<DOC>
[DOCID: f:p95-1.wais]

 
READING ANTHRACITE COMPANY
May 24, 1995
PENN 95-1-D


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                             May 24, 1995

SECRETARY OF LABOR,             :  DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. PENN 95-1-D
      On behalf of              :  MSHA Case No. WILK CD 94-01
  WILLIAM KACZMARCZYK,          :
               Complainant      :  Ellangowan Refuse Bank
                                :  v. No. 45
READING ANTHRACITE COMPANY,     :
               Respondent       :

                               DECISION

Appearances:  Stephen D. Turow, Esq., Office of the Solicitor,
              U.S. Department of Labor, Arlington, Virginia, for
              Complainant; Martin J. Cerullo, Esq., Cerullo,
              Datte & Wallbillich, P.C., Pottsville,
              Pennsylvania, for Respondent.

Before:  Judge Amchan

Procedural Background

     On September 12, 1994, I ordered Respondent, Reading
Anthracite Company, to temporarily reinstate Complainant,
William Kaczmarczyk, to his light duty position following
an evidentiary hearing on the Secretary's application for
such relief (Docket No. PENN 94-417-D, 16 FMSHRC 1941).

     On September 30, 1994, the Secretary then filed a
discrimination complaint on Mr. Kaczmarczyk's behalf.  A
hearing on the merits of this complaint was held on March
14, 1995, in Pottsville, Pennsylvania.  The record of the
temporary reinstatement hearing has been incorporated into
the record of the discrimination proceeding (Tr. II: 6-7[1]).

Factual Background

     William Kaczmarczyk began working for Respondent in
December 1976 (Tr. I: 21-22).  He became an electrician with
the company in 1985, working at the St. Nicholas Breaker and
the Ellangowan Refuse Bank (Tr. I: 23-25).  In October 1989,
Kaczmarczyk injured his back while moving a 300-pound motor
with a bar (Tr. I: 43).  He was on workers compensation from
October 1989 to January 1992, except for 4-1/2 weeks in
February 1991, when he unsuccessfully tried to return to
work (Tr. I: 46-49).  On January 8, 1992, after undergoing a
cervical spinal fusion four months earlier, Kaczmarczyk
returned to work on light duty (Tr. I: 49).

     Complainant worked on light duty from January 8, 1992
until October 15, 1993, when he was placed back on workers
compensation status (Tr. I: 52-53).  Prior to October 1993,
Kaczmarczyk was the treasurer of Local 7226 of the United
Mine Workers of America (UMWA).  He was also a mine
committeeman and safetyman for his local, which represented
Respondent's employees at the St. Nicholas Breaker (Tr. I: 33-
35).  Another UMWA local, No. 807, represented employees at
the Ellangowan Refuse Bank (Tr. I: 34). [2]

Protected Activity

     Complainant served as employee walkaround representative
for an MSHA inspection conducted between September 15 and
17, 1993 (Tr. I: 90-93, Sec. Exh. 1).  He was also the
walkaround representative for an MSHA electrical inspection
that was conducted on October 4, 12, and 14, 1993, at the
Ellangowan Refuse Bank (Tr. I: 105-08).  On the last day of
the October inspection, Respondent's safety director, David
Wolfe, questioned the need for Mr. Kaczmarczyk's presence
during the inspection since Michael Ploxa, President of Local
807, was also serving as a walkaround representative (Tr.
I: 107-13, 268-69).

     The next day, October 15, 1993, Complainant was informed
that he was being put back on workers compensation (Tr. I:
52-53, 122-23).  He alleges that this was done in retaliation
for his activities as walkaround representative during the
October 1993 inspection, which resulted in nine citations
being issued to Respondent (Exhibit B to the Secretary of
Labor's Application for Temporary Reinstatement, Sec.
Exh. 3).

