<DOC>
[DOCID: f:wv200040o-2.wais]

 
EASTERN ASSOCIATED COAL CORP.
June 25, 2001
WEVA 2000-58-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 25, 2001


SECRETARY OF LABOR,               : DISCRIMINATION PROCEEDING
     MINE SAFETY AND HEALTH       :
     ADMINISTRATION, on behalf of :
      GARY DEAN MUNSON,           : Docket No. WEVA 2000-58-D
               Complainant        :           MORG-CD-2000-01
          v.                      :
                                  : Federal No. 2
EASTERN ASSOCIATED COAL CORP.,    : Mine ID 46-01456
               Respondent         :

                      DECISION ON LIABILITY

Appearances: Douglas  N.  White,  Esq.,  Associate  Regional
             Solicitor, U.S. Department of Labor, Arlington,
             Virginia, for Complainant;
             Rebecca Oblak Zuleski, Esq., Furbee, Amos, Webb &
             Critchfield, P.L.L.C., Morgantown, West Virginia, 
             for Respondent.

Before: Judge Zielinski

     This matter is before me on a complaint of discrimination
filed by the Secretary on behalf of Gar  Munson pursuant to
section 105(c)(2) of the Federal Mine Safety and Health Act of
1977 (the "Act"). 30 U.S.C. � 815(c)(2). The complaint seeks 
an order requiring Respondent, Eastern  Associated  Coal 
Corporation (EACC)  to  reinstate  Munson  as  an  employee 
and other  relief including back pay and benefits, as well 
as  a  civil penalty in the  proposed  amount  of  $8,500.00.
A  hearing  was  held  in Morgantown,  West  Virginia  on 
November 28, 2000 and the parties submitted briefs following 
receipt of the transcript.[1] The Secretary had previously  
filed  an  Application  for Temporary Reinstatement on behalf 
of Munson.  A hearing was held  on  the application and on
March  10, 2000, an order was issued directing that Munson be 
temporarily reinstated pending completion of the investigation 
of his allegations and final decision on any formal complaint 
that might be filed.[2]  The parties  have  stipulated  that 
the record  of  proceedings from the temporary reinstatement
hearing be included in  the record of this case.  For the 
reasons set forth below, I find that Respondent discriminated  
against Munson  in violation of the Act, and direct the 
parties to confer and attempt  to  reach  agreement  on the 
relief to be awarded to Munson and on the amount of an 
appropriate civil penalty.

                         Findings of Fact

     Gary  Munson  was  discharged from  employment  by  EACC  on
December 6, 1999.  He had  been employed by EACC for 28 years and
for the three years prior to  his  discharge held the position of
control  room  operator  in  the preparation  plant  working  the
afternoon shift.  Munson was a  good worker.  He was not regarded
as a person with attendance problems,  had no disciplinary record
and  there  were  no  complaints  about  his  work   performance.
Throughout  his  tenure with EACC, Munson was active in  bringing
complaints to management  about safety and union contract issues.
There is no dispute that he frequently raised safety concerns at,
or  in  conjunction with, weekly  safety  meetings  held  by  his
immediate   supervisors,   foremen   Stanley   Eddy   and  Donald
Livengood.[3]  When his safety concerns were not addressed  in  a
timely fashion, Munson complained about the inaction and told his
supervisors   that  he  would  call  the  complaints  in  to  the
Department  of Labor's  Mine  Safety  and  Health  Administration
(MSHA) on a confidential  complaint  line,  referred  to  as  the
"code-a-phone."   He  posted  the MSHA phone number openly at his
work station.  He also raised concerns  about inaction with union
officials  in  EACC's  safety  office  in the  presence  of  EACC
managers, stating that he would call MSHA  and had done so in the
past.  Munson's foremen had told him that his safety and contract
complaints could result in the mine being shut down.  Munson also
raised  safety  concerns  with  Frank Peduti, EACC's  manager  of
preparation  and  electrical  engineering.   Peduti  occasionally
called  meetings to discuss issues  and,  like  other  management
officials,  did  not like to have "code-a-phone" complaints made,
preferring that employees'  safety concerns be handled "in-house"
rather than through the more  disruptive "code-a-phone" complaint
process and its attendant investigation  by MSHA.  Munson did not
raise safety concerns through the formal union contract grievance
process because he was unaware that he could  file a grievance on
a safety complaint.


**FOOTNOTES**

     [1]: Respondent   sought   to   introduce   transcripts   of
depositions  of  Donald  Livengood,  Frank Peduti, Richard  Eddy,
Stanley  Eddy  and James Taylor.  The Secretary's  objections  to
those  exhibits  were   sustained  and  all  of  those  witnesses
subsequently testified at the hearing.  Following briefing, those
evidentiary rulings were  reviewed  and  the views of the parties
expressed  during  a recorded telephonic conference  on  June  7,
2001, were considered.   The  original  evidentiary  rulings were
reaffirmed.  See Commission Procedural Rule 1(b) and Fed. R. Civ.
P. 32(a) and 43(a).

                                1

     [2]: The  Temporary  Reinstatement  Proceeding was conducted
under Commission Docket No. WEVA 2000-31-D.

     [3]: As control room operator, Munson  was required to start
work 15 minutes earlier than other shift workers  and  was unable
to attend the safety meetings held at the beginning of the shift.
The foreman would generally speak individually with Munson  after
the  meeting,  giving  him  a  synopsis  of  the  meeting  and an
opportunity to provide input.


