<DOC>
[DOCID: f:kt95604x.wais]

 
MOUNTAIN TOP TRUCKING CO., INC.
August 18, 1999
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

                         August 18, 1999

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),        : Docket No. KENT 95-613-D
  on behalf of WALTER JACKSON    : MSHA Case No. BARB CD 95-13
               Complainant       :
          v.                     : Mine  ID No. 15-17234-NCX
                                 : Huff Creek Mine
                                 :
MOUNTAIN TOP TRUCKING CO., INC., :
  ELMO MAYES; and                : 
  MAYES TRUCKING COMPANY, INC.,  :
               Respondents       :

                       DECISION ON REMAND

Before: Judge Feldman

     These discrimination matters  were  remanded  by  the 
Commission on March 31, 1999. 21 FMSHRC 265.  The initial 
determination concluded  that, Lonnie Bowling and  Everett  
Darrell Ball, upon being recalled to work on March  23, 1995, 
after they had  been discharged on March 7, 1995, in violation 
of 105(c) of the Federal Mine Safety and Health Act of 1977,  
30 U.S.C.  815(c), acted in concert in an effort to provoke 
their discharges in order to perfect their discrimination
complaints. Decision on Liability, 19 FMSHRC 166 (January 
1997). Fundamental to this conclusion was Bowling and Ball's 
admitted refusals to work the 12  hour work shift they had  
previously accepted as a condition of their  employment. Id.  
at 177, 194, 197; 21 FMSHRC at 275. In its remand decision, 
the Commission determined, in a divided opinion, that the 
evidence leads to only one conclusion - -  that  Bowling and 
Ball were the victims of a constructive discharge. 21 FMSHRC 
at 281. Consequently, the Commission remanded these matters  
for a recalculation of the proper relief to be awarded for the 
constructive discharges of
Bowling and Ball.

     With  respect  to Walter Jackson, the Commission  
determined that Jackson's failure to seek reopening of his  
temporary reinstatement  application  after  a  protracted  
period  without employment, alone,  was  not sufficient 
evidence to conclude that Jackson  had  failed  to  mitigate 
his  damages.  Id.  at  285.  Accordingly,  the  Commission   
remanded this matter for a recalculation of the backpay and 
interest due Walter Jackson.

     The pertinent period for calculating damages begins the 
date of the  initial  discriminatory  discharges. With respect
to Bowling  and  Ball,  the  beginning  date is March 8, 1995.  
With respect to Jackson, the beginning date is February 18, 
1995. The period for relief ends on June 21, 1996, the date the 
respondents ceased hauling coal for Lone Mountain Processing, 
Inc. Supplemental Decision, 19 FMSHRC 876, 878-79 (May 1997).

     With  respect  to  the backpay issue, it has been 
determined that the appropriate calculation  for  backpay is 
eight loads per day @ $13.00 per load, constituting wages of 
$104.00 per day, or $520.00 per week.[1]  Id. at 878.

     As a result of the Commission's remand, on April 23, 1999,
an Order  was  issued  requesting  the  complainants to submit
proposed orders for relief.  The complainants were instructed 
to specify the amount of lost wages less any deductions for 
earnings from  other  employment,  or  less  deductions for 
periods during which time any complainant was not available 
for employment. The complainants  were  also  requested  to  
specify  any  incidental damages claimed.

     Lonnie Bowling and Darrell Ball

     On June 4, 1999, Lonnie Bowling filed a Proposed Order 
for Relief with supporting documentation seeking gross back
wages of $35,152.00 for the  period  March  8, 1995, through
June  21,  1996, less earnings from other employment  during
this period totaling $8,595.00.  Consequently, Bowling seeks
net relief of $26,557.00, plus interest.  Bowling is seeking
no additional incidental damages.

     On June 4, 1999,  Darrell  Ball  filed  a Proposed Order 
for Relief with supporting documentation seeking  gross back
wages of $35,152.00 for the  period  March  8, 1995, through
June  21,  1996, less earnings from other employment  during
this period  totaling  $17,915.00.  Consequently, Ball seeks
net relief of $17,237.00, plus interest.  Ball is seeking no
additional incidental damages.

