<DOC>
[DOCID: f:lk9817cd.wais]

 
ARCH OF ILLINOIS
December 23, 1999
LAKE 98-17-D

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006

                        December 23, 1999

GARY D. MORGAN                   :
                                 :
       v.                        : Docket No. LAKE 98-17-D
                                 :
ARCH OF ILLINOIS                 :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
        Commissioners

                             DECISION

BY: Jordan, Chairman; Marks and Beatty, Commissioners

     This case arises  under  the  Federal Mine Safety and Health
Act of 1977, 30 U.S.C.  801 et seq. (1994) ("Mine Act" or "Act"). 
Miner Gary Morgan seeks review of the decision by Administrative 
Law Judge Avram Weisberger dismissing  a discrimination complaint 
against Arch of Illinois ("Arch") brought  pursuant to section 
105(c) of the Act, 30 U.S.C.  815(c).[1] 20 FMSHRC 571 (June 1998) 
(ALJ). For the reasons that follow, we vacate the judge's decision  
and remand for further consideration consistent with this decision.

                                I.

                Factual and Procedural Background

     Arch operates a number of  underground coal mines, including
the Kathleen Mine and Conant Mine  in  southern Illinois.  Id. at
571.  Gary Morgan, a miner with more than  25 years experience in
various jobs, worked at the Kathleen Mine from  1989  until being
laid  off  in  July  1995,  when  the mine closed.  Id.  Morgan's
primary jobs were operating the scoop  and driving a ram car, and
he filled in for other miners at lunch break  or  during overtime
on the roof bolter and continuous miner.  Id.

     During  Morgan's  tenure  at  the  Kathleen  Mine,  he  made
frequent complaints to his immediate foreman, Ben Williams, about
dust  conditions in the mine.  Id.  According to Morgan, Williams
often ignored  his  complaints  because he was busy loading coal.
Id. at 571-72.  In addition to complaining  to  Williams,  Morgan
also  spoke  to  the  manager of the Kathleen Mine, Harry Riddle,
about dust conditions in  the mine.  Id. at 572.  In 1990, Morgan
complained to Riddle about  dust  conditions in the mine, and the
following day there was some improvement,  but  dusty  conditions
later returned.  Id.

     In  1994,  Morgan  observed dust pumps being turned off  and
dust  intake  hoses  being placed  under  miners'  lapels  during
periods of high dust at  the mine.  Id.  Morgan complained to his
supervisor Williams and then  to  his  union safety committeeman,
Jasper  Stirsman, about the way dust sampling  was  done  at  the
Kathleen  mine.  Id.  Stirsman eventually reported the problem to
the local office  of  the  Department  of Labor's Mine Safety and
Health Administration ("MSHA").  Id.  Around  August  1994,  mine
manager  Riddle  met  with Williams' crew, and during the meeting
Morgan  indicated that he  was  the  one  who  had  reported  the
violation.   Id.  at  572,  579.  At the meeting, a confrontation
occurred between Morgan and the  miner  who had reportedly turned
off  the dust pump.  Id. at 572.  Riddle ordered  the  miners  to
take proper  dust  samples  and  sent  them  back  to  work.  Id.
Sometime  after the meeting, Riddle told miners Gerald Selby  and
Dan Helmer  that  Morgan would never work for Arch again.  Id. at
575; Tr. at 147-48, 153-54.

**FOOTNOTES**

     [1]  Section 105(c) of the Act provides, in pertinent part:

          (1)  No person  shall  discharge  or  in  any
          manner   discriminate   against   or  .  .  .
          otherwise interfere with the exercise  of the
          statutory  rights  of  any miner . . . in any
          coal  or  other  mine  subject  to  this  Act
          because such miner . . .  has filed or made a
          complaint  under  or  related  to  this  Act,
          including a complaint notifying  the operator
          or  the operator's agent . . . of an  alleged
          danger  or  safety  or  health violation in a
          coal or other mine, . . .  or  because of the
          exercise by such miner . . . of any statutory
          right afforded by this Act.

          (2) Any miner . . . who believes  that he has
          been    discharged,   interfered   with,   or
          otherwise discriminated against by any person
          in violation  of  this subsection may, within
          60 days after such  violation  occurs, file a
          complaint  with  the Secretary alleging  such
          discrimination.

          (3)   .   .   .   If   the  Secretary,   upon
          investigation, determines that the provisions
          of this subsection have  not  been  violated,
          the complainant shall have the right,  within
          30   days   of   notice  of  the  Secretary's
          determination, to  file  an action in his own
          behalf   before   the  Commission,   charging
          discrimination or interference  in  violation
          of paragraph (1).

     According  to  Stirsman,  at  a  meeting  to  resolve   dust
complaints,  Gene  Sharp,  superintendent  of  the Kathleen Mine,
stated  that  he  knew  that  it  was Morgan who was causing  the
complaints,  even though Stirsman had  not  mentioned  Morgan  by
name. 20 FMSHRC  at  572.    On several occasions, Stirsman heard
Sharp make derogatory remarks about Morgan.  Id.

     In July 1995, Morgan was  laid  off  from  the Kathleen Mine
when it closed for economic reasons.  Id. at 572.   By  agreement
between  Arch  and  United Mine Workers of America ("the Union"),
Morgan's name was placed on a panel list from which Arch selected
miners by seniority for  job  vacancies.   Id.  at  572, 576.  In
September  1996,  Arch  contacted  Morgan  to  take the tests  to
qualify for an inby job at the Conant Mine.  Id. at 572.  Riddle,
Williams,  and  a  number of Kathleen supervisors had  previously
transferred  to  the  Conant  Mine.   Tr.  157-58,  186-88,  296.
Morgan's foreman at the  Kathleen  Mine,  Williams, remarked at a
meeting at the Conant mine held in September that he did not want
Morgan on his crew.  20 FMSHRC at 575.  Pete  Wyckoff, manager of
the Conant Mine, heard Williams say that he did  not  want Morgan
on his crew, but testified that he did not know why.  Id. at 577.
Wyckoff  supervised both Bob Blaylock, supervisor of safety,  and
John Cotter,  a  shift  foreman  at  Conant, who were involved in
testing applicants at the mine.  Id.; Tr. 218, 245, 293.

     Pursuant to the union agreement,  miners  were  required  to
pass a written test before being given a hands-on test to qualify
for  available  jobs.   20  FMSHRC  at 576.  Miners had to pass a
hands-on test on three out of four pieces  of  equipment in order
to qualify for an inby job.  Id.  Nearly every miner  chose to be
tested on the coal hauler, or ram car, and scoop because  each of
those pieces of equipment required minimal levels of skill.   Id.
About  75  to 80 percent of miners chose to be tested on the roof
bolter, which  required  a  higher  skill  level,  while  only 20
percent  chose  to  be  tested  on  the  continuous  miner, which
required the greatest level of skill.  Id.  As a miner  completed
the test on each piece of equipment, a form was completed  by the
supervisor administering the test.  Tr. 250; Pet. Ex. G.

