<DOC>
[DOCID: f:pn99158.wais]

 
READING ANTHRACITE COMPANY
July 26, 1999
PENN 99-158-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          July 26, 1999

SECRETARY OF LABOR,              : DISCRIMINATION PROCEEDING
     MINE SAFETY AND HEALTH      :
     ADMINISTRATION (MSHA),      : Docket No.  PENN 99-158-D
     on behalf of                :
     LEONARD M. BERNARDYN,       : WILK CD 99-01
               Complainant       :
          v.                     : Wadesville Pit
                                 : Mine ID 36-01977
READING ANTHRACITE COMPANY,      :
               Respondent        :

                             DECISION

Appearances: Troy E. Leitzel, Esq., Office of the Solicitor, 
             U.S. Department of Labor, Philadelphia, 
             Pennsylvania, for the Complainant;
             Martin  J. Cerullo, Esq., Cerullo, Datte & 
             Wallbillich, P.C., Pottsville, Pennsylvania, 
             for the Respondent.

Before: Judge Weisberger

1.  Introduction

     This  case  is  before   me   based   upon  a  Complaint  of
Discrimination filed by the Secretary of Labor  ("Secretary")  on
behalf  of  Leonard  M.  Bernardyn  alleging  that  Bernardyn was
discharged by Reading Anthracite Company ("Reading") in violation
of  section 105(c) of the Federal Mine Safety and Health  Act  of
1997  ("the  Act").[1]  Pursuant to notice, the case was heard on
May 18, 1999,  in Harrisburg, Pennsylvania.[2]  On July 15, 1999,
the Parties filed Proposed Findings of Fact, and Briefs.

II.  Applicable Law

     The Commission, in Braithwaite v. Tri-Star Mining, 15 FMSHRC
2460  (December 1993),  reiterated  the  legal  standards  to  be
applied  in  a case where a miner has alleged that he was subject
to acts of discrimination.   The  Commission,  Tri-Star, at 2463-
2464, stated as follows:

          The    principles    governing   analysis   of   a
     discrimination  case  under  the   Mine  Act  are  well
     settled.   A miner establishes a prima  facie  case  of
     prohibited discrimination by proving that he engaged in
     protected  activity   and   that   the  adverse  action
     complained  of  was  motivated  in  any  part  by  that
     activity.    Secretary   on   behalf   of   Pasula   v.
     Consolidation   Coal   Co.,  2  FMSHRC  2786,  2797-800
     (October  1980),  rev'd  on  other  grounds,  sub  nom.
     Consolidation Coal Co., v. Marshall, 663 F.2d 1211 (3rd
     Cir.  1981); Secretary on behalf of Robinette v. United
     Castle Coal Co., 3 FMSHRC  803,  817-18  (April  1981).
     The  operator may rebut the prima facie case by showing
     either  that no protected activity occurred or that the
     adverse action  was  in  no part motivated by protected
     activity.   Pasula,  2  FMSHRC  at  2799-800.   If  the
     operator cannot rebut the  prima  facie  case  in  this
     manner,  it  nevertheless  may  defend affirmatively by
     proving  that  it  also was motivated  by  the  miner's
     unprotected activity  and  would have taken the adverse
     action in any event for the unprotected activity alone.
     Pasula, 2 FMSHRC at 2800; Robinette,  3  FMSHRC at 817-
     18; see also Eastern Assoc. Coal Corporation, v. United
     Castle Coal Co., 813 F.2d 639, 642 (4th Cir.  1987).

III.  The Secretary's Prima Facie Case

       A.  The Secretary's Witnesses

     Leonard  Bernardyn, a truck driver at the pit  in  question,
testified that  at  the  start of the shift on November 10, 1998,
the weather was misty, and the road was starting to get slick.[3]
Bernardyn indicated that on  the  morning of November 10, he felt
that  if  he  were  to go at his normal  speed  he  would  go  in
circles.[4]    He  indicated  that  he  was  stopped  by  Stanley
Wapinski, the general  superintendent  at  Reading,  who told him
that he was going too slow.  Bernardyn told Wapinski that  it was
getting slippery, and Wapinski informed him to get moving.

     Bernardyn  utilized  a  CB  radio  that  was in his truck to
attempt to contact Thomas Dodds, another truck  driver, who was a
union representative.  Bernardyn broadcasted over  the  CB  radio
that  he  was  being harassed, and was asked to drive faster than
warranted by the road conditions.  Bernardyn conceded that he did
use curse words at the time.

     Shortly thereafter,  Bernardyn was stopped again by Wapinski
who told him that he was holding  everything up, and directed him
to  park.   After  Bernardyn stopped the  truck,  Frank  Derrick,
Readings  general  manager,  informed  him  that  he  was  fired.
According to Bernardyn,  Derrick  did  not  tell  him that he was
being fired for cursing, or for using threatening language.

     Dodds[5]  confirmed that on the morning at issue  the  roads
were slick.  He  also confirmed Bernardyn's testimony with regard
to  what  Bernardyn   communicated  over  the  CB  radio.   Dodds
indicated that generally  miners  on the site at issue do not use
curse words on the CB radio.

