.
CYPRUS PLATEAU MINING CORP.
September 30, 1998
WEST 97-154-D

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3993/FAX 303-844-5268

                       September 30, 1998

PAMELA BRIDGE PERO,          :  DISCRIMINATION PROCEEDING
          Complainant        :
                             :  Docket No. WEST 97-154-D
          v.                 :  DENV CD 96-20
                             :
CYPRUS PLATEAU MINING CORP., :  Star Point No. 2
          Respondent         :  Mine ID 42-00171

DECISION

Appearances:   L. Zane Gill, Esq., Salt Lake City, Utah,
               for Complainant; Matthew McNulty, Esq., Mara
               Brown, Esq.,  Salt Lake City, Utah, for
               Respondent.

Before:  Judge Cetti

     This proceeding was initiated by a complaint filed by Pamela
Bridge Pero (hereinafter "Pero") under the provisions of Section
105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C.  802 et seq., the "Act," [1]

     Pero initially filed her complaint with the Mine Safety and
Health Administration (MSHA) at its Price, Utah, field office on
September 12, 1996.  In this first complaint Pero  stated she was
employed as a  "Human Resource Assistant" and she listed the
person responsible for the discriminatory action as Louis Grako,
Human Relations Manager, and Keith Seiber, a previous
vice-president and general manager of Cyprus Plateau Mining Corp.
Pero's allegation of the discriminatory action in her complaint
filed with MSHA reads as follows:

          My employment was terminated on September 11, 1996.  I
     feel this was done because over the course of the past
     2-3 months, I have expressed to mine management personnel,
     the fact that dishonest acts have been executed by Mr. Grako
     (under the direction of Mr. Seiber for the past 1 years.)  I
     feel this was retaliation for "whistle blowing."

     MSHA conducted an investigation of Ms. Pero's complaint and
by letter dated March 18, 1997, advised her that on the basis of
the information gathered during the course of its investigation,
a violation of Section 105(c) of the Act had not occurred.  The
letter in pertinent part reads as follows:

          Re: Results of Discrimination Investigation Case
     Number DENV-CD-96-21

          Dear Ms. Pero:

          Your complaint of discrimination under Section 105(c)
          of the Federal Mine Safety and Health Act of 1977 has
          been investigated by a special investigator of the Mine
          Safety and Health Administration (MSHA).   A review
          of the information gathered during the investigation
          has been made.  On the basis of that review, MSHA
          has determined that a violation of Section 105(c) of
          the Act has not occurred.

          If you should disagree with MSHA's determination, you
          have the right to pursue your action and file a
          complaint on your own behalf with the Federal Mine
          Safety and Health Review  Commission.

     Ms. Pero disagreed with MSHA's determination and on May 30,
1997, filed a complaint on her own behalf with the Commission
under 105(c)(3) of the Act.

                          Stipulations

     I accept the following stipulations that the parties entered
into the record.

     1.  Cyprus owns and operates the underground coal mine
known as Star Point No. 2

     2.  Ms. Pero was an employee of Cyprus at the time she
was terminated.

     3.  Ms. Pero was terminated effective September 11,
1996.

     4.  Ms. Pero's rate of compensation at the time she was
terminated are not in dispute.

                               II

Applicable Law

      It is well settled law that a miner seeking to establish a
prima facie case of discrimination under Section 105(c) of the
Act bears the burden of proof  that he engaged in protected
activity and that the adverse action complained of was motivated
in any part by that protected activity.  Secretary on behalf of
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(October 1980) rev'd on grounds, sub nom.  Consolidation Coal
Co., v. Marshall, 663 F2d 1211 (3rd Cir.1981); and Secretary on
behalf of Robinette v. United Coal Co., 3 FMSHRC 803, 817-18
(April 1981).  The operator may rebut the prima facie case by
showing either that no protected activity occurred or that the
adverse action was in no part motivated by the protected
activity.  If an operator cannot rebut the prima facie case in
this manner, it may nevertheless defend affirmatively by proving
that it would have taken the adverse action in any event on the
basis of the miner's unprotected activity alone.  Pasula, supra;
Robinette, supra.  See also Eastern Assoc. Coal Corp. v. FMSHRC,
813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir.1983) (specifically
approving the Commission's Pasula-Robinette test).  Cf. NLRB v.
Transportation Management Corp., 462 U.S. 393, 397-413 (1983)
(approving nearly identical test under National Labor Relations
Act).