Respondent's Position

     Respondent contends that Complainant's return to workers
compensation status was non-retaliatory.  On October 14,
1993, Safety Director David Wolfe received a telephone call
from  Andrea Antolick, a nurse and field service
representative for Comprehensive Rehabilitation Associates.
Ms. Antolick oversees Mr. Kaczmarczyk's rehabilitation program
for Respondent's workers compensation insurer (Joint Exh. 1-DP,
pp. 6-8, 21).  She informed Wolfe that the results of a
September 30, 1993 functional capacity evaluation (FCE) of
Kaczmarczyk were invalid because Complainant did not put
forth his maximum effort to complete the test (Joint Exh.
1-DP, pp. 23-24).

     On the morning of October 15, Antolick met with Wolfe for
about an hour (Joint Exh. 1-DP, pp. 27-32).  Mr.
Kaczmarczyk's case was discussed for about 15 minutes (Ibid.
p. 29).  Antolick again discussed with Wolfe the invalidity
of the functional capacity test (Ibid. p. 27) and her opinion
that Comprehensive Rehabilitation did not have a current
assessment of Mr. Kaczmarczyk's physical capabilities[3].

     Wolfe contends that his October 14 conversation with
Antolick precipitated the decision to return Kaczmarczyk to
compensation status that was totally independent of
Kaczmarczyk's activities as a walkaround representative (Tr. I:
254-55, 311-16).  General Manager Frank Derrick, however,
testified that the report that Complainant failed to
complete the functional capacity test was "coincidental"
to his return to workers compensation status (Tr. I: 349-
50).  Derrick contends that recurring reports from supervisors
that Mr. Kaczmarczyk was not performing assigned duties
led to this decision (Tr. I: 350).

Evaluation of the Evidence

Did Respondent Violate Section 105(c) of the Act?

     Section 105(c)(1) of the Federal Mine Safety and Health Act
provides that:

      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
      because such miner ... has filed or made a complaint
      under or related to this Act, including a complaint
      notifying the operator or the operator's agent ... of
      an alleged danger or safety or health violation ... or
      because such miner ...   has instituted or caused to
      be instituted any proceeding under or related to this
      Act ... or because of the exercise by such miner ... of
      any statutory right afforded by this Act.

      The Federal Mine Safety and Health Review Commission has
enunciated the general principles for analyzing
discrimination cases under the Mine Act in Sec. ex rel.
Pasula v. Consolidation Coal Co., 2 FMSHRC  2786 (October
1980), rev'd on other grounds sub nom. Consolidation Coal
Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981), and Sec. ex rel.
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981).
In these cases, the Commission held that a complainant
establishes a prima facie case of discrimination by
showing (1) that he engaged in protected activity and (2)
that an adverse action was motivated in part by the
protected activity.


**FOOTNOTES

     [1]:  I will refer to the transcript of the September 1, 1994
temporary reinstatement proceeding as Tr. I and the transcript
of the March 14, 1995 hearing as Tr. II.

     [2]:  Complainant performed electrical work at Ellangowan
(Tr. I: 27-28).  Prior to October 1993, Local No. 807 did not
represent any electricians (Tr. I: 173).  Since that time
Local 807 has assumed jurisdiction over all Respondent's
miners at the Ellangowan Refuse Bank and the St. Nicholas
Breaker (Tr. II: 46).

     [3]:  "Invalidity" appears to be a term of art and
indicates a lack of good faith effort on the part of the
individual being tested (Joint Exh 1-DP, p. 19).


     The operator may rebut the prima facie case by showing
either that no protected activity occurred, or that the adverse
action was in no part motivated by the protected activity.
If the operator cannot thus rebut the prima facie case, it
may still defend itself by proving that it was motivated
in part by the miner's unprotected activities, and that it
would have taken the adverse action for the unprotected
activities alone.

