<DOC>
[DOCID: f:k97-51d.wais]

 
CONSOL OF KENTUCKY, INC.
February 21, 1997
KENT 97-51-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION


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


                        February 21, 1997

LENDON SHEPHERD,               :     DISCRIMINATION PROCEEDING
                Complainant    :
                               :     Docket No. KENT 97-51-D
                               :     BARB CD 96-18
                    v.         :
                               :
Wiley Surface Mine             :
CONSOL OF KENTUCKY, INC.,      :     Mine ID 15-17664
                Respondent     :


                            DECISION

Appearances:  Lendon Shepherd, Hueysville, Kentucky, pro se;
              Elizabeth Chamberlin, Esq., Consol, Inc.,
              Pittsburgh, Pennsylvania, for the Respondent.

Before:  Judge Melick

     This case is before me upon the complaint by Lendon Shepherd
under Section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C.  801 et seq., the "Act," alleging that he was
discharged by Consol of Kentucky, Inc. (Consol) in violation of
Section 105(c)(1) of the Act.[1]  In a Motion to Dismiss and
Amended Motion to Dismiss Consol notes that the Complainant
was admittedly discharged on October 20, 1995, and did not file a
complaint with the Mine Safety and Health Administration (MSHA)
alleging that he was unlawfully discharged until September 5,
1996.  Consol argues therefore that the complaint should be
dismissed as untimely.

     In relevant part, Section 105(c)(1) of the Act prohibits the
discharge of a miner for filing a complaint notifying the
operator or the operator's agent of an alleged danger or safety
or health violation.  fn 1 Supra.  If a miner believes that he
has been discharged in violation of the Act and wishes to invoke
his remedies under the Act, he must file his initial
discrimination complaint with the Secretary of Labor within 60
days after the alleged violation and in accordance with
Section 105(c)(2) of the Act.[2]  The Commission has held that
the purpose of the 60-day time limit is to avoid stale claims,
but that a miner's late filing may be excused on the basis of
"justifiable circumstances."  Hollis v. Consolidation Coal
Company, 6 FMSHRC 21(January 1984); Herman v. Imco Services,
4 FMSHRC 2135 (December 1982).  In those decisions the Commission
cited the Act's legislative history relevant to the 60-day time
limit:

     While this time-limit is necessary to avoid stale claims
     being brought, it should not be construed strictly where the
     filing of a complaint is delayed under justifiable
     circumstances.  Circumstances which could warrant the
     extension of the time-limit would include a case where the
     miner within the 60-day period brings the complaint to the
     attention of another agency or to his employer, or the miner
     fails to meet the time-limit because he is mislead as to or
     misunderstands his rights under the Act. (citation omitted).

     The Commission noted accordingly that timeliness questions
     must be resolved on a case-by-case basis, taking into
     account the unique circumstances of each situation.

     At hearings, Mr. Shepherd testified that he and his brother,
     Gordon, visited the Hazard, Kentucky office of the Mine
     Safety and Health Administration (MSHA) in November 1995,
     around the tenth of the month.  According to Shepherd, he
     met with MSHA Special Investigator Maurice Mullins who wrote
     what he told him on a "yellow piece of scratch paper".
     Shepherd further described what occurred at this alleged
     meeting in the following colloquy:

     Q. All right.  And what did you tell Mr. Mullins at that
     time?

     A. I told him that I had been terminated after being off
     with an injury.

     Q. You had been terminated after being off with an injury?

     A. With a work-related injury.  And still under a doctor's
     care.  Not released to go back to work by that doctor.

     Q. Is there anything else you told him?

     A. Yeah.  That the one treating physician that I had been
     seeing --

     Q. I'm sorry.  You'll have to speak up.

     A. The one treating physician that I had been seeing had
     released me to go back to work.  Another treating physician,
     my primary treating physician, does physicals for Consol of
     Kentucky, as well.  And he would not release me to go to
     work.  He told me that I was not able to return to work at
     that time.

     Q. All right.  Anything else you told him?

     A. I was put through a regular prehiring physical, pre-
     employment physical, after 14 years of employment.

     Q. This is what you told Mr. Mullins, you're saying?

     A. Yes, sir.

     Q. All right.

     A. And I was told that I came to work on drugs.  And fired
     for that reason.

     Q. I'm sorry?

     A. And fired for that reason.

     Q. You said you were put through a prework physical?

     A. A pre-employment physical.

     Q. And what happened?

     A. I was terminated.

     Q. As a result of that physical?

     A. They said, yeah, they told me that I came to work on
     drugs.

     Q. Okay.  And in response to that, what did Mr. Mullins tell
     you?

     A. That he would investigate it, look into it, and get back
     with me.

     Q. He would what?

     A. He would investigate it and get back with me.  Get back,
     contact me.

     Q. And is that all that occurred then at the office at that
     time?

     A. Yeah.  During that time, the federal government shut
     down, is what I was told.  I inquired with MSHA on several
     occasions, and I was told that the federal government had
     shut down and he was not working at that time.  That's the
     reason for my late filing.  Because I didn't sign a piece of
     paper or anything.  You know, he said he was going to
     investigate this thing.

