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JIM WALTER RESOURCES, INC.
June 24,1998
SE 93-39-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          June 24, 1998

MARVIN E. CARMICHAEL,        :  DISCRIMINATION PROCEEDING
               Complainant   :
          v.                 :  Docket No. SE 93-39-D
                             :  MSHA Case No. BARB CD 92-08
JIM WALTER RESOURCES, INC.,  :
               Respondent    :  No.  7 Mine
                             :  Mine I.D. 01-01401

                       DECISION ON REMAND

Before:  Judge Hodgdon

     On May 14, 1998, the Commission issued a decision vacating
my decision[1] and remanding the case for further analysis.
Marvin E. Carmichael, Docket No. SE 93-39-D (May 14, 1998).[2]
The Commission directed that I "consider the evidence adduced in
support of Carmichael's claim that he was discharged for refusing
to falsify a training form."[3]  Slip op. at 8.  The Commission
further instructed that I "address all record evidence relevant
to Carmichael's claim, with appropriate credibility
determinations, explaining the reasons for [my] decision."  Slip
op. at 8-9.  Finding that Carmichael has failed to meet his
burden of proof, I conclude that his case should be dismissed.

     Carmichael's case consisted of 11 pages of direct
examination in the transcript.  (Tr. 6-17.)  He called no other
witnesses and presented no other evidence.  He was never asked
what protected activity he claimed to have engaged in, why he
believed he had been suspended or whether he had been asked to
falsify a training form.  His counsel did not allude to such a
claim in his opening statement.  The only mention the Complainant
made of a training form occurred as follows:

          Q.  Can you tell the court what occurred to cause you
          to not work on this machine?

          A.  We were told that we were going to have to run
          this piece of equipment and that we were to be test
          [sic] trained by Mark Buzbee, and I told them that I
          had never run  this piece of equipment.

          I wasn't familiar with it.  I was actually  afraid of
          that piece of equipment, to operate it.  Besides that,
          we were told we had to sign the task training paper
          stating that you had been task trained on that.

          I asked if we could sign it under protest.  They
          said:  No, you cannot.

(Tr. 9.)

     The Complainant was not questioned on cross examination
about being asked to falsify a training certificate, nor did he
mention it.  There was no redirect examination.  However, after
sitting down, Carmichael retook the stand to relate an incident,
date unspecified, in which he claimed that an acquaintance of his
had been permitted to be task trained on a scoop under protest.
No details were provided.  (Tr. 30-31.)  With that, the
Complainant rested.

     Carmichael also testified in rebuttal to the company's case.
With regard to the training certificate, he testified as follows:

          Q.  After you met with Mr. Buzbee and before you met
          with Mr. Looney that day, Mr. Ken Looney, did Mr.
          Buzbee produce a copy of this form to you to have you
          sign it that you had been checked out?

          A.  Yes.  We did participate in the training with Mr.
          Buzbee.  The machine was not operating correctly.  We
          did participate in that and was still asked to sign
          that or we were terminated by Mr. Looney.

          There was nothing ever mentioned about Mr.
          Looney showing us the procedures of running the
          machinery on the section.

          Q.  You were asked to sign this form after you were
          checked out by Mr. Buzbee; is that correct?

          A.  Yes.  I asked if we could sign it under protest
          before we left the section.

          Q.  Who did you ask that of?

          A.  I asked Kenny Looney and I asked the other -- I
          can't remember -- Bruce, whatever his name is.  Bailey.

          Q.  Bailey?

          A.  Right.  We were refused to sign it under protest
          at all.

(Tr. 89-90.)

     In order to establish a prima facie case of discrimination
under Section 105(c) of the Act, a complaining miner bears the
burden of establishing (1) that he engaged in protected activity
and (2) 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 (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 (April 1981); Secretary on
behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (August
1984); Secretary on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508 (1981), rev'd on other grounds sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).  In this case,
the Complainant has not established that he engaged in protected
activity, that is, that he refused to falsify a training
certificate.

     Even if Carmichael's testimony were credible, he has failed
to present a prima facie case that he engaged in protected
activity by refusing to falsify a training certificate, much less
prove it by a preponderance of the evidence.  None of the
evidence he presented mentions anything about falsifying a
training certificate.  The statement given on direct examination
about signing the task training certificate is a true statement.
After being task trained, the miner signs the task training
certificate indicating that he has been task trained.  The
statement about signing it under protest was not elaborated upon.
The testimony on rebuttal is equivocal at best.  In short,
Carmichael not only did not offer any evidence in support of his
claim filed with MSHA, he did not even restate the claim itself
at the hearing.[4]

     Furthermore, the Complainant's testimony is not believable.
It does not appear that in most instances he was being
deliberately deceitful, but his testimony is lacking in detail,
filled with gaps, failures to remember and logical
inconsistencies and, thus, unreliable.  For instance, he
testified on cross-examination that he did not remember what a
super-section was or that at the time of the alleged
discrimination he was working on a super-section.  He stated
concerning the events in question:  "I remember some of it and
some what I have read on the documents there and what I have been
told by other people involved with me as to what happened to us
and to me."  (Tr. 19.)  When asked whether the other three miners
with him had filed a complaint with MSHA, he replied:  "I don't
know.  I don't remember filing a complaint, not with MSHA.  I
must have.  I don't remember it.  I must have."  (Tr. 25.)  When
asked whether he had been task trained on the scoop on the day he
returned to work, he claimed:  "I don't remember what day we went
back to work.  I don't remember what day we went back to work.  I
don't remember being task trained again.  I don't know."  (Tr.
26.)

