<DOC>
[DOCID: f:l96146dm.wais]

 
AKZO NOBEL SALT, INC.
March 28, 1997
LAKE 96-146-DM


          FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                           March 28, 1997

 JAMES C. TYSAR,               :    DISCRIMINATION PROCEEDING
           Complainant         :
                               :
           v.                  :    Docket No. LAKE 96-146-DM
                               :    NC MD 96-04
 AKZO NOBEL SALT, INC.,        :
           Respondent          :    Cleveland Mine
                               :    Mine ID No. 33-01994

                              DECISION

 Appearances:   James C. Tysar, Parma, Ohio, pro se, Complainant;
                Mark N. Savit, Esq., and Ruth L. Ramsey, Esq.,
                Patton  Boggs,  L.L.P.,  Washington, D.C., for the
                Respondent.

Before:Judge Koutras

                    Statement of the Proceeding

      This proceeding concerns a discrimination complaint filed by
 the complainant against the respondent pursuant to section 105(c)
 of  the  Federal  Mine  Safety  and  Health  Act  of  1977.   The
 complainant filed an initial complaint with the  U.S.  Department
 of  Labor, Mine Safety and Health (MSHA), and after investigating
 the complaint,  MSHA informed the complainant of its decision not
 to pursue the matter  further.   The  complainant  then filed his
 complaint pro se with the Commission.

      The complainant has been employed by the respondent for over
 nine  years,  and  at  the  time his complaint was filed  he  was
 employed  as  a laborer.  The complainant  alleges  that  he  was
 discriminated against  and  suspended from work for three days on
 October  6,  1995,  because  of his  refusal  to  perform  a  job
 assignment  in a mine area that  he  believed  was  unsafe.   The
 complainant  seeks   to   recover  back  pay  for  the  three-day
 suspension, two days of missed  overtime,  and expungement of the
 suspension action from his personnel records.

      The  respondent  filed  a  timely  answer to  the  complaint
 denying  any  discrimination  and taking the  position  that  the
 complainant  was suspended for insubordination  for  refusing  to
 carry out a work assignment and order by his supervisory foreman.
 A hearing was  held  in Cleveland, Ohio, and the parties appeared
 and participated fully  therein.   The parties filed post hearing
 briefs, and I have considered their arguments in the course of my
 adjudication of this matter.

                               Issue

      The  issue presented in this case  is  whether  or  not  the
 respondent  discriminated  against  the complainant by suspending
 him for three days after he refused to carry out a work
 assignment and order by his supervisor to perform a job task that
 the complainant believed was unsafe.

           Applicable Statutory and Regulatory Provisions

      1.   The Federal Mine Safety and  Health  Act  of  1977,  30
           U.S.C.  301 et seq.

      2.   Sections  105(c)(1),  (2)  and  (3) of the Federal Mine
           Safety and Health Act of 1977, 30  U.S.C.   815(c)(1),
           and (2) and (3).

      3.   Commission Rules, 29 C.F.R.  2700.1, et seq.

                             Background

      The record reflects that on October 6, 1995, Mr.  Tysar  and
 co-worker  Christopher  Brown  were  working  as  laborers on the
 midnight  shift  on the second floor of the mine warehouse  under
 the supervision of  Surface  Shipping  Production  Foreman  James
 Mook.   Mr.  Mook  assigned them the task of cleaning (shoveling)
 salt off the CFC scalping  screen  feed  conveyor belt located on
 the  second floor.  There is a dispute as to  whether  they  were
 assigned  to  clean  the  entire  belt line or whether their work
 assignment was confined to only the belt tailpiece area.

      The   belt  in  question  is  an  elevated   inclined   belt
 approximately 20 feet long and 3 to 4 feet wide, that passes over
 and in front of an elevator that opens directly beneath a portion
 of the belt.  The belt section to the left of the elevator as one
 is directly  facing  the  elevator is approximately 13 feet above
 the  floor,  and the tail piece  section  to  the  right  of  the
 elevator is approximately  10  feet  above the floor, and 6 to 10
 feet from the elevator.

      The assigned cleaning task called  for Mr. Brown, the junior
 laborer, to shovel the belt from an elevated "man basket" secured
 to the end of a forklift, with Mr. Tysar  operating the forklift.
 The  belt was de-energized and locked out, and  Mr.  Brown  would
 have performed  the  cleaning  from  the  man  basket  which  was
 equipped with hand rails and a locked gate.  He was also provided
 with a safety belt and lanyard.

      After  securing  the  man  basket to the forklift, and while
 preparing to move the forklift into  position  to  begin cleaning
 the belt, a maintenance vehicle with two mechanics in  it  exited
 the elevator under the overhead belt line and passed by Mr. Tysar
 and  Mr.  Brown.   Mr. Tysar contacted Mr. Mook and expressed his
 concern that he and  Mr.  Brown  might  be  at  risk if they were
 cleaning  the  belt  area  in front of the elevator doors  and  a
 vehicle exited and struck the forklift while Mr. Brown was in the
 raised man basket.

      Mr. Mook responded to Mr. Tysar's concern, and in the course
 of their discussion at the job scene, Mr. Tysar informed Mr. Mook
 that he wanted the elevator shut down and taped off
 while  he and Mr. Brown cleaned  the  belt  in  order  to  insure
 against  another vehicle driving out of the elevator and possibly
 striking the  forklift  while  Mr. Brown was suspended in the air
 cleaning the belt in front of the elevator doors.

      Mr. Mook maintained that his  belt  cleaning  assignment was
 confined  to  the belt tailpiece area in order to facilitate  the
 repair and replacement  of  a  belt wiper, and that Mr. Tysar and
 Mr. Brown would have no reason to  be  in  front  of the elevator
 doors  while  cleaning  the tailpiece.  Mr. Tysar and  Mr.  Brown
 maintained that they were assigned to clean the entire belt line,
 and that at some point while  doing  this job, the forklift would
 be parked in front of the elevator doors.

      Mr. Tysar estimated that the belt  cleaning  job  would take
 less than an hour, and
 Mr.  Mook  rejected  his  request that the belt he shut down  and
 taped off while he and Mr.  Brown  cleaned  the  belt.   Mr. Mook
 indicated  that  the  elevator  was  needed to bring in parts and
 supplies,  and  he  maintained  that  he offered  Mr.  Tysar  two
 alternatives to shutting down and taping the elevator, namely, an
 offer to inform the other employees of the work being done by Mr.
 Tysar  and Mr. Brown, and a suggestion that  Mr.  Tysar  position
 himself  next  to  the  forklift,  with the brake set, so that he
 could observe the elevator and warn  anyone  exiting  that he and
 Mr. Brown were working in the area.  Mr. Tysar denies that  these
 offers  were  made,  and  even if they were, he indicated that he
 would reject them because he believed that disabling the elevator
 and taping off the area was the only acceptable means of insuring
 his safety.  Mr. Mook then  gave Mr. Tysar and Mr. Brown a direct
 order  to  proceed  with  their job  assignment,  and  when  they
 refused, Mr. Mook suspended  them.  They subsequently filed their
 complaints,  and Mr. Brown withdrew  his complaint shortly before
 the scheduled hearing.  His case was dismissed.

                Complainant's Testimony and Evidence

      James C. Tysar, the complainant in  this  matter,  testified
 that  he  is  employed  by  the respondent as a laborer, has been
 employed by the company for over  nine  years,  and  serves  as a
 safety  committeeman.   He  stated that although he and Mr. Brown
 refused an order by Mr. Mook  to do the assigned job, his refusal
 was based on a safety concern and  Mr.  Mook's  refusal  to grant
 his request to make his work area safe by taking the elevator out
 of service.

      Mr. Tysar stated that he suggested to Mr. Mook that he  call
 the  plant  safety  director,  but  instead, Mr. Brian Bonjack, a
 maintenance  foreman,  appeared  on  the  scene,  and  Mr.  Tysar
 believed that Mr. Bonjack "was called  as  a  witness because Mr.
 Mook intended to suspend us" (Tr. 23).  Mr. Tysar stated that Mr.
 Bonjack had no knowledge of the events leading to his suspension,
 and was there to witness his confrontation with  Mr.  Mook.   Mr.
 Tysar  explained  his  work  assignment  and  safety  concerns as
 follows at (Tr. 49-51):


                THE  WITNESS:   All right.  My foreman, Jim  Mook,
           gave myself and  Mr. Chris Brown  a job  to do  on  the 
                   second floor of the warehouse.  Our job was  to - - my 
                   job was to operate a  forklift  with  Mr.  Brown in  a  
                   caged-in platform which was  attached  to  the forks of
                   the fork lift. I was  supposed  to  raise him  up  into
                   the air to the level of the conveyor belt, which we were
                   told  to  clean  the decking on; Mr. Brown was  told to 
                   clean the decking.

                This  particular  conveyor  belt runs on an angle,
           about a 45-degree angle directly above  - - well, three
           feet  out  and  directly above the doors of  a  freight
           elevator.

                As we were getting  into  position to do this job,
           the doors of the elevator opened  up  and a maintenance
           vehicle pulled out of the elevator doors  at  a  pretty
           good rate of speed.

                So,  I contacted Mr. Mook, and I explained to  him
           the situation  as  far  as  our concern for our safety,
           being getting bumped into or  knocked  over  while  Mr.
           Brown  was up in the air.  And I requested that he tape
           off the  elevator  doors  - - caution tape the elevator
           doors on the first floor - - so that nobody gets on the
           elevator  and gets off on the  second  floor.   I  also
           suggested that  he  might put a "Do Not Operate" tag on
           the button of the elevator  so  that  nobody pushes the
           buttons to operate the elevator.

