<DOC>
[DOCID: f:kt99248.wais]

 
J & C MINING, L.L.C. AND MANALAPAN MINING CO., INC.
March 17, 2000
KENT 99-248-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                         March 17, 2000

SECRETARY OF LABOR,             : DISCRIMINATION PROCEEDING
   MINE SAFETY AND HEALTH       :
   ADMINISTRATION (MSHA),       : Docket No. KENT 99-248-D
   on behalf of GRANT NOE, Jr.  : BARB CD 99-07
               Complainant      :
             v.                 :
                                :
J & C MINING, L.L.C. AND        :
  MANALAPAN MINING CO., INC.,   : No. 1 Mine
               Respondents      : Mine ID No. 15-17707

                             DECISION

Appearances: Brian W. Dougherty, Esq., Office of the Solicitor, 
             U.S. Dept. of Labor, Nashville, Tennessee, on 
             behalf of the Complainant;
             Susan Lawson, Esq., Lawson & Lawson, Harlan,
             Kentucky, and Richard D. Cohelia, Evarts, Kentucky, 
             on behalf of the Respondents.

Before: Judge Melick

     This case is before me upon the Complaint by the Secretary
of Labor, on behalf of Grant Noe, pursuant to Section 105(c)(2) 
of the Federal Mine Safety and Health Act of 1977,  30  U.S.C.  
� 801 et seq., the "Act." These proceedings have been bifurcated 
and therefore have been limited at this stage to the issue of 
liability.  The Secretary alleges in her complaint that J & C  
Mining Company, LLC  (J & C) violated Section 105(c)(1) of the 
Act on March 2, 1999, when Noe was purportedly the subject of a
constructive discharge  after  he  had  engaged  in  protected  
activities  on December  16,  1998 and on January 19, 1999, and  
engaged in a protected work refusal on March 2, 1999. (Secretary's 
Reply Brief page 5)[1].  She seeks as restitution only  damages 
for the alleged  constructive  discharge  on  March  2,  1999.  
Manalapan Mining Company Inc., (Manalapan) has been joined as  
a successor-in-interest to J & C.

Background

     J & C operated the No. 1 Mine from 1997 to May 1, 1999, when
it  was  acquired  by Manalapan.  During relevant times,  J & C
operated two production shifts and one maintenance shift each day
for five days a week.  It employed 13 to 14 miners on each of the
first and second production  shifts  and  six miners on the third
shift.   J  &  C  also  frequently  operated overtime  shifts  on
Saturdays for coal production or dead  work.   Four to six miners
were typically assigned for such deadwork and the  full  crew was
typically assigned for overtime production.

     J & C  operated a bridge hauling system which dumped onto a
belt.  The  mine  had  as  many as four underground beltheads and
four bridges operating at one  time.   The  production shifts had
four  bridge  operators and two beltmen.  There  was  a  constant
problem with rocks  clogging  and  stopping  the  belt.   It  was
therefore  important to have a beltman assigned at  the beltheads
to prevent rocks from causing belt shutdowns.

     In early 1999, J & C was retreat mining in the main section.
As it progressed  toward the surface, three of the beltheads were
eliminated.  Early  in March 1999, they were ready to move to the
new panel.  It took three  shifts to move the belthead.  Once the
mining equipment was moved to  the new panel after March 8, 1999,
two  of  the  four  bridges were temporarily  removed  until  the
advance mining moved  deep  enough  to return them to production.
With the removal of the two bridges, two additional qualified men
(the two bridge operators) were then available to operate several
different types of equipment, perform  dead  work  and  watch the
belts until their bridges were placed back into production.

     Noe  had  been working as a beltman on the first shift  from
September 1997 to  March 2, 1999.  His main duties were to remain
at the beltheads and  remove  rock  from  the  belt.  On March 1,
1999, Mine Foreman Jesse Saylor met with Noe in  the  mine office
and stated that he needed someone to work the third shift for two
or  three  weeks because third shift miner, Roger Ramey had  been
injured.  There is no dispute that Ramey had in fact been injured
and was unable  to  work.   Noe responded that he did not want to
work on the third shift.  In  this regard he explained at hearing
that he did not want to leave his  family  alone  and  that third
shift  foreman  Jerry  Polly  was hard to work for, was an unsafe
foreman and that he did not want to work for him.

