.
MANALAPAN MINING COMPANY
March 6, 2003
KENT 2002-203-D

         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                601 New Jersey Avenue, Suite 9500
                     Washington, D.C.  20001

                          March 6, 2003

SECRETARY OF LABOR,              :     DISCRIMINATION PROCEEDING
     MINE SAFETY AND HEALTH      :                 
     ADMINISTRATION (MSHA)       :
    on behalf of DANNY FOUST,    :     Docket No. KENT 2002-203-D
               Complainant       :     BARB CD 2001-15
          v.                     :
                                 :     Preparation Plant
MANALAPAN MINING COMPANY,        :     Mine ID 15-12602
               Respondent        :

                             DECISION

Appearances:        Donna E. Sonner, Esq., Office of the Solicitor, 
                    U.S. Department of Labor, Nashville, Tennessee, 
                    for Complainant, Susan C. Lawson, Esq., 
                    Lawson & Lawson, P.S.C., Harlan, Kentucky, 
               For Respondent.

Before:        Judge Zielinski

     This case is before me on a complaint of discrimination filed 
by the Secretary of Labor on behalf of Danny Foust under Section 105(c)(2) 
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.  815(c)(2) 
("the Act").  The Secretary alleges that Manalapan Mining Company 
("Manalapan") discriminated against Foust by terminating his employment on 
May 31, 2001, as a result of his complaints about safety.  A hearing was 
held in Harlan, Kentucky. Following receipt of the hearing transcript, 
the parties submitted briefs.  For the reasons set forth below, I find that 
Respondent did not discriminate against Foust and dismiss the complaint.

                         Findings of Fact

     Manalapan has produced coal in and near Harlan County, Kentucky for 
many years. After closing a facility at Brookside, Kentucky in 1997, it 
operated two facilities, the Highsplint Division and RB Coal, both consisting 
of underground mines, preparation plants and load-out facilities.  Over the 
years, reductions in the market price of coal and decreasing quality of
mineable coal have resulted in constriction of Manalapan's operations.  
The Highsplint operation effectively closed on September 14, 2002.  
Tr. II 88-89; ex. R-11.
     Danny Foust had been employed at a coal preparation plant owned by 
Great Western Coal, and was laid off when that operation shut down in 1995.  
In 1997, he began working for Manalapan, operating a bulldozer loading coal 
in the mines at Highsplint.  Later, he worked on the crusher.  When a vacancy 
occurred in a foreman's position at the Highsplint preparation plant, Foust, 
who had indicated an interest in such a position and was certified as a foreman 
and electrician, was selected for the job.  Duane Bennett, Manalapan's chief 
executive officer, had heard reports that Foust was a hard worker and wanted 
to give him a chance at the position. Foust became the preparation plant foreman 
on the day shift in July of 2000.  The foreman of the day shift was also in 
charge of the second shift, which had its own foreman.  As a certified 
electrician, Foust was responsible for performing monthly electrical inspections 
and signing the "electrical book."  Foust received an increase in pay and later 
became a salaried worker, earning $700 a week.  In addition he became eligible 
for higher bi-yearly bonuses and Bennett agreed to make half of the payments 
for a new truck that Foust purchased.

     The preparation plant was a critical component of Manalapan's mining 
operation.  All of the coal produced by the mines had to be processed through 
the plant to remove rock, clay and other impurities.  Coal had been mined at 
Highsplint for almost 100 years and the quality of that remaining had declined 
considerably.  Manalapan's most recent reject rate was as high as 50-60%, i.e., 
less than half of the raw product produced by the mines was marketable coal.  The
preparation plant, often referred to as a "washer," used water and chemicals to 
separate the marketable "clean coal" from the waste, or "sludge."  Raw coal was 
crushed and combined with water and a chemical, "magnatite," which "floated" the 
useable coal from the sludge suspension. The clean coal was then dried, passed 
through screens where it was sorted by size, and transported by belts to 
stockpiles in the load-out area.  Much of the water used in the process was
recirculated.  It was routed to a large tank called a "thickener" where a 
chemical, "Nalco", a cationic, was added to help cause the clay and other 
suspended impurities to settle.  The sludge was moved to the tank's center by 
rotating "rakes," and was then pumped to a large impoundment area.  Water that 
was not reused was discharged into a ditch that fed down into a series of 
settlement ponds.  There was also a creek that flowed near the plant, roughly 
parallel to the ditch.  Foust and other foremen were periodically directed to 
add Nalco to the water in the ditch and the creek.  Trucks forded the creek 
making it muddy, and the Nalco settled the mud as the water flowed down into a 
large settlement pond and eventually into an adjoining river.

