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[DOCID: f:pn99129.wais]

 
READING ANTHRACITE COMPANY
March 19, 1999
PENN 99-129-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                         March 19, 1999

SECRETARY OF LABOR,               :  DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA), on behalf:  Docket No.  PENN 99-129-D
     of LEONARD M. BERNARDYN,     :
                  Petitioner      :  WILK CD 99-01
          v.                      :  Wadesville Pit Mine
                                  :  ID 36-01977
READING ANTHRACITE COMPANY,       :
                  Respondent      :

                          DECISION AND
                ORDER OF TEMPORARY REINSTATEMENT

Appearances:  Troy E. Leitzel, Esq., Office of the Solicitor,
              U. S. Department of Labor, Philadelphia, Penn-
              sylvania, for the Complainant; Martin J. Cerullo,
              Esq., Cerullo, Datte & Wallbillich, P.C.,
              Pottsville, Pennsylvania, for the Respondent.

Before:  Judge Weisberger

Introduction

     On November 12, 1998, Leonard M. Bernardyn filed a
Discrimination Complaint with the Mine Safety and Health
Administration (MSHA) alleging that he was discharged by Reading
Anthracite Company ("Reading") on November 10, 1998, after he
informed Reading's superintendent that his haul truck "was unsafe
to travel at a normal pace because of slippery conditions."

     On March 4, 1999, the Secretary filed an Application for
Temporary Reinstatement alleging, in essence, that the Complaint
of Discrimination filed by Bernardyn was not frivolous.  On March
8, 1999, in a telephone conference call, initiated by the
undersigned with counsel for both parties, counsel for Reading
advised that Reading was requesting a hearing.  After discussion,
the parties agreed that the hearing should be scheduled to
commence on March 16, 1999.  The matter was heard in Harrisburg,
Pennsylvania, on March 16, 1999.

     At the conclusion of the hearing, the parties presented
oral arguments.  After considering the oral arguments, and the
evidence of record, a bench decision was rendered.  The decision,
aside from minor corrections, not relating to matters of
substance is set forth below.

     I.  The Secretary's Witnesses

     Leonard Bernardyn, a truck driver at the pit in question,
testified that at the start of the shift on November 10, 1998,
the weather was misty and the road was starting to get slick.  In
general, the drivers of trucks are not informed by the company as
to the maximum speed at which the trucks are to be driven.
Bernardyn indicated that on the morning of November 10, he felt
that if he were to go at his normal speed he would go in circles.
He indicated that he was stopped by Stanley Wapinski, the general
superintendent at Reading, who told him that he was going slow.
Bernardyn told Wapinski that it was getting slippery, and
Wapinski informed him to get moving.  Shortly thereafter,
Bernardyn was stopped again by Wapinski who told him that he was
holding everything up, and directed him to park.

     Bernardyn utilized a CB radio that was in his truck to
attempt to contact a union representative, a co-worker, Thomas
Dodds.  Bernardyn broadcasted over the CB radio that he has being
harassed and was asked to drive faster than warranted by the road
conditions.  Bernardyn conceded that he did use curse words at
the time.

     After Bernardyn stopped the truck, Frank Derrick, the
general manager, informed him that he was fired.  According to
Bernardyn, Derrick did not tell him that he was being fired for
cursing, or for using threatening language.

     Thomas Dodds, another truck driver, confirmed that on the
morning at issue the roads were slick.  He also confirmed
Bernardyn's testimony with regard to what Bernardyn communicated
over the CB radio.  Dodds indicated that generally miners on the
site at issue do not use curse words on the CB radio.

     Thomas Goodman, a retired Reading employee and former truck
driver, confirmed that the roads were slick on the morning at
issue.  Goodman testified that at approximately 8:00 a.m., the
truck that he was driving began to slide.  He also essentially
confirmed Bernardyn's testimony as to what Bernardyn had said
over the CB radio.

     II.  Reading's Witnesses

     Frank Derrick, the general manager testified that at
approximately 7:00 a.m., on the date at issue he observed a Titan
truck being driven very slowly.  He stated that other trucks that
he observed were driving normally.  He indicated that he radioed
Wapinski and asked him to investigate why that particular truck
was driving slow.  Wapinski indicated that he would do it.

     At approximately 7:30 a.m., Derrick observed that there
were two trucks right behind a Titan truck.  Derrick radioed
Wapinski and asked him to investigate and to let him know if the
Titan was the same truck that had been observed earlier.
According to Derrick, Wapinski stopped the truck and told him
that it was the same truck and that the driver was Bernardyn.
Derrick stated, in essence, that he decided that Bernardyn should
be taken off the route that he was driving, and be put in another
driving position.  He indicated this was not considered to be
disciplinary action.  Derrick testified that he heard Bernardyn
talking on the CB radio, located in his office, using expletives
describing Wapinski on numerous times over a 10 minute span.
According to Derrick, a number of employees chimed in the
conversation on the CB radio.

