<DOC>
[DOCID: f:kt2002114o.wais]

 
LEECO, INC., and BLUE DIAMOND COAL COMPANY
KENT 2002-114-D
May 29, 2002


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          May 29, 2002

SECRETARY OF LABOR,             : DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. KENT 2002-114-D
  on behalf of Jimmy Caudill    : BARB CD 2001-11
  and Jerry Michael Caudill,    :
               Complainants     :
          v.                    :
                                :
LEECO, INC., and BLUE DIAMOND   : No. 75
  COAL COMPANY,                 :
               Respondents      :

           ORDER DENYING RESPONDENTS' MOTION FOR SUMMARY DECISION

     This  case  is  before  me  on a complaint of discrimination
filed by the Secretary of Labor on  behalf  of  Jimmy Caudill and
Jerry Michael Caudill pursuant to Section 105(c)  of  the Federal
Mine  Safety  and  Health  Act of 1977 ("Mine Act" or "Act"),  30
U.S.C. � 815(c).  Respondents  have  moved  for summary decision,
advancing several arguments.  The most significant  issue  raised
by the motion is whether a miner, or applicant for employment  as
a  miner,  may  assert  a  claim of discrimination based upon the
protected activity of a third  party,  in  this  case the miner's
father.   For  the  reasons  set  forth  below,  I hold that  the
allegation that Jimmy Caudill suffered adverse action as a result
of  protected  activity  by his father, Jerry Caudill,  states  a
cause of action under section  105(c)  of the Act.  I also reject
the other arguments raised by Respondents and deny the motion for
summary decision.

                              Facts

     For  purposes  of  this  motion, the facts  alleged  in  the
complaint, as clarified and expanded  by the motion's papers, are
assumed  to be accurate.  On or about February  15,  2001,  Jimmy
Caudill applied  for  a  position  as  a  roof-bolter  at  a mine
operated  by  Respondent,  Leeco,  Inc.   He was told to complete
experienced miner training and report for duty  at  2:15 p.m.  He
attended the training at the mine site and was subsequently  paid
for the time he spent in training.  When he reported for work  at
about  2:10  p.m.,  however,  he  was told that another miner had
decided to come back to work, and that  he  would  not be working
for Leeco.  The miner that performed the roof bolting duties that
day,  however,  was  a current employee who had been assigned  to
maintain conveyor belts, not a miner returning to employment with
Leeco.  On February 26,  2001,  Caudill  filed  a  discrimination
complaint with MSHA, alleging that he "was fired because of [his]
family  history  of  Safety and Discrimination Complaints."   The
Secretary maintains that  shortly  before  Jimmy Caudill reported
for work, another miner discussed his family's  history of making
safety complaints with the mine superintendent, and  it  was that
information  that prompted Leeco to refuse to allow him to  start
work.

     The "family history" Jimmy Caudill was referring to was that
of his father,  Jerry  Michael Caudill.  Jerry Caudill had worked
as a miner for Leeco in  the  past, during which time he actively
asserted  rights under the Act.   He  became  the  first  miners'
representative  at  Leeco and made safety complaints to MSHA.  He
was discharged from Leeco in 1997, and initiated a discrimination
action against Leeco,  alleging  that his discharge was motivated
by  his  protected  activity.   An  application   for   temporary
reinstatement  was  successfully prosecuted on his behalf by  the
Secretary, and a subsequent  discrimination complaint pursuant to
section 105(c)(2) was settled.   Jerry  Caudill  last  worked for
Leeco in 1997, and has not sought employment with, or worked for,
either  Respondent since that time.  Jerry Caudill continued  his
activism  for  miners'  rights after leaving Leeco.  A subsequent
termination from another  mine  operator in the area was also the
subject  of  a discrimination complaint.   At  the  time  of  the
alleged discrimination  against  Jimmy Caudill, Jerry Caudill was
employed as a miner with Gin Coal,  which  is not affiliated with
either Respondent.

     Jimmy Caudill does not claim to have filed safety complaints
or engaged in any other activity protected by  the  Act, prior to
submitting his complaint to MSHA.  Jerry Caudill did  not  file a
complaint  of  discrimination  with  MSHA regarding the allegedly
discriminatory action against his son.