     The Highsplint plant was an old facility, part of which had been re-built 
in conjunction with the installation of the present washer in 1987.  It was 
designed to be operated by four men. Tr. II 33.  Portions of the old plant were 
inactive, and some machinery had been removed.  As recently as 1997, the plant had 
operated with three shifts, two running production, and the third performing 
maintenance.  By the time Foust became foreman, the plant was operated on 
only two shifts.  The primary responsibility of the day shift was to process 
coal.  However, repairs often had to be made when equipment failures forced 
curtailment of plant operations.  The primary responsibility of the evening shift
was to perform repairs and maintenance that could not be done while the plant
was operating.  However, the second shift typically processed coal for several
hours before shutting the plant down, especially if the first shift had 
experienced significant down time.  The respective foremen or members of 
their crews made daily notes of production and repair/maintenance tasks in a book.
Ex. C-4.  The first shift listed repair or maintenance tasks to be performed on 
the second shift, and the second shift checked the listed items as they
were completed.  If an item was not able to be addressed by the second shift, 
the first shift might do it, or it would be listed again the following day.  

     The preparation plant was a highly complex processing facility.  There
were numerous conveyor belts, vibrators and screens, motors, pumps, pipes and 
other devices, all of which experienced significant wear and tear in handling 
the abrasive coal and waste products.  Continued efficient operation of the plant 
required substantial ongoing maintenance and clean-up.  After Foust assumed his 
foreman position in July of 2000, the preparation plant was experiencing frequent 
breakdowns, coal spills, leaking pipes, and other problems, all of which
impacted adversely on the production of marketable coal.  The inability of the 
plant to process coal had caused the raw coal stockpile to grow to excessive 
proportions, almost ten times what it should have been, which threatened to 
force curtailment of mining activities.  Tr.  507-08.

     Bennett was increasingly concerned about the lack of production from the plant
and the resulting inability to ship sufficient quantities of coal to maintain the 
economic viability of the Highsplint operation.  In an effort to ascertain the 
causes of the problems at the plant, Bennett assigned Earl L. Goins, a foreman at
the RB Coal preparation plant, to make an assessment of the Highsplint operation.  
Beginning in April 2001, Goins visited the facility during the day shift, two or 
three times a week for several hours.  Tr.  551-53.  He did not have extensive 
discussions with Foust about the operation, but did advise him of the purpose of 
his visits.  Based upon his observations over a period of two weeks, he compiled 
a list of 12-14 problems that he felt needed to be addressed.  He could not recall 
the specific items on the list, but described them as leaking pipes that needed 
to be repaired or replaced, damaged or worn chutes that caused substantial
spillage, and similar items.  Tr.  513-16.  While he had concerns about Foust's 
ability to "boss" or manage the plant, he did not include any personnel issues 
on the list.  Id.  At least some of the second shift miners reacted with 
hostility to Goins' presence.  He described "childish" things, e.g., a crude 
drawing of a man in a noose labeled with his name.  

     As Goins related his findings at the hearing, the plant was in a state 
of chaos.  There were a "huge" number of leaking pipes and large amounts of 
coal spillage.  In his words, the plant "just wasn't being took care of."  
Tr. 509-10.  His concerns about Foust's management capabilities were based 
upon what he viewed as a lackadaisical attitude by the men under his
supervision.  "If something broke, the men weren't getting there to fix it." 
Tr. 511.  He described an incident where a failure of a bearing required that a 
belt be shut down.  Foust went to the problem and worked on it - but only one 
other man came to help, after approximately 15 minutes.  Goins then went to 
look for the other men and found them just loafing or "piddling around."  
Tr. 548-49.  Larry Ellis, the Highsplint surface foreman, made similar 
observations.  Tr. 569.

     In an effort to remedy the production problems, it was determined to 
try switching the personnel on the respective shifts.  This move effectively
demoted Foust, because the foreman of the first shift was also responsible for
the second shift.  Goins and Bennett testified that the switch was tried 
just to see if things would improve, and because they didn't want to do anything
drastic to the men, i.e., discharge them.  Tr. 533; Tr. II 83.  There was 
some improvement in the first shift's production following the switch, and 
considerable improvement in the response to breakdowns.  Tr. 544.  However, 
the plant continued to experience too much down time to meet production goals.
Tr. II 136.
     
     Foust, who was a certified electrician, had inspected the plant's 
electrical system monthly, and through April 2001, had signed off on the 
electrical book.  As Foust explained the purpose of the book, both MSHA and the 
State of Kentucky required that electrical equipment and circuits be inspected 
monthly and that the results of the inspections be noted in a book.  He
would list any deficiencies and the date that repairs were made.  Tr. 288-89. 
In late May 2001, about a week before the end of the month, Foust decided that 
he would no longer sign the electrical book, i.e., make the monthly certification
that the electrical circuits of the plant met applicable standards.  Tr. 31-32; 
Tr. II 82.  He did not want to be responsible for the electrical circuits, 
and feared that he might go to jail if someone got hurt.  Tr. 210-11. 

