<DOC>
[DOCID: f:p97-157d.wais]

 
READING ANTHRACITE COMPANY
April 7, 1998
PENN 97-157-D


         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          April 7, 1998

SECRETARY OF LABOR,           : DISCRIMINATION PROCEEDING
     MINE SAFETY AND HEALTH   :
     ADMINISTRATION (MSHA),   :    Docket No. PENN 97-157-D
      on behalf of            :
     WILLIAM KACZMARCZYK,     :    Case No. WILK CD 97-02
               Complainant    :
          v.                  :    Ellangowan Refuse Bank No. 45
                              :    Mine ID No. 36-02234
READING ANTHRACITE            :
     COMPANY,                 :
               Respondent     :

                             DECISION

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

Before: Judge Weisberger

                      STATEMENT OF THE CASE

     This case is before  me  based  on  a Complaint filed by the
Secretary   of   Labor  ("Secretary"),  on  behalf   of   William
Kaczmarczyk,  alleging  that  he  was  discriminated  against  by
Reading Anthracite  Company  ("Reading")  in violation of Section
105(c) of the Federal Mine Safety and Health  Act  of  1977  (the
"Act").   Pursuant  to  notice, the case was heard in Harrisburg,
Pennsylvania, on November  18-19,  1997.   On  February  5, 1998,
Reading filed proposed findings of fact and a brief.  On February
9,  1998,  the  Secretary  filed proposed findings of fact and  a
brief.  On February 18, 1998,  Reading  filed  objections  to the
Secretary's  proposed  findings,  and a reply brief.  On February
20,  1998, the Secretary filed a response  to  Readings  proposed
findings, and a response brief.

I.  Findings of Fact

     Based  on  the  Parties' stipulations, Reading's Admissions,
and the evidence of record, I find the following:

      1.  William Kaczmarczyk  was employed by Reading Anthracite
in December 1976.

      2.  Kaczmarczyk was classified as an electrician by Reading
Anthracite in 1985.

      3.  In November 1989, Kaczmarczyk was injured while working
at Reading.  Following that injury,  Kaczmarczyk  was  placed  on
workers compensation status.

      4.   Kaczmarczyk remained workers compensation  status from
the time of his injury through January 1991.

      5.  From  January  into February 1991, Kaczmarczyk returned
to  active  duty  work at Reading  pursuant  to  its  light  duty
program.

      6.  In February  1991,  Kaczmarczyk  left  active  duty and
returned  to workers compensation status where he remained  until
January 1992.   During  that period of time, Kazmarczyk underwent
surgery and rehabilitation  for  the  injury  he  had incurred in
October 1989.

      7.  Prior to returning to work under the light duty program
in  January  1992,  Kaczmarczyk  obtained  a  release  from   his
physician Dr. Keith Kuhlengel on January 2, 1992, that authorized
him  to  return  to  work  at Reading.  Kaczmarczyk presented Dr.
Kuhlengel's authorization to  Frank  Derrick,  Reading's  General
Manager,  and  requested  that  he  be allowed to return to work.
Derrick told Kaczmarczyk that Reading would need a second opinion
from another physician, and arranged  for  an evaluation from Dr.
Robert Gunderson, a physician selected by Reading.  Dr. Gunderson
examined Kaczmarczyk on January 7, 1992, and  determined  that he
was  physically  capable  of returning to work as an electrician.
Following the examination, Kaczmarczyk was permitted to return to
work at Reading as an electrician.

       8.   In  January  1992,  Kaczmarczyk  returned  to  active
employment at Reading in a light-duty program.  He worked in this
capacity until October 15,  1993,  when  Reading  placed  him  on
workers compensation status.

       9.   On  September  12,  1994,  pursuant  to  an  Order of
Temporary   Reinstatement   issued  by  Arthur  Judge  Amchan[1],
Kaczmarczyk was returned to light duty employment at Reading.

      10.  Kaczmarczyk continued  to  work  in  a  light duty
capacity between September 12, 1994, and September 23, 1995,
when he was again placed on workers compensation status.

      11.   Between  September 12, 1994, and September  23, 1995,
David Kerstetter, Kaczmarczyk's  immediate  supervisor, did not
offer Kaczmarczyk the opportunity to work overtime or provide
him with specific assignments during the regular work week.

      12.  In January 1995, Kaczmarczyk requested that he be
allowed to drive coal trucks on an overtime basis.

      13.   On  January 24, 1995, Kaczmarczyk's  physician,
Dr. Kuhlengel, provided  a  letter  stating  as  follow:  "He may
function as a truck driver on a temporary basis with a maximum of
ten (10) hrs. per week overtime on a trial basis."

      14.   Kaczmarczyk presented Dr. Kuhlengel's  authorization
to  representatives  at  Reading  who arranged  an examination 
with a second physician, Dr. Michael Dawson.

      15.   On   March  30,  1995,  Dr.  Dawson  examined
Kaczmarczyk, and determined  that  he  was  physically capable of
operating the haul truck on an unlimited and unrestricted basis.

      16.   Kaczmarczyk  presented Dr. Dawson's  report  to
Reading immediately after he received  it,  but  Reading  did not
permit  Kaczmarczyk  to  drive the truck on an overtime basis  or
perform any overtime work until June 1995, after Judge Amcham had
issued   his   May  24,  1995,  order   permanently   reinstating
Kaczmarczyk to his former position.

