<DOC>
[DOCID: f:y9836.wais]

 
PLOURDE SAND & GRAVEL
December 10, 1998
YORK 98-36-DM


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          December 10, 1998

JOHN D. LEHOUX,               :  DISCRIMINATION PROCEEDING
          Complainant         :
                 v.           :  Docket No. YORK 98-36-DM
                              :            NE MD 98-03
PLOURDE SAND & GRAVEL,        :
          Respondent          :  Mine ID No. 27-00094
                              :  Plourde Sand & Gravel

                             DECISION

Appearances:  Susanna G. Robinson, Esq., Douglas, Robinson,
              Leonard & Garvey, P.C. Concord, New Hampshire 
              for Complainant;
              Frank P. Spinella, Jr., Esq., Hall, Morse, 
              Anderson, Miller, & Spinella, P.C. Concord, 
              New Hampshire for Respondent.

Before:  Judge Bulluck

     This discrimination proceeding is  before me on a 
Complaint of  Discrimination brought by John  D.  Lehoux 
against Plourde Sand and Gravel ("Plourde"), under Section
105(c)  of  the  Federal Mine Safety and Health  Act  of
1977,  30  U.S.C.   �815(c).    The  complaint  alleges
unlawful discharge in retaliation for safety complaints
raised  with  the Secretary's Mine  Safety  and  Health
Administration     ("MSHA")     during    a    fatality
investigation.

     John  Lehoux  filed his discrimination complaint  with 
MSHA pursuant to  Section 105(c)(2) on February 6, 1998 (Ex.
C-5).[1]  On April 28, 1998, MSHA notified Lehoux that,
based on its investigation  of  the allegations, it had
concluded that a violation of Section  105(c)  had  not
occurred.   Lehoux,  through  counsel,  instituted this
proceeding before the Commission on May 18, 1998, under
Section 105(c)(3), 30 U.S.C. �815(c)(3).[2]

     A hearing was held in Concord, New Hampshire. The parties
presented testimony and documentary evidence, and filed post-
hearing  briefs.  For the reasons set forth below, I conclude
that  while  Lehoux  engaged  in  protected activity, he was
not discharged by Plourde for engaging in that, or any other,
protected activity.

          I.  Stipulations

     The parties stipulated to the following facts:

     1.  Lehoux  was  hired  by Plourde on November 11, 1996, and
     fired by Plourde on December 12, 1997.

     2.  Lehoux was initially  hired as a salesman, but served as
     plant superintendent and safety
     officer for Plourde from March to December 1997.

     3.   Brent Blackey died in a  fatal  accident  at  Plourde's
     Hooksett plant on December 3, 1997.

     4.  After  the  accident,  Lehoux  was  interviewed  by MSHA
     investigators.

     II.  Factual Background

     Plourde is owned and operated by the Plourde brothers; 
Oscar is  the  president  of the company and Lawrence is the
vice-president  and  treasurer  (Tr. 19, 164; Vol.  II:  50).
Lawrence Plourde had functioned  as  manager of the Hooksett
plant for approximately 30 years, until   Lehoux  became the
first  "outsider"  plant  superintendent (Tr. 187; Vol.  II:
51).

     Lehoux applied for a position in aggregate  sales  with
Plourde, was interviewed,   and  was  hired as a salesman to
replace Tom Woodley on November 11, 1996  (Ex. C-1; Tr. 14).
Richard Weed, financial consultant to the Plourdes, assisted
them in hiring Lehoux (Tr. 308-12).  Lehoux  also functioned
as  the  company's  safety  coordinator during part  of  his
tenure (Tr. 21).   Dissatisfied  with  employment elsewhere,
Tom  Woodley  sought  reinstatement  and  was   rehired   as
Plourde's  salesman  in  March  1997,  at  which time Lehoux
vacated  that  position  and  accepted reassignment  to  the
position of plant superintendent (Tr. 12, 21, 166, 312-14).

