<DOC>
[DOCID: f:k96-201d.wais]

 
MANALAPAN MINING CO.
December 12, 1996
KENT 96-201-D


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          December 12, 1996

PRABHU DESHETTY,              :   DISCRIMINATION PROCEEDING
               Complainant    :
                              :   Docket No. KENT 96-201-D
                              :   BARB CD 96-05
          v.                  :
                              :   Mine:  No. 2
MANALAPAN MINING CO.,         :   Mine ID: 15-02002
               Respondent     :

                             DECISION

Appearances:  Timothy L.Wells, Esq., Hyden, Kentucky, for the
              Complainant;
              Susan C. Lawson, Esq., Harlan, Kentucky, for the
              Respondent.

Before:  Judge Melick

     This case is before me upon the complaint by Prabhu Deshetty
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 the
Manalapan Mining Company (Manalapan) discharged him on December 30,
1995, in violation of Section 105(c)(1) of the Act.[1] In particular
Mr. Deshetty alleges that his discharge was a direct result of safety
complaints regarding the mine access bridge, the availability and
use of permissible pumps and the Respondent's alleged failure to 
properly evacuate miners during periods of ventilation fan shutdowns.

     Deshetty has a bachelor's degree in geology and mining engineering
and a master's degree in mining engineering.  He also has 20 years 
experience in the mining industry including work as a section foreman
and mine foreman.  Deshetty was hired as Vice-President for Operations
(in charge of both production and maintenance) by Manalapan President
Duane Bennett on July 10, 1995.  Bennett was looking for someone to
take over and improve production.

     Deshetty testified at hearing regarding his four alleged safety 
complaints made between the commencement of his work on July 10, 1995,
and his discharge on December 30, 1995.  Toward the end of July, about
two weeks after he began working for Manalapan, as he was driving home
from work he heard on his "CB" radio that there had been a power outage
at the mine causing a ventilating fan stoppage. Returning to the mine 
and arriving about 30 minutes later, Deshetty met Ralph Napier, the 
overall superintendent of Manalapan mines. Napier told Deshetty that 
the miners were still underground and that the fan was still down.
Deshetty observed that the law requires miners to be evacuated if the 
fan is down for 15 minutes. Deshetty described his meeting with Napier
in the following colloquy:

          Judge Melick: And What did you learn when you got back to
          mine property?

          The Witness: The power was still off.  That's when I asked
          Ralph, you know, "What are the people doing?"  He said, you
          know, "They are still underground." . . .

          The Witness: He said, "The power is off.  They are  still
          underground.  They are working."

          Judge Melick: Any further conversation?

          The Witness: Yes.  I told him, you know, "I can't believe
          this.  We are supposed to bring the people out after
          15 minutes."  And I cautioned him right then, you know, 
          that it should not happen anymore.

          Judge Melick: Were the men brought out at that time?

          The Witness: No.  Then the next question for me was -- I 
          asked him, "How long will it take to get the power and
          the fans back on?"  He said, "In about 15, 20 minutes, 
          they will have the power back up, and the fan started."

     Although he was in charge of the mine and Napier was his subordinate,
Deshetty did not order the miners to be evacuated.  Napier agreed with
Deshetty that the mine should have been evacuated and agreed to evacuate
the miners if a fan stoppage occurred again.  Deshetty apparently maintains
that his protected complaint occurred a few days later when he saw mine 
owner Duane Bennett and "mentioned that to him, you know, this has been 
going on, and I don't like it." (Tr. 18).  Bennett agreed that the miners 
should be removed from the mine whenever there is a fan stoppage.

     Subsequently, at the end of September, Deshetty's position had changed
so that he was in charge only of maintenance. Carson Shepherd was then 
brought in to handle operations and production.  Deshetty testified that
when this change was made Bennett warned both he and Shepherd that if
production did not improve they would both be removed.

     Deshetty alleges that his second protected activity resulted from 
events in October 1995, regarding an intentional fan stoppage while power
cables were being replaced.  According to Deshetty, the fan had already 
been off for 15 minutes when he arrived and they began running another 
cable with the fan still off.  When he complained to Shepherd about
this procedure Shepherd purportedly responded only that "there is one
more cable to be done" (Tr. 23).  Deshetty maintains that when he 
later told Bennett about this incident, Bennett responded "I am not
worried about something happening, because we don't have that much gas 
in these mines" (Tr. 25).  Deshetty did nothing to stop this apparently
unlawful procedure claiming that he was not then in charge.

     The third alleged protected activity occurred sometime before the 
first week of November, 1995.  A security guard had reported to Deshetty
that truck drivers had been complaining about the safety of a county-owned
bridge providing the only access to mine property.  Gary Tucker, Manalapan's
resident engineer, told Deshetty that the bridge had a load limit of 3 tons
and Deshetty was aware that the trucks using the bridge weighed 30 tons.
Deshetty had also observed that one of the bridge slabs was so weak you 
could see it move when the loaded trucks passed over (Tr. 30). Deshetty 
accordingly directed Tucker to contact the department of transportation 
regarding its safety.  One of the bridge slabs subsequently collapsed and 
it was repaired by Manalapan.

