeals for the Fourth
Circuit in Secretary of Labor on behalf of Wamsley v. Mutual
Mining, Inc., 80 F.3d 110 (4th Cir. 1996). See RNS Services,
Inc., 18 FMSHRC 523, 531 (April 1996) (Commissioner Doyle,
concurring). I join Commissioner Riley, however, in respectfully
disagreeing with the court's reasoning. Slip op. at 11 n.18.
A. Wamsley Decision
In Wamsley, the Fourth Circuit reversed the Commission's
deduction of unemployment compensation from back pay awards in
discrimination cases filed pursuant to section 105(c) of the Mine
Act, 30 U.S.C. � 815(c). The court concluded that the Supreme
Court's decision in Martin v. Occupational Safety and Health Review
Comm'n, 499 U.S. 144 (1991), controlled and it held that the Commission
was required to defer to the Secretary's interpretation of the Act if
it found that interpretation to be reasonable. 80 F.3d at 114. In so
concluding, the court stated that the Commission's duties under the Mine
Act were those of a "`neutral arbiter' that possesses 'nonpolicymaking
adjudicatory powers.'" Id., quoting Martin, 499 U.S. at 154, 155. Without
deciding whether the Commission's or the Secretary's interpretation was
the "correct" one, the court found that the Secretary's reading of the Act
was "reasonable" and reversed the Commission. 80 F.3d at 115.
The Wamsley decision, in my opinion, misinterprets the Commission's
role in administering the Mine Act. Wamsley also incorrectly applies the
Supreme Court's holding in Martin.
The Mine Act plainly sets forth the Commission's authority and
responsibility to fashion remedial relief in discrimination cases:
The Commission shall afford an opportunity
for a hearing . . . , and thereafter shall
issue an order, based upon findings of fact,
dismissing or sustaining the complainant's
charges and, if the charges are sustained,
granting such relief as it deems appropriate,
including, but not limited to, an order
requiring the rehiring or reinstatement . . .
with back pay and interest or such remedy as
may be appropriate. . . . Whenever an order
is issued sustaining the complainant's
charges under this subsection, a sum equal to
the aggregate amount of all costs and
expenses (including attorney's fees) as
determined by the Commission to have been
reasonably incurred by the miner . . . shall
be assessed against the person committing
such violation.
30 U.S.C. � 815(c)(3) (emphasis added). See 30 U.S.C. � 815(c)(2).
See also S. Rep. No. 181, 95th Cong., 1st Sess. 37 (1977), reprinted
in Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 625 (1978) ("Leg. Hist."). As the Supreme
Court stated in Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., where "Congress has directly spoken to the precise
question at issue" and "the intent of Congress is clear, that is the
end of the matter." 467 U.S. 837, 842 (1984). Such unambiguously
expressed Congressional intent is present in sections 105(c)(2) and (3).
Moreover, the Commission, as the administrative agency vested
with authority to decide Mine Act discrimination complaints, is always
present in such proceedings; the Secretary, however, may or may not
be present. Section 105(c)(3) provides that, where the Secretary has
refused to proceed with a discrimination complaint, a miner may file
an action on his own behalf before the Commission, i.e., he may hire
private counsel or appear pro se. The Commission's paramount role in
directing relief in discrimination cases is consistent with its authority
independent of the Secretary in assessing penalties for all violations,
including those involving discrimination against miners. Section 110(i)
of the Mine Act provides, "The Commission shall have authority to assess
all civil penalties provided in this [Act]." 30 U.S.C. � 820(i).
Similarly, section 110(k) states that the Secretary may not compromise,
mitigate, or settle any proposed penalty that has been contested without
the Commission's approval. 30 U.S.C. � 820(k).[1] E.g., Knox County
Stone Co., 3 FMSHRC 2478, 2478-82 (November 1981).
At issue in Martin was an ambiguous regulation[2] issued by
the Secretary under the Occupational Safety and Health Act ("OSH
Act"), 29 U.S.C. � 651 et seq. (1994), and adjudicated before the
Occupational Safety and Health Review Commission. In deferring to
the Secretary's interpretation of the regulation, the Supreme Court
relied on both the Secretary's role in drafting it, which placed her
in a better position to be familiar with its purpose, and on her role
in enforcing the regulation, which gave her expertise to assess the
effect of a particular interpretation. 499 U.S. at 152-53.
