<DOC>
[DOCID: f:k96-95d.wais]

 
BRUCE YOUNG AND YOGO, INC.
February 15, 1996
KENT 96-95-D


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          February 15, 1996


SECRETARY OF LABOR,                :   TEMPORARY REINSTATEMENT
  MINE SAFETY AND HEALTH           :   PROCEEDING
  ADMINISTRATION (MSHA),           :
  On behalf of ANDY HOWARD, JR.,   :   Docket No. KENT 96-95-D
               Complainant         :   MSHA Case No. PIKE CD 95-21
          v.                       :
                                   :   Martiki Surface Mine
BRUCE YOUNG AND YOGO, INC.,        :   Mine I.D. No. 15-07295 BLH
               Respondent          :


                   ORDER OF TEMPORARY REINSTATEMENT

Appearances:  Thomas A. Grooms, Esq., Office of the Solicitor,
              U.S. Department of Labor, Nashville, Tennessee;
              Tony Oppegard, Esq., Mine Safety Project of the
              Appalachian Research and Defense Fund, Inc.,
              Lexington, Kentucky; for Complainant;
              Billy R. Shelton, Esq., Baird, Baird, Baird &
              Jones, P.S.C., Pikeville, Kentucky, for Respondent.

Before:  Judge Amchan


                 Facts and Contentions of the Parties

     Complainant, Andy Howard, Jr., began working as a haul
truck driver for Respondent, Yogo, Inc., in late February or
early March, 1995 (Tr. 13-17, 70).  Yogo transports coal for
Martiki Coal Company at its surface mine in Martin County,
Kentucky (Tr. 114-16).  Howard's duties entailed the trans-
portation of coal over private dirt roads on Martiki's
property (Tr. 18-19, 70-71).

     The week prior to working for Yogo, Howard drove a green
Mack truck for BNA Trucking, a company owned by the wife of
Bruce Young (Tr. 15-17).  Mr. Young owns 50 percent of Yogo,
Inc. (Tr. 114).  This green truck had defective brakes and
was the subject of a section 105(c) discrimination complaint
filed by William Delong, who drove the truck just before Mr.
Howard was hired (Tr. 15-16, 41-45).  In July 1995, Howard was
inter-viewed by MSHA special investigator Nancy Bartley.  In
Mr. Young's presence, he told Ms. Bartley that the brakes on
the green Mack truck were defective and would not stop the
truck on a hill.  According to Howard, Mr. Young's face
turned red during Howard's conversation with the
investigator (Tr. 41-46).

     In March 1995, when Howard started to work for Yogo, he
drove an orange Mack truck.  He continued to drive this
vehicle for approximately three months when he was transferred
to a black Mack truck, model RD-600.  The air conditioning unit
on this truck did not work (Tr. 17, 23).

     Due to the summer heat, Mr. Howard operated this truck with
the windows rolled down.  The haul roads were often very
dusty and the dust coming into his cab made it difficult for
Howard to breathe, gave him headaches, and sometimes upset
his stomach.  Howard complained to Bruce Young, who promised
he would have the air conditioning fixed (Tr. 18-25).

     Employees of Yogo, Inc. were on vacation from June 24, 1995
to July 10, 1995 (Tr. 118).  When Mr. Howard returned to
work he discovered that the air conditioning unit of his
truck was still non-functional (Tr. 27-28).  Mr. Young
contends that he arranged to have the air conditioning
repaired on Howard's truck and others, but that the person
with whom he made these arrangements unexpectedly failed to
do the work (Tr. 118-20, 148-49, 175).

     On the morning of July 11, 1995, Howard and four other
drivers refused to drive their trucks (Tr. 28-29).  Two of
the other drivers, one who worked for Yogo and the other who
worked for another company owned by Larry Goble, the other
partner in Yogo, also had non-functioning air conditioners
(Tr. 151-52).  The five drivers demanded that the air
conditioning be repaired on the three trucks.  They also
demanded that Yogo provide them with medical insurance, and
Howard asked or demanded an increase in his salary (Tr. 31).

