<DOC>
[DOCID: f:ct199724y.wais]

 
F&E ERECTION COMPANY
June 11, 2001
CENT 97-24-DM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          June 11, 2001


BRYCE DOLAN,                   :   DISCRIMINATION PROCEEDING
               Complainant     :
          v.                   :   Docket No. CENT 97-24-DM
                               :   MSHA Case No. SC MD 96-05
F&E ERECTION COMPANY,          :
               Respondent      :   Mine ID No. 41-00230-B96
                               :   Bayer Alumina Plant

                        DECISION ON REMAND

Before: Judge Feldman

     This matter has been remanded for re-analysis of whether the
working  conditions  faced by Bryce Dolan at F&E Erection Company
(F&E) at the time of his  April 16, 1996, resignation constituted
a constructive discharge.   23  FMSHRC  235  (March 2001) ("Dolan
II").   In resolving this issue the Commission has directed me to
apply a two-step inquiry concerning whether "Dolan had engaged in
a  protected work refusal and whether [Dolan] faced  `intolerable
working  conditions.'"  Id. at 240-41 (emphasis in original).  In
its  prior   remand   decision   the  Commission  concluded  that
substantial evidence supported the  conclusion  that Dolan's work
refusal  was  protected.   22  FMSHRC 171, 177-78, 180  (February
2000)  ("Dolan  I").    Consequently,   the  remaining  issue  is
"whether intolerable conditions existed such  that  a  reasonable
miner would have felt compelled to resign."  Id. at 176.  For the
reasons  set forth below, I conclude that, although Dolan's  work
refusal was  protected,  his  discrimination  complaint  must  be
denied  because  his  working  conditions  were  not  objectively
intolerable at the time of his resignation.

     My  initial remand decision determined that Dolan's  working
conditions  were  intolerable  because Dolan was forced to choose
between  continuing to work in the  face  of  a  reasonably  held
perceived  hazard,  i.e.,  lead exposure, or to quit his job.  22
FMSHRC  554, 558-59, (April 2000)  (ALJ).   The  linchpin  of  my
constructive  discharge finding was Dolan's reasonably held fears
cultivated  by  F&E's  failure  to  provide  personal  protective
equipment from late 1994 until March 1996.  As the  Commission  
noted, "Dolan's initial fears in March 1996, at a time  when  F&E 
had provided no personal  protective  gear  to  Dolan's
crew, were reasonable . . . [and] F&E conceded as much at the 
hearing."  22 FMSHRC at 177.

     F&E  knew  Dolan and his crew were removing lead based paint
from  November  1994   through   March  1996  without  protective
equipment or periodic air sampling.   20  FMSHRC  591,  595 (June
1998)  (ALJ).   F&E's  failure  to  provide  personal  protective
equipment created an atmosphere of cynicism and mistrust.[1]   It
was this atmosphere of suspicion that provided a reasonable basis
for  Dolan's  belief  that  the  protective  equipment  belatedly
provided by F&E, as well as its offer of reassignment to non-lead 
abatement  work, were  inadequate  and  insincere.   Under  such 
circumstances, my initial   remand   decision   determined  that  
Dolan's   working conditions  were  so  intolerable   that   a  
reasonable  person, similarly   exposed   to   Dolan's  history  
of  unsafe   working conditions, would have felt compelled to 
resign.[2]  22 FMSHRC at 177-78 ("Dolan I") (applying  the  
"reasonable  miner  in Dolan's position"  test).   Consequently, 
the  initial  remand  decision reinstated  the  grant of Dolan's 
discrimination complaint.  22 FMSHRC at 560.