The issue of deducting unemployment compensation does not
involve the choice of conflicting interpretations of a regulation.
Rather, the issue involves interpretation of a remedial provision
of the Mine Act. The Supreme Court's primary rationale for deferring
to the Secretary's interpretation of a regulation in Martin is absent
here. The Secretary holds no advantage over the Commission in
discerning the meaning of the statutory provision authorizing the
Commission to structure appropriate relief to miners who are victims
of discrimination. Moreover, the Supreme Court in Martin emphasized
that its holding was limited to "the division of powers between the
Secretary and the Commission under the OSH Act."[3] 499 U.S. at 157.
The Supreme Court stated in Thunder Basin Coal Co. v. Reich that this
Commission "was established as an independent-review body to 'develop
a uniform and comprehensive interpretation' of the Mine Act." 510 U.S.
__, 114 S.Ct. 771, 127 L. Ed. 2d 29, 42 (1994), quoting Hearing on the
Nomination of Members of the Federal Mine Safety and Health Review
Commission before the Senate Committee on Human Resources, 95th Cong.,
2d Sess., 1 (1978).
The Commission, by a majority of three Commissioners,
adopted its policy of subtracting unemployment compensation from
back pay awards in Meek v. Essroc Corp., 15 FMSHRC 606, 616-18
(April 1993).[4] The Secretary was not a party to that case,
either before the administrative law judge or before the Commission
on review. Thus, even if Wamsley were correct as to deference,
the Secretary had not presented the Commission with a position or
interpretation to which it might defer. Nor was it apparent from
other Commission cases dealing with back pay awards that the Secretary
had established any position on the deduction issue. See, e.g., id.
at 618 n.12, citing Secretary of Labor on behalf of Nantz v. Nally &
Hamilton Enterprises, Inc., 15 FMSHRC 237, 241 (February 1993) (ALJ);
Ross v. Shamrock Coal Co., 15 FMSHRC 972 (June 1993) (complaint filed
under section 105(c)(3)). Indeed, in Nantz, the Secretary stipulated
that whether or not unemployment compensation should be deducted from
a miner's back pay award was within the discretion of the presiding
judge. Nantz, 15 FMSHRC at 241. Similarly, when the Commission extended
its policy of reimbursing discriminatees for expenses reasonably incurred
in pursuing their claims, to include wages lost due to attendance at
deposition and hearing (Secretary of Labor on behalf of Carroll Johnson v.
Jim Walter Resources, Inc., 18 FMSHRC 552, 560-61 (April 1996)), the
Secretary had taken no position on this issue of remedial relief. The
Commission in Carroll Johnson agreed with the argument of the intervenor,
United Mine Workers of America.
Congress clearly assigned the Commission responsibility in
discrimination cases to grant "such relief as it deems appropriate."
30 U.S.C. � 815(c)(3). That responsibility does not allow the
Commission to abandon its statutory interpretations adopted in the
course of its adjudications in order to defer to the Secretary when
he chooses to offer an interpretation.[5]
B. Reversal of Precedent
The Commission's rule of deducting unemployment compensation
from back pay awards, adopted in Meek, 15 FMSHRC at 616-18, was
reaffirmed in Ross, 15 FMSHRC at 976- 77, and Secretary of Labor on
behalf of Nantz v. Nally & Hamilton Enterprises, Inc., 16 FMSHRC 2208,
2216-20 (November 1994). A majority of two here overrules the
Commission's precedent because they are "persuaded by the rationale
of the dissents in Meek and Nantz." Slip op. at 11, citations
omitted. Commissioners Marks and Riley change the law according to
their policy preferences, placing little weight on the Commission's
prior holdings.
In the past, membership changes generally occurred at the
Commission without major disruption to the decisional process or
disturbance of earlier holdings. Thus, the Commission built a
sound and stable body of law. When the Commission changed its law,
it did so for sound reasons such as rulings made by the Supreme
Court. RBK Construction, Inc., 15 FMSHRC 2099, 2101 (October 1993)
(Secretary's authority to vacate citations is unreviewable based on
Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3 (1985)).