     The  discrimination  complaint in this  case  was  filed  on
behalf of both Jimmy Caudill  and  Jerry  Caudill  and  names  as
Respondents  Leeco,  Inc., and Blue Diamond Coal Company, Leeco's
corporate  affiliate  currently   operating   the  subject  mine.
Respondents answered the complaint and moved for summary decision
pursuant to Commission Procedural Rule 67, 29 C.F.R. � 2700.67.

                            The Motion

     Respondents  advance several arguments in support  of  their
contention that, as  a matter of law, a cause of action cannot be
maintained on behalf of  either miner under section 105(c) of the
Act.  Respondents contend  that:  1) Jimmy Caudill did not engage
in protected activity and cannot base  his claim on the protected
activity  of  a third party; 2) any protected  activity  was  too
remote in time  from  the allegedly discriminatory act to support
causation; 3) Jerry Caudill's  failure  to  file  a  complaint of
discrimination with MSHA is fatal to his claim; 4) Jerry  Caudill
is  not  a miner as to Respondents; and 5) Jerry Caudill suffered
no adverse action.

 Jimmy Caudill's Reliance upon Jerry Caudill's Protected Activity

     The  central  issue  raised  by  the  motion  is  whether  a
discrimination  action  can  be  maintained  on  behalf  of Jimmy
Caudill  based  upon  his  father's  protected activity.  Section
105(c)(1) of the Act provides, in pertinent part:

          No  person  shall  discharge  or   in  any  manner
     discriminate  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,  .  .  .  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.

     Respondents argue that the  plain  meaning  of  the statute,
principally  the phrase "because such miner," requires  that  the
protected activity  prompting the unlawful motive must be that of
the miner complaining  of  adverse  action,  not  that of a third
party.  They rely on Fogleman v. Mercy Hospital, Inc.,  283  F.3d
561  (3d  Cir.  2002),  where  the  court  rejected  a  claim  of
discrimination  under  similar  provisions  of the Americans with
Disabilities Act ("ADA") and the Age Discrimination in Employment
Act ("ADEA") brought by a son, claiming unlawful  retaliation for
his father's protected activity.

     The Secretary counters that the Commission and  courts  have
rejected strict literal interpretations of section 105(c)(1) that
are   inconsistent  with  the  legislation's  purpose,  and  that
refusing to allow Jimmy Caudill's claim of retaliation based upon
protected  activity  by his father would nullify some of the most
important protections  intended  by Congress.  The Secretary also
points out that similar anti-discrimination  provisions  in Title
VII,  the  Equal  Pay  Act and the Occupational Safety and Health
Act,  as well as the National  Labor  Relations  Act,  have  been
interpreted  so  as  to  allow  a cause of action for retaliation
based upon the protected activity of a third party.

                            Discussion

     As  the Commission stated in  Thunder  Basin  Coal  Co.,  18
FMSHRC 582, 584 (April 1996):

          The  first  inquiry  in  statutory construction is
     "whether Congress has directly  spoken  to  the precise
     question   at   issue."   Chevron  [U.S.A.  v.  Natural
     Resources Defense  Council,  Inc.,  467  U.S.  837, 842
     (1984)].  If a statute is clear and unambiguous, effect
     must   be  given  to  its  language.   Id.  at  842-43.
     Deference  to an agency's interpretation of the statute
     may not be applied  "to  alter  the  clearly  expressed
     intent  of  Congress."  K Mart Corp. v. Cartier,  Inc.,
     486  U.S.  281,   291   (1988)   (citations   omitted).
     Traditional    tools    of    construction,   including
     examination  of  a  statute's  text   and   legislative
     history, may be employed to determine whether "Congress
     had  an  intention  on  the precise question at issue,"
     which must be given effect.  Coal Employment Project v.
     Dole, 889 F.2d 1127, 1131  (D.C.Cir.  1989)  (citations
     omitted).   "In ascertaining the plain meaning  of  the
     statute,  the   court   must  look  to  the  particular
     statutory language at issue,  as  well  as the language
     and  design  of the statute as a whole."  K  Mart,  486
     U.S. at 291. (citations omitted). . . .