                               III

     Ms. Pero was employed by Plateau Mining Corporation in the
Human Resources Department during all relevant times.  She
started as a receptionist and then started working half a day in
Human Resources Department (H.R.) and later commenced working
there full-time with typing and other secretarial and clerical
duties.

     The Human Resources Department consisted of four people.
Pero testified that the people in the Human Relations Department
took "over some of the clerical side of safety."  They also did
typing for the engineers and "ran the switchboard."   Pero in
addition to running the switchboard helped with "the filing and
typing of forms" for on the job injuries and worker's
compensation claims.   Pero states "all the forms had to be sent
to the state of Utah and "only a few had to be sent to MSHA."
Pero testified her clerical duties included typing worker's
compensation forms and typing of some of the MSHA 7000-1 forms.
She states that her immediate supervisor, Louis Grako, instructed
her to contact employees injured on the job to see if it was
possible to get the miner to come back to work without loss time
so as to avoid having to report a lost time injury.  The miners
got a bond each month if they had no loss time injuries during
that month.  Ms. Pero testified that as she talked to her brother
who was the safety director at a rival or "competing mine" and
talked to other safety people, she started "to get a feel that
some of the things that had been past practice weren't right."
She stated she didn't feel comfortable with the practice of
permitting or encouraging injured employees to take a "doctors
day off" because there were medical facilities for them to go to.
On further reading on the matter and talking to her brother who
was the safety director at a competing mine, she determined that
the employees injured on the job should not be taking "a doctors
day off."

       From the time she was hired until she was terminated (11
years) Pero received only satisfactory or better performance
reviews and never received any form of discipline prior to May
1996.  However, she did receive a demotion from Human Resources
Assistant II to Human Resources Assistant I.  Pero attributes
that demotion to the fact that she filed a sexual harassment
complaint against her supervisor, Keith Seiber, who was
Respondents vice-president and general manager (VPGM) at the
time.  Her sexual harassment lawsuit was dismissed by the Federal
District Court in early 1995.  It is claimant's contention that
management's attitude towards her turned negative as a result of
her unsuccessful harassment complaint.  (Tr. 79, 83, 84, Com-
plainant's Brief p. 5).  This was also the perception of her
co-worker Ms. Tucker who testified to the same effect.  Asked by
her counsel on direct examination to give some specifics, Pero
testified as follows:

          If (Keith Seiber) wanted me to do something, he told
     someone else to have me do it.  He directed, I feel, Mr.
     Grako, to put me back on the switchboard, take my work
     away and not give me raises.  That all came into it there.
     Any little thing I did, Lou was writing it down.  He was
     making a big deal out of it, and I felt that came from
     Keith.

          Q.  What was your mind between Mr. Grako and Mr.
Seiber?

          A.  They were bed partners from the beginning.  I
felt Mr. Seiber hired Mr. Grako to go in and clean house
or do whatever with anybody he wanted to get rid of.
     Everyone around the mine felt like he was the hatchet
man.  That's my perception; that's really strongly what I felt.

          Q.  So you perceived what you believed to have what
actions  taken against you to try to take away your job
responsibilities?

          A.  Yes.

          Q.  To freeze your salary?

          A.  Yes.

          Q.  Did you understand why that was happening?

          A.  No. I just felt like--you had to be part of their
team up there.  There were people that were and people that
weren't, and I wasn't.

          Q.  Okay.  When did you first start becoming
concerned about safety issues, things that were being done
that you thought were either illegal or against regulations?
     When did you first start becoming concerned about that?

          A.  I think it took me a while.  I didn't have any
training on the job.  I didn't have anybody tell me what was
legal and what wasn't legal.  I was told to go in and look
at the forms, see how Gayle had done them, and  do them the
same way.  And I think it took me months to realize and
start researching everything that I needed to know before
I felt comfortable with what people had marked on the claims
on the workers' accident reports.  But as I talked to the
safety people and as I called Rhys Llewelyn who wrote the
book and as I talked to my brother, I started to get a
feel that some of the things we were doing that had been
past practice weren't right.  (Tr. 84-85).

     Pero discussed her views about the proper way to fill out
the worker's compensation claims, related forms and reports
for on the job injuries with her supervisor, Mr. Grako.
She testified that sometimes Mr. Grako agreed with her
and sometimes he did not.  At other times he told her he
would have to check further with others and then get back
to her.  (Tr. 91).  Pero also attempted to convey her
concerns about these and other matters with Mr. Grako's
boss, Allen Childs, who was the Respondent's new
vice-president and general manager at the time.  Mr. Childs
testified that Pero talked about alleged illegal reporting but
never mentioned MSHA's 7000-1 form or 7000-1 reporting.  (Tr.
472-479).