     Foust's primary concern was overloaded circuit breakers located near 
the thickener.  Tr. 211.  The circuits for pumping sludge to the impoundment 
had become overloaded because a larger motor, and then a second motor, were
added.  Tr. 468-70.  In order to keep the circuits closed and the pumps running,
the doors to the breakers were left open and a fan was used to blow cool air to 
the breakers.  He testified that this posed a serious threat of electrocution
because a miner in the area might inadvertently contact one of the conductors
carrying 480 volts.  A miner might also be struck by pieces of the 
equipment in the event of a catastrophic failure.  The condition was 
noted by a Kentucky State mine inspector, who threatened to shut the plant
down.  However, it was allowed to operate on the condition that the breaker
boxes be closed and locked, with only a qualified electrician being in 
possession of the keys.  Tr. 470-78.

     Larry Shakelford, the Highsplint operation's shop foreman and 
chief electrician, had overseen the addition of the pump and had ordered 
new circuit breakers to handle the increased load.  The breakers, which cost 
about $35,000, required about six weeks for delivery.  Tr. 468-72, 603.  
Six new boxes were delivered to the plant shortly after the Kentucky inspection,
and were promptly installed by Shakelford.  As far as Ellis was concerned, 
the problem with the breakers was Shakelford's, and he was "talked to" about that.  

     On May 30, 2001, the second shift commenced work at 3:00 p.m. and the plant 
was not operating.  There were several major problems that needed to be addressed,
and the crew worked overtime until about 2:00 a.m., on May 31, 2001.  When 
the day shift arrived and powered-up the plant, it ran for a few minutes, 
but had to be shut down because of major damage to the clean coal conveyor 
belt.  A strip, approximately a foot wide, had torn and become entangled in the
structure, extending the tear to approximately 300 feet.  Goins, Ellis and 
Gary Smith, then the first shift foreman, felt that the belt had been 
deliberately cut and tied off so that it would rip when the conveyor was 
powered-up.  Tr. 522-23.  Other individuals believed that the belt could
have been damaged in the normal operation of the plant, e.g., by a piece 
of metal falling from the structure or mixed in with the raw coal.  
Tr. 83-85, 104-05.  Bennett viewed this breakdown as the "last straw," 
since he was paying the second shift men considerable overtime but couldn't get
any production.  Tr II. 85, 130-32.  Bennett decided to discharge Foust and 
the miners on the second shift.  Goins had advised him that he didn't think 
Foust could control the men, and Bennett felt that Foust and the second shift 
were largely responsible for the plant's problems.  Tr. II 84-86, 107, 133. 
Ellis came back to him and asked to be able to move one of the men, Tommy 
Napier, to the first shift, which was short-handed, and he agreed.  
Tr. II 133.  Foust and Derek Hensley were laid-off on May 31, 2001.  
Ex. C-19A.  The other second shift miner, Robert Gross, worked two additional days.  

     The plant was shut down while a piece of belt from another conveyor owned by
Manalapan was secured and spliced in.  Operations resumed, but the plant 
continued to be plagued with breakdowns.  More extensive maintenance work 
was normally performed at the beginning of July, when miners were on vacation. 
Bennett had hoped to be able to operate the plant until the July break, but was
forced to alter that plan.  A few days after the plant resumed operations, about
June 11, 2001, when returning from an inspection of the impoundment, Bennett
and John Phillips, Manalapan's engineer, observed that the rakes in the 
thickener tank were not turning.  The inability to pump sludge from the 
thickener dictated that the plant be shut down.  There was a build-up of
sludge on the bottom of the thickener, and attempts to rotate the rakes
resulted in failure of the drive gears.  The sludge pumps also failed. 
The water in the tank was dipped out and the built-up sludge, which had
become quite dense, was removed with a small front-end loader.  An old coat,
a gear wrapped in a piece of brattice cloth, and a piece of metal
railing were discovered in the tank.  The gear had migrated to the center 
of the tank and blocked the opening to the sludge pumps.  It appeared that 
the gear, and perhaps the other items, had been deliberately placed in the tank.  