     Morgan   took   and  passed  the  written  test,  which  was
administered by Cotter.   Id.  at  572.  Cotter also administered
the hands-on test to Morgan.  Id.  This included tests to operate
the ram car and scoop, which Morgan  passed.   Id.   Prior to the
hands-on  test on this machinery, Cotter allowed Morgan  time  to
familiarize  himself  with  the  controls  and  practice with the
equipment.  Id.  For the next part of the hands-on  exam,  Morgan
tested on the roof bolter.  Id.  Morgan testified that Cotter did
not  allow  him  time  to  become  familiar  with the controls or
practice.   Id.   As  Morgan  began  bolting, Cotter  told  Kenny
Anheuser, who was assisting Morgan by  preparing  the  roof bolts
and  handing  them  to  Morgan  as  he drilled the holes, to stop
helping  Morgan  because  he  was  being  tested.    Id.   Morgan
completed  the  test  and  asked  Cotter  how he did.  Id. Cotter
responded that he did not evaluate the tests  but merely recorded
information.[2]  Id. at 572-73.  Cotter stated  that he generally
does  not  time  miners  on drilling and bolting because  of  the
varying roof conditions in  the mine.  Tr. 253-54.  For the final
component of the hands-on test,  Cotter asked Morgan if he wished
to be tested on the continuous miner,  and  Morgan  agreed to it.
20 FMSHRC at 573.  As with the roof bolter, Morgan was  not given
time  to  familiarize  himself  with  the equipment.  Id.  Morgan
admittedly performed badly on the test  when  he miscalculated on
the position of the miner and cut too close to the roof.  Id.

     Several days later, Morgan contacted Blaylock, supervisor of
safety at the Conant Mine who was also in charge of testing.  Id.
at  573; Tr. 209.  Blaylock told Morgan that he  had  failed  the
hands-on  test  on  the  roof  bolter.  Id.  Blaylock stated that
Morgan did not change bits, that he had bent a "roof bolt steel,"
and that he had taken too much time.   Id.[3]   Blaylock  further
told  Morgan that, because he failed the test on the roof bolter,
he could  not be considered for an outby position, which required
passing tests  on two of three pieces of equipment, including the
roof bolter.  Id.   Blaylock  concluded  by  telling him that, if
Morgan could enhance his skill on the roof bolter,  he  could  be
retested.   Id.   Subsequently,  a miner with less seniority than
Morgan was awarded an outby position.  Id.

     After Morgan was notified that  he failed the test, he filed
a  grievance with the Union that was ultimately  withdrawn.   Tr.
66,   84-85.    Thereafter,   in   July   1997,  Morgan  filed  a
discrimination complaint with MSHA.  Following  an administrative
investigation, MSHA dismissed Morgan's complaint.   Subsequently,
he filed a discrimination action under section 105(c)(3)  of  the
Mine Act with the Commission, and a hearing was held.

     In  a pretrial order, the judge rejected a motion to dismiss
filed  by  Arch  on  the  grounds  that  Morgan's  discrimination
complaint filed  with MSHA in July 1997 was untimely.  Order at 2
(Feb. 26, 1998).

     On the merits,  the  judge  found  that  Morgan  had clearly
engaged  in protected activities in reporting dust conditions  to
his immediate foreman, Williams, the mine superintendent, Riddle,
and the Union  safety  committeeman, Stirsman.  20 FMSHRC at 578.
The judge also found that  the  record  was clear in showing that
Morgan had suffered an adverse employment  action  when he failed
the hands-on test and was not recalled at the Conant  Mine.   Id.
In  the  judge's  view,  the  main  issue was whether the adverse
action   was   motivated  in  any  part  by  Morgan's   protected
activities.  Id.

     The judge found  that  Morgan had "many confrontations" with
his foreman, Williams, including  arguments  over  dust sampling.
Id.  at  579.   The  judge  concluded  that Williams bore  animus
towards  Morgan, at least in part, because  of  dust  complaints.
Id.  However, the judge also credited Williams' testimony that he
did not tell Cotter, or anyone else, to fail Morgan on the hands-
on testing.  Id.  The judge also found that superintendent Riddle
was aware  of  Morgan's  protected activities and had stated that
Morgan would never work at Arch Minerals again.  Id.

     The  judge  concluded  however,   that   it   had  not  been
established that Cotter had any animus toward Morgan  relating to
his protected activities, or that he even knew about them  before
October 1996, when the adverse actions were taken.  20 FMSHRC  at
581.   The  judge credited Cotter's testimony that no one told or
suggested to  him  to  fail  Morgan, that no one told him to test
Morgan any differently, and that he was not aware that Morgan had
made  dust  complaints  to  MSHA or  to  Arch.   Id.   The  judge
determined  that Morgan had failed  to  prove  that  the  adverse
action taken  by  Arch,  acting  through  Cotter, was in any part
motivated by Morgan's protected activities.  Id.  Accordingly, he
concluded  that  Morgan  failed  to  prove  that   he   had  been
discriminated against in violation of section 105(c) of the  Act.
Id.

II.

Disposition

     Morgan's  primary  argument  on  appeal  is that substantial
evidence does not support the judge's findings  and  conclusions.
PDR at 1.[4]  Morgan notes that the primary issues the  judge had
to  resolve  were  the  weight  to be given to the circumstantial
evidence of discrimination and the  credibility  accorded  to the
testimony  of  Arch's  witnesses.   Id.  at 3.  In support of his
position,  Morgan cites several examples of  disparate  treatment
whereby other  miners who were tested were given time to warm up,
assisted by a helper,  or  allowed a retest.  Id. at 3-4.  Morgan
cites to testimony indicating  that  the  superintendent  at  the
Conant  Mine  knew  of Morgan's dust complaints and the animus of
his foreman.  Id. at  5-7.   Morgan notes inconsistencies in roof
bolting  testing  procedures,  particularly   as  to  timing  and
retesting.    Id.   at   7-8.   Further,  Morgan  contends   that
inconsistencies in Cotter's  testimony  as to why he rated Morgan
unsatisfactory  on the roof bolter are a basis  for  discrediting
Cotter.   Id.  at  11-12.    Finally,  Morgan  argues  that  Arch
improperly withheld during document  production  the  original of
the hands-on test that has white-out over a check mark  in  a box
indicating that Cotter had failed Morgan in running a coal scoop.
Id.  at  16-17.   Morgan  argues that he was prejudiced by Arch's
failure to release the document  prior  to  trial, and that, more
significantly,  the  document  raises  questions  about  Cotter's
truthfulness  and  demonstrates  that Arch  officials  at  Conant
conspired to ensure that Morgan would  fail  the  hands-on  test.
Id. at 15-22.

