<DOC>
[DOCID: f:wv99152.wais]

 
HUBERT PAYNE, ERIC CHARLES, WYOMING POCAHONTAS LAND COMPANY, INC.
May 21, 2001
WEVA 99-152-D

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 1730 K STREET, N.W., Room 6003

                  WASHINGTON, D. C. 20006-3868

                          May 21, 2001

ALEXIS M. HERMAN                 : DISCRIMINATION PROCEEDINGS
   SECRETARY OF LABOR            :
   MINE SAFETY AND HEALTH        :
   ADMINISTRATION (MSHA), ex rel.: Docket No. WEVA 99-152-D
   JESSIE A. DANIEL et al.,      : HOPE-CD-99-05
               Complainants,     :
          v.                     : Mine: Douglas No. 1 Mine
HUBERT PAYNE, ERIC CHARLES,      : Mine ID: 46-08462
   WYOMING POCAHONTAS LAND       :
   COMPANY, INC., PAUL STOVER,   : Mine: War Eagle
   P.E.S. ENTERPRISES AND SKIN   : Mine ID: 46-08550
   POPLAR COAL CORP.,            :
               Respondents       : Docket No. WEVA 99-153-D
                                 : HOPE-CD-99-06
ALEXIS M. HERMAN                 :
   SECRETARY OF LABOR            :
   UNITED STATES DEPARTMENT      : Mine: Douglas No. 1 Mine
   OF LABOR (MSHA) ex rel.       : Mine ID: 46-08462
   BETTY MULLINS,                :
               Complainants,     :
                                 : Mine: War Eagle
HUBERT PAYNE, ERIC CHARLES,      : Mine ID: 46-08550
   WYOMING POCAHONTAS LAND       :
   COMPANY, INC., PAUL STOVER,   :
   P.E.S. ENTERPRISES AND SKIN   :
   POPLAR COAL CORP.             :
               Respondents.      :

                            DECISION

Appearances: Emily Goldberg-Kraft, Esquire, Office of the
             Solicitor, U. S. Department of Labor, Arlington,
             Virginia, for Complainants;
             James F. Bowman, Mine Safety & Health 
             Administration, Mount Hope, West Virginia, for the
             Complainants;
             James G. Jones, Mine Safety & Health 
             Administration, Mount Hope, West Virginia, for the
             Complainants;
             Mark E. Heath, Esquire, Charleston, West Virginia,
             for Respondents, Payne, Charles and Wyoming
             Pocahontas Land Company;
             William D. Stover, Esquire, Beckley, West
             Virginia, for Respondents, Stover, P.E.S.
             Enterprises and Skin Poplar Coal Corporation.

Before: Judge Barbour

     These consolidated discrimination cases arise under Section
105(c)(2) of the Federal Mine Safety and Health Act of 1977 (30
U.S.C. 815 (c)(2)).   In Docket No. WEVA 99-152-D, the Secretary
alleges that Jessie Daniel and nine other named Complainants were
unlawfully discriminated against by Hubert Payne, Eric Charles,
Wyoming Pocahontas Land Company, Inc., Paul Stover, P.E.S.
Enterprises and Skin Poplar Coal Corporation.  The Complainants
are coal haulage truck drivers who worked for B&J Trucking
Company.  The Secretary charges that on or about January 24 and
January 25, 1999, they were illegally discharged by the
Respondents because the Complainants refused to haul coal over
allegedly hazardous roads and because they complained to the
Secretary's Mine Safety and Health Administration (MSHA) about
the roads' conditions.  In addition to relief for the
Complainants, the Secretary proposes the Respondents pay a civil
penalty of $4,500.00 for their violation of Section 105(c).

     B&J Trucking Company is owned and operated by Betty Mullins.
In Docket No. WEVA 99-153-D, the Secretary alleges that Mullins
was illegally discriminated against on or about January 24 and
January 25, 1999, when her company was replaced by other coal
haulage companies because she supported her drivers' refusal to
haul coal due to the allegedly hazardous roads and because she
supported her drivers' right to file a complaint reporting the
conditions.  In addition to relief for Mullins, the Secretary
proposes that the Respondents pay a civil penalty of $4,500.00
for their violation of Section 105(c).

     The Respondents denied all of the allegations, asserting in
part that the Respondents quite their jobs and freely chose to
work elsewhere.

     The cases were called for hearing in Beckley, West Virginia.
On the morning of the second day of the hearing, counsels engaged
in extensive off-the-record discussions regarding a proposed
settlement of the cases.  In order to evaluate the settlement
proposals and to consider new information regarding the financial
condition of one of the main Respondents, Wyoming Pocahontas Land
Company, the parties requested the hearing be adjourned.  The
request was granted (Tr. I at 363-365).

     For the next several months counsels exchanged information
and further consulted with one another and their clients.
Indeed, negotiations continued almost until the day the hearing
resumed.  Shortly before it reconvened, the parties agreed to
settle all of the claims set forth in Docket No. WEVA 99-152-D,
and counsel for the Secretary filed a motion to approve the
settlement.