     Bennett determined to shut the plant down for extensive repairs.  
He had not realized that it was in as bad a shape as it was.  Even though parts 
needed for the normal summer shut down repairs had not been ordered, Manalapan 
commenced a major repair effort.  As described by Phillips, pipes, chutes and 
beams were replaced.  Feeders were out of level because the springs were 
broken and had not been replaced, which caused the metal to deform.  Chute 
liners, which should be replaced as they wear out, had not been replaced,
causing the chute itself to wear through.  He estimated that the conditions
were the result of many months of neglected maintenance.  Tr. II 65, 73.  
R.T. Welding & Fabrication, a contractor that had done extensive
work at the plant in the past, was retained to perform some of the repairs.  
From June through October, R.T. Welding performed repairs costing over 
$68,326.75.  Tr. II 51-52; ex. R-10.  The plant was operational after a couple
of weeks, but repairs and maintenance continued through the summer as ordered
parts arrived.  By September, the plant was running efficiently with a crew of
four men.  The raw coal stockpile was virtually eliminated, and the plant 
eventually needed to operate only three days a week to process the coal 
produced by the mines.  As noted previously, the Highsplint operation, 
including the preparation plant, was closed for the foreseeable future, as
of September 14, 2002. 

     On June 11, 2001, Foust filed a complaint of discrimination with MSHA,
alleging that he had been laid-off "due to complaining about unsafe work 
conditions at the Prep Plant."  Ex. C-12.  The following day, MSHA initiated
an inspection of the Highsplint preparation plant. Inspections continued to
early September.  A total of 102 citations were issued for various
alleged violations.  Ex. C-1.

          Conclusions of Law - Further Findings of Fact

     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). 

     While the operator must bear the burden of persuasion on its 
affirmative defense, the ultimate burden of persuasion remains with the 
complainant.  Pasula, 2 FMSHRC at 2800; Schulte v. Lizza, 
6 FMSHRC 8, 16 (Jan. 1984).  

Prima Facie Case - Protected Activity

     The Secretary asserts that Foust engaged in protected activity 
in three ways: his "refusal" to sign the electrical book, which is alleged to 
be the "primary" reason for his discharge; his raising of concern about 
putting Nalco into the creek; and his complaints to Ellis about various
hazardous conditions at the plant.  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 section 105(c)(1) of the Act, 
30 U.S.C.  815(c)(1).   I find that Foust engaged in protected activity when
he stated that he would no longer sign the electrical book because of the 
overloaded circuit breakers.  However, I find that he did not make other 
complaints about dangers or health or safety violations, and that his 
expression of concern about the use of Nalco was not protected activity.  

     Approximately one or two weeks prior to May 31, 2001, Foust determined 
that he would no longer sign the electrical book because he did not believe 
that the electrical circuits met applicable standards.  His action was 
prompted by the overloaded circuit breakers near the thickener.  Tr. 211; 
ex. R-6 at 34-36.  At the hearing, he emphasized the dangers the overloaded
breakers posed to miners, including the risk of electrocution.  Id.  When 
questioned about why the breakers were not treated as imminent dangers, 
however, he responded that the men "never [were] around the boxes."  
Tr. 404.  Gary Smith, who became first shift foreman and was then
Foust's supervisor, recalled him saying that he would no longer sign the 
electrical book.  Tr. 628. Foust testified that he told Ellis he would no 
longer sign the electrical book.  Tr. 210, 436-37. Ellis did not recall 
Foust stating that he would not sign the book.  Tr. 584-85.  I find that Foust
told both Smith and Ellis that he would no longer sign the electrical book
because he believed that the overloaded circuit breakers did not comply
with safety standards.  Foust, therefore, engaged in activity protected 
under the Act. 

     I also find that Foust raised concerns about the use of the cationic 
"Nalco," in the creek.  He did not refuse to put it in the creek, but 
sometimes just didn't do it.  Tr. 314.   His concerns were the chemical's 
toxicity to aquatic life and the effect it might have if it got into the water
supply of people that lived downstream, and were largely based upon his 
mistaken belief that the creek ran directly into the adjoining river.   
Tr. 216-20, 291.  There is no contention that the chemical could not be used 
safely by him and other miners at Manalapan.  He did not express any concern
over use of Nalco in the plant's thickener or its placement into the ditch 
carrying water discharged from the plant to a series of settlement ponds.  
Tr. 216-18, 291, 421.  Neither Foust nor the Secretary contend that the use
of Nalco posed a danger to miners or violated the Act or any of the 
Secretary's health or safety standards promulgated pursuant thereto.  
Foust's concerns about the environmental impact of that particular use
of the chemical were admirable.  However, his expression of those concerns 
was not activity protected by the Act.

     The Secretary argues that Foust also complained about a number of 
hazardous conditions described by himself and other witnesses.  Foust, 
for example, testified that there were numerous electrical hazards, "guards 
were rotted off," the "catwalk was rotted out," and the "basement was
full" of coal spills.  Tr.  220-21.  The Secretary asserts that Foust 
complained to Ellis about these various conditions.  However, Foust's 
testimony about the alleged complaints was very general, lacking as to times, 
dates and precisely what he complained about, other than lack of manpower. 
Tr. 213-14, 220, 400-01, 434-35.  Foust's credibility regarding this issue 
is highly suspect.  I find that he did not make complaints about these 
various alleged safety hazards. 