     In  response, Arch argues that substantial evidence supports
the judge's decision.  Arch Resp. Br. at 5.  Arch emphasizes that
the judge  based  his decision on credibility determinations, and
in particular crediting  of  Cotter, who administered the test to
Morgan, including his denial that he knew anything about Morgan's
dust complaints.  Id. at 5-6.   Arch argues that, while the judge
found that Kathleen foreman Williams  and  superintendent  Riddle
harbored   animus   towards  Morgan  as  a  result  of  his  dust
complaints, the judge credited Cotter, who administered the test,
and Blaylock, who was  in  charge of testing at Conant, that they
did not know of Morgan's complaints  and no one told them to fail
Morgan.  Id. at 5-7.  Thus, Arch concludes  that Morgan failed to
prove a causal connection between his protected  activity and his
failure to be recalled as a result of the test.  Arch  Resp.  Br.
at  8.   Finally,  Arch  contends  that  the  judge  erred in not
dismissing Morgan's complaint as untimely.  Id. at 11-12.

     A.   Timeliness of Morgan's Complaint

     The judge denied Arch's motion to dismiss Morgan's complaint
on  timeliness  grounds, even though it was filed over 10  months
after the adverse  employment  action.   He found that Morgan had
shown justifiable circumstances-lack of counsel  and pursuit of a
grievance over the failure to be recalled-that excused  the  late
filing  and  that  Arch had not shown that it was prejudiced as a
result.  Order at 2 (Feb. 26, 1998).

     Morgan was notified that he failed the test on September 21,
1996.   M.  Resp.  to  Mot.   to   Dismiss  at  3.   During  that
conversation, he informed Blaylock that he would file a grievance
through  the  Union.   Pet. Ex. C at 38.   According  to  Morgan,
Blaylock told him to consider that this was the first step of the
grievance process and his grievance was denied.  Id.  Thereafter,
he raised a complaint with  his  Union  that  apparently led to a
grievance   that   was   later   withdrawn.    Id.;   Tr.  84-85.
Subsequently,  he  filed  a grievance dated February 9, 1997,  in
which he grieved Arch's recall  of a miner with less seniority to
an outby job.  Pet. Ex.C at 115.   That  grievance was eventually
withdrawn.  M. Resp. to Mot. to Dismiss at 3.  Morgan stated that
even  when  his  second grievance was dropped,  he  continued  to
pursue his complaint  through  other  communications  with  union
officials.  Pet. Ex. C at 38.  He maintains that he was told by a
union  official  on  July  15,  1997  that his appeals were of no
avail.  Id.   Morgan filed his discrimination  complaint  on July
29, 1997.

     Morgan argued to the judge that he felt that his rights  had
been  violated,  but  that he had initially pursued his complaint
through the Union's grievance  procedure.   M.  Resp.  to Mot. to
Dismiss  at  4.   Morgan further noted that he did not obtain  an
attorney until sometime  later  in  pursuing  his  claims against
Arch.   Id.  (He filed the discrimination complaint against  Arch
apparently  without the assistance of counsel.)  Arch argues that
Morgan must have been well aware of his rights under the Mine Act
because he filed his complaint without the assistance of counsel.
A. Mot. to Dismiss at 4.

     Commission  case  law  is  clear  that the 60-day period for
filing  a discrimination complaint under  section  105(c)(2),  30
U.S.C.     815(c)(2),   is   not   jurisdictional.    Hollis  v.
Consolidation  Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), aff'd  mem,
750 F.2d 1093 (D.C.  Cir.  1984).   A judge is required to review
the  facts  "on  a case-by-case basis, taking  into  account  the
unique circumstances  of  each  situation"  in order to determine
whether a miner's late filing should be excused.   Id.   Finally,
"a miner's genuine ignorance of applicable time limits may excuse
a late filed discrimination complaint."  Schulte v. Lizza Indus.,
Inc., 6 FMSHRC 8, 13 (Jan. 1984).

     We believe that the judge correctly denied  Arch's motion to
dismiss.   The  delay  in  filing was significant, but not out of
line with delays in other cases  in  which the Commission excused
the  Secretary  from  complying  with  a  filing  deadline.   See
Secretary of Labor on behalf of Hale v. 4-A  Coal  Co.,  8 FMSHRC
905,  905-06 (June 1986) (two year delay); Secretary of Labor  on
behalf  of  Nantz  v.  Nally  & Hamilton Enters., 16 FMSHRC 2208,
2214-15 (Nov. 1994), overruled  on  other  grounds,  Secretary of
Labor on behalf of Poddey v. Tanglewood Energy, Inc.,  18  FMSHRC
1315,  1325  (Aug.  1996)  (four  month  delay).   In  Hale,  the
Secretary delayed filing a discrimination complaint for two years
after  the  miner  contacted MSHA, while it was investigating the
complaint.  8 FMSHRC  at 905-06.  However the Commission noted in
that case that there was no evidence of prejudice to the operator
as a result of the late  filing.  This, the Commission found, was
a primary consideration in  cases  involving late filing.  Id. at
908-09; Nantz, 16 FMSHRC at 2214-15  (failure to meet time limits
in  sections 105(c)(2) and (3) should not  result  in  dismissal,
absent a showing of "material legal prejudice").

     In  the  instant  proceeding, there is no evidence that this
delay by Morgan in filing  his complaint resulted in prejudice to
Arch.[5]  See Boswell v. National  Cement Co., 14 FMSHRC 253, 257
(Feb. 1992) (filing a complaint 12 days  late  was de minimis and
excused where the operator showed no prejudice in  connection  to
the  brief  delay); Lizza Indus., 6 FMSHRC at 13 (31-day delay in
filing excused  where  the  operator  showed  no  prejudice).  In
addition, Morgan proceeded without benefit of counsel.   Morgan's
pursuit of related complaints through the Union indicates that he
was  not  sleeping  on  his  rights.   Accordingly, we affirm the
judge's denial of the motion to dismiss  for  failure  to  timely
file a complaint.

     B.   Morgan's Claim of Discrimination

     The  linchpin  of  the  ALJ's  decision  in this case is his
decision  to  credit  the  testimony of John Cotter,  the  Conant
foreman who was responsible  for testing and failing Morgan.  The
judge concluded that the decision  to  fail  Morgan  was  made by
Cotter  alone  (20  FMSHRC  at  580)  and  that  it  had not been
established  that  Cotter, "the only agent of Arch to have  taken
adverse action against  Morgan,  had  any  animus  toward  Morgan
relating  to  his  protected activities, or even knew of Morgan's
protected activity .  .  .  when the adverse actions were taken."
Id. at 581.