     As superintendent of the Hooksett plant, Lehoux supervised
and  worked  alongside  Larry Champhene, Brent  Blackey  and
Kenny Publicover, who was  terminated during Lehoux's tenure
(Tr.  42, 277-79).  Oscar Plourde  was  Lehoux's  supervisor
(Tr. 31).  At some point in the Fall of 1997, Oscar Plourde,
dissatisfied  with Lehoux's job performance,  requested that
Tom Woodley discretely  "put  the  word out" in the industry
that the Plourdes were looking for a  replacement for Lehoux
(Tr. 316; Vol. II: 12-13).  As a result  of  those  efforts,
Don  Davis  was referred to Tom Woodley, was interviewed  by
Woodley and the  Plourdes,  and  within  two  weeks  of  his
application  for  the  plant  superintendent  position,  was
offered  the job in early to mid November 1997 (Tr. 198-200,
317-18; Vol.  II: 14-16).  Don Davis' report-to-duty date at
Plourde was delayed  a  week  or  so,  in  order  for him to
complete  a  project  for  his  current employer before  his
departure; Davis reported to duty  at Plourde on December 8,
1997 (Tr. 214, 234, 318; Vol. II: 17-18).   In the meantime,
on December 3, 1997, Brent Blackey was  involved  in a fatal
accident at the Hooksett plant.  Lehoux was not at  work the
day  Blackey  was  killed (Tr. 47-48, 55).  An MSHA accident
investigation  ensued,  during  which  Lehoux,  among  other
employees, was interviewed  (Tr. 84-86).  Upon conclusion of
the MSHA investigation, on December  12,  1997,  Lehoux  was
discharged by Plourde.

     III.  Findings of Fact and Conclusions of Law

     In order to establish a prima facie case of discrimination
under Section  105(c)  of  the  Act,[3]  a complaining miner
bears  the  burden  of  establishing that 1) he  engaged  in
protected activity and 2)  the  adverse  action  of which he
complained  was  motivated  in  any  part  by  the protected
activity.   Secretary  of  Labor  on  behalf  of  Pasula  v.
Consolidation Coal Co., 2 FMSHRC 2786 (October 1980),  rev'd
on   other  grounds  sub  nom.  Consolidation  Coal  Co.  v.
Marshall, 663 F. 2d 1211 (3rd Cir. 1981); Secretary of Labor
on behalf  of  Robinette v. United Castle Coal Co., 3 FMSHRC
803 (April 1981); Secretary of Labor on behalf of Jenkins v.
Hecla-Day  Mines   Corp.,   6  FMSHRC  1842  (August  1984);
Secretary  of Labor on behalf  of  Chacon  v.  Phelps  Dodge
Corp., 3 FMSHRC 2508 (November 1981), rev'd on other grounds
sub nom. Donovan  v.  Phelps Dodge Corp., 709 F. 2d 86 (D.C.
Cir. 1983).

     The operator may rebut  the prima facie case by  showing
that no protected activity occurred or that the adverse action
was in no part motivated by the protected activity.  Pasula,
2  FMSHRC  at  2799-800.  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
2800; Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc.
Coal  Corp.  v.  FMSHRC  813 F.2d 639, 642 (4th Cir.  1987);
Donovan v. Stafford Const.  Co.,  732 F.2d 954, 958-59 (D.C.
Cir. 1984); Boich v. FMSHRC, 719 F.2d  194, 195-96 (6th Cir.
1983)  (specifically  approving  the  Commission's   Pasula-
Robinette test).