      17.   On  April  26,  1995,  the  Secretary  filed  an
Emergency  Motion to Enforce the Order of Temporary Reinstatement
alleging that  Reading  had constructively discharged Kaczmarczyk
on April 20, 1995.  Judge  Amchan found that Reading had violated
the provisions of the order  of  temporary  restatement, but that
the  environment was not sufficiently intolerable  to  constitute
"constructive suspension."

      18.   On  May  24,  1995, Kaczmarczyk was permanently
reinstated to the light duty program  at  Reading  pursuant to an
order of Judge Amcham.

      19.   From  June  1995  through  September 23,  1995,
Kaczmarczyk drove a haul truck and a water truck  on an irregular
basis  at  Reading's  Maple Hill Site.  His physical restrictions
did  not  interfere  with   his  ability  to  perform  the  tasks
associated with the operation of these trucks.

      20.  Kaczmarczyk never  refused  to perform any of the
duties  associated with the operation of the haul  truck  or  the
water truck because of his physical conditions.


**FOOTNOTES**

     [1]: Judge Amchan subsequently left the Commission to serve
as an Administrative Law Judge with another agency.


      21.   In  evaluating  Kaczmarczyk's physical abilities
during the time period June through  September 1995 when he drove
a water truck and a haul truck, most weight  was  placed  on  the
determinations  of  physicians  who examined him, rather than the
subjective   understanding   of   Kaczmarczyk   regarding   these
restrictions.   Dr.  Peter  A. Feinstein,  who  examined  him  on
June 10,  1994,  indicated that  Kaczmarczyk  could  continuously
reach above his right  shoulder, lift a maximum of 20 pounds, and
frequently bend, squat,  and  kneel.   On  January  24, 1995, his
treating  physician,  Dr.  Kuhlengel  indicated  that Kaczmarczyk
could  function  as a truck driver "on a temporary basis  with  a
maximum of  ten (10) hours per week of overtime on a trial basis"
(Sec. Ex. 26).  Dr. Michael Dawson who evaluated him on March 30,
1995, included that  he was able to work as a truck driver "on an
unlimited and unrestricted  basis"  (Sec. Ex. 10).  Dr. Kuhlengel
in  a  report  dated December 20, 1995,  indicated  that  he  had
examined Kaczmarczyk  on that day, and that he should not lift or
carry more than 10 pounds,  and  not  do  any bending, squatting,
twisting, pushing, pulling, climbing, kneeling, or overhead work.
Based  on  an  examination  on November 13, 1996,  Dr.  Kuhlengel
placed the same restriction on Kaczmarczyk, but indicated that he
should be able to perform work  as a truck driver "as long as the
position is within the stated restrictions" (Sec. Ex. 14).

      22.  In the time period  June  1996  through September
1996, Kaczmarczyk told his immediate supervisor, Dave Kerstetter,
that he was interested in driving trucks, and provided Kerstetter
with  a  letter  from  Dr. Kuhlengel  dated  September 25,  1996,
indicating  that  he  could  return to work with restrictions  of
lifting  10 pounds,  and  no  bending,   pushing,   pulling,   or
performing  overhead  work.   Dr.  Kuhlengel  added  as  follows:
" . . . he  is able to drive a truck with an air seat" (Sec.  Ex.
13).

      23.   On  October  19,  1996, a temporary truck driver
position was posted.

      24.  The temporary haul truck  position  required  the
operation  of a haul truck that was used to haul ash from the co-
generation plant.

      25.   The  ash from the co-generation plant was loaded
onto the haul truck with  a  hopper,  which  dropped the fine ash
particles from a height of about 5 to 6 feet onto  the bed of the
haul  truck.   The  fine  particles  of  the  ash  do not produce
significant  jarring  or  vibration that is associated  with  the
loading of large rock and materials onto a haul truck.

      26.  The haul truck  that  was  used  to haul material
from  the co-generation plant had an automatic transmission.   It
also was  equipped  with an air seat, which reduced the effect of
road bumps and cushioned  the  ride for the truck operator, and a
steering system similar in function  to power steering.  In order
to reach the cab of the truck that was used to haul material from
the co-generation plant, an operator must  climb approximately 10
steps.  During the course of a workday, a haul truck driver needs
to climb the steps onto the truck's cab on only one occasion.

      27.  Once a "bid" is posted, the  job  listed  in  the
"bid"  is  traditionally  awarded  to the most senior, qualified,
Reading employee who bids on the position.

      28.  Kaczmarczyk was the  most senior Reading employee
to bid on the position of temporary truck driver.

      29.  The temporary truck driver  position  was awarded
to  Harry  Markle  because Reading believed that Kaczmarczyk  was
physically incapable of performing the duties associated with the
position, since Dr.  Kuhlengel's  statement  explicitly releasing
Kaczmarczyk to drive trucks also contained a restriction relating
to bending, squatting, pulling, crawling, climbing, and lifting.

       30.   According  to Frank Derrick, Reading's  General
Manager, an individual does not  have  to  perform any activities
that involve crawling in order to operate the  haul truck that is
the subject of this case.

