<DOC>
[DOCID: f:wv200040.wais]

 
EASTERN ASSOCIATED COAL CORP.
March 10, 2000
WEVA 2000-40-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 10, 2000

SECRETARY OF LABOR,             : TEMPORARY REINSTATEMENT
  MINE SAFETY AND HEALTH        :   PROCEEDING
  ADMINISTRATION, on behalf of  :
  GARY DEAN MUNSON,             : Docket No. WEVA 2000-40-D
               Complainant      :            MORG-CD-2000-01
          v.                    :
                                : Federal No. 2
EASTERN ASSOCIATED COAL CORP.,  : Mine ID 46-01456
               Respondent       :

                             DECISION
                               AND
                 ORDER OF TEMPORARY REINSTATEMENT

Appearances: Douglas N. White, Esq., Associate Regional
             Solicitor, U.S. Department of Labor, Arlington,
             Virginia, for Applicant;
             Rebecca Oblak Zuleski, Esq., Furbee, Amos, Webb &
             Critchfield, P.L.L.C., Morgantown, West Virginia,
             for Respondent.

Before: Judge Zielinski

     This matter is before  me  on  an  Application for Temporary
Reinstatement  filed by the Secretary on behalf  of  Gary  Munson
pursuant to section  105(c)(2)  of  the  Federal  Mine Safety and
Health  Act  of  1977  (the  "Act"), 30 U.S.C.  815(c)(2).   The
application   seeks  an  order  requiring   Respondent,   Eastern
Associated Coal  Corporation  (EACC)  to  reinstate  Munson as an
employee pending completion of a formal investigation  and  final
decision on the merits of a discrimination complaint he has filed
with the Mine Safety and Health Administration (MSHA).  A hearing
on the application was held in Morgantown, West Virginia on March
7,   2000.   For  the  reasons  set  forth  below,  I  grant  the
application and order Mr. Munson's temporary reinstatement.
Summary of the Evidence

     Mr.  Munson had been employed by EACC for 28 years.  For the
past three  years  he  held the position of control room operator
and at the time of his discharge  he  was  working  the afternoon
shift.  By all accounts, Munson was a good worker and  there were
no complaints about his work performance.  Throughout his  tenure
with EACC, Munson was active in bringing complaints to management
about  safety  and  general  labor concerns.  There is no dispute
that he frequently raised safety  concerns  at, or in conjunction
with,  weekly safety meetings held by his immediate  supervisors,
foremen  Stanley  Eddy and Donald Livengood.[1]  Munson testified
that when his safety  concerns  were  not  addressed  in a timely
fashion,  he  would  call the Secretary's Mine Safety and  Health
Administration (MSHA)  on  a  confidential  complaint  line,  the
"code-a-phone".   He testified that he frequently told management
that he had phoned complaints to MSHA and would continue to do so
when his complaints  were  not  addressed.   Munson  and a fellow
miner,  Roger  Hornick, also testified that Munson raised  safety
concerns with Frank  Peduti,  EACC's  manager  of preparation and
electrical engineering.  Mr. Peduti occasionally  called meetings
to  discuss  certain  issues.  Munson and Hornick testified  that
Peduti indicated that he  did  not like "code-a-phone" complaints
and preferred that such matters  be  handled  in  house.   Peduti
denied   animosity   toward  safety  complaints  because  it  was
management's obligation  to address such concerns and EACC wanted
to  do  so  beyond the letter  of  the  law.   EACC's  management
witnesses denied  knowledge of Munson's "code-a-phone" complaints
and noted that he had  never  raised  safety concerns through the
formal grievance process.  Munson testified that, until recently,
he had been unaware that he could file  a  grievance  on a safety
complaint.

     Munson  was  aware that he could file grievances related  to
labor issues and EACC  records  showed  that,  for calendar years
1998  and  1999,  he  had filed 22 grievances over various  labor
matters,  substantially   more   than  any  other  miner  at  the
preparation  plant.   Munson  testified   that  his  foremen  had
expressed  concerns about his grievances and  safety  complaints,
stating that  they  could  result  in  the plant being shut down.
Munson also testified that he was authorized  to  accompany  MSHA
and  state  mine inspectors when a member of the safety committee
was not available  and that he had done so on approximately 12-15
occasions in the past  10 years.  Because the inspections started
on the day shift, his involvement  generally  lasted only an hour
or two, during which he pointed out safety problems that may have
lead to citations being issued.  EACC introduced  records showing
that  Munson was recorded as accompanying an inspector  only  one
time since December 1, 1994.