     Mr. Howard contends that Mr. Young's response was that the
drivers could go back to work or be fired (Tr. 29).  Young
says he merely told them that if they refused to work,
everybody at Yogo would lose their jobs, and that he would
try to get the air conditioners fixed.  Young was apparently
inferring that if the drivers refused to work that Martiki
might replace Yogo with another contractor (Tr. 120-21).

     Mr. Young says he contacted Worldwide Equipment Company the
day before when he discovered that the air conditioners had
not been fixed over the vacation.  Worldwide was not able to
repair the vehicles until July 14.  The repairs performed on
that date cost Yogo $1,020 (Tr. 123-24, Exh. R-1).

     Mr. Howard claims that Bruce Young never indicated that he
would fix the air conditioners.  He states that the five
drivers continued their strike against Yogo for 13 hours.
Then, on the morning of July 12, Larry Goble promised them
he would get the vehicles fixed if they returned to work
(Tr. 30-31).  Howard also claims that after this incident
Bruce Young would not speak to him (Tr. 29-32, 35)[1].

     The air conditioner on Complainant's truck worked for about
two weeks following the July 14 repairs.  Howard drove the
truck for a few weeks after it broke again.  The dust entering
his cab made him feel ill.  Howard's headaches got worse.  At
the beginning of his shift on August 15, 1995, he informed
Bruce Young that he would not drive the truck until the air
conditioner had been repaired (Tr. 33-35).

     Mr. Young assigned Howard to a truck usually used to trans-
port mud and other debris.  Howard transported coal in the
mud truck while a Yogo mechanic repaired the air conditioner
on his truck.  On August 16, Howard drove his own truck
until about noon when the air conditioner stopped working
again (Tr. 36-39, 127-29).

     When Howard told Young that his truck's air conditioner was
broken, Howard claims that Young became angry and told him
that he had stabbed Young in the back ever since he had come
to work for him[2].  Then Young told Howard to go home and
that he either would call him when he needed him, or when
the air conditioner was fixed (Tr. 39-41, 48-49, 64, 85).

     Young denies making the "stab in the back" remark.  He says
he merely sent Howard home because the mud truck was being
used by another miner and therefore he had no vehicles for
Howard to drive that had operational air conditioning (Tr.
129).

     Respondent contends that Mr. Howard called Larry Goble on
August 21, 1995.  Goble told him that his truck's air
conditioner was not fixed yet.  Howard asked Goble if he
could come in to wash the truck so that he could earn some
money.  Goble told Howard that he could not use the vehicle
until the air conditioner was fixed (Tr. 198-99).

     The next day Howard, who lives close to the Martiki mine,
heard on his CB radio that another miner was driving his
truck.  He called Goble again and was told he could return
to work.  Howard claims that Goble said to him that somebody
had called the Mine Safety and Health Administration and
indicated that this would hurt Yogo (Tr. 49-53).

     Respondent claims it intended to recall Howard as soon as
the air conditioning was fixed (Tr. 130).  Goble states that
on August 22 he became tired of waiting for a contractor and
repaired the air conditioning compressor himself.  He was
then able to get the contractor to come to the site simply
to add freon, which neither he nor any other Yogo employee
was licensed to do (Tr. 199, 211, Exh. R-3).

     Respondent further contends that the truck was driven by
another miner on the afternoon of August 22, only to make
sure that the air conditioner worked before recalling
Howard.  On August 23, Howard returned to work and his air
conditioner functioned properly (Tr. 53, 130).

     On or about August 29, 1995, Howard encountered Mr. Young
at the scale house where Yogo's trucks were weighed by
Martiki.  According to Howard, Young begged him to quit,
told him again that Howard had stabbed him in the back and
hurt him (Tr. 55-56).  Young denies having any heated
discussions with Howard.  He states that he had been told by
two people that Howard was planning to quit and merely asked
if this was true and told Howard he would appreciate being
given notice.  Both men agree that Howard told Young that he
planned to quit as soon as he found another job (Tr. 92,
133-36, 168).

     On August 30, the radiator hose on Howard's truck broke.
He took his truck to Respondent's repair shop to fix it.
There he encountered Mr. Young again.  Howard says Young
became very angry.  With his face only four or five inches
from Mr. Howard's, Young asked Howard if he thought he
"owned the place."  He then told Howard not to get out of
the truck until Young told him to get out (Tr. 56-59).

