<DOC>
[DOCID: f:kt200122.wais]

 
BR&D ENTERPRISES, INC
August 31, 2001
KENT 2001-22-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041

                         August 31, 2001

SECRETARY OF LABOR,              : DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION, on behalf of   :
  DEWAYNE YORK,                  : Docket No. KENT 2001-22-D
               Complainant       :            BARB-CD-2000-06
          v.                     :
                                 : BR&D #3 Mine
BR&D ENTERPRISES, INC,           : Mine ID 15-18028
               Respondent        :

                             DECISION

Appearances: Joseph B. Luckett, Esq., Associate Regional
             Solicitor, U.S. Department of Labor, Nashville,
             Tennessee, for Complainant:
             J. P. Cline, III, Esq., Middlesboro, Kentucky,
             for Respondent.

Before: Judge Zielinski

     This matter is before me on  a  complaint  of discrimination
filed  by  the  Secretary on behalf of Dewayne York  pursuant  to
section 105(c)(2)  of  the  Federal Mine Safety and Health Act of
1977 (the "Act"). 30 U.S.C.   815(c)(2).  The complaint seeks an
order declaring that Respondent,  BR&D  Enterprises, Inc. (BR&D),
discriminated against York and other relief  including  back  pay
and  benefits,  as well as a civil penalty in the proposed amount
of $7,000.00.  A hearing was held in Pineville, Kentucky on April
17, 2001 and the  parties  submitted  briefs following receipt of
the   transcript.    The  Secretary  had  previously   filed   an
Application for Temporary  Reinstatement  on  behalf  of York.  A
hearing  was  held on the application and on August 29, 2000,  an
order was issued  directing  that  York be temporarily reinstated
pending completion of the investigation  of  his  allegations and
final  decision  on any formal complaint that might be  filed.[1]
The parties have stipulated  that  the record of proceedings from
the temporary reinstatement hearing  be included in the record of
this  case.   For  the  reasons  set forth  below,  I  find  that
Respondent did not discriminate against  York in violation of the
Act.


                         Findings of Fact

     Dewayne  York  had been employed by BR&D  for  approximately
seven of his ten years  as a miner.  He worked at the #3 mine for
12-14 months prior to being  terminated on May 25, 2000, and held
the position of roof bolter operator  on the #1 shift at the time
of his discharge.  By all accounts, York  was  a  good worker and
there were no complaints about his work performance.

     The work crew in a section of the mine consisted  of  twelve
men,  four  of  whom  operated  two  roof  bolting  machines,  or
"pinners", referred to as the "intake" and "return" pinners.  The
power  cables  of  the  "intake"  pinner  ran along the right, or
intake,  side  of  the mine entries, and those  of  the  "return"
pinner ran along the  left  or  "return"  side.  York and Charlie
Price  operated  the  "intake" pinner.  John Simpson  and  George
Black operated the "return"  pinner.  After the continuous mining
machine had driven an entry past  where  a crosscut would be made
and the area had been bolted, the miner would then make a 32 foot
deep cut at the face, back away from the face into the previously
mined area and make another cut by turning right and starting the
crosscut.  Even though roof bolts had been installed in that area
of  the  entry,  the  newly created intersection  was  considered
unsupported and BR&D's  approved roof control plan specified that
no miners were allowed to  enter  it until temporary supports, or
two  rows  of  bolts, had been installed  in  the  newly  created
crosscut.[2]  Under  the plan, the intake pinner would proceed up
the entry and install  the  required two rows of bolts.  It would
then be backed out of the entry  and  allow  the return pinner to
proceed up the entry past the crosscut to bolt the new cut at the
face.  The intake pinner would then return to  finish bolting the
crosscut.  It would take approximately 15 minutes  for the intake
pinner  operators to install the two rows of bolts and  back  the
machine out of the entry to allow the return pinner access to the
face.