                Mr. Mook decided that it would be  better  that  I
           put  Mr.  Brown  up  in  the air on a platform, set the
           emergency brake and go stand  by  the  little window in
           the door and look to see if the elevator is coming up.

                JUDGE KOUTRAS:  The door of the elevator?

                THE WITNESS:  Yes.

                JUDGE  KOUTRAS:   The  window in the door  of  the
                elevator is what he expected you to do?

                THE WITNESS:  Yes.  But  that scenario there would
                have put me directly under  where  Mr.  Brown  was
                working.   If  Mr. Brown dropped a shovel, I could
                get hit with a shovel.

                I just thought that  the  best course of action to
                make  our  work  area  safe  was  to  disable  the
                elevator  or  to  prevent people  from  using  the
                elevator while we were doing this job.


     Mr. Tysar further explained his safety concerns as follows at
     (Tr. 25):

                JUDGE KOUTRAS:  How would the forklift get bumped?

                THE WITNESS:  Because  our  job  was to clean belt
                decking, which the belt decking ran  over  the top
                of the elevator doors.

                JUDGE KOUTRAS:  You felt that that would be bumped
                by   a  piece  of  equipment  coming  out  of  the
                elevator?

                THE WITNESS:   I  felt  that it could be.  I'm not
                saying that it would be.   I'm  saying  that there
                was  a  very  good  probability.   The maintenance
                people were using the elevator at the  time.   The
                elevator  is  always in use.  Electricians use it,
                mechanics use it, people come and go.

     Mr. Tysar believed it would  have  taken  Mr.  Mook  10 to 15
     minutes  to tape off the elevator, and the belt cleaning  job
     would not  have  taken  more  than  an  hour  (Tr.  26).   He
     confirmed  that  he  told  Mr. Mook that he refused to do the
     work out of concern for his personal safety (Tr. 34).  He and
     Mr. Brown were then escorted off company property, and he was
     suspended for three days, and  Mr.  Brown  was  suspended for
     only  one day because he had a better work record  (Tr.  35).
     Mr. Tysar  confirmed that he filed a grievance with his union
     regarding his  suspension,  but  did  not prevail (Tr. 42-44;
     303-304).

     Mr. Tysar believed that the best course of action to make his
     work area safe was to disable the elevator  or prevent people
     from using it while he and Mr. Brown were working  (Tr.  51).
     He  explained  that  Mr. Brown was expected to clean hardened
     salt buildup on the belt  decking  in between the rollers and
     on the belt bottom, and they would be  positioned in front of
     the conveyor that was ten feet off the floor  on  a 45-degree
     angle directly above the elevator door (Tr. 53).

     Mr. Tysar stated that in response to his complaint,  Mr. Mook
     suggested that he lift
     Mr.  Brown  up  in the air, set the forklift park brake,  and
     then get off the  forklift and look through the window of the
     elevator door (Tr.  54).   Mr.  Tysar believed he would be at
     risk if the forklift tipped over,  depending  on the size and
     weight  of  the vehicle leaving the elevator, and  Mr.  Brown
     could have dropped  a  shovel or shoveled salt down on him if
     he were standing under the  belt looking through the elevator
     window.  He further believed  that Mr. Brown would be at risk
     if he were knocked out of the forklift basket if the forklift
     tipped over (Tr. 54).

     Mr. Tysar confirmed that his confrontation with Mr. Mook took
     place while he and
     Mr. Brown were preparing to clean  the belt.  Mr. Brown would
     have been on the forklift cleaning the  belt  decking  with a
     shovel.   The  platform  had  rails  around it, with a locked
     gate, and the salt would be shoveled into  a  dumpster  below
     the belt (Tr. 55-56).

     Mr.  Tysar  confirmed  that that he disagreed with Mr. Mook's
     suggestion that he look through the elevator window and leave
     the  forklift  in  a locked  position  while  Mr.  Brown  was
     cleaning, and there  was  no  overhead protection between the
     bottom of the belt and the floor  level  (Tr. 57).  He stated
     that he had no idea what Mr. Mook expected  of  him  once  he
     looked  through  the  elevator  window (Tr. 58).  He believed
     that Mr. Mook should have responded  to  his  complaint  in a
     diplomatic   manner   rather   then  punishing  him  for  his
     complaint, and he stated as follows at (Tr. 59, 61-62):

                JUDGE KOUTRAS:  So, that was the dispute?

                THE WITNESS:  Yes, that was the dispute.

                JUDGE KOUTRAS:  The foreman said, "No, we're going
                to do it this way," and you said, "No, we're going
                to do it my way."  And that was the end of it.

                THE WITNESS:  Yes, I saw it as a power struggle.

                * * * *

                THE WITNESS:  In some  cases when some people that
                are given a position with power or authority, they
                handle it well and some people - -

                JUDGE  KOUTRAS:   How do you  think  someone  else
                would have handled that situation?

                THE  WITNESS:   Well,   everybody  has  their  own
                personalities and dispositions.   What  I'm saying
                is  that  he may have had a personal problem  with
                me.  I don't  know.   But  I was doing my job as a
                union safety committeeman, and  I  was also taking
                responsibility for my own personal safety  and Mr.
                Brown's  safety,  even  if I wasn't a union safety
                committeeman.

      Mr. Tysar stated that he and Mr. Brown  would  have  been no
      more than four feet from the elevator doors.  The doors were
      10  feet wide, and the belt line was approximately 15 or  20
      feet  long.   He  stated that he and Mr. Brown were to clean
      the belt, starting  at  one  end  and  cleaning  the  entire
      decking.   At  one  point  in time they would be directly in
      front of the elevator doors, and at other times "a little to
      the right or to the left" (Tr. 64).

      Mr. Tysar believed that other pieces of equipment would have
      been on the elevator on the  midnight shift, and maintenance
      personnel were working during  that  time.  He described the
      area as the second floor of a warehouse with bins and mixers
      on that floor, and confirmed that the  elevator was the only
      means  for vehicles to reach the second floor  (Tr.  67-68).
      He believed  that Mr. Mook did not want to inconvenience the
      maintenance department  by  shutting  down the elevator (Tr.
      69).

      On  cross-examination, Mr. Tysar stated  that  the  elevator
      window  is  near the left edge of the door at eye level of a
      person of average  height, and that he had difficulty seeing
      through the window because  it  is always dirty and there is
      an inner screen door in addition  to  the main door (Tr. 77-
      78).  He further explained the operation  of  the doors, and
      stated that the maintenance vehicle that exited the elevator
      was  backed  in  so that the front of the vehicle  came  out
      first when the elevator doors opened (Tr. 79-82).

      Mr. Tysar stated that  the  belt  was not running and it was
      locked out as required when idlers  and  rollers  are  to be
      cleaned (Tr. 82).  He confirmed that the two individuals  in
      the  maintenance  vehicle  that  came  out  of  the elevator
      observed  him as he was positioning the forklift,  and  they
      would pass  him  on their way back to the elevator (Tr. 85).
      He stated that there  were  "quite a few" vehicles in use on
      the  midshift  shift,  as  well as  two  mechanics  and  two
      electricians (Tr. 86).  The incident in question occurred at
      3:50 a.m., and the shift started at midnight (Tr. 88).

      Mr. Tysar could not recall that  Mr.  Mook  offered  him any
      other  alternative  ways  to make the belt cleaning job safe
      other than looking through the elevator window (Tr. 93).  He
      could not remember whether  Mr.  Mook ever offered to notify
      all  of  the  other  personnel using vehicles  that  he  was
      working in the area and  stated,  "even  if he did, that's a
      moot point because that's still not good enough,"  and  that
      "people  forget"  (Tr. 95-96).  He believed that "the safest
      way to do this would  have  been  to disable and not use the
      elevator or tape it off" (Tr. 96).   He  further  stated  as
      follows at (Tr. 96-97):

                Q.   So,  it's  your  testimony  that there was no
                other alternative that would have  been acceptable
                to you in any case; is that right?

                A.    I'm   willing   to  talk  with  people   and
                compromise.   That's  what  this  whole  thing  is
                about, especially when my own safety is concerned,
                that particular - - even  if  he did or even if he
                did bring that possible solution  up,  that  would
                have been unacceptable, yes.

      And, at (Tr. 101-102):

                Q.  Did you suggest anything other than taping off
                the elevator of de-energizing it, Mr. Tysar?

                A.  Those are the two things that came to mind and
                that's normally what would be the best solution to
                a problem like that.

                Q.   The question was did you suggest.  I take  it
                your answer is "no?"

                A.  No,  because  Mr.  Mook  was  fighting me that
                whole time.  He was arguing with me about it.

     Mr. Tysar confirmed that the conveyor belt was  three  and  a
     half  to  four  feet  away  from the elevator, and if he were
     standing  next to the window looking  into  the  elevator  he
     would have  possibly  been three to four feet in front of the
     belt area that Mr. Brown  was shoveling (Tr. 105).  Mr. Tysar
     further stated that the belt  was  three  and  a half to four
     feet wide and Mr. Brown was shoveling on the far  side of the
     belt away from the elevator and Mr. Brown would have been six
     to  eight  feet  behind him (Tr. 106).  Mr. Brown would  have
     been anywhere from  eight  to  fifteen  feet  up  in the air,
     depending on the part of the belt he was working on,  and  15
     to 20 feet where the window was located.

     In  response  to  a question as to whether or not he told Mr.
     Mook about his concern  that Mr. Brown might drop a shovel on
     his head, or shoveling material  down  on  him,  while he was
     looking through the window, Mr.Tysar responded as  follows at
     (Tr. 108-109):

                THE  WITNESS:   About  overhead?   Yes,  that  was
                brought up; something like that, I guess.

