<DOC>
[DOCID: f:p94-132d.wais]

 
BIG "B" MINING COMPANY
February 24, 1995
PENN 94-132-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 24, 1995
             
RANDALL PATSY,              :  DISCRIMINATION PROCEEDING
               Complainant  :
          v.                :  Docket No. PENN 94-132-D
                            :  MSHA Case No. PITT CD 93-27
BIG "B" MINING COMPANY,     :
               Respondent   :

                             DECISION

Appearances: Daniel Hilliard and Susan Mackalica, West
             Sunbury, Pennsylvania, for the Respondent.

Before:  Judge Feldman

     The threshold issue in this discrimination proceeding
brought under color of authority of section 105(c)(3) of 
the Federal Mine Safety and Health Act of 1977 (the Act), 
30 U.S.C. � 815(c)(3), is whether Randall Patsy was a 
"miner" at the time of his alleged October 26, 1992, 
discriminatory discharge.  It is undisputed that on the 
day of his discharge, Patsy was working at the Peter
Rabbit Campground preparing mobile home sites.  Patsy's
discrimination complaint was investigated by the Mine 
Safety and Health Administration (MSHA).  On December 1,
1993, MSHA advised Patsy that it had concluded that a 
violation of section 105(c) of the Act had not occurred
because Patsy was not "...a 'miner' at the time of the 
alleged discharge and MSHA does not have jurisdiction over
the campground job site."

     This matter was originally scheduled for hearing on 
June 7, 1994, and subsequently rescheduled for September 20,
1994. However, Patsy's complaint was dismissed on May 13 
and August 16, 1994, after a series of statements 
evidencing that he was no longer interested in pursuing his 
discrimination complaint.  For example, Patsy stated: 
"...there [may be] no sense in pursuing this any farther 
(sic)" (April 7, 1994, letter); "I feel I would be better 
off to pursue this as a civil suit locally" (April 18, 1994,
letter); "I can not (sic) prove I was a miner at the time I
was fired" (July 20, 1994, letter); and, "I don't have a
leg to stand on" (July 25, 1994, statement to secretary 
Linda Hudecz).

     Each dismissal was vacated by the Commission and 
remanded for further consideration after Patsy, contrary to
the above statements, expressed a desire to proceed.  See 
Commission Orders at 16 FMSHRC 1237 (June 1994) and 
16 FMSHRC 1937 (September 1994).  Consequently, on 
November 25, 1994, a Notice of Hearing Site was sent by 
certified mail once again scheduling this matter for 
hearing on December 13, 1994, in Pittsburgh, Pennsylvania.

     On November 25, 1994, contemporaneous with the 
mailing of the hearing notice, Raymondria Ballard, my 
office secretary, telephoned Patsy at his telephone number
of record to advise him of the time, date and location of 
the upcoming hearing.  On December 8, 1994, Ms. Ballard
left a message on a telephone answering machine at his 
telephone number reminding Patsy of the hearing.  On 
December 9, 1994, Ms. Ballard again called Patsy's
telephone number and left a message about the hearing with
an unidentified female who stated she did not know where 
Patsy was. These messages were attempts to prevent hearing 
expenditures in the event Patsy was no longer interested
in prosecuting his complaint.

     The hearing convened as scheduled at 9:00 a.m. on
December 13, 1994, in Pittsburgh.  Daniel Hilliard and his
daughter, Susan Mackalica, appeared on behalf of the
respondent.  Hilliard is the sole proprietor of Hilliard
Mining which owns and operates the Big "B" Mining Company.
Patsy failed to appear.  At 9:20 a.m. I left a message on
Patsy's answering machine requesting that he immediately
call my office to explain his absence at the hearing.
Patsy failed to respond.  The trial record was opened at
10:25 a.m., at which time Hilliard and Mackalica 
testified.

     Hilliard testified that he operates several business
ventures associated with activities involving the ownership
and management of rental properties, road construction,
sewer plant construction and mining.  Hilliard stated that
Patsy was a general handyman at Hilliard's rental
properties.  Patsy also operated small construction
equipment and the fuel truck which serviced the equipment 
at Big "B" Mining's Isacco mine site as well as the 
equipment at several of Hilliard's other non-mining 
construction sites.

