<DOC>
[DOCID: f:kt98254.wais]

 
LONE MOUNTAIN PROCESSING, INC.
August 13, 1998
KENT 98-254-D

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                         August 13, 1998

SECRETARY OF LABOR,                :  TEMPORARY REINSTATEMENT
  MINE SAFETY AND HEALTH           :    PROCEEDING
  ADMINISTRATION (MSHA),           :
    on behalf of ROSCOE RAY YOUNG, :  Docket No. KENT 98-254-D
                      Complainant  :  BARB CD 98-13
           v.                      :
                                   :
LONE MOUNTAIN PROCESSING, INC.,    :  Huff Creek No. 1 Mine
                      Respondent   :  Mine ID No. 15-17234

Appearances:  MaryBeth Bernui, Esq., Office of the Solicitor,
              U.S. Department of Labor, Nashville, TN, on behalf
              of the Complainant; Marco M. Rajkovich, Jr., Esq.
              and Melanie J. Kilpatrick, Esq.,  Wyatt, Tarrant &
              Combs, Lexington, KY, on behalf of the Respondent.

Before:  Judge Melick

                            DECISION

     This case is before me upon the application for temporary
reinstatement filed by the Secretary of Labor, pursuant to
Section 105 (c)(2) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C.  801 et seq., the "Act", and Commission Rule 45,
29 C.F.R.  2700.45.  The Secretary seeks an order "temporarily
reinstating" Roscoe Ray Young, an applicant for employment with
Lone Mountain Processing, Inc., (Lone Mountain) pending a final
hearing and disposition on the merits of the related
discrimination proceeding (Docket No. KENT 98-255-D).  At
hearings held on July 31, 1998, the parties waived their rights
under Commission Rule 45(e), 29 C.F.R.  2700.45(e) to a decision
within seven days of the hearings in order to file posthearing
briefs.

     It is undisputed that on September 3, 1997, and until
September 4, 1997, Young was employed by Arch of Kentucky (Arch)
as a roof bolter.  Arch is a separate and distinct mine operator
and not a party to this case.  In anticipation of a layoff at
Arch, Young had applied for employment as a roof bolter at
Respondent Lone Mountain's Huff Creek No. 1 Mine.  As a condition
of employment with Lone Mountain, Young was required to take a
roof bolting test.  He took this test on September 3, 1997, but
claims that during the test, he encountered unsafe roof
conditions which prevented him from completing the test in the
time prescribed by Lone Mountain.  It is further alleged that
Lone Mountain's agent, Gary Sisk, was present during the test and
that he was made aware by Young of the purportedly unsafe roof
conditions.  The Secretary maintains that Lone Mountain
thereafter refused to employ Young, in retaliation for working
slowly but safely, in violation of the Act.

     Within this framework of allegations, the Secretary requests
an order of temporary reinstatement directing Lone Mountain to
immediately and on an expedited basis "give Young a new roof
bolting test under safe conditions and in the presence of an
authorized representative of the Secretary, applying the same
criteria for employment as was applicable on September 3, 1997,
and, if successful, to immediately employ him as a roof bolter at
the same rate of pay and with the same or equivalent duties
assigned to him as from September 3, 1997."

     In its answer and in a motion to dismiss filed at expedited
hearings, Respondent, Lone Mountain, maintains, inter alia, that
the Commission does not have the authority or  jurisdiction under
the Act to temporarily reinstate an "applicant for employment"
such as Mr. Young.  In particular it argues that Section
105(c)(2), by its plain language, specifically limits the
Commission's authority and jurisdiction in temporary
reinstatement proceedings to "miners" and thereby excludes
applicants for employment.[1]  In particular, it cites the
language of Section 105(c)(2) which limits Commission
authority and jurisdiction in temporary reinstatement
proceedings as follows: "the Commission, on an expedited
basis upon application of the Secretary, shall order
the immediate reinstatement of the miner pending final
order on the complaint" (emphasis added).

     The term "miner" is defined in Section 3(g) of the Act as "
any individual working in a coal or other mine".  Since Congress
has clearly defined the term "miner" and that definition does not
include an "applicant for employment" there is no need to resort
to secondary rules of construction applicable where the statutory
language is ambiguous.  Where the language of a statutory
provision is clear, the terms of that provision must be enforced
as they are written unless the Legislature clearly intended the
words to have a different meaning.  See Chevron, USA v. NRDC, 467
U.S. 837, 842-43 (1984); United States v. Baldridge, 677 F2d 940,
944 (D.C. Cir. 1982); Phelps Dodge Corp. v. FMSHRC, 681 F2d 1189,
1192-93 (9th Cir. 1982); Utah Power and Light Company, 11 FMSHRC
1926, 1930 (October 1989).