**FOOTNOTES**

     [1]  As  control room operator, Munson was required to start
work  15  minutes  earlier  than  other  shift  workers  and  was
frequently  unable  to  attend  the  safety  meetings held at the
beginning  of  the  shift.   The  foreman  would generally  speak
individually with Munson after the meeting, giving him a synopsis
of the meeting and an opportunity to provide input.

     The developments that lead to Munson's  discharge  commenced
on Thursday, November 18, 1999, when he told his foreman, Stanley 
Eddy, that he was going to purchase a "four wheeler" the following 
day and that he might be late for work. He was told to come in if 
he was going to be 30-60 minutes late. A miner could report tardy 
by up to  60  minutes  without significant  repercussions. Munson
encountered delays in purchasing and registering the vehicle  and
did  not  report  to  work  on  November  19,  1999.   He was not
scheduled  to  work  that Saturday or Sunday and had applied  for
vacation days[2] for Monday  through  Wednesday,  November 22-24,
1999.   The  mine  was to be closed for the Thanksgiving  holiday
period on November 25  and 26, 1999.  In accordance with required
procedure, his application  had  been  submitted prior to January
1999 and decisions were made at that time  based  upon the number
and  seniority  of persons applying for vacation on a  particular
day.  His request  for  vacation was approved for November 22 and
24, but was denied for the  23rd,  and he was given a form noting
the decisions made on his vacation requests.   Munson,  like many
of  the employees at EACC, was an avid deer hunter and had  taken
off that  first  week  of the firearm deer season, referred to as
"gun week", for several  years.  He inadvertently had referred to
his 1998 vacation leave schedule,  mistakenly thought that he had
also been granted a vacation day on  November  23,  1999, and did
not come in to work.   On the 18th, Stanley Eddy had inquired who
was  going  to be working the following short Thanksgiving  week,
and Munson indicated that he had scheduled days off. The fact that
his vacation request for the 23rd  had been denied was not raised
at that time.  On or around November  24,  his foreman called him
and asked that he sign up to work the holiday on Friday, November
26, 1999.  Despite the opportunity for triple  pay,  he declined,
but did agree to work the following day, Saturday, and  otherwise
worked  his  normal schedule the following week.  Neither Stanley
Eddy, nor any  other  management employee said anything about his
absences until the following  Friday.   At  the  beginning of his
shift on December 6, 1999, he was called to a meeting  and served
with  a  letter  advising  him  that he was being terminated  for
missing two consecutive work days without a viable excuse.

     The formal policies for addressing  absenteeism  at EACC are
found  in  the  National Bituminous Coal Wage Agreement of  1993.
Article  XXII,  Section  (i)  "Attendance  Control"  provides  in
pertinent part:

     (4) Absences of Two Consecutive Days

        When any  Employee absents himself from his work for
     a  period  of two  (2)  consecutive  days  without  the
     consent of the  Employer,  other than because of proven
     sickness, he may be discharged. * * *

**FOOTNOTES**

     [2]  With his seniority level,  he was entitled to specified
numbers of "graduated" and "floating"  days off.  In addition, he
was  entitled to 5 "personal days" off, which  he  did  not  need
management's  permission to take.  It appears that as of November
19, 1999, Munson had at least one personal day remaining.
Robert Areford,  EACC's  manager  for  employee  relations at the
time, testified in response to a question about the  significance
of  the  word  "may", that termination was "not automatic."   The
term "two (2) consecutive  days"  has apparently been interpreted
to  mean  two consecutive scheduled work  days.   Such  that,  in
Munson's case,  even  though  there were intervening weekend days
and one scheduled vacation day, the 19th and 23rd were considered
consecutive days.[3]