     As a foreman who was designated to conduct daily workplace inspections, 
Foust had the responsibility to report hazardous conditions.   He acknowledged 
his responsibility to conduct preshift inspections, and his duty to report any 
hazardous conditions that he found.  He testified that he did, in fact, note in
the preshift reports anything that needed to be fixed, and acknowledged that 
it was his responsibility to correct hazardous conditions, including those
involving the electrical system.  Tr. 401-05, 442; ex. R-6 at 23, 25-26, 
40-41, 50-51.  Yet, an examination of the preshift reports that he authored 
fails to disclose any significant problems, the only notations being that 
floors needed to be cleaned.  Virtually none of the various unsafe
conditions described by Foust or other witnesses were listed in Foust's 
preshift reports.  Ex. C-3.  To explain this inconsistency, he testified that 
his preshift inspections were quite limited.  "Preshift is just checking the 
floors and the tunnel checking for methane.  It's just a preshift, real
fast inspection."  Tr. 403-04.  Though he acknowledged that his preshift 
examination included checking for all hazards, including electrical hazards, 
he testified that he only examined the electrical system during the monthly 
electrical examinations.  Id.  He explained that he had been a foreman for 
only a short time and that he wasn't familiar with the regulations.  Id.  
Despite his explanation, Foust acknowledged that the purpose of the preshift 
inspection was to prevent the men on his shift from being exposed to such 
hazards, and that there was never an unsafe condition that he couldn't fix 
before the men started working.  Tr. 402-05, 444-45.  

     The record is the same with respect to various electrical problems 
claimed by the Secretary to have existed.  Foust testified that he performed 
a thorough inspection of the electrical system each month, checking all the 
switches, breakers, and everything electrical.  Tr. 288-89.  If anything was
wrong he would write it down and then enter the date when it was fixed.  
When he signed the book, he certified that "everything was right" in the 
electrical system.  Tr. 209-10.  Despite the claims of numerous electrical 
hazards, Foust signed off on the electrical book through April, 2001, 
certifying that there was nothing wrong with the electrical system.  

     Foust typically described his complaints to Ellis as lack of resources, 
i.e., "not enough men and not enough time to . . . get all the stuff done" 
and not "enough men to run that big of a washer."  Tr. 213, 434-35; 
ex. R-6 at 26-27.  Moreover, when asked why he was fired, he stated it was
because of his complaints about the use of Nalco in the creek and his 
refusal to sign the electrical book.  He did not include the alleged 
complaints about other safety hazards.  Tr. 210, 288, 408; ex. R-6 at 65-68.
Ellis testified that Foust had not made any "safety complaints" to
him.  Tr. 569.  Smith testified that Foust talked to him about general 
things, but did not recall him making safety complaints. Tr. 624-25.

     I find that, with the exception of the use of Nalco in the creek and
the overloaded circuit breakers, Foust did not complain about the various 
other conditions described by him and other witnesses.  He made "general 
complaints" about limited resources, primarily what he viewed as
inadequate time/men to do the job of running the washer.  Foust's 
general complaints to Ellis were not   were not intended to be   
and were not taken as   complaints about dangers to miners
or safety or health violations.  When he made them, he was not 
exercising rights under the Act, and was not intending to do so.  
Rather, he was addressing why he was unable to remedy the frequent 
interruptions in the plant's production.  

Adverse Action                                              

     Foust clearly suffered adverse action.  While the May 31, 2001, notice 
advised him that he was "laid off," Bennett intended to discharge him.  
His departure from Manalapan has been treated as a discharge.  In any event,
a lay-off or discharge would constitute adverse action for purposes of his 
present claim.

Motivation

     The principle issue as to Foust's prima facie case is whether the 
adverse action was motivated in any part by his protected activity.  In 
Sec'y on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.  1999),
the Commission acknowledged:

     the difficulty in establishing a motivational nexus between protected
     activity and the adverse action that is the subject of the complaint. 
     "Direct evidence of [unlawful] motivation is rarely encountered; more 
     typically, the only available evidence is indirect. . . . 'Intent is 
     subjective and in many cases the discrimination can be proven only by 
     the use of circumstantial evidence.'" [citing Chacon].  In Chacon, 
     we listed some of the circumstantial indicia of discriminatory intent,
     including (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.  Id.  We also
     have held that an "operator's knowledge of the miner's protected
     activity is probably the single most important aspect of a
     circumstantial case" and that "knowledge . . . can be proved by 
     circumstantial evidence and reasonable inferences." Id. 

     As explained below, while Foust was discharged within a week or two 
of informing Ellis that he would no longer sign the electrical book, I 
find that Bennett made the decision to discharge Foust entirely on his 
own and that he had no knowledge of Foust's protected activity. His decision
was solely a product of his frustration with the plant's poor production, 
which he largely attributed to Foust's inability to manage effectively.  