The timing of Complainant's return to workers compensation
and evidence of safety-related animus

     The timing of Mr. Kaczmarczyk's return to workers
compensation status, one day after his protected activities
as an employee walkaround representative, establishes a
prima facie case.  Donovan v. Stafford Construction Co., 732
F.2d 954, 960 (D.C. Cir. 1984); Chacon v. Phelps Dodge Corp.,
3 FMSHRC 2508, 2511 (November 1981).  Additionally, I
conclude that Safety Director Wolfe did harbor some degree
of animus towards Kaczmarczyk due to his participation in
the October MSHA inspection.

     Mr. Wolfe was not happy to see Kaczmarczyk participating
in the inspection on October 14, 1993, and challenged the
necessity of his presence.  In view of the fact that Michael
Ploxa, President of UMWA Local 807, was also acting as
employee walkaround representative, and the fact that other
electricians were available, Wolfe considered Kaczmarczyk's
participation unnecessary (Tr. I: 175-76, 308).

     The nexus between the October inspection and Complainant's
return to workers compensation is not overwhelming.
Although the October 1993 MSHA electrical inspection was
initiated by an employee complaint, Kaczmarczyk did not file
the complaint (Tr. I: 97-98, 178).[4]

     Additionally, there is nothing in this record to suggest
that anything that Mr. Kaczmarczyk did as walkaround
representative on October 4, 12, and 14, 1993, aroused
Respondent's ire.  Although Respondent received nine
citations as a result of this inspection, there is no
indication that Complainant's conduct as a walkaround
representative was responsible for any of these citations
(Tr. I: 277, 301).   In summary, there is virtually
nothing in the record to indicate that Respondent would
have any reason to retaliate against Complainant solely
for his role in the October 1993 inspection.

     Nevertheless, I conclude that Complainant would not have
been returned to workers compensation status but for the
cumula-tive effect of his activities as a walkaround
representative during MSHA inspections.  I regard the
statements and conduct of Safety Director Wolfe at
Kaczmarczyk's October 18, 1993, grievance hearing to be
determinative on this issue.

The statements and conduct of Safety Director David Wolfe
at the October 18, 1993 grievance meeting

     Kaczmarczyk filed a grievance over his return to workers
compensation status.  It is uncontroverted that at a meeting
on the grievance on October 18, 1993, Wolfe and Kaczmarczyk
got into a heated argument over the reasons for this
personnel action. It is also undisputed that during this
argument Wolfe went into another room, obtained a stack of
MSHA citations issued to Respondent and threw, or placed
them, on the table (Tr. I: 128-29, 191-93, 274-75, 283-93).

     According to Kaczmarczyk and Jay Berger, the UMWA district
representative present, whose testimony I credit, Wolfe said
something to the effect that these citations were another
reason why Kaczmarczyk was being placed on compensation (Tr.
I: 128-29, 191-93)[5].  I regard Wolfe's statement as an
admission that Complainant's protected activities were a
significant factor in Respondent's decision to return him to
workers compensation.

     The alternative explanations offered by Respondent for
Wolfe's actions and statement are unpersuasive.  Wolfe
testified that the citations he placed on the table were not
those issued in September or October, 1993, but were
citations issued in August 1992 which were largely the fault
of Mr. Kaczmarczyk (Tr. I: 274-278)[6].  At the temporary
reinstatement hearing, Wolfe  testified that he put the
citations on the table "out of frustration" (Tr. I: 275),
and to emphasize that Respondent would not get as many
citations as it was receiving if all its employees were
capable of doing their jobs (Tr. I: 274-75).

     I cannot credit Wolfe's testimony that he was agitated
about August 1992 citations in October, 1993, but not about
the 14 citations Respondent had received in the preceding
month (Sec. Exhibits 1, 2, and 3).  This is particularly
hard to believe in view of the fact that the October 1993
inspection was the first time that Respondent had received
as many as nine citations from an MSHA electrical inspection
(Tr. I: 186).  Further, the credibility of this testimony
is greatly undermined by the fact that at a grievance
proceeding on November 22, 1993, Wolfe could not remember
which citations he placed on the table on October 18, 1993
(Tr. I: 291-93).