     Lehoux has met the first step in establishing a prima facie
case  of discrimination.  The record establishes  that  Lehoux
cooperated  with  MSHA  during  its  investigation  of Brent
Blackey's  death  in  early December 1997, and according  to
Lehoux's testimony, he  "started  squawking  like  a pigeon"
because  he was extremely upset about Brent Blackey's  death
(Tr. 50, 54-57).  Lehoux further testified that he and Larry
Champhene  had  led the MSHA investigators around the plant,
pointing out safety  concerns,  and that he, himself, showed
them an electrical box that did not  have an emergency shut-
off, which he believed had something to  do  with  Blackey's
death  (Tr.  57-59).   Indeed,  Plourde concedes that Lehoux
engaged in protected activity (Resp. Br. at 1-2).

     Lehoux has ultimately failed to establish a prima facie
case, however,  because he has not met his burden of proving
the second step--that  Plourde's  decision  to discharge him
was,  in any part, motivated by his cooperation  with  MSHA.
Lehoux  attempted  to  establish a causal connection between
his  safety complaints in  early  December  1997,  following
Blackey's  death,  and  his  discharge shortly thereafter on
December  12th,   through  circumstantial  evidence  of  his
satisfactory work performance  and  Oscar  Plourde's  animus
toward MSHA.  While bearing in mind that "direct evidence of
motivation  is  rarely encountered; more typically, the only
available evidence is indirect," the evidence presented does
not establish an  intent  to discriminate.  See Secretary of
labor on behalf of Chacon v.  Phelps  Dodge  Corp., 3 FMSHRC
2508, 2510 (November 1981), rev'd on other grounds,  709  F.
2d 86 (D.C. Cir. 1983).

     Looking first to Lehoux's performance, Lehoux argues that
absence of any disciplinary  action  in  his  personnel  file
establishes that he had been meeting the expectations of the
Plourdes,  or  had  otherwise  been  performing  his  duties
satisfactorily  (Ex.  C-1).   However,  lack  of  documented
performance  deficiencies  must  be  analyzed in the broader
context  of  the manner in which the Plourde  brothers  have
operated over  the  extensive life of the company.  There is
considerable testimony  that  the Plourdes do not follow the
company's written safety program  policy,  deal  with  their
employees   orally,   and  otherwise  run  a  very  informal
operation (Tr. 179-80;  Vol. II: 59; Ex. C-2).  For example,
in  response  to  questioning  on  cross-examination  as  to
whether  Lehoux  had  ever  received  a  written  reprimand,
salesman Tom Woodley  testified  to  his  view  of how Oscar
Plourde ran the company:

     A. Unfortunately, Plourde Sand and Gravel has never
done it that way, and so there  are  no written  records
to show that.  Since this has come about,  they realize
that we're going to have to, and we're now going  ahead
and  doing  written  reprimands and that sort of thing.
Unfortunately, Mr. Plourde  has  been in business since
1929 or whatever, never had to do  that  sort of thing.
This is the first time it's happened, and  he's kind of
described  as  old school.  He's always--you understand
where you stand  with  Mr.  Plourde,  if  you know him.
He's very vocal

(Tr. Vol. II: 40-41).  Indeed, Lehoux expressed a similar view
by testifying, on cross-examination, as follows:


     Q.   Would  you  agree that at Plourde Sand and  Gravel
     many things are done informally?

     A.  Yes, I would.

     Q.   It's  a  seat-of-the   pants   operation  in  some
     respects, is it not?

     A.  Yes.
     Q.  Would that be a fair characterization?
     A. Yes.

     Q.  And you'd agree that oftentimes Oscar  Plourde  and
     Larry  Plourde  will  not  create  paperwork but rather
     speak to people, sometimes in Oscar's  case,  with some
     passion?

     A.  Uhm-hmm, yes.

     Q.   But  would you agree it's more likely that someone
     would get a  verbal  warning  than  a  written  one  at
     Plourde Sand and Gravel?
     A.  Yes, I would.