       31.   A  miner  must  bend  to  perform the  preshift
inspection  and  to  check  fluids  on the haul trucks.   Derrick
indicated on cross-examination that as  a  result of a grievance,
mechanics  still  service  and  start the haul trucks.   However,
Reading has no written rule directing  either  mechanics or truck
drivers   exclusively   to  perform  these  duties.   Kaczmarczyk
testified that when he drove the haul truck, he did not check the
fluids.  Kaczmarczyk testified  that the mechanics performed this
task ". . . because the practice  is --- our Local Union 807, our
job site, states that the mechanics check the fuels trucks" (sic)
(Tr.  324-325).   I find this testimony  of  one  individual  who
worked  on  only  one  shift  insufficient  to establish that the
practice at the site at issue was that only the mechanics were to
check the fluids, service the vehicles, and start them.

      32.  Kaczmarczyk testified that in  order to check the
fluid levels, oil, and antifreeze on the haul truck,  it  is  not
necessary  to  bend,  crawl,  twist, push, or pull.  He also said
that  it would take no more than  5 minutes  to  check  the  oil,
transmission  fluid, and antifreeze levels on the haul truck that
was used to haul materials from the coal generation plant.  Since
he did not check  these fluids, I do not place much weight on his
testimony regarding  the  activities  required  to  perform these
functions.  In contrast, Derrick testified that, in essence,  the
decision  not  to  award  the  temporary truck driver position to
Kaczmarczyk was based upon the conclusion  that  the latter could
not  perform  the  specific  duties  involved  in operating  this
position  such  as  bending, climbing, and squatting.   I  accept
Derrick's testimony that  these  duties  are  required  as  it is
supported  by  a  Job  Analysis[2]  of  the truck driver position
prepared  for Reading by CRA Managed Care,  Inc.  ("CRA"),  which
indicates that  these  activities  are required 10 percent of the
time.  The analysis also states that  the  heaviest  weight to be
lifted  one  time  is  15 pounds,  and that lifting it above  the
shoulder is required.
       33.   Neither Derrick nor  any  other  Reading  agent
contacted Dr. Kuhlengel or another physician to determine whether
Kaczmarczyk  was physically  capable  of  performing  the  duties
associated with the truck driver position.

      34.   There  is no evidence that Reading was obligated
to  contact  Dr.  Kuhlengel   or   another   physician  in  these
circumstances.   The Secretary's reliance on Article  3(i)(3)  of
the Reading Anthracite  Company  Wage Agreement of 1994 (Sec. Ex.
4) is misplaced.  Section 3(i)(3),  supra, its applies to a miner
who was "refused recall from a panel  or  from  sick  or  injured
status."   In  contrast,  Kaczmarczyk was in workers compensation
status, and applied not for  recall  but for a job as a temporary
truck driver.  Nor is there evidence that  Reading had a practice
of contacting treating physicians or making  referrals  to  other
physicians in situations similar to that of Kaczmarczyk's.

     Jay  Berger, a UMW District Board Member, testified that  on
one occasion  an  employee  who  had  been  off  work for 8 years
presented  Reading with a note from his physician permitting  him
to return to  work.   Reading  referred  this  employee  to their
doctor  for  evaluation.  This instance appears to be within  the
scope of section  3(i)(3), supra, but insufficient to establish a
practice in situations similar to the case at bar.

      35.  On  October  16, 1996, pursuant to the collective
bargaining agreement, Kaczmarczyk  had  a meeting with Kerstetter
to appeal Reading's decision to award the  temporary truck driver
position  to  Markle.   During  this  meeting,  Kerstetter   told
Kaczmarczyk  that  he  was not awarded the temporary truck driver
position because his restrictions  prevented  him  from operating
the   haul  truck.   Following  the  October  16,  1996  meeting,
Kaczmarczyk  filed  grievance  No. 97-01 because he believed that
Reading  had acted improperly in  awarding  the  temporary  truck
driver position to Markle.

       36.    Pursuant  to  the  terms  of  the  collective
bargaining agreement,  a Step 2 grievance meeting was convened on
November 6, 1996, to consider  Kaczmarczyk's  contention  that he
should  have  been awarded the temporary truck driver's position.
During  the  Step   2   proceeding,  Kaczmarczyk  told  Reading's
representatives that he had a doctor's authorization to work as a
truck driver, and requested that he be awarded the position.

       37.   Pursuant   to   the  terms  of  the  collective
bargaining agreement a Step 3 Grievance  Meeting  was convened on
November 14, 1996.

       38.   During the Step 3 meeting, Kaczmarczyk and Berger
informed Lenny Haspe, Reading's representative, that  Kaczmarczyk
had driven the haul truck in the past "with restrictions . . . at
that  time  also  he  had"  (sic)(Tr.  54).  Kaczmarczyk informed
Reading that Dr. Kuhlengel had determined  that he was physically
able to perform the duties of a haul truck driver.   He presented
Reading  with a November 13, 1996, report signed by Dr. Kuhlengel
which stated  that it was "acceptable" for Kaczmarczyk to drive a
truck with certain restrictions.


**FOOTNOTES**

     [2]: A job  analysis  is a mechanism that allows Reading to
describe in detail all of the duties associated with a particular
position at the mine site in  order  that  a physician can review
the job analysis and determine whether a particular  employee  is
physically  capable  of performing the duties associated with the
position.

     Job analyses are developed at the instruction of Derrick and
compiled by Reading managerial  employees  who  are familiar with
the duties associated with a particular position or job at the mine
Kaczmarczyk requested that Reading prepare a job analysis for the
truck driver position in order to resolve Reading's concern  that
Kaczmarczyk's physical restrictions prevented him from working as
a haul truck driver.

