<DOC>
[DOCID: f:wv9782.wais]

 
CONSOLIDATION COAL COMPANY
May 13, 1998
WEVA 97-82-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                          May 13, 1998

SECRETARY OF LABOR,          :  DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH     :
  ADMINISTRATION (MSHA),     :  Docket No. WEVA 97-82-D
    on behalf of             :  MSHA Case No. MORG CD 96-03
    DONALD E. ZECCO,         :
             Complainant     :
                             :
          v.                 :
                             :
CONSOLIDATION COAL COMPANY,  :  Mine ID No. 46-01318
             Respondent      :  Robinson Run No. 95 Mine

                            DECISION

Appearances:  Gretchen M. McMullen, Esq., Office of the
              Solicitor, U.S. Dept. of Labor, Arlington,
              Virginia, for the Complainant; Elizabeth S.
              Chamberlin, Esq., Consolidation Coal Company,
              Pittsburgh, Pennsylvania, for the Respondent.

Before:  Judge Melick

     This case is before me upon the complaint by the Secretary
of Labor , on behalf of Donald Zecco, under Section 105(c)(2)
of the Federal Mine Safety and Health of Act of 1977,
30 U.S.C. � 801 et seq., the "Act."  The Secretary alleges that
the Consolidation Coal Company (Consol) violated Section
105(c)(1) of the Act, when it transferred Mr. Zecco, a continuous
miner operator, from a production section to a construction
project.[1]

     The Secretary maintains that Consol transferred  Zecco "in
retaliation for making repeated safety complaints about
conditions and for running in a safe and cautious manner during
adverse conditions on the 6D Section."  (Complainant's Brief
p.2)[2].  The Secretary seeks a finding that Consol discriminated
against Zecco and petitions for a civil penalty of $8,000.00.[3]
The significant evidence in this case is largely uncontradicted.
It is the inferences to be drawn from that evidence concerning
which the parties disagree.

     Donald Zecco had worked for Consol at the Robinson Run No.
95 Mine for 23 years and had been classified as a continuous
miner operator for 15 years.  In October 1995, Zecco was assigned
to the 6D Section as a continuous miner operator on the midnight
shift.  There were adverse mining conditions in the 6D Section
faced by all three shifts.  There was sulfur in the coal seam,
high levels of methane gas, water and bad roof.  The sulfur
caused sparks to fly off the barrel of the continuous mining
machine and caused damage to its bits.  At times, these sparks
caused a ring of fire at the head of the miner.  The methane
level, particularly in the No. 3 entry, was purportedly so high
that the 1% warning light on Zecco's continuous miner would light
every time Zecco started a cut.  By law, Zecco was then required
to de-energize the miner and check the methane level until the
level returned below 1%.

     Zecco testified that the combination of sparks flying from
the sulfur, float coal dust from mining activity, and methane,
caused a serious hazard of an ignition or explosion.  In order to
correct the conditions and prevent an explosion or ignition,
Zecco and his crew took extra safety measures.  Zecco testified
that he stopped to rock dust every 20 feet, rather than every 40
feet as required by law; he kept the continuous miner washed to
suppress the float coal dust; and he checked for methane with a
hand held monitor every 10 minutes, rather than every 20 minutes
as required by law.  Zecco maintains that he also checked the
ventilation tubing more often and sometimes hung extra
ventilation curtain to improve the air in the face area.

     Zecco testified that these additional safety precautions,
and the maintenance caused by sulfur damage to the bits, caused
delays in mining the 6D Section.  The monthly production records
for October 1995 show that the three shifts on the 6D Section
produced 46.3 average feet per shift, while the 7D Section
produced 72.4 and the 8D Section produced 69.4 average feet per
shift.  However, Zecco's crew produced 5-10 feet per shift of
coal less than the day and afternoon shifts on the 6D Section.
In October 1995, the midnight shift on the 6D Section produced
3.4 average feet per shift less than the day shift, and 10
average feet per shift less than the afternoon shift.  (Resp.'s
Exh. 4).  In November and December 1995, the difference in
production between the midnight and day and afternoon shifts on
the 6D Section was also approximately 5 to 10 feet.  (Resp.'s
Exh. 4).  Complainant maintains that the day and afternoon
shifts, which faced similar conditions on the 6D Section , were
able to maintain higher production levels, because lower
barometer pressure at night caused more methane to be liberated
on their shift.