     Hilliard testified that on the morning of Patsy's
discharge on Monday, October 26, 1992, Patsy reported for 
work at the Peter Rabbit Campground.  The Peter Rabbit
Campground is a subsidiary company owned by Hilliard 
Mining.  The campground property was being converted into
a mobile home park.  Patsy was operating a small dozer for 
the purpose of clearing brush and trees and leveling site 
locations in preparation for the installation of water, 
sewer and electric lines. The dozer broke down and was 
taken out of service.  Patsy was discharged on the 
afternoon of October 26, 1992, after he refused to tow a 
low-boy trailer with a replacement dozer from Hilliard's 
equipment shop located at 551 Mahood Road in Butler,
Pennsylvania to the campground, a distance of approximately
four miles.  Patsy refused to tow the low-boy because its 
state inspection had expired. Consistent with Hilliard's 
testimony, Patsy has stated, "I was eating lunch at a 
mobile home park when I was fired." (Undated letter filed 
October 19, 1994).

     Hilliard testified that the campground is 
approximately eight miles from the Isacco mine site.  The 
equipment shop is a fenced area with a 3,000 square foot
building with tin siding, a flat roof and a cement floor. 
The equipment shop is used to store mining and excavating 
equipment for Hilliard's business activities.  It is 
located equidistant between the campground and the mine 
site and is not on mine property.

     The hearing concluded at 11:45 a.m.  At approximately
3:00 p.m. that afternoon, Patsy telephoned my office and
spoke to Raymondria Ballard. Patsy stated that he had just
received my recorded message about his failure to attend 
the hearing.  He stated that he was out of town, that he 
never received the "certified mail" hearing notice, and, 
that he had just returned from California.  When reminded 
that he had been advised of the hearing date and location 
by Ms. Ballard on November 25, 1994, Patsy did not respond.
Although Patsy claims he did not receive the certified
hearing notice,[1] the hearing notice has not been  
returned by the post office as unclaimed.[2]  Therefore, 
I find the certified mailing of the hearing notice, the 
November 25, 1994, telephone conversation with Patsy, and 
the two subsequent messages left at Patsy's telephone
number of record conveying the information in the hearing 
notice, as adequate notice of the hearing date and location.

     In an unsolicited letter dated January 30, 1995, 
following Patsy's December 13 conversation with Ms. 
Ballard, Patsy stated:

     We were out of town for two weeks prior to December
     13th.  The only notice we received were messages on
     our +answering machine.  We returned the afternoon 
     of Dec. 13th, to find out there was hearing (sic)
     scheduled that morning.  (Emphasis added).

     On February 7, 1994, Patsy was ordered to show cause 
why his complaint should not be dismissed as a result of 
his failure to appear at the hearing.  Patsy was ordered 
to specifically admit or deny that he had received the 
messages concerning the hearing date and location provided 
by Ms. Ballard on November 25, December 8 and December 9,
1994.  In addition, Patsy was ordered to provide evidence
demonstrating the dates and location of his reported out 
of town trip such as airline, hotel or credit card 
receipts.

     The February 7 Order also noted that the testimony of
Hilliard, who is not an attorney, was construed as a 
request for summary decision.  Consequently, Patsy was also 
ordered to show cause, by filing an opposition, why summary
decision for lack of jurisdiction should not be granted in 
favor of the respondent.
     Patsy responded to the Order to Show Cause on 
February 10, 1995.  Patsy stated he was out of town from 
November 20 through December 13, 1994.  With respect to 
travel receipts, Patsy stated he traveled in a recreational
vehicle and that he did not use motels, airlines or credit
cards.  Patsy did not identify where he purportedly 
traveled.  Thus, Patsy provided no objective probative
evidence of his trip.

     Notwithstanding Patsy's inability to provide
documentation of his trip, it is noteworthy that Patsy has
been unable to remember the trip's duration.  In a letter
dated January 10, 1995, Patsy stated he was out of town
for eight days.  In a letter dated January 30, 1995, Patsy
stated he was out of town for two weeks.  Finally, in his
response to the Order to Show Cause dated February 10, 1995, 
Patsy stated he was out of town for 23 days (November 20 
through December 13, 1994.)

     In addition, Patsy has failed to furnish the 
requisite documentation to support his denial of the 
November 25, 1994, telephone conversation with Ms. Ballard
and his denial of timely knowledge of the subsequent
hearing messages of December 8 and December 9, 1994.
Accordingly, Patsy has failed to demonstrate just cause
for his failure to attend the hearing.  Patsy's lack of
credibility with regard to his alleged trip and his on 
again off again interest in his discrimination complaint
evidences a contempt for this hearing process.  
Consequently, Patsy is in default and his complaint shall
be dismissed with prejudice.