     On June 4, 1999, the respondents filed their Response to 
the Order Requesting Proposed Orders for Relief. With respect
to Bowling and Ball, despite the  Commission's  decision  in
this matter, the respondents contend  that  Bowling and Ball
are only entitled to backpay from March 8, 1995,  until they
were called back to work on March 27, 1995.[2]

     The respondents have presented no evidence to rebut the
backpay awards sought by Bowling and  Ball.  Consequently, I
shall  award  Bowling and Ball backpay of  $26,557.00,  plus
interest, and $17,237.00, plus interest, respectively.

     Walter Jackson

     On June 4, 1999,  Walter  Jackson filed a Proposed Order 
for Relief  with supporting documentation seeking gross back
wages  of $36,400.00  for  the  period  February  18,  1995,
through  June  21, 1996, less earnings from other employment
during  this  period   totaling   $3,758.00.   Consequently,
Jackson  seeks  net  relief  of $32,642.00,  plus  interest.
Jackson is seeking no additional incidental damages.

     With  respect  to  Jackson, during  an  April 22, 1999,
conference  call  with the parties, the respondents  claimed
they had information  that  Jackson had removed himself from
the  workforce in August 1995  when  he  enrolled  in  Union
College  as  a  full  time  student.   In  support  of their
assertion, the respondents subsequently provided a copy of a
report dated October 27, 1995, prepared by Luca E. Conte,  a
Vocational   Rehabilitation   Consultant.    The  vocational
evaluation, performed on October 11, 1995, as  a consequence
of Jackson's product liability suit docketed as Civil Action
92-112, U.S. Dist. Ct., Eastern District of Kentucky, sought
to  determine  the impact, if any, of Jackson's alleged  eye
impairment on his  ability  to  work.  Resp.'s May 10, 1999,
Response Concerning Jackson's Availability for Work, Ex. 1.
Conte reported Jackson had received  an  Associate  in  Arts
degree  from  Southeast  Community College in December 1991.
Jackson reportedly told Conte that he began full time course
work at Union College as a  first  semester junior in August
1995 and that he  was  taking 12  credits  as  an  education 
major.  Jackson  reported  his college costs were  $4,100.00 
per semester and that he was  receiving a  combination  of a 
PELL Grant and a Stafford loan  to  finance  his  education.  
Jackson further  reported  the  commute  from  his  home  to
college was approximately 50 to 70 miles, one way.

     During the course of the vocational assessment, Jackson
provided his employment history.  He indicated he had worked
for Cumberland Mine Service from October 1986 through August
1988, for seven  months  through  the fall of 1990, and from
June 1992 until October 1993.

     During the vocational evaluation Jackson complained of a
continuing  right eye impairment and "`loss [of] some  vision
in  the left eye'"reportedly  due  to  "`overcompensation.'"
Jackson   stated   he   had  previously  failed  a  physical
examination for a truck driving position at Manalapan Mining
Company although no further  details  were  given.  Although
Conte concluded Jackson retained "his pre-injury capacity to
access  the  labor  market," Jackson's statements  to  Conte
reflect he may have been  pursuing his education in order to
change careers because of his physical complaints.

     In  response  to  the  information  provided  by  the 
respondents concerning Jackson's availability for employment,
Jackson  now  admits  he was a full  time  student  at  Union  
College beginning the  fall  semester  of  1995.  Additional 
information furnished  by  Jackson,  including  an  affidavit 
filed on July 30, 1999, reflects  Jackson  was  enrolled from
August  29 through December  13,  1995, as a student taking 
12  credits  at  Union  College  in  Barbourville,  Kentucky.
Jackson's classes required  his  attendance on Tuesdays and 
Thursdays.[3]  In his  affidavit, Jackson  stated  that  he  
would have stopped attending college if he had found a job 
that required him to do so.[4]  Jackson further stated that 
he did  not return to Union College  in  the  spring semester 
of 1996 because  he could not afford to continue with his 
education.

