.
MOUNTAIN TOP TRUCKING CO., INC.
March 24, 1997
KENT 95-604-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION


               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                         March 24, 1997

SECRETARY OF LABOR,                  :     DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH             :
  ADMINISTRATION (MSHA),             :     Docket No. KENT 95-604-D
  on behalf of LONNIE BOWLING,       :     MSHA Case No. BARB CD 95-11
                 Complainant         :
                                     :
          v.                         :     Mine ID No.15-17234-NCX
                                     :     Huff Creek Mine
MOUNTAIN TOP TRUCKING CO., INC.,     :
  ELMO MAYES; WILLIAM DAVID RILEY;   :
  ANTHONY CURTIS MAYES; and MAYES    :
  TRUCKING COMPANY, INC.,            :
                 Respondents         :
                                     :
                                     :
SECRETARY OF LABOR,                  :     DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH             :
  ADMINISTRATION  (MSHA),            :     Docket No. KENT 95-605-D
  on behalf of                       :     MSHA  Case No. BARB CD 95-11
  EVERETT DARRELL BALL,              :
                 Complainant         :     Mine ID No. 15-17234-NCX
                                     :
          v.                         :     Huff Creek Mine
                                     :
MOUNTAIN TOP TRUCKING CO., INC.      :
  ELMO MAYES; WILLIAM DAVID RILEY;   :
  ANTHONY CURTIS MAYES; and MAYES    :
  TRUCKING COMPANY, INC.,            :
               Respondents           :
                                     :
                                     :
SECRETARY OF LABOR,                  :     DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH             :
  ADMINISTRATION  (MSHA),            :
  on behalf of WALTER JACKSON        :     Docket No. KENT 95-613-D
               Complainant           :     MSHA Case No. BARB CD 95-13
                                     :
          v.                         :     Huff Creek Mine
                                     :
MOUNTAIN TOP TRUCKING CO.,INC.,      :
  ELMO MAYES; and MAYES TRUCKING     :
  COMPANY, INC.,                     :
                  Respondents        :
                                     :
                                     :
SECRETARY OF LABOR,                  :     DISCRIMINATION  PROCEEDING
  MINE SAFETY AND HEALTH             :
  ADMINISTRATION (MSHA),             :     Docket No. KENT 95-615-D
  on behalf of DAVID FAGAN,          :     MSHA Case No. BARB  CD 95-14
                  Complainant        :
                                     :
           v.                        :     Huff Creek Mine
                                     :
MOUNTAIN TOP TRUCKING CO.,INC.,      :
  ELMO MAYES; WILLLIAM DAVID RILEY   :
  ANTHONY CURTIS MAYES; and MAYES    :
  TRUCKING COMPANY, INC.,            :
                  Respondents        :


                ORDER REQUESTING COMMENTS ON THE
                 CALCULATION PERIOD FOR DAMAGES

     A related temporary reinstatement hearing  in  these matters
was  conducted  on  August  23  and  August  24,  1995.   At  the
reinstatement   hearing,  counsel  for  the  Secretary  moved  to
withdraw the temporary  reinstatement application filed on behalf
of   Walter   Jackson.    Consequently,    Jackson's    temporary
reinstatement   application   was   dismissed  in  the  temporary
reinstatement decision released on October  5,  1995.   17 FMSHRC
1695.  The temporary reinstatement decision ordered the immediate
reinstatement  of Lonnie Bowling and David Fagan to their  former
positions as coal haulage truck drivers.  Id. at 1709.

     A decision  on  liability in theses discrimination cases was
released on January 23,  1997.   19  FMSHRC  166.   That decision
determined that Jackson's February 17, 1995, discharge
was in violation of the anti-discrimination provisions of section
105(c)  of  the  Federal  Mine Safety and Health Act of 1977,  30
U.S.C.  815(c).  Consequently,  it  was  determined that Jackson
was entitled to relief as of February 18, 1995.

     The  liability  decision  provided  an opportunity  for  the
parties  to  propose  the appropriate relief  to  be  awarded  to
Jackson.  Jackson was requested  to  explain  why he withdrew his
application  for  temporary  reinstatement  in his  proposal  for
relief.  Id. at 205.

     On  March  6,  1997,  Jackson replied that he  withdrew  his
request for temporary reinstatement  on  August 23, 1995, because
he  "had  obtained  full-time  employment  with  Cumberland  Mine
Service as of August 1, 1995.  Jackson indicated  he was employed
at  Cumberland Mine Service from August 1, 1995, through  October
10, 1995,  when he was laid-off.  Jackson also worked for Garland
Company, Inc.  for  two weeks in January 1996.  Jackson indicated
his total gross wages earned at these two jobs was $3,758.00.