     Bennett was Respondent's chief witness at the hearing.  He impressed 
me as a candid individual, whose overriding concern was profitable operation
of the Highsplint facility.   He testified, without contradiction, that
he generally supported his workers, gave them bonuses when times were 
relatively good and was reluctant to take adverse actions, such as discharges. 
He also impressed me as a man who believed strongly in "company loyalty," 
and who would take a dim view of his employees invoking outside forces, 
such as MSHA, in the operations of the facility.  In a telling response to 
a question about whether Foust was called back to work after being laid-off,
Bennett stated: "No, he filed against me," i.e., Foust had filed a complaint of
discrimination with MSHA.  Tr.  II 88.  Bennett's expressed hostility toward
Foust's post-termination exercise of his right, suggests that he harbored 
hostility toward miners' exercise of rights under the Act.  However, there is 
no evidence of pre-termination hostility or animus toward Foust because of 
any of his claimed complaints.  Ellis responded to his "complaints" quite 
benignly, replying "just do [your] job the best [you] could."  Tr.  213-14. 
Foust testified that Ellis was not hostile towards him, made no derogatory 
comments about him, and that he liked Ellis.  Tr.  389-90, 401.

     Bennett made the decision to discharge Foust without consulting Ellis 
or anyone else.  Tr. II 130-33; Tr. 571.  Smith handed Foust his lay-off slip 
and didn't know why the decision had been made.  Tr. 637-39.  Bennett's decision 
to terminate Foust was the culmination of his increasing frustration with the 
inability of the plant to process sufficient coal.  His concerns had prompted 
him to have Goins evaluate the operation.  Tr. II 80.  Goins eventually 
reported that, while Foust was a hard worker, he was not capable of managing
the men.  Tr. II 82; Tr. 514-16.  As Bennett explained: "I was tired of
excuses and I'd get reports, every day I get a report and I'd look at those
reports.  It would be the same old thing over and over."  Tr. II at 80.  
Adding to his frustration was the fact that production problems persisted 
despite substantial amounts of overtime being worked by second shift miners.
Tr. II 85, 130-31.  His frustrations had nearly reached the breaking point 
prior to the May 31 incident.  Tr. II 84, 130-33.  That incident caused
him to react by ordering the discharge of Foust and the second shift.  
The plant had been operating poorly, the second shift had worked significant
overtime the night before, and the plant was non-functional at the start of
the first shift.  Tr. II 130-31.  

     Bennett had no knowledge of Foust's protected activity, i.e., his decision
to no longer sign the electrical book.  While he had frequent interaction with 
Ellis, and clearly was aware of Foust's complaints about lack of resources, he '
regarded them as excuses for Foust's inability to remedy the frequent breakdowns 
that interfered with the plant's production.  

     I decline to draw an inference that Ellis informed Bennett of Foust's 
protected activity, because there are a number of possible reasons why Ellis would
not have viewed Foust's action as an event meriting Bennett's attention.  Foust 
did not testify to the exact words that he used to inform Ellis of his decision.   
Judging from his demeanor at the hearing, it is unlikely that he did so in an 
aggressive or  hostile manner, and there is no claim that Ellis reacted with 
hostility toward Foust.  Ellis may not have understood Foust's communication as 
a "refusal" to sign the book, or he may have considered the problem to be a 
temporary one that would soon be resolved by Shakelford's installation of the 
upgraded breakers.  The fact that Manalapan was subsequently cited for failing 
to have examinations of the electrical circuits certified for the month of May,
suggests that Ellis placed little significance on Foust's action.  He neglected 
to assure that the examination and certification were done, despite the ready 
availability of other qualified individuals, including Shakelford and Rodney 
Tipton, a foreman at the R&B plant.  Even if the new breakers could not have been 
installed by the end of the month, the certification could have been done with 
a notation of the problem of the overloaded breakers, along with the fact that 
new breakers were on order.  Inspectors were not likely to fail to discover
such an obvious problem, and it likely would have been better to note it, 
than ignore it.  Inspectors from the State of Kentucky were aware of the 
problem, and had not shut the plant down.   

     There is no direct evidence of unlawful motivation and there is not 
enough circumstantial evidence to justify a conclusion that Bennett's discharge
of Foust was motivated, in any part, by Foust's protected activity.  Bennett had 
no knowledge of Foust's protected activity, the "most important" element of a
circumstantial case.  There was no animus or hostility toward Foust because of 
his protected activity.  Only a limited coincidence in time, one to two weeks,
between Foust's protected activity and the adverse action suggests a 
relationship between the two.     I find that Bennett's decision to discharge 
Foust was not motivated, in any part, by Foust's protected activity.  
Therefore, Complainant failed to establish a prima facie case of discrimination.  

