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[DOCID: f:k96-52d.wais]

 
LEECO, INCORPORATED
December 5, 1995
KENT 96-52-D


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                           December 5, 1995

SECRETARY OF LABOR,                :  TEMPORARY REINSTATEMENT
  MINE SAFETY AND HEALTH           :  PROCEEDING
  ADMINISTRATION (MSHA),           :
  On behalf of Frank Scott,        :  Docket No. KENT 96-52-D
          Complainant              :  BARB CD 95-21
                 v.                :
                                   :  Mine No. 68
LEECO, INCORPORATED,               :
          Respondent               :

                               DECISION

     On November 13, 1995, the Secretary of Labor (Secretary) 
filed an  application for an order requiring Respondent (Leeco,
Inc.)  to reinstate temporarily Complainant (Frank Scott) to 
the position  he  held  immediately  prior to June 12, 1995, 
or to a similar position at the same rate of pay and with the
same or equivalent duties.  The application was  supported by
the affidavit of Ronnie Brock, Supervisory Special Investigator
of the Mine Safety and Health Administration (MSHA), and by a
copy of the complaint of discrimination filed by the Secretary 
on behalf of Scott.

     On November 17, 1995, counsel for Leeco requested a hearing
on the application. On November 20, 1995, Tony Oppegard entered 
his appearance as counsel for Scott.

     Pursuant to a telephone conversation between  the  parties,
it was agreed that the matter would be heard on November 28,
1995, in Hazard, Kentucky.

     Prior to the presentation of testimony, I summarized the
pleadings and reminded counsels that the issue to be decided 
was narrow -- namely, whether Scott's complaint of discrimination
was "not frivolously  brought,"  as  that term is used in section
105(c)(2) of the Federal Mine  Safety  and Health Act of 1977
(Mine  Act) (30 U.S.C.  815(c)(2)).  In other words,  if the 
complaint  is  clearly  without  merit, fraudulent or pretextual,
it  is  frivolous  and  the  Secretary's application  for
temporary reinstatement must be denied.

                            THE TESTIMONY

                       THE SECRETARY'S WITNESS

                             FRANK SCOTT

     The Secretary presented his case through the testimony of
Scott, who stated that he is a miner of 13 years experience, 
with five years of experience as an electrician. Leeco's No. 68
Mine is an underground coal mine consisting of two sections.
Scott testified that he began work at the mine on March 27, 1995.
According to Scott, he was forced to quit working for Leeco on
June 12, 1995. The last day he actually worked for the company
was June 10.

     On that date, he was scheduled to work his usual shift --
the afternoon shift (3:00 p.m. - 11:30 p.m.). He arrived at
the mine around 2:30 p.m.  The mine was not in production
because  the belt was being moved.  Scott stated  that he
was advised by David Smith, the maintenance foreman and a
supervisor of Scott, that one of his jobs that day  would
be to install a "Y box."  (Scott explained that a "Y box"
is  similar  to  an  electrical junction box and that its
purpose is to direct the  current that enters the mine to
the two separate sections.)   Scott proceeded underground
and  went to the "Y box."  The power  was  off  while  he
worked  on the box.   After power was restored, Scott was
asked to  check  the  equipment on one of the sections to
make certain it was running  correctly.   Scott looked at
his watch.  It was approximately 4:00 p.m.  The main mine
fan  was  on.   Scott  determined that the equipment  was
functioning properly and  he  went to the belt head where
he tried to advise Smith by telephone  that the equipment
was operating properly.   It was now about  4:30 p.m.  He
could not reach Smith, so he walked to where  the section
foremen  Rob  Collett,  who  was working, to tell him  he
could not contact Smith.  Scott  claimed  that  three  or
four  minutes  later Smith yelled at him over the speaker
telephone and stated  that  all of the power had gone off
at the mine and that it should be on in 15 minutes.

     Smith then directed Scott to work on repairing a hydraulic
drill that was inoperable. Scott testified that he  worked on 
the drill for approximately five minutes and could not  get it
to operate properly. Scott  spoke  with  Smith  again  on  the  
telephone and Smith  told  him  to  work  on  repairing  the 
continuous mining  machine,  which  had broken  down the previous
day.  In order to fix it, Scott needed to  weld  a  part on it.
Scott claimed that Smith was  anxious  to  have  the   machine 
repaired  because production was supposed to be resumed at 12:01
a.m. on June 11.

     The  machine was at the face so scoop operator Tinsley Hubbard
transported Scott there. Hubbard remained with Scott. The repair 
work required that Scott weld part of the continuous mining machine.
While working on the machine, Scott  was asked by Hubbard if he 
thought they would have to work all night with the mine fan off. 
Scott stated he could tell that the main mine fan was not working 
because the smoke  from  the  welding  stayed  in the air, and he
could not feel any air current. Scott believed it took him  
approximately  one  hour  to  complete the necessary welding. 
Hubbard was with him during this time.