     39.   On  December  4, 1996, Berger wrote a letter to
Derrick  stating  that  Haspe had not  answered  questions  posed
during the Step 3 proceeding  regarding  Reading's  rationale for
refusing  to  allow  Kaczmarczyk  to  work  as a temporary  truck
driver.  Berger asked Reading to explicitly state  its  position,
and  reminded  Derrick that Kaczmarczyk had been released by  his
physician to drive  the  haul  truck,  and that he had driven the
truck on prior occasions.

     40.  On January 13, 1997, Kaczmarczyk  wrote  a letter
to  Dr.  Kuhlengel regarding his ability to drive the haul truck.
Dr. Kuhengel  responded  on  January  21,  1997,  and stated that
Kaczmarczyk  could  not load or unload a truck but was  "able  to
drive a truck with an air seat."  Kaczmarczyk provided Kerstetter
with a copy of this letter.

     41.  On January  31, 1997, Berger sent a letter to Dr.
Kuhlengel seeking to obtain information  for  the  pending Step 4
Grievance  Hearing  concerning  Kaczmarczyk's ability to  perform
certain duties associated with the truck driver position.

     42.  On February 10, 1997,  Dr. Kuhlengel responded to
Berger's  letter and stated that he did not  feel  that  climbing
several steps  up  to  a truck cab "is severely restricted by his
condition."  He also opined  that  a total of 15 minutes a day to
check fluid levels "is not unreasonable."  He also restricted the
following activities to less than 15  minutes  total in an 8 hour
day:   bending, squatting, twisting, pushing, pulling,  cralwing,
climbing, and kneeling.

       43.    Pursuant  to  the  terms  of  the  collective
bargaining agreement,  a Step 4 Grievance Hearing was convened on
February 11, 1997.  An Umpire  selected  pursuant to the terms of
the collective bargaining agreement presided  at  the proceeding,
and  heard from both parties regarding Kaczmarczyk's  claim  that
Reading had improperly denied his bid to drive the haul truck.

      44.   At the Step 4 proceeding, Berger introduced the
February  10,  1997,  letter  from  Dr. Kuhengel.   According  to
Berger, Derrick was "hot" (Tr. 98) and said "that Bill would be a
downfall of Reading  Anthracite  Company" (Tr.95), and then "made
statements about Bill filing the case  with  the  EEOC  and MSHA"
(Tr. 95).  In essence, Kaczmarczyk corroborated this version.

     In  contrast,  according  to  Derrick,  Kaczmarczyk  had had
gotten  "out  of  control" (Tr. 229), and, in stating his reasons
why the Umpire should  continue  to hear the case mentioned "that
he would see us all in court.  He  had  charges filed" (Tr. 231).
According  to  Derrick,  the  Umpire  became  confused,   and  he
(Derrick) told him, to "set the record straight" (Tr. 231),  that
Kaczmarczyk  had filed charges with the Pennsylvania Human Rights
Commission and  MSHA.  Ricardo Muntone, an accountant employed by
Reading, who was present at the Step 4 proceeding, testified that
after the Umpire questioned whether his decision on the grievance
would be binding,  and  Derrick  said  that Kaczmarczyk had filed
similar actions with other agencies.  Neither Muntone nor Derrick
specifically denied that Derrick had said  that Kaczmarczyk would
be the downfall of Reading.  Accordingly, and  also  based  on my
observations  of  the  witnesses'  demeanor, I accept the version
testified to by Berger and Kaczmarczyk.

     45.  The statements that  Derrick  made  at the Step 4
proceeding  that  Kaczmarczyk  was  going  to be the downfall  of
Reading because of the cases he had filed with  the  Human Rights
Commission and MSHA were not part of the res gesta of  any offers
of settlement made by Derrick.

     46.  On February 24, 1997, Reading sent a job analysis
for the haul truck driver position to Dr. Kuhlengel.  On March 7,
1997,   Reading   received   the   completed  job  analysis  from
Dr. Kuhlengel  in  which  he stated that  Kaczmarczyk's  physical
restrictions did not prevent  him  from  working  as  haul  truck
driver.

      47.   On  March  7,  1997, Reading sent Kaczmarczyk a
letter informing him that Dr. Kuhlengel  had  determined  that he
was  capable  of  performing  the job of a coal truck driver, and
instructed Kaczmarczyk to make arrangements to return to work.

      48.    On   March  10,  1997,   Muntone   telephoned
Kaczmarczyk, and informed  Kaczmarczyk's wife that he should make
arrangements to return to work at Reading.

      49.  When Kaczmarzyk  reported  to  work at Reading on
March 10, 1997, Kerstetter informed him that there  was  no  work
available  as  a  haul  truck  driver,  since  Schuylkill  Energy
Resources (SER) had completed the construction of a conveyor belt
system on March 2, 1997, which moved ash from the coal generation
plant without the use of haul trucks.

      50.  As early as August 1994, Reading had become aware
that  SER  would  be  constructing a conveyor to replace the coal
haulage trucks.