     Asked as to the "scope of her complaints" on direct
examination by her counsel Pero testified as follows:

          Q.  What was the scope of the things that you
were complaining about?

          A.  The lack of trust in the department, the way
we were treated by Mr. Grako.  If we did the least little
thing wrong, that was blown into a big, major thing.  We
were reprimanded for things that we didn't think we had
even done.  All of us were feeling that way.

     There were sexual harassment problems, there was
a big list of things. ... .

          Q.  Did you at some point sense that you were getting
in trouble for your complaints?

          A.  Yes, I did.

          Q.  When did you first sense that?

          A.  I think it started happening in April, and I think
what happened was, when we talked to--well, can I give you an
example of one?

          Q.  Certainly.

          A.  One problem I had was with the way we hired our
summer students.  I had been approached by all the people,
saying, "This is no longer a program for everybody's kids.
It's just the salaried employees' kids."

          So, in passing one day, I mentioned it to Mr.
Childs.  So, he asked me to come into his office and we
discussed it.  And, I said, "It has become the salary
students' program.  We don't have any hourly people's
children working."

          He said, "Would you please get me some numbers?

          I got the numbers together, and it was like four
to one.  And, I said, "You know, to be fair to all of
our employees, we need to make this 50/50."

          He said, "I agree."  And he talked to Mr. Grako.

          I think when he started talking to Mr. Grako about
my complaints, Lou (Grako) knew we were talking.  Then,  he
talked about Kim's complaints, and he would go talk to Lou.
He (Grako) knew--he started knowing that we were going above
him to the VPMG with our problems.  That's when I felt him
change.  He got quiet with me; he got very secretive.

          All of us girls noticed him listening outside the
door, and he would stand and stare at us if we talked when
he thought we were talking about something.  We got really
scared;  we all got really scared.  So, what happened was,
we all quit talking because we could see that he was going
to come back on us for what we said.

          And that continued for a month or two period until
I left for my surgery.  But I told Alan repeatedly that I
was scared.

          Q.  So your first contact with Alan Childs about
your concerns was probably early April of 1996?

          A.  Yes.  He quit involving me in all of the
discussions about Worker's Comp.  (Tr. 135-137).

                               IV

Respondent's Three-Step Disciplinary Procedure

     It was undisputed that Cyprus at all relevant times
had in place a progressive employee disciplinary policy.
This procedure is set forth in their employees handbook
given to every employee.  Under this policy there is a
well established three-step disciplinary procedure.
(Tr. 139).  The evidence presented established that Pero
was disciplined and eventually discharged when she
exhausted the Cyprus progressive three-step disciplinary
procedure.

     Step 1 discipline resulted when Pero signed (forged) the
name of her supervisor Louis Grako on two dinner certificates,
one for herself and one for her husband.  The one for
herself may have  been given to her but not the one for
her husband.  This written Step one reminder given to
Pero in May 1996 states in part:

     At the conclusion of our meeting, I advised you that
you were to take the next day off with pay, April 30th,
and come back the next day with a written action plan and
commitment of how you can build trust and credibility with
me and within our department.  This is essential in any
human resources organization.

     Regardless of the possibility that I may have given
you one dinner certificate, the other certificate was
unauthorized and you signed my name to both certificates
without authorization.  I'm requesting that you bring in
all the certificates you have for my review and approval.
Dishonesty, including falsifying of my name and theft of
Company property is a serious violation of our Guidelines
for Appropriate Conduct.

     As we discussed in our meeting, because of your
serious misconduct I'm giving you this documented Veral
Reminder, Step 1 and placing it in your personnel file.

     Pam, you must take immediate measures to improve your
attitude and trust toward the Company and myself.  The
Company will not tolerate this type of behavior on your part
or on the part of any employee.  The Action Plan you
provided me did not address the trust issue but totally
evaded the real issue, I'm directing you to revise your
commitment.  I would like your commitment by Monday, May 6,
1996.

     This letter should make it abundantly clear to you
that if you fail to live up to your commitment and
abide by company rules, you will subject yourself to further
disciplinary action up to and including termination ...

