<DOC>
[DOCID: f:reike.wais]

 
AKZO NOBEL SALT INC.
July 29, 1997
LAKE 95-201-DM


         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730  K  STREET  NW,  6TH  FLOOR

                    WASHINGTON,  D.C.   20006


                         July  29, 1997

SECRETARY OF LABOR,              :
 MINE SAFETY AND HEALTH          :
 ADMINISTRATION (MSHA),          :
 on behalf of JAMES RIEKE        :
                                 :
             v.                  :  Docket No. LAKE 95-201-DM
                                 :
AKZO NOBEL SALT INC.             :


BEFORE: Jordan, Chairman; Marks and Riley, Commissioners[1]


                             DECISION

BY THE COMMISSION:

     In 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"), Administrative Law Judge Gary
Melick determined that Akzo Nobel Salt Inc. ("Akzo")
violated section 105(c)(1)[2] of the Act by demoting James
Rieke to a laborer position from his position as
powderman/blaster.  17 FMSHRC 1368, 1378 (August 1995)
(ALJ).  The judge ordered his immediate reinstatement to the
powderman/blaster position.  Id. at 1379.  At issue is
whether the judge properly denied the Secretary of Labor's
later motion for relief from that reinstatement order,
requesting that Rieke be permitted to remain in a higher-
paying position with Akzo that he secured after his
discriminatory demotion.  17 FMSHRC 1501, 1502 (August 1995)
(ALJ).  We granted a petition for discretionary review filed
by the Secretary challenging the judge's denial.  Akzo
subsequently filed a motion to dismiss the proceeding as
moot.  For the reasons that follow, we reverse in part,
vacate in part and remand to the judge.

                                  I.

                  Factual and Procedural Background

     The underlying facts of the discrimination are not in
dispute.  On February 10, 1994, Rieke observed his foreman
remove a "down" tag on a powder rig without determining
whether the necessary repairs had been made.  17 FMSHRC at
1371, 1375.   Rieke reported the incident to his union
safety committee and an MSHA inspector.  Id. at 1375.  On
March 31, 1994, the foreman informed Rieke that he was being
disqualified from the powderman position and demoted to a
position as laborer.  Id. at 1370.

     Rieke subsequently bid on and was awarded a higher-paying
position as haul truck driver on October 21, 1994.  17
FMSHRC at 1501; S. Br. at 2-3; A. Br. at 1.  In January
1995, the Secretary filed a complaint of discrimination on
Rieke's behalf, seeking, among other things, "[a]n order
restoring the Complainant to his position as a blaster."  S.
Complaint at 4.  At the time of the hearing on May 11, 1995,
Rieke occupied the haul truck driver job.  17 FMSHRC at
1501; Tr. 9.  He testified on direct examination as follows:

     Q.   Mr. Rieke, what kind of relief are you seeking in
          this case?

     A.   My qualifications to be reinstated.

     Q.   Which qualifications are those?

     A.   Powderman and EIMCO driver; and the backpay that I
          have lost, because I was demoted to a lesser
          paying job; and all the overtime that I have lost.

Tr. 39.  The Secretary filed a post-hearing brief on July 12,
1995, also seeking an "order restoring the Complainant to his
position as a powderman."  S. Post-Hearing Br. at 19.

     In an interlocutory decision dated August 7, 1995, the judge
determined that Rieke's disqualification from the powderman job
constituted discrimination in violation of the Act.  17 FMSHRC at
1378.  The judge assessed a civil penalty of $2,000 against Akzo
and directed the "immediate[ ]" reinstatement of Rieke to his
position as powderman/blaster.  17 FMSHRC at 1379.  The judge
ordered the parties to confer on the issue of damages and report
back to him by August 25, 1995.   Id.  The parties stipulated to
damages of $2,542.04 and the judge awarded this amount to Rieke.
17 FMSHRC 1500 (August 1995) (ALJ).

     On August 22, 1995, the Secretary moved, pursuant to Rule
60(b) of the Federal Rules of Civil Procedure, for relief from
that portion of the order directing Akzo to reinstate Rieke to
the powderman position.  The Secretary asserted that she
inadvertently failed to modify the prayer for relief to delete
the request for reinstatement and that "the miner wished to
maintain the higher paying job."  S. Mot. for Relief at 2.  The
Secretary alleged that (1) she informed counsel for Akzo, prior
to imple-mentation of the order, that Rieke was not interested in
the powderman position; (2) Akzo replied that Rieke could bid on
the haul truck job opening and reinstated Rieke to the
powderman's job; and (3) a miner with greater seniority secured
the haul truck job.  Id.  Akzo objected to the Secretary's motion
for relief.