     Derrick went down to the pit area after he had concluded
that he had had enough, and that Bernardyn should not be cursing.
Derrick entered the pit area intending to discharge Bernardyn for
cursing.  According to Derrick, when he encountered Bernardyn,
Bernardyn again used expletives, and Derrick told him that he
ought to be ashamed of himself and that he had never heard anyone
curse as bad as Bernardyn had done when he had cursed Wapinski
for 10 minutes.  Derrick then informed Bernardyn that he was
being fired.  According to Derrick, after Bernardyn had
parked his truck in the designated area, he informed him
again that he was being terminated for cursing Wapinski.

     Ronald Shellhammer, Reading's maintenance superintendent,
confirmed that he heard Bernardyn use expletives in describing
Wapinski and also heard him say "I'll get that little s---."
According to Shellhammer, he drove Bernardyn out of the pit as
directed by Derrick and Bernardyn told him that he could not
believe that he got fired for cursing on the radio.

     Stanley Wapinski testified that at about 7:00 a.m., on
November 10, he was called on the radio by Derrick and informed
that a Titan truck was holding up other trucks.  He then flagged
the truck down and spoke to its driver, Bernardyn, and informed
him that the boss said that he had been holding up two trucks and
asked him if he was having any problems.  Bernardyn stated that
he felt that the road was a little slippery, and Wapinski
informed him to "pick it up where and when you can."

     Subsequently, Wapinski was called by Derrick who told him
that the Titan was again holding up the traffic.  Wapinski came
up to Bernardyn and told him that he had received another call
from the boss that he was holding up some trucks, Wapinski then
told Bernardyn to take the truck and park it.  Wapinski then went
to the trailer and confirmed the testimony of Derrick regarding
Bernardyn's use of expletives over the CB radio.

     III.  Discussion

     Under section 105(c)(2) of the Act, the Secretary is
required to file an application for the temporary reinstatement
of a miner when he finds that the underlying discrimination
complaint has not been "frivolously brought."  Under Commission
Rule 45(d), 29 C.F.R.  1700.45(d), the issues in a temporary
reinstatement hearing are limited to whether the miner's
Complaint was frivolously brought.  The Secretary has the burden
of proving that the Complaint was not frivolous.

     The Eleventh Circuit Court of Appeals in Jim Walter
Resources, Inc., v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990),
concluded that "not frivolously brought" is indistinguishable
from the "reasonable cause to believe" standard under the
whistleblower provisions of the Surface Transportation Assistance
Act.  In addition, the Court equated "reasonable cause to
believe" with a criteria of "not insubstantial or frivolous" and
"not clearly without merit."  920 F.2d 738 at 747.

     In applying the above law, I conclude that the issue
presented is not whether Bernardyn was discriminated against, but
rather whether his Complaint was not clearly without merit.  I
find that the Secretary has met the burden of establishing that
the Complaint was not without merit.

     In support of Bernardyn's claim as set forth in his
Complaint, testimony was adduced that Bernardyn, in essence, told
Wapinski that he was not driving faster due to weather
conditions.  This was not contradicted by Wapinski.  Shortly
thereafter, Bernardyn was terminated, a coincidence in time
similarly not disputed.  The conflicts in the testimony between
Bernardyn's version of his discussions with Derrick, i.e., that
Derrick did not tell him why he was fired, and Reading's
witnesses who testified that Bernardyn was told that he was fired
for cursing raise credibility issues which arise in most
discrimination cases, and which do not, per se, establish that
the Complaint was clearly without merit or was frivolous.

     Reading has referred to the case of the Secretary of Labor
on behalf of Ronald A. Markovich v. Minnesota Ore Operations 18
FMSHRC 1349 (1996).  In Minnesota Ore Operations the Commission,
in a two to two split decision, affirmed a decision by former
Commission Judge Arthur Amchan denying an application for
temporary reinstatement.  Under Commission rules, a two to two
split decision has the effect of leaving standing the decision of
the trial Judge, and affirming that decision.  However, a two to
two split decision has very little, if any, precedential value.
The decision of Judge Amchan in Minnesota Ore 18 FMSHRC 1250 is
similarly not dispositive.  A decision of a fellow Judge is not
binding, and I choose not to follow it regarding any particulars
that are inconsistent with my decision herein.

     For all the above reasons, I conclude that the Complaint
filed with the Mine Safety and Health Administration was not
frivolously brought.

                              ORDER

     It is ORDERED that the Application for Temporary
Reinstatement is GRANTED, and that Reading is ORDERED to
REINSTATE Bernardyn to his former position that he held on
November 10, 1998, or to a similar position at the same rate of
pay and benefits immediately upon receipt of this Decision.


                              Avram Weisberger
                              Administrative Law Judge


Distribution:

Troy E. Leitzel, Esq., Office of the Solicitor, U. S. Department
of Labor, 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)

Martin Cerullo, Esq., Cerullo, Datte & Wallbillich, P.C., 450
West Market Street, P. O. Box 450, Pottsville, PA 17901
(Certified Mail)

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