     We have carefully reviewed  this  record,  which  is replete
with  evidence of Arch management's hostility towards Morgan  and
his safety  complaints.   The  evidence  portrays  a  mine  where
seemingly  everyone - except, according to Arch witnesses, Cotter
and Blaylock  -  knew  about  Morgan's protected activity and the
hostility it engendered among his supervisors.   However, when he
made his credibility determination  regarding Cotter's testimony,
there  is no indication that the judge  took  into  account  this
evidence of hostility.

     We  note  at  the  outset  that we are hesitant to disturb a
judge's credibility determinations  on appeal.  We are reluctant,
however, to affirm a credibility determination that is undermined
by record evidence to the contrary that  was  not examined by the
judge.   As  explained in detail below, the cumulative  force  of
this evidence  leads  us  to  the  conclusion  that  the  judge's
credibility findings must be reexamined.

     We begin with the well-established principles of analysis of
a discrimination case under the Mine Act.  A complainant alleging
discrimination  establishes  a  prima  facie  case  of prohibited
discrimination  by  presenting  evidence sufficient to support  a
conclusion that the individual engaged  in protected activity and
that the adverse action complained of was  motivated  in any part
by  that  activity.   Secretary  of Labor on behalf of Pasula  v.
Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on
other grounds sub nom. Consolidation  Coal  Co.  v. Marshall, 663
F.2d  1211  (3d  Cir.  1981);  Secretary  of  Labor on behalf  of
Robinette v. United Castle Coal Co., 3 FMSHRC 803,  817-18  (Apr.
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  protected  activity.
Robinette, 3 FMSHRC at  818  n.20.   If the operator cannot rebut
the prima facie case in this manner, it  nevertheless  may defend
affirmatively  by  proving  that  it  also  was  motivated by the
miner's  unprotected  activity and would have taken  the  adverse
action  for  the unprotected  activity  alone.   Id.  at  817-18;
Pasula, 2 FMSHRC  at 2799-800; see also Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-
Robinette test).

     With regard to  Morgan's prima facie case of discrimination,
the  record  clearly shows  that  he  engaged  in  the  protected
activity of reporting  dust  conditions at the Kathleen Mine, and
the judge so found.  20 FMSHRC  at  578.   Further,  he  was  the
victim  of  adverse employment action when Arch refused to recall
him.  Id.  The  pivotal  issue, then, was whether a nexus existed
between Morgan's protected  activity and Arch's refusal to rehire
him.

     As  the Commission has long  noted,  "[d]irect  evidence  of
motivation  is  rarely  encountered;  more  typically,  the  only
available  evidence is indirect. . . .  `Intent is subjective and
in many cases the discrimination can be proven only by the use of
circumstantial  evidence.'"    Secretary  of  Labor  on behalf of
Chacon  v.  Phelps  Dodge Corp., 3 FMSHRC 2508, 2510 (Nov.  1981)
(quoting NLRB v. Melrose  Processing  Co., 351 F.2d 693, 698 (8th
Cir. 1965)).  Some of the more common circumstantial  indicia  of
discriminatory   intent   include   knowledge  of  the  protected
activity, hostility or animus towards  it,  coincidence  in  time
between  the  adverse  action  and  the  protected  activity, and
disparate  treatment  of  the  complainant.  Chacon, 3 FMSHRC  at
2510.   Although  the  judge acknowledged  these  principles  (20
FMSHRC at 578-79) when he  accepted  Cotter, Riddle and Williams'
testimony that neither told Cotter to fail Morgan, he emphasized,
in crediting each of their statements,  that  there was no direct
evidence  impeaching  or contradicting their testimony.   Id.  at
579-80.  What he failed to consider, however, was that the record
contains  abundant  circumstantial   evidence  that  calls  their
assertions into question.[6]

     We   do   not  lightly  question  the  judge's   credibility
determinations in  this  case.  We recognize the principle that a
judge's credibility determinations  are  entitled to great weight
and may not be overturned lightly.  Farmer  v.  Island Creek Coal
Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh  Coal  Co., 3
FMSHRC  2767,  2770  (Dec.  1981).  The Commission has recognized
that, because the judge "has an opportunity to hear the testimony
and view the witnesses[,] he  [or  she] is ordinarily in the best
position to make a credibility determination."   In  re: Contests
of  Respirable Dust Sample Alteration Citations, 17 FMSHRC  1819,
1878  (Nov.  1995) ("Dust Cases") (quoting Ona Corp. v. NLRB, 729
F.2d 713, 719  (11th  Cir.  1984)),  aff'd  sub nom. Secretary of
Labor  v. Keystone Coal Mining Corp., 151 F.3d  1096  (D.C.  Cir.
1998).    Nonetheless,    we   have  recognized  that  there  are
exceptions  to  this  general  rule.    Id.   at   1881   n.  80.
"Credibility   involves   more   than  a  witness'  demeanor  and
comprehends an overall evaluation  of  testimony  in the light of
its rationality or internal consistency and the manner  which  it
hangs  together  with  other evidence."  9A Charles Alan Wright &
Arthur R. Miller, Federal  Practice and Procedure  2586, at 578-
79 (2d ed. 1995).  Accordingly,  we have determined that one such
exceptional circumstance occurs when  a  credibility  finding  is
contradicted  by  the  record evidence.  Dust Cases, 17 FMSHRC at
1881 n.80.

     In Consolidation Coal  Co.,  11 FMSHRC 966, 974 (June 1989),
for example, the Commission credited  the  testimony of a witness
which the judge had summarily dismissed as "not conclusive."  Id.
We  noted  in that case that "[w]hile we have  previously  stated
that we do not  lightly  overturn  a judge's credibility findings
and credibility resolutions, neither will we affirm such findings
if  there is no evidence or dubious evidence  to  support  them."
Id.