     Q.  And in fact, in your experience, they're fairly lax
     on the paperwork aspect of things?

     A.  Yeah, they are

(Tr.  90-1).  Oscar Plourde referenced the way he and his brother
conducted business in the following testimony:

     Q.   Did you ever think of putting it in writing, if it
     was a disciplinary action?

     A.  We  never  issued  any writing, very, very--I don't
     remember issuing anybody  a  citation  [reprimand] (Tr.
     179).
                              ****

     Q.  And you didn't think, in those months  between July
     and August of `97, to when you were going to  terminate
     him,   to   start   showing   in  his  personnel  file,
     documenting, performance issues?

     A.  Never entered my mind.
     Q.  Never did that?

     A. No, never did it to nobody (Tr. 208; see also 212).

                              ****

     A.  We're construction people,  we're  not paper people (Tr.
                              224).

                              ****

     A.   And  his father [Lehoux's] ran a bigger  operation
     than we have.   We  always  worked together and hand in
     hand when we do that, we're of  the  60's  and the 70's
     and  the 50's, we're not of the 90's.  Paper  is  tough
     for us

(Tr. 229-30).  This cumulative testimony, unrebutted, leads me to
conclude that lack  of  written  reprimands in Lehoux's personnel
file is not dispositive of whether  the  Plourdes  were satisfied
with his job performance.

     On   the   issue   of  Lehoux's  performance,  the  evidence
establishes that Lehoux had  problems in both the sales and plant
superintendent positions.  It  is  clear  from  the  record that,
despite Lehoux's assertions to the Plourdes that he could  handle
the  positions,   Lehoux  had very little experience in sales and
management when they hired  him,  and received no formal training
from them throughout his tenure with the company (Tr. 15, 17, 30-
31, 168-71, 195-96, 253-58, 311-14,  339-41;  Vol. II: 86-87, 96-
98,  129;  Ex.  C-9).  In fact, there was no job description  for
either position and  Lehoux  was  told what to do on the job (Tr.
258-59,  341; Vol. II: 86).  Lehoux,  himself,  corroborates  the
testimony  of  Oscar  Plourde  and  Dick  Weed  that  Lehoux  was
uncomfortable  and performing poorly in sales (Tr. 30, 167, 313).
Respecting  the  plant   superintendent  position,  both  Plourde
brothers testified to Lehoux  "slacking off" some time around May
1997,  and  to  their  increasing dissatisfaction  with  Lehoux's
ability  to  effectively  manage   and   distance   himself  from
subordinate employees, repair and maintain equipment  and produce
material  (Tr. 167, 174-75, 188-89, 191-92, 211-12, 241-42;  Vol.
II: 51-58,  60-63,  70-71).   Tom  Woodley  testified  to  having
observed  the  plant running below capacity under Lehoux, and  to
having  personally   spoken   to   Lehoux  about  preventing  his
subordinates from loafing (Tr. Vol.  II:  28-32).   Moreover, the
Plourdes  testified to having made constant verbal complaints  to
Lehoux about deficiencies in his work, including, but not limited
to, his failure  to  have  safety  guards  replaced  on equipment
immediately  after  repair (Tr. 178-83, 185-86, 238, 241-43;  II:
57-60, 85).  Lehoux agrees,  on cross-examination, that Oscar and
Larry  Plourde  had  been unhappy  with  the  pace  at  which  he
addressed  maintenance  problems  (Tr.  102,  109-10).   Lehoux's
witness, Larry  Champhene,  testified  that  Oscar  was generally
disagreeable,  that he was constantly on the employees'  "backs,"
and that he routinely  "bitched  out"  the  employees,  including
Lehoux  (Tr.  274-75).   Despite numerous assertions that he  had
never  been  told by the Plourdes  of  dissatisfaction  with  his
performance, Lehoux  also  agreed,  on  direct  examination, that
Oscar  got  aggravated  often,  had  a  bad  temper,  yelled  and
screamed,   and  pushed  the  employees  pretty  hard  (Tr.  38).
Furthermore,  he conceded that the Plourdes were unhappy with his
supervision of his subordinates:

     Q.  Was there  ever an issue about you working side-by-
     side with the people you were supervising?

     A.  Yeah.  I don't  think they--they saw it as, like, I
     was trying to be buddy-buddy  with  everybody.  But I'd
     always  been taught, if you could, to  work  with  your
     employees  a  little  bit.  It  shows  them that you're
     willing  to  help  out,  it's  not just something  that
     you're going to hand to someone  because you don't want
     to do it.  I shoveled right side-by-side  with Lawrence
     Chemphene and Brent and Kenny all the time.  I did most
     of the welding, cutting.