On the merits of the issue, I would reaffirm Meek. I note,
moreover, that it is likely the state unemployment fund will require
Mr. Poddey to repay to it the amount of unemployment compensation
that is restored to him by this decision. See Meek, 15 FMSHRC at
617 n.10.
Arlene Holen, Commissioner
**FOOTNOTES**
[1]: The Mine Act contains other references to the
Commission's role in making policy. For example, in specifying
the procedures for the Commission's sua sponte review of judges'
decisions, 30 U.S.C. � 823(d)(2)(B) states that the Commission
may, in its discretion, grant review of decisions that "may be
contrary to law or Commission policy" or that present a "novel
question of policy." See Thunder Basin Coal Co. v. Reich, 510
U.S. __, 114 S.Ct. 771, 127
L. Ed. 2d 29, 38 n.9 (1994).
[2]: The regulation at issue involved the use of
respirators by employees who were exposed to coke oven emissions
exceeding certain limits. The employer was charged with failing
to assure that employees were supplied with properly fitting
respirators, thereby exposing them to impermissible emission
levels. The Occupational Safety and Health Review Commission
("OSHRC") vacated the citation, holding that assurance of a
properly fitting respirator was not required by the regulation
cited as the basis for liability but by another regulation. 499
U.S. at 148-49.
[3]: No policy jurisdiction comparable to that granted to
this Commission was expressly granted to OSHRC. Drummond Co., 14
FMSHRC 661, 674-75 & n.15 (May 1992).
[4]: The Commission concluded in Meek that it had the
authority under the Mine Act's remedial scheme "to adopt an
appropriate policy concerning the deduction of unemployment
compensation," Meek, 15 FMSHRC at 616, and that such deduction
"is a reasonable and sound policy that fully effectuates the Mine
Act's goal of making whole miners who have been wrongfully
discharged in violation of the Act," id. at 618.
[5]: The Mine Act's legislative history states, "the
Secretary's interpretations of the law and regulations shall be
given weight by both the Commission and the courts." Leg. Hist.
at 637. This general admonition, however, does not overcome the
statutory provisions of the Mine Act and the more specific
legislative history. Nor can I agree with the Fourth Circuit
that the Mine Act so severely limits the Commission's review
authority that it cannot decide which of two statutory
interpretations is "correct" but simply must adopt the
Secretary's if his interpretation is "reasonable." Wamsley, 80
F.3d at 115.
Commissioner Marks, concurring in part and dissenting in part:
I concur with my colleagues in the disposition of the
negligence criterion.
With respect to the gravity criterion, Commissioners Holen
and Riley have again rejected the Secretary's call for Commission
recognition that violations of section 105(c) serve to chill miners'
future invocation of protected activities because of a fear of
similar adverse action. I dissent for the same reasons expressed
in my dissent in Secretary of Labor on behalf of Carroll Johnson v.
Jim Walter Resources, Inc., 18 FMSHRC 552, 563 (April 1996). I have
concluded that a presumption of a chilling effect should be made in
every instance of a section 105(c) violation.
With respect to the previous history criterion, I concur
with the majority opinion, except that I do not join Commissioners
Holen and Riley in their rejection of the Secretary's argument
that the judge failed to consider the seriousness of past violations.
What is the effect of their ruling? Are our judges now relegated
to merely counting the number of previous violations with no
consideration given to the circumstances surrounding the past
violations? Do my colleagues conclude that all violations are
fungible? Certainly no one could dispute that a previous history
of ten roof control violations resulting in injury and loss of
life is far more significant than a previous history of twenty
roof control violations that arose because specific plan provisions
were not followed, e.g., bolting pattern deficiencies that posed
non-S&S risks. Their lapse of judgement is serious. It is clearly
relevant and most important for the trial judge to be made aware of
and to consider, not only the quantity of past instances of violation,
but also any circumstances that may suggest that such past violations
constituted serious health or safety threats to miners.