     Moreover, under the maxim expressio unius est exclusio
alterius, the expression or mention in a statute of one thing
("miner") implies an intention to exclude all other things from
its operation.  For this additional reason it is clear that
Congress did not intend to include "applicants for employment" in
the temporary reinstatement provisions of Section 105(c)(2) of
the Act.  It becomes even more apparent that Congress limited the
remedy of temporary reinstatement to only "miners" (and not to
applicants for employment) when a comparison is made in the
statutory language between the term "miner" and the phrase
"miner, applicant for employment or representative of miners" as
referenced in sections 105(c)(1) an 105(c)(2) of the Act.  The
phrase "miner, applicant for employment or representative of
miners" is cited eight times in these subsections and the term
"miner" alone, is cited twice--and both of the references to the
term "miner" alone are cited in the context of reinstatement.
There can, therefore, be no mistake of Congressional intent that
the remedy of temporary reinstatement is to be limited only to
miners who have suffered unlawful discrimination.

     The Secretary argues, alternatively, that Mr. Young was in
any event, at the time of his protected activity a "miner" as
defined in the Act, although he was admittedly a "miner" only
because of his employment with another mine operator not involved
in the alleged discrimination and who is not a party to this
case.  Even assuming, arguendo, that Young was still an employee
of the non-party operator (Arch) on the date of the allegedly
discriminatory act, he would not be entitled to temporary
reinstatement to that employer because it is neither a party to
these proceedings nor is it alleged to have discriminated against
Young.  Moreover Young would not be entitled to temporary
reinstatement to Lone Mountain by virtue of his status as a
"miner" at Arch.  Reinstatement means to restore to a position
from which the person has been removed.  Likewise, since Young
was not employed by Lone Mountain as a "miner" he could not be
reinstated to Lone Mountain as a "miner".  The Secretary in any
event is not seeking to reinstate Young as a "miner" with Lone
Mountain but as an "applicant for employment".

     While it is not necessary for the disposition of this issue,
I nevertheless note that it has not by any means been established
that Young was, in any event, employed as a "miner" at the time
of the alleged discrimination (the decision not to hire him) even
with that other non-discriminating operator, Arch.  It is
undisputed that Young's last day of employment with Arch was
September 4, 1997.  The only evidence as to when the decision not
to hire Young was made comes from Lone Mountain Division Training
Coordinator Gary Sisk.  Sisk testified that within three days
after giving Young the roof bolting test on September 3, 1997, he
fed the raw timing data into his computer and obtained the final
tabulated results on which he based his decision not to hire
Young.  Sisk testified that after obtaining those results he
contacted his boss who agreed that Young had operated too slowly
and that Young should therefore be informed that he would not be
hired.  The letter Young received on September 18 (Government
Exhibit 1) advising Young that he would not be hired was the
result, according to Sisk, of the computer calculations performed
within three days of the roof bolting test.  Under the
circumstances it is unclear whether Young was even a "miner" for
Arch on the date he allegedly suffered discrimination.

                              ORDER

     This Commission is without statutory authority and
jurisdiction to reinstate applicant, Roscoe Ray Young, for
employment.  The Secretary's application for temporary
reinstatement herein is accordingly dismissed.

                               Gary Melick
                               Administrative Law Judge
                               703-756-6261

Distribution:

Mary Beth Bernui, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN  37215 (Via Facsimile and Certified Mail)

Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, Lexington
Financial Center, Suite 1700, 250 West Main Street, Lexington,
KY  40507 (Via Facsimile and Certified Mail)

\mca

***FOOTNOTES***

     [1]  Section 105(c)(2) of the Act provides as follows:
"Any miner or applicant for employment or representative of
miners who believes that he has been discharged, interfered
with, or otherwise discriminated against by any person in
violation of this subsection may, within 60 days after such
violation occurs, file a complaint with the Secretary alleging
such discrimination.  Upon receipt of such complaint, the
Secretary shall forward a copy of the complaint to the
respondent and shall cause such investigation to be
made as he deems appropriate.  Such investigation shall
commence within 15 days of the Secretary's receipt of the
complaint, and if the Secretary finds that such complaint
was not frivolously brought, the Commission, on an expedited
basis upon application of the Secretary, shall order the
immediate reinstatement of the miner pending final order on
the complaint.  If upon such investigation, the Secretary
determines that the provisions of this subsection have
been violated, he shall immediately file a complaint with
the Commission, with service upon the alleged violator and
the miner, applicant for employment, or representative of
miners alleging such discrimination or interference and
propose an order granting  appropriate relief.  The
Commission shall afford an opportunity for a hearing (in
accordance with section 554 of title 5, United States
Code, but without regard to subsection (a)(3) of such
section) and thereafter shall issue an order, based upon
findings of fact, affirming, modifying, or vacating the
Secretary's proposed order, or directing other appropriate
relief.  Such order shall become final 30 days after its
issuance.  The Commission shall have authority in such
proceedings to require a person committing a violation of
this subsection to take such affirmative action to abate
the violation as the Commission deems appropriate, including,
but not limited to, the rehiring or reinstatement of the
miner to his former position with back pay and interest.
The complaining miner, applicant, or representative of
miners may present additional evidence on his own
behalf during any hearing held pursuant to this paragraph."