.
WESTERN FUELS UTAH, INC.
November 28, 1995
WEST 95-147-D


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          November 28, 1995

SECRETARY OF LABOR,             :  DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEST 95-147-D
  ON BEHALF OF GARY BELVEAL,    :  DENV CD 94-03
               Petitioner       :
              v.                :  Deserado Mine
                                :  Mine ID 05-03505
WESTERN FUELS UTAH, INC.,       :
               Respondent       :

                               DECISION

Appearances:  Margaret A. Miller, Esq., Office of the Solicitor,
              U.S. Department of Labor, Denver, Colorado, for 
              Complainant;
              J. Keith Killian, Esq., Keith Killian & Associates,
              P.C., Grand Junction, Colorado, for Respondent.

Before:  Judge Hodgdon

     This case is before me on a complaint of discrimination
brought by the Secretary of Labor, acting through his Mine 
Safety and Health Administration (MSHA), on  behalf of Gary 
Belveal against Western Fuels Utah, Inc., under Section 105(c)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 
 815(c). For  the reasons set forth below, I find that, while
Mr. Belveal engaged in activities protected under the Act, the
Respondent was not motivated in any part by that activity when 
Mr. Belveal  was  placed  on  temporary  total  disability or
reprimanded.

     A hearing was held on July 24 and 25, 1995, in Grand 
Junction, Colorado.  MSHA Inspectors Art C. Gore, Jr., and 
Gary W. Jones, miners Charles Cudo, John J. Jones, Curtis Roy 
and Bradley  K.  Allen,  and  the  Complainant  testified in
support of his case. Western Fuels employees Roland Heath, 
Terry Gunderson and Gelean H. Bell, and David F.  Hamilton 
testified for the Respondent.  In addition, deposition 
testimony of Paul W. Miller, M.D., (Govt. Ex. 1), and Ronald
C.  Pinson, M.D., (Resp. Ex. A), was presented. The parties
also submitted briefs which I have considered in my disposition
of this case.

                           FACTUAL SETTING

     The basic facts are not disputed. As of the hearing, Gary
Belveal had been employed  by  Western Fuels for nine and one-
half years. Most of that time, and specifically during the fall
of 1993 that is significant to this case, he worked as a roof
bolter. Throughout his employment with Western Fuels he was an
active member  of the  union.  During  the  period  when  the 
activities resulting  in  this  case  occurred,  he  was  the 
chairman of the union safety committee.

     On September 28, 1993, Mr. Belveal injured his right knee
stepping  off  of  his roof bolting machine.  He reported the 
incident to his  immediate  supervisor,  but  did  not  seek  
medical attention and continued performing his  job as a roof 
bolter.

     Prior  to, and  during, this period, Mr. Belveal had 
been  participating in  discussions between the union and
management concerning  the company's Accident, Violation,
Reduction Program (AVRP) which had apparently resulted in
some  miners  being  reprimanded   by   the  company  for
accidents  that  they  reported.   It  was  the   union's
position  that  this  program  was  similar  to one which
Consolidation Coal Company had in effect at its  Dilworth
Mine  and  which a Commission judge had determined to  be
facially discriminatory in violation of Section 105(c) of
the Act.[1]

     Unable to reach an  accord  about  the  implementation 
of the AVRP, the Complainant, with other union members, filed
a 105(c)  complaint  concerning  the program with the local
MSHA office on October  6,  1993.  On or about October  8, 
Mr.  Belveal informed  mine  management  that  the  complaint
had been filed.


     In the meantime, Mr. Belveal's knee had not shown any 
signs of improvement and he decided to go to the doctor. On
October 11, he told Gelean Bell, a safety  specialist who
handled  workman's  compensation claims for the  company,
that he wanted to see  a  doctor  the next day.  She told
him to tell his supervisor when he  was going so that his
supervisor could accompany him to the appointment.

     Mr. Belveal made an appointment with Dr. Miller for 9:00 
a.m. on October 12.  He worked the midnight shift on October
11-12, getting off of  work  at 7:00 a.m.  He did not  tell
his  supervisor  that  he  had  a  doctor's  appointment,
although  he  did mention it to Ed Daniels of the  safety
office  in  the course  of  discussing  some  non-related
safety  issues   with   him  prior  to  leaving  for  the
appointment.