     Munson  did file grievances related to labor contract issues
and EACC records  showed that for calendar years 1998 and 1999 he
had filed 22 grievances over various labor matters, substantially
more than any other  miner  at  the  preparation plant.  Munson's
foremen had told him that his grievances  and  safety  complaints
could result in the plant being shut down.  Munson was authorized
by  the  union  to  accompany  MSHA and state mine inspectors  on
inspections   of   EACC's   surface  facilities.    Because   the
inspections  usually  started on  the  day  shift  and  initially
focused on the underground  operations, his involvement generally
lasted  only an hour or two, during  which  he  pointed  out  any
safety concerns then existing.  He performed this function when a
member of  the  union's safety committee was not available, which
limited his involvement  to no more than two or three inspections
in a year.

     The developments that  lead  to Munson's discharge commenced
on Friday, November 19, 1999, when  he did not report to work his
assigned  shift.   He  had told his foreman,  Stanley  Eddy,  the
previous day that he was  going  to  purchase a "four wheeler" on
the 19th and that he might have trouble  getting  to  work  if he
encountered  delay  in obtaining a title and registration for the
vehicle.  He was told  to come in if he was going to be less than
sixty minutes late.  A miner  could  report  tardy by up to sixty
minutes  without  significant repercussions.  Munson  encountered
delays in purchasing  and  registering  the  vehicle  and did not
report  to  work  on  November 19, 1999.  He did not call in  and
specifically report that he would not be in or request a personal
vacation day.   He was  not  scheduled  to  work that Saturday or
Sunday  and had applied for vacation days[4] for  Monday  through
Wednesday, November 22-24, 1999, to go hunting.  Like many of the
employees  at  EACC, Munson was an avid deer hunter and had taken
off that first week  of  the  firearm deer season, referred to as
"gun week," for several years.    Normal  mining  operations were
not  scheduled for the Thanksgiving holiday period,  November  25
and 26, 1999.

     In  accordance  with required procedure, his application for
vacation  days had been  submitted  prior  to  January  1999  and
decisions were  made  at  that  time  based  upon  the number and
seniority  of persons applying for vacation on a particular  day.
His request for vacation was approved for November 22 and 24, but
was denied for  the  23rd,  and  he  was  given a form noting the
decisions  made on his vacation requests.  He  inadvertently  had
referred to  his 1998 vacation leave schedule, mistakenly thought
that he had also been granted a vacation day on
November 23, 1999,  and did not come in to work.[5]  On the 18th,
Stanley  Eddy had inquired  who  was  going  to  be  working  the
following  short  Thanksgiving week, and Munson indicated that he
had scheduled days  off.   The fact that his vacation request for
the 23rd had been denied was  not  raised  at  that  time.  On or
around November 24, his foreman called him and asked that he sign
up to work the holiday on Friday, November 26, 1999.  Despite the
opportunity  for triple pay, he declined, but did agree  to  work
the following  day,  Saturday,  and  otherwise  worked his normal
schedule the following week.  At the beginning of  his  shift  on
December  6,  1999,  he was called to a meeting and served with a
letter advising him that  he  was  suspended  with  the intent to
terminate  his employment for missing two consecutive  work  days
without a viable excuse.

     The formal  policies  for addressing absenteeism at EACC are
found in the National Bituminous  Coal  Wage  Agreement  of 1993.
Article  XXII,  Section  (i)  "Attendance  Control"  provides  in
pertinent part:

       (4) Absences of Two Consecutive Days
         When any Employee absents himself from his work for
     a period  of  two  (2)  consecutive  days  without  the
     consent  of  the Employer, other than because of proven
     sickness, he may be discharged. * * *

The 19th and 23rd were  considered  consecutive  days for Munson,
even though there were intervening weekend days and one scheduled
vacation  day.   The  term  "two (2) consecutive days"  had  been
interpreted  in  a  prior  arbitration  proceeding  to  mean  two
consecutively scheduled work  days.   Not  surprisingly,  neither
Munson nor his foremen initially considered his absences to  have
been  on  consecutive  days.  As the language indicates, EACC had
the  discretion  to  terminate   an   employee   who  missed  two
consecutive  days, i.e., the significance of the word  "may"  was
that termination was "not automatic."

     Subsection  (2)  of  the  contract  describes a procedure to
address employees who accumulate unexcused absences.  An employee
who  accumulates  six  days of unexcused absences  in  a  180-day
period or three days of unexcused absences within a 30-day period
is  designated  an  "irregular   worker"   and   is   subject  to
"progressive steps of discipline."  If an "irregular worker"  has
an  unexcused  absence  within  180  days  of  his last unexcused
absence  he may be given a written warning, if another  unexcused
absence occurs  within  180  days  of  the  warning,  he  may  be
suspended  for  2  working  days and if another unexcused absence
occurs within 180 days of the  suspension,  he  may  be suspended
with intent to discharge.

