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[DOCID: f:kt200088.wais]

 
EAGLE COAL COMPANY, INC.
March 10, 2000
KENT 2000-88-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                         March 10, 2000

SECRETARY OF LABOR,              : TEMPORARY REINSTATEMENT
     MINE SAFETY AND HEALTH      :   PROCEEDING
     ADMINISTRATION (MSHA),      : Docket No. KENT 2000-88-D
     on behalf of Raymond Ramon, : MSHA Case No. PIKE CD-99-04
               Complainant       :
          v.                     : Mine No. 10
                                 : Mine ID No. 15-17977
EAGLE COAL COMPANY, INC.,        :
               Respondent        :

                 ORDER OF TEMPORARY REINSTATEMENT

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, 
             U.S. Department of Labor, Nashville, Tennessee, on
             behalf of Complainant;
             Michael J. Schmitt, Esq., Wells, Porter, Schmitt &
             Jones, Paintsville, Kentucky, on behalf of 
             Respondent.

Before: Judge Melick

     This  case is before me pursuant to Section 105(c)(2) of the
Federal Mine  Safety  and  Health Act of 1977, 30 U.S.C.  801 et
seq., the "Act," and Commission Rule 45, 29 C.F.R.  2700.45, upon 
the  application  of  the  Secretary  of  Labor  to  temporarily  
reinstate Raymond Roman to his former position  with the  Eagle 
Coal  Company  Inc., (Eagle).  The  Secretary  alleges  in  her 
application that  Mr.  Roman  had been  employed  by  Eagle  as a
continuous miner operator and that on or about August 7, 1999, he
was constructively discharged because  representatives  of  Eagle
believed   he   had   been   cooperating   with  the  Secretary's
investigation  under  Section 110(c) of the Act.   The  Secretary
seeks to have Roman temporarily  reinstated  to  the  position he
held  immediately  before  his  constructive  discharge  or to  a
similar  position  at  the same rate of pay and with the same  or
equivalent duties.

     Section  105(c)(1)  of   the  Act  prohibits  discrimination
against miners for exercising any  protected right under the Act.
The purpose of the protection is to  encourage miners "to play an
active part in the enforcement of the  Act" recognizing that, "if
miners are to be encouraged to be active in matters of safety and
health,   they   must   be   protected   against   any   possible
discrimination  which  they  might  suffer  as  result  of  their
participation."  S. Rep. No. 181, 9th Cong., 1st Sess. 35 (1977),
reprinted  in  Senate  Subcommittee  on Labor, Committee on Human
Resources,  9th  Cong.  2nd  Sess., Legislative  History  of  the
Federal Mine Safety and Health Act of 1977 at 623 (1978).


     The scope of a temporary reinstatement proceeding is narrow,
being limited to a determination  by  the  judge  as to whether a
miner's   discrimination   complaint   is   frivolously  brought.
Secretary  of Labor on behalf of Price v. Jim  Walter  Resources,
Inc., 9 FMSHRC  1305,  1306  (August  1987),  aff'd sub nom.  Jim
Walter Resources Inc. v. FMSHRC, 920 F.2d 738 (11th  Cir.  1990).
It is "not the judge's duty . . . to resolve . . . conflict[s] in
testimony  at  this preliminary stage of proceedings."  Secretary
of Labor on behalf  of Albu v. Chicopee Coal Co., Inc., 21 FMSHRC
717, 719 (July 1999).   At  a temporary reinstatement hearing the
judge must determine "whether the evidence mustered" by the miner
to  date establishes that his  complaint  is  nonfrivolous,"  not
whether there is sufficient evidence of discrimination to justify
permanent  reinstatement."    Jim  Walter  Resources, 920 F.2d at
747.