     Here,  Cotter's  assertion that mine management never talked
to him about Morgan is  suspect  in  light  of  other  compelling
record  evidence.   The  record shows, and the judge found,  that
Morgan made numerous dust  complaints  and  that Arch management,
including  his foreman, Williams, and the superintendent  at  the
Kathleen Mine, Riddle, were well aware of his role.  20 FMSHRC at
579.  Further,  the  record  shows that Arch reacted in a hostile
manner  to  Morgan's  protected  activity.    Hostility   towards
protected  activity  -  sometimes  referred  to  as `animus' - is
another   circumstantial   factor   pointing   to  discriminatory
motivation.   Chacon, 3 FMSHRC at 2511 (citing NLRB  v.  Superior
Sales, Inc., 366  F.2d  229, 233 (8th Cir. 1966)).  In this case,
there is no question that  Arch  supervisors at the Kathleen Mine
were angry at Morgan for his vigorous pursuit of dust complaints.
[7]

     Perhaps the most compelling testimony  on this point is that
of  miners Selby and Helmer.  Selby testified  that  a  few  days
after  the August 1994 meeting with mine manager Riddle, he asked
Riddle about  Morgan and the dust samples and Riddle stated "Gary
Morgan will never  work  in  an  other  Arch Minerals mines again
(sic)."  20 FMSHRC at 579.  Helmer corroborated  this  testimony.
Id.  at 579-80.  Riddle, not surprisingly, denied this remarkable
statement of hostility at trial.  Id. at 580.[8]

     The  judge appears to have credited Selby and Helmer on this
point.  Id.  at  580.   However, he failed to factor this finding
into his analysis of whether  Cotter  was  truly oblivious to the
mine manager's hostility towards Morgan.  Specifically,  since he
credited the miners' testimony that Riddle made this remark,  the
judge should have considered this in assessing the credibility of
Riddle's  testimony  that  he  did  not  ask  or  tell Cotter, or
Wyckoff,  his  boss,  to fail Morgan.  See Krispy Kreme  Doughnut
Corp. v. NLRB, 732 F.2d  1288,  1293 (6th Cir. 1984) (finding ALJ
credibility determination unreasonable when witness testimony was
not consistent with his affidavit  nor  with  testimony  of other
witnesses); NLRB v. Mt. Vernon Tel. Corp., 352 F.2d 977, 980 (6th
Cir.    1965)    (questioning    trial   examiner's   credibility
determination, in part, because he  had  not credited the witness
on  other  aspects  of his testimony).  Additionally,  the  judge
discredited both Williams' and Riddle's testimony that Riddle was
not  aware of Morgan's  complaints  about  dust  violations.   20
FMSHRC  at  579.   Although knowledge of protected activity is an
accepted indicia of  discriminatory  intent  (Chacon, 3 FMSHRC at
2510),  the  judge  failed  to  factor  management's  discredited
testimony  regarding  knowledge  into  his subsequent  definitive
credibility determinations.

     The  judge  also  credited the testimony  of  Williams,  the
section foreman, that he  did not tell Cotter to fail Morgan.  20
FMSHRC  at 579.  Although he  acknowledged   Williams'  statement
that he did  not  want Morgan in his unit and found that Williams
had some animus towards  Morgan,  due  in  part  to his protected
activity, he nonetheless accepted Williams' testimony  because it
was  not  directly  contradicted or impeached.  Id.  As with  the
Riddle   credibility  determination,   in   crediting   Williams'
testimony  on this point the judge appears to have failed to look
at the entire  body  of  evidence regarding his hostility towards
Morgan.  Williams' dislike  of  Morgan  was so well known that it
became  the  subject  of  jokes  by  several miners,  who  kidded
Williams about the possibility that Morgan  would be rehired onto
Williams' section.  Tr. 120-21, 170.

     The credibility of the operator's witnesses'  testimony that
none  of them alerted Cotter about Morgan is further  drawn  into
question  by  the  testimony  of the superintendent at the Conant
Mine, Wyckoff.  Wyckoff testified that when he was presented with
a list of panel applicants for  employment at the Conant Mine, he
usually  tried to talk to their ex-supervisors,  and  that  there
were several  ex-Kathleen supervisors at his mine. Tr. 295-96.[9]
He also admitted  that  he  attended  a meeting at which Williams
stated he did not want Morgan on his crew.   Tr. at 296.  Wyckoff
stated, however, that he did not recall making  any  response  or
follow-up to Williams' criticism.  Tr. 296-97.

     Management  witnesses insisted that they barely communicated
to each other about  this  admittedly  assertive miner.  However,
the record reflects that many of these individuals  were  working
the  same  shift at this relatively small mine.  Pet. Ex. C at  5
(mine has approximately  127  underground and 8 surface employees
split into three shifts); Tr. 187  (Riddle worked on A crew); Tr.
243  (Cotter worked on A crew).  The  Commission  has  previously
held that  the small size of a mine supports an inference that an
operator knew  of  a  miner's  protected  activity.  Secretary of
Labor on behalf of Hyles v. All Am. Asphalt,  21 FMSHRC 119, 130-
31 (Feb. 1999).  See also Chauffeurs, Teamsters  &  Help.,  Local
633  v.  NLRB,  509 F.2d 490, 497 (D.C. Cir. 1974); Famet Inc. v.
NLRB, 490 F.2d 293, 295 (9th Cir. 1973).

     We  are  unable   to  determine  whether  this  backdrop  of
knowledge of, and hostility  towards, Morgan's protected Mine Act
activities  was  taken  into  account  when  the  judge  credited
Cotter's testimony that not one  of  these  management  officials
ever  approached  him  about Morgan.  Before a judge credits  any
testimony,  he  must  reconcile   all  record  evidence  that  is
inconsistent  with  that  conclusion.   In  reviewing  a  judge's
credibility determination,  we  may "`refuse to follow [it] where
it conflicts with well supported  and obvious inferences from the
rest of the record.  Such refusal is particularly justified where
the testimony in question is given  by  an interested witness and
relates to his own motives.'"  NLRB v. Elias Bros. Big Boy, Inc.,
327  F.2d  421,  425-26  (6th Cir. 1964) (quoting  NLRB  v.  Pyne
Molding Corp., 226 F.2d 818, 819 (2nd Cir. 1955)).

     As the Fourth Circuit  has  noted,  "administrative findings
based  on  oral  testimony  are  not  sacrosanct."   Breeden   v.
Weinberger,  493  F.  2d  1002, 1010 (4th Cir. 1974).  The record
evidence in this case portrays  a  mine  where  managers  did not
hesitate to express their hostility towards Morgan and his safety
complaints.   We simply cannot affirm a credibility determination
that ignores extensive  record  evidence  that tends to call that
finding  into  question.   In  addition,  we  have  rejected  the
contention  that  a  discharging  supervisor's non-discriminatory
intent shielded the operator from a  finding  of  discrimination,
when  other  involved supervisors demonstrated animosity  towards
the protected activities of the affected miners.  Price v. Vacha,
14  FMSHRC  at  1557.    Although  we  will  overturn  a  judge's
credibility determination only in rare circumstances, we will not
rubberstamp them.  See NLRB  v. Motorola, Inc., 991 F.2d 278 (5th
Cir. 1993).  We agree with the  approach  of the Seventh Circuit,
which has stated:

          there  are  certain  times when a court  must
          overrule  [an ALJ credibility]  determination
          by examining  evidence  in  the  record  that
          detracts  from  the ALJ's findings. [citation
          omitted].  Otherwise  an ALJ would have to be
          upheld  whenever  there  was   the  slightest
          support  in  the record, and our standard  of
          review would be  transformed from substantial
          evidence to scintilla evidence.