     In early October 1995, Zecco checked the 6D Section
auxiliary fan and felt that it was not pulling enough air to
the section.  The fan had a 40 horsepower motor whereas the
other section fans had 50 horsepower motors.  Zecco claims
that he reported the lower power fan to Maintenance Foreman
Mike Preolitti, that Preolitti checked the fan and agreed that
it had a 40 horsepower motor.  Zecco claims that Preolitti
also told him that all the fans in the mine were supposed to
have been changed to 50 horsepower motors.  Preolitti said
he would see about obtaining a 50 horsepower fan motor for the
6D Section.  Preolitti did not recall talking to Zecco directly
about the 6D Section fan.  He learned about the 40 horsepower
motor from Consol Safety Inspector Phil Morgan and had Morgan
check the ventilation.  The ventilation was within legal
parameters.  Preolitti thought that all the fans had already
by then been converted to 50 horsepower motors.  According to
Preolitti, as soon as a 50 horsepower fan became available it
was installed.

     Zecco maintains that in mid-October he also spoke several
times to Consol Safety Inspector Phil Morgan about the
inadequacies of the 6D Section fan.  Morgan checked the section
ventilation with a pitot tube and found it to be within legal
limits.  He nevertheless told Zecco he would make arrangements to
obtain a 50 horsepower fan.  Meanwhile he had Zecco's crew clean
the dirt from the fan shroud to improve the existing ventilation.

     In mid-November, Zecco spoke to Assistant Mine
Superintendent Rodney Poland about the 6D Section fan and
about the methane and sulfur problems.  Zecco maintains that
he also told Poland that he was required to shut down the
miner at 1% methane, and that he would not run the miner with
the warning light activated.  Zecco purportedly also told
Poland that in order to improve production on the 6D Section
Poland needed to work with the crew and get the methane under
control.  Zecco also claims that he told Poland that the
section ventilation fan was directly related to the methane
problem and that a bigger fan would provide more air to
the face.  Poland recalled that Zecco reported the size of the 6D
fan but he could not recall other details of the conversation.
He relied on Zecco's recollection.

     Zecco also claims that in early November he spoke to Mine
Superintendent Walter Scheller about the 6D ventilation fan and
the methane and sulfur conditions on the section.  Zecco
maintains that, in total, he complained to management 10 to 12
times about the section fan and the methane and sulfur
conditions.  It is undisputed that the fan motor was in fact
changed to 50 horsepower in January 1996, after Zecco had been
transferred off the section and that 70 horsepower fans were
later installed on all the sections.

     Zecco testified that in mid-November, Section Foreman Titus
held a meeting with the 6D crew concerning production.  Titus
told the crew that Poland had said that production was down and
needed improvement.  Titus said he had asked Poland to observe
the conditions on the 6D Section for himself but he declined and
said he did not want any excuses, he only wanted production to
improve.  Zecco felt they were trying to get the miners "to do
things that we shouldn't be doing."  At the same time Zecco
acknowledged that he understood they were not being asked to mine
unsafely.  Titus testified, moreover, that he understood that
Poland's criticism related to the fact that the other shifts
faced the same conditions as their shift but were producing more
coal.

     On December 15, 1995, Zecco saw the realignment sheet posted
at the mine indicating  he would be transferred from the Oakdale
Portal to the Robinson Run Portal to work as a continuous miner
operator on a construction crew.  Zecco also noted that John
Belcastro was transferred from the Robinson Run Portal to a miner
operator position at the Oakdale Portal.  Zecco testified that he
was the most senior continuous miner operator on the  midnight
shift, and that Belcastro was the least senior.  Zecco protested
his assignment to Assistant Superintendent Poland on the morning
of December 16.  On December 18, when Zecco learned that he was
still assigned to the Robinson Run Portal, he filed a grievance
claiming he was improperly realigned and had a seniority right to
remain on an active production section.  Zecco testified that the
seal construction project at the Robinson Run Portal was a
special project, and that the past practice at the mine was to
"ask the oldest and force the youngest."