     Judge Melick denied the motion for relief.  17 FMSHRC at
1501-02.  He reasoned that Rieke was granted the "precise remedy
sought" whereas modifying the order would displace an innocent
third party employee who had been awarded Rieke's haul truck
driver job and violate the collective bargaining agreement.  Id.

     On September 1, 1995, the Secretary filed with the judge
motions to withdraw her previous motion and for reconsideration
of the reinstatement order, to which Akzo objected.  The judge
referred these pleadings to the Commission because they were
filed after the issuance of his final decision and he therefore
no longer had jurisdiction over the case.  The Commission granted
the Secretary's petition for review of the judge's denial of
relief.

     While the appeal was pending and after all briefs had been
filed with the Commission,  Akzo filed a motion to dismiss the
proceeding as moot based on Rieke's discharge for cause.  The
Secretary opposed the dismissal motion, contending that a live
controversy still existed.

                               II.

                           Disposition

     A.   Motion to Dismiss

     Akzo asserts that on July 8, 1996, Rieke was discharged for
a violation of its attendance program.  A. Mot. at 1.  It
alleges that Rieke's absence resulted from his conviction
for felonious assault, for which he was incarcerated.  Id.
As a result, Akzo argues that no issues remain for the
Commission to resolve.  Id. at 1-2.  The Secretary opposes
the dismissal on the grounds that, "[e]ven if the
complainant was lawfully discharged in July 1996," the
Commission must still decide the issues of whether the judge
erred by not allowing Rieke to remain in his higher paying
job and whether Rieke is then entitled to backpay in the
amount of the difference between the two jobs.  S. Opp'n at
1-3.


     We agree with the Secretary that Rieke's discharge does not
moot the issue of whether Rieke is entitled to additional
backpay if the judge erred in failing to permit Rieke to
remain in the higher paying haul truck driver position.
Accordingly, we deny the motion to dismiss.  However, if
Rieke was in fact discharged for cause in July 1996, as Akzo
asserts, and that discharge has not been and could not now
be timely challenged, Rieke is not entitled to reinstatement
nor is Rieke eligible for backpay after his discharge date.
See Cruz v. Puerto Rican Cement Co., 7 FMSHRC 487 (April
1985) (post-discrimination conduct on the part of employee
may render an order of reinstatement inappropriate and toll
period for which backpay is due); Alumbaugh Coal Corp. v.
NLRB, 635 F.2d 1380, 1385-86 (8th Cir. 1980) (employee
misconduct may justify rejection of reinstatement remedy).

     B.   Remedy

     The Secretary argues that the judge's refusal to modify the
reinstatement order is contrary to the Mine Act's objective
of making victims of discrimination whole and that a
complainant is not required to accept reinstatement to a job
that pays less than his present employment.  S. Br. at 12-
14.  Additionally, she contends that the judge should have
changed Rieke's mandatory reinstatement to an offer of
employment in accordance with case law under the National
Labor Relations Act, 29 U.S.C. � 160(c) (1994) ("NLRA").  S.
Br. at 7-8.  The Secretary asserts that the judge further
erred by failing to amend the pleadings to conform to
Rieke's testimony regarding the remedy sought.  Id. at 9-12.
The Secretary also contends that neither the displacement of
another employee nor the collective bargaining agreement
prevent modifying the reinstatement order.  Id. at 16-17.

     Akzo responds that the judge properly denied the Secretary's
motion for relief because the Secretary failed to explain
her inadvertence in not seeking to modify the remedy sought
until after the order issued.  A. Br. at 1-4.  According to
Akzo, the basis for appellate review of a denial of a Rule
60(b) motion or a motion for reconsideration is whether the
judge abused his discretion and the judge has not done so
here.  Id. at 4-6.  Akzo submits that the judge did not err
in granting the Secretary the exact relief she requested on
Rieke's behalf.  Id. at 7-8, 10.  Akzo also challenges the
Secretary's claims that the remedy is at odds with Rieke's
testimony and that the judge erred in failing to amend the
complaint when the Secretary never sought leave for such an
amendment.  Id. at 8-10.

     The Commission enjoys broad remedial power in fashioning
relief for victims of discrimination.  Mine Act section
105(c)(2) states in pertinent part:  "The Commission shall
have authority . . . to require a person committing a
violation of this subsection to take such affirmative action
to abate the violation as the Commission deems appropriate,
including, but not limited to, the rehiring or reinstatement
of the miner to his former position with back pay and
interest."  30 U.S.C. � 815(c)(2).  As the Commission stated
in Secretary of Labor on behalf of Dunmire v. Northern Coal
Co., 4 FMSHRC 126, 142 (February 1982), this is a "broad
remedial charge" and that "so long as our remedial orders
effectuate the purposes of the Mine Act, our judges and we
possess considerable discretion in fashioning remedies
appropriate to varied and diverse circumstances."  Thus, the
Commission reviews the judge's remedial order for abuse of
discretion and to ensure that it effectuates the purposes of
the Mine Act.[3]

     The Mine Act's legislative history similarly indicates
Congressional intent for expansive remedial relief to
victims of discrimination:

               It is the Committee's intention to
          protect miners against not only the common
          forms of discrimination, such as discharge,
          suspension, demotion, reduction in benefits,
          vacation, bonuses and rates of pay, or
          changes in pay and hours of work, but also
          against the more subtle forms of
          interference, such as promises of benefit or
          threats of reprisal.

