<DOC>
[DOCID: f:k9960d.wais]

 
J & C MINING, L.L.C.
December 24, 1998
KENT 99-60-D


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          December 24, 1998

SECRETARY OF LABOR,             :  TEMPORARY REINSTATEMENT
  MINE SAFETY AND HEALTH        :         PROCEEDING
  ADMINISTRATION (MSHA),        :
  on behalf of PAUL MIDDLETON,  :  Docket No.  KENT 99-60-D
               Complainant      :
          v.                    :  BARB CD 98-19
                                :
J & C MINING, L.L.C.,           :  Mine No. 1
               Respondent       :  Mine ID 15-17707

                  DECISION APPROVING SETTLEMENT

Appearances: Brian Dougherty, Esq., Office of the Solicitor, 
             U.S. Department of Labor, Nashville, Tennessee,
             for the Complainant
             Susan Lawson, Esq., Harlan, Kentucky, for the
             Respondent.

Before: Judge Weisberger

     On April 27, 1998, Paul Middleton filed a Discrimination
Complaint with the Mine Safety and Health Administration (MSHA)
alleging that he was discharged by J & C Mining, L.L.C. ("J & C")
from his position as a day-shift foreman as a result of his
refusal, on two occasions, to instruct his crew to work in unsafe
conditions, and his complaint to J & C's owner regarding his
direct supervisor's unsafe instructions.

     On November 17, 1998, the Secretary filed an Application for
Temporary Reinstatement alleging, in essence, that the Complaint
of Discrimination filed by Middleton was not frivolous.  On
November 17, 1998, the Commission's Docket Office received a
statement from J & C alleging that Middleton was terminated for
just cause with no discriminatory intent.  In its statement, J &
C also requested a hearing.  On November 30, 1998, the
undersigned arranged a telephone conference call between the
Secretary and J & C's representative in order to arrange a
hearing date.  After discussion, the Secretary agreed that the
hearing should be scheduled to commence December 16, 1998.  The
matter was heard in Kingsport, Tennessee, on December 16-17,
1998.

     At the hearing, the Parties reached a settlement that
disposes of the Application for Temporary Reinstatement.  The
terms of parties' settlement, are set forth in the transcript of
this proceeding, and are incorporated herein.  I find that the
settlement is appropriate considering the record in this case,
and it is approved.

                              ORDER

     It is ordered that the Parties shall abide by all the terms
of the settlement.   It is further ordered that, based on the
parties' agreement and interest of justice, the transcript of the
hearing in this proceeding be included in the record of the
companion discrimination proceeding, Docket No. KENT 99-61-D. It
is further ordered that the Application of Temporary Reinstatement
be DISMISSED.


                                Avram Weisberger
                                Administrative Law Judge
                                703-756-6215


Distribution:

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

Susan Lawson, Esq., 111 First Street, P.O. Box 837 Harlan, KY
40831 (Certified Mail)

dcp