     Later, at a meeting with Bennett at which Larry Ellis, Olin Pennington
and Carson Shepherd were also present, Bennett asked Deshetty if he had 
approached the "DOT" about the bridge.  When Deshetty admitted that he had
done so Bennett purportedly responded as follows:

          You should not have done that.  You should not have
          gone over my head.  Don't do this in the future. . .
          You know what happens if the bridge -- if something
          happens to the bridge . . .  We both better hope
          nothing will happen to the bridge.[2]

     The fourth alleged safety complaint occurred during the first week of
December after a citation had been issued for a non-permissible pump in the
return air course. Deshetty told Bennett of the need for a new permissible
pump and Bennett purportedly responded "[h]ere we go again. . .  You want 
to spend more money" (Tr. 40). Deshetty nevertheless directed the purchasing
department to obtain the pumps.

     According to Deshetty, at the December 30 meeting at which he was 
terminated, Bennett told him that he had not accomplished anything and that
he could not afford to retain him.  Deshetty acknowledged that when hired 
he was told to increase production and reduce costs in the four existing 
mines and that he was to open a fifth mine.  He acknowledged that he never
did get the fifth mine operating in the three months he was in charge.

     This Commission has long held that a miner seeking to establish a 
prima facie case of discrimination under Section 105(c) of the Act bears 
the burden of persuasion that he engaged in protected activity and that
the adverse action complained of was motivated in any part by that 
activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2
FMSHRC 2786, 2797-2800 (October 1980) rev'd on grounds, sub nom.  
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); and 
Secretary on behalf of Robinette v. United Coal Co., 3 FMSHRC 803, 817-18
(April 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 part motivated by the protected activity.  If an operator 
cannot rebut the prima facie case in this manner, it may nevertheless 
defend affirmatively by proving that it would have taken the adverse 
action in any event on the basis of the miner's unprotected activity 
alone.  Pasula, supra; Robinette, supra.  See also Eastern Assoc. Coal
Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford 
Construction Co., 732 F.2d 954, 958-59 (D.C. Cir, 1984); Boich v. FMSHRC,
719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the 
Commission's Pasula-Robinette test).  Cf. NLRB v. Transportation Management
Corp., 462 U.S. 393, 397-413 (1983) (approving nearly identical test
under National Labor Relations Act).

     It may reasonably be concluded that the two conversations Deshetty 
had with Bennett concerning the fan stoppages and his conversation with
Bennett regarding the need to obtain a permissible pump were protected 
safety complaints. Deshetty's initiation of complaints to the county 
government "DOT"  concerning the safety of a bridge providing access to
mine property is more problematic because the bridge was not in fact on 
mine property.  Under Section 105(c)(1) a complaint is protected if it is 
"under or related to" the Act.  Since the bridge at issue provided the 
only access over which coal haulage trucks could transport coal from the
subject mine thereby exposing miners to a serious safety hazard, I conclude
that the action of Deshetty in initiating safety complaints about that
bridge were sufficiently "related" to the Act to be within its protections.
Accordingly I find all four of Deshetty's claimed activities to have 
been protected under the Act.

     As noted, the second element of a prima facie case of discrimination 
is a showing that the adverse action was motivated in any part by the 
protected activity.  As this Commission observed in Chacon v. Phelps Dodge
Corp., 3 FMSHRC 2508 (November 1981) rev'd on other grounds sub nom. Donovan
v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983), "[d]irect evidence of
motivation is rarely encountered; more typically, the only available evidence
is indirect."  The Commission considered in that case the following
circumstantial indicia of discriminatory intent: knowledge of protected 
activity; hostility towards protected activity; coincidence of time between 
the protected activity and the adverse action; and disparate treatment. In
examining these indicia the Commission noted that the operator's knowledge
of the miner's protected activity is "probably the single most important 
aspect of the circumstantial case."

     With the exception of Deshetty's complaint about the unsafe bridge 
access to mine property none of his alleged "safety complaints" to Bennett
were made in a context from which one would expect retaliation.  Indeed, 
with respect to the first fan outage incident, it was Deshetty's own 
responsibility as Vice President of Operations, after he learned that miners
remained underground longer than the 15 minutes allowed by law, to have those
miners evacuated.  Deshetty merely cautioned his subordinate, Ralph Napier,
that the miners should have been evacuated and warned him not to let it
happen again.  Moreover, in discussing this incident with his supervisor,
Manalapan President Duane Bennett, the next morning, Bennett agreed that
when the fan is "out" for more than 15 minutes, the miners should be 
evacuated from underground.  Deshetty acknowledged moreover that Bennett
was not angry at this meeting and there is in fact no evidence to suggest
that Bennett bore any animus toward Deshetty as a result of this incident. 
I cannot therefore conclude that Deshetty's discharge about five months 
later was motivated in any part by this incident.