     In its current remand, the  Commission  rejected my findings
of  a  constructive  discharge  based on Dolan's reasonably  held
fears.   The Commission concluded  my  response  to  its  initial
remand was  a  restatement  of  the  doctrine of a protected work
refusal  that ignored the constructive  discharge  question.   23
FMSHRC at  241.   Consequently,  the  Commission again vacated my
finding  of  discrimination  and  specifically   directed  me  to
determine whether "Dolan faced intolerable working  conditions as
of  the  date of his [April 16, 1996] resignation."  Id.  at  242
citing 22  FMSHRC  at  177.   In  so  doing,  the Commission also
directed that I "consider anew the impact of F&E's offer to 
reassign Dolan  and  other crew members  to non-lead jobs."  23 
FMSHRC at 241.  In resolving  the constructive  discharge  issue, 
consistent with the Commission's instructions,  I have applied a 
"purely  objective  standard"  to view the allegedly  
objectionable  working  conditions  from  the perspective of a 
reasonable employee familiar with lead abatement procedures  who  
had not experienced Dolan's history of hazardous working 
conditions.  22 FMSHRC at 177, n.7.

     The Commission  explained  its  concern regarding collapsing
the protective work refusal question and  the intolerable working
conditions question into a single inquiry.  The Commission
stated:

          [O]nce  a  miner engages in a protected  work
          refusal based  on  his  or  her  good  faith,
          reasonable  belief  in  the  existence  of  a
          hazard,  the  operator  must  take  steps  to
          reasonably  quell  the  miner's  concerns.  A
          situation  could  arise,  however,  where  an
          operator  has  taken  such measures, but  the
          miner  clings to his or  her  belief  in  the
          existence  of  a  hazard  and quits.  In this
          situation,    resorting   to   the    largely
          subjective standard  applied to work refusals
          would  almost  certainly   turn  the  miner's
          quitting  into a constructive  discharge  ---
          and this is  essentially  what our dissenting
          colleagues do in this case.   In other words,
          a miner's continuing belief in a hazard would
          establish a constructive discharge even where
          the operator took reasonable steps to address
          the miner's concern.[3]  At its  worst  under
          this   approach,   a   miner  could  prove  a
          constructive discharge even  where the hazard
          in which he or she believed was  illusory and
          where the operator could not address  his  or
          her  concerns  because  the  hazard  did  not
          exist.

22 FMSHRC at 180 ("Dolan I") (emphasis added).

     Thus,  the  Commission has directed me to determine  whether
Dolan's fears were  illusory, or, whether his fears were based on
objectively intolerable  working  conditions.   In  essence,  the
Commission  has  directed that I determine if an actual hazard in
fact existed at the time of Dolan's April 16, 1996, resignation.

     A discussed below,  the  evidence  fails  to  establish that
Dolan suffers from an identifiable  physical impairment  that  is
related  to  his  lead abatement employment at F&E.  The evidence
also  is  fails  to  demonstrate  that  the  personal  protection
measures taken by F&E when Dolan resigned on April 16, 1996, were
inadequate,  or,  that the  working  conditions  faced  by  Dolan
otherwise were objectively intolerable.


**FOOTNOTES**

     [1]:  F&E's failure to provide personal protective equipment
is disturbing particularly in view of the lead abatement training
that  it had provided  for  its  employees  that  emphasized  the
hazards  of  lead poisoning and the need for personal protection.
(See Comp. Ex. 1).

     [2]:   Having  previously  ignored  Dolan's  potential  lead
exposure, it was incumbent on F&E to regain  Dolan's  confidence.   
For example, F&E could have provided Dolan with the opportunity 
to speak to Health and Safety Management, Inc. (HSM), F&E's 
environmental  consulting firm, to assure Dolan that the personal 
protection equipment  provided was adequate.  In addition, F&E 
could have provided Dolan with an air supplied  full-face 
respirator and/or heavy woven fire  resistant overalls, even 
though the filtered full-face respirator and Tyvek suits may have
been adequate.  It was F&E's "take it or leave it" attitude in 
the face of its past failures that provides the basis for 
concluding  that  F&E  failed to alleviate Dolan's reasonable
fears.  Had F&E taken the reasonable steps necessary to dissipate
Dolan's fears, Dolan's continuing  refusal  to  work  would  have
become  unreasonable  and  unprotected.  Secretary of Labor o/b/o
Bush v. Union Carbide Corp., 5 FMSHRC 993, 998-99 (June 1983).

     [3]:  Unlike the Commission's  hypothetical,  the Commission
has  concluded that F&E failed to address Dolan's concerns  in  a
way that should have alleviated Dolan's fears.  22 FMSHRC at 177-
78 ("Dolan I"); 23 FMSHRC at 238 ("Dolan II"); Gilbert v. FMSHRC,
866 F.2d 1433, 1441 (D.C. Cir. 1989).