     In  addition  to  these  formal policies, EACC had for  many
years applied an informal, procedure  referred to as "last chance
agreements."  Under this procedure, an  employee  who was subject
to discharge would be given a "last chance" to retain his job, by
entering  into  an agreement to maintain required attendance  and
possibly  take  other   actions  to  address  the  cause  of  his
absenteeism.  Whether an  employee  subject to discharge would be
given a last chance agreement was within  the discretion of EACC.
In  a 1989 arbitration decision, it had been  held  that  because
some  employees  had  been  discharged without being offered last
chance agreements, there was  no  legitimate  expectation  that a
last chance agreement would automatically be offered.  That  same
decision noted that in determining whether to offer a last chance
agreement,  the  employer considered factors such as, "whether an
employee's poor attendance  is  of  recent  origin  or has been a
longstanding  problem"  and  whether,  in light of the assurances
made by the employee, there was a reasonable  expectation that if
given a last chance agreement the employee "will  develop  into a
reliable member of the work force."[6]

     EACC  records  indicate  that  approximately  38 last chance
agreements  had been entered into between December 14,  1980  and
February 4, 1999.  A summary of the agreements indicated that the
underlying reason  for  the  disciplinary  action  was  generally
absenteeism.  On seven occasions the absenteeism was related to a
substance  abuse  problem.   Sixteen  of  the agreements involved
unexcused  absences  on  two  or more consecutive  days  and  the
discipline imposed in conjunction  with the last chance agreement
ranged from a 1-day suspension to an  18-day suspension.  In some
instances, it appears that employees were  allowed  to substitute
vacation or personal days in lieu of actual suspension.

     Examples  of  circumstances  in which last chance agreements
were entered into included a December  9,  1997 agreement with an
employee  who  had seven unexcused absences over  a  sixteen  day
period, including two absences of three consecutive days, because
he had misunderstood  that  his  vacation  day  requests had been
disapproved.  Another employee who had two consecutive  unexcused
absences  was  allowed  to enter into a last chance agreement  in
November  of  1998.  Other  examples  included  an  employee  who
misunderstood the consequences of consecutive absences because he
was considered  developmentally  slow;  an  employee  who  had  a
substance  abuse  problem  related  to  the death of his wife and
needed  only  a  short  period  of  employment   to  qualify  for
retirement; and, an employee who misunderstood the pre-scheduling
of vacation day policy, had vacation days available  to  take and
needed only one more year to qualify for retirement.

     The status of EACC's policy on last chance agreements at the
time  of  Munson's  discharge  was  the  subject  of  conflicting
testimony.   Bradley  Hibbs  had  become  the  operations manager
shortly  before  Munson  was  discharged.  Hibbs and  other  EACC
management officials testified that he had the final authority to
offer or withhold a last chance  agreement.   He  testified  that
last chance agreements were no longer viable at the mine.  In his
opinion  last chance agreements had "proven not to be successful"
and,  "if it  was  strictly  up  to  [him]"  they  would  not  be
available.   EACC's  responses  to  discovery also indicated that
Hibbs exercised final authority on the question of whether Munson
would  be offered a last chance agreement.   When  Stanley  Eddy,
Munson's foreman,  attempted to intervene following the discharge
and obtain  a  "second  chance" for Munson, he was told by Peduti
that last chance agreements  were  no  longer available. However,
despite his claimed "final authority" on  last chance agreements,
Hibbs  also  testified  that  each  case  was considered  on  its
individual facts and that his superiors might override a decision
to  deny  a  last  chance agreement.  Robert Areford,  the  Human
Resources Manager at the time, testified that he would "never say
never" to the availability of last chance agreements.

     On December 7,  1999,  Richard  Eddy,  the  union's district
president, was advised of the proposed termination action against
Munson.  He generally tried to resolve termination  cases  at the
earliest opportunity.  The following day he phoned Hibbs, who  he
had  known since childhood, to see if he could settle the case so
that Munson  could  keep  his job.  Hibbs said that he would call
Eddy back and did so a day or two later.  Hibbs told Richard Eddy
that the case could not be  settled.   Eddy  had handled a lot of
"worse  cases"  where last chance agreements were  entered  into.
When he asked Hibbs to explain why he would not settle the Munson
case, the response  was  that Munson was very outspoken on safety
and grievance issues, had  called  in code-a-phone complaints and
was not liked by his fellow miners and  supervisors.   Hibbs also
made  clear  that  the  determination  was not about absenteeism.
Richard  Eddy  disputed the comment about  Munson's  relationship
with other miners,  because  he  felt  that the union local was a
very close knit group.  He felt that Hibbs  was  more candid with
him than he would have been with other union officials because of
their  long-standing  relationship.   Subsequently, Richard  Eddy
handled another discharge case and was  told  by  Hibbs that that
case would not be settled, but could have been, had  it  not been
for  the  decision  in  Munson's  case.   In  November  of  2000,
following Hibbs departure from EACC, another miner who had missed
two consecutive days of work was allowed to enter the first stage
of the attendance control plan, rather than being discharged.