                JUDGE  KOUTRAS:   Specifically,  did you tell  Mr.
                Mook - -

                THE WITNESS:  Not about a shovel, no.

                JUDGE KOUTRAS:  Or material?

                THE WITNESS:  Material; things falling from above,
                yes.

                JUDGE KOUTRAS:  Could fall on your head?

                THE WITNESS:  Things falling from above, yes.

                JUDGE KOUTRAS:  You told Mr. Mook that?

                THE WITNESS:  I believe - -

                JUDGE  KOUTRAS:  That  you  were  concerned   that
                material  would  fall  on your head while you were
                standing  at  the  elevator  looking  through  the
                window?

                THE WITNESS:  I told  Mr.  Mook I didn't feel safe
                doing that; that's what I told him.

                JUDGE  KOUTRAS:  But  you  didn't   give  him  any
                specifics.  You just used the generic word "safe."
                You didn't feel you were safe, right?

                THE WITNESS: Basically, yes.

                JUDGE KOUTRAS:  But you didn't tell him why?

                THE WITNESS:  I don't believe I did.

      Mr. Tysar stated that there is less salt buildup  higher  up
      the  belt  line and the "worst of it" was in front of and to
      the right of  the  elevator  (as one faced it) closer to the
      belt tail piece which was six  to  ten  feet  away (Tr. 113-
      114).   The forklift was four and a half to five  feet  wide
      and he did not believe he could have positioned the forklift
      in such a  way  as to clean the belt at the tail pulley area
      without putting it  in  front  of the elevator.  He believed
      that part of the forklift would still be in front of part of
      the door (Tr. 119).

      Mr. Tysar denied that Mr. Mook worked  with  him to position
      the forklift so that it was out of the way of  the elevator.
      He confirmed that Mr. Mook showed him how to set the parking
      brake,  and  the  forklift  was 15 or 20 feet away from  the
      elevator at that time and off  to the side for a distance of
      four feet (Tr. 120).  He confirmed that the tailpiece was on
      the  left as one exited the elevator,  and  that  the  first
      place a left turn can be made while exiting the elevator was
      20 feet from the elevator door (Tr. 122).

      Mr. Tysar confirmed that he has never heard Mr. Mook say "to
      hell with safety" (Tr. 122).  He stated that he did not know
      whether  Mr.  Mook called Mr. Ryon, and he confirmed that in
      his deposition  he stated that Mr. Mook did in fact call Mr.
      Ryon but explained  that he "was confused to an extent" (Tr.
      128).  He then confirmed  that his notes reflect that "after
      consulting with Tim Ryon, Mook  came  back and ordered us to
      work  in  this  unsafe environment, and we  refused  on  the
      grounds of our safety" (Tr. 129).

      Mr. Tysar stated  that Mr. Mook showed him where the job was
      to be done, and he explained as follows at (Tr. 131):

                Q.  And he pointed out exactly where he wanted you
                to shovel  and  where  he  wanted  you  to put the
                forklift?

                A.  You use the work "exactly."  He basically went
                up to the second floor with us, showed us  the job
                to  be  done,  told  us how he wanted us to do it,
                what to use.
                As far as exactly goes,  those  are specifics.  We
                had a good understanding of what needed to be done
                and how it had to be done and what  we  had to use
                to get it done.  That was clear.

      Mr.  Tysar  stated that he raised a safety concern with  Mr.
      Mook about securing  the  work  basket  to the forklift, and
      that Mr. Mook responded to his satisfaction  by securing the
      basket  to  the  forklift, and providing a safety  belt  and
      lanyard for Mr. Brown.   Mr.  Tysar commented that "if I was
      going to be in the basket, I wouldn't  have any problem with
      it" and "I would have felt safe" (Tr. 133).

      Mr. Tysar stated that Mr. Mook responded to his call to come
      to the work area in a reasonable amount  of  time, and "when
      he got up there, then we had an argument and could not agree
      on a compromise" (Tr. 137).  Mr. Mook then assigned  him and
      Mr.  Brown  to  do  some  shoveling  while  he  spoke on the
      telephone   "probably  with  Mr.  Ryon"  (Tr.  139).   After
      finishing that  call, Mr. Mook then stated "I'm giving you a
      direct order.  I want you to do
      such and such a job,"  and  then  "when  we  refused  on the
      grounds of safety, that's when we were suspended" (Tr. 140).

      Mr.  Tysar  confirmed that he has been warned or written  up
      three times for  safety  violations,  and  he  explained the
      circumstances.    He   filed   grievances  for  two  of  the
      violations, and the grievances were  denied  (Tr.  140-143).
      Mr. Tysar denied that Mr. Mook had ever previously spoken to
      him  about  safety  violations  or  written  him  up for any
      violations (Tr. 144).

      Mr.  Tysar  confirmed  that  when  he  and  Mr.  Brown  were
      preparing  to  do  the work and the maintenance vehicle came
      out of the elevator  it  was not "a near miss" and they were
      far enough away.  His concern was that a vehicle exiting the
      elevator in the course of his assigned work would come close
      to  where  the forklift would  be  parked  (Tr.  145).   The
      forklift would be positioned away from the elevator, and the
      conveyor belt  would  have been between the elevator and the
      forklift.  Assuming that  he  and Mr. Brown had proceeded to
      work on the belt, and the vehicle  came out of the elevator,
      Mr. Tysar believed that it would have  hit the forklift.  He
      further stated at (Tr. 147-148):

                THE  WITNESS:   Your  honor,  we're   really  only
                talking  about that area there, that general  area
                where we were  working  is only like roughly 20 to
                25  feet  and directly in front  of  the  elevator
                doors.  There's  some  space  off to the right and
                off to the left that you're not  directly in front
                of the doors, but most of it is.

                JUDGE KOUTRAS:  Okay.

                THE WITNESS:  Just about anywhere  you  park  that
                thing, if we were positioned directly in front  of
                the  elevator  door,  it  would have been a direct
                hit.  If we were off to the right a little bit, we
                would still have gotten hit.

                JUDGE KOUTRAS:  Well, my question is in the course
                of your cleaning the belt,  would  you  have  been
                positioned  directly  in  front of the elevator at
                any time while you were doing the work?

                THE WITNESS:  Yes.

      Christopher Brown, employed by the respondent  as a laborer,
      confirmed that he and Mr. Tysar were assigned to do the belt
      cleaning job by Mr. Mook.  He believed that Mr.  Tysar had a
      legitimate safety reason for asking Mr. Mook to tape off the
      elevator, and he would have felt better if the elevator  was
      tagged  out  (Tr.  154).   Mr.  Brown  could  not recall any
      alternative safety suggestions by Mr. Mook (Tr. 155).

      Mr. Brown believed that his one day suspension  was  unfair,
      but  confirmed that the withdrawal of his complaint "was  my
      own idea,"  and  that  mine  management  never discussed the
      matter  with  him  or  influenced  his  decision.   He  also
      confirmed that respondent's counsel never  harassed him, and
      he simply "couldn't handle" the legal proceeding  (Tr.  160-
      161).

      On  cross-examination,  Mr.  Brown  confirmed  that  he felt
      unsafe  with  the  job  assignment by Mr. Mook, and told Mr.
      Mook that "I feel unsafe,"  but  said nothing specific as to
      why he felt unsafe.  Mr. Brown stated  that  he  offered  no
      suggestions  or  ideas to Mr. Mook to correct the situation,
      and he could not recall any alternatives offered by Mr. Mook
      other then taping  off  or  de-energizing  the elevator (Tr.
      163).

      Mr.  Brown  stated  that "I hardly said a word"  during  the
      conversation that took place with Mr. Mook, and he could not
      recall if both he and  Mr.  Tysar  tried  to reason with Mr.
      Mook.  He further confirmed that he did not  participate  in
      the  conversation  between  Mr.  Mook and Mr. Tysar and that
      "all I said was I thought it was unsafe"  (Tr. 166).  To the
      best of his recollection, the vehicle in question backed out
      of  the elevator (Tr. 167), and when asked if  he  could  be
      wrong,  he replied "I could be wrong, but I'm pretty sure it
      came out backwards" (Tr. 169).

                Respondent's Testimony and Evidence

      James S.  Mook,  respondent's  Surface  Shipping  Production
      Foreman, testified that he has worked for the respondent for
      19 years, and he described the second floor area around  the
      freight  elevator,  and explained the diagrams (Exhibit R-2,
      Tr. 180-185).

      Mr. Mook stated that  he  was  informed  by  the maintenance
      department that the conveyor belt tailpiece wipers could not
      be  changed  out  until  all  of  the  salt  buildup at  the
      tailpiece  was  cleared  out.  He determined that  the  belt
      tailpiece needed to be cleaned,  and  he  assigned  that job
      task to Mr. Tysar and Mr. Brown on the evening of October 6,
      1995.  The work was to begin after their lunch hour when  he
      had  time  to personally take them to the area and show them
      what needed  to  be  done  (Tr.  186).  He confirmed that he
      personally took them to the job area  because  it  was a new
      job assignment and not a repetitious one (Tr. 187).

      Mr. Mook explained what occurred at the time he assigned the
      job task to Mr. Tysar and Mr. Brown.  He stated that he told
      them  that  "we  had  some belt decking to clean out and  we
      needed a lock."  The belt electrical breaker was locked out,
      and Mr. Brown was assigned  to  do  the manual cleaning work
      from  the  forklift basket, and Mr. Tysar  was  assigned  to
      operate the  forklift.   He then told them, "we're here, set
      up and away you go," and since  they  had  no  questions, he
      left the area (Tr. 187-188).