     Thomas  Goodman,[6] a retired Reading  employee  and  former
truck driver,  confirmed that the roads were slick on the morning
at issue.  Goodman testified that at approximately 8:00 a.m., the
truck that he was  driving  began  to slide.  He also essentially
confirmed Bernardyn's testimony as to  what  Bernardyn  had  said
over the CB radio.

     Dale  Coombe, a truck driver employed by Reading, who worked
at the site  on  the  date  in  question,  confirmed  that it was
raining.  He indicated that generally when it rained the roadways
become  slick, and that Titan trucks easily spin around  in  such
conditions.   He  confirmed  that  he heard Derrick ask Wapinski,
over the CB radio, what was holding  up  the  Titan  trucks,  and
Wapinski  stated  that the drivers were driving cautiously as the
conditions were slippery.   He  also  confirmed  that  during his
second  trip of the day, he heard Derrick tell Wapinski over  the
CB ". . . to  tell  the driver to park the truck and send him out
of the pit" (Tr. 16, May 18, 1999).

     Coombe indicated  that  one  time  a Titan truck that he was
driving  had  spun  around  in the mud, and the  foreman,  Robert
Shellhammer, called him a "f---ing  liar" and that "I was f---ing
dangerous, and that he would get me fired  if  it  was  the  last
thing  he  would  do (Tr. 19, May 18, 1999).  Coombe was asked at
what speed he was,  "on  a  general basis," told to drive, and he
answered as follows: "[t]hey  want  you to drive as fastly as you
can as long as you do it safely . . ."  (sic)  (Tr.  19,  May 18,
1999).

     John  Downey,  the  President  of  the  local union, who had
worked for Reading for approximately 20 years  until  June  1998,
indicated that in September 1998, at a grievance hearing that  he
attended  it  "c[a]me  out"  (Tr.  28,  May 18, 1999) that Edward
Mitchell, a truck driver employed by Reading,  who alleged he was
"forced" to drive a truck not in his classification, directed the
following towards his supervisor: "you can s---   my d---  if you
think I will drive that truck" (Tr. 29, May 18, 1999).  According
to Downey, Mitchell was not discharged by Reading for  the use of
this  profanity, but instead was fired for refusing to perform  a
job task  that was not in his classification.  Downey stated that
Mitchell was rehired the following day.

     Downey  testified that he was cursed at by Wapinski who used
the following  language: "you're a f----n committee man" (Tr. 30,
May  18,  1999).   According  to  Downey,  on  another  occasion,
Wapinski said to him as follows: "why don't [you] go get an f----
ing job at  the  mall"  (sic)  (Tr. 31,  May  18,  1999).  Downey
indicated that a meeting had been arranged between the  Union and
Reading to resolve the issue of cursing at the site.

     Jay Berger testified that in his capacity as a UMW Executive
Board Member, he has attended grievance hearings at the mine, and
that  it  is  "common" for profanity to be used at these hearings
(Tr. 47, May 18, 1999).

       B.  Reading's Witnesses

     Derrick,  Shellhammer,[7]   and  Wapinski,[8]  testified  on
behalf of Reading, that on the date  at  issue,  the  roads  were
slippery,  that  Bernardyn was going slower than the normal speed
due to the road conditions, that Wapinski told him to get moving,
that Wapinski stopped  him a second time and told him that he was
holding  everything  up,  and  that  shortly  thereafter  Derrick
informed him that he was being fired.

       C.  Discussion

     Based on the essentially uncontroverted evidence I find that
Bernardyn engaged in protected  activities  by driving at a speed
consistent with the road conditions, and that Reading took action
adverse to him by firing him.  Moreover, due  to  the coincidence
in  time  between  Derrick's ordering Wapinski to stop  Bernardyn
twice  for  holding  things   up,   and  his  (Derrick's)  firing
Bernardyn,  I  find  that  the  Secretary  has  established  that
Bernardyn's termination by Reading  was  motivated, in some part,
by his protected activities.

IV.  Reading's Affirmative Defense

     Reading presents an affirmative defense  that,  in  essence,
Bernardyn  would  have  been  fired  in  any  event  based on his
unprotected activities, i.e., the use profanity over a  CB radio,
and the use of threatening language he directed at Wapinski.

     It is the Secretary position, in contrast, that Reading  has
not  established  its  affirmative  defense.   In  support of its
position, the Secretary cites the fact that there was no evidence
adduced   that  Bernardyn  was  warned  concerning  the  use   of
profanity,  that  there  was no evidence adduced that Reading had
any company policy prohibiting  swearing,  that, according to the
testimony of Coombes, Downey, and Berger, profanity  was  used at
the  mine  by  miners  and management, and that, according to the
testimony  of Downey, on  one  occasion,  a  miner  had  directed
profanity  against  a  supervisor,  but  was  not  discharged  by
Reading.