     Similarly unconvincing is Wolfe's testimony at the temporary
reinstatement hearing that his actions and statements at the
October 18, 1993 grievance meeting were an indication of his
frustration with Complainant's failure to perform work
assign-ments which caused the August 1992 citations (Tr. I:
274-278).  At the temporary reinstatement proceeding Wolfe
testified that some of the conditions leading to the August
1992 citations would not have existed if Kaczmarczyk had
been able to fully perform his job (Tr. I: 276-77, but also
see Tr. I: 287). However, at the discrimination hearing he
testified that Complainant was not disciplined because he
accepted Kaczmarczyk's assertion that he had reported the
violative conditions to his foreman, who failed to take
corrective action (Tr. II: 175).

Complainant's failure to complete a functional capacity
evaluation

     Safety Director Wolfe explains the timing of
Complainant's return to compensation status as due to the
receipt of informa-tion on October 14, 1993, that
Kaczmarczyk refused to make a good faith effort to complete
a functional capacity evaluation (FCE) on September 30, 1993
(Tr. I: 253-55, Exh. R-10). However, General Manager Frank
Derrick indicated that Kaczmarczyk's alleged refusal to
take the FCE had little to do with Respondent's decision
to put him back on workers compensation (Tr. I: 349-50).

     Derrick characterized that information as "coincidental"
to his decision (Tr. I: 350).  The inconsistency in the
testi-mony of the two witnesses who decided to transfer
Complainant to workers compensation itself suggests
discriminatory motives, N.L.R.B. v. Rain-Ware, Inc., 732
F.2d 1349, 1354 (7th Cir. 1984); Hall v. N.L.R.B., 941
F.2d 684 688 (8th Cir. 1991).

     Even if I disregard this inconsistency, the extremely rapid
response of Mr. Wolfe to this information, considered in the
context of Kaczmarczyk's recent protected activity, and
Wolfe's statements at grievance proceeding, leads me to
conclude that his receipt of information regarding the
functional capacity evaluation is not an intervening event
that rebuts Complainant's prima facie case, or establishes
a legitimate affirmative defense.

     The record shows that Mr. Wolfe received a call from Andrea
Antolick, a nurse employed as a field service representative,
on October 14, 1993.  Antolick reported that Kaczmarczyk had
not put forth maximum effort when failing to complete the
functional capacity evaluation (Tr. I: 311, Joint Exh.-1-DP,
p. 21-23, 35, Sec. Exh. 3-DP, 4-DP, & 5-DP)[7].

     On the morning of October 15, 1993, Ms. Antolick had a
meeting with Mr. Wolfe, at his office, which lasted about an
hour (Joint Exh-1-DP, p. 26-32).  Approximately 15 minutes
was spent discussing Complainant (Ibid., p. 29-30).  Antolick
and Wolfe discussed her understanding that Kaczmarczyk's
test results were invalid and she indicated that she was
going to attempt to obtain an opinion regarding his
physical capabilities from his physician, Dr. Keith Kuhlengal,
a neurosurgeon (Id., p. 27).

     Although Wolfe knew Antolick had no first-hand knowledge
regarding the FCE, he decided to return Kaczmarczyk to
workers compensation without making any sort of inquiry of
Complainant or the individuals who conducted the test (Tr. I:
312-16)[8].  Absent other factors, it is not implausible that an
employer would react immediately to information indicating
malingering on the part of one of it employees.  However, in
the instant case, given the fact that Kaczmarczyk had been
on light duty for 21 months, I conclude that the rapid
response to Antolick's report, if it in fact was a factor
in Wolfe's decision, was not made independently of his
animus towards Complainant's safety-related activities.

     Was Complainant returned to workers compensation status
as the result of a non-discriminatory application of
Respondent's light-duty program?