     Saylor ended the conversation by  instructing  Noe  to report 
the next day at his regular first shift assignment.

     Noe  reported  for work on the first shift the next  day  as
directed.  At the end  of the shift  Saylor again called Noe into
the mine office.  Also present  in  the  office  at that time was
second  shift  foreman  George  Saylor  and section foreman  Carl
Runyon.  Jesse Saylor again asked Noe to  transfer  to  the third
shift.   Noe  refused, and Jesse Saylor then offered him a  $.50-
cent per-hour raise to work the third shift.  According to Noe he
refused, explaining  that  if he went to the third shift and "got
hurt again they would not pay  me  [compensation]."  Jesse Saylor
then informed Noe that the third shift  assignment was all that J
& C Mining had to offer him and gave Noe  the  option  of working
the  third shift or quitting.  Noe informed Saylor that he  could
not quit  but  that  he  would  not work the third shift.  Saylor
stated that "it was either third  shift  or  go home."  Noe asked
Saylor  whether that meant he was fired.  Saylor  confirmed  that
Noe was fired.   Noe then turned in his equipment and uniforms as
requested by Saylor.

     According to  George  Saylor, Jesse Saylor asked Noe at this
meeting to help him out for  a  couple  of  weeks.  Noe responded
"I'm not going on no God damn third shift" and  when Jesse Saylor
told  Noe  "that's all I got, it's either that or go  home,"  Noe
"exploded."

     The Secretary argues that when Noe was fired by Jesse Saylor
at the March  2, 1999, meeting, he was constructively discharged.
She maintains that his refusal to transfer to the third shift was
based on a reasonable  and  good faith belief that to do so would
have been hazardous.[2]  See Miller v. FMSHRC, 687 F.2d 194, 195-
96 (7th Cir. 1982).  It is now  the  well  established law that a
constructive discharge is protected if conditions  faced  by  the
miner  (in this case by Noe's transfer to the third shift) are so
intolerable  that  a  reasonable  person  would feel compelled to
resign.  Simpson v. FMSHRC, 842 F.2d 453, 463 (D.C. Cir. 1988).

     Constructive  discharge  cases  have been  analyzed  by  the
Commission by first determining whether  the  miner  engaged in a
protected   work   refusal,  and  then  determining  whether  the
conditions faced by the miner constituted intolerable conditions.
Secretary on behalf  of  Bowling v. Mountain Top Trucking Co., 21
FMSHRC 268 at 272-81 (March  1999);  Secretary on behalf of Nantz
v. Nally & Hamilton Entreprises Inc.,  16  FMSHRC 2208 at 2210-13
(November 1994).  The Act grants miners the  right to complain of
a safety or health danger or violation , but does  not  expressly
state  that  miners  have the right to refuse to work under  such
circumstances.  Nevertheless,  the Commission and the courts have
recognized  the right to refuse to  work  in  the  face  of  such
perceived danger.   In  order to be protected, work refusals must
be based upon the miner's  "good  faith,  reasonable  belief in a
hazardous condition."  Secretary on behalf of Robinette v. United
Castle  Coal  Co., 3 FMSHRC 803 (April 1981); Gilbert v.  FMSHRC,
866 F.2d 1433,  1439  (D.C.  Cir.  1989).   A  good  faith belief
"simply means honest belief that a hazard exists."  Robinette,  3
FMSHRC   at  810.   Consistent  with  the  requirement  that  the
complainant  establish  a  good  faith,  reasonable  belief  in a
hazard, "a miner refusing work should ordinarily communicate,  or
at  least  attempt  to communicate, to some representative of the
operator his belief in  the  safety  or  health hazard at issue."
Secretary of Labor on behalf of Dunmire v.  Northern  Coal Co., 4
FMSHRC 126, 133 (February 1982).