                            Discussion

     I.  Dolan's Medical Condition

     As a threshold matter, while Dolan's failure to develop lead
poisoning  would  not  be  dispositive  of  whether  his  working
conditions  were  intolerable,  a  confirmed  diagnosis  of  lead
poisoning,  supported  by  blood  chemistry  or  other  objective
clinical   findings,  would  render  Dolan's  working  conditions
intolerable  per se.  As the Commission noted, "the judge did not
enter any findings  concerning  the  nature  or  cause of Dolan's
disability."  23 FMSHRC at 244 ("Dolan II").  To ensure  that the
record  is  complete,  on  April  20, 2001, following a telephone
conference with the parties, I issued  an  Order requesting Dolan
to provide all pertinent medical records from  April 16, 1996, to
the present, including physical examination findings,  diagnoses,
and  any  objective  clinical  studies  and  laboratory  results,
including but not limited to blood chemistry findings, to support
such diagnoses.  The Order also requested Dolan to provide copies
of  pertinent  Texas  Workers'  Compensation Commission decisions
concerning  his claim for workers'  compensation  benefits.   The
Order established  a  filing  schedule for Dolan's submission and
F&E's reply.[4]

     In a decision dated June 11,  1999, a Hearing Officer of the
Texas Workers' Compensation Commission  determined  that  Dolan's
work   history  included  exposure  to  toxic  chemicals.   After
considering  the  relevant  medical evidence, the hearing officer
concluded Dolan's chemical exposure  resulted  in  a "compensable
injury in the form of an occupational disease on March 27, 1996."
(Dolan's  Resp.  at 143).[5]  The workers' compensation  decision
determined  Dolan  was   disabled   from  August  14,  1996,  and
continuing   through   July   24,   1997.    (Id.   at   143-44).
Significantly,  the  workers'  compensation  decision   does  not
identify any specific occupational disease.

     Dolan's  Workers'  Compensation decision was affirmed  by  a
Texas Workers' Compensation  Commission  Appeals  Panel on August
18, 1999.  (Id. at 145).  In affirming the decision,  the appeals
panel, noting conflicting medical opinions, concluded the hearing
officer  has  broad  discretion  with  respect to the weight  and
credibility to be accorded to evidence.
(Id. at 147).  The appeals panel, citing  previous Texas Workers'
Compensation  Commission  cases, determined the  hearing  officer
"could determine that an injury occurred whether or not there was
objective evidence of injury."  (Id. at 148).

     The  Texas  Workers'  Compensation  Commission  decision  is
relevant evidence.  However, considerations concerning the weight
to  be given to the hearing officer's  decision  and  credibility
findings  therein are analogous to the evidentiary considerations
given to arbitration decisions.  The Commission has long ago held
that:

          The  Hearing  before  the  administrative law
          judge  is  still  de  novo  and  it   is  the
          responsibility  of  the  judge  to  render  a
          decision  in  accordance with his own view of
          the  facts,  not  the  arbitrator.   Arbitral
          findings,  even   those   addressing   issues
          perfectly  congruent  with  those  before the
          judge, are not controlling on the judge.

Secretary of Labor o/b/o David Pasula v. Consolidation  Coal Co.,
2 FMSHRC 2786, 2795 (October 1980).

     In   weighing   the  evidentiary  significance  of  external
adjudicative decisions  it  is important to weigh the adequacy of
the record upon which the decision  is  based.   Id.   While  the
medical  documentation  contains  subjective complaints of muscle
weakness  and  nausea,  it  is noteworthy  that  Dolan's  medical
records lack any significant  objective  laboratory  or  clinical
findings that would support a diagnosis of lead poisoning or 
other chronic illness related to toxicity. In   this  regard,  
there is no evidence of muscle  atrophy, significant impairment 
of sensation, significant cognitive loss,[6] or, abnormal blood 
chemistry findings.