     The  Secretary  argues the Commission's decision is res
judicata on the issue of whether  Jackson failed to mitigate
his  damages.  The Commission's decision  did  not  conclude
that Jackson  did,  in  fact,  make  efforts to mitigate his
damages.  Rather, the Commission concluded  that  the record
evidence did not "show a failure to mitigate damages  on the
part of Jackson." 21 FMSHRC at 284-85.  However, the record 
considered by  the Commission  failed  to  reflect Jackson's 
full  time  college  attendance  because  Jackson  was  not  
forthcoming about his college studies  despite the fact that 
the initial decision on liability explicitly directed Jackson 
to disclose any "periods when Jackson was not available for 
employment."  19 FMSHRC at 204.

     Moreover,  during  these  proceedings,  Jackson  was 
specifically asked  by  the  Administrative  Law  Judge if 
he had "been a party in any legal action or claim involving  
allegations  of  physical  or  mental  impairment."  Order 
Requesting Comments on the Calculation Period for Damages
(March 24, 1997). Jackson filed his response to the Order 
on April  22,  1997,  asserting  that  Jackson  had  not  
claimed any physical impairment and referred to a portion  
of a March 21, 1997, correspondence from his  counsel to  
Judge Feldman, that stated:

     Mr.  Jackson did not file a disability claim  regarding
     his eye  injury,  nor did it affect his ability to work
     during  the  backpay   period   in   this   proceeding.
     Therefore,  the  matter  is  irrelevant  to my client's
     claim for backpay herein (emphasis added).

     Although this statement was presumably made in good faith
by Jackson's counsel, it is contrary to information provided 
by Jackson in his October 11,  1995, vocational evaluation, 
and this statement apparently is not true. This misinformation 
prevented the respondents from pursuing relevant evidence with
regard to Jackson's unpublished civil  suit and  contributed  
to  the  Commission  striking  evidence  concerning  Jackson's  
civil suit in  an  apparent  belief  that  issues  concerning 
representations  made  by  Jackson  in  his  civil  suit  had 
previously not been raised  by  the  respondents.  Commission 
Order, July 27, 1998 (unpublished).

     Thus,  consideration  of Jackson's college attendance is 
not precluded  by   the  doctrine of res judicata. Moreover,
misstatements  concerning  Jackson's  availability  for 
employment could  be  a  basis  for reopening the issue of 
Jackson's  relief under Rule 60(b) of the  Federal Rules of 
Civil Procedure even  if  this  matter  had  become  a  final 
decision.[5]  In addition,  Counsel have  an  obligation  to  
correct  any misleading evidence and misstatements presented 
in Jackson's behalf. See Model Rules of Professional Conduct,  
Rule 3.3(4).[6] Consequently, the Secretary's  request  for  
interlocutory  review  with  regard  to  the  issue  of  the 
propriety of the  admission  of evidence into this proceeding 
concerning Jackson's student status is denied.

     I am  concerned about  the  apparent inconsistencies in
Jackson's position, i.e.,  asserting  in  his civil suit that
his decision to attend college was related to an eye impairment
that interfered with employment as a truck driver --  while  
asserting in  this  proceeding that he was looking for work 
as a truck driver, and that he would have left college to 
obtain full time employment.   Although  I  have  concluded  
Jackson's full time student status is relevant evidence that 
should be considered, I am  constrained by the Commission's 
remand decision that "limited [me]  to  a  recalculation of  
backpay and interest owed Jackson consistent with [the 
Commission's] conclusion that it was not shown that Jackson 
failed to mitigate his damages." 21 FMSHRC 285.  Absent 
further direction  from  the  Commission, I construe the 
Commission's decision as a finding that Jackson was available
for  work.   Accordingly,  I  shall  award  the net backpay 
of $32,642.00, plus interest, sought by Jackson in this
matter.

     As a final matter, the respondents' motion to compel 
answers to its interrogatories, that  were  not  material 
to the issue of Bowling and  Ball's damages, is denied.  
Additionally, in  view  of  the  denial of the Secretary's  
request for interlocutory review, the respondents' August 12, 
1999, request  for  an extension of time to respond to the 
Secretary's interlocutory review request is also denied.

      ORDER

     In view of the above, consistent with the determination 
with respect to joint liability in the Decision on Liability
issued  in  these matters on January 23, 1997, IT IS ORDERED
that the respondents are jointly and severally liable for:

     (1)  Payment  of  $26,557.00, plus interest to the date
     of payment, less applicable Federal and State and local
     tax deductions, if any, to Lonnie Bowling, constituting
     payment for net lost  wages from March 8, 1995, the day
     following Bowling's discriminatory  discharge,  through
     June 21, 1996.