     When  an  employee  is  served  with  a  notice of intent to
terminate, the next step in the process is a meeting, referred to
as   a   "24-48   meeting,"   involving   management  and   union
representatives  and  the  employee at which various  issues  are
discussed, including the validity  of  the  asserted  grounds for
termination  and  any  mitigating  circumstances.   If management
determines  to  go forward with the termination, union  officials
also uniformly make every attempt they can to keep the employee's
job, including asking  for  a  last  chance agreement.  The 24-48
meeting on Munson's termination was held on December 9, 1999.  In
addition  to  Munson,  local union officials  James  Taylor,  Joe
Reynolds,  William  Deegan,   Vic  Alverez,  and  district  union
officials  Ricky Yanero and Jack  Rinehart  attended.   EACC  was
represented   by  Hibbs,  Peduti  and  Areford.   Munson  readily
admitted that he  was absent on the 19th because he was procuring
a vehicle and that  he mistakenly thought that he had an approved
vacation day for the  23rd.   He  questioned whether the absences
were on consecutive days, but that  issue was summarily dismissed
because of a previous arbitration decision.

     Union officials repeatedly asked  whether there was anything
short of termination that could be done  and  specifically  cited
prior successful last chance agreements as examples of discipline
short  of  discharge.   They, as well as Munson himself, expected
that he would be offered  a  last  chance  agreement  that  would
involve a period of suspension, substitution of vacation days for
the  days  he  missed  and  a  commitment  to  appropriate future
attendance.  Their expectations were based upon  their experience
with  the use of last chance agreements and their knowledge  that
Munson's  case compared quite favorably with other cases in which
last chance  agreements  had been entered into.  As Ricky Yanero,
the union board member who handled the case stated, although EACC
management  was concerned about  absenteeism,  they  acknowledged
that Munson was not a problem with respect to absenteeism.  Union
officials normally  looked  to  the miner's employment background
for mitigating factors and management  acknowledged  that  Munson
had  never  been  disciplined  and  there  were  no  problems  or
complaints  about  his  work.   He  had  made a mistake as to one
vacation day.  After recessing the meeting  for  a  few  minutes,
management representatives returned and Hibbs announced that EACC
would  proceed  with  the termination.  The union representatives
were surprised by Hibbs' decision.  Yanero felt that Munson had a
better record "by far" than many people who had been offered last
chance  agreements.  Feeling  that  the  "real"  reason  for  the
termination  decision had not been articulated, Yanero questioned
whether it had  anything  to  do with Munson's filing of contract
grievances.  Hibbs responded that  it  did  not.   Yanero's union
responsibilities did not involve safety issues and he was unaware
of Munson's involvement in safety issues until after the meeting.
Union officials indicated that the decision would be  arbitrated,
normally the next step in the process.  However, arbitration  was
not  pursued.    The decision not to pursue arbitration was based
on concerns about  the  merits of the case and the knowledge that
Munson intended to pursue  a  discrimination  complaint under the
Act.  They felt that the discrimination complaint  process  was a
preferable remedy because arbitrators were reluctant to deal with
claims based on statutory rights.[7]

     Following   Munson's   discharge,   the   number  of  safety
complaints  made  on  the  second  shift  declined  dramatically.
Miners discussed Munson's discharge and its relationship  to  his
safety   complaints  and  grievances.   They  also  voiced  their
expectation that Munson would be offered a last chance agreement.
However, Stanley  Eddy and Donald Livengood told them that it was
Munson's grievances  and  safety  complaints  that  got  him  "in
trouble,"  that  he  was  "done"  even  before  he was completely
discharged  and  that  he  would  not  be  offered a last  chance
agreement because there were no more last chance agreements.

     Munson  filed  a complaint of discrimination  with  MSHA  on
January 4, 2000, alleging  that he was discharged and was subject
to disparate treatment when  he  was  not  given  a  last  chance
agreement  because he had made numerous safety complaints to  his
immediate supervisors  and  had  informed  management that he had
made code-a-phone complaints to MSHA when his  safety  complaints
were  not satisfactorily addressed.  An Application for Temporary
Reinstatement  was  filed on Munson's behalf.  A hearing was held
on the application on March 7, 2000.  On arch  10,  2000,  an  
Order   was   entered  directing  Munson's reinstatement pending 
completion of the investigation of his MSHA complaint  and  a  
decision  on  any  subsequent   complaint   of discrimination  
that  might  be  filed  on  his behalf.  EACC and Munson  agreed 
that he would accept economic reinstatement,  i.e. continued 
receipt  of  pay  and  benefits,  in  lieu of actually returning 
to work.  The Secretary filed the instant  complaint on May 1, 
2000.  On  November 6, 2000,  Munson  filed  a  complaint  with
the   United   States  Equal  Employment  Opportunity  Commission
alleging that his  discharge  was  the  result  of discrimination
based  upon  his age.  The EEOC eventually issued a  decision  in
EACC's favor.

     There were  some  problems  with Munson's receipt of pay and
benefits  during  his  economic  reinstatement,   but  they  were
resolved  after discussions between the parties' representatives.
Munson also  later  determined  that he would prefer to report to
work, rather than continue on economic reinstatement.  One of his
concerns was the unavailability of  training.   EACC  declined to
alter   the   economic  reinstatement  agreement.   Frank  Peduti
explained that  there  were  concerns  about  whether an employee
involved  in  litigation  over  his  termination  could  maintain
adequate  attention  to  his job duties.  The Secretary  filed  a
motion  in  the  Temporary  Reinstatement   Proceeding,   seeking
enforcement of the Order entered in that case and maintains  that
EACC's determination not to allow Munson to return to work should
be  considered evidence of hostility to Munson's rights under the
Act and  should  be taken into consideration in the determination
of a civil penalty.