 Midwest Stock Exchange, Inc.  v.  NLRB, 635 F.2d 1255, 1263 (7th
Cir. 1980).

     We dispute our dissenting colleagues' accusation that we are
"drawing inferences in the absence of  evidence."   Slip.  op. at
17.   First,  we have deliberately avoided drawing any inferences
from the evidence ourselves.  Instead, we are remanding this case
to the judge.  As the trier of fact, he will examine the evidence
we have highlighted in this opinion.  He will then decide whether
to draw any inferences  concerning Cotter's knowledge of Morgan's
protected activity and the  hostility  of other members of Arch's
hierarchy  towards Morgan.  Nor are we by  any  means  suggesting
that  inferences   may  be  properly  drawn  in  the  absence  of
supporting evidence.   To the contrary, we have identified a wide
array of evidence that we are simply asking the judge to consider
in revisiting his credibility  determinations.   Accordingly,  we
remand  this  matter  to  the  judge,  for  consideration  of the
additional   evidence  cited  above  in  making  his  credibility
determinations.

     The judge's  decision  is flawed in another respect.  Absent
from his decision is any analysis  of  the  hands-on  test  as  a
possible  pretext  for  refusing  to  reinstate Morgan or whether
Morgan was the victim of disparate treatment  in  application  of
the  test.   The judge did not address Morgan's testimony that he
was not given  time  to warm up on the bolter, that he was denied
the assistance of a helper,  and  that  he  did not bend a steel.
See 20 FMSHRC at 572-73.  In contrast, Dennis  Harrison, a former
pit  committeeman at the Kathleen Mine, testified  that  when  he
took the  test  for  an  inby position he was given 25 minutes to
familiarize himself with the  equipment.   Id.  at 573.  When the
test began, a helper prepared the roof bolts and  handed  them to
him.   Id.   The  roof bolter lost power during the test, thereby
preventing him from  completing  the  test.   Id.   After testing
Harrison on the scoop and hauler, Blaylock told him that  he  did
not  have time to further test him on the roof bolter but that he
had passed  and  should  report  to  work.   Id.  Similarly, when
Lester Furlow tested successfully for an inby  position  in 1993,
he  was  given  30 to 45 minutes to warm up.  Id. at 574.  During
the test, he broke  the steel and the clip holding the bit on the
steel which a helper showed him how to change.  Id.  In addition,
Stanley Warden testified  that he helped several individuals when
they were tested on the roof  bolter.   Tr.  130.   Blaylock also
testified that applicants are given a warm up period.  Tr. 215.

     The   judge   also   failed   to   acknowledge   or  address
inconsistencies  in the record as to whether Cotter timed  miners
when they were tested  on  the roof bolter (compare Tr. at 272-74
with Pet. Ex. G at 6-7, and  compare 20 FMSHRC at 573 with id. at
577),  or  Cotter's  inability to  explain  why  he  gave  Morgan
"nonsatisfactory" ratings on aspects of the roof bolter test (Tr.
273-75).  He also failed  to resolve the conflicting testimony of
Morgan (who claimed he had  no  warm-up time or helper, 20 FMSHRC
at 572) and Cotter (who stated that  he  always allowed a warm up
period, and that he always permitted a roof  bolt  helper to help
applicants assemble bolts, Tr. 247, 254[10]).  If the  judge  had
resolved   this  conflict  in  Morgan's  favor,  he  should  have
considered  this  when  assessing  the  credibility  of  Cotter's
testimony that nobody told him to fail Morgan.

     The  judge  could  have  relied  on  Morgan's  testimony  as
evidence of  disparate  treatment (see, e.g., Chacon, 3 FMSHRC at
2512-13),  or  inconsistent  treatment  of  Morgan  versus  other
similarly laid-off  miners who were tested.  Accommodations given
to other miners but not  afforded  to  Morgan  may be evidence of
discriminatory  treatment.  Price and Vacha, 14 FMSHRC  at  1559.
Morgan's pretextual  claim  is  bolstered by the fact that only 3
out of 20 Kathleen mine applicants  failed  the  test  at  Conant
(Pet.  Ex.  C  at  15), and that Morgan had two to three years of
roof bolting experience  at  the  time he was tested.  Tr. 81-84.
The  judge's  apparent  failure to consider  this  evidence  also
constitutes grounds for a  remand.   See  Secretary  of  Labor on
behalf  of  Hyles  v. All Am. Asphalt, 18 FMSHRC 2096, 2102 (Dec.
1996).[11]

     Based on the foregoing,  we  vacate the judge's decision and
remand the case to enable the judge  to  more  fully consider the
record   evidence   that   he  did  not  address.   Mid-Continent
Resources, Inc., 16 FMSHRC 1218,  1222-23  (June  1994) (vacating
and remanding when judge failed to adequately analyze  and  weigh
the relevant testimony of record, make appropriate findings,  and
explain  the reasons for his decision); Commission Rule 69(a), 29
C.F.R.  2700.69(a) (requiring a judge's decision to "include all
findings of fact and conclusions of law, and the reasons or bases
for  them,  on all the material issues of fact, law or discretion
presented by the record").

III.

     For the  foregoing  reasons,  we  vacate the decision of the
administrative  law  judge  and  remand  the   case  for  further
consideration.

                              Mary Lu Jordan, Chairman

                              Marc Lincoln Marks, Commissioner

                              Robert H. Beatty, Commissioner

**FOOTNOTES**

     [2]   At  trial,  Cotter  stated  that,  in  fact,  he  did
determine who passed or failed the test but that he  would not be
the one who notified Morgan of the test results.  Tr. 263.

     [3]   Cotter  testified  at  trial  that  he  failed Morgan
because he was not "smooth" in operating the bolter.  Tr. at 262.

     [4]   Morgan  requested  that  his PDR be accepted  as  his
opening brief.

     [5]  Arch argued in its post-hearing  brief  to  the  judge
that  "general  prejudice  .  .  . should be inferred."  A. Post-
Hearing Br. at 13.

     [6]  Although the absence of  direct contradictory evidence
is relevant, it is not dispositive.   In  fact, "[t]he Commission
has  made  clear  that  such  direct evidence is  rare  and  that
discriminatory intent may be established  by the kind of indirect
evidence involved here."  Secretary of Labor on behalf of Price &
Vacha v. Jim Walter Resources, Inc., 14 FMSHRC  1549, 1555 (Sept.
1992)   (rejecting   contention   that  discrimination  must   be
established  by  direct evidence.)  It  is  not  clear  from  the
judge's emphasis on  "direct" evidence in his decision whether he
recognized this principle.