     The  diagnostic  work-up   performed   by  Dolan's  personal
physician  Dr.  Arch  I. Carson shortly after Dolan  resigned  in
April 1996 is particularly instructive.  Dolan was initially seen
by Carson on May 17, 1996, for a variety of subjective complaints
including joint pains,  tremor  and  severe  headache.   (Dolan's
Resp. at 4).  At that time Dolan related a history of toxic  fume
exposure.   (Id. at 5).  Physical examination revealed no obvious
distress, neurological  testing  was unremarkable, and there were
no clinical findings of muscle wasting  or weakness.  (Id. at 6).
All blood and urine tests were within normal limits and showed no
detectible presence of abnormal levels of heavy metals, including
lead, cadmium, arsenic, mercury, and chromium  with the exception
of  a  very  mildly  elevated  plasma chromium level  of  unclear
significance.  Id.  Dr. Carson noted  that  the  mildly  elevated
chromium level was unlikely attributable to workplace exposure in
light of normal values of heavy metals.  (Id. at 6-7).

     Dolan  was  again  seen  by Dr. Carson on July 9, 1996, with
continuing complaints of joint  pains,  numbness, goose bumps and
chills.  (Id. at 7).  Dolan reported that  co-workers had similar
symptoms.[7]   (Id.)   On  July  27,  1996, Dr. Carson  discussed
Dolan's  lab  results  with  him assuring him  that  heavy  metal
toxicity was essentially ruled  out  as  a cause of his symptoms.
(Id.)

     Dolan was again seen on October 15, 1996.  Dr. Carson noted:

          Mr.  Dolan's  symptoms  of  joint  pains  and
          migrating      myalgias     have     improved
          significantly  since   his   last  visit.   I
          believe it is possible for him  to  return to
          work     without     significant    workplace
          restrictions at this time.  I believe it will
          be beneficial for him  to  get  back  into  a
          workplace  environment where he can engage in
          gainful  employment   while   continuing  his
          recovery.   His  response  to  therapy   with
          nonsteroidal   and  anti-inflammatory  agents
          suggests  an  inflammatory   nature   of  his
          symptoms.

(Id.  at  7-8).   Dr. Carson's "presumptive diagnoses"  were:  1.
noxious vapor inhalation injury; 2. metal polymer fume fever; 3. 
chronic  arthritis/arthralgia  NOS;  4.  reactive  anxiety;
5. reactive depression;  and 6. bilateral carpal tunnel syndrome.
(Id. at 33).

     Dolan's blood levels were periodically monitored for lead by
F&E  on  several  occasions.   Dolan's  micrograms  of  lead  per
deciliter of blood were: 10 on August 11, 1995; 6 on
November 17, 1995;  17  on  February  8, 1996; and 8 on April 16,
1996.  These levels were below the 40/30 micrograms per deciliter
of blood considered to be the threshold levels for concern by the
Occupational Safety and Health Administration  (OSHA),  and below
the  50  microgram  per deciliter of blood level that requires  a
worker's removal from  lead  abatement  work.[8]   Given the OSHA
standards  concerning  blood lead level action thresholds,  these
readings are not evidence  of  toxicity.   Moreover,  these blood
level  readings  have  not  been  relied  on by any physician  to
support a specific diagnosis of lead toxicity.

     Finally, the Texas Workers' Compensation Commission assigned
Dr. Stephen Brooks, a consulting physician, to determine the 
nature and extent of Dolan's impairment. (F&E's Resp. at 10-11). 
Dr. Brooks examined Dolan  on  February  12, 1999, for the 
purpose of establishing an impairment  rating  and  the  date  of  
Dolan's  maximum  medical improvement.  Dr. Brooks  summarized  
his examination findings as follows:

          Mr. Dolan complains of numerous symptoms, and
          he states that he feels that he is worsening,
          despite   having   been   removed  from   the
          workplace  environment  for a  period  of  34
          months.   However,  after  interviewing   and
          examining Mr. Dolan and reviewing the records
          available  to  me in this matter, I am unable
          to  find  objective  evidence  of  a  ratable
          disorder other than carpal tunnel syndrome.

(Id. Ex.4).   Dr. Brooks  determined  Dolan  had  a 5% impairment
rating and that Dolan reached his maximum medical improvement  on
June 18, 1998.  (Id.)