     Zecco claimed that, according to the Contract, priority for
jobs is based on seniority and that the most senior  continuous
miner operator has a right to work in that position.  At the time
of the realignment, the three most senior continuous miner
operators, Zecco, Garcia, and O'Dell, were working at the Oakdale
Portal on active mining sections, and the least senior continuous
miner operator, Belcastro, was working on the D-haulway project
at the Robinson Run Portal.

     Zecco testified that even though his assigned job
classification at the seal construction project remained as
continuous miner operator, when he filed his grievance he did not
believe he would be operating a miner at the Robinson Run Portal.
Zecco never in fact did run a continuous miner from the time he
was transferred on December 16, until he was transferred back to
the  Oakdale Portal on February 20, 1996.  Rather he performed
unclassified, general insider laborer duties, including digging
ditches, building cribs, walking seals in low top, pumping water
from seals, dragging posts in low top and setting posts, carrying
old belt structure, shoveling belt spillage, and shoveling snow
out of the mine entrance.  According to Zecco, this work was more
physically demanding and the conditions were worse than in his
prior position.  He had to walk long distances bent over due to
the low clearances and occasionally had to wear hip waders
because of water conditions.

     From February 20, 1996, when he returned to the Oakdale
Portal, until October 1996, when the grievance was finally
settled, Zecco was assigned various duties on the production
sections.  He substituted for other continuous miner operators,
built cribs, helped with a longwall move and operated other
mining equipment.  Belcastro continued to operate the continuous
miner on a permanent section during this period.  In October
1996, when Zecco was reassigned to a production section,
Belcastro was assigned as floating continuous miner operator.

     Zecco testified that at his first grievance meeting, Poland
told him that he was transferred because of his low production.
According to Zecco, at the next grievance meeting, Human Resource
Director Mark Schiffbauer stated that he did not realize Zecco
was not running a continuous miner at the Robinson Run Portal.
Schiffbauer purportedly said that if Zecco was not running the
miner a good part of the time, Zecco should have remained on the
miner at the Oakdale Portal because he was most senior.
Schiffbauer told Zecco he would speak to Poland.  After several
more meetings, the grievance was set for arbitration.  In October
1996, the parties reached a settlement in which Zecco was
assigned to a continuous miner on the 10D Section and was paid
for 75 hours of overtime lost as a result of the transfer.

     Respondent, Consol, maintains in essence that its transfer
of Zecco to the seal construction project was strictly a business
decision unrelated in any way to his request for a 50 horsepower
fan for the 6D Section or to his other alleged protected
activity.  According to Consol, the transfer was the result of
major restructuring at the mine and evaluation of the relative
abilities of the miner operators.  There was in fact a work force
reduction and realignment at the mine on December 16, 1995.  The
mine work force was reduced by 75 miners and one-third of the
remaining 375 miners were realigned into different job
classifications, shifts and portal assignments.  Miners were
portaled at two locations and many miners who previously reported
to the Robinson Run Portal were moved to the Oakdale Portal,
while other miners were moved from the Oakdale Portal to the
Robinson Run portal.

      The work force reduction and realignment resulted from the
completion of the D- Haulway  in September 1995.  This permitted
the use of conveyor belt haulage for coal transportation
throughout the mine and eliminated the need for rail haulage.
The D-Haulway  connected with the existing mine conveyor belt
system at the 140 Block in September 1995, and the mine-wide
conveyor belt system was operational October 1, 1995.  For the
next two and one-half months, the D-Haulway continuous miner
production crews and the mainline motormen, who had been used
previously to haul coal by rail, completed the D-Haulway work and
started rehabilitation work required to seal part of the mine - -
the seal construction project.  The work on the seal project
during this period involved the use of the D-Haulway continuous
miner to cut overcasts, split coal blocks for airways and perform
related rehabilitation work.  According to Poland, following the
work force reduction and realignment, upper mine management,
excluding section foremen, pooled their collective knowledge to
put together the most productive crews from the remaining
available employees.  Poland noted that these assignments were
not based on exact science, but involved judgment and some trial
and error.