     When the hearing reopened, I orally approved the motion. I
stated that I would confirm the approval in writing when a
decision was issued (Tr. II at 7).  Counsel for the Secretary
also announced that in the remaining case, Docket No. WEVA 99-
153-D, Mullins had reached a settlement with Paul Stover, P.E.S.
Enterprises and Skin Poplar Coal Corp.  In view of the
settlement, counsel requested the three Respondents be excused
from further participation in the hearing.  I stated that I
understood counsel subsequently would file a motion to approve
the partial settlement and as requested I excused the Respondents
and their counsel from the resumed hearing (Tr. II at 4-5).

     Counsel for the Secretary then began to present evidence
regarding Mullins' complaint against the remaining Respondents.
After one a full day of testimony, I received a telephone call
from counsel for the remaining Respondents advising me that he
had reached a settlement with Mullins and the Secretary.  When
the hearing was called to order the following morning, counsel
for the remaining Respondents reiterated that the matter had been
fully and finally settled.  Counsel stated the terms of the
settlement.  I inquired of counsel for the Secretary whether she
and her client agreed with the terms.  She answered that they did
(Tr. II 142-143).  I orally approved the settlement and stated
that I would formally approve the settlement once a settlement
motion was received (Tr. II 143).

               THE SETTLEMENTS, THEIR APPROVAL AND
                        THE ORDERS TO PAY

                     DOCKET NO. WEVA 99-152-D

     On June 16, 2000, the Wyoming Pocahontas Land Company filed
for Chapter 11, bankruptcy protection in the U.S. Bankruptcy
Court for the Eastern District of Kentucky.  In view of the
bankruptcy, the parties agree that the Respondents will pay a
total settlement amount of $15,000.00 to the Complainants to be
paid in 10 equal amounts of $1,500.00 to each Complainant.

     Counsel for the Secretary states on behalf of the
Complainants that the settlement amount will effectuate the
intent and purposes of the Act.  In addition, the parties agree
to bear their own expenses (Sec. Motion 2-3). The settlement
motion also states that nothing in the settlement shall be
construed as an admission of a violation of the Act by any of the
Respondents (Mot. 3).

     I conclude that the settlement amount is reasonable and that
it comports with the Act.  Accordingly, the settlement is
APPROVED.  The Respondents are ORDERED to pay each of the
Complainants $1,500.00, a total of $15,000.00, and upon payment
of the total amount, the proceeding is DISMISSED.

                     DOCKET NO. WEVA 99-153-D

     On June 16, 2000 the Wyoming Pocahontas Land Company filed
for Chapter 11, bankruptcy protection in the U.S. Bankruptcy
Court for the Eastern District of Kentucky.  In view of the
bankruptcy the parties have agreed to pay a total of $10,000 to
Betty Mullins within one month of the agreement to settle.  Of
the total, $5,000.00 is to be paid by Paul Stover, P.E.S
Enterprises and Skin Poplar Coal Corp. and $5,000.00 is to be
paid by Hubert Payne, Eric Charles, and Wyoming Pocahontas Land
Company, Inc.

      Counsel for the Secretary states on behalf of the
Complainant that the settlement amount will effectuate the intent
and purposes of the Act.  In addition, the parties agree to bear
their own expenses (Mot. 2-3).  The settlement motion also states
that nothing in the settlement shall be construed as a violation
of the Act by any of the Respondents (Mot. 3).

     I conclude that the settlement amount is reasonable and that
it comports with the Act.  Accordingly, the settlement is
APPROVED.  If they have not already done so, the Respondents are
ORDERED to pay Betty Mullins a total of $10,000.00.  Of the
total, $5,000.00 is to be paid by Paul Stover, P.E.S Enterprises
and Skin Poplar Coal Corp. and $5,000.00 is to be paid by Hubert
Payne, Eric Charles, and Wyoming Pocahontas Land Company, Inc.
Upon payment of the total amount this proceeding is DISMISSED.[1]

                         David F. Barbour
                         Chief Administrative Law Judge

Distribution:

Emily Goldberg-Kraft, Esquire, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA
22203

James F. Bowman, Conference & Litigation Representative, U.S.
Department of Labor, MSHA, 100 Bluestone Road, Mount Hope, WV
25880

James G. Jones, Investigator, Mine Safety and Health
Administration, 100 Bluestone Road, Mount Hope, WV 25880

Mark E. Heath, Esquire, HEENAN, ALTHEN & ROLES, One Valley
Square, Suite 1380, P. O. Box 2549, Charleston, WV 25329-2549

William D. Stover, Esquire, United National Bank Building, 129
Main Street, Beckley, WV 25802-1732

**FOOTNOTES**

     [1]:    Counsels orally advised me that the Bankruptcy Court
has approved the  financial  obligations  undertaken  by  Wyoming
Pocohontas Land Company.