     In  the  final  analysis,  Dolan asserts he suffers from job
related toxicity although there is  no material evidence of toxic
substances in his body.  While Dolan  may  sincerely believe that
his physical complaints are the result of his  employment, as the
proponent in this matter, Dolan has failed to satisfy  his burden
of  proof.   Consequently,  in  the absence of a diagnosis of  an
identifiable occupational disease supported by objective clinical
findings,  the  evidence  fails to establish  that  Dolan's  work
conditions on April 16, 1996, were intolerable per se because his
employment was the cause of his disability.

     II.  Dolan's Working Conditions

     Having concluded that  Dolan's  working  conditions were not
per  se  intolerable, the analysis shifts to application  of  the
objective   standard   to   determine   whether  Dolan's  working
conditions as they existed on April 16, 1996,  were  intolerable.
The  objective  standard  is  a  legal standard that is based  on
conduct and perceptions external to a particular person.  Black's
Law Dictionary 1413 (7th ed. 1999).   For example, the reasonable
person standard is considered an objective  standard  because  it
does  not  require  a determination of what a party to a law suit
was  thinking.   Id.   Thus,   applying  the  objective  standard
requires considering whether a reasonably prudent person familiar
with welding and lead abatement  work  precautions  and practices
would have considered Dolan's April 16, 1996, working  conditions
intolerable.   See  Ideal  Cement  Company, 12 FMSHRC 2409,  2415
(November 1990) (application of "reasonable person test" to 
evaluate particular factual settings).

     In  applying  the  reasonable person  test  to  resolve  the
constructive discharge question,  it is important to focus on the
term "intolerable working conditions."    Working  conditions are
"intolerable"  if  they  are  "unbearable"  or  if they are  "not
capable  of  being  borne  or  endured."   Webster's  Third   New
International  Dictionary  1185  (1993  edition).   As  the court
stated in Simpson v. FMSHRC, 842 F.2d 453, 463 (D.C. Cir.  1988),
"the  requirement  that conditions be `intolerable' to support  a
constructive discharge will not easily be met."

     Turning to Dolan's  working  conditions, as previously noted
F&E  does  not  deny  that  Dolan's  employment  conditions  were
potentially hazardous prior to March 1996, when Dolan was burning
lead paint with a torch without any respiratory or other personal
protection  equipment.   However,  the issue  for  resolution  is
whether Dolan's use of a full-face respirator,  Tyvek  suits  and
HEPPA  vacuums  on  April  16,  1996, were inadequate measures to
protect Dolan from lead exposure.

     As a general proposition, OSHA's  permissible exposure limit
(PEL) standard prohibits employee exposure to lead concentrations
in excess of 50 micrograms per cubic meter  (50  g/m3)   of  air
averaged  over  an  8-hour  period.   (29 C.F.R.  1926.62; Comp.
Ex.1).  Employees exposed to lead levels  in  excess  of  the PEL
must  wear  respiratory  protection.  Under the OSHA standard,  a
half-mask air purifying respirator  with  high efficiency filters
protects an employee from exposure levels up  to  500 g/m3.  (29
C.F.R.    1926.62,  Table 1).  Similarly, a full-face  purifying
respirator with high efficiency  filters, or a full-face supplied
air  respirator  operated  in  demand   mode,  provides  employee
protection up to 2,500 g/m3.  Id.

     Thus,  evaluation  of  the effectiveness  of  the  full-face
respirator used by Dolan requires  a  determination of the degree
of exposure.  In response to Dolan's initial  safety  complaints,
Dolan  was  provided with a half-face respirator that, as  noted,
provides protection  to  500  g/m3.  Air sample monitoring taken
from March 20 through March 22,  1996,  in  the vicinity of Dolan
and  his  crew  by  HSM,  reflected that Dolan, while  using  the
cutting torch, was exposed  to averages of 467 g/m3 on March 20,
and 136 g/m3 on March 21, in  excess  of  OSHA's PEL of 50 g/m3
averaged over an 8 hour period.  Other crew members not using the
cutting  torch during this period were exposed  to  impermissible
levels of average lead concentration ranging from 60 g/m3 to 136
g/m3. (Exs. C-3, C-28).