     At  least   since   the  beginning  of  York's  most  recent
employment at the #3 mine,  BR&D followed a mining procedure that
violated its approved roof control  plan.   Rather  than wait for
the  intake pinner to install two rows of bolts in the  crosscut,
the  return   pinner  and  its  crew  would  travel  through  the
unsupported intersection  to  bolt the new cut at the face.  York
himself also entered the unsupported  intersection  to  help hang
the  power cable for the return pinner.  The intake pinner  would
then be  brought  into  the entry to bolt the new crosscut.  With
the  possible  exception  of  York,  the  roof  bolter  operators
preferred  this  "illegal"  procedure.    It  allowed  both  roof
bolters  to  finish  sooner  because   the  return  pinner  could
immediately begin to bolt the entry and  the  intake pinner would
not have to stop bolting to back out of the entry  and  allow the
return pinner access to the heading.  This resulted in more break
time  for pinner operators, particularly the return pinners,  who
did not  feel that the "illegal" procedure was hazardous, because
they did not  believe  that  the  stability  of  the  roof in the
intersection  would be significantly enhanced by the addition  of
two rows of roof  bolts  in  the crosscut and the additional time
required  to  install  the bolts  could  result  in  sagging  and
deterioration of the roof in the newly cut heading.

     This deviation from the roof control plan was not the result
of instruction or directives  by management.  In fact, the miners
were aware that they were not permitted  to enter the unsupported
intersection and had signed acknowledgments  to  that  effect  at
annual  training  sessions.  Despite this knowledge and training,
however, the "illegal"  method  was the practice preferred by the
roof bolter operators and was accepted  by  Jackie  Jaggers,  the
foreman.   Jaggers had a fairly contentious relationship with the
miners, particularly  York.   There  was  a good deal of give and
take  and  the miners generally felt free to  raise  issues  with
Jaggers and  inform  him of conditions that affected their safety
and the mining operation.

     The miners typically  encountered  draw rock.  Draw rock, or
"draw slate" is "soft slate, shale, or rock  approx.  2 in. (5.08
cm)  to  2  ft. (0.61 m) in thickness, above the coal, and  which
falls with the  coal  or  soon  after  the  coal  is removed."[3]
During a period of several weeks in late March and  early  April,
2000,  however,  the  draw rock was unusually thick and unstable.
Virtually all of the roof  bolters  called  this  problem  to the
attention   of  Jaggers,  who  instructed  the  continuous  miner
operator to try and cut down some of the draw rock.[4]  While the
miner operator was able to cut some of it down,  he could not get
it all and would let the bolter operators know if conditions were
particularly  bad.  The presence and location of draw rock at the
mine was highly  variable,  and  it  was  not always possible, or
advisable,  to cut it down.  Sometimes, the  preferred  procedure
was to allow  some  draw  rock  to  remain,  rather than cut down
significant good roof to try and remove it.  In  such  cases, the
roof bolters were to pry the loose rock down with a bar,  or make
sure that it was securely bolted.[5]

     Around  April  1, 2000, York, who had experienced roof falls
attributable to draw  rock,  decided  that  he would not continue
with the "illegal" bolting procedure.  He told  Jaggers  that  he
would  not do so, which dictated that the procedure called for by
the roof  control  plan  be followed.  The other pinner operators
did not feel strongly about  the draw rock conditions but did not
object to the change in procedure,  feeling  that York was within
his  rights to take the position that he did.   Jaggers  did  not
verbally respond to York.  He just shrugged and walked away.  The
roof bolters  then proceeded to bolt in conformance with the roof
control plan.

     Jaggers, who  was somewhat temperamental, sulked for a while
after York insisted  on  bolting  in  conformance  with the plan.
However, he did not treat York any differently than  any  of  the
other  miners.   The  effect  of  the  change  was  minimal.   By
operating  the  two  roof bolting machines, rather than just one,
BR&D had ample roof bolting capacity.  Consequently, the 15 or so
minutes that the return  pinner  had  to  wait while the crosscut
intersections were bolted did not interfere  with production. The
return  pinner operators were not particularly  happy  about  the
procedure,  because  they were unable to take breaks later in the
day.