     Subsection (2) describes a  procedure  to  address employees
who  accumulate single days of unexcused absences.   An  employee
who accumulates  six  single days of unexcused absences in a 180-
day period or three single  days  of  unexcused absences within a
30-day period is designated an "irregular  worker" and is subject
to "progressive steps of discipline".  If an  "irregular  worker"
has  an  unexcused  absence within 180 days of his last unexcused
absence he may be given  a  written warning, if another unexcused
absence  occurs  within  180 days  of  the  warning,  he  may  be
suspended for 2 working days  and  if  another  unexcused absence
occurs  within  180 days of the suspension, he may  be  suspended
with intent to discharge.

     In addition  to  these formal policies, EACC also applied an
informal, discretionary  procedure  referred  to  as "last chance
agreements".  Under this procedure, an employee who  was  subject
to discharge would be given a "last chance" to retain his job, by
entering  into  an agreement to maintain required attendance  and
possibly  take  other   actions  to  address  the  cause  of  his
absenteeism.  Failure to  comply  with the agreement would result
in  discharge.   EACC's  officials testified  that  "last  chance
agreements"   were  employed   when   there   were   "extenuating
circumstances" surrounding the absences.  Examples of extenuating
circumstances offered  by  Respondent  were  situations  where an
employee  had  misunderstood what vacation day requests had  been
disapproved because  he  was  "probably  illiterate"; an employee
misunderstood the consequences of consecutive absences because he
was  "considered  developmentally  slow";  an   employee   had  a
substance  abuse  problem  related  to  the death of his wife and
needed  only  a  short  period  of  employment   to  qualify  for
retirement;  and,  an  employee  misunderstood the pre-scheduling
policy, had vacation days available  to  take and needed only one
more year to qualify for retirement."   EACC  officials testified
that   they   had  grown  increasingly  dissatisfied  with   such
agreements because  they  often  failed to correct the attendance
problem.  Those officials presently  with  the authority to enter
into last chance agreements, have not done so,  but  stated  that
such  an  agreement  would  be  available  in  a particular case,
depending upon the circumstances.

     EACC  records  indicated that approximately 38  last  chance
agreements  had  been entered  into  between  December  14,  1980
through February 4,  1999.  A summary of the agreements indicated
that  the  underlying reason  for  the  disciplinary  action  was
generally absenteeism.   On  seven  occasions the absenteeism was
related to a substance abuse problem.   Sixteen of the agreements
involved  unexcused  absences  on two consecutive  days  and  the
discipline imposed in conjunction  with the last chance agreement
ranged from a 1-day suspension to an  18-day suspension.  In some
instances, it appears that employees were  allowed  to substitute
vacation or personal days in lieu of actual suspension.

     After  Munson was given the notice letter, a second  meeting
was  held to address  his  challenge  to  the  termination.   The
meeting   is   referred   to   as  a  "24-48  hour  meeting"  and
representatives of the union and  management discussed the reason
for  the  proposed  action  and  Munson's   explanation  for  his
absences.  As noted previously, the question  of  whether the two
consecutive  day  provision  applied  was  raised  but  summarily
dismissed.   Munson  testified  that  he  offered  to  substitute
vacation  days  for  his  unexcused  absences  and  requested and
expected  to receive a last chance agreement.  His requests  were
rejected and  he  was  discharged.   Munson testified that Robert
Areford stated that there were no more last chance agreements and
that they were going to make an example  of  him.  Areford denied
making  any  statement  about making an example of  Munson.   The
union  representatives  stated   that   the   decision  would  be
arbitrated, the standard practice.  However, when  EACC attempted
to  schedule  the  arbitration  proceeding the next day,  it  was
advised  that the union had withdrawn  the  arbitration  request.
Frank Peduti testified that the virtual lack of defense of Munson
by the union  representatives  struck  him  as  "odd" and that he
found  the  union's  withdrawal  of  the  arbitration request  "a
shocker."