      Mr.   Mook  confirmed  that  Mr.  Tysar  raised  a  question
      concerning how the basket would be attached to the forklift,
      and he  and  Mr.  Tysar secured it with a heavy rope and Mr.
      Tysar "was quite pleased  with  that arrangement" (Tr. 189).
      Mr. Mook further explained his work assignment as follows at
      (Tr. 189-190):

                Q.   So, you locked out  the  belt  and  tied  the
                basket   there.   Did  you  show  them  where  you
                expected them to put the forklift?

                A.  Yes, I  did.  It was obvious because I pointed
                out the tail piece area where all the salt buildup
                was.

                Q.  Could you  describe  -  - can you point on the
                diagram to the best of your recollection where the
                salt buildup was that they had to knock down?

                A.   The  forklift  in the picture  is  positioned
                right where the man had  to be to be able to reach
                right and left of that tail  pulley  because  on a
                tail piece
                you have strip boards that contain the salt as  it
                enters  the  belt;  that's  where  the wipers were
                blown out and that's where the salt was packed up.

                     As you went uphill, the salt tapered  down to
                nothing.   So,  the  wipers being blown out caused
                all this spillage right  there  at  the tail piece
                area.   Once we set this man up in this  location,
                he could  reach in this tail piece area and uphill
                and be able  to  accomplish all the clean up there
                was.

                Q.  Did you explain  that  to  Mr.  Tysar  and Mr.
                Brown?

                A.   Not  in detail.  I told him we were going  to
                clean the tail  piece area up, and this is where I
                told him to set the  machine  and  there  were  no
                questions.

                Q.  So, you told him the tail piece area.  Did you
                tell him the entire belt had to be cleaned?

                A.  No, I didn't.

      Mr. Mook stated that he instructed Mr. Tysar to use a scrap-
      salt dumpster that was nearby so that most of the salt could
      be   shoveled  from  the  belt  decking  directly  into  the
      dumpster.  Mr.
      Tysar moved the dumpster into place with the forklift and it
      was placed  to  the  right  of the elevator in an inset by a
      walled partition (Tr. 191).

      Mr. Mook stated that he returned  to his office, and five to
      ten  minutes  later Mr. Tysar called  on  the  intercom  and
      informed him that  there was "a near miss accident" and that
      two men on a maintenance  vehicle  "came  screaming  off the
      elevator"  and  could  have  hit him and caused an accident.
      Mr. Tysar informed him that no  one  was  hurt  "because  we
      weren't set up yet" (Tr. 192).

      Mr. Mook identified and offered a copy of a letter addressed
      to  Mr.  Tysar,  dated  October  6, 1995, that he was in the
      process of writing as a disciplinary  action  because of Mr.
      Tysar's unsatisfactory work performance (Exhibit  R-7).  Mr.
      Mook stated that the letter was never given to Mr. Tysar, or
      discussed  with  him  because his work suspension that  same
      evening occurred before  he  could  do  so.   The letter was
      rejected (Tr. 199-202).

      Mr. Mook stated that Mr. Tysar had worked for him  for seven
      weeks prior to the suspension in question, and that  he  had
      many  discussions and confrontations with him concerning his
      lack of  work,  personal  safety,  and unsafe work (Tr. 203-
      205).

      Mr. Mook stated that after speaking  with Mr. Tysar over the
      intercom, Mr. Tysar and Mr. Brown came  to his office within
      minutes "screaming that they could not do  this  job  at the
      freight  elevator  because  it  was  an  unsafe act and they
      started  demanding  that  safety  men  from the  company  be
      brought in" (Tr. 208).  Mr. Mook stated  that  he instructed
      Mr. Tysar and Mr. Brown to return to the second  floor  area
      and  not to resume work on the belt, but to shovel salt from
      the floor  into two dumpsters in the corner of the warehouse
      "until I can get this sorted out."  (Tr. 208).

      Mr. Mook stated  that  he  then  went to the warehouse after
      requesting the presence of maintenance foreman Brian Bonjack
      for  a second opinion as to whether  there  were  any  other
      safety  facets involved with the work assignment that he had
      made.  Mr. Mook then called Mr. Chris Gill, the mine surface
      superintendent,  to  make him aware of his problems with Mr.
      Tysar, and he and Mr. Gill had an ongoing conversation about
      Mr. Tysar (Tr. 209-211).

      Mr. Mook stated that the  forklift  was  parked  "off to the
      side" when he arrived at the job scene, and "it was  all set
      up  but  not  at  the  job  site yet" (Tr. 211).  He and Mr.
      Bonjack discussed the situation,  confirmed  with  Mr. Tysar
      that  the  forklift  brake  had  been tested and was working
      fine,  and made sure the basket was  secured  and  that  the
      safety belt and lanyard
      were in  place.   The  belt line was locked out, and he then
      ordered Mr. Tysar to move  the  forklift  and park it to the
      right of the elevator as shown in the large  diagram exhibit
      R-4.

      Mr. Mook was of the opinion that the area where  all  of the
      belt work was needed to be done could have been reached with
      a  shovel  by  the  person  in the basket where the forklift
      would have been parked to the  right  of  the  elevator (Tr.
      213).  However, this opinion was not acceptable to Mr. Tysar
      and he was "extremely angry" because he believed  that other
      people could still exit the elevator and was afraid  that he
      could  get hit even with the forklift in that location  (Tr.
      216).  Mr. Mook stated that because of the presence of other
      equipment  on the left side of the elevator as one exits the
      doors, anyone  exiting  the elevator on a piece of equipment
      would have to proceed straight  ahead  for  a distance of 20
      feet, and past the parked forklift, before he  could  make a
      left turn to reach the other warehouse areas (Tr. 215-216).

      Mr.  Mook  stated  that  he  offered Mr. Tysar the following
      alternatives  other  than taping  off  or  locking  out  the
      elevator in order to assure  him  that the job would be safe
      (Tr. 218-219):

                THE WITNESS:  I told him  to park the machine, set
                the  park brake, take it out  of  gear,  get  off,
                stand  three  feet,  an arm's length away from the
                machine so he
                would be at the controls near enough in case Brown
                needed him, which would  put him in a frontal view
                of that elevator to see anyone getting off of it.

      Mr. Mook further stated that he offered  to contact everyone
      that  may  have been working with vehicles that  might  come
      into the work  area  in  question, and he denied telling Mr.
      Tysar to look through the  elevator  window  (Tr. 217, 225).
      Mr.  Mook  pointed out that the dumpster was placed  at  the
      intended work location so that the salt could be shoveled in
      from the belt (Tr. 219).
      He further explained  his  suggested  safety alternatives at
      (Tr. 223-224):

                A.  Two fold.  He would be there as the safety man
                for Mr. Brown, if needed.  And  he would be needed
                to  move  the  machine, if nothing else.   He  was
                within hand's reach of the control.

                     And,  secondly,   to  be  able  to  view  the
                elevator  because  I  stated  to  these  gentlemen
                during the course of these  discussions that there
                was a problem in the block press  pump  room and I
                needed  to  keep  the freight elevator running  if
                possible, so that everyone  could  safely  use the
                elevator and us still get our job done at the same
                time.    So,  with  Jim  Tysar  standing  in  that
                position,   this   was   the   alternative  safety
                suggestion by me, he could be there  for  Brown as
                the  safety  man  and  also  be able to see anyone
                coming off the elevator.

                     At  that point, I timed the  opening  on  the
                freight elevator  doors  -  -  Brian  Bonjack  was
                present  during  this  period, during all of these
                proceedings - -
                and it took a full six seconds  for  the  doors to
                open once the open door button was pushed.   So, I
                explained  that  to  Mr.  Tysar that he would have
                plenty of time to warn off anybody getting off the
                elevator.

      Mr.  Mook  stated that there were three  potential  vehicles
      that could have  used  the  elevator  and he offered to warn
      those  operators  of  the work taking place,  but  this  was
      unacceptable to Mr. Tysar and "there was only one thought in
      his mind, and that was  the shutting down of the elevator or
      nothing at all" (229-230).

      Mr. Mook denied that there  was any "near miss" with respect
      to the vehicle that drove off of the elevator, and Mr. Tysar
      and Mr. Brown had not yet arrived  at  their  work area when
      the machine drove past them.  He stated that he spoke to the
      vehicle  operator who informed him that there was  no  "near
      miss" and  that  the  forklift  was  in  the  middle  of the
      warehouse  and  had not moved to the corner by the elevator,
      and no one was in it (Tr. 235-236).

      Mr. Mook stated that  he  and  maintenance  foreman  Bonjack
      discussed the job "from beginning to end and made sure  that
      there  were  no  unsafe  items left," and concluded that "we
      were well off to the side  and no one could get hurt exiting
      the elevator" (Tr. 237).  He then called superintendent Gill
      who informed him that "since  there are no more safety items
      to   be   addressed,   that   this   is  now   an   act   of
      insubordination," and Mr. Brown and Mr. Tysar were suspended
      and  escorted  off  the  property (Tr. 237-238).   Mr.  Mook
      stated that during his discussions  with  Mr.  Brown and Mr.
      Tysar,  Mr.  Brown  was "very quiet," and simply accompanied
      Mr. Tysar (Tr. 240).

      During  cross-examination,   and  in  response  to  a  bench
      question, Mr. Mook agreed that  assuming  the forklift moved
      along the beltline, if it was in front of the elevator doors
      when  they  opened,  this  would be an unsafe location  (Tr.
      248).  However, Mr. Mook believed  that  the  forklift would
      never  be positioned in front of the elevator doors  because
      the salt  buildup  was  only at the tail piece, and the main
      reason for the work was to  clean  that  area  so  that  the
      wipers could be repaired (Tr. 248).