     Young claims that he merely asked Howard to move his truck
because it was in the way of Yogo's mechanics.  Young also
claims that Howard refused to move the truck.  He denies
that he was four to five inches from Howard and says the
distance between them was two to three feet (Tr. 170-72).

     The radiator hose was fixed and Howard resumed driving.
Later on August 30, Howard returned to the shop area to get
oil.  He claims Young opened the door to the truck cab and
told him he was either going to fire him or force him to quit.
Howard believed that Young was trying to provoke him into
starting a fist fight (Tr. 60-61, 95-97).

     Young says he merely told Howard that he should have called
the shop on his CB radio and had the oil brought out to him.
This apparently would have taken Howard's truck out of
production for significantly less time.  Young denies that
he slammed the door to Howard's truck, as claimed by Howard
(Tr. 173-75).

     On August 31, 1995, despite the fact that he had not found
another job, Howard did not report for work.  He did not
call Respondent to inform it that he was quitting.  He
picked up his last pay check on September 1, and filed a
discrimination com-plaint with MSHA on September 5.  On
September 13, Respondent sent Howard a letter formally
discharging him (Tr. 57, 97-99, 136-38, 142-43, 220).

     Howard's complaint was investigated by MSHA and an
application for temporary reinstatement was received by the
Commission on January 16, 1996.  Respondent requested a
hearing on the application.  This hearing was held on
February 8, 1996, in Prestonsburg, Kentucky.

                      Evaluation of the Evidence

     Section 105(c)(1) of the Federal Mine Safety and Health Act
provides that:

          No person shall discharge or in any manner
     discriminate against or cause to be discharged
     or cause discrimination against or otherwise
     interfere with the exercise of the statutory
     rights of any ... miner because such miner ...
     has filed or made a complaint under or related
     to this Act, including a complaint notifying
     the operator or the operator's agent ... of an
     alleged danger or safety or health violation
     ... or because such miner ... has instituted
     or caused to be instituted any proceeding
     under or related to this Act ... or because of
     the exercise by such miner ... of any statutory
     right afforded by this Act.

     The Federal Mine Safety and Health Review Commission has
enunciated the general principles for analyzing discrimination
cases under the Mine Act in Sec. ex rel.  Pasula v. Consolidation
Coal Co., 2 FMSHRC  2786 (October 1980), rev'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3d Cir. 1981), and Sec. ex rel. Robinette v. United Castle
Coal Co., 3 FMSHRC 803 (April 1981).  In these cases, the
Commission held that a complainant establishes a prima facie
case of dis-crimination by showing 1) that he engaged in
protected activity and 2) that an adverse action was
motivated in part by the protected activity.

     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.  If the operator cannot thus rebut the prima facie
case, it may still defend itself by proving that it was
motivated in part by the miner's unprotected activities, and
that it would have taken the adverse action for the
unprotected activities alone.

     In a temporary reinstatement proceeding, the Secretary need
not establish that it will, or is even likely to, prevail in
the discrimination proceeding.  Pursuant to the procedural
rules of the Commission, 29 C.F.R.  2700.45(d), the issue in
a temporary reinstatement hearing is limited to whether the
miner's complaint was frivolously brought.  The Secretary of
Labor has the burden of proving that the complaint was not
frivolous.

     The legislative history of the Act provides that the
Secretary shall seek temporary reinstatement, "[u]pon
determining that the complaint appears to have merit."  The
Eleventh Circuit, in Jim Walter Resources, Inc. v. FMSHRC,
920 F.2d 738, 747 (11th Cir. 1990), concluded that "not
frivolously brought" is indistinguishable from the "reasonable
cause to believe" standard under the whistleblower provisions
of the Surface Transportation Assistance Act.  Further, that
court equates "reasonable cause to believe" with a criteria of
"not insubstantial or frivolous" and "not clearly without merit"
920 F.2d 738, at 747 and n. 9.

     In the instant case the primary question is whether the
Secretary and Mr. Howard have established that it is not
frivolous to contend that adverse action was taken against
Mr. Howard.  More specifically, the issue is whether the
Secretary's claim that Mr. Howard was constructively
discharged in August 1995 is clearly without merit.  It is
uncontroverted that Howard quit and was not fired by
Respondent.