     Mr. Belveal went to  his appointment with Dr. Miller
unaccompanied  by  anyone  from  the  mine.   Dr.  Miller
diagnosed  that  the  Complainant had a strained anterior
cruciate  ligament  and  prescribed   a  knee  brace  and
Relafen,  an  anti-inflammatory  medication.    He   also
instructed  Mr.  Belveal  not  to  do  a  lot of bending,
stooping or lifting, to work only on flat surfaces and to
return to see him in a week.

     During the visit, Dr. Miller had a telephone conversation
with Roland  Heath,  the mine superintendent, concerning what
Mr. Belveal would  do  on  his  return to work.  While  all
agreed that he  would return  to  full  time work, but not
full duty, i.e. that he would be working  full  time  but
not  performing  all  of the functions required of a roof
bolter, there was confusion  as  to  exactly what type of
job  he  would  be  performing.   Notwith-standing,   Mr.
Belveal  returned to work as a roof bolter.  His partner,
Brad Allen,  tried to do as much as he could to help him.
Other than initally discussing it with Mr. Gunderson, Mr.
Belveal made no  further  attempts  to  be placed in some
other type of work.

     Mr. Belveal returned to see Dr. Miller on October 19,
as scheduled. Dr. Miller concluded that  his  knee had not
improved  and  referred  him to an orthopedic specialist.
When the doctor called Gelean  Bell  to  tell her what he
was doing, she told him to tell Mr. Belveal  that  he was
on  disability.   In his chart, Dr. Miller indicated that
Mr. Belveal could return to work the next day, subject to
the findings of the orthopedist.


     The Complainant saw Dr. Pinson, the orthopedist, the 
next day, October 20. Dr. Pinson determined that Mr. Belveal
should not return  to  work  until  he  saw  him  again on
October  28.   When  Dr.  Pinson examined  Mr. Belveal  on
October  28,  he  concluded that  the  Complainant  could
return to work.  During  the  period  from  October 20 to
October 28 that he did not work, the Complainant received
workers'  compensation  wage  loss  benefits  for   total
temporary disability.

     Because he had not been given duties driving a tractor 
as had fellow roof bolters Chuck Cudo, when he injured his 
hand, and  John  Jones, when he injured his left knee, Mr.
Belveal   began   inquiring  into  the  mine's  practices
concerning injuries.   He  concluded that the company was
not properly reporting injuries to MSHA and discussed the
matter   with   Bob   Hanson,   the    safety   director.
Concurrently,  he filed the instant 105(c)  complaint  on
November 15, 1993.   He  also filed a 103(g) complaint[2]
concerning injury reporting with MSHA on November 24, 1993.
As a result  of  the  103(g) complaint, MSHA investigated 
the matter  and issued  two  citations  to the company for
improperly reporting injuries. Govt. Exs. 3A and 3B.)

     Sometime during  the  last week of November and the 
first week of December 1993,  Mr.  Belveal  and Mr. Allen 
brought to the attention of their foreman a concern that 
some of the entries in the  mine  were  in excess of the
permitted width. Not receiving satisfaction from  him, 
they  took  the  matter to their shift  foreman,  Mr. 
Gunderson.  He proposed  a  solution that they found 
reasonable.

     The matter apparently would have ended there, except 
that in a discussion with Bob Hanson about  safety matters
in general, Belveal and Allen used the entries as an example
of safety problems in the mine.  Evidently not  aware that
they were satisfied  with  Gunderson's  solution,  Hanson
called Mr. Heath into the meeting and apprised him of the
situation.

     Mr. Heath, believing that the two miners  had  taken 
the specific problem from Gunderson to the Safety Director,
rather than to him,  gave  the  miners oral reprimands on
December 3, 1993, for not following the chain of command.
Although the reprimands were oral, they were noted in the
miners's personnel files as disciplinary letters.

     On December 5, the two miners mailed a 105(c) complaint
to MSHA  concerning  the reprimands.  On December 6, Belveal
and Allen informed Mr. Heath  that they did not  agree with
the reprimands and were invoking the  grievance procedures
to  have  them  removed.   After  several  steps  in  the
grievance  procedure,   the  letters  were  removed  from
Belveal's and Allen's files  on  January  20,  1994.   In
February  1995,  Belveal  and Allen wrote to MSHA stating
that they wished to drop the 105(c) action.