      51.  Derrick  thought  SER would complete construction
of the conveyor belt system in February or March 1997.

      52.   In March 1997, Kaczmarczyk  felt  that  he  was
physically  able  to  preform  the  duties  associated  with  the
position of a water  truck driver.  Between March and April 1997,
Kaczmarczyk requested  that  a  job analysis be made of the water
truck position.  Muntone notified  Derrick  that  Kaczmarczyk had
requested a job analysis for the water truck position.

      53.   Derrick  instructed  Muntone to prepare  a  job
analysis for the water truck position on March 12, 1997.

      54.   The water truck was a haul  truck  modified  to
allow it to carry water.   Operating  the  water  truck  requires
climbing  approximately eight times a shift, standing a total  of
an hour, and  walking  a  total  of  an hour.  Operating the haul
truck  requires only occasional climbing,  and  no  standing  and
walking.  All other physical demands of these job are the same.

      55.  Derrick ordered the preparation of a job analysis
for the  water  truck position because he considered the physical
demands associated  with  the  operation of the water truck to be
more significant than those associated with the haul truck, since
the water truck driver needed to climb into the water truck's cab
more frequently during the shift,  and  needed to turn a crank in
order to open a value to fill the water truck with water.[3]

      56.  Reading completed the job  analysis for the water
truck position on March 13, 1997, and sent the  analysis  to  CRA
who forwarded it Dr. Khulengel on April 9, 1997.

      57.  On May 16, 1997, Reading received a job analysis
for the water  truck  position from Dr. Kuhlengel.  Dr. Kuhlengel
concluded  that  Kaczmarczyk's   physical  restrictions  did  not
prevent him from work as water truck driver.

      58.  On May 19, 1997, Kaczmarczyk  returned to work at
Reading as a water truck driver.

II.  Analysis

      A.  Case Law

     The Commission, in Braithwaite v. Tri-Star Mining, 15 FMSHRC
2460  (December  1993),  reiterated  the  legal standards  to  be
applied in a case where a miner has alleged  that  he was subject
to  acts of discrimination.  The Commission, Tri-Star,  at  2463-
2464, stated as follows:

          The    principles    governing   analysis   of   a
     discrimination  case  under  the   Mine  Act  are  well
     settled.   A miner establishes a prima  facie  case  of
     prohibited discrimination by proving that he engaged in
     protected  activity   and   that   the  adverse  action
     complained  of  was  motivated  in  any  part  by  that
     activity.    Secretary   on   behalf   of   Pasula   v.
     Consolidation   Coal   Co.,  2  FMSHRC  2786,  2797-800
     (October  1980),  rev'd  on  other  grounds,  sub  nom.
     Consolidation Coal Co., v. Marshall, 663 F.2d 1211 (3rd
     Cir.  1981); Secretary on behalf of Robinette v. United
     Castle Coal Co., 3 FMSHRC  803,  817-18  (April  1981).
     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 protected
     activity.   Pasula,  2  FMSHRC  at  2799-800.   If  the
     operator cannot rebut the  prima  facie  case  in  this
     manner,  it  nevertheless  may  defend affirmatively by
     proving  that  it  also was motivated  by  the  miner's
     unprotected activity  and  would have taken the adverse
     action in any event for the unprotected activity alone.
     Pasula, 2 FMSHRC at 2800; Robinette,  3  FMSHRC at 817-
     18; see also Eastern Assoc. Coal Corporation, v. United
     Castle Coal Co., 813 F.2d 639, 642 (4th Cir.  1987).

     B.  The Secretary's Prima Facie Case

     1.  Protected Activities

     The  parties have stipulated that the following  sets  forth
the  scope   of  the  protected  activities  engaged  in  by
Kaczmarczyk:

          On October  19,  1993,  Mr.  Kaczmarczyk  filed  a
     complaint    with    the   Mine   Safety   and   Health
     Administration  alleging   that   the   Respondent  had
     unlawfully placed him on "worker's compensation" status
     because he had earlier engaged in a series of protected
     activities.  The nature of these protected  activities,
     and the details associated with his involvement in such
     activities, were the subject of extensive litigation[4]
     involving the Respondent, about which the Respondent is
     aware.     Both   the   activities   alleged   in   the
     discrimination complaint and the subsequent litigation,
     much of which occurred after September 1994, constitute
     protected activities under the Mine Act.

          On  or  about   July  16,  1995,  Mr.  Kaczmarczyk
     reported  that  the No. 609  truck  that  he  had  been
     assigned to drive  was unsafe for him to operate due to
     the fact that the truck  had a defective air seat and a
     significant crack in the window  on  the passenger side
     of  the  vehicle.   On  the same date, Mr.  Kaczmarczyk
     reported  that  the No. 556  truck  that  he  had  been
     assigned to drive was unsafe to operate due to the fact
     that the truck had:   inadequate  service  brakes  that
     would  not  hold  the truck on the hills over which the
     truck  traveled,  a defective  back-up  alarm,  and  an
     inoperable  latch on  the  driver's  side  door,  which
     prevented the  door  from  effectively remaining closed
     while the truck was operated.  Mr. Kaczmarczyk reported
     these conditions to David Kerstetter in the area of the
     Maple Hill Garage.


**FOOTNOTES**

     [3]:  In 1995, when Kaczmarczyk  operated a water truck, he
was able to climb into the cab of the water trunk, and he did not
have any difficultly turning the value used to fill it.  However,
he had subsequently reinjured his back in September 1995.