      Brian  T.  Bonjack, respondent's Surface Maintenance General
      Foreman, testified  that  he was summoned by Mr. Mook to the
      scene  of the incident on October  6,  1995,  involving  Mr.
      Tysar and  Mr.  Brown.   Mr.  Mook  requested  his  presence
      because he wanted a second opinion about a safety matter  on
      the  second  floor  of the  warehouse.  He stated that there
      were discussions going  on  about the relevant safety of the
      job assignment made by Mr. Mook,  and  Mr.  Mook  wanted his
      opinion  regarding  the  conditions  that Mr. Tysar and  Mr.
      Brown had been asked to work in (Tr. 256-258).

      Mr.  Bonjack  stated  that  Mr.  Tysar and  Mr.  Brown  were
      assigned  to  clean  the belt tailpiece,  and  he  explained
      further as follows at (Tr. 258-259):

                Q.  Okay, if  I may, if you can look at Exhibit R-
                4,  and if you would,  Mr.  Bonjack,  show  me  on
                Exhibit  R-4  what  area of the belt Mr. Tysar and
                Mr. Brown had been assigned to, please?

                A.  The tail piece is  this area at the end of the
                conveyor,  this being the  tail  roller  which  is
                shown at this  point right here.  And the chalking
                on this is generally  directly going upstream from
                that, which would be in this particular area.

                Q.   If  we're facing the  elevator,  is  it  your
                testimony  that most of the area Mr. Tysar and Mr.
                Brown had been  assigned to clean was to the right
                of the elevator?

                A.  That's correct.

                Q.  Did they have  to  clean  any of the area over
                here by the elevator?

                A.  I didn't observe any significant  salt buildup
                in  that area.  There was a large accumulation  in
                the tail piece area because there was a leaky tail
                piece  wiper, which is what perpetrated this whole
                cleanup operation.

      Based on his understanding  that the work that Mr. Tysar and
      Mr. Brown were assigned to do  was confined to the tailpiece
      area, Mr. Bonjack was of the opinion  that they would not be
      in the pathway of any vehicles coming out  of  the elevator,
      (Tr. 259-261).  He believed the forklift would not have been
      located directly in front of the elevator door in  order  to
      complete  the  cleanup  job  because  the  cleanup  area was
      significantly offset from the elevator (Tr. 259-262).

      Mr.  Bonjack  stated that although the cleaning of the  belt
      was not part of  his  department,  and  he  does  not assign
      workers to do the cleaning, he believed that it is a routine
      assignment and the tail pieces are routinely the worst areas
      to  clean  up.  He did not know if the belt in question  had
      previously been  taped  off  while  it was cleaned (Tr. 262-
      263).

      Mr. Bonjack stated that Mr. Mook suggested to Mr. Tysar that
      he position the forklift a safe distance  from  the elevator
      opening  and  stand  next  to  it  to  assist  Mr. Brown  if
      necessary  and  to  verbally  warn  anyone  coming  off  the
      elevator that they were working in the area.  He stated that
      the area was quiet and that the elevator doors can be  heard
      when  they  are  opening.   He  further stated that Mr. Mook
      offered to apprise or warn other  plant  personnel about the
      cleanup  activity  taking place and to use caution  if  they
      were  in  the  area.   However,  Mr.  Tysar  would  only  be
      satisfied if the elevator  was rendered inoperable (Tr. 263-
      266).

      Mr. Bonjack was of the opinion  that Mr. Tysar and Mr. Brown
      were  not  exposed  to  any imminent  danger  from  vehicles
      passing by the area where  they  were working (Tr. 266).  He
      stated that the mechanical work that was to be done required
      the elevator to be serviceable in  order  to bring in parts.
      He  believed the options given to Mr. Tysar  and  Mr.  Brown
      were  clearly explained to them and that the response by Mr.
      Tysar and Mr. Brown "was an overreaction to a situation that
      didn't merit that type of reaction" (Tr. 268).

      On cross-examination,  Mr.  Bonjack  stated  that he was not
      specifically  summoned  to  the scene by Mr. Mook  to  be  a
      witness but to "verify what his  findings were and to see if
      I could see anything additional that  maybe he had not seen"
      (Tr. 269).  He confirmed that for the most  part,  he simply
      observed the verbal exchange between Mr. Mook and Mr. Tysar,
      and that his
      conversation  about the safety issues was with Mr. Mook  and
      not with Mr. Tysar and Mr. Brown (Tr. 271-273).

      Mr. Bonjack stated  that  he  was  not aware that Mr. Mook's
      work assignment included the entire  belt.  He believed that
      the opening of the elevator doors could  be  heard above the
      noise of the forklift motor (Tr. 277-278, 280).   He  agreed
      that someone up on a forklift cleaning the belt directly  in
      front  of  the  elevator  would  be  at  risk  if a piece of
      equipment came off the elevator (Tr. 283).

      In response to further questions, Mr. Bonjack stated that he
      was not present when Mr. Mook gave Mr. Brown and  Mr.  Tysar
      their  work  assignment.   However,  in  the  course  of his
      conversation  with Mr. Mook after arriving at the scene,  it
      was his understanding
      that Mr. Brown  and  Mr.  Tysar  were to clean the belt tail
      piece (Tr. 285).  He stated that the  salt  buildup  at  the
      belt  area  closer  to the top "tapers off dramatically once
      you get away from the  tail  piece."  In his opinion, it was
      not necessary to clean the belt  area  away  from  the  tail
      piece  because  the entire purpose of the cleanup assignment
      was to ready the  area  for the mechanics to change the worn
      tail piece wipers.  He stated "whether he wanted the rest of
      the belt cleaned or not,  I  wasn't  a  party  to that and I
      certainly didn't see large accumulations of salt  elsewhere.
      The  tail  piece  was  the  area of concern" (Tr. 286).   He
      conceded that assuming Mr. Brown  and  Mr.  Tysar understood
      that they were to clean the entire belt, the  forklift would
      at  one  point  during  the cleaning process be directly  in
      front of the elevator (Tr. 288).

      Russell  T.  Ryon,  respondent's  Human  Resources  Manager,
      explained how company  overtime  is  calculated,  and stated
      that  Mr.  Tysar  would  not have been eligible for overtime
      because he was suspended,  and  the  suspension  was  over a
      weekend.   He  stated  that  he  would  have  to  review the
      personnel records to determine whether Mr. Tysar would  have
      qualified  for  overtime had he not been suspended (Tr. 289-
      293).

      Mr. Tysar testified  in  rebuttal that he and Mr. Brown were
      ordered to clean the entire  belt line and not just the tail
      piece, and he stated as follows at (Tr. 306-307):

                We  were  told  to  shovel  the  decking  on  that
                particular belt, not  the  tail  piece,  the whole
                belt.   We  weren't even told where to start.   We
                were just told  to do the decking.  That's what we
                were told.

      With respect to any safety  alternative offered by Mr. Mook,
      Mr. Tysar stated as follows at (Tr. 307):

                * * * * he told me to go look in the window of the
                elevator after I hoisted Chris Brown up in the air
                and set the parking brake.  That's it.

                I don't remember anything  about him telling me to
                put my arm out and stand an arm's length away from
                a forklift.  He stated to me to go up to the door,
                and look through the window, and when the elevator
                comes  up,  to  tell  whoever  comes  out  of  the
                elevator to be careful or to stop or whatever.

      Mr. Tysar denied that Mr. Mook told him he  was  prepared to
      ask the other employees and mechanics to be aware  when they
      got off the elevator (Tr. 308).

      Christopher Brown was recalled by the Court and stated  that
      Mr.  Mook  instructed  him  and  Mr.  Tysar to clean off the
      decking, and when asked if he mentioned  anything  about the
      tail  piece,  Mr. Brown responded "well, that's part of  it"
      and "he didn't  tell us where to start" (Tr. 310).  He could
      not recall that Mr.  Mook  indicated  which part of the belt
      was "worse" or "best," and he believed that he and Mr. Tysar
      were expected to shovel off the decking of the entire belt.

      In response to a question as to where he  would have started
      the  belt  cleaning, Mr. Brown responded "I have  no  idea."
      When asked where  he  would  have  started  if  the elevator
      opening  incident  had  not occurred, he responded "I  don't
      know" (Tr. 311).  When asked if he would have started at the
      far  end or at the worst end,  he  responded  "wherever,  we
      really  weren't  in  position" (Tr. 311).  He explained that
      the belt decking is the  area  between  the  rollers and the
      belt  frame, and it was his understanding that  he  and  Mr.
      Tysar were  to  clean  the entire length of the belt and the
      tail piece (Tr. 313-314).