     If the statute  is  found  to  be ambiguous or silent on the
specific issue in dispute "[a] court  must  defer to the agency's
interpretation so long as it is reasonable, consistent  with  the
statutory  purpose,  and not in conflict with the statute's plain
language. . . ."  Coal  Employment  Project,  supra,  889 F.2d at
1131.  Under the statutory scheme of the Mine Act, the Commission
is  required  to  accord  deference to the Secretary's reasonable
interpretations of the law.   RAG  Cumberland  Res. LP v. FMSHRC,
272 F.3d 590, 595 (D.C.Cir. 2002).

                            Ambiguity

     Neither  the  Secretary,  nor  Respondents, have  cited  any
provision  in  the statute or the legislative  history  revealing
Congressional intent with respect to the specific issue presented
here, whether to  permit  or preclude a cause of action like that
urged on behalf of Jimmy Caudill.   It  is doubtful that Congress
considered  the question of such claims.   While,  as  Respondent
argues, a strictly  literal  reading  of  section 105(c)(1) would
suggest that a miner complaining of discrimination must, himself,
have engaged in protected activity, the determination  of whether
a  particular statutory provision is ambiguous entails more  than
an examination  of  the  specific  statutory  language.  As noted
above,  the  design of the statute as a whole and  the  available
legislative history should also be consulted to determine whether
Congress had an intention on the precise issue presented.

     The primary  purpose of the Mine Act was to protect mining's
most valuable resource - the miner, and Congress intended the Act
to  be  liberally  construed.   See,  e.g.,  Sec'y  of  Labor  v.
Cannelton Indus., Inc.,  867  F.2d  1423,  1437  (D.C.Cir.  1989)
(citing   cases).    It  is  also  clear  that  the  Act's  anti-
discrimination provisions were deemed critical to the enforcement
scheme  and  that Congress  specifically  intended  that  section
105(c)(1) be "construed  expansively  to  assure that miners will
not be inhibited in any way from exercising  any  rights afforded
by the legislation."  Donovan v. Stafford Construction  Co.,  732
F.2d  954, 960 (D.C.Cir. 1984) (quoting legislative history); see
also, e.g.,  Moses  v.  Whitley Development Corp., 4 FMSHRC 1475,
1480 (Aug. 1982), aff'd. 770 F.2d 168 (6th Cir. 1985) (table).

     In Moses, the Commission  held  that  "discrimination  based
upon  a suspicion or belief that a miner has engaged in protected
activity,  even  though,  in  fact,  he has not, is proscribed by
section 105(c)(1)."  4 FMSHRC at 1480.   The Commission explained
that:

     Section  105(c)(1) prohibits discharge,  discrimination
     or interference "because" of "a miner's exercise of any
     statutory  right  afforded  by  [the]  Act."   While  a
     literal  interpretation of this provision might require
     the actual  or attempted exercise of a right before the
     protection of  section  105  comes into play, we reject
     such  a  reading  for  two  reasons.   First,  such  an
     interpretation  would  frustrate  Congressional  intent
     that miners fully exercise their rights as participants
     in  the  enforcement of the  Mine  Act.   Second,  that
     approach would  also  wrongly  fail to redress or deter
     situations  where  an  operator,  with  the  intent  of
     frustrating  protected activity, takes  adverse  action
     against an innocent miner.

Id.
     The   court,   in   Donovan,   also   rejected   a   literal
interpretation  of  section   105(c)(1)  which  would  have  been
inconsistent with the expressed congressional intent:

     Although  a  literal  reading   of  the  statute  might
     indicate  that  a  discharge  is illegal  only  if  the
     employee has testified or is about  to  testify against
     the employer, we decline to adopt such a hypertechnical
     and purpose-defeating interpretation.  Instead, we hold
     that  an  employee's  refusal to agree to provide  MSHA
     investigators with testimony  that the employee in good
     faith  believes  to  be  false  is protected  activity,
     regardless of whether the employee  eventually  happens
     to be asked for a statement.

732 F.2d at 959.

     Considering  the  statutory  language  and  the  intent   of
Congress  as to the Mine Act and the specific provision at issue,
I find, section  105(c)(1)  ambiguous  when  applied to the claim
asserted on behalf of Jimmy Caudill.