     On May 25, 2000, there was an unusually heavy rainstorm that
caused flooding and power outages at the #3 mine and the adjacent
#4 mine.  York and the  other miners arrived about 6:00 a.m., and
waited at the mine site.   York  rode to work in Black's vehicle,
along with Wendell Fuson, the continuous miner operator.  Stanley
Ditty, BR&D's president and owner,  was  intent on producing coal
that day as soon as power was restored because  customers were in
need  of  coal at that time.  He had informed his superintendent,
Randy Phelps,  that the miners should remain at the site and they
were so instructed.   The  men were periodically advised that the
power would likely be restored in a few minutes, predictions that
proved unfounded.  By 8:30 or  9:00  a.m., the power had not been
restored, and the miners tired of waiting.  It was York's and the
other miners' understanding from prior experience that they would
not  be paid until they actually started  working.   Despite  the
instructions  to  stay,  some  of the miners decided to leave the
mine site.  Black, York and Fuson  left in Black's vehicle.  York
left because he believed he would not  be  paid  for  waiting and
because Black and Fuson were leaving.  They went to Fuson's  home
and  remained  in the driveway, where they could observe the road
to the mine and see whether other miners also left.  In all, some
thirteen miners, including York, left the site.

     Ditty arrived  at  the  mine site about 9:30 a.m., after the
power had been restored.  When  he  was told that some of the men
had left the mine, he determined that  he  would  discipline  the
absent  miners  by  suspending  them  for  three  days, until the
following Tuesday.  Ditty did not consult with Phelps  or Jaggers
about  his decision to discipline the men, but did inform  Phelps
what he had decided and began to call the homes of the miners who
had left.   He  spoke  to  York's  wife, Dejuana,[6] and inquired
about York's whereabouts.  Mrs. York  thought  her husband was at
work.  Ditty informed her that he, and other miners, had left the
mine.  She asked what was going on and Ditty informed  her of the
flooding  and power outage and stated that her husband was  being
suspended.  She remarked that York, who had been aggravated about
the draw rock  condition,  was not happy working at that mine and
Ditty responded that York could  find another job. Ditty intended
only to note the obvious, i.e., that  York  was  free  to  find a
different  job  if  he  was unhappy working at BR&D.  His comment
apparently was misinterpreted by Mrs. York.

     Mrs.  York called Black's  wife,  Lori,  and  Fuson's  wife,
Jennifer, to see if they knew where the men were.  Jennifer Fuson
called her neighbor  to  see  if  the men were outside of Fuson's
home, and the neighbor called Fuson  to  the phone.  She informed
him that the miners who had left were being  suspended  and  that
York  was  being  fired.  Fuson told Black and York what his wife
had said and then used  his  phone to call the mine and talked to
Ditty, who informed him that he  was  being  suspended  for three
days.  York called his wife, who repeated what she had told  Mrs.
Fuson, and told him he needed to talk to Ditty.

     York called Ditty, who asked why he had left the mine.  York
explained  that  he  didn't  think  he  was  being  paid.   Ditty
questioned  how  York  could  believe  that, asked him to cite an
example  to support his belief.  York replied  that  he  couldn't
cite a specific example, but there were times when he hadn't been
paid.  Ditty disagreed and told York that he was suspended.  York
protested  that  other  miners had left the site and Ditty stated
that  they  were  also  being   suspended.   York  protested  the
suspensions as unfair and then cursed  Ditty.   Ditty told him to
find  another  job and York responded that he would  see  him  in
court.  Ditty spoke  to  Phelps around noon that day and told him
that he had fired York for  insubordination, that York had cursed
him.  York later called the mine  and  spoke  to Phelps and asked
him why he had been fired.  Phelps responded that  he  needed  to
talk to Ditty.

     York  filed  a  complaint of discrimination with MSHA on May
26, 2000, alleging that  he had been discharged for making safety
complaints. The Secretary  filed  an  Application  for  Temporary
Reinstatement  on  his  behalf,  which  was  granted following  a
hearing.   The  Secretary subsequently filed this  discrimination
action.

          Conclusions of Law - Further Factual Findings

     A  complainant   alleging   discrimination   under  the  Act
typically  establishes a prima facie case by presenting  evidence
sufficient to  support  a conclusion that he engaged in protected
activity and suffered adverse  action  motivated  in  any part by
that  activity.   See  Driessen  v.  Nevada Goldfields, Inc.,  20
FMSHRC 324, 328 (Apr. 1998); Sec'y of  Labor  on behalf of Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd
on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663
F.2d 1211 (3d Cir. 1981); Sec'y of Labor on behalf  of  Robinette
v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 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
way motivated by protected activity.  See Robinette, 3  FMSHRC at
818 n. 20.  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  817-18; Pasula,  2 FMSHRC
at 2799-800; see also Eastern Assoc. Coal Corp.  v.  FMSHRC,  813
F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-Robinette
test).