     Scott and Hubbard then traveled to the belt head where Collett
and  Tim Kilburn were working.  He asked  them  how  much longer he
and Hubbard would have to stay underground when the fan  was  off. 
(Scott  claimed  he  did not know the Secretary's  regulations 
prohibit miners from  remaining underground for more than 15 minutes
when  the  fan has stopped (30 C.F.R.  75.313(c)(1)).)  According 
to Scott, Collett and Kilburn just looked at him, hung their heads,
and said nothing.

     Scott  was  then  told by Kilburn to move the belt head cable.
Scott and Hubbard  moved  the cable and Scott stated that Hubbard
again asked him how long they would have to work with  the fan off.
Scott knew  the  fan  was  still off because he got hot moving the 
cable, something that never had happened before.

     It was around  7:00  p.m.  and  Scott  and Hubbard went to the
overcast to eat dinner.  Scott could  not  hear  the  air whizzing 
through the overcast, an indication that the fan still  was  not
functioning.  Other miners were eating at the overcast (James Scalf
and Randal Young).  They asked if they would have to work all night
with the fan off and Scott said he did not know.

     After dinner Scott continued  to  move cable.  He finished the
task around 8:30 p.m.  Scott stated  that  at  this point Kilbur  
left the mine to get more J hooks to hang cable. Five or ten minutes
later Scott heard the "Y box" begin to hum and air being whizzed  
through the overcast The power and the fan were back on. Kilburn 
returned and Scott asked him how the power had been restored. 
Kilburn stated that he did it.

     Around 9:25 p.m., Scott heard Smith and Kilburn speaking to
each other over the pager telephone. Scott could decipher  what
they were saying. A short time later Kilburn told Scott that Smith
wanted him to stay into the next shift to build a spillboard and
install  a  guard on the  belt  head.   Scott  testified  that he
stayed until around 11:00 p.m. but could not get the  spillboard
built because a scoop that was necessary to bring  supplies was
not operable.  Its battery was low.  Scott got  a battery charger 
and  hooked  it  up  to  the  scoop.  He did not believe he could
do any more work that night so he left the mine around 1:00 a.m.

     The next day, June 11, was a Sunday. Scott discussed with his
wife the fact that he had stayed underground with  the fan  off.  
Scott testified that he knew he was not supposed to work  for  an 
extended  period  when  the  fan  was  not operating. However, he 
did not leave the mine before 1:00 a.m., because he feared he 
would be fired.

     He also stated he discussed with his wife two other work
practices he believed were hazardous that he had been required
to do three or four times  previously -- one was the practice 
of hanging high voltage power lines (i.e., lines carrying 12,470
volts) while the power was on and the other was the practice of
working on belt equipment guards while the belt was operating. 
(Scott did not know the specific  dates  when he was asked 
previously to hang energized high voltage cable,  but  it  was 
during  the months  of  April, May and June.  In addition, he 
did not know the specific  dates  when  he  was  asked to work 
on guards while the belts were running.)  Scott  stated that
after  talking with his wife, he resolved not to  perform any 
more unsafe work.

     On June 12, Scott returned to the mine around 3:00 p.m. In
the changing room he encountered Smith who asked Scott to come 
and speak with him in a back room. Scott changed his  clothes 
and met with Smith. Scott testified that Smith wanted to know 
why the spillboards had not been installed on June 10.  Scott 
explained that the scoop was "down."  Smith handed Scott a 
written work order for June 12 (Gov. Exh. 1 ). It listed four
jobs, included cutting part of a guard off of a belt tail piece.

     Scott maintained that Scott orally instructed him to hang a
high voltage line.  Scott replied that he did not want to hang 
high voltage cable while the power was on and did not want to 
work on guards  while the belts were running. In addition, he 
asked Smith about working underground on June 10, while the power
was off.

     According to Scott, Smith responded if he would not do the
work, he should leave and not come back. Scott told Smith if that
were the case, he quit. Scott maintained that as he was leaving
the meeting with Smith he encountered  Kilburn. He gave Kilburn 
the written work order and he told Kilburn he had quit working
for Leeco because he had to work underground on June 10 for four
hours while the fan was off and because he was asked to work on 
the tailpiece guard while the belt was running. He stated that
at  no  point did he ask Smith to lay him off.

     Scott testified that before June 12, he had no discussions
with Smith regarding  his general job  performance and  that he 
never was disciplined previously by Leeco.