               FINDINGS OF FACT AND CONCLUSIONS OF LAW

     In  order to establish a prima facie  case  of  
discrimination under  Section  105(c) of the Act,[3] a 
complaining miner bears the burden  of  establishing (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. 
Consolidation Coal Co., 2 FMSHRC 2768 (1980), rev'd  on 
other  grounds  sub nom. Consolidation  Coal  Co.  v. 
Marshall, 663 F.2d 1211  (2d Cir. 1981); Secretary on 
behalf  of  Robinette  v. United Castle Coal Co., 3 FMSHRC
803 (1981); Secretary on behalf of  Jenkins  v.  Hecla-Day 
Mines  Corp.,  6  FMSHRC 1842 (1984); Secretary on behalf
of Chacon v. Phelps  Dodge Corp., 3 FMSHRC 2508 (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 part motivated by the 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
was also motivated by the  miner's  unprotected  activity
and   would   have  taken  the  adverse  action  for  the
unprotected activity  alone.   Id.  at 2800; Robinette, 3
FMSHRC at 817-18; see also Eastern Assoc.  Coal  Corp. v.
FMSHRC,  813  F.2d  639, 642 (4th Cir. 1987); Donovan  v.
Stafford Const. Co.,  732  F.2d  954,  958-59  (D.C. Cir.
1984); Boich v. FMSHRC,  719  F.2d 194, 195-96 (6th Cir. 
1983) (specifically  approving  the  Commission's Pasula-
Robinette test).

     In  the Amended Complaint of Discrimination filed by
the Secretary on behalf of Mr. Belveal it was alleged that
he suffered the following acts of discrimination: (1) As a
result  of  filing a 105(c) complaint on October 6, 1993,
he was placed  on  temporary  total disability on October
19,  1993, for a knee injury received  on  September  28,
1993,  rather  than being placed on light duty like other
miners; and (2)  As a result bringing a safety problem to
the  attention  of  the   mine   manager,   he   received
disciplinary action on December 3, 1993.

     The allegations of discrimination are phrased somewhat
differently in his post-hearing brief. There he argues:

     When Mr. Belveal injured  his knee and subsequently saw Dr.
     Miller, he was to be placed  on alternate duty, as Cudo and
     Jones  had  been.  Instead, Belveal  was  returned  to  his
     original job  of roof bolting and saw no improvement in his
     knee.  As a result of being refused modified  duty,  Mr. 
     Belveal  was  forced  to be placed on temporary disability 
     which  resulted in an economic loss.  In addition  to  the 
     denial of light  duty,  Belveal  received  a reprimand in a 
     situation where a reprimand was certainly not justified.

(Br. at 17.)

     There  is  no doubt that filing 105(c) complaints, 103(g)
investigation  requests   and  raising  safety  concerns  with
management,   either  as  a  representative   of   miners   or
individually, is activity protected under the Act.  Therefore,
I  find  that  Mr.  Belveal  engaged  in  protected  activity.
However, I conclude that, with respect to his knee injury, Mr.
Belveal did not suffer any adverse action and that, even if he
did, it was not  related to his protected activity.  I further
conclude, with respect  to  the  reprimand, that it was not in
any part motivated by his engaging in protected activity.

     The  Complainant  waited two  weeks to  decide  that  he 
needed medical attention for his knee. When he did decide to go,
he failed to  follow  company policy and notify his supervisor,
even though he knew he was supposed to  do  that,  he had been
reminded the day before that he was supposed to do that and he
knew  that  someone  from management was supposed to accompany
him to the doctor.  Consequently,  I  find  that any confusion
over his work status after his first visit to  the  doctor was
caused by him.