     As a  result of its monitoring results, HSM recommended that
the employee  using  the  cutting torch be furnished with a full-
face respirator with high efficiency filters while the other crew
members  used  half-face  respirators.    Thus,   the   full-face
respirator  provided  to  Dolan,  and  the  half-face respirators
furnished  to  Dolan's  crew members not using a  cutting  torch,
provided protection by a  factor  of approximately five times the
amount of actual exposure.

     In support of his assertion that  the  full-face  respirator
was  inadequate  to  protect him from the hazards of toxic  metal
exposure, Dolan relies  on  the  testimony  of  Robert Miller, an
industrial  hygienist.   While  the  evidence  supports  Miller's
testimony  that  half-face  respirators did not provide  adequate
protection to personnel, such  as  Dolan,  using a cutting torch,
F&E ultimately provided Dolan with a full-face  respirator  prior
to  his  April  16,  1996,  resignation.  Miller's testimony that
respirators  may  leak  due to poor  fit,  or  perspiration,  was
credited at the hearing to  support  Dolan's  asserted good faith
belief  that  a  hazard  continued  to exist.  However,  Miller's
general concern about the effectiveness  of  respirators, a means
of protection commonly used in industry, does  not  overcome  the
fact  that, according to OSHA standards, the full-face respirator
was  adequate   protection   given  Dolan's  level  of  exposure.
Accordingly,  the evidence, when  viewed  objectively,  does  not
reflect  that Dolan's  use  of  a  full-face  respirator  was  an
intolerable working condition.

     Tyvek  suits are flame retardant, thin, disposable coveralls
made  of  spun  olefin.   Miller  opined  that  the  Tyvek  suits
furnished to  Dolan were inadequate protective clothing.  In this
regard, Miller  testified  that  Tyvek suits were not an "optimal
solution" because of a propensity  of  spun  olefin  materials to
develop holes from tears or burns posing a contamination  risk to
clothing  underneath.   22  FMSHRC  178.  Miller recommended fire
resistant overalls as a better solution.   Once  again,  Miller's
testimony supports the good faith nature of Dolan's safety fears,
not  the inappropriateness of Tyvek use.  Fire resistant overalls
woven  with heavy material, as recommended by Miller, undoubtedly
would provide a greater level of protection despite their obvious
non-disposable  disadvantage.   However,  the  issue before me on
this  remand  is  whether Dolan's use of Tyvek suits  constituted
objectively "unbearable"  working  conditions,  not whether there
was  a  more  suitable  alternative.   In  this  regard,  Dolan's
training  instructions concerning safe lead abatement  procedures
included the utilization of Tyvek suits.  (Comp. Ex.1) .

     More importantly,  ALCOA's  Handbook  for  Lead  Activities,
proffered  by  Dolan,  specifically  addresses  the propriety  of
disposable Tyvek protective clothing.  ALCOA's Handbook  for Lead
Activities  applies  to  all outside contractors as well as ALCOA
employees.[9]  ALCOA's handbook states:

          PROTECTIVE CLOTHING

          When  you  are required  to  work  with  lead
          containing material, protective work clothing
          will be provided.   Facilities to change into
          and out of the protective  clothing  will  be
          provided.  Shower
          facilities  for decontamination shall also be
          provided.  The  typical  protective  clothing
          will  be  disposable coveralls such as Tyvecs
          (sic).

(Comp.  Ex. 12) (emphasis  added).   Consequently,  the  evidence
fails to  establish  that  F&E's  reliance on Tyvek overalls as a
means of personal protection is contrary  to  industry standards.
Accordingly, Tyvek use cannot be deemed to be intolerable.

     In  summary,  the evidence fails to support  the  conclusion
that a reasonable person familiar with welding and lead abatement
work would consider  the  use  of  a  full-face respirator, Tyvek
overalls  and  HEPPA  vacuums as a means of  personal  protection
against lead exposure to  be  intolerable working conditions that
fail  to satisfy OSHA, or general  industrial  safety  standards.
Accordingly,  on  balance,  Dolan has failed to demonstrate, by a
preponderance of the evidence,  that he faced intolerable working
conditions at the time of his April 16, 1996, resignation.