     Deshetty's claimed protected activity regarding the second "fan 
stoppage" incident, in October 1995, was apparently his report of this 
incident to Bennett the next day.  According to Deshetty, Bennett said, in
response to his report, that he was not worried about anything happening
because there was not much gas in the mine.  Bennett denied making the
statement.  He credibly testified that he was at the mine when the new 
high voltage line was taken underground and the procedures were explained 
to him.  Deshetty was also then present but turned and drove off apparently 
without comment. Deshetty fails to suggest any evidence of animus or reason
to retaliate for this event.  Under the circumstances it cannot reasonably
be inferred that Deshetty's subsequent discharge was motivated in any part
by this incident.

      Around December 9-10, 1995, at a meeting with Mr. Bennett and all the
foremen, Deshetty mentioned to Bennett that Manalapan needed to buy some
permissible pumps for the No. 2 Mine.  Bennett responded "here you go again,
you want to spend more money."  Deshetty nevertheless obtained quotes for 
the pumps and directed the purchasing department to buy the pumps at the 
lowest price.  Deshetty acknowledged that Bennett did not refuse to authorize
the purchase of the pumps.  Deshetty also acknowledged that Bennett liked to
joke around from time to time and that when he made the noted comment 
Deshetty did not believe the statement would have any impact on his continued
employment with Manalapan.

     Chief Electrician Earl McKnight testified that when Bennett made the
noted comment he thought Bennett was talking to him rather than Deshetty and
interpreted it as one of Bennett's jokes because Bennett had a "friendly 
attitude" at the time. At Bennett's direction, McKnight obtained quotes and 
gave them to Deshetty.  Thereafter, McKnight discovered a permissible pump
already at the mine and this pump was utilized without the need to purchase
a new one.  There is again simply no evidence to suggest that this event had
anything to do with Deshetty's discharge.

     Clearly however Bennett showed hostility towards Deshetty's protected 
complaints about the unsafe county-owned access bridge, telling Deshetty 
that he "should not have done that" and that he "should not have gone over
my head".  Bennett also told Deshetty not to report problems with the bridge
to governmental authorities in the future.  Indeed Bennett himself testified 
that he told Deshetty that he should not get involved in the local politics 
because he, Bennett, had lived in Harlan County all of his life and it "came
back to him."  He was concerned that if the bridge was condemned then mine 
operations would have to close down. Bennett denied however that Deshetty's
activities in this regard had anything to do with his firing.

     There was also a close relationship in timing between this protected 
activity and the adverse action in that the bridge defects were apparently
reported to the county in early November and on December 30th Deshetty was 
discharged. I therefore conclude that Bennett (and therefore Manalapan)
was motivated, at least in part, by this protected activity. Deshetty has
accordingly established a prima facie  case  of  discrimination  that  is 
unrebutted.

     In accordance with the Pasula analysis the issue then is whether
Respondent has affirmatively defended by proving that it would have taken 
the adverse action in any event on the basis of Deshetty's unprotected 
activity alone.  In this regard Bennett testified that Deshetty was 
discharged solely because he was not productive and that things were going
from "bad to worse".  In addition Deshetty had failed to open the new fifth
mine during his tenure.  Bennett testified that by August he noted in regard
to production, maintenance and the "whole management of the mines" that
"instead of things going forward, I saw them going backwards" (Tr. 215-216).
According to Bennett, July was a losing month and August was even a "much 
bigger loser."  The average cost per clean ton in the first six months of 
1995 had been $15.73 and in July it went up to $25.05.  While costs came 
down to $20.47 in August, to $17.37 in September, to $17.69 in October, to
$18.09 in November and to $14.30 in December, Bennett observed that over the
last six months of the year the mine lost over a million dollars.  He noted
that the $15.73 average cost per clean ton in the first six months went up
to $18.01 for the last six months.

     Bennett also noted, and it is undisputed, that, while Deshetty had been
transferred out of production responsibilities and into maintenance around 
the end of September he told both Deshetty and Carson Shepherd (who assumed 
the production responsibilities) that they would both be removed if production
did not improve.  When production did not improve and Deshetty "never got a
maintenance program off the ground" they were both removed. Bennett also found
that Deshetty was not aggressive in getting things done.

     Within this framework of evidence I conclude that indeed Respondent has 
sustained its burden of proving that it would have discharged Complainant in
any event for unprotected reasons alone.  In reaching this conclusion I am 
cognizant that Shepherd was subsequently retained in another capacity at 
another Manalapan mine.  I do not however find that this evidence is of 
sufficient weight to alter my conclusion herein.  This case must accordingly
be dismissed.

                              ORDER

     Docket No. KENT 96-201-D is hereby dismissed.


                                     Gary Melick
                                     Administrative Law Judge


Distribution:

Timothy L. Wells, Esq., P.O. Box 1861, Hyden, KY 41749

Susan C. Lawson, Esq., Lawson & Lawson, P.S.C., Wheeler Building, Suite 301,
103 North First Street, P.O. Box 837, Harlan, KY 40831

/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 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 the Act."

     [2]: Bennett later testified that he was concerned that government
officials might condemn the bridge, the only access to the mine, thereby
shutting down operations.