     By December 16, 1995, Consol management had decided to
operate one longwall, and three continuous miner sections.  It
had also been decided, based on input from Shift Foreman
Harrison, to assign a four-member crew consisting of a continuous
miner operator, a shuttle car operator, a roof bolter and
mechanic to work on the construction project on each shift.  As a
result , four continuous miner operator positions were maintained
following the work force reduction and realignment on December
16.

     At this time, the mine was also preparing to set up the next
longwall on the 6D Section. It  was necessary therefore to
maximize mining progress on the 6D Section to have the next
longwall panel ready to go on time.  Accordingly, the best
continuous miner crews were placed in the 6D Section.  On the
midnight shift, one particular crew, with continuous miner
operator Rick Garcia, excelled and were assigned to the 6D
Section.  At the same time, Poland noted, based in part on a
comparison of the nature and extent of production delays reported
by each shift, that the midnight shift production on the 6-D
Section had been significantly lower than the other two shifts.
Poland believed this was the result of poor management by the
section foreman and not merely because of the mining conditions.

     Consol also notes that the mine was operating two types of
continuous mining machines in December 1995, and this affected
the assignments to the remaining miner operator positions on the
midnight shift.  There were 12CM miners located on the 6D Section
and the seal project.  A 14CM satellite miner was used on the 7D
and 8D Sections.  The satellite miner was significantly larger
and more difficult to operate.  In addition, transfer of these
machines between  sections was difficult and time consuming.

     O'Dell, Zecco and Belcastro were the three remaining
continuous miner operators.  O'Dell was retained in the 7D
section because he was considered the best available satellite
miner operator and had been operating the 7D satellite miner
satisfactorily prior to December 16.  Poland wanted to improve
productivity by having a better crew mix for the Oakdale Portal
sections.  He considered the general consensus of mine management
that Zecco had struggled with the satellite miner and Belcastro
had performed well on the satellite miner.  Indeed, even Zecco's
own witness, Albert Titus, recognized that Zecco was not as good
at running the satellite miner as the other three operators.  The
decision was made therefore, to assign Belcastro to the remaining
satellite miner in the 8D Section and to observe his performance.

     The initial assignment of miners to the Robinson Run Portal
midnight shift was made by Assistant Superintendent Poland
because Midnight Shift Foreman Evans was on vacation when the
initial posting required by the Contract was finalized.  When
Evans returned from vacation on December 17, 1995, he and Poland
finalized the midnight shift  assignments.  Evans decided not to
change any of the assignments.

     On his first day at  work on the seal project, Zecco filed a
grievance pursuant under Article 23 (c) of the Contract objecting
to his portal change.  He alleged that "[m]anagement is in
violation of the National Bituminous Coal Wage Agreement by
improperly realigning me to the Robinson Run Portal."  Consol
disagreed with Zecco that his seniority entitled him to chose his
portal maintaining that Arbitration Decision 78-19 supported its
position.[4]  By the third step of the grievance process, Zecco
also claimed that he was not regularly operating a continuous
miner.  When it was learned that Zecco was not working the same
amount of overtime he had previously, arrangements were made to
make overtime work available to him and he was compensated for
the overtime lost to that point.

     On January 11, 1996, Zecco filed the instant discrimination
complaint asserting that he was removed from the 6D Section
because he made complaints about methane to Mr. Poland.  Poland
had received reports from management and hourly employees alike
regarding the methane and sulfur being encountered on the
section.  He recalled one occasion when Zecco told him that the
6D ventilation fan was undersized with a 40 horsepower.  Poland
told Zecco the fan would be checked.  Safety Inspector Morgan
reported back that the fan did have a 40 horsepower motor, but
that it was providing adequate ventilation for mining.  Morgan
also reported his findings to Zecco and told Zecco that a larger
horsepower motor was in the works.  Poland heard nothing further
from Zecco.  Poland knew that all of the section ventilation fans
were being upgraded to 50 horsepower, so he informed Maintenance
Foreman Preolitti that the 6D fan had a 40 horsepower motor.
Preolitti thought they had all been upgraded.  Preolitti said he
would get another motor.