     (2)   Payment of $17,237.00, plus interest to the  date
     of payment, less applicable Federal and State and local
     tax  deductions,  if  any,  to  Everett  Darrell  Ball,
     constituting  payment  for net lost wages from March 8,
     1995,   the   day   following   Ball's   discriminatory
     discharge, through June 21, 1996.

     (3)  Payment of $32,642.00,  plus  interest to the date
     of payment, less applicable Federal and State and local
     tax deductions, if any, to Walter Jackson, constituting
     payment for net lost wages from February  18, 1995, the
     day   following   Jackson's  discriminatory  discharge,
     through June 21, 1996.

     Interest shall be  calculated  in  accordance  with  the 
formula adopted in the Commission's decision  in Secretary of 
Labor o/b/o Bailey  v  Arkansas-Carbona  Company,  5  FMSHRC   
2042,  2049-52 (December 1983).  IT IS FURTHER ORDERED that 
payment to the above named  individuals  shall be made within 
40 days of the  date  of this decision.

                              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)

Stephen A. Sanders, Esq.,  
Mine Safety Project of the Appalachian Research & Defense 
  Fund Of Kentucky, Inc.,  
28 North Front Street,  
Prestonsburg, KY 41653
(Certified Mail)

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

Edward M. Dooley, Esq.,   
512 Richmond Circle, 
Fairhope, AL 36532
(Regular and Certified Mail)

/mh

**FOOTNOTES**

     [1]: Backpay of $104.00 per day is calculated based on an
average delivery of eight truck loads that occurred during the
course of the normal 12  hour work  day,  although,  as  noted 
infra, both Bowling and Ball  refused  to  work  more  than 10 
hours when they were called  back  to  work  by  Mountain  Top 
Trucking on March 23, 1995.

     [2]: The evidence reflects Bowling and Ball were called 
back to work effective March 23, 1995.

     [3]: The  consolidated  temporary  reinstatement  hearing
concerning Jackson's  discrimination complaint was convened on
August 23, 1995, in Pineville, Kentucky. Jackson did not appear
at  the  hearing.  Instead,  the  Secretary's counsel moved to
withdraw Jackson's temporary reinstatement application because
Jackson reportedly was working.  17 FMSHRC 1695, 1696 (October
1995). I am troubled by Jackson's full time college attendance
on Tuesdays and  Thursdays that began on August 29, 1995, only
five days after Jackson's temporary  reinstatement application 
was  withdrawn.  Jackson's  college  attendance  would  have  
precluded reinstatement  at  his  former  position at Mountain 
Top  Trucking  that  required  his  work  attendance  from  
approximately 6:00  a.m.  until  6:00  p.m.,  Mondays  through 
Fridays.

     [4]:  Jackson had a job opportunity that interfered with 
his college  attendance  and  required  him  to leave college
-  - reinstatement at Mountain Top Trucking.

     [5]: In relevant part, Rule 60(b) provides:

     Mistakes,   Inadvertence;   Excusable   Neglect;  Newly
     Discovered  Evidence; Fraud, Etc.  On motion  and  upon
     such terms as are just, the court may relieve a party .
     . . from a final judgment, order, or proceeding for the
     following reasons:
       . . . (2) newly  discovered  evidence  which  by  due
     diligence  could  not  have  been  discovered . . . (3)
     fraud  (whether  heretofore  denominated  intrinsic  or
     extrinsic), misrepresentation,  or  other misconduct of
     an adverse party; . . . (6) any other reason justifying
     relief from the operation of a judgment . . . .

     [6]: Upon ascertaining that material evidence is false,
     the lawyer should seek to persuade the  client that the
     evidence  should  not  be  offered or, if it  has  been
     offered, that its false character should immediately be
     disclosed.   If  the  persuasion  is  ineffective,  the
     lawyer must take reasonable  remedial  measures.  . . .
     [T]he  alternative  is  that  the  lawyer  cooperate in
     deceiving  the  court,  thereby  subverting  the  truth
     finding process which the adversary system is  designed
     to implement.  Model Rules of Professional Conduct Rule
     3.3 cmt. (1995).