          Conclusions of Law - Further Factual Findings

     A  complainant   alleging   discrimination   under  the  Act
establishes a prima facie case by presenting evidence  sufficient
to support a conclusion that he engaged in protected activity and
suffered  adverse  action motivated in any part by that activity.
See Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Secretary of  Labor  on  behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds
sub nom. Consolidation Coal Co. V  Marshall,  663  F.2d 1211 (3rd
Cir. 1981); Secretary of Labor on behalf of Robinette  v.  United
Castle  Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).  The operator
my rebut the prima facie case by showing either that no protected
activity  occurred  or  that  the  adverse  action  was in no way
motivated by protected activity.  See Robinette, 3 FMSHRC  at 818
n. 20.  If the operator cannot rebut the prima facie case in this
manner, it nevertheless may defend affirmatively by proving  that
it  was  also  motivated  by the miner's unprotected activity and
would have taken the adverse  action for the unprotected activity
alone.  Id. at 817-18; Pasula,  2  FMSHRC  at  2799-800; see also
Eastern  Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639,  642-43  (4th
Cir. 1987) (applying Pasula-Robinette test).


**FOOTNOTES**

     [4]: With  his seniority level, he was entitled to specified
numbers of "graduated"  and "floating" days off.  In addition, he
was entitled to 5 "personal  days"  off,  which  he  did not need
management's permission to take.  It appears that as of  November
19, 1999, Munson had at least one personal day remaining.

     [5]: EACC argues that Munson's absence on November 23, 1999,
was not inadvertent, but, rather, was an attempt to secure  a day
off  to  which  he  was  not  entitled.   I reject that argument.
Following  his discharge, Munson prevailed in  an  administrative
claim for unemployment  compensation benefits that was opposed by
EACC.  The administrative  law  judge  who decided the claim held
that EACC had failed to prove that Munson had been discharged for
an act of misconduct.  Munson would not  have  been  paid for the
unexcused absence and could easily have preserved his  pay status
and taken the day off by taking one of his personal days.  All he
had  to do was to call in that morning and leave a message  on  a
recording  machine.   In  any  event,  there  is no evidence that
Munson's  termination  was  based  on  a  suspicion that  he  had
knowingly   subjected   himself  to  discharge  by   taking   two
consecutive, unexcused days off.

     [6]: Resp. Ex. 7, at pp. 15-16.

     [7]: Judging from the  1989  arbitration decision referenced
previously,  however,  it  appears  that  a  claim  of  disparate
treatment  in  the  administration of the  informal  last  chance
agreement policy might have been entertained by an arbitrator.


     Complainant  clearly  established  a  prima  facie  case  of
discrimination.   He   suffered   adverse   action  when  he  was
discharged  on  December  6,  1999.   He  frequently  engaged  in
activity protected by the Act, making safety  complaints  to  his
immediate  supervisors  and other officials of EACC.  A complaint
made to an operator or it's agent of "an alleged danger or safety
or  health  violation"  is specifically  described  as  protected
activity in � 105(c)(1) of  the  Act.   Munson  frequently raised
safety  issues  with his supervisors and, on occasion,  with  the
manager  of the preparation  plant.   He  also  freely  told  his
supervisors that he had and/or would phone complaints directly to
MSHA when  his  safety  concerns  were  not timely addressed.  In
addition  to  the findings made earlier, Daniel  Conaway,  EACC's
safety supervisor  acknowledged that he had heard that Munson had
phoned complaints to  MSHA.   I  accept  the testimony of Richard
Eddy and find that Hibbs believed that Munson had made complaints
to MSHA and find that Hibbs was well aware  of  Munson's frequent
raising of safety issues and contract grievances.

     There is also abundant evidence that Munson's  discharge was
motivated,  at  least in part, by his protected activity.   Aside
from the fact that  Munson was treated differently than similarly
situated miners with past absentee problems, Hibbs' statements to
Richard Eddy clearly  indicate  that  he  determined to discharge
Munson, in part, because of his protected activity.   As Munson's
foremen  told  his  fellow  workers  after the discharge, it  was
Munson's safety complaints and grievances that got him in trouble
and resulted in his discharge.

     The Commission has frequently acknowledged  that  it is very
difficult  to  establish  "a motivational nexus between protected
activity  and the adverse action  that  is  the  subject  of  the
complaint."   Secretary  on behalf of Baier v. Durango Gravel, 21
FMSHRC 953, 957 (September  1999).   Consequently, the Commission
has  held  that  "(1)  knowledge  of  the  protected  activity;
(2) hostility or animus towards the protected  activity;  and (3)
coincidence  in  time  between  the  protected  activity  and the
adverse   action"   are   all   circumstantial   indications   of
discriminatory  intent.  Id.  Here all three factors are present.
The  responsible  official   was   aware  of  Munson's  protected
activity,  was  hostile to it, and the  adverse  action  occurred
during the course of Munson's ongoing protected activity.