     Q. Well, did Mr. Mullins get back to you at all?

     A. No, sir.

     According to Shepherd, Mullins never again contacted him so
     he filed the instant complaint in the Martin, Kentucky MSHA
     office on September 5, 1996.  Shepherd further testified
     that after his discharge he conferred with 20 attorneys in
     1995 alone.  The record shows that an attorney for the
     Appalachian Research and Defense Fund, Christine Heatley,
     acting on behalf of
     Mr. Shepherd, requested on December 4, 1995, information
     from Consol pertaining to Complainant's positive drug tests.
     (Exhibit R-1).  Shepherd also filed applications for
     unemployment insurance, worker's compensation, and for
     benefits under the Americans With Disabilities Act regarding
     his
     October 20 discharge.

     At hearing Lendon Shepherd's brother, Gordon Shepherd,
     testified that he accompanied Lendon to the Hazard offices
     in November 1995.  Gordon Shepherd testified that his
     brother, in
     fact, went into Mr. Mullins's office and Mullins took notes
     on a note pad and said that he would investigate the
     complaint.

     At continued hearings Maurice Mullins, the Special
     Investigator for the Hazard, Kentucky MSHA office, testified
     that he had served in that capacity since 1982.  In 1995 he
     was the only investigator handling "Section 105(c)" cases
     out of the Hazard MSHA office.  According to Mullins, if a
     person came into the MSHA office to file a complaint under
     Section 105(c), they were referred to "complaint processors"
     in the office who would type up the complaint.  The
     complaint processor would then call the Barbourville,
     Kentucky MSHA office and obtain a case designator number.
     At that point a copy of the complaint would be retained in
     the office and copies would be mailed to the Complainant and
     to the Operator.  Mullins had checked the office records and
     found no complaint filed by Mr. Shepherd in 1995.  Mullins
     testified that he took a statement from Mr. Shepherd on
     September 16, 1996, pursuant to the instant complaint filed
     on September 5, 1996, and that he therefore now can identify
     Mr. Shepherd.  He has no recollection of ever having met
     Shepherd prior to September 16, 1996.

     I find Mr. Mullins' testimony credible regarding the
     standard procedures followed in the Hazard MSHA office
     in receiving discrimination complaints, that there was
     no record of Mr. Shepherd having filed any complaint
     with his office in 1995 and that he had no recollection
     of having ever met Shepherd prior to his taking his
     statement on September 16, 1996.  Under the
     circumstances I do not find Shepherd's claims that he
     had filed his complaint in November 1995, to be
     credible.  He does not claim that he was ignorant of
     the filing requirements but only that he had filed
     within the 60-day time-frame set forth in the Act.
     Under the circumstances the complaint he filed on
     September 5, 1996, regarding his discharge on October
     20, 1995, is untimely and cannot be excused for any
     "justifiable circumstance".  Consol's Motion to Dismiss
     is accordingly granted.

                              ORDER

     Discrimination Complaint, Docket No. KENT 97-51-D, is hereby
dismissed.





                              Gary Melick
                              Administrative Law Judge

Distribution:

Lendon Shepherd, 1625 Salyer Branch Road, Hueysville, KY 41640
(Certified Mail)

Elizabeth S. Chamberlin, Esq., Consol, Inc., 1800 Washington Road,
Pittsburgh, PA 15241  (Certified Mail)
(Certified Mail)

                              \jf


     **FOOTNOTES**

     [1]: Section 105(c)(1) of the Act provides as follows:

          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, representative of miners or
     applicant for employment in any coal or other mine subject
     to this Act because such miner, representative of miners or
     applicant for employment in any coal or other mine subject
     to this Act because such miner, representative of miners or
     applicant for employment has filed or made a complaint under
     or related to this Act, including a complaint notifying the
     operator or the operator's agent, or the representative of
     the miners at the coal or other mine of an alleged danger or
     safety or health violation in a coal or other mine, or
     because such miner, representative of miners or applicant
     for employment is the subject of medical evaluations and
     potential transfer under a standard published pursuant to
     Section 101 or because such miner, representative of miners
     or applicant for employment has instituted or caused to be
     instituted any proceeding under or related to this Act or
     has testified or is about to testify in any such proceeding,
     or because of the exercise by such miner, representative of
     miners or applicant for employment on behalf of himself or
     others of any statutory right afforded by this Act.

     [2]: After investigation of the miner's complaint, the
     Secretary is required to file a discrimination complaint
     with this Commission on the miner's behalf if the Secretary
     determines that the Act was violated.  If the Secretary
     determines that the Act was not violated, he shall so inform
     the miner, and the miner then may file his own complaint
     with the Commission under  Section 105(c)(3) of the Act.