I am in agreement with the majority disposition regarding the
unemployment compensation issue. However, because of the views
espoused by Commissioner Holen and the notation of Commissioner Riley,
I am compelled to set forth the following to ensure that the Commission's
institutional integrity be maintained.
Both of my colleagues have an apparent difficulty embracing
the concept that this Commission has the obligation to defer to
the Secretary's reasonable statutory interpretations as enunciated
by the Supreme Court in Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). Notwithstanding
Commissioner Holen's expression of deep consternation, stemming
from her perception that the majority in this case fails to adhere
to the "Commission's established law" (by rejecting her policy choice
to require a set off of unemployment compensation from back pay awards
made under section 105(c) of the Act), Commissioner Holen, herself,
fails to adhere to controlling Supreme Court precedent. Nowhere in
her concurring opinion is the Chevron case considered or even cited
for this purpose![1] Yet that case, and its mandate to appellate
courts to defer to agency interpretations of statutory provisions
squarely applies to this case.
By my colleagues' failure to apply Chevron, one could conclude
that Chevron has been deleted from our jurisprudence. However that's
not the case and to be sure there is no misunderstanding, I submit the
following which I suggest provides unequivocal direction to this
Commission in the disposition of this issue!
When a court reviews an agency's construction of the statute which
it administers, it is confronted with two questions. First, always, is
the question whether Congress has directly spoken to the precise question
at issue. If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress. If, however, the court
determines Congress has not directly addressed the precise question at
issue, the court does not simply impose its own construction on the
statute, as would be necessary in the absence of an administrative
interpretation. Rather, if the statute is silent or ambiguous with
respect to the specific issue, the question for the court is whether the
agency's answer is based on a permissible construction of the statute.
([footnote] The court need not conclude that the agency construction was
the only one it permissibly could have adopted to uphold the construction,
or even the reading the court would have reached if the question initially
had arisen in a judicial proceeding.)
'The power of an administrative agency to administer a congressionally
created . . . program necessarily requires the formulation of policy and
the making of rules to fill any gap left, implicitly or explicitly, by
Congress.' Morton v. Ruiz, 415 U.S. 199, 231 (1974). If Congress has
explicitly left a gap for the agency to fill, there is an express delegation
of authority to the agency to elucidate a specific provision of the statute
by regulation. Such legislative regulations are given controlling weight
unless they are arbitrary, capricious, or manifestly contrary to the statute.
Sometimes the legislative delegation to an agency on a particular question is
implicit rather than explicit. In such a case, a court may not substitute
its own construction of a statutory provision for a reasonable interpretation
made by the administrator of an agency.
We have long recognized that considerable weight should be accorded to
an executive department's construction of a statutory scheme it is entrusted
to administer, and the principle of deference to administrative interpretations
'has been consistently followed by this Court whenever decision as to
the meaning or reach of a statute has involved reconciling
conflicting policies, and a full understanding of the force of the
statutory policy in the given situation has depended upon more
than ordinary knowledge respecting the matters subjected to agency
regulations.'
'. . . If this choice represents a reasonable
accommodation of conflicting policies that were committed to the
agency's care by the statute, we should not disturb it unless it
appears from the statute or its legislative history that the
accommodation is not one that Congress would have sanctioned.'
Chevron, 467 U.S. at 842-45 (footnotes and citations omitted,
emphasis supplied). Accord, Smiley v. Citibank, 517 U.S. ,
116 S.Ct. 1730, 135 L. Ed. 2d 25, 31 (1996), citing Chevron, 467
U.S. at 843-44 ("We accord deference to agencies under Chevron .
. . because of a presumption that Congress, when it left ambiguity
in a statute meant for implementation by an agency, understood that
the ambiguity would be resolved, first and foremost, by the agency,
and desired the agency (rather than the courts) to possess whatever
degree of discretion the ambiguity allows.").
Notwithstanding the foregoing, Commissioner Holen unsuccessfully
attempts to demonstrate that the Commission has controlling policy
authority in "directing relief in discrimination cases." Slip op. at
15 (Commissioner Holen, concurring). Support for her position is based
on the fact that Congress provided the miners with a private right under
section 105(c)(3), independent of the Secretary, if the Secretary finds
no violation occurred. Commissioner Holen's reliance on that provision
of the Act for her contention is woefully off the mark.