`     On July 25, 1996, Pero was given a Step 2 written reminder
which in pertinent part states:

      On May 6, 1996, you were issued a Verbal Reminder
following a conversation concerning dishonesty, which
involved using my name without authority.  At that time you
had assured me that you would stop distrustful behavior and
be a team player.

     Unfortunately, we had another recent incident where
you failed to properly inform me that you were going to
have surgery and possibly be away from work for an extended
period of time.  In our telephone conversation on June 12th I
had to make assumptions to figure out that you were going to
be gone from work.  I asked you in that same telephone
conversation why you did not let me know ahead of time that
you would be away from work.  Your response was that you
wrote me a note and you thought I would not be back
from Denver until Friday, June 14th.  In our meeting on
June 14th you told me that the reason you wrote me a
letter, dated June 10, 1996 is that I was not available
for you to talk to.  I stressed my dissatisfaction
with the way you handled the whole process.

     On June 26th, after you returned to work we had
another discussion concerning the above mentioned
incident and your failure to use the interview rating
sheets, as I instructed you to do so in the past.
Further, we discussed other work performance problems
such as your failure to change the shot-term (sic)
disability forms, etc.  You explained that you
had let Allen know that you were going to have surgery
two months ago and as far as the interview sheets and
short-term disability forms were concerned you said you
did not have time to complete the interview sheets or
make changes in the STD forms.  I explained that I was
available all during the week of June 3rd and was at work
all day Friday, June 7th and I'm available to you on a
regular basis.  At the conclusion of our meeting, I
advised you that because of the seriousness
of your behavior in failing to give proper notice of
your absence from work and your recent unacceptable work
performance I'm giving you this Written Reminder, Step 2
of our Corrective Action Policy.  Pam, I want to make it
abundantly clear that I will not tolerate this type of
behavior by you or any other employee.

     Further, as I explained to you Human Resources
employees are held to a high standard of honesty and
integrity.  You must take immediate measures to signif-
icantly improve your work  performance and your attitude
toward me, because I am responsible for your performance
and conduct.  If you are going to be away from work for
any period of time which includes qualified Short-Term
or Long-Term Disability you need to follow those
policy guidelines, which include informing me on a regular
          basis of your progress.  This includes periodic
medical reports from your doctor.  This is something you
have not done in the past.  Should you fail to immediately
improve your conduct and performance, you will subject
yourself to further disciplinary action up to and
including termination.  I will no longer accept
your excuses.  Also, it's unfortunate you can not make
a commitment to change.  I encourage you to make a change
and I'm  here to help.

     The third and final disciplinary step which resulted in
termination On September 11, 1996, was a letter signed by Allen
P. Childs, Vice-President, General Manager as follows:

     RE:     Notice of termination of Employment

     Dear Mrs. Pero,

          As you are aware your employment with Cyprus Plateau
     Mining Company ("Cyprus") was terminated effective
     September 11, 1996.  Further, since May 1996 you have
     been disciplined for violation of company rules, and
     have been given both verbal and written warnings
     regarding those violations.  Copies of the written warnings
     were earlier provided to you.  However, as you requested
     on September 11, 1996, copies of the warnings are
     enclosed with this letter.

          The decision to move you to the final step of the
     disciplinary process and terminate your employment at
     Cyprus is based upon several factors, including, without
     limitation, the following:

     1.  In May 1996 you were sent to Denver to be trained in
the new Health and Safety Reporting System ("HSRS").  You
were given very specific instructions regarding implementation
of this program at Cyprus, and you were instructed to inform
Jack Trackemas about how the system should operate.  You
were trained for several days at significant expense to Cyprus
in airfare, meals, lodging and incidentals.

     Unfortunately, you failed to carry out your instructions
to assist in program implementation.  In early July, Mr.
Michael R. Peelish determined that you had not done any work
on the HSRS, nor had you followed up with Mr. Trackemas.
Consequently, the Cyprus program was delayed for approximately
seven weeks.  This type of neglect did not occur at any other
facility.

     2.  Cyprus has also recently learned of unsatisfactory
work performance by you in connection with the completion of
I9 immigration forms.  On or about September 4, 1996, during an
OFCCP site audit, the auditor reviewed the I9 file maintained by
you.  The auditor discovered that a very significant percentage
of the I9s were filled out incompletely and/or improperly.
This could result in substantial fines to Cyprus, and has
already required work time to remedy these numerous mistakes.