     [4]:  On  September  12,  1994,  following  an  evidentiary
hearing, Reading was ordered to temporarily reinstate Kaczmarczyk
(16  FMSHRC  1941)  A  hearing  on  the merits  of  Kaczmarczyk's
complaint of discrimination was held  on  March 14, 1995.  On May
24,   1995,   a   decision   was  issued  holding  that   Reading
discriminated   against  Kaczmarczyk   because,   but   for   his
participation in  MSHA inspections, he would not have been placed
on workers compensation.

     On  or  about   July  27,  1995,  Mr.  Kaczmarczyk
notified  David  Kerstetter   that   the  pump  at  the
pumphouse was not working and unclean  water  was  thus
flowing  from  the pumphouse into a near-by creek.  Mr.
Kaczmarczyk notified Mr. Kerstetter that this condition
presented  a  danger   to  the  health  and  safety  of
individuals working in,  and  around, the pumphouse and
that the condition may also constitute  a  violation of
state, and or federal, environmental regulations.

     On   or  about  July  30,  1995,  Mr.  Kaczmarczyk
reported that  the  No.  660 ash truck that he had been
assigned to drive was  unsafe for him to operate due to
the fact that the truck  had a significant crack in the
window  on  the  driver's side  of  the  vehicle.   Mr.
Kaczmarczyk reported  the condition to David Kerstetter
in the area of the Maple Hill Garage.

     On  or  about  August  2,  1995,  Mr.  Kaczmarczyk
refused to operate a truck that he had been assigned by
David  Kerstetter to drive  because  the  truck  had  a
defective  air-seat  and  operating the vehicle in this
condition posed a hazard to Mr. Kaczmarczyk.

     On  or  about  August  3,  1995,  Mr.  Kaczmarczyk
complained   to   David   Kerstetter    and    a   UMWA
representative  that  dust from the hoppers at the  co-
generation  plant was seeping  into  the  cabs  of  the
trucks that were  being  loaded  with  material  at the
hopper location and creating an unhealthy condition for
himself and other truck drivers.

     On  or  about  September 13, 1995, Mr. Kaczmarczyk
refused  to  perform a  portion  of  job  he  had  been
assigned by Frank  Derrick  because  he  believed  that
performing  the  task as assigned would have placed him
in  a  situation  that   may   result   in  an  injury.
Specifically,  Mr  Derrick  ordered Mr. Kaczmarczyk  to
pick up garbage in an area in  which  there  existed  a
steep,    20-foot   incline   protected   by   a   berm
approximately  5 feet in height.  While Mr. Kaczmarczyk
did pick up garbage  in the area, he refused to pick up
garbage on the incline  and the berm, since he believed
that it would be dangerous  for  him  to  work  in this
area, given the equipment that was available to perform
the task and the nature of the work site.

     It also was stipulated that in  the  time  period  from
September 13, 1995, to October 8, 1996, when Kaczmarczyk bid
on  the temporary truck job, he did not engage in any safety
related or protected activities.

2.  Adverse Actions

The  Secretary   alleges   that   the  following  constitute
Reading's  adverse actions:  1.  On  or  about  October  16,
1996, Reading  awarded Markle the position of temporary haul
truck  driver,  and   2.   Reading  denied  Kaczmarczyk  the
opportunity to drive a  water truck from March  to May 1997.
In  essence, Reading did not  dispute  that  it  took  these
actions.

3.  Motivation

      Inasmuch  as  there  is  no dispute in the record that
Kaczmarczyk  engaged  in  protected   activities,  and  that
Reading took adverse actions, the only  issue to be resolved
is   whether  there  was  a  nexus  between  the   protected
activities and the adverse actions.  In other words in order
to prevail,  the  Secretary  must establish that the adverse
action taken by Reading was motivated  "in  any part by that
activity." (Pasula, supra at 2799)  The prima facie case may
be  rebutted  by Reading by showing that the adverse  action
was  in no part  motivated  by  protected  activity.[5]   If
Reading  cannot  establish this, it may defend affirmatively
by  proving that it  also  was  motivated  by  Kaczmarczyk's
unprotected activity and would have taken the adverse action
in any  event  based  upon  the  unprotected activity alone.
(Tri-Star, supra, at 2463-2464.)

     Essentially it is Secretary's position that discriminatory
motivation on Reading's part in taking the specific  adverse
actions  against  Kaczmarczyk,  is  established  by evidence
tending  to show that Reading's rationale for these  actions
was merely  pretextual.  Reading argues that a nexus has not
been established due to the long time span between protected
activities and  the  adverse  actions. In this connection it
refers to the last protected activity  which  occurred on or
about  September  13, 1995, and the earliest adverse  action
which was taken on  or  about October 16, 1996, when Reading
awarded another miner the  position  of temporary haul truck
driver.

     In general, the Commission in Hicks v. Cobra Mining,Inc.,
et al. 13 FMSHRC 523 (1991) discussed the principles  to  be
applied in evaluating motivational nexus.

     The    Commission    in   previous   rulings   has
acknowledged   the   difficulty   in   establishing   a
motivational nexus between  protected  activity and the
adverse  action  that is the subject of the  complaint.
"Direct evidence of  motivation  is rarely encountered;
more   typically,  the  only  available   evidence   is
indirect . . . `Intent  is  subjective and in may cases
the discrimination can be proven  only  by  the  use of
circumstantial  evidence.'"  Secretary o.b.o. Chacon v.
Phelps  Dodge  Corp.,  3 FMSHRC 2508,   2510  (November
1981),  rev'd  on  other  grounds  sub  nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983 quoting
NLRB v. Melrose Processing Co., 351 F2.d  693, 698 (8th
Cir. 1965).