     The  issue  then is whether Noe, in refusing to transfer  to
the third shift, held  a good faith and reasonable belief that it
would have been hazardous  and  then  whether  conditions  on the
third  shift  were  so intolerable that a reasonable person would
have felt compelled to  resign.   Noe testified that he explained
to Jesse Saylor at their meeting on  March  1,  1999, his reasons
for refusing the transfer.  This testimony is set  forth  in  the
following colloquy at hearing:

     Q.   What  did you tell Jessie Saylor at that time with
          regard to the third shift transfer?

     A.   I told  him  I  didn't  want  to go on third shift
          because I didn't want to leave my family alone.[3]
          You know, I was scared of where  I  lived at.  And
          Jerry Polly is hard to work with.  Because  to me,
          I  thought  he  was  an unsafe worker and I didn't
          want to work with him.

     Q.   And why did you consider  him to be unsafe to work
          for?

     A.   Well, the time I was there  I know of at least six
          people that had been in hurt  and  one died.  They
          saved  him two or three time before they  got  him
          out of the mine.  That scared me.

     Q.   Who do you  know  that  was  hurt  on third shift?
          What are their names?

     A.   Glen Brock was.

     Q.   And he's the one who died three times?

     A.   That's why they say, sir.

     Q.   And who else do you know that was hurt?
     A.   Roger Ramey was hurt twice.

     Q.   Okay.  Who else?

     A.   Cole Colinger (phonetic) was hurt.   And  I  think
          there's  another  one,  but  I  can't remember his
          name.  I'm pretty sure.

(Tr. 111-112)

     When  asked  to explain these injuries and  foreman  Polly's
involvement if any, Noe testified as follows:

     JUDGE MELICK:   And  what  kind  of  injuries  did each
     receive?

     BY ATTORNEY DOUGHERTY:  Let's start with the first one.
     Who was the first one.  Who was the first one?

     A.   Glen Brock, he was electrocuted.

     JUDGE MELICK: He was electrocuted?

     A.   Yes, sir.

     JUDGE  MELICK:  And what did Mr. Polly have to do  with
     that electrocution?

     A.   Well, he was  the  foreman,  you  know,  so he was
          there.

     JUDGE  MELICK: Well, do you know if he had anything  to
     do with the injuries?

     A.   No, sir I don't.

     JUDGE MELICK: Who was the second one?

     A.   Roger Ramey.

     JUDGE MELICK: Ramey?

     A.   Yes, sir.

     JUDGE MELICK:  What  kind  of  injuries  did  Mr. Ramey
     receive?

     A.   First  time,  I  believe, he cut his little finger
          off.

     JUDGE MELICK: And what  did  Mr.  Polly have to do with
     that injury, if anything?

     A.   He was just there, also.
     JUDGE MELICK: He happened to be there?

     A.   Yes sir.

     JUDGE MELICK: And what was the third injury?

     A.   Cole Colinger.  He was cut - -  -  his  arm with a
          piece  of  rock, and they thought he was going  to
          lose his arm for a while, but he didn't.

     JUDGE MELICK: All  right.   And what did Mr. Polly have
     to do with him being cut by a rock, if anything?

     A.   He as roof bolter man.   He  should  have  made it
          safer.  He should have had a jack there for him to
          see it.

     JUDGE MELICK: Mr. Polly was a roof bolter?

     A.   No,  he was a box cutter.  The other fellow was  a
          roof bolter man.

     JUDGE MELICK:  All right.  Are there any other injuries
     working for Mr. Polly?

     A.   No, just those  three,  but  two of them were hurt
          twice.

     JUDGE MELICK: Two of them were hurt twice?

     A.   Yes, sir.  Roger Ramey and Glen Brock.

     JUDGE  MELICK: Do you know if any other  injuries  were
     the result of working for Mr. Polly?

     A.   No.

(Tr. 113-116).