     As an experienced human resources representative, you
should be totally familiar with the I9 form, which is relatively
simple to fill out.  It was part of your responsibility in
new employee orientation to insure that these forms were
completely and accurately filled out.  You were specifically
informed by Mr. Grako prior to the OFCCP audit to review
the I9 forms and insure they were in proper order.
Prior to taking leave you evidently enlisted the aid of a
co-employee in order to secure information necessary to
complete certain of these forms.  It appears, however,
that these forms were in such disorder that they could not
be corrected prior to the OFCCP audit.  You were directly
responsible for this matter.

     3.  Cyprus has recently learned that you have made verbal
representations to various individuals, both employees and
non-employees of Cyprus, that your supervisor, Lou Grako and
Cyprus have committed illegal acts in the handling of the workers
compensation claims of Clifford Snow and Alvin Rogers.  You
did not, however, make a written report to this effect nor
did you report such acts to your supervisors.  Nevertheless,
an investigation was undertaken both internally and outside
the company.  Cyprus  intervie wed outside personnel
involved in the administration of its workers compensation
claims, including the claims adjuster and branch manager
of Scott Wetzel Services and outside legal counsel
responsible for handling workers compensation matters.
Cyprus has determined that the claims process employed
in the above-referenced claims was not only consistent
with Utah Law, but in fact one of the claims was
approved by an Administrative Law Judge of the Utah
Industrial Commission.

     Since your duties at Cyprus include claims processing,
your apparent misunderstanding of processing and your
wrongful accusation of mishandling of claims is particularly
troublesome.  More importantly, Cyprus confirmed during this
investigatory process that you made disparaging remarks
about Lou Grako's handling of workers compensation
claims to co-workers and directly to non-employees of
Cyprus, including Scott Wetzell's branch manager.  Your
baseless and wrongful accusations of misconduct on the
part of Mr. Grako appear to be personally motivated,
and your defamatory remarks to non-employees was
completely inappropriate.  Further, your baseless accusations
resulted in a costly, time consuming and totally
unnecessary investigation.

     It is also clear that you are unable and/or unwilling
to work harmoniously with your supervisor, Mr. Lou Grako.
You do not communicate effectively with Mr. Grako, you
have made a concerted effort to undermine his authority
with co-workers and other employees of Cyprus, and you
are desirous of having Mr. Grako terminated or transferred.
While you are certainly free to register complaints
about your supervisor directly to him or, pursuant to
company policy, to the mine manager or others, you evidently
have not been content with the response to complaints and
have continued to disrupt the effective operations of
the human resources department.

     In an effort to preserve your employment, Cyprus
attempted approximately two months ago to find another
position for you within the company.  That effort was
unsuccessful, due largely to the unwillingness of other
supervisors to accept you as an employee in their
departments.  Since that time, Cyprus has received further
information that compels this decision to terminate rather
than transfer your employment.

     You are hereby advised that pursuant to company policy,
you have the right to arbitrate this decision.  A copy of the
relevant portions of Cyprus' policy manual are attached
hereto for your review.

     Moreover, under the open door policy of Cyprus, you may
respond to these allegations by contacting me or as
otherwise indicated by company policy.  I have also
attached hereto a copy of the open door policy as it
relates to this situation.

     A separate notice will be provided to you regarding the
treatment of benefits upon termination of employment.  If
you have any other questions or concerns, please contact
me at your convenience.

                              Very truly yours,

                              /s/
                              Allen P. Childs
                              Vice President, General Manager

cc:  Mr. Lou Grako
     Mr. Don Eckstein
     enclosures

     Mr. Childs testified the termination notice was prepared in
the corporate office in Denver.  Mr. Childs agreed with it and
signed it.  The notice was prepared by Mr. Baron who heads the
Human Relations department in the corporate office and Mr.
Eckstein who went to the mine in question to do an evaluation and
investigation of the allegations.  (Tr. 457).  On the basis of
the evidence before me I find that none of Pero's complaints in
anyway involved her own safety.  Certainly in her original
complaint filed with MSHA there is no mention of any safety
concerns for herself or anyone else.  It only suggests a strong
desire to "blow the whistle" on her supervisor, Lou Grako, whom
she disliked and described in her testimony as a "hatchet man"
who made her and all the employees fear for their jobs.  At the
hearing Pero did make a self serving statement of her concern for
the safety of men injured on the job coming to work to take
advantage of the benefit of the so called "doctors day-off"
practice and continuing to receive full pay for less than a full
days of light or restricted work.  On the record before me I am
unable to credit the sincerity or reasonableness of her safety
concerns.  Nevertheless, I am assuming arguendo that Pero engaged
in protected activity.  I find that the preponderance of the
evidence established that Pero was discharged for her unprotected
activity alone.  The reasons for her discharge stated in the
Notice of Termination of Employment are not a pretext and are
supported by the record.

