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[DOCID: f:wv200081.wais]

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TRI-COUNTY MINING, INC.
August 8, 2000
WEVA 2000-81-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                         August 8, 2000

SECRETARY OF LABOR,                  :  TEMPORARY REINSTATEMENT
  MINE SAFETY AND HEALTH             :  PROCEEDING
  ADMINISTRATION (MSHA),             :
  on behalf of ROGER DALE DAMRON, II :  Docket No. WEVA 2000-81-D
                    Complainant      :  HOPE CD 2000-08
                                     :
             v.                      :  Mine No. 1
                                     :  Mine I.D. No.  46-08564
TRI-COUNTY MINING, INC.,             :
                    Respondent       :

          DECISION AND ORDER OF TEMPORARY REINSTATEMENT

Appearances:  Elizabeth  Lopes  Beason, Esq., Office of the Solicitor,
              U.S.  Department  of Labor, Arlington, Virginia, for
              Applicant;
              Roger  L.  Kirk, President, Tri-County  Mining,  Inc.,
              Breeden, West Virginia, Pro Se.

     This  case  is before me on  an  Application  for  Temporary
Reinstatement filed by the Secretary of Labor, acting through her
Mine Safety and Health  Administration (MSHA), on behalf of Roger
Dale Damron, II, pursuant  to  section 105(c) of the Federal Mine
Safety  and  Health  Act  of  1977,  30  U.S.C.  �  815(c).   The
application seeks reinstatement of Mr.  Damron  as an employee at
Mine  No.  1,  operated  by Tri-County, pending a decision  on  a
discrimination complaint he  has  filed with MSHA.  A hearing was
held on August 2, 2000, in Logan, West Virginia.  For the reasons
set forth below, I grant the application  and  order Mr. Damron's
temporary reinstatement.

     At the hearing, the parties announced that  an agreement had
been  arrived  at  concerning Mr. Damron's application.   At  the
present time, most employees  of  Tri-County  have been laid-off.
Only  a  few  have  been  called back so far.  Consequently,  the
agreement   provides,   not   for   the   Applicant's   immediate
reinstatement, but for the order  in which he will be recalled to
work.

     The parties have agreed that Jerry  Copley, who is presently
laid-off, has been an employee of Tri-County  longer  than Damron
and  that, therefore, when Tri-County needs to fill the  position
of drill  operator  or  truck  driver, Copley will be offered the
position.  If Copley turns it down,  it  will  then be offered to
Mr. Damron.  If Copley takes the job, Damron will  be offered the
next position, for which he is qualified, that becomes available.
Mr.  Damron  is  qualified as a truck driver, drill operator  and
general utility worker.  When recalled, Mr. Damron agrees that he
will perform a pre-operational  check on any equipment that he is
asked to operate and will report  any  unsafe  condition  to  the
operator,  so that the operator has an opportunity to correct the
condition.

     In accordance  with  the  agreement,  I  conclude  that  Mr.
Damron's  complaint  has not been frivolously brought and that he
is entitled to be temporarily reinstated as agreed upon.

                              Order

      The motion to approve  settlement  is  GRANTED.  Tri-County
Mining, Inc., is ORDERED TO REINSTATE Mr. Damron  as  provided in
the agreement.


                              T. Todd Hodgdon
                              Administrative Law Judge


Distribution:

Elizabeth  Lopes  Beason,  Esq.,  Office  of the Solicitor,  U.S.
Department of Labor, 4015 Wilson Boulevard, Suite 516, Arlington,
VA 22203 (Certified Mail)

Roger L. Kirk, President, Tri-County Mining,  Inc.,  P.O. Box 03,
Breeden, WV  25666

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