     The "not frivolously brought" standard  contained in section
105(c)(2) of the Act has been equated with a "reasonable cause to
believe standard."  See Brock v. Roadway Express,  Inc., 481 U.S.
252  (1987).   It  has also been equated with "not insubstantial"
and "not clearly without  merit."  Jim Walter Resources, 920 F.2d
at 747.  The legislative history of the Mine Act defines the "not
frivolously brought standard"  as  whether  a  miner's  complaint
"appears  to have merit."  S. Rep. No. 181, 9th Cong., 1st  Sess.
36-37  (1977),   reprinted   in  Senate  Subcommittee  on  Labor,
Committee o Human Resources, 9th  Cong.,  2nd  Sess.  Legislative
History of the Federal Mine Safety and Health Act of 1977 at 624-
25 (1978).

     At hearings held March 6, 2000, Mr. Roman testified  that he
first began working in coal mines in 1993.  He last worked at the
Eagle  No.  10  Mine  on  August  7,  1999, as a continuous miner
operator.  Over the previous two years  there had been what Roman
characterized as excessive dust at the face  -  - so much so that
he  was unable to see.  As a result, Roman and, at  other  times,
two other  miners  complained to Foreman Tony Armstrong and asked
that a curtain be hung to remedy the problem.  According to Roman
the  curtain was never  hung  and  the  operator  in  fact  never
complied with the requirements to hang curtains.

     Roman  also  maintains  that  after he acknowledged to Eagle
officials  that  he  had met with an investigator  for  the  Mine
Safety and Health Administration  (MSHA) he was harassed.  He was
purportedly told by Armstrong not to  tell  the truth to the MSHA
investigator  about  the  company's  failure to use  dust  pumps.
Armstrong purportedly reminded Roman two  or  three  times a week
that he did not want to go to jail, presumably for dust  sampling
violations.

     Roman  claims  he  was  also harassed by management because,
when the continuous miner was  down  for repairs, he was required
to  perform  such  undesirable tasks as shoveling  the  belt  and
picking up garbage.   Before  his  complaint about excessive dust
and  before the operator learned of his  meeting  with  the  MSHA
investigator  he  claims  he was permitted to assist in repairing
the continuous miner rather  than  shovel  the  belt  or  pick up
garbage.

     Finally,  on  August  7,  1999,  Roman  observed,  after the
"breaker"  kept "knocking out," that there was a wire on the  cat
head  presumably  illegally  and  unsafely  jumping  the  circuit
breaker.   Testifying  that he was tired of the unsafe conditions
and presumably believing, based on past experience, that it would
be futile to complain, he  decided  to quit.  As he left the mine
he told only the outside man, Earl Cook, that he was quitting.

     A  miner's  work  refusal  is protected  by  the  Act  under
conditions  he  reasonably  and  in good  faith  believes  to  be
hazardous.  See Miller v. FMSHRC,  687  F2d 194, 195-96 (7th Cir.
1982).  While the miner must ordinarily communicate  his  reasons
for  a  work  refusal  to the operator, that is not critical when
such notice would be futile.  Secretary v. Northern Coal Co.
4 FMSHRC 126, 133 (1982).   A constructive discharge is protected
under the Act if conditions faced by the miner are so intolerable
that a reasonable person would feel compelled to resign.  Simpson
v. FMSHRC, 842 F.2d 453, 463  (D.C. Cir. 1988).  Recognizing that
it is not the judge's duty to resolve  the conflicts in testimony
at  this preliminary stage of proceedings  and  noting  that  the
Secretary's theories of liability herein are "not clearly without
merit,"  I  find,  based  on  the  evidence  presented,  that the
Secretary's   application  for  temporary  reinstatement  is  not
frivolously brought.

                              ORDER

     Eagle Coal  Company,  Inc., is hereby ordered to immediately
reinstate  Raymond  Roman to the  position  of  continuous  miner
operator or to a similar  position  at  the  same rate of pay and
with  the same or equivalent duties assigned to  him  before  his
departure from Eagle Coal Company, Inc., on August 7, 1999.


                              Gary Melick
                              Administrative Law Judge


Distribution:  (Certified Mail)

Joseph  B.  Luckett, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215

Michael J. Schmitt,  Esq.,  Wells,  Porter,  Schmitt & Jones, 327
Main Street, P.O. Drawer 1767, Paintsville, KY 41240-1767

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