     [7]   The possibility  that  Arch management was capable of
retaliatory action is supported by the  testimony  of  three Arch
miners   who  testified  under  subpoena.   Testimony  of  Dennis
Harrison,   Tr.  109  ("I'd  like  to  stay  out  of  this,  just
repercussions  possibly  down  the  road."); testimony of Stanley
Warden,  Tr.  128-29  ("I  feel  that  being   here  today  would
jeopardize  my  chances  of  passing  the test for employment.");
testimony of Gerald Selby, Tr. 139-40 ("I'm just afraid for . . .
me standing up for my rights, that - that  they might classify me
as a troublemaker, also.").  See also testimony  of Harrison, Tr.
123-24 ("[Morgan's failing the test] [d]idn't surprise  me.   I-I
felt that [Morgan] was gonna flunk before he even took the test .
. . [A]fter the report of the violations over at Kathleen Mine, I
stated to Gary that he'd never work for another Arch mine.")

     [8]   He  also  denied  it  in  his interview with the MSHA
investigator.  Pet. Ex. C at 10.

     [9]    The record reveals that hostility  towards  Morgan's
safety complaints reached Gene Sharp, the Kathleen superintendent
who stated that  "[d]amn  Morgan  is  the  one that's causing the
complaint," and that Sharp made derogatory remarks  about  Morgan
at a safety committee meeting and in the bathhouse.  Tr. 17,  19.
The  record also revealed that Wyckoff was acquainted with Sharp.
Tr. 300.   Although  the  judge mentioned these incidents, he did
not address their significance.

     [10]  Morgan testified  that  when  he  started  installing
bolts,  the  helper  began to pick them up and hand them to  him,
until Cotter explicitly informed him that he was not permitted to
help Morgan.  Tr. 56.

     [11]  Commissioner  Marks  believes  that, in addition, the
judge should have at least considered the use of white-out on the
original of the test document (Pet. Ex. G at  12),  which was not
produced during discovery and appeared for the first time late at
trial.  Morgan argues (PDR at 17-18) that the white-out indicates
that the test results were altered after he completed  the  test.
The  judge does not address this assertion.  Moreover, the white-
out  must   be   evaluated   with  respect  to  Cotter's  overall
credibility.  See Cotter's testimony  at Tr. 260, 275-76, 285-90.
On  remand,  the white-out issue should be  fully  examined.   In
addition  to  the  white-out,  the  hands-on  test  results  also
reflects the handwriting  of two different persons and the ink of
three different pens.  See  Pet.  Ex.  G at 4, 10.  The record is
silent as to any explanation regarding those occurrences.
Commissioners Riley and Verheggen, dissenting:

     We are not willing to follow the lead  of our colleagues and
take  the extraordinary step of vacating the judge's  credibility
findings  in  this  case.   To  the contrary, we see no basis for
vacating the judge's decision on  the merits.[1]  Accordingly, we
would affirm the judge's determination  that Cotter failed Morgan
on the hands-on test for nondiscriminatory reasons.  We therefore
dissent from Part II.B of our colleagues' opinion.

     We agree with the majority that the  "pivotal issue" in this
case  is  "whether  a  nexus  existed between Morgan's  protected
activity and Arch's refusal to  rehire  him"  after he failed the
hands-on  test.   Slip  op. at 8.  In resolving this  issue,  the
judge credited Cotter's testimony  on  the  basis of his demeanor
and the lack of contradictory record evidence:

               The  decision  to  fail  Morgan  on  the
          bolter  test  was made by Cotter.  I observed
          Cotter's demeanor  and  found  his  testimony
          credible.  Also, I note that the record  does
          not contain any direct evidence impeaching or
          contradicting  his  testimony that he was not
          told by anyone to fail  Morgan,  that  no one
          suggested  that  he  fail Morgan, that no one
          had told him to test Morgan  any  differently
          than  any  other candidate, and that  at  the
          time of the  test he did not know that Morgan
          had made complaints to MSHA and Arch.  I thus
          accept his testimony.

20 FMSHRC at 580.  Although  Morgan  testified  that  he  was the
victim  of  disparate treatment because he was not given time  to
warm up and was  denied  the  help  of  an  assistant,  the judge
credited  Cotter's denial that anyone told him to fail Morgan  or
treat him differently from any other applicant.[2]  Id.

     The  Commission  must  exercise  a  considerable  degree  of
deference when  reviewing  a  judge's credibility determinations.
In re:  Contests of Respirable  Dust Sample Alteration Citations,
17 FMSHRC 1819, 1878 (Nov. 1995),  aff'd  sub  nom.  Secretary of
Labor  v.  Keystone  Coal Mining Corp., 151 F.3d 1096 (D.C.  Cir.
1998).  The Commission  has  noted  that  "the  general rule [is]
that, absent exceptional circumstances, appellate  courts  do not
overturn findings based on credibility resolutions."  Id. at 1881
n.80.  Exceptional circumstances that would warrant overturning a
judge's  credibility  findings  include  where  such findings are
self-contradictory, based on irrational criteria,  or  contradict
the  evidence.   Id.   As  the  Eleventh  Circuit  has explained,
"[s]ince  the  ALJ  has an opportunity to hear the testimony  and
view the witnesses he  is ordinarily in the best position to make
a credibility determination."   Ona  Corp. v. NLRB, 729 F.2d 713,
719 (11th Cir. 1984).  In light of this,  the Ona court concluded
that  "as  a  general  rule courts are bound by  the  credibility
choices of the ALJ, even  if  they  `might  have  made  different
findings had the matter been before [them] . . . de novo.'"   Id.
at  719  (quoting Gulf States Mfrs., Inc. v. NLRB, 579 F.2d 1298,
1329 (5th Cir. 1978)).[3]

     We find  no exceptional circumstances or any other basis for
overturning  the   judge's  credibility  resolutions  here.   The
judge's  findings  are   not   self-contradictory   or  based  on
irrational  criteria.   Furthermore, none of the record  evidence
contradicts  the  judge's  credibility   findings.    Indeed,  in
vacating  these  findings,  the  majority  can point to no single
piece  of evidence that contradicts the findings.   Instead,  the
majority  bases  its  ruling  on  what  it sees as a "backdrop of
knowledge  of,  and hostility towards, Morgan's  protected  . . .
activities" (slip op. at 11), and the inferences it is willing to
draw from this "backdrop."