     At the second  meeting with Foreman Jesse Saylor on March 2,
1999, Noe provided a  third reason for not wanting to transfer to
the third shift.  This was explained in the following colloquy:

     Q.   And what did  you  [mean]  by  that with regard to
          your compensation and going to third shift?

     A.   Well,  [if]  I went on third shift  and  got  hurt
          again, they would  not pay me.  They didn't pay me
          that first time.

     Q.   So you were concerned  that there was a likelihood
          you may be injured on third  shift and that if you
          were, that compensation would be denied again?

     A.   Yes, sir.

(Tr. 120).

     Noe testified that after stating his reasons for not wanting
to go to the third shift the following conversation transpired:

     A.   He said, you have no choice but  to  quit.   And I
          told  him,  Jessie, I can't quit.  I said, I can't
          quit.  He said  that's all I got for you.  I said,
          well I'm not going to.  He said, that's all I got.
          I looked at him,  I said, I'm fired now?  He said,
          yes.  I asked him,  I said do you want my rescuer?
          He said, I'll take your  rescuer  and uniforms.  I
          set my rescuer - - - laid them both beside him.  I
          said, you f'ed me, Jessie?  He said no.

(Tr. 120-121).

     Within  this  framework  of  evidence I find  that  Noe  had
neither a good faith nor reasonable  belief  that  it  would have
been  hazardous  to  transfer to the third shift.  The first  and
apparently most important  reason  he  cited  for  not wanting to
transfer,  i.e.,  that he did not want to leave his family  alone
because he lived in  an  unsafe  area, is unrelated to any mining
hazard.  His desire not to work with  Foreman Polly because Polly
was "hard to work with," is likewise not  a reason related to any
mining hazard.

     Finally, Noe's vague claim that third  shift  Foreman  Polly
was an unsafe worker (and that Noe would therefore more likely be
injured  on  the  third  shift)  has  no credible record support.
While Noe speculates that Polly was unsafe  because  three miners
had  been  injured  while working on his shift  he concedes  that
Polly had not caused  any of the injuries (Tr. 165-166).  Indeed,
the Complainant has failed  to provide any specific evidence that
Polly had anything to do with  any  of  those injuries or that in
fact there were more injuries on his shift  than on other shifts.
The  very  fact that Noe has asserted these facially  unsupported
claims in itself demonstrates the lack of a good faith reasonable
belief.

     Under the circumstances I do not find that the Secretary has
sustained her  burden  of  proving  that Noe entertained either a
reasonable or a good faith belief that  a  transfer  to the third
shift  would  have been hazardous or that the conditions  on  the
third shift were  so  intolerable  that a reasonable person would
have  felt  compelled to resign.  The  facts  do  not  support  a
constructive discharge.

                              ORDER

     Discrimination Proceeding Docket No. KENT 99-248-D is hereby
dismissed.


                               Gary Melick
                               Administrative Law Judge


Distribution: (By Facsimile and Certified Mail)

Brian W. Dougherty,  Esq., Office of the Solicitor, U.S. Dept. of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215

Susan C. Lawson, Esq.,  Lawson  & Lawson, P.S.C., Post Office Box
837, Harlan, KY 40831

Richard  D. Cohelia, Representative  of  J  &  C  Mining,  Safety
Director for  J  &C Mining, and Manalapan Mining Co., Inc., Route
1, Box 374, Evarts, KY 40828

\mca


**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]  While  the Secretary argues in her post hearing  briefs
that Noe quit on March  2,  1998,  also  because of prior adverse
actions based on earlier protected activities,  the  record  does
not  support  her argument.  At hearings, Noe clearly articulated
the reasons he  quit  and  did  not mention in this regard any of
these alleged prior adverse actions  as  having  any part in this
decision.    Under  these  circumstances  the  Secretary   cannot
properly assert  that  any  of  the prior alleged adverse actions
played  any  role in Noe's decision  to  quit.   Accordingly  the
Secretary's argument in this regard is rejected.

     [3]  It was  proffered  at  hearing  that Noe suffers from a
condition known as "obsessive compulsive disorder"  and that this
condition was related to his concerns about leaving his family at
night.  (Tr. 189).