In authorizing a private right of action to miners under section
105(c)(3), Congress was clearly providing a tangible means by which
miners could obtain that which Congress intended -- that access to all
relief necessary to make the miner whole be assured.[2] Commissioner
Holen's position in this case, and in the two Commission decisions being
overruled[3] today, only frustrate that Congressional intention.
Last, but by no means least, Commissioner Holen's invective
suggesting that my position on this issue (to not set off unemployment
compensation received by the miner from back pay awards) is based
merely on superficial "policy preferences" is astonishing! Slip op.
at 18. (Commissioner Holen, concurring). The Commission's majority
decisions in Meek and Nantz admittedly relied on the policy preferences
of Commissioner Holen.[4] However, by some process known only to
Commissioner Holen, those ill chosen policy choices, that flagrantly
ignored the vast preponderance of federal case law, are apparently
believed by her to have become ensconced into the "Commission's established
law," that should forever be held inviolate! Nonsense.
For the reasons clearly and convincingly set forth in former
Commissioner Backley's dissent in Meek and for the same reasons amplified
in the Nantz dissent, an opinion I am pleased to have signed, I continue
to conclude that unemployment compensation received by the miner should
not be set off from back pay awards.
_______________________________
Marc Lincoln Marks,
Commissioner
**FOOTNOTES**
[1]: However, in her concurring opinion Commission Holen
does cite Chevron in connection with her conclusion that the
intent of Congress, regarding the meaning of sections 105(c)(2)
and (3) of the Act is clear and unambiguous. This, however, is
curious in view of the fact that both majority opinions in Meek
and Nantz were grounded only on Commissioner Holen's policy
preferences after concluding that the Act is silent on the issue
of unemployment compensation. Meek v. Essroc Corp., 15 FMSHRC
606, 616 (April 1993); Secretary of Labor on behalf of Nantz v.
Nally & Hamilton Enterprises, Inc., 16 FMSHRC 2208, 2216
(November 1994). See also infra n.4.
[2]: It is the Committee's intention that the Secretary
propose, and that the Commission require, all relief that is
necessary to make the complaining party whole and to remove the
deleterious effects of the discriminatory conduct including,
but not limited to reinstatement with full seniority rights,
back-pay with interest, and recompense for any special damages
sustained as a result of the discrimination. The special relief
is only illustrative. Thus, for example, where appropriate, the
Commission should issue broad cease and desist orders and include
requirements for the posting of notices by the operator.
S. Rep. No.181, 95th Cong., 1st Sess. 37 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 625 (1978).
[3]: Meek v. Essroc Corp., 15 FMSHRC 606 (April 1993);
Secretary of Labor on behalf of Nantz v. Nally & Hamilton
Enterprises, Inc., 16 FMSHRC 2208 (November 1994).
[4]: "[W]e conclude that deducting unemployment
compensation from a backpay award is a reasonable and sound
policy that fully effectuates the Mine Act's goal . . . ." Meek,
15 FMSHRC at 618 (emphasis supplied). "The Commission . . . now
adopts a policy for its administrative law judges, in order to
ensure equality of treatment . . . ." Id. (emphasis supplied).
"The Commission recently decided . . . that, as a matter of
agency policy, unemployment compensation . . . should be deducted
in determining backpay awards." Ross v. Shamrock Coal Co., 15
FMSHRC 972, 976 (June 1993) (emphasis supplied). "[T]he
Commission determined [in Meek] that a policy of deducting
unemployment benefits comports with the Mine Act's goal of making
the miners whole. It adopted this policy to be followed by its
judges." Nantz, 16 FMSHRC at 2216 (citations omitted, emphasis
supplied). "The Commission, by a majority of three
Commissioners, adopted its policy of subtracting unemployment
compensation from back pay awards in Meek v. Essroc Corp . . . ."
Slip op. at 17 (Commissioner Holen, concurring) (emphasis
supplied).