     York  has  clearly  established two of the three elements of
his prima facie case, i.e., that he engaged in protected activity
and  suffered  adverse action,  i.e.,  he  was  discharged.   His
expressions of concern  about adverse roof conditions, as well as
concerns  about dust and deep  cuts,  all  qualify  as  protected
activity.  More significantly, his refusal to continue to bolt in
a  manner  violative  of  the  roof  control  plan,  clearly  was
protected activity under the Act.

     Respondent  argues  that  York  failed  to establish that he
engaged in protected activity because he failed to prove that his
concerns  about  safety  issues  were not properly  addressed  by
Jaggers.  The manner in which York's  concerns were addressed may
be relevant to other issues, but it has  no bearing on whether he
engaged in protected activity.   A complaint  made to an operator
or its agent of "an alleged danger or safety or health violation"
is specifically described as protected activity in  105(c)(1) of
the  Act and it is clear that York engaged in protected  activity
prior to his discharge.

Unlawful Motivation

     The  Commission  has frequently acknowledged that it is very
difficult to establish  "a  motivational  nexus between protected
activity  and  the  adverse  action that is the  subject  of  the
complaint."   Sec'y on behalf of  Baier  v.  Durango  Gravel,  21
FMSHRC 953, 957  (Sept.  1999).  Consequently, the Commission has
held that "(1) knowledge of the protected activity; (2) hostility
or animus towards the protected  activity; and (3) coincidence in
time between the protected activity  and  the adverse action" are
all circumstantial indications of discriminatory intent.  Id.

     Here there is no direct evidence of unlawful  motivation for
York's  discharge.  There is also no direct evidence  that  Ditty
was aware  of York's protected activity.  York confirmed that, in
general, communications followed the chain of command and that he
voiced his concerns  to Jaggers, not to Phelps or to Ditty.  York
suspected that Ditty had  been told of his protected activity and
was hostile toward it.  His  suspicion  was  based  solely on the
fact that Jaggers had spoken to Ditty one day when he  was at the
mine and that Ditty did not come out and speak with the  men that
day.   However,  there  is  nothing to suggest that it would have
been unusual for Jaggers to have  conversed  with  Ditty  when he
visited  the  mine and Black testified that there were many times
when Ditty was  at  the  mine  that  he  didn't speak to the men.
Jaggers, Phelps and Ditty all testified that York's concerns were
not  passed  up the chain of command.  Because  Ditty  came  into
contact with Jaggers  on  his  visits  to  the  mine, it would be
permissible to infer that Jaggers told Ditty of York's  protected
activity.  I decline to make such an inference here and find that
during the events of May 25, 2000, Ditty was not aware that  York
had  engaged  in  protected  activity  and  that  his decision to
discharge  York was not motivated in any way by York's  protected
activity.

     York presented  a  considerably  more compelling case at the
Temporary  Reinstatement  Proceeding.  He  portrayed  himself  as
somewhat of a spokesman for  the  other  miners  on  a variety of
issues,  including  dust  and  deep  cuts.   Most  significantly,
however,  he claimed that his insistence on compliance  with  the
roof  control  plan  resulted  in  a  10-15%  reduction  in  coal
production,  which  reflected adversely on Jaggers and Phelps and
which Ditty was sure  to  have  known about.  He claimed that the
miners didn't like it because it  interfered  with  their running
coal,  that  Jaggers  showed  hostility  toward  him  by  largely
refusing  to  talk  with  him  and  that  Phelps,  too, no longer
initiated  conversations with him.  Had these facts been  proven,
they would have  easily  justified  an  inference  that Ditty was
aware  of York's protected activity and that it may have  been  a
motivating factor in his reaction to the events of May 25, 2000.