                      Findings and Conclusions

      Fact of Violation

      In order to establish a  prima  facie case of discrimination
      under section 105(c) of the Mine  Act,  a  complaining miner
      bears  the burden of production and proof to  establish  (1)
      that he  engaged  in  protected  activity  and  (2) that the
      adverse  action complained of was motivated in any  part  by
      that  activity.    Secretary   on   behalf   of   Pasula  v.
      Consolidated  Coal  Company, 2 FMSHRC 2768 (1980), rev'd  on
      other  grounds  sub  nom.   Consolidation  Coal  Company  v.
      Marshall, 663 F.2d 1211  (3d Cir. 1981); Secretary on behalf
      of Robinette v. United Castle  Coal  Company,  3  FMSHRC 803
      (1981);  Secretary  on behalf of Jenkins v. Hecla-Day  Mines
      Corporation, 6 FMSHRC  1842  (1994);  Secretary on behalf of
      Chacon  v.  Phelps  Dodge  Corp., 3 FMSHRC  2508,  2510-2511
      (November 1981), rev'd on other grounds sub nom.  Donovan v.
      Phelps  Dodge Corp., 709 F.2d  86  (D.C.  Cir.  1983).   The
      operator  may  rebut  the prima facie case by showing either
      that no protected activity  occurred  or  that  the  adverse
      action was in no way motivated by protected activity.  If an
      operator cannot rebut the prima facie case in this manner it
      may nevertheless affirmatively defend by proving that (1) it
      was  also  motivated  by  the miner's unprotected activities
      alone.  The operator bears  the  burden of proof with regard
      to the affirmative defense.  Haro v. Magma Copper Company, 4
      FMSHRC 1935 (1982).  The ultimate  burden of persuasion does
      not shift from the complainant.  Robinette  supra.  See also
      Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983);  and  Donovan
      v.  Stafford  Construction  Company,  732 F.2d 954 (6th Cir.
      1983)   (specifically-approving  the  Commission's   Pasula-
      Robinette test).  See also NLRB v. Transportation Management
      Corporation,  462 U.S. 393, 76 L.ed.2d 667 (1983), where the
      Supreme  Court  approved   the  NLRB's  virtually  identical
      analysis for discrimination cases arising under the National
      Labor Relations Act.




      Mr. Tysar's Protected Activity

      I conclude and find that Mr.  Tysar  had a right to complain
      to Mr. Mook about his concern that proceeding  with the belt
      cleaning job assignment might place him at risk  and  expose
      him  to  a  possible hazard if he and Mr. Brown were working
      with the forklift in front of the elevator doors and another
      vehicle exited  the  elevator.  His complaint is a protected
      activity which many not be the motivation by mine management
      for any adverse personnel action against him.   Secretary of
      Labor ex rel. Pasula v.  Consolidation  Coal  Co.,  2 FMSHRC
      2786  (October  1980),  Rev'd  on  other  grounds, sub. nom.
      Consolidation Coal Co. v. Marshall, 663 F.2d  1211  (3d Cir.
      1981),  and  Secretary  of Labor ex rel. Robinette v. United
      Castle  Coal  Co.,  3  FMSHRC   803  (April  1981).   Safety
      complaints to mine management or  to  a  foreman constitutes
      protected  activity,  Baker  v.  Interior  Board   of   Mine
      Operations  Appeals,  595 F.2d 746 (D.C. Cir. 1978); Chacon,
      supra.  However, the miner's  safety  complaint must be made
      with  reasonable  promptness  and  in  good  faith,  and  be
      communicated  to mine management, MSHA ex  rel.  Michael  J.
      Dunmire and James  Estle  v. Northern Coal Company, 4 FMSHRC
      126 (February 1982); Miller  v. FMSHRC, 687 F.2d 194, 195-96
      (7th Cir. 1982); Sammons v. Mine Services Co., 6 FMSHRC 1391
      (June 1984).

      I  further  conclude  and  find  that   Mr.   Tysar   timely
      communicated  his  safety  concern  to  Mr.  Mook  about the
      possibility that another vehicle might exit the elevator and
      place  him  at  risk when he contacted him over the intercom
      and then went to  his  office  with  Mr.  Brown  to  further
      express  their  safety  concerns  about  their belt cleaning
      assignment.   The  timeliness  of  the  complaint   met  the
      requirements  enunciated  by the Commission in Secretary  on
      behalf of Dunmire and Estle  v.  Northern Coal Co., 4 FMSHRC
      126  (February  1982);  Secretary ex  rel.  John  Cooley  v.
      Ottowas Silica Company, 6  FMSHRC  516 (March 1984); Gilbert
      v.  Sandy  Fork  Mining  Company,  supra;  Sammons  v.  Mine
      Services Co. 6 FMSHRC 1391 (June 1984).

      In the course of the hearing, Mr. Tysar, for the first time,
      alleged that Mr. Brown could have dropped a shovel on him if
      he were standing under the belt looking through the elevator
      window.   I  take  note  of the fact that  Mr.  Tysar  never
      mentioned  such  a concern in  his  complaint  statement  to
      MSHA's special investigator  on  December  11,  1995.   When
      asked  in the course of the hearing whether he ever informed
      Mr. Mook  about any safety concern that Mr. Brown might drop
      a shovel on  him while cleaning the belt, Mr. Tysar "guessed
      that something  like  that  was  brought up."  However, when
      pressed for more specifics, Mr. Tysar  admitted  that he did
      not  mention  any shovel to Mr. Mook.  During his testimony,
      Mr. Mook made no  mention  of  any  shovel  complaint by Mr.
      Tysar.   Further,  I find nothing in Mr. Brown's  deposition
      and hearing testimony  reflecting any safety concern that he
      could drop a shovel on Mr. Tysar while cleaning the belt.

      I find no credible evidence that Mr. Tysar ever communicated
      a safety concern to Mr. Mook concerning the possibility that
      Mr. Brown might drop a shovel  on  him  if  he and Mr. Brown
      were positioned in front of the elevator cleaning the belt.

      In the course of the hearing, Mr. Tysar expressed  a further
      concern  about  the possibility of Mr. Brown shoveling  salt
      materials on him  if  he  were  to  stand  in  front  of the
      elevator  looking  through  the  window.  Although Mr. Tysar
      suggested the possibility of such  an  event  in  his  prior
      statement  to  the  MSHA  investigator, his October 6, 1995,
      company  grievance  does not  include  safety  concerns  for
      falling shovels or materials.   Further,  when  asked in the
      course  of  the  hearing  if he informed Mr. Mook about  any
      concern for falling materials,  Mr.  Tysar  responded "Yes,"
      but  then  explained  that he simply told Mr. Mook  that  he
      "didn't feel safe" looking  in  the  elevator window and did
      not  believe  that  he  gave Mr. Mook any  reasons  for  his
      concern (Tr. 108-109).

      I  find  Mr. Tysar's testimony  regarding  his  concern  for
      falling materials  to  be  contradictory.   However,  in the
      course of the hearing Mr. Mook testified that Mr. Tysar  and
      Mr.  Brown  "blew  this  out  of proportion" in referring to
      "shoveling  salt down directly in  front  of  this  elevator
      where people  coming  or they themselves would be in danger"
      (Tr. 227).  He then confirmed  that  falling salt "was their
      concern, so I was trying to address it"  (Tr.  228).   Under
      the   circumstances,   and   not  withstanding  Mr.  Tysar's
      contradictory testimony, I conclude  and  find that Mr. Mook
      must  have  been  aware  of  Mr.  Tysar's concern  since  he
      acknowledged as much.  Accordingly,  I  find  that Mr. Tysar
      timely  communicated  his falling materials concern  to  Mr.
      Mook.

      Mr. Tysar's Work Refusal

      When a miner has expressed  a reasonable, good faith fear of
      a safety or health hazard, and has communicated this to mine
      management, such as a foreman,  management  has  a  duty and
      obligation to address the perceived hazard or safety concern
      in a manner sufficient to reasonably quell his fears,  or to
      correct   or  eliminate  the  hazard.   Secretary  v.  River
      Hurrican Coal  Co.,  5  FMSHRC  1529, 1534 (September 1983);
      Gilbert  v.  Sandy  Fork  Mining  Company,   12  FMSHRC  177
      (February 1990), on remand from Gilbert v. FMSHRC,  866 F.2d
      1433  (D.C.  Cir.  1989), rev'g Gilbert v. Sandy Fork Mining
      Co., 9 FMSHRC 1327 (1987).

      The focus in work refusal  cases  is the complaining miner's
      belief  that  a  hazard exists, and the  critical  issue  is
      whether or not that  belief  is  held in good faith and is a
      reasonable one.  Secretary ex rel.  Bush  v.  Union  Carbide
      Corp., 5 FMSHRC 993, 997 (June 1983); Miller v. FMSHRC,  687
      F.2d  1984  (7th Cir. 1982).  In analyzing whether a miner's
      belief is reasonable, the hazardous condition must be viewed
      from  the miner's  perspective  at  the  time  of  the  work
      refusal,  and  the miner need not objectively prove  that an
      actual hazard existed.   Secretary  ex  rel.  Bush  v. Union
      Carbide  Corp.,  5 FMSHRC 993, 997-98 (June 1983); Secretary
      ex rel. Pratt v. River  Hurricane  Coal Co., 5 FMSHRC 1529 ,
      1533-34 (September 1983); Haro v. Magma Cooper Co., 4 FMSHRC
      1935, 1944 (November 1982); Robinette,  supra,  3  FMSHRC at
      810.   Secretary  on  behalf of Hogan and Ventura v. Emerald
      Mines Corp., 8 FMSHRC 1066  (July 1986).  The Commission has
      also explained that "good faith"  belief simply means honest
      belief that a hazard exists."  Robinette, supra at 810,

      As  recently  reiterated  by  the  Commission  in  Billy  R.
      McClanahan v. Wellmore Coal Corporation,  19  FMSHRC  55, 67
      (January  1997),  once  it  is  determined  that a miner has
      expressed a good faith, reasonable concern about safety, the
      analysis  shifts  to  an evaluation of whether the  operator
      addressed the miner's concern  "in  a  way  that  his  fears
      should have been reasonably quelled" Gilbert v. FMSHRC,  866
      F.2d 1433, 1439 (D.C. Cir. 1989); Thurman v. Queen Anne Coal
      Co.,  10 FMSHRC 131-135 (February 1988), Aff'd, 866 F.2d 431
      (6th Cir.
      1989); Secretary of Labor on behalf of Bush v. Union Carbide
      Corp.,  5 FMSHRC 993, 997 (June 1983).  A miner's continuing
      refusal to  work  may  become unreasonable after an operator
      has taken reasonable steps  to dissipate his fears or ensure
      the safety of the challenged  task  or condition, Bush, at 5
      FMSHRC 998-99.