     In Chacon, the Commission listed some  of the more
common circumstantial indicia of discriminatory intent:
(1) knowledge of the protected activity; (2)  hostility
or   animus   towards   the   protected  activity;  (3)
coincidence in time between the  protected activity and
the adverse action; and (4) disparate  treatment of the
complainant.  3 FMSHRC 2510.

     Hence,  as  set  forth  by the Commission in  Hicks,  supra,
coincidence  in  time  between the  protected  activity  and  the
adverse action is only one  indicia of discriminatory intent, and
not  dispositive  of  that  issue.   Further,  as  noted  by  the
Secretary, Kaczmarczyk was on workers compensation status between
the date of the last protected  activity alleged, and October 16,
1996, the date of the first adverse  action, when he attempted to
return  to  active  duty  as  a temporary truck  driver  and  the
position was awarded instead to  Markle.   Hence, Reading did not
have   any  opportunity  to  take  any  adverse  action   against
Kaczmarczyk during the period when he was on workers compensation
status.   Accordingly,  the  lapse  of time between the protected
activity  and  the  adverse action does  not,  by  itself,  prove
disprove a nexus between the protected activities and the adverse
action.

     On  the other hand,  I  accord  most  weight  in  evaluating
Reading's  motivation  a  statement made by Derrick at the Step 4
Grievance proceeding.  According  to  Berger,  after he offered a
letter from Dr. Kuhlengel dated February 10, 1997,  Derrick  said
that  Kaczmarczyk  "would  be  a  downfall  of Reading Anthracite
Company" (Tr. 95) because of the cases that he had filed with the
EEOC and with MSHA.  Berger's version was in essence corroborated
by  Kaczmarczyk.   Respondent's  witnesses  Derrick  and  Muntone
presented a different version which Reading characterizes  as  no
more  than  heated  comments  made during an attempt to resolve a
contentious  matter.   Reading  asserts   that  the  majority  of
comments were no more than accurate statements  of facts given to
the  Umpire  as an explanation of the procedural posture  of  the
matter.  However,  it  is  significant  that  neither Derrick nor
Muntone explicitly denied the specific statement  by  Derrick  as
testified  to  by  Berger.   I  therefore  accept  the version as
testified  to  by Berger and Kaczmarczyk.  I conclude,  primarily
based on this statement  which  evidences Derrick's state of mind
and  attitude towards Kaczmarczyk's  protected  activities,  that
there existed animus toward the protected activities.[6]  For all
these reasons I find that the Secretary has established evidence


**FOOTNOTES**

     [5]:  Reading  argues  that  the  Umpire's  decision in the
Grievance Procedure (RAC Exs 2 and 6) finding that (1) Kazmarczyk
was not entitled to the truck driver position prior to the step 4
proceeding when he submitted the letter from Dr. Kuhlengel  dated
February 10, 1997, and (2)  that  six  allegations 
of discrimination, which form part of the basis for
the case at bar, were not discriminatory, should be
dispositive of the  instant  proceeding.   There is no indication
that  the parties to the grievance proceeding  were  provided  an
opportunity   to   fully   develop  the  record,  conduct  cross-
examination,  or  present  witnesses   on   their  behalf.   More
importantly,  the  grievance  proceeding  involved   adjudicating
rights under a union contract.  It did not and can not adjudicate
rights  under  section 105(c)  of the Act, which is the exclusive
jurisdiction of the Commission.   Accordingly,  I  do  not assign
much weight to the decision of the Umpire.

     [6]:  I  have considered Reading's argument that the  claim
that Derrick made  discriminatory  comments toward Kaczmarczyk is
without merit because the Umpire who  rendered  the October 19-29
Grievance  decision  stated  that  he  could  not  remember  such
statements  being  made, that because hearings are informal  many
irrelevant statements  are  made, and that the alleged statements
in  the  context  of  the hearing  do  not  show  discrimination.
However, I place more weight,  in deciding whether the statements
were made, upon live testimony of  witnesses whose demeanor I was
able  to  observe  and  whose testimony  was  subject  to  cross-
examination.  I also do not  place any weight upon the conclusion
of the Umpire, as the issue before  him was not whether an act of
discrimination occurred under section 105(c) of the Act.
of some discriminatory intent on the part of Reading when it took
the  adverse  actions  complained  of.   Thus  I  find  that  the
Secretary has established a prima facie case (Secretary on behalf
of  Robinette v.  United  Castle Coal Co., 3 FMSHRC  803,  817-18
(April 1981).