     In considering  the  evidentiary  effect  of inferences, the
Commission has held that judges may draw inferences  from  record
facts so long as those inferences are "inherently reasonable  and
there  [exists]  a  rational  connection  between the evidentiary
facts and the ultimate fact inferred."  Garden  Creek  Pocahontas
Co., 11 FMSHRC 2148, 2153 (Nov. 1989).  While it is possible that
inferences could have been drawn from the record, it is  for  the
trier  of  fact  to  decide  between  reasonable inferences.  See
generally  9A  Charles Alan Wright & Arthur  R.  Miller,  Federal
Practice and Procedure   2528  (2d  ed. 1995).  In addition, the
effective use of inferences encompasses  the  right  not  to draw
them, as well as to draw them, in the appropriate circumstances.

     Here, in light of direct credited testimony from Cotter (and
other  Conant  officials),  the  judge  did  not  credit  some of
Morgan's  testimony  and  refused to draw certain inferences from
the  record.   The  judge's  rejection  of  inferences  that  are
contravened   by   direct,  credited   (in   several   instances,
uncontradicted) testimony  is  not   a  basis  for  vacating  his
decision.    We  reject  the  majority's  insistence  on  drawing
inferences in  the  absence of evidence,[4] and suggesting to the
judge  that  he draw similar  inferences  that  are  contrary  to
testimony that  he  has seen, heard, and credited.  It is for the
judge in the first instance,  not  the  Commission  on review, to
make  inferences  and  findings  based  on record evidence.   See
Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1139 (May 1984).

     In sum, we are not willing to vacate  the  judge's  explicit
credibility  rulings.  To us, the majority's decision appears  to
be premised upon  an  assumption  that Cotter was not telling the
truth  and  that  the judge was too myopic  to  see  through  his
deceptive testimony  in  order to comprehend what really happened
at the Conant Mine.  Taking  a speculative approach and acting on
little more than a sympathetic  hunch,  our colleagues sweep away
the judge's thorough review of the evidence  and  his credibility
findings, a move that lacks support in the record.   Instead, the
majority relies on "the cumulative force of [the] evidence" (slip
op.  at  7-8)  without  reference  to a single specific piece  of
evidence  that  contradicts the judge's  dispositive  credibility
findings.

**FOOTNOTES**

     [1]  We disagree with Part II.A of the majority's decision,
which states:  "the  judge  correctly  denied  Arch's  motion  to
dismiss"  Morgan's  complaint on timeliness grounds.  Slip op. at
6-7.  The Commission  has held that it "expects a showing of good
cause to explain any . . .  delay"  in  filing  a  complaint  for
discrimination or compensation.  Farmer v. Island Creek Coal Co.,
13  FMSHRC  1226,  1230  (May  1991).  The judge, however, denied
Arch's motion to dismiss Morgan's complaint solely because Morgan
"apparently did not have the benefit of counsel until his present
attorney filed a Notice of Appearance."   Order  at  2  (Feb. 26,
1998).  We find this rationale legally insufficient, and  on this
question,  would  have  remanded  the  case  to  him  for further
analysis consistent with Commission precedent.

     We also disagree with the majority's blanket statement  that
"Morgan's   pursuit  of  related  complaints  through  the  Union
indicates that  he  was not sleeping on his rights."  Slip op. at
7.  We do not believe  that  the  record clearly establishes that
Morgan's grievance had anything to  do  with his rights under the
Mine  Act.   This question, too, we would have  remanded  to  the
judge to determine  whether  Morgan's  grievance was sufficiently
related  to  his  later  complaint  to  the Secretary  so  as  to
constitute, in whole or part, good cause  for his delay in filing
his discrimination complaint.  In light of our decision to affirm
the  judge  on  the  merits, however, any such  remand  would  be
unnecessary.

     [2]  We also note  that  Morgan's  experience  on  the roof
bolter, as that on the continuous miner, was limited to relieving
other  miners when on lunch breaks or on overtime.  20 FMSHRC  at
571.  Morgan  admittedly  failed  the hands-on test on the miner.
Id. at 573.  We further note that Morgan  believed  that  he  was
entitled  to  a job at the Conant Mine, without regard to his job
skills.  Tr. 102.

     [3]  Cf.  Brock v. Roadway Express, Inc., 481 U.S. 252, 266
(1987)  ("Final assessments  of  the  credibility  of  supporting
witnesses  are  appropriately reserved for the administrative law
judge, before whom  an opportunity for complete cross-examination
of opposing witnesses  is  provided.").   See  also  Secretary of
Labor v. Consolidation Coal Co., No. 98-1613, 1999 WL  335777, at
*3  (4th  Cir.  May  27,  1999)  ("`[w]e  must defer to the ALJ's
credibility determinations . . . despite our perception of other,
more  reasonable  conclusions  from  the  evidence,'"  (citations
omitted)) (affirming separate opinion of Commissioners  Riley and
Verheggen in Consolidation Coal Co., 20 FMSHRC 227, 238-42  (Mar.
1998));  Metric Constructors, Inc., 6 FMSHRC 226, 232 (Feb. 1984)
(when  judge's   finding   rests  on  credibility  determination,
Commission will not substitute  its  judgment  for  that of judge
absent clear indication of error), aff'd, 766 F.2d 469 (11th Cir.
1985).

     [4]  Although our colleagues "dispute" this point (slip op.
at  12),  their  opinion  speaks  for itself.  For example,  they
characterize  as  "suspect"  Cotter's   testimony  that  no  Arch
management official ever approached him about  Morgan.   Slip op.
at 9.  The inference they appear to believe and seek to have  the
judge  consider  is  that  Cotter  somehow  knew  about  Morgan's
protected activity, notwithstanding the ample and direct evidence
to the contrary.

     The Commission cannot, and reviewing courts will not, ignore
the  fact  that  the  trial  judge  alone was able to observe the
demeanor of Cotter and others on the  stand, and is thus uniquely
situated to evaluate the credibility of  witnesses.  We fear that
under the majority's emotional approach, the  Commission  will be
all  too  ready  to  second  guess  its  judges  in future cases,
substituting  its  judgment for that of a judge.  To  avoid  such
confusion and disorder, we would affirm the judge's decision here
because it is supported by substantial, credible evidence.[5]

                              James C. Riley, Commissioner

                              Theodore F. Verheggen, Commissioner

Distribution

Marco M. Rajkovich, Jr., Esq.
Robert I. Cusick, Esq.
Julie M. O'Daniel, Esq.
Wyatt, Tarrant & Combs
250 West Main St., Suite 1700
Lexington, KY 40507

Leonard D. Rice
Attorney at Law
404 South Washington Street
Du Quoin, IL 62832

Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

**FOOTNOTES**

     [5]   In light  of  our  decision,  we  need  not  reach the
questions  raised  by the majority regarding whether the hands-on
test was "a possible  pretext for refusing to reinstate Morgan or
whether  Morgan  was  the   victim   of  disparate  treatment  in
application of the test."  Slip op. at 12.