                . . . .

               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 specified relief is
          only illustrative.

S. Rep. No. 181, 95th Cong., 1st Sess. 36-37  (1977), reprinted
in Senate Subcommittee on Labor, Committee on Human Resources,
95th Cong., 2nd Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 624-25 (1978).

     In accordance with these principles, the Commission
endeavors to make miners whole and to return them to their status
before the illegal discrimination occurred.  Secretary of Labor
on behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2056
(December 1983).  "Our concern and duty is to restore
discriminatees, as nearly as we can, to the enjoyment of the
wages and benefits they lost as a result of their illegal
terminations."  Dunmire, 4 FMSHRC at 143.  "`Unless compelling
reasons point to the contrary, the full remedial measure of
relief should be granted to [an improperly] discharged
employee.'"  Arkansas-Carbona, 5 FMSHRC at 2049 (quoting
Secretary of Labor on behalf of Gooslin v. Kentucky Carbon Corp.,
4 FMSHRC 1, 2 (January 1982)).

     As a corollary to the basic principle that the Commission
must provide full remedial relief to make the miner whole, a
miner should not be made worse off than he otherwise would have
been because he has chosen to vindicate his rights under the Mine
Act.  The judge's denial of the Secretary's motion runs afoul of
this principle by placing Rieke in a lower paying job than he
would have occupied had he not filed a complaint.  We conclude
that reinstatement against the wishes of the discriminatee does
not further the broad remedial charge of Mine Act section 105(c).
Cf.  Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941)
(National Labor Relations Board may or may not order re-
employment depending on circumstances); NLRB v. Brown-Dunkin Co.,
287 F.2d 17, 20-21 (10th Cir. 1961) (Board in its discretion
could properly grant wronged employees option of reinstatement or
remaining in higher paying jobs); Oil, Chemical and Atomic
Workers International Union v. NLRB, 547 F.2d 598, 603-04 (D.C.
Cir. 1976), cert. denied, 429 U.S. 1078 (1977) (no requirement
that wronged employee mitigate damages by accepting offer of
reinstatement if he has secured higher paying interim job).

     The judge's rationale for denying the Secretary's request
to modify the  reinstatement  order  was  inconsistent  with
Commission precedent.  In this case, the judge should not
have  looked  to  the  collective  bargaining agreement in
fashioning his relief under section 105(c).  The Commission
has stated that it does not "decide cases in a manner which
permits parties' private agreements to overcome mandatory
safety requirements or miners' protected rights."  Mullins
v. Beth-Elkhorn Coal Corp., 9 FMSHRC 891, 899 (May 1987)
(citing Loc. U. No. 781, Dist. 17, UMWA v. Eastern Assoc.
Coal Corp., 3 FMSHRC 1175, 1179 (May 1981)).  By the same
token, displacement of the third party is not controlling.
Section 105(c) of the Mine Act provides for reinstatement or
rehiring.   If transferring Rieke back to his truck driver
position had resulted in other grievances under the
collective bargaining agreement, as Akzo suggested in its
Response to Motion for Relief at 2-3, then it was for Akzo,
the wrongdoing operator, rather than Rieke, the victim of
discrimination, to bear any burden resulting from
purportedly conflicting requirements of section 105(c) and
the union contract.  Cf. W.R. Grace & Co. v. Rubber Workers,
461 U.S. 757, 766-70 (1983) (where compliance with consent
decree under Title VII of the Civil Rights Act of 1964
caused discriminating employer to violate seniority
provisions of collective bargaining agreement, burden for
breach appropriately placed on employer rather than on
employees).  It was not for the judge to weigh the rights of
other parties not before him.  See Mullins, 9 FMSHRC at 899
("the Commission does not sit as a super grievance or
arbitration board").