     Respondent also argues that Mr. Kaczmarczyk's return to
compensation status was the result of a non-discriminatory
application of its light-duty program.  The decision to
return Complainant to compensation was made by General
Manager Frank Derrick, in consultation with Safety Manager
David Wolfe (Tr. I: 338, 344, 349-50).

     While both Wolfe and Derrick point to a number of instances
in which Kaczmarczyk was unable to do work assigned to him
while on light duty, they are able to conclusively establish
only one which occurred in the two and a half months prior
to the decision to return him to compensation (Tr. I: 66-67,
75-76, 203, 238, 322, Tr. II: 125-130, 134, 138-139, 148-
150, 153-154).  The record indicates that Complainant had
been unable to do job assignments throughout his 21 months
on light duty and does not conclusively establish non-
retaliatory reasons for which the company made an issue of
Kaczmarczyk's restricted abilities in October 1993.
Indeed, Complainant was unable to do much more work in
1992 and during the previous winter than in the fall of
1993 (Tr. I: 222-23).

     Respondent asks, at page 3 of its post-trial brief, that
this decision carefully account for the nature and purpose
of its light-duty program, and not disrupt the company's
legitimate purposes in providing such a program and admin-
istering it in a flexible manner.  Of course, nothing in the
Federal Mine Safety and Health Act prohibits Respondent from
administering its light duty program in a non-discriminatory
way, including non-retaliatory transfers from light-duty
back to workers compensation.

     On the other hand, a transfer from light-duty to workers
compensation that would not have occurred but for activity
protected by the Act is prohibited by section 105(c).  Given
Complainant's prima facie case, Respondent falls far short
of showing that his return to workers compensation was the
result of a non-discriminatory application of its light-duty
program.

     Respondent has satisfied me that there are many other miners
that have been on light duty who also were put back on
workers compensation (Tr. I: 246, 264-66, 336-37, 354-57).
However, it has not established that prior to the instant
case there was any company policy that light-duty
assignments are temporary, or intended to be in the nature
of a work-hardening program, as it now contends.  The only
written evidence of the policy, Exhibit R-8, says nothing of
the sort.  Further, Secretary's Exhibit 2-DP strongly
suggests that prior to Complainant's transfer there was no
such hard and fast rule.  Nurse Antolick, in a report dated
July 14, 1993, stated:

     Vocational Implications:  I spoke with Dave Wolfe
     of Reading Anthracite.  Mr. Wolfe stated that
     Mr. Kaczmarczyk has been working well in his
     light-duty position and requested I not contact
     him.  I explained my attempting to obtain a
     consent through Mr. Kaczmarczyk's attorney and
     that I will be only contacting his physician.
     Mr. Wolfe did state that client could remain in
     present job indefinitely.  I did obtain a job
     analysis on client's pre-injury job (emphasis added).

     Moreover, even if the program was intended to be temporary,
the issue in this case is the timing of the decision to put
Complainant back on workers compensation.  The question is
not whether Respondent at some time could have returned
Mr. Kaczmarczyk to workers compensation because of lack of
work or lack of improvement in his physical condition.  The
issue before me is whether it changed his status on October
15, 1993, for non-discriminatory reasons, or whether that
transfer would not have been made but for his protected
activity.

     The list of miners who also were returned to workers
compensation from light-duty does not help Respondent's case
at all.  For starters, although its brief repeats the
assertion made by Mr. Wolfe (Tr. II: 192) that no employee
spent more time on light duty than Mr. Kaczmarczyk, Exhibit
R-1-DP indicates that is not so.  On October 15, 1993,
Complainant had been on light duty for approximately 21
months.  Respondent's exhibit indicates that David Eckert
was on light duty from December 31, 1991 to March 3, 1994
(26 months).  It lists Joseph Holland as having been on
light duty from February 25, 1992 to February 24, 1994
(24 months).  Keith Mielke was on light duty from June 10,
1991 to June 14, 1993 (24 months).  Russel Sadusky was
on light duty from January 13, 1992 to June 3, 1994
(28 months).