     The  two  other  instances  of roof bolters being assigned 
to drive a tractor are distinguishable  from  his. In the first
place, a supervisor had accompanied both miners to  the doctor
so  that  both  management  and  the  miner  were aware of the
limitations established by the doctor.  In the  second  place,
both miners specifically asked for other assignments when they
returned to work.[4]

     On  the other hand, since no one from the company  went to 
the doctor's with Mr. Belveal, the evidence is confused, although
not necessarily contradictory, as to what Mr. Belveal  could do
on  his return.   Dr.  Miller  testified  that  "[i]t  was  my
understanding  that  he  would  not be doing his regular job."
(Govt. Ex. 1, p. 12.)  Mr. Heath testified that:

     . . . I suggested to the doctor that,  you  know, as a roof
     bolter that he works on a platform, and I explained  to him
     how the bolter was laid out and basically what he could do,
     and as we discussed that more and more the doctor felt,  or
     my understanding of the conversation, was that the platform
     would  be  the  best  place for him, and I reached the same
     thought.

(Tr. 416.) Mr. Heath further stated "I told him [Dr. Miller] that
other jobs that he normally would do along with the roof bolter,
that  we  would  see  that  someone  else  did that."  (Tr. 419.)
Finally, the  Complainant  testified  that  "I  was  under  the
impression I was to return to something other  than my regular 
job, which was not roof bolting."  (Tr. 240.)

     When Mr. Belveal returned to work that night, he questioned
Terry Gunderson about returning to roof bolting.  He testified
that:

     I talked  to  him  a  little bit about it, indicated that I
     didn't think that the doctor  was  --  you know, going back
     and running the bolter was really what the  doctor  had  in
     mind  as far as taking care of my knee, and he indicated to
     me that he had talked with Mr. Heath about that, and he had
     been told that everything was okay and that I was basically
     to take care of it.

(Tr. 248.)   He  further  testified  that  he  did  not  recall Mr.
Gunderson offering any other type of work in the mine.

     On  the  other  hand,  Terry  Gunderson  testified  as follows
     concerning Mr. Belveal's return to work:

     Q.  . . . Did you have a conversation with Gary Belveal  on
     October  12  at  the beginning of the swing shift about his
     trip to the doctor?

     A.  Yes, I did.

     Q.  Did he advise you about what he understood had occurred
     as far as the doctor visit?

     A.  No.  Somehow I  knew,  and  I  believe  Roland had said
     something to the effect of climbing and walking up a grade.

     Q.  Okay.  That would be problems that he would have?

     A.  Yes.

     Q.  Okay.  Did you discuss with Gary Belveal the fact that you
     understood he had some limitations?

     A.   I  went  out  and  I  told  Gary  that  I had other  work
     available.

     Q.  Okay.  Did you discuss what these other jobs were?

     A.  No.

     Q.  Okay.  You told Gary that he could do work other than roof
     bolting for you?

     A.  That I had other work available, yes.

     Q.  Okay.  And did Gary Belveal ask to be assigned to some job
     other than a roof bolter?

     A.  No.

(Tr. 460-61.)

     There is no  doubt  that on his release, Dr. Miller only 
limited Mr. Belveal to  working  on level surfaces.  This  is 
certainly consistent  with  Mr.  Heath's  recounting  of  his 
discussion  with Dr.  Miller  that a roof bolter  worked on a 
level platform and is not refuted by the doctor's deposition.

     More significantly,  by  his own account, Mr. Belveal made 
no complaint or request not to return to roof bolting after his
initial  discussion  with  Mr.  Gunderson.   Furthermore,  Mr.
Belveal's failure to recall whether Mr. Gunderson  offered him
other work is particularly consequential in view of  the  fact
that Mr. Belveal went to great lengths to document his case as
evidenced  by  the three file folders of notes he brought with
him to the hearing  and  one would not expect him to be unable
to recall so crucial a matter.

     Finally,  while there is evidence that Mr. Belveal's knee
injury was not aggravated  by  his return to roof bolting, the
record is silent as to whether the  extra  week  prevented the
knee from healing and, therefore, caused him to be  placed  on
temporary  total  disability.   There  is  no  doubt  that Dr.
Pinson's taking  the Complainant  off  of  work for eight days 
was purely  a medical  decision in  no way  influenced  by the 
company.