     In Secretary on behalf  of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508, 2516-2519 (November 1981), rev's on other grounds
sub nom. the Commission stated:

     The Commission and its judges have neither the
statutory charter nor the specialized expertise to sit as a
super grievance or arbitration board meting out industrial
equity.  Cf. Youngstown Mines Corp., 1 FMSHRC 990, 994
(1979).  Once it appears that a proffered business
justification is not  plainly incredible or implausible, a
finding of pretext is inappropriate.  We and our judges
should not substitute for the  operator's business
judgment our views of "good" business practice or on
whether a particular adverse action was "just" or
"wise."  Cf.  NLRB v. Eastern Smelting & Refining Corp., 598
F.2d 666, (1st Cir. 1979). ... .  The question,
however, is not whether such a justification comports
with judge's or our sense of fairness or enlightened
business practices.  Rather, the narrow statutory
question is whether the reason was enough to have
legitimately moved that the operator to have disciplined
the miner.  Cf.  R-W Service System Inc. 243 NLRB 1202,
1203-04 (1979) (articulating an analogous standard).

                    DISCUSSION AND CONCLUSION

     The issue in this case is not whether the adverse
action was just or wise or comported with my sense of
fairness or enlightened business practice.

     The record clearly demonstrates that the reasons
given by the employer for the adverse action were not
"plainly incredible or implausible."  I conclude and
find that the stated reasons for the adverse action
taken by Cyprus were not pretextual.

     While it is assumed for purposes of this decision
that Pero engaged in protected activity, I find that
Cyprus in terminating Pero's employment was motivated by
Pero's unprotected activity and would have taken the
adverse action in any event on the basis of Pero's
unprotected activity alone.  I therefore find that
discharge of Pero was not in violation of Section 105(c)
of the Act.

     The record, as a whole, satisfactorily demonstrates a
business justification for Ms. Pero's discharge.

                        CONCLUSION OF LAW

     1.  Cyprus did not violate Section 105(c) of the Federal
Mine Safety and Health Act of 1977 ("the Act"), 30 U.S.C. 
815(c) in discharging Pero in September 1996.

     2.  Any protected activity that Ms. Pero engaged in did not
in any part motivate her discharge.

     3.  Even if the discharge of Ms. Pero were motivated in
any part by the fact that she engaged in protected activity,
she would have been discharged for unprotected activity alone.

                              ORDER

     This case is DISMISSED.

                               August F. Cetti
                               Administrative Law Judge

Distribution:

L. Zane Gill, Esq., L. ZANE GILL, P.C., 1926 East 3900 South,
Salt Lake City, UT 84124-3262  (Certified Mail)

Matthew F. McNulty, III, Esq., VAN COTT, BAGLEY, CORNWALL &
McCARTHY, 50 South Main St., Suite 1600, Salt Lake City,
UT 84145  (Certified Mail)

/sh

L ZANE GILL, ESQ., L ZANE GILL, PC., 1926 EAST 3900 SOUTH
SALT LAKE CITY UT  84124-3262

MATTHEW F McNULTY, III, ESQ., VAN COTT BAGLEY CORNWALL &
McCARTHY, 50 S MAIN ST #1600,  SALT LAKE CITY UT 84145

***FOOTNOTES***

     [1]  Section 105(c)(1)of the Act provides as follows:

     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,
     representative of miners or applicant for employment in
     any coal or other mine subject to this Act because such
     miner, representative of miners or applicant for
     employment, has filed or made a complaint under
     the related to this Act, including a complaint
     notifying the operator or the operator's agent, or the
     representative of the miners at the coal or other mine
     of an alleged danger or safety or health violation in
     a coal or other mine or because such  miner,
     representative of miners or applicant for employment is
     the subject of medical evaluations and potential
     transfer under a standard published pursuant to section
     101 or because such representative of miners or applicant
     for employment has instituted or caused to be instituted
     any proceedings under or related to this Act or has
     testified or is about to testify in  any such
     proceeding, or because of the exercise by such
     miner, representative or miners or applicant for
     employment on behalf of himself or of any statutory
     right afforded by this Act.