     EACC has vigorously disputed Munson's allegations throughout
the litigation.   It  argues  that  Munson's  raising  of  issues
involving safety with his immediate supervisors was not protected
activity  --  that only formal complaints to management, such  as
written  grievances  on  safety  issues  pursuant  to  the  union
contract,  constitute  activity  protected  under  the  Act.  Not
surprisingly,  Respondent  cites no authority for this remarkable
proposition.   Despite Respondent's  protestations,  informal  or
verbal raising of safety issues is activity protected by the Act.
The  record  is  replete  with  evidence  of  Munson's  protected
activity,  including   his  numerous  verbal  reports  of  safety
concerns to his foremen,  similar  complaints  to the preparation
plant manager and announcements to his foremen and to others that
he  had  phoned  complaints  to  MSHA.   There  is also  abundant
evidence,  as  noted  above, that EACC management officials  were
aware of Munson's protected activity.

     Respondent's primary  defense  is  that  the sole reason for
Munson's   termination   was  his  unexcused  absences   on   two
consecutive work days and  his  inability to advance "extenuating
circumstances"  that  would  have justified  something  short  of
termination,  e.g.,  a last chance  agreement.   This  contention
rebuts Munson's prima  facie  case,  in  that  it  is  urged that
Munson's  protected activity was not a factor in the decision  to
discharge him, and constitutes an affirmative defense, i.e., that
even if protected  activity was found to be a motivational factor
for Munson's discharge,  he would have been terminated solely for
his unprotected activity.   As  noted  above,  the first prong of
Respondent's argument is rejected because there is ample evidence
that Munson engaged in protected activity and that  his discharge
was  motivated,  in  part, by his protected activity.  The  issue
that must be resolved  with  respect  to Respondent's affirmative
defense  is  whether EACC would have discharged  Munson  for  his
unprotected activity alone.
As explained in  Ankrom v. Wolcottville Sand and Gravel Corp., 22
FMSHRC 137, 141-42 (Feb 2000):

     An operator bears  the burden of proving an affirmative
     defense to a discrimination  complaint.   Haro v. Magma
     Copper Co., 4 FMSHRC 1935, 1937 (Nov. 1982).  This line
     of defense applies in "mixed motive" cases, e.g., cases
     in  which  the  adverse  action  is  motivated by  both
     protected and unprotected activity.  Id.   The ultimate
     burden   of   persuasion   does   not  shift  from  the
     complainant.  Schulte v. Lizza Indus.,  Inc.,  6 FMSHRC
     8,  15  (Jan.  1984).  An operator may attempt to prove
     that it would have  disciplined a miner for unprotected
     activity   alone  by  "showing,   for   example,   past
     discipline  consistent  with  that  meted  out  to  the
     alleged discriminatee,  the miner's unsatisfactory past
     work record, prior warnings  to the miner, or personnel
     rules or practices forbidding the conduct in question."
     Bradley  v.  Belva Coal Co., 4 FMSHRC  982,  993  (June
     1982).  In reviewing  affirmative  defenses,  the judge
     must "determine whether they are credible and,  if  so,
     whether   they  would  have  motivated  the  particular
     operator as claimed." Id.

          A complainant may attempt to refute an affirmative
     defense by  showing  that  he  did  not  engage  in the
     unprotected   activities   complained   of,   that  the
     unprotected activities played no part in the operator's
     motivation,  or that the adverse action would not  have
     taken  place  in   any   event   for  such  unprotected
     activities alone.  Robinette, 3 FMSHRC  at  818  n. 20.
     Because  the ultimate burden of persuasion never shifts
     from  the  complainant,   if   a  complainant  who  has
     established  a  prima  facie  case  cannot   refute  an
     operator's   meritorious   affirmative   defense,   the
     operator prevails. Id.

     There  is  no  dispute  that Munson's unexcused absences  on
November 19 and 23, 1999, were unprotected activity and that EACC
had  the discretion under the personnel  rule  specified  in  the
union  contract  to  discharge  him  for  that  activity.   I  am
persuaded, however, that EACC's claim that Munson would have been
terminated for the unprotected activity alone is not credible and
that  the  termination  would not have occurred in the absence of
Munson's protected activity.   This  determination  is based upon
the conflicting explanations of the discharge decision offered by
Hibbs,  the  evident disparity between the treatment accorded  to
Munson and that  accorded  to  other  miners  who had two or more
consecutive  unexcused  absences, and admissions  made  by  Hibbs
regarding his motivation for Munson's termination.

     Hibbs is a key figure  because  it  was his determination to
discharge Munson rather than offer him a last chance agreement or
some other discipline short of discharge.   He  has  provided  at
least three explanations as to why Munson was discharged: 1) last
chance  agreements  were no longer available at EACC; 2) he never
considered a last chance  agreement  for  Munson  because  he was
never  asked to; and 3) there were no "extenuating circumstances"
to justify  offering  him  one.    Hibbs'  conflicting  testimony
substantially undermines his credibility.