Evidence of Malingering

     General Manager Derrick testified that Complainant was doing
less work than he was capable of doing (Tr. I: 346-47).
There is substantial testimony to the contrary (Tr. II: 124-
130, 134, 148-150, 152, Sec, Exh. 1-DP and 2-DP).  While
other evidence also suggests that Mr. Kaczmarczyk's physical
capacity was not as limited as he contends (Joint Exh-1-DP,
pp. 35-39, Exhs. R-6, R-10, R-11), I need not decide whether
Complainant exaggerated his limitations because the record
does not support a finding that Respondent returned him
to workers compensation for this reason.

     Respondent has established only one instance in the two
and a half months prior to October 15, 1993, when
Kaczmarczyk's supervisors reported to Wolfe or Derrick that
Complainant had declined to perform a task (Tr. I: 238, II:
124-130, 134, 138, 148-150).  This occurred on September 24,
1993, when Kaczmarczyk told his foreman that he could not
continue cutting weeds (Tr. II: 124-30).


**FOOTNOTES**

     [4]:  Although Foreman Vince Devine asked Kaczmarczyk who made
the complaint that led to the October inspection, Kaczmarczyk
told Devine it was not him (Tr. I: 100-105).  There is no reason
to believe Devine suspected it was Kaczmarczyk who complained
about the presence of water near electrical components in the
steam genny house, which was the subject of the complaint (Tr. I:
16-17, 178-79).  Devine was present during the inspection in
which this concern was raised and Kaczmarczyk was not (Tr. I: 97,
Secretary's Exhibit 2).

     [5]:  Wolfe testified that he never told Kaczmarczyk that he
was being placed back on workers compensation because he
participated in a walkaround inspection (Tr I: 275), which is
not a direct contradiction of the testimony of Kaczmarczyk and
Berger.  He also testified that when he put the citations down
he said to Kaczmarczyk, "[t]his is why you can't perform your
job duties" (Tr. I: 287).  However, Wolfe's continued explan-
ation provides sufficient reason for the undersigned not to
credit his testimony on this issue.

               Q.  ... What's the connection between putting
		  those [citations] down on the table and telling Mr.
		  Kaczmarczyk he couldn't do his job?...

               A.  I really don't know.  (Tr. I: 287-88).

     [6]:  The credibility of Wolfe's testimony is undermined
by its inconsistency in several regards.  For example, he
testified at the temporary reinstatement proceeding that he
did not hold Kaczmarczyk responsible for the October 1993
citations (Tr. I: 276-78).  At the discrimination hearing,
however, he testified fn. 6 (continued) that some of the
citations were due to Complainant's failure to do electrical
inspections properly (Tr. II: 196-198).

     [7]:  I credit Antolick's testimony that the first report
to Respondent regarding the functional capacity report was
made on October 14, 1993, rather than October 12.

     [8]:  I do not infer from Wolfe's testimony at Tr. I:
315-16 that he sought input from Kaczmarczyk before Respondent
decided to return Complainant to workers compensation status
(See Tr. I: 123).  There is also little concrete evidence
regarding such refusals in 1993.  Complainant's principal
foreman, Vince Devine, maintained a daily log in 1993.
After checking this log for the period January 1, 1993
through October 15, 1993, Devine could find no recorded
instance in which Kaczmarczyk declined to complete a task
due to his physical condition other than the weed cutting
incident (Tr. II: 125-138)[9].


     Claire Yarnell, the electrical foreman who occasionally
supervised Kaczmarczyk, is only aware of two or three
instances in 1993 in which Complainant declined to complete
tasks due to his back.  One is the aforementioned weed
cutting incident and another was an occasion in the summer
of 1993 in which Kaczmarczyk said he could not continue to
help other employees roll up wire (Tr. I: 200-204, II: 150,
153-54).