             Deference to Secretary's Interpretation

     The  Commission  is  "required  to accord deference  to  the
Secretary's reasonable interpretations  of  the  language  of the
Mine  Act."   RAG Cumberland, supra, 272 F.3d at 596.  It appears
beyond  dispute   that   construing  the  statutory  language  as
permitting a discrimination  action  by Jimmy Caudill, based upon
his father's protected activity, would be reasonable and far more
consistent  with  the  statute's  purpose   than   the   contrary
interpretation urged by Respondents.  Even in Fogleman, the  case
relied on by Respondents, it was recognized that interpreting the
similar anti-discrimination provisions of the ADA and the ADEA so
as  to preclude such a cause of action would be "at odds with the
policies  animating  those provisions."  283 F.3d at 568.  As the
court noted:

     There can be no doubt  that  an employer who retaliates
     against  the  friends and relatives  of  employees  who
     initiate  anti-discrimination  proceedings  will  deter
     employees  from   exercising  their  protected  rights.
     Indeed, as the Seventh  Circuit  sagely  observed,  "To
     retaliate  against  a  man  by  hurting a member of his
     family  is  an ancient method of revenge,  and  is  not
     unknown in the  field  of  labor  relations."  NLRB  v.
     Advertisers  Mfg.  Co.,  823  F.2d 1086, 1088 (7th Cir.
     1987).  Allowing employers to retaliate via friends and
     family, therefore, would appear  to  be  in significant
     tension   with   the   overall  purpose  of  the  anti-
     retaliation provisions,  which  are intended to promote
     the   reporting,  investigation,  and   correction   of
     discriminatory  conduct in the workplace.  See DeMedina
     [ v. Reinhardt, 444  F.Supp.  573,  580  (D.D.C. 1978)]
     (concluding  that  "tolerance of third-party  reprisals
     would, no less than  the tolerance of direct reprisals,
     deter persons from exercising  their rights under Title
     VII").

Id. at 568-69.

     Several comparable statutory provisions  have also been held
to allow such causes of action.  See EEOC v. Ohio  Edison  Co., 7
F.3d  541,  543-44,  n.1 (6th Cir. 1993) (Title VII, 42 U.S.C.  �
2000e-3(a)); Brock v. Georgia Southwestern College, 765 F.2d 1026
(11th Cir. 1985) (Equal Pay Act, 29 U.S.C. � 215(a)(3)); Reich v.
Cambridgeport Air Systems,  Inc.,  26  F.3d  1187 (1st Cir. 1994)
(Occupational  Safety  and  Health   Act  of  1970,   29   U.S.C.
� 660(c)).[1]

                            Conclusion

     Respondents  have  submitted  a  well-written and persuasive
argument that the plain meaning of the  statute  precludes  Jimmy
Caudill's  cause of action.  While they concede, as did the court
in Fogleman, that there is no consensus in the cases deciding the
issue under  other  statutes, they have attempted to distinguish,
with  some  success,  the   cases   adverse  to  their  position.
Ultimately,  however,  I  find  that  the  absence  of  statutory
language or legislative history on the  precise  issue presented,
and  the  clearly  expressed  intent  of  Congress  for  a  broad
interpretation   of  the  anti-discrimination  provision,  cannot
support a conclusion  that  the  statutory language constitutes a
clear an unambiguous Congressional intent to preclude such causes
of action.[2]

     The  reasons expressed by the  Commission  for  rejecting  a
literal reading  of  � 105(c)(1) in Moses, are equally applicable
here - a contrary interpretation would "frustrate the enforcement
of the Mine Act . . . [and] would also wrongly fail to address or
deter  situations  where   an   operator,   with  the  intent  of
frustrating protected activity, takes adverse  action  against an
innocent miner."
4 FMSHRC at 1480.

     For  the  above-stated  reasons, I find that the allegations
made by the Secretary on behalf  of  Jimmy  Caudill state a claim
upon which relief can be granted under � 105(c)(1).


                      Jerry Caudill's Claim

     Respondents advance several arguments in  opposition  to the
claim  asserted  on  behalf  of  Jerry Caudill: that he failed to
submit a claim of discrimination to  MSHA, that he is not a miner
as to them, and that he suffered no adverse action.

     Section 105(c)(2) of the Act specifies, in pertinent part:

               Any miner * * * who believes that he has been
          discharged,   interfered   with,    or   otherwise
          discriminated  against by any person in  violation
          of this subsection  may, within 60 days after such
          violation  occurs,  file   a  complaint  with  the
          Secretary alleging such discrimination. . .

