.
ENERGY WEST MINING COMPANY
June 29, 1999
WEST 97-155-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 Skyline, Suite 1000
                       5203 Leesburg Pike
                  Falls Church, Virginia 22041

                          June 29, 1999

SECRETARY OF LABOR,             : DISCRIMINATION PROCEEDINGS
    MINE SAFETY AND HEALTH      :
    ADMINISTRATION (MSHA),      : Docket No. WEST 97-155-D
    ON BEHALF OF                : Docket No. WEST 97-156-D
    MICHAEL PODOLAK,            : Docket No. WEST 97-157-D
    RODNEY DAUGHTERY,           : Docket No. WEST 97-158-D
    CALVIN BENNETT,             :
    LYNDON GARDNER,             : MSHA Case Nos. DENV CD 96-15
                                :  and
                  Complainants  : MSHA Case Nos. DENV CD 96-16
             v.                 :
                                :
ENERGY WEST MINING COMPANY,     :
                  Respondent    :
                                :
SECRETARY OF LABOR,             : DISCRIMINATION PROCEEDING
    MINE SAFETY AND HEALTH      :
    ADMINISTRATION (MSHA)       : Docket No. WEST 99-56-D
     ON BEHALF OF               :
    MICHAEL PODOLAK,            :
                  Complainant   : MSHA Case Nos.  DENV CD 98-02
                                :
           v.                   : Trail Mountain Mine
                                : Mine ID 42-01211
ENERGY WEST MINING COMPANY,     :
                  Respondent    :


                  DECISION APPROVING SETTLEMENT

Before: Judge Hodgdon

     These cases are before me on Complaints of Discrimination
under section 105(c) of the Federal Mine Safety and Health Act 
of 1977, 30  U.S.C.  § 815(c).  The parties, by counsel, have 
filed a motion to approve a settlement agreement.

                            Background

     On July 18, 1996, Energy West employees Michael Podolak,
Rodney Daugherty, Calvin Bennett  and  Lyndon  Gardner  filed
discrimination complaints with the  Mine  Safety  and  Health
Administration (MSHA) alleging that the company had  violated
their rights under the Act by announcing at a May 1996 meeting
that employees on the graveyard  shift  would  no  longer  be  
permitted to withdraw  from  welding or cutting fumes. On the 
same day, Mr. Podolak filed a  separate  complaint  alleging  
that Energy West had discriminated  against  him on  June 26, 
1996, by requiring him to remain in welding fumes after he
had informed his supervisor that he had been made ill by the 
fumes. On October 6, 1997, Podolak filed an additional complaint
asserting that Energy West had discriminated against him for 
his earlier protected activity by transferring him from his  
regular job on the longwall set-up crew to a position on a 
rotating shift labor pool, with the result that he suffered a
loss of  shift differential pay and other benefits.

                          The Agreement

     Energy West has agreed to settle the  cases  by paying civil
penalties of $1,000.00 each for the section 105(c) violations in 
Docket Nos. WEST 97-155-D, WEST  97-156-D, WEST  97-157-D  and  
WEST 97-158-D. The Secretary has agreed to move for the withdrawal
of the complaint in Docket No. WEST 99-56-D, with the  agreement 
of Mr. Podolak. To reduce the likelihood that such problems will 
be repeated, the company has agreed to post, for a period of 45 
days, on the mine bulletin board where notices to employees are 
normally posted, a "Notice to All Miners" clarifying its position
on withdrawals from welding or cutting fumes and acknowledging  
that "given the wide range of variables involved, it is possible
that there  could  be  circumstances  in  which  a  miner  may
reasonably believe the welding, cutting (burning) fumes he or 
she is assigned to work in are dangerous." Finally, Energy West
agreed to pay to Mr. Podolak $1,415.00 for wages he lost as a
result of his transfer from the graveyard shift longwall set-up
crew (by separate check with appropriate deductions), plus an
additional $500.00 to  reimburse  his  expenses  incurred  in  
connection with this litigation.

                              Order

     Having considered the representations and documentation
submitted, I conclude that the proffered settlement is 
appropriate under  section  105(c) the criteria set forth in 
section 110(i) of the Act, 30 U.S.C. § 820(i) is and in
the public interest. Accordingly, the motion for approval of
settlement is GRANTED, the Secretary's Motion to Withdraw the
complaint in Docket No. WEST 99-56-D  is  GRANTED  and  that 
Docket is DISMISSED and the Respondent is ORDERED to carry
out its obligations under this agreement and TO PAY  civil 
penalties of $4,000.00  within 30 days of the date of this 
order.


                                   T. Todd Hodgdon
                                   Administrative Law Judge


Distribution:

Edward  Falkowski, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716

Thomas C.  Means,  Esq.,  Crowell  &  Moring,  1001  Pennsylvania
Avenue, N.W., Washington, D.C. 20004

/nj