     I reach this conclusion based upon all of the evidence and my evaluation
of the credibility of the witnesses, chiefly Bennett and Foust.  Bennett 
testified in an open and forthright manner, and was consistent and convincing 
in his description of the economic problems and frustrations that resulted 
from the inability of the preparation plant to operate efficiently.  His openness
was apparent even when it was not to his advantage, e.g., when he expressed 
his hostility to the fact that Foust had exercised his right to file a 
complaint of discrimination under the Act.  I found highly credible his 
testimony that his decision to discharge Foust and the second shift miners was
motivated by his building frustration with the operation, which was focused on
Foust, who had been reported to be a poor manager.  

     As noted above, I believe that Foust inflated his claims that numerous
unsafe conditions existed at the plant and the nature of his "complaints" to 
Ellis.  His overall demeanor was highly deferential, and appeared consistent 
with that of someone who might not be an effective supervisor.  I have no doubt 
that he was a hard worker, both prior to and after becoming a foreman.  
However, as foreman, his primary responsibility was making sure that his men
worked hard, something that, at least as far as Bennett was informed, he did 
not do effectively.  
     
     I have also considered the many arguments advanced by the Secretary, 
but find them insufficient to satisfy Complainant's burden.  The Secretary 
makes much of the fact that Respondent terminated only two of the four second 
shift miners, Foust and Hensley.  She asserts that, while Napier's move to the
day shift was explained, Respondent offered no explanation as to why Gross was 
not also discharged on May 31, 2001.  She argues that Manalapan "forgot to
fabricate a reason for Gross' continued employment after the layoff, further 
establishing that the stated reasons for the 'layoff' were pretextual."  
Sec'y's Br. 93.  However, this "theory" was not developed at the hearing.  
Neither the Secretary, nor the Respondent, probed Gross' status after
the layoffs.  The "hours worked" reports for the time period in question,
exhibit R-3, establish that Gross worked only two more days.  Gross testified 
that he left the plant voluntarily a couple of days after the lay-offs. 
Respondent may well have been aware of Gross' impending departure
and may simply have allowed him to work until the date he had chosen 
to leave, an explanation at least as probable as the Secretary's.  

     The Secretary argues that the hiring of additional miners after the
lay-offs exposes Manalapan's explanation as pretext.  However, the decision to 
discharge the second shift was not made as a permanent move to reduce labor 
costs, it was made because Bennett was not satisfied with the performance of 
Foust and the men working the second shift.  The hiring of additional miners 
shortly after the lay-offs is consistent with Respondent's explanation of the
reasons for the decision to discharge Foust.  Some additional labor was also 
required for the significant repair effort necessitated by the failure of the 
thickener, and the need to make other major repairs. 
     
     The Secretary also argues that Ellis' and others conclusion that the 
clean coal belt had been deliberately cut was an attempt to build a pretextual 
reason for Foust's discharge that "fell apart" when the "witnesses didn't have 
the heart to accuse Foust" of doing it.  Sec'y's Br. 90.  However, as Ellis 
stated, no one ever accused Foust of cutting the belt and he did not have any
idea who might have done it.  Tr. 572.  589.  Bennett never cited a suspicion 
or belief that Foust had damaged the belt as a reason for his decision.  

     The Secretary argues that the citations issued during MSHA's inspection
of the plant after Foust's departure confirmed the existence of numerous 
safety violations at the time Foust allegedly made his complaints to Ellis.  
Complainant's exhibit 1 consists of copies of citations issued at the 
preparation plant from May 31 to September 6, 2001.  However, it is far from
certain that most of the conditions cited existed for that length of time.  
MSHA had a somewhat constant presence at the plant, and had conducted recent 
inspections.  A number of citations had been served on Foust in January, 
February and March, 2001.  Ex. R-4.  While many of the citations issued in 
the summer of 2001, were similar to those issued earlier, they were cited as
new violations.  There were a number of "accumulation" violations, an ongoing 
problem at the plant.  Many of the guarding and electrical violations appear
to have been within Foust's ability to correct, even with limited resources. In
some instances, guards had simply not been replaced.  In others, guards were
extended to cover small openings, which may have been of recent origin.  

Respondent's Affirmative Defense

     Even if Bennett had been aware of Foust's decision not to sign the 
electrical book, and that knowledge somehow played a part in his decision to 
discharge him, I find that he would have taken the same action based solely 
upon Foust's unprotected activity, i.e., Bennett's perception that Foust 
was an ineffective manager, largely responsible for failing to remedy the
frequent breakdowns that plagued the plant.  