      The  respondent  concedes  that  Mr.  Tysar   engaged  in  a
      protected  activity  by  raising  the  issue  of a potential
      danger  to  him  and Mr. Brown if they were to proceed  with
      their assigned job  task.   Indeed, foremen Mook and Bonjack
      both  agreed  that assuming the  forklift  moved  along  the
      beltline, if it  was  positioned  in  front  of the elevator
      doors  when they opened, it would be in an unsafe  location.
      However,  the respondent believes that the disputed issue is
      whether, in  light  of the circumstances, Mr. Tysar's belief
      that a hazard existed was reasonable, whether the hazard was
      beyond one inherent in  the  mining industry, and whether it
      was adequately addressed by Mr. Mook.

      The critical disputed issue with  respect  to whether or not
      Mr. Tysar's work refusal was made in good faith and based on
      an honest and reasonable concern that he would be exposed to
      a potential hazard if he were to commence cleaning  the belt
      while  the  elevator  was still in operation is whether  his
      assigned work task by foreman  Mook included the cleaning of
      the entire beltline or was limited  to  the  cleaning of the
      tailpiece.

      The  respondent  does  not dispute the fact that  Mr.  Tysar
      would have a legitimate  safety  concern if he and Mr. Brown
      were assigned to clean the entire  beltline  and  needed  to
      position the forklift in front of the elevator to do the job
      (Tr.  317-318).  Mr. Mook and Mr. Bonjack agreed that if the
      forklift  were to move along the beltline and was positioned
      in front of  the  elevator  doors when the doors opened, Mr.
      Brown and Mr. Tysar would be in an unsafe location (Tr. 248-
      283).

      I conclude and find that if in  fact Mr. Tysar and Mr. Brown
      were  assigned  and expected to clean  the  entire  beltline
      while the elevator remained in operation, they would at some
      point in time be  positioned  with  the forklift in front of
      the  elevator  doors,  and  would be at risk  if  a  vehicle
      unexpectedly exited the elevator while they were in front of
      it.  Under this scenario, I would  conclude that Mr. Tysar's
      concern for his safety would not be  unreasonable.  However,
      if Mr. Tysar's work assignment was confined to the belt tail
      piece area, I would find it reasonable  to conclude that the
      cleaning of the belt in that location would  not  present  a
      hazard  to  Mr.  Tysar and Mr. Brown if the elevator were to
      continue in operation,  and  that  Mr. Tysar's concern would
      not be reasonable.

      Mr. Brown testified at his October 22, 1996, deposition that
      Mr. Mook assigned him to clean the belt decking "right above
      the elevator" for a distance of "about  30  feet" (Tr. 5-6).
      He  confirmed that the elevator was 10 feet wide,  and  when
      asked about the remaining 20 feet of the beltline, he stated
      that  "we  would  doing this one section" directly above the
      elevator (Tr. 6).   He  could  not  remember  how  Mr. Tysar
      described the area where they were supposed to be working in
      to Mr. Mook during their discussion (Tr. 19).  When asked to
      describe his understanding of their exact work area  on  the
      evening in question, Mr. Brown stated as follows at (Tr. 20-
      22).

           Q.Again,  can you describe for me exactly the work
           area?  Was  it  only the area immediately over the
           elevator?

      A.   Um-hum, yes.

      Q.   So you didn't have  to clean any of the decking to
           the right of the elevator?

      A.   Yes. We had to do a section.

      Q.   I'm still a little confused about the section that
           you all had to clean off.  Was it actually 30 feet
           of the belt that you had to clean off?

      A.   No. It was right where the tail piece was.

      Q.   And you're saying that  that  is directly over the
           elevator?

      A.   No. That is to the right, but it  goes up, that we
           had to shovel.

      Q.   It's to the right and it goes up, so  it's  to the
           right of the elevator and it goes up?

      A.   Right.

      Q.   So  in  addition  to  the  area  directly over the
           elevator, you had to clean to the right and up?

      A.   Right.

      * * * *

      Q.   But  if it was to the right of the  elevator,  how
           was cleaning that section unsafe?

      A.   Well,  we  had  to move up.  We'd have to - - he'd
           have to move his forklift and then get in position
           to shovel the - - keep on moving up shoveling.

     I  find  Mr.  Brown's  deposition   testimony  to  be  rather
confusing and contradictory.  On the one hand  he  states that the
work  assignment  was limited to the belt area over the  elevator,
and on the other hand  he  identified and limited the work area to
"a section right where the tail  piece  was" and not directly over
the elevator, rather than the entire 30 feet of belt line.  At the
hearing, Mr. Brown testified that it was his understanding that he
and  Mr.  Tysar  were  to  clean the entire length  of  the  belt,
including the tail piece, but  he  had no idea where he would have
started the job if the work refusal  had  not  occurred  (Tr. 311,
313-314).

     Mr. Tysar testified that he and Mr. Brown were told to  clean
the  "belt  decking" between the belt rollers and the belt bottom,
and that the belt traveled at a 45 degree angle above the
elevator  doors  (Tr.  25,  49-53).   He  believed  the  belt  was
approximately 15 to 20 feet long, and stated that he and Mr. Brown
were to clean  the  entire  belt, starting at one end and cleaning
the entire decking (Tr. 64).   In  response  to  a  question as to
whether  Mr.  Mook  pointed  out  the  exact  area  that he wanted
cleaned,  Mr.  Tysar  stated  that  he and Mr. Brown "had  a  good
understanding of what needed to be done and how it had to be done"
(Tr. 131).  He later described the area  where  he  and  Mr. Brown
would have been working as "roughly 20 to 25 feet and directly  in
front  of  the  elevator  doors"  (Tr.  147-148).  Still later, he
testified that "we were told to shovel the  whole  belt"  and  "we
weren't even told where to start" (Tr. 306-307).

     Mr.  Mook testified that he personally escorted Mr. Tysar and
Mr. Brown to  the  belt area to explain their job task and that he
told them "we had some  belt decking to clean out" and pointed out
the "obvious" tail piece  area where the salt buildup was located.
Mr. Mook believed that all of the salt spillage "at the tail piece
area and uphill" could be reached and cleaned up at the tail piece
location.  He stated that he  told  Mr. Tysar to clean up the tail
piece area and to position the forklift  at that location, and Mr.
Tysar and Mr. Brown had no questions.  Mr.  Mook  denied  that  he
told them to clean the entire beltline.

     General  Foreman  Bonjack  testified  credibly that the large
salt accumulation at the tail piece was the result of a leaky tail
piece  wiper  and  that  the clean up operation  was  intended  to
address that problem.  Mr.  Bonjack  observed  no significant salt
accumulations in the elevator area, and he was of the opinion that
that there was no need to position the forklift  in  front  of the
elevator  doors in order to complete the clean up job because  the
area that needed cleaning was away from the elevator.

     Mr. Bonjack  confirmed  that he was not present when Mr. Mook
gave Mr. Tysar and Mr. Brown their  initial work assignment and he
was not aware that the work assignment  included  the entire belt.
However, after arriving at the scene of the dispute,  and speaking
with  Mr.  Mook, Mr. Bonjack learned that the work assignment  was
confined to  the tail piece area which he believed was the area of
Mr. Tysar's concern.

     Mr. Tysar  did  not  dispute  or  rebut  Mr.  Mook's credible
testimony that the defective belt tail piece wipers  needed  to be
changed out by the maintenance department and that this could  not
be  done  until  the  salt  accumulations  at  the tail piece were
cleaned  up.   Indeed, Mr. Tysar confirmed that the  "worst"  salt
buildup was at the  tail  piece,  and that had the work begun, Mr.
Brown would have cleaned up the salt  accumulations  and  shoveled
them into the dumpster that was placed at the tail piece for  this
purpose (Tr. 56).  Mr. Mook testified credibly that Mr. Tysar used
the  forklift  to move the dumpster into place in an in inset next
to a wall partition  so  that  the  salt materials shoveled by Mr.
Brown could fall directly into the dumpster  (Tr.  191).   All  of
this  credible and unrebutted testimony by Mr. Mook lends credence
to his contention that the belt cleaning assignment was limited to
only the tail piece area and not the entire belt line.

     In  the  course  of  his  deposition, Mr. Brown stated that a
foreman whose name he could not  recall told him "a long time ago"
that  there  was a "rule" that required  a  forklift  operator  to
remain in the driver's seat if there was someone in the man basket
(Tr. 25-27).   He  suggested  that  this  rule would not allow Mr.
Tysar to stand next to the forklift while he  was  in  the basket.
Upon  review of the respondent's April 1, 1995, mine safety  rules
and policies,  Mr.  Brown  could not find any such rule related to
forklifts (Tr. 34-36).  Mr.  Brown  did  not  pursue  this  "rule"
further at the hearing, and there is no credible evidence that  he
or  Mr. Tysar ever raised it with Mr. Mook.  The only safety issue
Mr. Tysar  raised with respect to the forklift was the securing of
the man basket, and Mr. Tysar conceded that Mr. Mook addressed his
concern to his satisfaction (Tr. 133-134).

     Mr. Tysar  stated  that  even  if  the assigned work area was
confined  to  the  belt  tail  piece,  there  was   "a  very  good
probability" that the forklift could have been bumped by a vehicle
exiting the elevator because part of the forklift would  still  be
in  front  of  part  of the elevator doors (Tr. 119).  I find this
difficult  to  believe,   particularly  since  Mr.  Tysar  himself
described the width of the  forklift  at 4  to 5 feet, and stated
that the belt tail piece was 6 to 10 feet  away  from the elevator
door (Tr. 113-114).  He further stated that had he  proceeded with
the  assigned work, "the forklift would have been positioned  away
from the  elevator.   The conveyor belt would have been in between
the  elevator  and  the  forklift"   (Tr.   145).    Under   these
circumstances,  and  given  the fact that the dumpster was located
directly under the belt so that Mr. Brown could shovel in the salt
materials, I find it highly unlikely  that  any  of  the materials
would fall on Mr. Tysar.