     The crews on the seal project worked from the Robinson Run
Portal until late February 1996.  The continuous miner that had
been used in this area before the realignment was available for
use but required some routine maintenance.  However, the work
being performed at the time did not require a continuous miner.
The seal project crews were then told to report to the Oakdale
Portal to move the longwall to 6D Section.  This move took three
to four weeks.

     Consol maintains that in April, its management realized that
the seal project would not be operating as originally planned and
another realignment was proposed to eliminate skilled job
classifications.  Zecco's grievance was ultimately resolved when
the two satellite miners were replaced with 12CM miners in
November 1996, and Zecco was assigned to one of the new machines.

Evaluation of the Evidence

     This Commission has long held that a miner seeking to
establish a prima facie case of discrimination under Section
105(c) of the Act bears the burden of persuasion that he engaged
in protected activity and 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, 2797-2800
(1980), rev'd on grounds, sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3rd Cir. 1981); and Secretary on behalf
of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(1981).  The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by the protected activity.  If an
operator cannot rebut the prima facie case in this manner, it may
nevertheless defend affirmatively by proving that it would have
taken the adverse action in any event on the basis of the miner's
unprotected activity alone.  Pasula, supra; Robinette, supra.
See also Eastern Assoc., Coal Corp. v. FMSHRC, 813 F.2d 639, 642
(4th Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d
194, 195-96 (6th Cir. 1983) (specifically approving the
Commission's Pasula-Robinette test).  Cf. NLRB v. Transportation
Management Corp., 462 U.S. 393, 397-413 (1983) (approving nearly
identical test under National Labor Relations Act).
     There is no dispute in this case that Zecco had reported to
Consol management his concerns about the methane and sulfur and
about the 40-horsepower fan providing ventilation to the 6D
Section in October and November 1995.  Although it is undisputed
that the ventilation met legal requirements and there is no
evidence that any violative conditions existed, because of
frequent methane and sulphur problems the 6D crews were facing
during that period, it is clear that ventilation in the face area
was critical to maintain a safe environment.  Accordingly,
Zecco's complaints in this regard constituted protected activity.

     The second element of a prima facie case of discrimination
is a showing that the adverse action was motivated in any part by
the protected activity.  As this Commission noted in 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), "[d]irect evidence of motivation is rarely encountered;
more typically the only available evidence is indirect."  The
Commission considered in that case the following circumstantial
indicia of discriminatory intent:  knowledge of protected
activity; hostility towards protected activity; coincidence of
time between the Eastern protected activity and the adverse
action; and disparate treatment.  In examining these indicia the
Commission noted that the operator's knowledge of the miner's
protected activity is "probably the single most important aspect
of the circumstantial case."

     In this regard, it is undisputed that Zecco had requested,
during the period October through November 1995, that the
40-horsepower ventilating fan on the 6D Section be replaced by a
50-horsepower fan.  According to the unchallenged testimony of
Zecco, these requests were made to maintenance foreman Preolitti,
to Consol safety inspector, Phil Morgan and to Rodney Poland
among others.  There is no disagreement that Zecco also
complained to management, and specifically to Poland, about the
sulfur and methane on the section and that he affirmed to Poland
his practice not to operate the continuous miner when the warning
light indicated that he should not operate it.  Consol management
therefore had knowledge of  Zecco's protected activity.  Since
Zecco was thereafter transferred in mid-December from a job on a
production crew to the seal construction project, there was also
a close relationship in time between his protected activity and
his claim of adverse action.

     I nevertheless do not find that Complainant has sustained
his burden of proving that his transfer to the seal construction
project was motivated in any part by his protected activity.
First, his complaints were not of such a nature as would be
expected to engender disapproval let alone hostility and
retaliation.  Zecco's complaints, while relating to safety, were
also clearly consistent with improving mine productivity.  The
better the ventilation of the 6D Section the less down- time the
section would suffer from high levels of methane.  It is
undisputed, moreover, that Consol management had already planned
to replace all of its 40 horsepower fans with 50 horsepower fans.
It appears that only the 6D fan had not yet been replaced and,
when management was apprised of this by Zecco and his crew, they
were apparently surprised.  In addition, efforts were immediately
made to replace that fan, consistent with pre-existing plans,
without any  evidence of hostility.  Indeed, it may be repeated,
no hostility would be expected since improved ventilation with a
50 horsepower fan would reasonably be expected to improve mine
productivity and fan replacements had already been planned by
Consol management.