     Q.   And  was that an issue; in other words,  was  that
     something that you were disciplined for doing?

     A.  I wasn't  disciplined, but I knew they didn't--they
     frowned  on it a  little  bit.   Larry  Plourde's  son,
     Philip, we  talked  about a couple times, that I should
     back off a little bit,  but  it's  hard with three men,
     which I considered doing a four, five-man  job,  to try
     and really keep that place up to par.

     Q.  Were you ever told that your job was in jeopardy if
     you didn't stop working side-by-side with--

     A.  No, never.

     Q.   Were  you  told  that you were not allowed to work
     side-by-side with the men  or that they just wanted you
     to stand back a little bit more?

     A.  No, nobody ever said that  to  me.   I  just  could
     tell, the way things went, you know, the body language,
     the way we talked sometimes.  I needed to be more of  a
     supervisor than a plant helper, but what was I going to
     do?  We needed it.  It's either that or it doesn't run

(Tr. 42-43).   Moreover, Lehoux testified to frustration with the
job by May of 1997,  based  on  frequent disagreements with Oscar
Plourde because of pervasive unsafe  work  conditions,  and Oscar
Plourde's tendency to drive the workers to produce at the expense
of their safety (Tr. 32, 35-42, 48, 50-51, 108, 118-19, 121, 126-
27,  154-55).   His  dissatisfaction  escalated  to  a level that
caused  him  to  begin  searching  for  employment elsewhere,  he
asserted,  sometime around August/September  1997  (Tr.  105-07).
Lehoux further  testified that he "started feeling hostility from
Oscar before, maybe,  you know, in those weeks prior to the death
[Brent Blackey's]" (Tr. 63). Consequently, based on the evidence,
I conclude that throughout  most  of  his  tenure, Lehoux was not
meeting the Plourdes' expectations, of which  he  was made aware,
especially through verbal confrontations with Oscar  Plourde  and
that, by May of 1997, the dissatisfaction had become mutual.

     The  question raised by Lehoux, at this juncture, is whether
Oscar Plourde  initially intended to demote him, then changed his
mind when Lehoux  cooperated  with  MSHA's investigation of Brent
Blackey's death.  For the following reasons, I think not.  As the
president of the company, Oscar Plourde, without question, is the
decision-maker.   The  evidence clearly  establishes  that  Oscar
Plourde complained to his  management  team  during the Summer of
1997 about Lehoux's performance and requested  that  Tom  Woodley
"look  around,  keep an eye out" for a replacement superintendent
in or around late September (Tr. 187, 197, 205, 240, 315-16; Vol.
II: 12-13, 64-65).   Lawrence  Plourde  testified  credibly that,
despite  his  earlier  desire  to  give Lehoux another chance  by
demoting him to a loader operator or  other  lesser  position, he
had become convinced by September of 1997, that replacing  Lehoux
was  necessary  and  he  ultimately  concurred  in  his brother's
decision to fire him (Tr. Vol. II: 64-69, 73-75, 84).