     Jackson asserts the respondents are liable for back pay plus
interest, minus Jackson's gross earnings of $3,758.00, for the 70
week period from February 18, 1995, until June 21, 1996, when the
respondents reportedly  stopped  hauling  coal  for Lone Mountain
Processing.

     On  the  other hand, the respondents argue Jackson  is  only
entitled to relief  from February 18, 1995, until he withdrew his
application for temporary  reinstatement on August 23, 1995, less
pertinent wages from other employment.

     The  case  law  concerning  a  complainant's  obligation  to
mitigate back-pay awards  by  seeking  other employment is clear.
Thus,  back-pay  awards must be reduced in  situations  "where  a
miner fails to mitigate  damages,  for  example,  by  failing  to
remain  in  the  labor  market  or to search diligently for other
work."  Metric Constructors, Inc., 6 FMSHRC 226, 231-32 (February
29, 1984) (citing Dunmire and Estle,  4 FMSHRC at 144), aff'd 766
F.2d 469 (11th Cir. 1985).

     Thus,  this  case involves the frequently  raised  issue  of
whether  an  unemployed  complainant,  who  is  seeking  back-pay
damages, has actively  sought  other work.  In addition, however,
this case presents the novel question of what obligation, if any,
an  unemployed  discriminatee  has   to   reapply  for  temporary
reinstatement,  after  he  had previously withdrawn  his  initial
reinstatement application because he secured other employment.

     In view of the above, in  order to determine the appropriate
period for calculating the relief that should be awarded, Jackson
should provide the following information:

     (1)  On what date did Jackson  first advise counsel for
     the Secretary that he wished to  withdraw his temporary
     reinstatement application?[1]

     (2)   What  was  Jackson's reason for  withdrawing  his
     temporary reinstatement application?

     (3)  Jackson was laid-off  from  his  job at Cumberland
     Mine  Service  on October 10, 1995.  When  did  Jackson
     first advise counsel  for  the  Secretary  that  he was
     laid-off from his job at Cumberland Mine Service?

     (4)   At  approximately the same time Jackson was laid-
     off  from Cumberland  Mine  Service,  Jackson,  through
     Counsel for the Secretary, was served with the
     October  5, 1995, temporary reinstatement decision that
     dismissed  his application for temporary reinstatement,
     and ordered  the  reinstatement  of  two  of  Jackson's
     former  colleagues.   Did Jackson request the Secretary
     to reopen his application  for temporary reinstatement?
     If yes, was it reopened?  If not, why not?

     (5)  The respondents have alleged that Jackson may have
     been a party in a pertinent  disability proceeding. Has
     Jackson  been  a  party in any legal  action  or  claim
     involving allegations of physical or mental impairment?
     If  yes, identify and  describe  the  legal  action  or
     claim, provide the dates of such actions or claims, and
     provide the status or outcome.

     (6)   Jackson should state what he did to look for work
     from October 11, 1995 through June 21, 1996.

     (7)  Jackson  should  address  whether  or  not  he was
     required  to  seek temporary reinstatement in order  to
     mitigate back-pay  damages,  citing pertinent statutory
     provisions, legislative history, or case law to support
     his position.

     IT IS ORDERED that Jackson's response  shall be filed within
21 days of the date of this Order.  IT IS ALSO  ORDERED  that the
respondents shall have ten (10) days thereafter to reply.   IT IS
FURTHER  ORDERED that Jackson shall have ten (10) days to respond
to the respondents' reply.




                              Jerold Feldman
                              Administrative Law Judge

Distribution:

Donna  E.  Sonner,  Esq., Office of the  Solicitor, U.S. Department  of
Labor,  2002  Richard  Jones  Road, Suite  B-201,  Nashville, TN 37215-
2862 (Certified Mail)

Tony  Oppegard, Esq.,  Mine  Safety Project of the Appalachian Research
& Defense  Fund  Of Kentucky, Inc., 630 Maxwelton Court,  Lexington, KY
40508 (Certified Mail)

Edward  M. Dooley, Esq.,  P.O.  Box 97, Harrogate, TN 37752
(Regular and Certified Mail)

                              \mca


**FOOTNOTES**

     [1]: Tony Oppegard filed a Notice of Appearance on behalf of
Jackson on December 27, 1995.  Some of  the questions posed refer
to the Secretary's counsel because the questions  involve  events
that  may  have  occurred  before  Mr. Oppegard was retained.  Of
course, Mr. Oppegard is also invited  to respond to this order on
behalf of Jackson.