     Unfortunately for claimant, the evidence materialized on the
opposite   side  of  those  claims.   The  miners  who  testified
uniformly stated  that  York  was not regarded as a spokesman for
them and that they all complained  to  Jaggers  about issues that
concerned  them,  including the troublesome draw rock  they  were
encountering in March  and  April, 2000.  While York was the only
one who insisted on bolting in  conformance with the roof control
plan, that action was less significant than originally claimed in
light of the other miners' complaints  and  the  nature  of their
relationship with Jaggers.  The other miners also testified  that
there  was  no  noticeable change in Jaggers' or Phelps' attitude
toward York after  he  took  his  stand,  and  that  York was not
treated any differently than other miners by Jaggers,  Phelps  or
Ditty, either before or after April 1, 2000.

     Most  significantly,  however, production reports introduced
into evidence at the hearing  in this case established that there
was no fall-off in production on  or  around April 1, 2000, which
was substantiated by virtually every witness.   York,  forced  to
abandon  his  contention  that production was adversely affected,
testified  that  roof  bolting   and  other  functions,  such  as
scooping, were slowed, but failed  to  explain,  or  to introduce
evidence to establish, why such developments would have adversely
affected  mining  operations  in  a  manner  to be of concern  to
Jaggers, or to an extent that Ditty would likely  have been aware
of  them.  The most significant result of the change  in  bolting
procedure  appears   to  be  that  the  return  pinner  operators
essentially lost some  free  time they had used for breaks,[7] an
issue unlikely to have been of  particular  import  to Jaggers or
one  that  he  would  have felt compelled to bring to Phelps'  or
Ditty's attention.

     The Secretary argues  that  unlawful  motivation  should  be
found  because  "[t]here  is  a reasonable inference that Jaggers
discussed the safety complaints  by  York and his refusal to bolt
illegally with Ditty," the discharge was  "so  close"  in time to
the  protected activity, there was demonstrated hostility  toward
it and BR&D's justification was pretextual.[8]   The facts of the
cases  relied  upon  by the Secretary, however, are substantially
different than those proven  here.   As noted above, the facts of
this case do not justify an inference  that  Ditty was made aware
of  York's protected activity.  I found Ditty to  be  a  credible
witness, whose position at the Temporary Reinstatement Proceeding
hearing  was  largely substantiated by the evidence introduced at
the hearing of  this  case  and I credit his testimony, which was
consistent with other witnesses', that as of May 25, 2000, he had
not been advised of and had no  knowledge  or  information of any
protected activity by York.[9]

     York's discharge was not particularly close  in  time to his
protected  activity.  Nor is there any evidence of animus  toward
his protected  activity  by Phelps or Ditty.  Ditty, himself, was
properly concerned about safety  issues,  including roof control.
He operated two roof bolting machines, when  he likely could have
operated one.  More significantly, he directed  that  the bolters
install 5 bolts per row, though the roof control requires only 4.
As  he  explained,  the  extra  bolts  were  installed to provide
additional roof support and the cost of installing them came "out
of  [his] pocket."  Ditty also had no personal  animosity  toward
York.   He had loaned York money in the past and had accommodated
a limited work schedule when York had suffered an injury and gave
him a couple  of days off to attend to a child's illness. Jaggers
did  evidence  some   animosity   after  the  change  in  bolting
procedures, sulking for a few days.   However, that animosity was
directed  toward  all  of  the miners and was  not  significantly
different than his normal demeanor.   As  Simpson stated: "Jackie
is just Jackie."

     The  Secretary's  "pretext"  argument  is   based  upon  her
crediting  of  testimony  to the effect that York did  not  curse
Ditty  during  the phone conversation.   I  reached  a  different
conclusion.  The  evidence as to both the substance and timing of
the various phone conversations on May 25, 2000, was conflicting.
I have credited Ditty's  testimony  regarding  the  conversations
because  I  find  them  reasonable  and  because  of  my  overall
assessment  of  his  credibility.  As to the critical issue, York
testified that he did not curse Ditty and Ditty testified that he
did, using just one or  two common curse words.  Black and Fuson,
friends of York, both overheard  York's  end  of the conversation
and  testified  that  they did not hear him curse  or  raise  his
voice.  However, Black  was  on  the porch some 25 feet away from
York  and  admitted  that  it  was  "possible  that  [he]  missed
something," though he did not believe  that  he  had.  Fuson also
admitted  that  he  was  momentarily  distracted  by a neighbor's
yelling,  but  also  did  not  believe  that  he missed anything.
Accepting    the   Secretary's   argument   that   a   pretextual
justification  can support an inference of unlawful motivation, I
find  no pretext  in  Ditty's  explanation  of  his  decision  to
discharge York.