                          LEECO'S WITNESSES

                             DAVID SMITH

     Smith has been a maintenance foreman for Leeco for the last
three years. He hired Scott. Scott's duties were  to  keep  the 
equipment running at the mine. Smith testified that on June 10, 
the work that needed to be done at the mine was to set up the 
belt head drive and tailpiece in a neutral entry.  On June 10, 
no specific work assignments were given to Scott. Usually, Smith
orally advised Scott about what he was to do before Scott went
underground. Smith recalled that  Scott was supposed to try to 
fix the hydraulic drill and that  he  had spoken with Scott about
this over the mine telephone.  Also Scott was supposed to make 
sure the equipment was running properly.

     Smith testified that he left the mine around 4:30 p.m. He
went home and took his wife out to dinner. On his way back, he
stopped at the mine around 9:30 p.m. or 10:00 p.m., to ask  if
the hydraulic drill had been fixed. Kilburn  told  him that it
had been. There was no indication that  the  power  had failed,
and no one told Smith it had happened.  He then left the mine.

     Smith did not speak with Scott until June 12, when he asked
Scott to see him after their encounter in the changing room. At 
the meeting, Smith testified that he asked Scott why he had not
fixed the drill and why he had to be told  to do things like fix
the drill. He told Scott he should take more initiative and show 
a greater interest in his work. He then gave Scott the written
work assignments for the day (Gov. Exh. 1).

     According to Smith, Scott did not question him about any of
the assignments, including the work on the belt guard. Rather,
Scott's response was to ask to be laid off. When Smith told Scott
he could not lay him off, Scott raised the  subject of the fan
being off. Smith testified that Scott stated something to the 
effect that he could get unemployment compensation because the 
fan had been off. (Smith maintained that this was the first he
learned of the power failure.) Aside from the fan, Scott mentioned
no other  complaints to Smith.  Nor did Scott complain to anyone
else.

     Smith knew of no instances when Scott was instructed to hang
high voltage cable while it was energized, nor of any instances 
when he was instructed to work on guards  while belts were running.

     According to Smith, about ten times prior to June 12 he had
spoken previously with Scott about his job performance and about 
the need to do better work. He  ept records of  some  of  these 
conversations in his notebooks. He agreed that Scott never had 
been given a written warning concerning his job performance and 
never had been given time off as a disciplinary measure.

                             TIM KILBURN

     Kilburn  works as a second shift repairman at the mine. On
June 10, the section shift miners were himself, Collett, Scalf, 
Young, Hubbard and Scott. Their primary job was to extend the belt
line and set up the head drive using a battery powered scoop and 
the hydraulic drill. They also were working on the "Y  box" and 
the power was off while this work was going on.

     Kilburn went underground around 4:00 p.m. Kilburn understood
Scott's duties were that of working on the belt line and repairing
a continuous mining machine. Kilburn agreed with Scott that he had
left the mine during the evening of  June  10,  but he maintained
that he left to get materials for the spillboard Scott was supposed
to install, not to restart the fan. According to Kilburn, the fan 
could restart itself once power was restored.

     Kilburn  denied  telling  Scott  he  had  restarted  the  fan.
Kilburn also denied that he ever spoke with Scott on June 10 about
the fan being off.

     Kilburn stated that Scott never complained to him about any 
of the working conditions at the mine. Kilburn knew of no instance 
in which Scott was asked to hang energized high voltage cable. In 
any event, cable usually was hung on the third shift, not on the 
second. In addition, he knew of only one instance prior to June 12,
in which Scott had worked  installing  belt  guarding at the head 
drive. Kilburn worked with him  and  the  power was not on while
the work was being done. In Kilburn's view, Scott did not like to
work overtime and on June 10, he told Kilburn he would quite if 
he had to work overtime that night.

     The only thing Kilburn heard Scott ask Smith on June 12, was
whether Smith could get Scott unemployment compensation, or words 
to that effect. Following the conversation,  Scott  handed  his 
written work order to Kilburn. Item No. 4  of  the  order,  that 
required part of the guard to be  cut  away,  was  completed by
another miner after  Scott  quit, but only  once  the  belt had 
been moved up and power had  been cut off.  Those were the same 
circumstances in which Scott would have been expected to complete
the task.