     In addition, management was well aware of the sulfur and
methane problems on the 6D Section causing a recognized slowdown
of production.  It is also noted that neither Zecco's foremen
Albert Titus, who he called as his own witness, nor Zecco
himself, ever testified that anyone ever suggested they mine
unsafely or with the warning light activated.  Indeed, Titus
explained that Poland thought the midnight crew could bring its
productivity up to the level of the other shifts on the 6D
Section by such things as staggering lunch breaks and not
permitting the crew to stay in the dinner hole too long.  Zecco
himself also made clear at hearings that he was not asked to mine
unsafely.  His witness, mechanic Michael Smith, confirms this and
noted that efforts by Zecco's foreman to increase productivity
took such forms as prompting the crew to get to the dinner hole
earlier.

     Second, the 40  horsepower fan was in fact replaced by a 50
horsepower fan in January 1997, after Zecco had already been
transferred.  If, indeed, management had transferred Zecco out of
the 6D Section because of hostility toward his requests for a 50
horsepower fan (because, following the logic of Zecco's argument,
Consol was hostile toward him because it did not really want to
replace the fan), it is unlikely that Consol would have gone
ahead and replaced that fan after he had already been
transferred.  It is also significant that Consol management, on
its own volition, subsequently replaced all the 50 horsepower
fans with 70 horsepower fans.  It cannot reasonably be inferred
within this framework that Consol would have been hostile to
Zecco's earlier request for only a 50 horsepower fan.  Again, it
should be emphasized that improved ventilation provided by these
more powerful fans is directly related to improved productivity.

     Third, it is undisputed in this case that a number of other
miners on all three shifts also complained about the fan in the
6D Section around the same time Zecco made his complaints and
there have been neither claims, nor evidence, of retaliation
against those persons.  Sam Marra, a shuttle car operator on the
6D Section during relevant times, who was also a member of the
UMWA safety committee, testified that he, as well as other safety
committeemen, including Bob Nizely, also "complained to the point
where they got tired of us complaining about the fan."  Marra
also personally complained to Preolitti, to Poland, and to
Federal mine inspectors.  Indeed, Federal inspectors thereafter
came to the mine as a result of Marra's complaints and performed
an inspection sometime in early November 1995.  There is no
evidence in this case that Zecco complained to Federal inspectors
or complained any more vociferously or frequently than Marra,
Nizely or other members of any of the three shifts, yet there is
no evidence of any adverse action against Marra, Nizely or any
other miners.

     Complainant also cites in his brief, as evidence of
hostility toward his protected activity, allegations that Foreman
Harrison said to him after he filed his grievance over having
been denied alleged seniority rights, that he was "lucky to
be working."  Complainant has not, however, shown that Harrison
was then even aware of Zecco's protected activity.  It is
also noted that there had just recently been a layoff at this
mine of 75 miners.

     Zecco claims that he also suffered disparate treatment
because, as the most senior continuous miner operator at the
mine, he was entitled under the Contract to remain as a
continuous miner operator at the seals construction project to
which he was reassigned.[5]  The credible evidence suggests
however, that Consol did in fact intend, at the time of  Zecco's
transfer, to have him operate a continuous miner on the seals
construction project.  I find the testimony of midnight shift
foreman Tom Harrison particularly credible on this issue.
According to Harrison, he was asked at meetings before the
realignment to designate the type of work crews he would need on
the seal construction project.  Harrison specifically requested a
number of skill positions including three continuous miner
operators, one for each shift.  Harrison anticipated needing
continuous miner operators to cut overcasts and rock and had two
continuous miners at the project needing only permissibility
exams to operate.  Indeed, if Consol did not intend to use three
higher paid skilled crews, including continuous miners operators,
on the seals construction project it would no doubt have selected
lower paid general inside laborers to do the work.  I cannot
therefore accept Complainant's argument that he was singled out
to work on this project in retaliation and to deprive him of the
opportunity to operate a continuous miner.  The fact that
conditions and needs subsequently changed, resulting in neither
Zecco nor the other miner operators operating continuous miners
on the project does not support Zecco's claim.  Moreover,
according to the credible testimony of Harrison, it is
permissible under the Contract, and not unusual, to have miners
working out of classification for periods of 30 days.