                              ORDER

     For  the  reasons stated above, I find that Ditty's decision
to discharge York  was  not  motivated  in  any  part  by  York's
protected  activity. Accordingly, the complaint of discrimination
is hereby DISMISSED.[10]


                              Michael E. Zielinski
                              Administrative Law Judge


Distribution:

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002  Richard  Jones  Rd.,  Suite  B-201, Nashville, TN
37215 (Certified Mail)

J.  P. Cline III, Esq., P.O. Drawer 2220, Middlesboro,  KY  40965
(Certified Mail)

/mh

**FOOTNOTES**

     [1]: The  Order  was subsequently amended, at the request of
the parties, to provide  for  York's economic reinstatement.  The
Temporary Reinstatement Proceeding was conducted under Commission
Docket No. KENT 2000-255-D.

     [2]: The roof control plan  provided  that:  "Openings  that
create an intersection will be supported by permanent supports or
be  supported  with  two  rows  of  temporary  supports on 5-foot
centers  across  the  opening  before any work or travel  in  the
intersection."

     [3]: American Geological Institute,  A Dictionary of Mining,
Mineral and Related Terms 168 (2d ed. 1996).

     [4]: In addition to his complaints about  draw  rock,  which
were  also  voiced by other bolter operators, York had complained
on occasion to  Jaggers  about  excessive  dust attributable to a
failure  to install line curtain and excessively  wide  and  deep
cuts made  by  the continuous miner.  He did not attempt to bring
any of his safety concerns to MSHA officials and did not speak to
any other management officials about them.

     [5]: The roof  control  plan also provided that when adverse
roof conditions were encountered,  extended  cuts of 32 feet were
to be reduced to the standard 20 feet.  While there may have been
some reduction in the depth of cuts, generally,  mining proceeded
with the extended 32 foot cuts.

     [6]: Mrs. York was at work that morning and received  a call
from  her son, who advised that Ditty was looking for York.   She
then called the mine site and spoke to Ditty.

     [7]: One  of  the roof bolters, George Black, testified that
they went back to bolting  illegally  because he and John Simpson
"got tired" of the loss of their break  time.  Others denied that
they  had  returned to the illegal roof bolting  practice.   York
testified that  they  returned  to  the  illegal practice several
weeks  before  his termination, at his request,  because  he  was
concerned about  loss of his job.  I reject that testimony, which
was not consistent with any other miner's.  If there was a return
to the illegal practice,  which  likely  happened,  at  least  on
occasion,  it  was  a  result of the bolters' desire to get their
additional break time and not at the request or urging of York.

     [8]: Brief for the  Secretary, at pp. 34-36, citing, NLRB v.
Health Care Logistics, Inc.,  784  F.2d 232, 236 (6th Cir. 1986);
Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 230 (D.C. Cir. 1995)
and Abbey's Transportation Services,  Inc. v. NLRB, 837 F.2d 575,
579 (2d Cir. 1988).

     [9]: Jaggers denied that he had ever advised Phelps or Ditty
of any of York's protected activity.  Phelps  testified  that  he
had  no  knowledge of any complaints made by York and that he had
never discussed  any  complaints  by  York  with Jagger or Ditty.
Ditty testified that he had no knowledge or information that York
had made safety complaints.  As the Secretary points out, Jaggers
also testified that York never complained to  him  and  that  the
roof   control   plan   had   always  been  followed,  which  was
contradicted by virtually every  other  witness with knowledge of
those   facts.    While   Jaggers'   credibility   is   certainly
questionable,  it  does  not  reflect adversely  on  Phelps'  and
Ditty's credibility.  Their testimony  is consistent with that of
other witnesses' on significant issues.

     [10]: The Decision and Order of Temporary  Reinstatement, as
amended,  remains  in  effect  until there is a final  Commission
decision  on the complaint.  Sec'y  on  behalf  of  Bernardyn  v.
Reading Anthracite Co., 21 FMSHRC 947 (Sept. 1999).