     Before Scott left the mine on June 12, he again saw Kilburn.
He told Kilburn that he had quit his job. He did not mention 
anything  about  why  he quit.  Rather, he  told Kilburn  that 
Smith  had  "[obscenity]  with  the  wrong person. "

        THE DISCRIMINATION COMPLAINT AND THE "NOT FRIVOLOUSLY
                          BROUGHT" STANDARD

     The essence of Scott's complaint, as put forward by the
Secretary on Scott's behalf, is that prior to June 10, 1995,
he was asked to and did perform work at  the  mine  that  was 
hazardous. Specifically, this work was the hanging of energized
high voltage power cables and working on mechanical equipment
guards while belts  were  running.  On  June  10,  he  worked 
underground with the fan off for an extended period. On June 12,
he was ordered by Smith to perform a task he believed  to  be
hazardous, that he raised his fears to Smith.  When his fears 
were not addressed he was forced to quit.

     The standard for  eview requires that the Secretary's legal
theory, as well as the Secretary's factual assertions, be not 
frivolous (see Jim Walter Resources, Inc. v. FMSHRC, 920  F.2d 
738, 747 (11th Cir. 1990). It is under established  precedent 
that a miner has a right to complain about unsafe work conditions 
and practices and a right to refuse to work if the operator does
not respond to a reasonable complaint (Gilbert v. FMSHRC, 866 F2d.
1433, 1444 (D.C. Cir. 1989; see Secretary on behalf of Cooley v.
Ottawa Silica Co., 6 FMSHRC 516, 519-21 (March 1984), aff'd,780 
F.2d 1022  6th Cir. 1985); Price v. Monterey Coal Co., 12 FMSHRC
1505, 1514 (August 1990 (citations omitted).)

     A constructive discharge is proven when a miner who engaged
in a protected activity can show that an operator created or
maintained conditions so intolerable that a reasonable miner would
have felt compelled to resign (See, e.g., Simpson v. FMSRHC, 842 
F.2d 453, 461-63 (D.C.Cir. 1988).)

     Although the merits of the legal theory of constructive
discharge  may  or  may  not be sustained at trial, it is
certainly an arguable legal position, given the fact that the 
parties really do not dispute  that  the  fan at the mine was
off for a period of time on June 10, and  given the fact that
a miner who felt he or she had been made to work too long under
those conditions reasonably might have complained about it. 
Moreover, if, in fact, the Secretary  could  establish that 
Scott did complain about hanging energized high voltage cable
and working on the mechanical equipment guards while  belts 
were operating, the complaints could also have been reasonable 
under the circumstances and have required a reasonable response
on Leeco's  part.   Moreover,  the failure to respond in any
way could well have compelled Scott's resignation.  Given
these possibilities, I cannot  find  that the Secretary's
legal theory is not without merit.

     Further, while there is stark disagreement about whether
Scott ever was required to engage in hazardous work practices
involving high voltage cables and guarding and, if so, whether
he ever lodged complaintsa bout them, the resolution of the
disagreements require credibility determinations and factual
findings appropriately made after a full trial of the issues,
with testimony from all of those involved. Moreover, and as 
I have noted, it is agreed  that  there  is  at  least  some  
factual basis for Scott's assertions regarding the fan in that
it did  cease  to  function on  June  10,  while  Scott  was 
underground. Smith and Scott also agreed to the extent that 
at some point during their conversation of June 12, Scott 
raised the matter of the fan with Smith. Leeco argues that
Scott's motivation was whole pretextual.  A determination
regarding  that  contention  also  involves   credibility
determinations  and, perhaps, other factual evidence  and
therefore warrants a trial of the issue.

     For these  reasons,  I  conclude  that  while  there is 
conflicting testimony on almost all of the fundamental issues,
it cannot   be   found   that   the  theory  behind  Scott's
discrimination  complaint  and  the   factual  assertions
associated  with  it  are  clearly  fraudulent,   clearly
without  merit  or  clearly  pretextual.   Accordingly  I
conclude  that  Scott's  complaint  is  "not  frivolously
brought"   and   that  Scott  is  entitled  to  temporary
reinstatement.

                                ORDER

     Leeco is ORDERED to reinstate  Frank  Scott to the position
he held on June 12, or to a similar position at the same rate of 
pay  and  with  the  same  or  equivalent duties assigned to him.


                                David F. Barbour
                                Administrative Law Judge


Distribution:

Mary   Sue  Taylor,   Esq., Office  of  the  Solicitor,
U.S. Dept.  of  Labor, 2002 Richard  Jones Road,  Suite
B-201, Nashville, TN 37215-2862

Patrick Graham, Vice President, Safety and Health, 100 Coal Drive,
London, KY 40741

Tony Oppegard, Esq., Appalachian Research and Defense Fund of
Kentucky, Inc., 630  Maxwelton Court, Lexington, KY 40508

Leona A. Power, Esq., Reece & Lang, P.S.C., London Bank & Trust
Building, 400 South  Main  Street, P.O. Drawer 5087, London, KY 
40745-5087

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