     The filing of an administrative complaint  of discrimination
with MSHA within the time frame specified in section 105(c)(2) is
not jurisdictional.  Hollis v. Consolidation Coal Co.,
6 FMSHRC 21 (Jan. 1984); Herman v. IMCO Services,  4 FMSHRC  2135
(Dec.  1982).   The  provision  is  primarily  designed to assure
fairness to the opposing party by apprising it of  the  substance
of the allegation and potential scope of relief.  Id. at 2138-39.
In  Sec'y  of Labor on behalf of Dixon v. Pontiki Coal Corp.,  19
FMSHRC 1009,  1016-18  (June  1997),  the  Commission reversed an
ALJ's determination that a complaint of discrimination  filed  by
the  Secretary  was limited to allegations on behalf of the miner
who filed the initial  complaint with MSHA.  The Commission found
that the Act was ambiguous  on the issue of whether the Secretary
was "limited to the bare allegations  of the initiating complaint
to MSHA in drawing up her complaint to  the  Commission" and that
the  Secretary's  interpretation that it was the  "scope  of  the
Secretary's investigation,  rather than the initiating complaint,
that governs the permissible  ambit  of  the complaint filed with
the  Commission," was entitled to deference.   Id.  (emphasis  in
original).   The  Commission  held that the Secretary's complaint
may include not only miners represented  by  the complainant, but
other miners' representatives affected by discrimination who were
not  named in the complaint submitted to MSHA.   It  went  on  to
observe  that, in that case, the complaint filed by the Secretary
"alleged the  same discriminatory conduct [that had been] alleged
.  . . in the initiating  complaint  filed  with  MSHA"  and  the
"addition  of  the  unnamed  miners  [changed] neither the relief
sought not the basis of the charge as originally filed."  Id.

     Pontiki directly decides the issue  raised  by  Respondents.
Jimmy   Caudill's   complaint   to   MSHA,   which  prompted  the
investigation,  clearly identified the act of discrimination  and
the  grounds for the  complaint.   There  is  no  contention,  at
present,  that  his reference to "my family history of Safety and
Discrimination Complaints"  was  misleading  or  could  have been
construed  as  anything  other  than  a reference to his father's
activities,  which  were well-known to Leeco.   The  addition  of
Jerry Caudill as a named complainant changes neither the basis of
the charge as originally  filed  nor,  in any meaningful way, the
relief  sought.   The  Secretary's investigation,  of  necessity,
included  Jerry Caudill's  protected  activity  and  the  alleged
unlawful motivation  of  Leeco  resulting  from it.  Respondent's
challenge to the claim brought on behalf of  Jerry Caudill, based
upon  the  fact that he did not personally file  a  complaint  of
discrimination with MSHA, is rejected.

     Respondents also argue that the complaint on behalf of Jerry
Caudill should  be  dismissed  because  he was not "a miner as to
them," i.e., was not employed by them on  the date of the alleged
discrimination.  However, the Mine Act specifies  that "No person
shall  .  .  .  in  any  manner  discriminate  . . . or otherwise
interfere  with  the  exercise  of  the statutory rights  of  any
miner."  The legislative history of the  Act makes clear that the
anti-discrimination provisions of the statute  are  to be broadly
interpreted and that it applies "not only to the operator  but to
any other person directly or indirectly involved."  S.Rep. No 95-
181,  at  36 (1977), reprinted in Senate Subcomm. on Labor, Comm.
on Human Res., Legislative History of the Federal Mine Safety and
Health Act  of  1977,  at  624 (1978).  Jerry Caudill was a miner
employed by Leeco at the time  that  he  engaged  in  substantial
protected  activity.   He  was  also  a miner at the time of  the
alleged discrimination.  The Act does not  require  Jerry Caudill
to  have been employed by Respondents at the time of the  alleged
discrimination.