     The  record  also  establishes  that   Don  Davis'  original
report-to-duty   date   in   November  1997,  as  the  new  plant
superintendent, was delayed until  December  8th,  in  order  for
Davis to accommodate his former employer (Tr. 214, 232, 318; Vol.
II:  17-18,  100-01,  106-07).   Oscar Plourde testified credibly
that he had always intended to fire  Lehoux as soon as he brought
a replacement on board, but following the advice of his attorney,
he had kept Lehoux on the job for the first week of Davis' tenure
as the new plant superintendent, until  MSHA  had  concluded  its
fatality  investigation  (Tr. 190, 197, 215, 217, 223, 227, 236).
Lawrence Plourde, Richard Weed and Tom Woodley corroborated Oscar
Plourde's testimony that the  decision  to  fire  Lehoux had been
made  prior  to hiring Don Davis and Brent Blackey's  death  (Tr.
318-19, 325; Vol.  II:  19-20,  68-71, 91).  Furthermore, Richard
Weed's testimony, that the office  manager,  Maria  LaRocca,  had
been  asked  to  process a final payroll check for Lehoux  before
Brent Blackey's death, was unrebutted (Tr. 318).  Davis testified
credibly that on his  first  day  at  Plourde, he and Lehoux were
told that Davis would be the plant superintendent and that Lehoux
would  be  a  working  foreman (Tr. Vol. II:  100).  Tom  Woodley
testified  likewise (Tr.  Vol.  II:  18-20).   This  evidence  is
consistent with  Oscar Plourde's testimony that he never intended
to give Lehoux advance  warning  of his termination, and leads me
to  conclude that what Lehoux and the  other  workers  were  told
about  the  new  work  arrangement  was merely a ruse to maintain
Lehoux on board until his availability  for  MSHA  was  no longer
necessary (Tr. 190, 227-29).

     Lehoux's theory of discrimination focuses, as well, on Oscar
Plourde's  well-documented  dislike  of  MSHA,  and the proximity
between Lehoux's cooperation with the fatality investigation  and
his  discharge (Tr. 71-75, 86, 89, 162, 175-78, 183-85, 276, 288,
296-97,  344-45;  Vol.  II: 42-45, 92).  Lehoux cites an incident
between Oscar Plourde and  himself,  around December 9th or 10th,
in which Lehoux admitted that he had disclosed  electrical safety
violations to MSHA during the fatality investigation (Tr. 58-60).
While  Oscar  Plourde's rendition of the incident differs  as  to
whether it was  he  or Lehoux who had raised the subject with the
other, they are in agreement  that Plourde essentially walked off
without arguing (Tr. 219-21, 244).  To surmise that Oscar Plourde
was angered by Lehoux's admission  based  on his dislike of MSHA,
contrary to his displayed nonchalance, is speculative,  at  best.
I credit Oscar Plourde's testimony as to his state of mind at the
time:

     Q.  Did you walk away after he told you?

     A.   He  told  me he told `em.  I says, "Yeah."  Then I
     went upstairs.  He told them, I just walked off, that's
     all.

     Q.  You didn't try to argue with him?

     A.  No.

     Q.  Were you unhappy  that  he  had  disclosed  this or
     anything to MSHA?

     A.   At  this point, no, because the investigation  was
     on.  Whatever was, was.  That's the way I look at it

(Tr. 144-45).   Indeed, no evidence has been presented that Oscar
Plourde's hostility  toward  MSHA  was  transferred to any of his
employees,  respecting their cooperation with  MSHA,  during  the
time period in  question or any other time (see also Tr. Vol. II:
129-40, 142-44).   The  evidence  establishes  that the employees
were advised by management of their right to cooperate fully with
MSHA  free of harassment, that they were made available  to  MSHA
without  interference,  and  that  management  was unaware of the
content of the employees' discussions with the investigators (Tr.
74-75, 87-90, 230, 244-46, 281-88, 321-22, 324;  Vol.  II: 91-92,
122).