     In at least one instance, I find that his testimony was
disingenuous.  The company was operating a super-section on the
No. 6 section.  It had five more men and more equipment on it
than a normal section.  However, because no scoop operators had
been assigned to the section, the roof bolters were being
required to work "out of classification" by operating a scoop
during periods that they were not roof bolting.  Several days
prior to the incident, the union had filed a grievance over this
procedure.  It is apparent that the four miners' refusal to be
task trained on the scoop was a job action brought about by their
disgruntlement at having to work out of classification.
Carmichael's claim that he did not remember that the union had
filed a grievance or that there was any such problem on the
section, a matter that was clearly a prominent topic at the mine,
is not only self-serving, in that it shielded him from having to
answer any questions on the subject, but also inherently
incredible.

     I am also skeptical of the Complainant's professed fear of
operating the scoop.  I find it hard to believe that a person who
had been a miner for 20 years and had, therefore, been around and
worked with innumerable scoops, would be afraid of one.  This
skepticism is increased by the fact that he had already been task
trained to operate a shuttle car, a similar type of equipment,
and a roof bolter.

     The Commission views Carmichael's rebuttal testimony, quoted
above, as "testimony that, subsequent to accepting the oral
portion of the training, he was terminated after refusing to
falsify a training form."  Slip op. at 7.   I understood
Carmichael's testimony, and that of Thrasher's, the company's
witness, as well, to be that refusing to sign the form was the
same thing as refusing to take the task training.  Nor did I
understand Carmichael to testify that he was ready and willing to
accept any training offered him, but that the company only
offered the "oral portion of the training" and then demanded that
he sign the training certificate to show that he had been task
trained.  However, if that interpretation is the law of this
case, then, in view of Carmichael's lack of credibility, I give
the testimony no weight.  Furthermore, there is no other evidence
in the record to corroborate such a claim.

     Sometime during the incident, at least one of the four
miners requested the presence of a union safety committeeman.
This request was refused.  As with most aspects of this case,
there is a serious lack of evidence in the record concerning this
request.  The union contract was not put into evidence, and
Carmichael did not present any evidence concerning under what
circumstances a miner could request a safety committeeman.
Therefore, there is no way of knowing whether the request was
valid or not.  While the request could have some tendency to
support Carmichael's claim that the miners were asked to falsify
training certificates, it could also have some tendency to
support the company's claim that the miners were doing everything
they could to avoid the training.  Therefore, without more
information, I conclude that the request is a neutral factor in
the case.

     It is unfortunate that the Complainant chose to rely solely
on his admittedly faulty memory in this case.  There clearly was
other evidence available.  The three other miners involved with
him still work for the company.  Carmichael stated that he still
talks to one of them, Bruce Ivey, "from time to time."  (Tr.
94-95.)  No explanation was offered as to why none of them was
called.  One reason, however, might be that they do not support
his claim.  In view of the fact that the union, although able to
reduce the suspension with intent to discharge to a 2-day
suspension with loss of pay, apparently did not pursue the matter
any further on the Complainant's behalf, it is entirely possible
that they do not.  One would expect that if a miner had suffered
adverse action for refusing to falsify a training certificate,
the union would be actively involved in attempting to right the
wrong.  The inference that no such thing occurred is made even
stronger by the fact that MSHA investigated his complaint
immediately after it was made, when memories were fresh, and
found that a violation of section 105(c) had not occurred.

     In conclusion, I find that the Complainant's insubstantial,
unsupported and uncorroborated assertions made at the hearing,
which require supposition as to what he meant to even associate
them with his initial complaint to MSHA, have not established
that he was asked to, and refused to, falsify a training
certificate and was suspended as a result thereof.  Consequently,
he has not shown that he engaged in protected activity which
entitles him to protection under the Act.

                              ORDER

     Accordingly, the complaint of Marvin E. Carmichael against
Jim Walter Resources, Inc., under section 105(c) of the Act, is
DISMISSED.


                              T. Todd Hodgdon
                              Administrative Law Judge


Distribution:

Mr. Marvin E. Carmichael, 101 Flint Hill Lane, S.W., Bessemer,
AL  35022 (Certified Mail)

Arnold W. Umbach III, Esq., Bradley, Arant, Rose & White, P.O.
Box 830709, Birmingham, AL 352803-0709 (Certified Mail)

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     [1]  Marvin E. Carmichael, 19 FMSHRC 770 (April 1997).

     [2]  Forthcoming as Marvin E. Carmichael, 20 FMSHRC 479
(May 1998).

     [3]  Carmichael was never actually discharged.  He was
suspended for 5 days with intent to discharge.  The suspension
was subsequently reduced to a 2-day suspension after which
Carmichael returned to work.

     [4]  He also did not raise the contention in his brief to
the Commission, instead stating that "the basis for his
discrimination claim was JWR's insistence that he operate the
scoop, a machine on which he had not been sufficiently trained."
Slip op. at 5.