<DOC>
[DOCID: f:va200233.wais]

 
HAR-LEE COAL COMPANY
Docket No. VA 2002-33-D
July 17, 2002



         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES

                      2 SKYLINE, Suite 1000
                        5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041

                          July 17, 2002


FELIX MAURICE SYKES,            : DISCRIMINATION PROCEEDING
               Complainant      :
                                : Docket No. VA 2002-33-D
          v.                    : NORT CD 2002-02
                                :
HAR-LEE COAL COMPANY,           : Mine ID 44-06966
               Respondent       : No. 10 Mine


                             DECISION

Appearances:   Felix Maurice Sykes, Clintwood, Virginia, Pro Se, for
               the Complainant;

               Louis Dene, Esq., Dene & Dene, Abingdon, Virginia, for
               the Respondent.

Before:   Judge Schroeder

                           Introduction

     This case is before me on the Complaint filed by Mr. Felix
Maurice Sykes pursuant to Section 105(c)(3) of the Mine Safety Act.
The Complaint alleged discrimination by the Respondent in violation of
Section 105(c)(1).  All the conditions necessary to file a complaint
were satisfied by Mr. Sykes.  A hearing was scheduled on July 9, 2002,
and notice of the hearing was served on both parties.  Verification of
receipt of the notice was made by telephone approximately one week
prior to the hearing.

     On July 9, 2002, at the schedule time and place, the hearing was
commenced.  Mr. Sykes failed to appear even after waiting a reasonable
time to allow for difficulties in transportation. Mr. Sykes has failed
to apply for a continuance of the hearing or to provide an explanation
for his failure to appear.

     At the hearing, Mr. Dene provided an offer of proof as to the
testimony which would be provided by his four witnesses if they were
required to testify.  In the absence of objection to the offer of
proof, I accept as true the factual matters that Mr. Dene described.

                     Findings and Conclusions

     Complainant was employed by the Respondent as a miner for less
than a year.  His usual assignment was a roof bolter operator.  Mr.
Sykes' pay and privileges as a roof bolter operator have never been
reduced by the Respondent.  Each time Mr. Sykes has expressed concern
about safety, Respondent's mine management has taken reasonable and
prompt steps to investigate his concerns and to take appropriate
corrective action if necessary.  Mr. Sykes' employment was not
terminated by Respondent because of expression of safety concerns.
Mr. Sykes voluntarily resigned his position with the Respondent after
refusing to continue working in the mine. Respondent has not
discriminated against Mr. Sykes in violation of Section 105(c)(1) of
the Mine Safety Act.

                              Order

     For the foregoing reasons, I find in favor of the Respondent and
against the Complainant on the issues in this case.  Accordingly, the
complaint is DISMISSED.



                              Irwin Schroeder
                              Administrative Law Judge


Distribution:

Mr. Felix Maurice Sykes, Rt. 1, Box 463, Clintwood, VA 24228
(Certified Mail)

Louis Dene, Esq., Dene & Dene, P.C., Box 1135, 138 Court St., N.E.,
Abingdon, VA 24210 (Certified Mail)