     III.  F&E's Reassignment Offer

     Finally,  the  Commission has  directed  that  I  reconsider
Dolan's rejection of  F&E's  offer  of  reassignment  to non-lead
abatement  activities  in  light  of  the  objective constructive
discharge  issue.   As  previously discussed, my  initial  remand
decision credited Dolan's  skepticism concerning the sincerity of
F&E's offer of reassignment  in  view  of Dolan's reasonably held
belief that he had been exposed to unsafe working conditions, and
F&E's failure to quell Dolan's fears.  From  Dolan's perspective,
it   is  not  difficult  to  understand  his  feelings   that   a
reassignment  to  non-lead  work  would  be  temporary  and  only
postpone  his  inevitable  return to conditions he believed to be
unsafe.

     However, the Commission  has  directed  that  I  revisit the
reassignment  issue  using an objective standard to consider  the
overall  conditions  Dolan   faced   at   the   time  of  Dolan's
resignation.  23 FMSHRC 242 ("Dolan II").  Given  F&E's responses
to  Dolan's  safety  complaints  consisting  of  performing   air
sampling,   as  well  as  providing  respirators  and  protective
clothing that  have not been shown to violate industry standards,
applying the reasonable  person  test,  Dolan's refusal to accept
F&E's offer of reassignment was objectively unreasonable.

                              ORDER

     Consistent with the above discussion,  Bryce  Dolan's  April
16,  1996,  work  refusal  was  protected  activity under section
105(c) of the Mine Act.  However, the working conditions faced by
Dolan  at  the time of his April 16, 1996, resignation  were  not
intolerable.   Consequently,  Dolan's  protected work refusal did
not  constitute  a  constructive discharge.   ACCORDINGLY,  Bryce
Dolan's discrimination complaint IS DENIED.




                                 Jerold Feldman
                                 Administrative Law Judge

Distribution:

Errol John Dietze, Esq.,  Dietze  &  Reese, 108 N. Esplande, P.O.
Box 841, Cuero, TX 77954
(Certified Mail)

V'Anne  Bostick  Huser,  Esq.,  P.O. Box 567,  Shiner,  TX  77984
(Certified Mail)

James S. Cheslock, Esq., Cheslock, Deely & Rapp, P.C., 405 N. St.
Mary's Street, Suite 600, San Antonio, TX 78205 (Certified Mail)

\hs

**FOOTNOTES**

     [4]:   Although  the  medical  records  and  Texas  Workers'
Compensation Commission decisions submitted  by  the parties have
not been formally admitted into evidence inasmuch  as  they  have
been  provided  during  this  remand  process, there have been no
objections to their authenticity and they otherwise have not been
objected to.  Therefore, I have considered these documents in the
disposition of this matter.

     [5]:  References to information provided  by Dolan an F&E in
response  to  the  April  20,  2001, Order requesting  additional
information and documentation will be shown as "Dolan's Resp." or
"F&E's Resp." followed by the page number or exhibit.

     [6]:  Dolan currently works  as a substitute teacher for the
Cuero,  Texas  Independent School District.   (Dolan's  Resp.  at
152).

     [7]:  There  is  no  evidence  of  any relevant identifiable
medical condition or diagnosis concerning Dolan's co-workers.

     [8]:   OSHA  standards  reflect  that harmful  effects  from
exposure to lead do not usually occur unless  an employee's blood
level  exceeds 40 micrograms per deciliter (40 g/dl)  of  blood.
The standards  do  not  require  temporary removal from lead work
until  a  worker's  blood  level reaches  50  g/dl.  (29  C.F.R.
1926.62, App. A; Resp. Ex. 1).   Such an employee may resume lead
work  when two consecutive blood tests  indicate  the  employee's
blood level  is at or below 40 g/dl.  Id.  However, the standard
provides that  the  blood  level  of  employees intending to have
children should be maintained below 30 g/dl.  Id.


     [9]:  Dolan was employed by F&E as  a  contract  employee at
ALCOA's Point Comfort Plant.