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[DOCID: f:lk9817x.wais]

 
ARCH OF ILLINOIS
February 15, 2000
LAKE 98-17-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                        February 15, 2000


GARY D. MORGAN,                : DISCRIMINATION  PROCEEDING
               Complainant     :
          v.                   : Docket No. LAKE 98-17-D
                               : VINC CD 97-02
ARCH OF ILLINOIS,              :
               Respondent      : Conant Mine
                               : Mine ID 11-02886

                       DECISION ON REMAND

Before: Judge Weisberger

     This  case  is before me based upon a decision issued by the
Commission, Gary D.  Morgan  v.  Arch of Illinois, 21 FMSHRC 1381
(December 23, 1999), vacating the  decision that was issued by me
on  June 10, 1998, (20 FMSHRC 571) and  remanding  the  case  for
"further consideration".

     In  this  discrimination  case,  Gary D. Morgan alleged that
Arch of Illinois (Arch) took adverse action  against  him  in not
recalling him for a position after he had failed a hands on  test
regarding  the operation of a bolter.  It was Morgan's contention
that the adverse  action taken against him by Arch was motivated,
in any part based on  his  protected activities.  In the original
decision, 20 FMSHRC supra, it was found that Morgan did engage in
protected activities, and that  Arch  did  take  action  that was
adverse to him.  However, in the decision, it was concluded  that
John Cotter, a shift foreman, who administered the hands on test,
and  made  the  decision  to  fail him, which resulted in his not
being rehired, was the only agent  of  Arch to have taken adverse
action against Morgan, and that it was not  established  that  he
had   any   animus  towards  Morgan  relating  to  his  protected
activities.   In  the  decision,  it was found that Ben Williams,
Morgan's immediate supervisor, did have some animus toward Morgan
in part due to Morgan's complaints  of dust violations.  However,
it  was  further  found that Williams was  not  involved  in  any
decisions relating  to  an  evaluation  of  hands  on testing, or
whether to recall him.  The basis for this finding was  the  lack
of  evidence  in  the  record  that Williams had communicated his
animus  to  either  Cotter  or  Bob  Blaylock,   who  made  these
decisions.   Specifically, Williams' testimony that  he  did  not
tell Cotter to  fail  Morgan, did not talk to Cotter prior to the
time Morgan took the hands  on  test,  and did not tell anyone to
fail Morgan on the hands on testing, was  accepted because it was
not contradicted or impeached.

     In  addition,  it  was found that although  the  version  of
events testified to by Morgan and Gerald Shelby another miner who
worked with Morgan, establishes  animus  on  the  part  of  Harry
Riddle,  the  mine  Manager, who had knowledge of Morgan's safety
complaints, it was concluded that there was no evidence that this
animus formed the basis,  in  any  part,  for  the adverse action
taken  against Morgan.  This conclusion was based  upon  Riddle's
testimony that he was not involved in the testing procedures, did
not ask or tell Cotter or anyone else to fail Morgan, and that he
did not  tell  Cotter  that Morgan had filed dust complaints with
MSHA.  Riddle's testimony  was  accepted  because  I observed his
demeanor  and  found his testimony credible in these regards.   A
further basis for  the  acceptance of Cotter's testimony was that
it was noted that there was  no  direct evidence contradicting or
impeaching his testimony.

     In  its  remand  the  Commission  directed  to  "more  fully
consider the record evidence  that  [I]  did  not  address."  (21
FMSHRC   1393)     Specifically,   the  Commission  remanded  for
consideration of "additional evidence"  which  is  summarized  as
follows:   that  Morgan had complained about dust to Williams and
that  Riddle  was  aware   of   these   complaints,  that  Arch's
supervisors were angry at Morgan for dust complaints, that Riddle
told  Shelby,  according  to Shelby but denied  by  Riddle,  that
Morgan would never work at Arch's Minerals mine again, that I had
discredited both Williams' and Riddle's testimony that Riddle was
not aware of Morgan's complaints  about  dust violations, that in
crediting Williams testimony that he did not  tell Cotter to fail
Morgan  I  did not look at the entire body of evidence  regarding
his hostility  towards  Morgan  referring to miners having kidded
Williams  about  the  possibility that  Morgan  be  rehired  onto
Williams' section, that  the  superintendent  at the Conant Mine,
Whykoff testified that when he was presented with a list of panel
applicants for employment at the Conant Mine he  usually tried to
talk  to their ex-supervisors, and that he had admitted  that  he
attended  a meeting at which Williams stated that he did not want
Morgan on his crew and that he did not recall making any response
or follow-up  to  Williams  criticism, and finally that the small
size of the mine supports an  inference that the operator knew of
protected activity.  The Commission  also  indicated that I could
have  relied  on  Morgan's  testimony  of evidence  of  disparate
treatment  i.e. that he was not given time  to  warm  up  on  the
bolter, that  he  was  denied the assistance of a helper, and did
that  he  did  not bend a steel,  as  evidence  of  disparate  or
inconsistent treatment  of Morgan versus other similarly laid off
miners who were tested.

     Upon reconsideration  the  entire  record,  and weighing the
testimony  of  Williams,  Riddle  and  Cotter  against the  above
summarized  factors and also taking into account  inconsistencies
in the record  noted  by  the  Commission  (21 FMSHRC 1393) as to
whether  Cotter timed miners when they were tested  on  the  roof
bolter, and  Cotter's  inability  to explained why he gave Morgan
non-satisfactory ratings on aspects  of the roof bolter test, and
"the conflicting" testimony of Cotter regarding warm up time or a
helper,  I  conclude that whereas the above  summarized  evidence
could possibly support some inferences adverse to Arch, I find it
of insufficient weight to outweigh the above referenced testimony
of Riddles and  Cotter  whose  demeanor  I carefully observed and
found  to  be  credible.  I further find that  the  evidence  and
"inconsistencies"  are  not  of  such  weight as to constitute an
impeachment or contradiction of the direct testimony of Williams,
Cotter and Riddle whom I found credible  based  upon observations
of their demeanor.

     For all the above reasons, on reconsideration,  I  reiterate
my  earlier  conclusion  as set forth in the initial decision  20
FMSHRC at 581, that it has  not been established that Cotter, the
only agent of Arch to have taken  adverse  action against Morgan,
had any animus toward Morgan relating to protected activities, or
even  knew  of Morgan's  protected activities  on  or  before  of
October 1996  when  the  adverse  actions  were  taken.   I  thus
reiterate  my initial conclusion that it has not been established
that the adverse  actions  taken  by Arch, acting through Cotter,
were in part motivated by Morgan's protected activities.  Thus, I
reiterate my earlier conclusion that  it has not been established
that  Morgan was discriminated against in  violation  of  Section
105(c) of the Act.

                              ORDER

     It is ORDERED that Morgan's complaint be DISMISSED, and that
this case be DISMISSED.


                              Avram Weisberger
                              Administrative Law Judge


Distribution:

Leonard  D.  Rice, Esq., 404 South Washington Street, DuQuoin, IL
62832 (Certified Mail)

Marco M. Rajkovich, Esq., Robert Cusick, Esq., Julie M. O'Daniel,
Esq., Wyatt, Tarrant  &  Combs, 250 West Main Street, Suite 1700,
Lexington, KY 40507   (Certified Mail)

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