     I find none of the explanations credible.  While EACC argues
that  there  "is no long standing Company policy and/or procedure
entitled `last  chance  agreements,'"[8] it clearly employed last
chance  agreements  over  the   course  of  many  years  on  some
consistent basis.  As the arbitration  decision  upon  which EACC
relies notes, in situations involving unexcused absences  factors
used  in  determining  whether  to  offer a last chance agreement
included  the  miner's attendance record  and  an  assessment  of
whether the employee  would develop into a reliable member of the
work  force.   There was  no  evidence  that  prior  to  Munson's
discharge Hibbs  or  anyone  else  at  EACC  communicated  to the
miners,  their  union  representatives, or anyone else, that last
chance agreements would  no  longer be available.  While there is
evidence  that  EACC was more closely  scrutinizing  last  chance
agreements,  such  agreements  were  available  at  the  time  of
Munson's discharge,  one could have been offered to Munson and it
was Hibbs' decision whether or not to do so.[9]

     Hibbs' testified  at  the Temporary Reinstatement Proceeding
hearing that he made no decision  on  whether  to  offer Munson a
last  chance agreement because he was never asked to  do  so  and
that he  never considered a last chance agreement for Munson.[10]
That testimony  is directly contradicted by virtually every other
participant in that  meeting, including EACC's officials.  One of
the union officials, James  Taylor,  was present at the Temporary
Reinstatement hearing and questioned Hibbs subsequently as to how
he  could  so  testify  when  last  chance  agreements  had  been
discussed and there had been repeated requests for an alternative
to discharge.  Hibbs responded that he so testified  because  no-
one  at  the  24-48  meeting used the specific words "last chance
agreement."  The weight  of  the  evidence  is  that  last chance
agreements were specifically discussed.  In any event,  there  is
no  question  that  the union officials at the 24-48 meeting made
repeated requests for,  what  all  in  attendance including Hibbs
understood  to  be, a last chance agreement  for  Munson.   Those
requests were considered  and  rejected.   Richard  Eddy  made  a
similar request in his conversation with Hibbs.

     The  explanation  ultimately  relied  on by Respondent, that
there were no "extenuating circumstances" to justify the offering
of a last chance agreement, also lacks credibility.  While Munson
could not proffer an acceptable excuse for his  two  absences, he
had  worked  for  EACC  for  some 28 years and made a mistake  in
believing that he had an approved  vacation  day  on a day he had
traditionally   taken   off   in   the   past.[11]   The  factual
circumstances  presented by Munson compared  favorably  to  those
that EACC had determined  in  the past to constitute "extenuating
circumstances" justifying a last chance agreement.

     EACC  argues  that Munson was  treated  the  same  as  other
employees who were discharged for violating the provisions of the
union contract.  Its  argument  is  based on testimony that there
had been past instances where other miners  had  been  terminated
without being offered last chance agreements.  That fact was also
noted in the arbitrator's decision previously discussed and there
is  little  doubt  that  some  transgressions could be of such  a
nature to cause EACC to terminate employment with finality.  What
EACC completely failed to prove, however, is that any such miners
were  situated  similarly  to Munson,  i.e.,  instances  of  past
discipline consistent with that  meted out to Munson.  Respondent
offered no evidence of any specific  instance  where  a miner was
terminated  without  being offered a last chance agreement.   The
only evidence concerning  miners  situated  similarly  to Munson,
i.e.,  with  two or more consecutive unexcused absences, is  that
they were offered  last  chance  agreements.   Neither Taylor nor
Richard  Eddy, long-time union officials, could recall  any  case
involving  such  absences  where  a last chance agreement had not
been  entered  into and a third official,  Yanero,  testified  at
deposition that  it  was  rare  that a case involving absences on
consecutive days would be taken to  discharge, citing no instance
when  that had actually occurred.  The  records  of  last  chance
agreements  include  numerous  instances  where there were two or
more  days  of  consecutive absences, often with  other  negative
factors.


**FOOTNOTES**

     [8]: Respondent's brief, p. 3.

     [9]: There is  evidence  that  EACC has not entered into any
last chance agreements since Munson's  termination,  although one
miner was recently given an alternative to termination  that  was
not called a last chance agreement.  Based upon Hibbs' statements
to  Richard  Eddy regarding a subsequent case, I find that to the
extent that EACC  had  a policy precluding the use of last chance
agreements,  it  was  a  policy  implemented  following  Munson's
discharge  as a necessity to  support  its  defense  against  his
allegations.

     [10]: Hibbs  did  not  testify  at  the  November  28, 2000,
hearing.  His subsequent deposition was introduced into evidence.

     [11]:  As  to  his  first  absence, Peduti observed that  if
Munson had personal days available,  he  should  have  made  some
attempt  to contact management when he realized that he would not
be coming  into  work.   However, Munson had told his foreman the
day  before  of  his planned  activities  on  the  19th  and  the
possibility that he  might  be  absent.   While this may not have
been  adequate to excuse his absence, management  had  reason  to
anticipate his absence and the reasons therefore.
     Munson's primary theory to establish unlawful discriminatory
motivation  by  EACC  was  that  he  was  subjected  to disparate
treatment.   The  most  critical  element  of  EACC's affirmative
defense,  on  the  facts  of this case, was that Munson  was  not
treated disparately - that his discharge was consistent with past
discipline.   It completely  failed  to  rebut  Munson's proof of
disparate treatment or establish consistent past discipline.

     I have little trouble concluding that Munson  was subject to
disparate treatment.  I accept the testimony of the several union
officials that expressed surprise that Munson was not  offered  a
last  chance  agreement  because  his  case  compared  favorably,
sometime  much  more  favorably,  to  prior  cases  in which such
agreements  had  been offered.  Munson also easily satisfied  the
factors cited in the  arbitration decision.  His absentee problem
was of recent origin, a one-time occurrence, and there was little
doubt that he would be  a  reliable  member  of the work force if
offered   such   an   agreement   because   he  had  conclusively
demonstrated his competence and reliability over  the  course  of
his twenty-eight years of employment.