     Following the conclusion of the 24-48  hour meeting, several
attempts were made to try and "work something out" for Munson, in
order  to  avoid  the  proposed discharge.  The union's  District
President contacted Mr.  Hibbs 3-5 times.  Complainant introduced
a statement by the District  President  wherein  he  related that
Hibbs  had told him that "Munson's case was not about absenteeism
[] there  was  no  way  they would settle the case [-] Munson was
well-known to call the code-a-phone  [and  that]  Munson  was not
well  liked  by himself and others."  Stanley Eddy talked to  Mr.
Peduti in an effort to obtain a second chance for Munson.  He was
informed, however,  that  last  chance  agreements were no longer
available.   Mr. Hibbs testified that he never  made  a  decision
regarding a last chance agreement for Munson because it was never
proposed.  He  also  stated that if it was up to him, there would
be  no more last chance  agreements  because  they  didn't  work.
Throughout  the  discharge  process, specifically the meetings of
December 6 and 9, 1999, neither Munson, who testified that he was
somewhat in shock, nor anyone  on Munson's behalf, raised a claim
of discrimination or otherwise complained  that his discharge was
motivated  by  his  making of safety complaints.   Roger  Hornick
testified that Stanley Eddy and Donald Livengood told him that it
was Munson's grievances  and  safety  complaints that got him "in
trouble"  and that he was "done" even before  he  was  completely
discharged.

**FOOTNOTES**

     [3]  Stanley  Eddy,  Munson's foreman, testified that he was
unaware of that interpretation and initially did not consider the
absences to have been on consecutive  work days, a view that also
may have been held by Munson's other foreman,  Donald  Livengood.
When  Munson  attempted  to  raise  that  issue  at  a subsequent
meeting,  it was dispensed with summarily by both management  and
union representatives.   The  issue  of  whether the considerably
more harsh rule applicable to consecutive  days  rather  than the
single day rule applied in such circumstances had apparently been
arbitrated  in  the  past.  Whether that decision was subject  to
further review is unknown.   There  was  no  explanation  of  why
unexcused  absences  that  occurred  several days apart were more
serious or disruptive because there were  vacation, as opposed to
work, days intervening.

     Following   his   discharge,   Munson   prevailed    in   an
administrative claim for unemployment compensation benefits.  The
administrative law judge who decided the claim held that EACC had
failed  to  prove  that Munson had been discharged for an act  of
misconduct.

     Munson filed a  complaint  of  discrimination  with  MSHA on
January  4, 2000, alleging that he was discharged and was subject
to disparate  treatment  when  he  was  not  given  a last chance
agreement because he had made numerous safety complaints  to  his
immediate  supervisors  and  had  informed management that he had
made code-a-phone complaints to MSHA  when  his safety complaints
were not satisfactorily addressed.

             Findings of Fact and Conclusions of Law

     Section  105(c)(2)  of  the  Act,  30  U.S.C.    815(c)(2),
provides, in pertinent part, that the Secretary shall investigate
a discrimination complaint "and if the Secretary  finds that such
complaint  was  not  frivolously brought, the Commission,  on  an
expedited basis upon application  of  the  Secretary, shall order
the immediate reinstatement of the miner pending  final  order on
the  complaint."  The Commission has established a procedure  for
making  this  determination.   Commission Rule 45(d), 29 C.F.R. 
 2700.45(d), states:

          The  scope  of a hearing  on  an  application  for
     temporary reinstatement  is  limited to a determination
     as  to  whether the miner's complaint  was  frivolously
     brought.   The  burden  of  proof  shall  be  upon  the
     Secretary  to  establish  that  the  complaint  was not
     frivolously brought.  In support of his application for
     temporary  reinstatement,  the Secretary may limit  his
     presentation to the testimony  of the complainant.  The
     respondent shall have an opportunity  to  cross-examine
     any  witnesses called by the Secretary and may  present
     testimony  and  documentary  evidence in support of its
     position that the complaint was frivolously brought.

"The scope of a temporary reinstatement  hearing is narrow, being
limited to a determination by the judge as  to  whether a miner's
discrimination complaint is frivolously brought."   Secretary  on
behalf  of  Price  v.  Jim Walter Resources, Inc., 9 FMSHRC 1305,
1306 (August 1987) aff'd  sub  nom. Jim Walter Resources, Inc. v.
FMSHRC, 920 F.2d 738 (11th Cir. 1990).