     Thus, there is no basis for finding that Complainant's job
performance was a bona-fide nondiscriminatory reason for his
return to workers compensation.  In so concluding, I weigh
the evidence adverse to Complainant in the context of his
protected activity, the indications of Mr. Wolfe's safety-
related animus, and the paucity of information available to
Wolfe and Derrick that Kaczmarczyk was declining to perform
tasks, or that his work was deteriorating.

     I also consider that Respondent's supervisors presented
something less than a united front on the issue of
Kaczmarczyk's work performance.  Claire Yarnell described
Complainant as an excellent worker, who did whatever was
asked of him (Tr. II: 148-9, 152).  Even Safety Director
Wolfe described Kaczmarczyk's work as sometimes "excellent"
(Tr. II: 166-67; also see Wolfe's characterizations of
Complainant's work in Sec. Exh. 1-DP and
2-DP).


**FOOTNOTES**

     [9]:Devine's log for September 24, 1993, states, "Billy
K told by Dave to cut weeds, he said his back is hurting him"
(Tr. II: 134).  Was Complainant put back on workers
compensation in a non-discriminatory manner due to lack
of work?

     At the temporary reinstatement hearing, General Manager
Derrick testified, to the surprise of Respondent's counsel,
that there was not sufficient light-duty work to keep
Complainant busy both at the time of the hearing and on
October 15, 1993 (Tr. I: 339-344).  As the Secretary notes in
his brief, this contention was not mentioned in Mr. Derrick's
Affidavit that was attached to Respondent's Response to the
Application for Temporary Reinstatement.

     Moreover, I conclude that there is no credible evidence
that Complainant was put back on workers compensation due to
lack of work.  Mr. Wolfe told Ms. Antolick in July, 1993,
that Mr. Kaczmarczyk could stay on his light duty job
indefinitely (Sec. Exh. 2-DP).  There is no evidence of any
relevant change of circumstances prior to October 15, 1993.
Although Respondent introduced evidence regarding changes
at its worksite since October 15, 1993, there is nothing in
the record that would indicate that these changes had anything
to do with its decision to put Complainant back on workers
compensation on October 15.

Conclusion

     The record as a whole establishes a prima facie case of
discrimination in violation of section 105(c) of the Act,
which is not adequately rebutted by Respondent.  I find that
but for Mr. Kaczmarczyk's participation in the MSHA
inspections of September and October 1993, he would not have
been placed back on workers compensation status on October 15,
1993.  In so deciding, there are three considerations that
stand out from the others.  First is the timing of personnel
action.  Second is Safety Director Wolfe's irritation at
seeing Complainant on the MSHA walkaround on October 14.
Last are the statements made by Wolfe on October 18, which
I construe as an admission by Respondent that Kaczmarczyk's
protected activity and his return to workers compensation
status were related.

                                ORDER

     Respondent is ordered to reinstate Complainant to the
position he held prior to October 15, 1993.  The parties are
to confer and advise the undersigned within 30 days of this
decision as to whether they are able to stipulate to the
damages sustained by Complainant due to Respondent's
violation of section 105(c) of the Act, and an appropriate
civil penalty.  If the parties are unable to so stipulate,
they may either submit written arguments on these issues
or request a supplemental hearing.

     As agreed to by the parties, I retain jurisdiction over
this matter to issue a decision on the Secretary's Motion to
Enforce the Order of Temporary Reinstatement.  A hearing on
this motion was held on May 19, 1995, after which the
parties have been provided an opportunity to file written
closing arguments.


                                 Arthur J. Amchan
                                 Administrative Law Judge

Distribution:

Stephen D. Turow, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Suite 400, Arlington,
VA 22203 (Certified Mail)

Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, P.C.,
Second Street & Laurel Blvd., P.O. Box 450, Pottsville, PA
17901 (Certified Mail)

/lh