     On the  other  hand,  Derrick  testified  that  after he had
directed Wapinski to stop Bernardyn a second time for driving too
slow, and to meet him at the dump area, he (Derrick) had intended
to transfer Bernardyn from his usual run, and put him  instead on
the  coal  run  using a different truck.  Derrick indicated  that
such a reassignment  is not considered to be disciplinary, and he
related four instances  wherein  he had reassigned individuals to
other  jobs  after  it had become apparent  that  they  were  not
performing their original jobs satisfactorily.

     Derrick asserted  that  his  decision to terminate Bernardyn
was based upon the fact that he heard Bernardyn use the following
threatening language over the CB directed  against Wapinski "I'll
get  the  little  f----r"  (Tr.  90,  March 16, 1999).   He  also
indicated  that there was no disparity between  his  decision  to
terminate Bernardyn for the use of profanity, and his decision to
only give warnings  to  three  other  individuals  who  had  used
profanity  directed  against  their  foreman.   He explained that
Bernardyn,  in  contrast  to  these  individuals,  used  language
threatening a foreman over the CB radio, whereas the  other three
individuals  did  not  use  threatening  language,  and  did  not
broadcast their profanity over the CB radio.  Also, he noted that
whereas  these three individuals made a profane remark only once,
Bernardyn  used  profanity  "nonstop"  (Tr. 71, May 18, 1999) for
approximately 8-10 minutes.

          In  evaluating  the evidence regarding  the  events  at
issue, I note that Bernardyn  conceded that he did curse over the
CB.  Also, the Secretary did not impeach or call any witnesses to
contradict  or rebut Derrick's testimony  that  Bernardyn  cursed
"nonstop" over  the  CB  radio  for approximately 10 minutes, and
used  threatening  language  directed   against   Wapinsky,   his
supervisor.[9]   I  thus  accept  Derrick's  testimony  in  these
regards.   Accordingly,  I find credible Derrick's testimony that
his decision to immediately  terminate  Bernardyn  was  made when
Bernardyn  cursed  and  threatened  his  supervisor  over the CB.
Hence, I thus find that Reading has established that its decision
to  immediately  terminate  Bernardyn  would  have been taken  in
either event based upon Bernardyn's unprotected activities, i.e.,
excessive  profanity,  and threatening profane language  directed
over the CB radio against  his  supervisor.   I  find  that  this
decision by Derrick not to have been an unsound business decision
of  such  a  degree  as  to  lead  to  an  inference  that it was
pretextual.

     Therefore,  for all the above reasons, I find that  although
the Secretary has  established  a  prima  facie case, Reading has
prevailed  in  establishing  its  affirmative  defense.   I  thus
conclude  that  the  Secretary has not prevailed in  establishing
that Barnardyn was discharged  in  violation of section 105(c) of
the Act.  Therefore, the Complaint shall be dismissed.

                              ORDER

     It  is  ORDERED that the Order of  Temporary  Reinstatement,
issued on March 19, 1999, (21 FMSHRC, supra) is hereby DISSOLVED.
It is further ORDERED that the Complaint filed in this case shall
be DISMISSED, and that this case shall be DISMISSED.


                              Avram Weisberger
                              Administrative Law Judge


Distribution:

Troy E. Leitzel, Esq., Office of the Solicitor, U. S. Department
of Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)

Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, P.C., 
Garfield Square, 450 West Market Street, P. O. Box 450, 
Pottsville, PA 17901 (Certified Mail)


dcp


**FOOTNOTES**

     [1]:  On  March  4,  1999,  the  Secretary,  on  behalf  of
Bernardyn,  filed  an  Application  for Temporary  Reinstatement.
Subsequent to an evidentiary hearing  on this application held on
March  16,  1999,  an  order  was  issued  directing  Reading  to
reinstate Bernardyn (Secretary of Labor on behalf  of  Leonard M.
Bernardyn  v.  Reading  Anthracite  Company, 21 FMSHRC 339 (March
19,1999)).

     [2]:  At the March 18, 1999 hearing,  the transcript of the
temporary  reinstatement proceeding, 21 FMSHRC,  supra,  and  the
exhibits admitted  at  that proceeding, were ordered incorporated
into the record of the instant proceeding.

     [3]: Bernardyn testified at the March 16, 1999 hearing.

     [4]:  In general, the truck drivers are not informed by the
company as to the maximum  speed  at which the trucks are to be 
driven.

     [5]:  Dodds testified at the March 16, 1999 hearing.

     [6]:  Goodman testified at the March 16, 1999 hearing.

     [7]: Shellhammer testified at the March 16, 1999 hearing.

     [8]: Wapinski testified at the March 16, 1999 hearing.

     [9]:  Barnardyn was asked whether  he threatened anybody on
the CB and  he  answered  as  follows:  "No.  I never  threatened
anybody in my life."  (Tr. 32, March 16, 1999).  However, he did  
not  testify on rebuttal to rebut  Derrick's  testimony regarding
the  specific  words  he  used directed against Wapinski. It thus
is reasonable to draw an inference that he used these words, but 
did not consider them to constitute a threat.