     Accordingly, I conclude that Mr. Belveal's return to roof
bolting  was  not  an  adverse  action by the company, but was
mainly the result of his actions.   I further find that, based
on the evidence in this record, Mr. Belveal  would  have  been
put  on temporary disability the next week even if he had been
given  other  work,  so  that  even  if  returning him to roof
bolting was an adverse action, it did not  result in his being
placed   on   disability.   Lastly,  even  if  returning   the
Complainant to  his  job was an adverse action which did cause
him to be placed on temporary  disability,  there  is nothing,
other than a closeness in time, to connect his filing  of  the
105(c)  complaint  on  behalf  of  all miners with the adverse
action of which he complains.

     Nor is there any evidence that the reprimand received  by 
Mr. Belveal for not following the chain of command  was related
to any of his complaints or safety questions. Viewing the matter
two  years  after  it  occurred, it is apparent that  Mr. Heath
misunderstood the situation  when  he  issued  the  reprimand.
However,   there   is   no   evidence   that  he  deliberately
misunderstood or that the reprimand was merely a subterfuge to
get back at Mr. Belveal for his complaints  and  investigation
requests.

     In  addition, I do not find it significant that at  the  
first step  grievance proceeding Mr. Heath suggested that the 
105(c) complaints  over the reprimands be withdrawn if he 
removed the reprimands from  Messrs.  Belveal's  and  Allen's
files.  That seems  to  be  a  reasonable  quid  pro quo.  
Furthermore,  it appears  that  the only reason that the  
complaints  were  not withdrawn until over a year later was 
so that the miners could use them as leverage in negotiating
with  the  company over exactly what the chain of command would
be.

                                ORDER

     I conclude that Mr. Belveal engaged in protected activity 
but that he either was not discriminated against by the company
for engaging in that activity, or if he was treated adversely,
it was not because  he  engaged  in the protected activity but
because of his own real or perceived misconduct. Accordingly, it
is ORDERED that the complaint of the Secretary filed on behalf of
Gary  Belveal  against Western Fuels Utah, Inc., under Section
105(c) of the Act, is DISMISSED.


                                T. Todd Hodgdon
                                Administrative Law Judge


Distribution:

Margaret A.  Miller,  Esq., Office of the Solicitor, U.S.
Department of Labor, 1999 Broadway, Suite 1600, Denver,
CO  80202-5716 (Certified Mail)

J. Keith Killian, Esq., Keith Killian & Associates, P.C.,
Western Fuels Utah, Inc.,  225  North  Fifth, Suite 1010,
P.O. Box 4848, Grand Junction, CO  81502 (Certified Mail)

/lt


  **FOOTNOTES**

     [1]: Swift et al v. Consolidation Coal Co.,  14  FMSHRC  361
(Judge  Melick,  February  1992).  This decision was subsequently
reversed by the Commission.   Swift  et  al v. Consolidation Coal
Co., 16 FMSHRC 201 (February 1994).

     [2]: Section 103(g)(1) of the Act, 30  U.S.C.    813(g)(1),
provides, in pertinent part:

          Whenever a representative of the miners . . .  has
     reasonable  grounds to believe that a violation of this
     Act or a mandatory health or safety standard exists, or
     an imminent danger  exists,  such  . . . representative
     shall have a right to obtain an immediate inspection by
     giving notice to the Secretary . . .  of such violation
     or  danger.   Any  such  notice  shall  be  reduced  to
     writing, signed by the representative . . . and  a copy
     shall  be  provided  the operator or his agent no later
     than at the time of the inspection . . . .  The name of
     the  person  giving  such   notice  and  the  names  of
     individual miners referred to  therein shall not appear
     in such copy or notification . . . .

     [3]: Section 105(c) of the Act provides  that  a  miner
cannot  be  discharged, discriminated  against or interfered
with in the exercise of his statutory rights because: (1) he 
"has filed or made a complaint under or related to this Act, 
including a complaint .  . . of an alleged  danger or safety
or health violation;"  (2) he "is  the  subject  of  medical 
evaluations and potential transfer under a standard published 
pursuant to section 101;" (3) he "has instituted or caused to
be instituted any proceeding under or related to this Act or 
has testified   or   is   about  to  testify  in  any  such
proceeding;"  or, (4)  he  has  exercised  "on  behalf  of
himself or others . . . any statutory right afforded by this
Act."

       [4]:  Mr.  Cudo's  amputated  finger obviously left no
doubt that he could not  return to roof  bolting, even  if he 
had not requested other work.