     Alternatively, Patsy's February 10, 1995, response 
to the Order to Show Cause failed to demonstrate why 
summary decision should not be granted for the respondent.
Commission Rule 67(b), 29 C.F.R. � 2700.67(b), provides 
that summary decision shall be granted if (1) there is no 
genuine issue as to any material fact and (2) the 
respondent is entitled to summary decision as a matter of
law.

     Whether the low-boy trailer was located at the shop 
as the respondent claims, or, at the mine site as Patsy 
alleges, is not dispositive or otherwise material.  For it
is undisputed that Patsy was requested to tow the low-boy 
trailer in furtherance of his job duties at the mobile
home site.  Thus, the alleged location of the low-boy on 
mine property was incidental to its non-mining use and 
does not provide an adequate nexus to afford Patsy 105(c)
statutory protection as a miner.[3]  Rather, the only 
material and dispositive issue of fact as it relates to 
the jurisdictional question in this case, i.e., that Patsy
was not working in a mine at the time of his alleged 
discriminatory discharge, is not in dispute.  In this 
regard, in correspondence dated July 20, 1994, Patsy 
stated:

     I can not (sic) prove I was a miner at the time I 
     was fired.  I was employed by a mine operator, 
     though I was working at a mobile home park he was 
     developing. (Emphasis added).

     Section 3(g) of the Mine Act defines a miner as "any
individual working in a coal or other mine (emphasis 
added)." 30 U.S.C. � 802(g).  In analyzing this definition 
of "miner" the court has stated "the [mine] statute looks 
to whether one works in a mine, not whether one is an 
employee or nonemployee or whether one is involved in 
extraction or nonextraction activities.  National 
Industrial Sand Ass'n v. Marshall, 601 F. 2d 689, 704 
(3rd Cir. 1979).  Similarly, the Commission has concluded 
that an individual's status as a "miner" under the Act
at a given point in time is determined by whether the 
individual works in a mine and not by whether one is
employed by a mine operator.  Cyprus Empire Corporation, 
15 FMSHRC 10, 14 (January 1993).  Simply put, a mobile home
park is not a "coal or other mine" under section 3(h)(1) of 
the Act, 30 C.F.R. � 802(h)(1).[4] Likewise, an individual
working at a mobile home park is not a section 3(g)
"miner."  Accordingly, the respondent is entitled to
summary decision in this proceeding as a matter of law.

                              ORDER

     The complainant has failed to show cause why his
complaint should not be dismissed as a result of his 
failure to appear at the December 13, 1994, hearing.  
Accordingly, Randall Patsy's discrimination complaint 
against the Big "B" Mining Company IS DISMISSED with
prejudice.

     Alternatively, there are no outstanding material
issues of fact that warrant denial of summary decision 
in favor of the respondent on the jurisdictional question.
Accordingly, summary decision IS GRANTED for the 
respondent and the discrimination complaint filed by 
Randall Patsy against the Big "B" Mining Company IS
DISMISSED with prejudice for lack of jurisdiction under
the Mine Act.  Nothing herein shall be construed as a
finding on the merits of Patsy's complaint or whether his
complaint was timely filed.
                       

                              Jerold Feldman
                              Administrative Law Judge
  

**FOOTNOTES**

     [1]: This is not the first time that Patsy has
alleged improper service in this proceeding. In a letter
dated May 16, 1994, Patsy stated that he was not served
with the respondent's answer to the February 24, 1994, 
Prehearing Order. However, the record reflects the
respondent's response was sent to Patsy by certified mail
(No. P 240 182 672) and returned to the respondent as
unclaimed.

     [2]: The return receipt card was not returned. The
Brady, Pennsylvania Post Office has been unable to trace
this mailing. Brady, Pennsylvania Postmaster Tony Ruiz 
has advised me that, unfortunately, certified mailings 
are occasionally delivered to the addressee without
removing the return receipt post card.

     [3]: See f.n. 4, infra.

     [4]: Section 3(h)(1) of the Act defines, in pertinent
part, "coal or other mine" as "... an area of land from
which minerals are extracted [including equipment]...used
in, or to be used in, ... the work of extracting such
minerals...."


Distribution:

Mr. Randall Patsy, R.D. #1, Box 290, E. Brady, PA 16028
(Certified and Regular Mail)

Mr. Daniel Hilliard, Ms. Susan Mackalica, Big "B" Mining
Company, R.D. 1, West Sunbury, PA 16061 (Certified and
Regular Mail)

/rb