     In  adopting  section  105(c),  Congress  indicated  that  a
complaint is not frivolously  brought,  if  it  "appears  to have
merit."   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).
The "not frivolously brought"  standard  has  been equated to the
"reasonable  cause  to  believe"  standard  applicable  in  other
contexts.  Jim Walter Resources, Inc., 920 F.2d at 747; Secretary
on behalf of Bussanich v. Centralia Mining Company, 22 FMSHRC ___
(February 22, 2000) at p. 5.

     In order to establish a prima facie case  of  discrimination
under  Section 105(c) of the Act, a complaining miner  bears  the
burden of  establishing (1) that he engaged in protected activity
and (2) that  the  adverse  action complained of was motivated in
any part by that activity.  Secretary  on  behalf  of  Pasula  v.
Consolidation  Coal  Co.,  2 FMSHRC 2786 (October 1980), rev'd on
other grounds sub nom. Consolidation  Coal  Co.  v. Marshall, 663
F.2d  1211 (3rd Cir. 1981); Secretary on behalf of  Robinette  v.
United  Castle  Coal Co., 3 FMSHRC 803 (April 1981); Secretary on
behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (August
1984); Secretary  on  behalf  of  Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508 (1981), rev'd on other  grounds  sub  nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).

     There  is  some  dispute  as to the extent of the  protected
activity engaged in by Complainant.   However,  there  is  little
question  that  he engaged in such activity and that his activity
was known to managers  at  EACC.  A complaint made to an operator
or  it's  agent  of  "an  alleged  danger  or  safety  or  health
violation" is specifically  described  as protected  activity  in 
 105(c)(1) of  the Act. There is also no  dispute  that  he  was
subjected  to adverse  action,  in  that  he  was  discharged  on
December 6,  1999.   Complainant  has  also offered evidence that
EACC's  managers  were hostile to his complaints  and  that  that
hostility lead to rejection  of  his  offers  of  compromise  and
discharge.  The Commission has frequently acknowledged that it is
very   difficult  to  establish  "a  motivational  nexus  between
protected  activity and the adverse action that is the subject of
the complaint."   Secretary on behalf of Baier v. Durango Gravel,
21  FMSHRC  953,  957   (September   1999).    Consequently,  the
Commission   has  held  that  "(1)  knowledge  of  the  protected
activity; (2) hostility or animus towards the protected activity;
and (3) coincidence  in  time  between the protected activity and
the  adverse  action"  are  all  circumstantial   indications  of
discriminatory intent.  Id.

     While  Munson  claims  that  he  made complaints within  the
"several months" prior to his discharge,  and  introduced limited
evidence  that  EACC  managers  were  aware  of and motivated  by
knowledge of his code-a-phone complaints, he does  not  present a
classic  case  of an operator's immediate adverse reaction  to  a
specific safety  complaint.   He relies on evidence of statements
made  indicating  unlawful  motivation  by  EACC's  managers  and
disparate  treatment.  In essence,  he  contends  that  EACC  was
intent on discharging  him  at  the  first  opportunity  --  that
opportunity  arose  when  he mistakenly took the 23rd of November
off after having missed work  on  the  19th  -  and  that  in the
absence  of  unlawful  motivation,  he would have been allowed to
substitute vacation or personal days  for  his  absences,  and/or
that he would have been given a last chance agreement rather than
being discharged.
     There  is  clearly  enough  evidence to demonstrate that his
claim  of  discrimination  is not frivolous.   He  was  uniformly
acknowledged  to  be a good worker  who  had  no  performance  or
significant attendance problems.  Last chance agreements had been
entered into with at  least  16 other employees who had unexcused
absences for 2 or more consecutively  scheduled work days.  Other
employees  likely  with more serious absenteeism  records[4]  had
also been offered last  chance agreements.  EACC's explanation of
the status of "last chance  agreements" is somewhat inconsistent,
as is its explanation of whether  or  not a last chance agreement
was  considered  for  Munson.   When Stanley  Eddy  attempted  to
intervene and obtain a "second chance" for Munson, he was told by
Mr. Peduti that last chance agreements  were no longer available.
Mr. Hibbs testified that, they were available  on  a case-by-case
basis,  though  if  it  was  up  to him, they would not be.   Mr.
Areford, likewise testified that he  would  "never  say never" to
the availability of last chance agreements.  Mr. Hibbs, who would
have had the initial authority to approve a last chance agreement
for Munson, testified that he never made such a decision  because
he  was  never  asked  to.   He  acknowledged,  however, that the
union's District President had contacted him several  times in an
attempt  to  secure  some  relief for Munson.  Munson, of course,
testified that he specifically  requested a last chance agreement
at  the  meetings held in conjunction  with  his  discharge.   As
Richard Eddy's  statement  notes, it appeared that Munson met all
of the criteria for such an agreement, because he had a good work
record,  little absenteeism and  had  made  a  mistake,  i.e.  he
compared favorably  to those employees who had been afforded last
chance agreements in the past.