     Hibbs'   statements   to  Richard  Eddy  evidence  his  true
motivation.  Hibbs made clear  that  Munson's termination was not
about   absenteeism.    While   Munson   was   not   an   elected
representative  of  miners,  he  was  relatively outspoken  on  a
variety of issues and occasionally voiced  complaints  that other
miners  had  brought  to  his  attention.   He  frequently raised
complaints  involving  safety  issues  as well as union  contract
issues.  I find that Munson's complaints about safety issues were
a significant motivational factor in Hibbs' decision to terminate
him and that, in the absence of that factor,  he  would  not have
been  terminated,  but  would  have  been  offered  a last chance
agreement or some other discipline short of termination.

     Respondent  makes much of the fact that neither Munson,  who
testified that he  was  somewhat in shock, nor anyone on Munson's
behalf, raised a claim of  discrimination or otherwise complained
that  his  discharge  was  motivated  by  his  making  of  safety
complaints, until after the  discharge process was completed.  It
argues that his complaint of discrimination  is nothing more than
an  after-the-fact  attempt  to gain access to another  forum  to
challenge  his  discharge.  I find  little  significance  in  the
timing of Munson's  allegation.  He filed his complaint with MSHA
some 26 days after the  24-48  meeting,  well  within the 60 days
provided  in  the Act.[12]  Munson and the union officials,  even
Munson's foreman,  fully  expected  that he would not actually be
discharged and it was only at the conclusion  of  the December 9,
1999,   meeting   that   they   found  out  otherwise,  to  their
considerable  surprise.   The  motivational   nexus  between  his
protected activity and the adverse action was not  overtly stated
and  may  well  have  not been realized or suspected immediately.
Even if it had been, there  was  a  limited  opportunity to raise
such  an  issue  and  virtually  no  prospect  of  changing   the
outcome.[13]

     Respondent also argues that Munson's later filing of an EEOC
age   discrimination  complaint,  that  did  not  also  refer  to
discrimination  based  on  activity protected by the Act, somehow
undercuts the credibility of  his  present  claims.  It is hardly
surprising,   however,   that   his   respective   discrimination
complaints were each raised in the forum that had jurisdiction to
hear  them.   It  is also unremarkable that Munson believed  that
there may have been  more  than  one  unlawful motivation for his
discharge.   Under  the  federal rules a party  is  permitted  to
assert  alternative, and even  inconsistent,  legal  and  factual
allegations  in  a  single pleading.  See Independent Enterprises
Inc. v. Pittsburgh Water and Sewer Authority, 103 F.3d 1165, 1175
(3rd Cir. 1997).  Munson's  age discrimination complaint does not
undercut his present claims in the slightest.

                              ORDER

     Respondent  discriminated   against   Complainant   when  it
discharged  him  because of his activities protected by the  Act.
The parties are ORDERED to confer within 21 days from the date of
this decision in an  attempt  to  reach agreement on the specific
relief to be awarded, including the  amount  of  a civil penalty.
In discussing the civil penalty issues, the parties  are  advised
that  I reject the Secretary's argument that EACC's determination
to decline  Complainant's  request to return to work, rather than
continue  on  the  agreed-to  economic  reinstatement,  evidences
hostility toward Complainant's  rights under the Act.  Given this
decision  establishing  Munson's  entitlement   to   relief,  any
agreement as to the scope of that relief will not preclude either
party from appealing this decision.

     It is FURTHER ORDERED that within 30 days after the  date of
this  decision,  the  parties  shall submit any stipulations that
they may have entered into as to  appropriate  relief  and  their
respective   positions   on   any  contested  relief  provisions.
Arguments  as  to  contested  issues   shall  be  supported  with
references  to  the record, affidavits, and  citations  to  legal
authority, as appropriate.  If either party requests a hearing on
remedial  issues,   such  request  shall  identify  the  specific
issue(s) on which a hearing  is  deemed  necessary  and provide a
proffer  of  the  evidence intended to be introduced.  The  other
party shall submit  a  similar  proffer  within  five  days.  Any
hearing on remedial issues will be scheduled expeditiously.

     Jurisdiction  of  this  case  is retained by the undersigned
Administrative Law Judge.  This is not  a  Decision  of the Judge
within the meaning of Commission Procedural Rule 69(a).
29  C.F.R.  �  2700.69(a).    It will not become a final decision
until a supplemental decision is  issued  resolving all remaining
contested issues and awarding specific relief.


                              Michael E. Zielinski
                              Administrative Law Judge


Distribution:

Douglas  N.  White,  Esq.,  Associate  Regional  Solicitor,  U.S.
Department of Labor, 4015 Wilson Boulevard, Suite 516, Arlington,
Virginia 22203 (Certified Mail)

Rebecca Oblak Zuleski, Esq., Furbee, Amos,  Webb  &  Critchfield,
P.L.L.C.,  5000  Hampton  Center,  Suite 4, Morgantown, WV  26505
(Certified Mail)

/mh


**FOOTNOTES**

     [12]: 30 U.S.C. � 815(c)(2).

     [13]:  When  Yanero suspected that  the  "real  reason"  for
Munson's termination  was  not  being  voiced  at the meeting, he
questioned  whether it had anything to do with Munson's  contract
grievances (he was unaware of his safety complaints) and received
the curt reply that it did not.