      C.  Respondent's Affirmative Defense

     Reading  argues that based  upon  the  treating  physician's
restrictions it  was  reasonable  for  it  to have concluded that
Kaczmarczyk was not qualified to perform the  jobs  for  which he
applied  based  on  the job analyses of these positions until  it
obtained express approval  from the treating physician based on a
job analysis.  Reading argued  further  as follows:  (1) once the
company obtained a verification from the  treating physician, the
positions  were  awarded  to  Kaczmarczyk;  (2)   any  delays  in
obtaining  reports  were  not  attributable  to  the  company  in
verifying   Kaczmarczyk's   fitness;   and  (3)  Kaczmarczyk  was
compensated  for  lost  wages  due to any delay.   The  Secretary
argues in his reply brief that Reading's arguments are pretextual
in that it did not contact Dr. Kuhlengel, the treating physician,
until February 18, 1997, 4 months  after  Kaczmarczyk  and Berger
had  requested it to contact Dr. Kuhlengel, that the only  motive
was one  of  retaliation as set forth in pages 9-25 of its brief,
and  that  Reading   had   abundant  information  available  that
indicated that Kaczmarczyk was  capable  of  perform  the  duties
involved in operating a truck.  It was also argued that the  back
payments  it  made  came only after it was clear that the company
would  be  obligated  to   make  such  payment  pursuant  to  the
collective bargaining agreement,  and after Kaczmarczyk had filed
his present claim.

     I have considered all of these  arguments,  as  well  as the
balance  of  the  Secretary's  arguments as set forth in the post
hearing brief.  For the reasons  that  follows,  I  conclude that
Reading has established its affirmative defense, and I reject the
Secretary's arguments.

     In   light  of  Kaczmarczyk's  prior  history  of  medically
documented  back  problems  which  restricted him from performing
various  duties  in  the  past  and  placed   him  in  a  workers
compensation  status,  I  find that it was a legitimate  business
concern  of  Reading, acting  through  its  agent  Derrick,  that
Kaczmarczyk be  physically capable of operating a haul truck, the
position  for  which   he   bid  in  October  1996.   The  record
establishes that a haul truck operator, hauling material from the
co-generation plant, would be required to climb approximately ten
steps up to the truck's cab only  once  a shift.  In addition the
weight  of the evidence establishes that bending,  climbing,  and
squatting  are  required 10 percent of the time.  In addition the
operator of the haul  truck is required to lift up to 15 pound at
one time, and to lift 15 pound  above  the  shoulder  level.  The
medical   reports   from   physicians   evaluating  Kaczmarczyk's
functional capabilities in the 12 month period  immediately prior
to Kaczmarczyk's bid on the haul truck position,  provide a basis
for  a  finding  that  it  was  not  unreasonable for Derrick  to
conclude  that  Kaczmarczyk was restricted  from  performing  the
duties  required in  operating  the  haul  truck.   Dr.  Kuhengel
examined  Kaczmarczyk  on  December  20, 1995.  In a report dated
December  20,  1995,  Dr. Kuhlengel  indicated  that  Kaczmarczyk
should  not lift or carry more than 10 pounds,  and  not  do  any
bending,  climbing and squatting.  On June 5, 1996, Dr. Kuhlengel
examined Kaczmarczyk.   He  indicated  in  a report dated June 5,
1996, that he gave Kaczmarczyk ". . . recommendations  to  return
to  work  with  restrictions of 10 pounds lifting and no overhead
working, no bending,  pushing  or  pulling."  Most significantly,
when Kaczmarczyk expressed to Kerstetter  his interest in driving
a  haul  truck,  he  provided  Kerstetter  with  a   letter  from
Dr. Kuhengel dated September 25, 1996, stating that ". . . he  is
able  to  drive  a truck with an air seat," but setting forth the
same restrictions  as  he  had set forth in his report of June 5,
1996,  i.e., no lifting more  than  10 pounds,  and  no  bending,
climbing,  or  squatting all of which are required to operate the
haul truck.  Hence,  when Kaczmarczyk bid on the truck driver job
in October 1996, it was  not  unreasonable  for  Derrick  to have
reached  a conclusion in that the latter was medically restricted
from performing all the duties of a truck driver.

     Similarly,  the  decision  by  Derrick on March 12, 1997, to
have a job analysis prepared for the  water  truck  position  for
which   Kaczymarczyk  subsequently  applied,  which  resulted  in
Kaczymarczyk's  being  denied  the  opportunity  to drive a water
truck  from  that date to May 1997, an adverse action,  does  not
appear to have  been an unreasonable business judgment.  Although
Kaczymarczyk had  previously  been  able  to  perform  all of the
duties   involved   in  operating  a  water  truck  in  1995,  he
subsequently reinjured  his back in September 1995.  Hence, there
was legitimate concern whether he would be capable to perform the
duties required in March  1997.   Although  the water truck was a
haul  truck  modified to allow it to carry water,  its  operation
required climbing  eight  times  a  shift,  standing  a  total of
1 hour, and walking a total of an hour.  In contrast, operating a
haul  truck  required only climbing once a shift, and no standing
or walking.  All  other  physical  demands  of these job were the
same.   Thus, I find that the ordering of a job  analysis,  which
delayed the  offering of the job to Kaczymarczyk, was not such an
unreasonable business  decision, as to raise an inference that it
was motivated by discriminatory intent.

     Within the context of the above referred to evidence, I find
that  although the Secretary  established  a  prima  facie  case,
Reading  has  established  that the adverse actions complained of
would have been taken in either  event based solely upon business
decisions that were not unreasonable.    I  thus conclude that it
not been established that Kaczymarczyk was discriminated  against
by Reading in violation of section 105(c) of the Act.  Hence, the
Complaint should be dismissed.

                              ORDER

     It is ORDERED that this case be DISMISSED.


                              Avram Weisberger
                              Administrative Law Judge




Distribution:

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

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

dcp