     If   anything,   the  Plourdes  were  consistent  throughout
     Lehoux's tenure with  the  company: the same lack of prudent
     management  skills  that  afforded   him   the   benefit  of
     employment  and was utilized in his supervision, became  the
     very  weapon that  struck  him  down.   My  function  is  to
     determine whether Lehoux's discharge was discriminatory, not
     whether  he  was  treated  unfairly,  although I am moved to
     comment  that  he was.  It appears likely  that  Lehoux  was
     "given a chance"  to  work in positions for which his skills
     were sorely lacking because,  in  part,  his father had been
     well-liked and respected in the industry by the Plourdes and
     because of other reasons, not necessarily  job related, that
     Richard Weed put aptly:

     A.    I  knew  him  personally.   He  grew  up  in  our
     neighborhood.    He   grew   up   with  my  kids,  same
     neighborhood, same school; had knowledge  of his mother
     and  father.   And as a result of sort of understanding
     where he had been  in life, Marine Corps, I had been in
     the Marine Corps, so  we  had a lot in common, a lot to
     talk about.  And that sort of blended into the process

(Tr.  310; see also 229-30).  For perhaps the best of intentions,
Lehoux  was  programmed to fail from  the  start,  insufficiently
trained to master his duties with the resources made available to
him, and denied  formal,  progressive discipline, that would have
put him on notice,  with specificity, of his deficiencies and the
consequence of failure  to  timely  improve.   For  the  lack  of
sufficient  circumstantial  evidence,  as  explained  above, I am
unwilling to take the broad leap necessary to conclude  that  the
absence   of  professionalism  and  fairness  attendant  Lehoux's
employment  at  Plourde was, in any part,  due to his cooperation
with MSHA.  Accordingly, it is my finding that Lehoux's discharge
was in no part motivated by his protected activity.

     Assuming, arguendo,  that  Lehoux  had  established  a prima
facie  case  of discrimination under Section 105(c), Plourde  has
clearly rebutted  his  case by proving that Lehoux was terminated
for  a  legitimate, business-related  reason:  that  he  was  not
performing  to  the  Plourdes'  satisfaction  and would have been
terminated for that reason alone prior to Brent  Blackey's death,
had  Don  Davis  reported to duty in November 1997, as  had  been
originally scheduled.

                              ORDER

     Accordingly,  inasmuch as Lehoux has failed to establish, by
a preponderance of the  evidence,  that  he  was  terminated  for
engaging  in protected activity under the Act, it is ORDERED that
the complaint  of John D. Lehoux against Plourde Sand and Gravel,
under Section 105(c) of the Act, is DISMISSED.




                              Jacqueline R. Bulluck
                              Administrative Law Judge


Distribution:

Susanna G. Robinson, Esq., Douglas, Robinson, Leonard & Garvey, 
P.C., 6 London Road, Suite   502,   Concord,   NH  03301
(Certified Mail)

Frank Spinella, Esq., Hall,  Morse, Anderson,  Miller & Spinella,
P.C., P.O. Box 2289,  Concord,  NH  03302 (Certified Mail)

/nt


**FOOTNOTES**

     [1]:Section 105(c)(2) provides, in pertinent part, that "Any
miner...who  believes  that  he  has  been discharged, interfered
with,  or  otherwise  discriminated  against  by  any  person  in
violation  of  this subsection may, within  60  days  after  such
violation occurs,  file  a  complaint with the Secretary alleging
such discrimination."

     [2]:Section 105(c)(3) provides,  in pertinent part, that "If
the Secretary, upon investigation, determines that the provisions
of this subsection have not been violated,  the complainant shall
have  the  right,  within  30  days of notice of the  Secretary's
determination, to file an action  in  his  own  behalf before the
Commission...."

     [3]: Section 105(c)1 of the Act provides that a miner cannot
be discharged, discriminated against or interfered  with  in  the
exercise  of  his  statutory rights because: (1) he "has filed or
made a complaint under  or  related  to  this  Act,  including  a
complaint...of  an alleged danger or safety or health violation;"
(2)  he "is the subject  of  medical  evaluations  and  potential
transfer  under a standard published pursuant to section 101; (3)
he "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, (4) he has exercised "on
behalf of himself or others...any  statutory  right  afforded  by
this Act."