     On the other hand, EACC has presented credible evidence that
it's  view  toward  last   chance  agreements  was  changing  for
legitimate business related  reasons and that Mr. Hibbs, who took
over as operations manager in  August  of  1999,  had a decidedly
more negative view towards such agreements than his  predecessor.
Whether  EACC's  failure  to offer Munson a last chance agreement
was motivated, in part by animosity toward his protected activity
and, if so, whether EACC would  have taken the same action in the
absence of unlawful motivation pose more difficult questions than
whether Munson's complaint is frivolous.  These questions cannot,
and should not, be answered at this  stage  of  the  proceedings.
The   investigation  of  Munson's  complaint  has  not  yet  been
concluded  and  no  formal  complaint  of discrimination has been
filed  on  his behalf.  The purpose of a temporary  reinstatement
proceeding is  to determine whether the evidence presented by the
Complainant establishes  that his complaint is not frivolous, not
to   determine  "whether  there   is   sufficient   evidence   of
discrimination  to  justify permanent reinstatement."  Jim Walter
Resources, Inc. 920 F.2d  at  744.   Congress  intended  that the
benefit of the doubt should be with the employee, rather than the
employer, because the employer stands to suffer a lesser loss  in
the  event of an erroneous decision since he retains the services
of the employee until a final decision on the merits is rendered.
Id. 920 F.2d at 748 n.11.

**FOOTNOTES**

     [4]  The  wage  agreement provisions described above provide
that to reach the discharge  point  for  non-consecutive  days of
unexcused  absences,  the  employee  would  have had to have been
designated  as  a  "irregular  worker"  and  then  missed   three
additional work days without a viable excuse.

     I find that Munson's complaint is not entirely without merit
and  conclude  that  his  discrimination  complaint  has not been
frivolously brought.

                              ORDER

     The  Application  for  Temporary  Reinstatement  is GRANTED.
Eastern  Associated Coal Corporation is ORDERED TO REINSTATE  Mr.
Munson to the position that he held immediately prior to December
6, 1999, or  to  a  similar position, at the same rate of pay and
benefits, IMMEDIATELY ON RECEIPT OF THIS DECISION.[5]

                              Michael E. Zielinski
                              Administrative Law Judge

Distribution:

Douglas  N.  White,  Esq.,  Associate  Regional  Solicitor,  U.S.
Department of Labor, 4015 Wilson Boulevard, Suite 516, Arlington,
Virginia 22203 (Certified Mail and facsimile transmittal)

Rebecca Oblak Zuleski,  Esq.,  Furbee,  Amos, Webb & Critchfield,
P.L.L.C.,  5000  Hampton  Center, Suite 4, Morgantown,  WV  26505
(Certified Mail and facsimile transmittal)

/mh

**FOOTNOTES**

     [5]  There was evidence  submitted  at the hearing that EACC
had  restructured  it's  workforce  since  the  time  Munson  was
discharged.  If EACC contends that Munson would  no  longer  have
held  his  former  position  had  he remained employed, it should
attempt to reach agreement with Munson  on  the position to which
he  will  be  reinstated.   If  the parties are unable  to  reach
agreement EACC may file an appropriate motion seeking relief from
this Order.