     In Sec'y of Labor on behalf of Chacon v.  Phelps Dodge Corp., 
3 FMSHRC 2508, 2516-17 (Nov.  1981), rev'd on other grounds, 709 F.2d 86 
(D.C. Cir.  1983), the Commission explained the proper criteria for analyzing 
an operator's business justification affirmative defense: 

     Commission judges must often analyze the merits of an operator's 
     alleged business justification for the challenged adverse action.  In 
     appropriate cases, they may conclude that the justification is so weak, 
     so implausible, or so out of line with normal practice that it was mere
     pretext seized upon to cloak discriminatory motive. 

          The Commission and its judges have neither the statutory 
     charter nor the specialized expertise to sit as a super grievance or
     arbitration board meting out industrial equity.  Once it appears that
     a proffered business justification is not plainly incredible or 
     implausible, a finding of pretext is inappropriate.  We and our judges
     should not substitute for the operators's business judgment our views
     on "good" business practice or on whether a particular adverse action 
     was "just" or "wise."  The proper focus, pursuant to Pasula, is on 
     whether a credible justification figured into motivation and, if it did, 
     whether it would have led to the adverse action apart from the miner's
     protected activities.  If a proffered justification survives pretext 
     analysis . . . , then a limited examination of its substantiality becomes 
     appropriate.  The question, however, is not whether such a
     justification comports with a judge's or our sense of fairness 
     or enlightened business practice.  Rather, the narrow statutory question 
     is whether the reason was enough to have legitimately moved that operator
     to have disciplined the miner. (citations omitted).

     The Commission further explained its analysis in Haro v. Magma Copper Co, 
4 FMSHRC 1935, 1938 (Nov. 1982):

     [T]he reference in Chacon to a "limited" and "restrained" examination 
     of an operator's business justification defense does not mean that such 
     defenses should be examined superficially or be approved automatically 
     once offered.  Rather, we intended that a judge, in carefully analyzing 
     such defenses, should not substitute his business judgment or sense of
     "industrial justice" for that of the operator.  As we recently explained,
     "Our function is not to pass on the wisdom or fairness of such asserted
     business justifications, but rather only to determine whether they
     are credible and, if so, whether they would have motivated the particular 
     operator as claimed."  (citations omitted).  

     Respondent, through Bennett, advanced a credible business justification 
for discharging Foust.  Bennett was extremely concerned about the frequent 
breakdowns that interfered with the plant's production of marketable coal.  
The raw coal stockpile had grown to excessive proportions and threatened to
negatively impact the other mining operations.  This occurred while Foust was 
foreman in charge of the first shift, essentially in charge of the plant.  
Bennett's concerns caused him to assign one of his trusted managers, Goins, 
to conduct an evaluation of the operation of the plant.  Goins reported that 
there were a lot of problems with what appeared to be deferred maintenance items, 
and that Foust did not appear to have control of his men.  Bennett switched the
first and second shifts, hoping to avoid more drastic action.  All of this
occurred prior to Foust's protected activity, which is alleged to be the 
"primary" reason for his discharge.  Things did not improve significantly. 
Bennett's frustrations built to the point that the incident of May 31, 2001,
prompted him to discharge Foust.  

     As noted above, I have found that Bennett was not motivated, in any part,
by Foust's protected activity, of which he had no knowledge.  Even if it 
could be said that Foust's discharge was based in some part on his protected 
activity, I find that Bennett would have taken the adverse action against 
Foust based solely upon legitimate business reasons.  

     To some extent, Foust may have been unfairly blamed for the plant's 
problems.  As Bennett stated, he hadn't realized that the plant was in as bad
a shape as it was.  Tr. II 124.  With the accumulation of deferred, or poorly
performed, maintenance, breakdowns were frequent and production was impaired. 
While Foust had significant responsibility for maintenance, his protests about
limited resources may have had some legitimacy.  On the other hand, if Foust
had been a more effective manager, maintenance tasks might have been better 
performed.  It is not the function of this Administrative Law Judge to resolve 
the ultimate fairness of whether Foust should have born the brunt of Bennett's 
dissatisfaction with the plant's poor operation.  I am convinced that it was 
reasonable for Bennett to have concluded that Foust bore enough responsibility
for the problems that he should be discharged, for that reason alone. 

                              ORDER

     For the reasons stated above, I find that Bennett's decision to 
discharge Foust was not motivated in any part by Foust's protected activity. 
Alternatively, I find that, had Bennett been aware of Foust's protected activity, 
he would have made the same decision based solely upon legitimate business 
considerations.  Accordingly, the Complaint of Discrimination is hereby
DISMISSED.

                                     Michael E. Zielinski   
                              Administrative Law Judge 

Distribution:

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

Susan C. Lawson, Esq., 
Lawson & Lawson, PSC, 
P.O. Box 837, 
Harlan, KY 40831 (Certified Mail)

Danny Foust, 
P.O. Box 311, 
Cawood, KY 40815 (Certified Mail)

/mh