     It determining whether the Secretary and Mr. Howard have met
this burden, I conclude it would be inappropriate for me to
make the ultimate credibility resolutions that I would make
in a discrimination proceeding.  Commission Rule 45(d) allows the
Secretary to limit his presentation to the testimony of the
Complainant.  Thus, unless I find there is no conceivable way
that I could credit the complainant's version of events in a
discrimination proceeding, I believe I must take his testimony
at face value in a temporary reinstatement proceeding[3].

     For example, there are sharp differences in the accounts
of Mr. Howard and Mr. Young regarding their conversations in
August, 1995.  It is quite conceivable that there may be
corroborative evidence presented in a discrimination hearing
that would allow a far more reliable resolution of the
credibility of these witnesses than I am able to make at the
present time.

     The Secretary has established that his claim that
Mr. Howard was constructively discharged is "not frivolous."

     Under Commission law, a constructive discharge is proven
when a miner engaged in protected activity shows that an
operator created or maintained conditions so intolerable
that a reasonable miner would have felt compelled to resign,
Secretary on behalf of Nantz v. Nally & Hamilton Enterprises,
Inc., 16 FMSHRC 2208, 2210 (November 1994); Also see, Simpson
v. FMSHRC, 842 F.2d 453 (D.C. Cir. 1988); Yates v. Avco Corp.,
819 F. 2d 630, 636-8 (6th Cir. 1987) [a similar test is applied
by the 6th Circuit under the Civil Rights Act].

     Mr. Howard's testimony indicates that Mr. Young, half-owner
of the operator, became upset at him when he insisted that
his air conditioner be repaired on July 11 and on August 15
and 16.  Howard claims Young approached him in an extremely
hostile manner on August 29 and 30, 1995, to the point of
provoking a fight.

     At this juncture, I conclude that it is not frivolous for
the Secretary to argue that Howard's insistence of having his
air conditioner repaired and his conversation with MSHA
special investigator Nancy Bartley constituted activities
protected by section 105(c) of the Act.  Further, I find the
Secretary's allegations of animus on the part of Mr. Young
towards these activities to be not clearly without foundation.
This alleged animus may establish a nexus between Howard's
protected activities and the termination of his employment with
Respondent.

     Finally, I conclude that it is at least arguable that
Mr. Young's alleged behavior in July and August 1995 with
respect to Mr. Howard created conditions so intolerable that
a reasonable miner would have felt compelled to quit.
Therefore, I conclude that the Secretary's decision to seek
the temporary reinstatement of Mr. Howard is not frivolous.

                                ORDER

     Respondent is hereby ORDERED to reinstate Andy Howard, Jr.,
immediately.  The purpose of temporary reinstatement is to
render Complainant financially secure during the pendency of
his discrimination case, Legislative History of the Federal
Mine Safety and Health Act of 1977, at page 625.  Respondent
may satisfy this order through the means of "economic
reinstatement."  Complainant's position, including financial
compensation and benefits, must be no worse than it would
have been had he returned to work on August 31, 1995, and
continued to work for Respondent up to the present date[4].


                                     Arthur J. Amchan
                                     Administrative Law Judge


**FOOTNOTES**

     [1]:  Other than Howard, the three drivers who worked for Yogo
are still employed by Respondent (Tr. 73-74).

     [2]:  It is not clear from Howard's testimony whether he
claims these statements were made on August 15 or 16, or on both
days (Tr. 39, 64).

     [3]:  This is analogous to determinations made in deciding a
motion for summary decision under Commission rule 69(b) and (c).
Such motions can only be granted if there is no genuine issue
as to any material fact and the moving party is entitled to
summary decision as a matter of law.

     [4]:  This refers to current payments and working conditions,
it does not require Respondent to give Complainant back pay,
which he would be entitled to only if he prevailed in a
discrimination proceeding.


Distribution:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN  37215-2862 (Certified Mail)

Tony Oppegard, Esq., Mine Safety Project of the Appalachian
Research & Defense Fund of Kentucky, Inc.,
630 Maxwelton Court, Lexington, KY  40508 (Certified Mail)

Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S.C.,
415 Second Street, P.O. Box 351, Pikeville, KY 41502-0351
(Certified Mail)

/lh