     In addition, even assuming, arguendo, that Zecco was
selected in spite of his seniority to work on the seals
construction project, no inference of an improper motive can
be drawn because Consol had a rational, objective, non-protected
business reason for Zecco's transfer out of production, i.e., his
crew's lowest productivity of the three shifts on the 6-D
Section as well as his reported difficulties operating the
satellite miner.

     Even assuming, arguendo, that Zecco's transfer was
motivated in part by his protected activity, I find that
Consol would nevertheless have successfully defended
affirmatively by proving that it would have transferred Zecco
in any event, based on his unprotected activity (lower
productivity and inadequacy in operating the satellite miner)
 alone.  In this regard, data for
October and November , for the 6D Section midnight shift crew, do
in fact show lower productivity (Respondent's Exhibits No. 3 &
4).  While Complainant  maintains that lower productivity on the
midnight shift may have been the result of lower barometric
pressure there is no evidence that the actual barometric
pressures were lower nor of the actual correlation between such
pressure and methane emissions on the 6D Section.  Poland and
Titus agreed moreover, that the lower productivity of Zecco's
crew was significant and cost them a lot of money.  Consol could
reasonably have relied upon the perceived inadequacies of Zecco
as a non-protected business justification for his transfer to the
seal construction project.

     Under all the circumstances, I do not find that Complainant
has sustained his burden of  proving that his transfer was in
violation of Section 105(c) of the Act.

                              ORDER

     Discrimination Complaint  Docket No. WEVA 97-82-D, is hereby
DISMISSED.


                                Gary Melick
                                Administrative Law Judge


Distribution:

Gretchen M. McMullen, Esq., Office of the Solicitor, U.S. Dept.
of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Certified Mail)

Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)

\mca


***FOOTNOTES***

     [1]  Section 105(c)(1) of the Act, provides as follows:

          No person shall discharge or in any manner discriminate
     against or cause to be discharged or cause discrimination
     against or otherwise interfere with the exercise of the
     statutory rights of any miner, representative of miners
     or applicant for employment in any coal or other mine
     subject to this Act because such miner, representative of
     miners or applicant for employment has filed or made a
     complaint under or related to this Act, including a
     complaint notifying the operator or the operator's
     agent, or the representative of the miners at the coal or
     other mine of an alleged danger or safety or health
     violation in a coal or other mine, or because such miner,
     representative of miners or applicant for employment is the
     subject of medical evaluations and potential transfer under
     a standard published pursuant to Section 101 or because such
     miner, representative of miners or applicant for employment
     has instituted or caused to be instituted any proceeding
     under or related to this Act or has testified or is about
     to testify in any such proceeding, or because of the
     exercise by such miner, representative of miners
     or applicant for employment on behalf of himself or others
     of any statutory right afforded by the Act.

     [2]  The implication in the Complaint that Mr. Zecco also
suffered retaliation under a "work refusal" theory is deemed to
have been withdrawn and abandoned since that theory is neither
advanced nor supported by relevant law in the Complainant's post
hearing brief.

     [3]  A monetary award was previously made to Mr. Zecco and
he was assigned to a production section as a continuous miner
operator as a result of his grievance filed under the National
Bituminous Coal Wage Agreement of 1993, the "Contract."
Accordingly, no issues concerning damages or reinstatement remain
for disposition.

     [4]  Administrative notice is taken of Arbitration Decision
78-19 a copy of which is contained in the Exhibit file.  The
issue of whether management has the right under the Contract to
reassign miners within their classification to other locations in
the mine regardless of seniority was not resolved by Zecco's
grievance nor is it found necessary to resolve in this
proceeding.

     [5]  It appears that the settlement of Zecco's grievance
was based not necessarily on the fact of his transfer to the seal
project alone but on the fact that it turned out that he was not
performing in his classification as a continuous miner operator.
Consol continues to maintain that it has the right under the
Contract to select where its miners will work, regardless of
seniority.