     Mr.  Tysar  further  confirmed  that any vehicle exiting  the
elevator would have to travel straight  out of the elevator for at
least 20 feet before it could turn left because of the presence of
other equipment in the tail piece area.   Under the circumstances,
I  find  it  highly unlikely that a vehicle exiting  the  elevator
would abruptly  turn  sharply to the left immediately upon exiting
the elevator rather than  proceeding  straight  ahead  for 20 feet
where it could freely turn left without encountering any equipment
obstacles,  including  the forklift that I find was positioned  in
front of the tail piece and clear of the elevator doors.  Further,
if the vehicle was backing  out  of  the  elevator,  as  Mr. Brown
testified  it did on the day in question, I find it unlikely  that
it would back out at a high rate of speed and then turn around and
proceed toward the tail piece area.

     After  careful   review  and  consideration  of  all  of  the
testimony and evidence in this case, I credit the testimony of Mr.
Mook and Mr. Bonjack and find that Mr. Mook assigned Mr. Tysar and
Mr. Brown to clean the  belt  tail  piece  area and not the entire
belt.  I find the testimony of Mr. Tysar and  Mr.  Brown regarding
their work assignment to be contradictory and less than credible.

     In  view  of my finding that Mr. Tysar's work assignment  was
confined to the  tail  piece  area,  and  based  on  my  foregoing
findings and conclusions, I conclude and find that Mr. Tysar would
not  have  been exposed to a hazard had he proceeded to clean  the
tail piece area,  and that even viewed from his own perspective, I
cannot conclude that  his  work refusal was reasonable and made in
good faith.  Further, even if I were to find that Mr. Tysar's work
refusal was reasonable, in view  of  my  findings  and conclusions
which  follow  below,  I  have  concluded  that  Mr.  Mook  timely
addressed  Mr.  Tysar's safety concerns with reasonable offers  of
safety alternatives,  and  that  Mr.  Tysar's  rejections of these
offers was unreasonable.

      Foreman Mook's Response to Mr. Tysar's Safety Concerns

     The evidence establishes that Mr. Tysar's confrontation  with
Mr.  Mook  took place while Mr. Tysar and Mr. Brown were preparing
to position  the  forklift in order to commence the belt cleaning,
and  before  any cleaning  had  actually  been  done.   Mr.  Tysar
candidly admitted that he
viewed his encounter  with  Mr.  Mook as a "power struggle" and he
believed  that  Mr.  Mook  acted  less   than   diplomatically  in
responding to his concern.  Having viewed Mr. Tysar  in the course
of  the  hearing,  he  impressed  me as an articulate, but  rather
argumentative and strong willed individual, who at times displayed
his  anger  and  frustration  in a less  than  diplomatic  manner.
Indeed, at one point in the course  of the hearing I observed that
Mr. Mook was so provoked by Mr. Tysar's  suggestions  that  he had
little or no concern for safety that he needed to be restrained by
his  counsel,  and the Court ordered a brief "break" to "cool off"
the parties and admonish them to maintain the proper decorum.

     I find Mr.  Tysar's  unsupported  assertion that Mr. Mook had
little  regard  for safety to be less than  credible.   Mr.  Tysar
himself confirmed  that  Mr. Mook responded to his call to come to
the work area in a reasonable amount of time, and assigned him and
Mr. Brown to do other work  while he considered the matter further
(Tr. 137-138).  Mr. Tysar further  confirmed  that Mr. Mook locked
out  the  belt,  and immediately responded to his  safety  concern
regarding the securing  of  the  "man  basket" to the front of the
forklift, and provided a safety belt and  lanyard  for Mr. Brown's
use  while  cleaning  the  belt  from  inside the basket that  was
equipped with protective railings and a locked gate (Tr. 133).

     Mr. Mook testified credibly that he thoroughly considered all
of  the  safety  aspects  of  his  belt  cleaning   assignment  in
consultation  with  foreman  Bonjack, and rejected as unreasonable
Mr. Tysar's request to take the  elevator out of service before he
was  expected to proceed with the belt  cleaning  job.   Mr.  Mook
further  testified credibly that he offered two alternative safety
suggestions  to  Mr.  Tysar namely, an offer that he (Mook) inform
and alert other employees  who  might  use  the  elevator that Mr.
Tysar  and Mr. Brown were working in the area, or that  Mr.  Tysar
station  himself  next to the forklift and near the controls, with
the brake engaged,  so  that  he  could  have  a clear view of the
elevator  in  order to readily alert anyone exiting  the  elevator
that he and Mr. Brown were working in the area.

     Mr. Brown  testified  at his deposition that Mr. Mook did not
suggest any safety alternatives and never suggested that Mr. Tysar
serve as "a lookout" or put  the  forklift in gear or in park (Tr.
9, 11, 12).  However, in the course of the hearing that followed a
little over a month later,
Mr. Brown was less than certain that  Mr.  Mook  never offered any
alternatives to shutting down the elevator and stated  that he had
no recollection of any alternatives offered by Mr. Mook (Tr. 163).
Mr.  Brown's  conflicting testimony was contradicted by Mr.  Tysar
who testified that
Mr. Mook told him  to  set  the  forklift  brake  and stand by the
elevator door where he could observe the arrival of  the  elevator
by looking through the window.

     Mr. Tysar initially claimed that he had no idea what Mr. Mook
expected  of him by looking through the elevator window (Tr.  58).
However, he  later  testified that Mr. Mook suggested that he look
through the elevator  window  in  order  to  warn  anyone  on  the
elevator  to  be careful or to stop (Tr. 307).  I find Mr. Tysar's
testimony concerning  Mr.  Mook's alternative safety suggestion to
be less than credible.  Mr. Tysar claimed that he had no idea what
Mr. Mook had in mind when he told him to look through the elevator
window, yet he confirmed that Mr. Mook expected him to warn anyone
on the elevator that he and Mr. Brown were working in the area.

     I  further  find Mr. Tysar's  testimony  that  he  could  not
remember Mr. Mook  offering  to inform other employees that he and
Mr. Brown were cleaning the belt  (Tr.  95), to be contrary to his
later denials that any such offer was ever made (Tr. 308).

     I have considered the question of why  Mr. Mook would find it
necessary to offer alternative safety precautions  if  in fact his
work assignment was limited to the tail piece area, and I find his
explanation  that he did so to assure Mr. Tysar that the  cleaning
job would be safe to be credible.

     Foreman Bonjack  corroborated  Mr.  Mook's  testimony that he
offered  the two safety alternatives to Mr. Tysar in  response  to
Mr. Tysar's  concern  that  he and Mr. Brown might be at risk if a
vehicle exited the elevator with  the forklift positioned in front
of it, but that Mr. Tysar rejected  Mr.  Mook's offer and insisted
that the elevator be shut down.  Having viewed
Mr. Bonjack's demeanor in the course of the  hearing,  I  find his
testimony to be credible.

     Although  Mr.  Tysar  indicated  that he was "willing to talk
with  people  and  compromise,"  he  confirmed  that  he  made  no
suggestions to Mr. Mook short of insisting  that  the  elevator be
taken  out of service, and he remained steadfast in his insistence
that the  only  safe  method  of  cleaning  the belt that he would
accept was to shut down the elevator and tape  it  off  so that it
could  not be used while the belt was being cleaned.  Indeed,  Mr.
Tysar admitted  that any alternatives suggested by Mr. Mook, short
of  taking  the  elevator   out   of   service,  would  have  been
unacceptable to him and rejected out of hand.

     I find Mr. Tysar's summary refusal  to seriously consider Mr.
Mook's  alternative safety suggestions to be  unreasonable  and  a
less than  good  faith  effort  to at least attempt to resolve the
dispute to their mutual satisfaction.   I  further  discredit  Mr.
Tysar's assertion that Mr. Monk simply told him to go look through
the  elevator  window, and credit Mr. Mook's testimony that he did
more than that in  suggesting  alternative  ways  to  address  Mr.
Tysar's safety concerns.

     I  conclude  and find that foreman Mook addressed Mr. Tysar's
safety  concern  in  a   reasonable   way   by  offering  the  two
alternatives previously discussed, and that Mr.  Tysar's rejection
of those suggestions and insistence that the elevator be shut down
was  unreasonable.  Under the circumstances, I conclude  and  find
that Mr.  Tysar's  work  refusal  was  unprotected  and  that  his
suspension  was  not  discriminatory  and  did  not  amount  to  a
violation of section 105(c) of the Act.

                              ORDER

     In  view of the foregoing findings and conclusions, and after
careful  consideration   of  all  of  the  credible  evidence  and
testimony adduced in this  case,  I  conclude  and  find  that the
complainant has failed to establish a violation of section  105(c)
of  the  Act.   Accordingly,  the  complaint IS DISMISSED, and the
complainant's claims for relief ARE DENIED.


                                   George A. Koutras
                                   Administrative Law Judge

Distribution:

James  C.  Tysar,  4823 Russell Avenue,    Parma,    OH   44134
(Certified Mail)

Mark  N.  Savit, Esq., Ruth  L. Ramsey,  Esq.,   Patton  Boggs,
L.L.P.,  2550  M Street,  N.W., Washington,     D.C.      20037
(Certified Mail)

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