     Jerry  Caudill  clearly  suffered  adverse action within the
meaning  of  the  Act,  which,  as explained in  the  legislative
history, was "intended to protect  miners  against  not  only the
common  forms  of  discrimination  such as discharge, suspension,
demotion, reduction in pay and hours  of  work,  but also against
the  more  subtle  forms  of  interference,  such as promises  of
benefit  or  threats  of  reprisal."   Mosley, 4 FMSHRC  at  1478
(quoting legislative history).  Here, it  is  alleged  that Leeco
actually  engaged  in  a  reprisal against Jerry Caudill for  the
exercise of his rights under  the Act.  The Amended Complaint, at
para. 9, alleges that Jerry Caudill  suffered  adverse action, in
that he was discriminated against and the exercise  of his rights
under  the Act were interfered with by Leeco's discharge  of,  or
failure  to  hire, his son.  As noted in Mosley, such actions may
"chill the exercise  of protected rights by the directly affected
miners, [and] may also  cause  other  miners,  who  wish to avoid
similar treatment, to refrain from asserting their rights."   Id.
at 1479.

     Respondents  challenges to the claim made on behalf of Jerry
Caudill must also be rejected.

                            Causation

     Respondents argue  that  Jerry  Caudill's protected activity
while employed by Leeco extended no further  than the end of 1997
and,  as a matter of law, that protected activity  could  not  be
found to  be  a causative factor in the adverse action complained
of.  While it is true that there is a gap in time exceeding three
years between Jerry  Caudill's  protected  activity  directed  at
Leeco and the instant actions complained of, proximity in time is
only   one   of   the   considerations   involved  in  evaluating
circumstantial  evidence  of discriminatory  motive.   Chacon  v.
Phelps Dodge Corp., 3 FMSHRC 2508,  2510-11  (Nov.  1981),  rev'd
on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d
86 (D.C.Cir. 1983).

     The  cases  relied  upon  by  Respondents do not  command  a
different result, and are distinguishable  in  that  there was no
ongoing employment relationship between Jerry Caudill  and  Leeco
during the three year period.  Where the complaining miner has an
ongoing  employment  relationship,  opportunities for retaliatory
action  are  presented  daily.   As  time  passes  following  the
protected  activity,  any  inference  that   adverse  action  was
prompted  by the protected activity logically diminishes.   Here,
however, Jerry Caudill's employment relationship with Leeco ended
in 1997, and,  on the present record, there were no opportunities
for Leeco to take  actions  in  retaliation  for  that  protected
activity  until  Jimmy  Caudill sought employment.  In any event,
the Secretary does not rely  solely on past protected activity to
establish unlawful motive.  It  is  alleged  that Jerry Caudill's
protected   activity  was  discussed  directly  with   the   mine
superintendent   immediately  before  the  apparent  reversal  of
Leeco's intention  to have Jimmy Caudill work as a roof-bolter on
the second shift.

     Respondents did  not  support  their causation argument with
affidavits, or otherwise attempt to establish  the  absence  of a
genuine  issue  as  to  any  fact material to the unlawful motive
issue.  It would be most inadvisable  and inappropriate to decide
that issue virtually at the pleadings stage of this proceeding.

                              ORDER

     For the reasons stated above, Respondents' motion is DENIED.


                                   Michael E. Zielinski
                                   Administrative Law Judge


Distribution:

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

Melanie J, Kilpatrick, Esq.,  Wyatt,  Tarrant  &  Combs, LLP, 250
West Main Street, Suite 1700, Lexington, KY 40507-1746 (Certified
Mail)

/mh


**FOOTNOTES**

     [1]: The Secretary also relies upon cases decided  under the
NLRA,  although,  as noted in Fogleman, 283 F.3d at 570-71,  that
statute contains another  provision,  29 U.S.C. � 158(a)(1), that
has been viewed by the courts as more expansive  than  provisions
more comparable to the Mine Act's anti-discrimination language.

     [2]: While  not  essential to the analysis, it appears  that
there are more compelling reasons to allow such a cause of action
under the Mine Act than  under more broadly applicable employment
statutes.  Mining typically  takes  place in a rural environment,
where employment opportunities are less diverse and employment of
multiple  family  members and relatives  as  miners  may  not  be
unusual.  The interpretation urged by Respondents would leave the
family members of a  miner  who  engaged  in  protected  activity
without  recourse  under  the  Mine  Act and subject to blatantly
retaliatory conduct.  It would be hard  to  imagine a result more
repugnant to the statutory scheme.