     Akzo's other arguments are not persuasive.  Its contention
that the Secretary obtained exactly the relief requested is
disposed of by Dunmire, 4 FMSHRC at 144.  There, the
Commission rejected the operator's argument that the miner's
backpay was tied to the Secretary's pleadings.  Id.  The
Commission held that the relief to the miner was "not
necessarily limited by[] the relief sought in the pleadings"
and that "[o]ur concern is to make miners whole, and
technical problems in the pleadings can fairly be cured."
Id.; see also Brandon v. Holt, 469 U.S. 464, 471 (1985) ("it
is appropriate for us to proceed to decide the legal issues
without first insisting that such a formal amendment be
filed").  Therefore the Secretary's failure to properly
amend the pleadings to account for Rieke's request to remain
in the higher paying job is not determinative of this issue.
We note however that this case involves Secretarial
inadvertence in failing to seek the appropriate relief for
Rieke.  S. Mot. for Relief at 2.  At the hearing, Rieke
testified that he wished to have his qualifications
restored, not that he wanted his old job back.  Tr. 39.
Despite this testimony, the Secretary did not attempt to
remedy this mistake until after filing her post-hearing
brief and the judge's issuance of his reinstatement order.
The Commission eschews punishing a miner for the
inadvertence of the Secretary.  Cf. Secretary of Labor on
behalf of Hale v. 4-A Coal Co., 8 FMSHRC 905, 908 (June
1986) ("Congress clearly intended to protect innocent miners
from losing their causes of action because of delay by the
Secretary").

     The parties disagree over whether Akzo intended to
discriminate against Rieke by  returning him to the
powderman position.  S. Br. at 17; A. Br. at 12.  Akzo's
intent makes no difference and we make no finding in this
regard.  The effect of the judge's refusal to allow Rieke to
remain a haul truck driver was to penalize Rieke for filing
a discrimination complaint and such a penalty contravenes
the broad remedial charge to make a miner whole under
section 105(c)(2) of the Mine Act.[4]


**FOOTNOTES**

     [1]:   Commissioner Verheggen assumed office after this case
had  been considered  and  decided  by  the  Commission.   A  new
Commissioner  possesses legal authority to participate in pending
cases, but such  participation  is  discretionary.  Mid-Continent
Resources, Inc., 16 FMSHRC 1218, 1218  n.2  (June  1994).  In the
interest of efficient decision making, Commissioner Verheggen has
elected not to participate in this matter.

     [2]:  30 U.S.C. � 815(c)(1) provides in pertinent 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 the
          statutory rights of any miner . . . in any  .
          .  .  mine subject to this Act  because  such
          miner    .  . . has filed or made a complaint
          under or related  to  this  Act,  including a
          complaint  notifying  the  operator  or   the
          operator's  agent,  or  the representative of
          the miners at the . . . mine  of  an  alleged
          danger or safety or health violation in a . .
          .  mine, . . . or because of the exercise  by
          such  miner  .  .  .  of  any statutory right
          afforded by this Act.

     [3]:  Abuse of discretion may be found when "there is no 
evidence to support the  decision or if the  decision is based
on  an  improper understanding of the law."   Mingo Logan Coal
Co.,  19  FMSHRC  246,  249-50 n.5  (February  1997) (citing 
Utah Power  & Light Co., Mining Division, 13 FMSHRC 1617, 1623 
n.6  (October 1991);  Bothyo  v.  Moyer, 772 F.2d 353,  355
(7th Cir. 1985)), appeal  docketed,  No.  97-1392 (4th Cir. 
March 25, 1977).

     [4]:   The Secretary's motion  for  expedited consideration
is  moot in light of our disposition.   In  addition,  we  decline 
to address,  as beyond the scope of the petition before us, the
Secretary's request, contained in note 1 of  her Opposition to 
Akzo's Motion to  Dismiss,  to  determine  Akzo's  possible
successor-in-interest.  30 U.S.C. � 823(d)(2)(A)(iii). Moreover,
as  we  have  explained,  "[t]here  is  no  serious legal question
that a Commission judgment may be enforced   against   a  genuine 
successor."  Simpson v. Kenta Energy, Inc., 11 FMSHRC 770, 778 
(May 1989) (citing cases).


                             III.

                          Conclusion

     Based on the foregoing, we conclude that the judge's refusal
to modify the reinstatement order to allow Rieke to remain in
his job of haul truck driver, amounted to an abuse of
discretion.   We reverse the judge and remand for the
calculation of backpay, including the loss of pay and
benefits which he suffered as a result of his demotion from
haul truck driver to powderman.  If, as Akzo asserts in its
motion to dismiss, Rieke was discharged on July 8, 1996, and
the discharge is final, we will not order Rieke's
reinstatement to the haul truck driver position.
Accordingly, we vacate the reinstatement order and remand to
the judge to determine the questions of whether Rieke was
discharged in July 1996, whether Rieke has contested that
discharge, and whether that discharge is final.  If the judge
determines that the discharge is in fact final, Rieke's
reinstatement claim is moot and we instruct the judge to
dismiss it and to award no backpay for the period following
the discharge date.


                                   Mary Lu Jordan, Chairman
                                   
                                   Marc Lincoln Marks, Commissioner
                                   
                                   James C. Riley, Commissioner