<DOC>
[DOCID: f:cnt9724c.wais]

 
F & E ERECTION COMPANY
February 29, 2000
CENT 97-24-DM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730  K  STREET  NW,  6TH  FLOOR

                    WASHINGTON,  D.C.   20006



                        February 29, 2000

BRYCE DOLAN                      :
                                 :
                       v.        : Docket No. CENT 97-24-DM
                                 :
F & E ERECTION COMPANY           :


BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen,
        Commissioners


                            DECISION

BY:  Riley, Verheggen, and Beatty, Commissioners

     In this discrimination proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994) ("Mine Act" or "Act"), Administrative Law Judge Jerold
Feldman concluded that complainant Bryce Dolan engaged in a work
refusal protected by section 105(c) of the Act, 30 U.S.C. 
� 815(c), and granted the complaint of discrimination brought by
Dolan against his employer, F & E Erection Company ("F&E"). 20
FMSHRC 591 (June 1998) (ALJ).  In a subsequent decision on relief
awarding back pay, attorney's fees, and litigation expenses, the
judge determined that Dolan's unavailability for work due to his
claimed physical disability constituted a willful loss of
earnings inconsistent with Dolan's duty to mitigate damages, and
he consequently excluded the period of unavailability from the
calculation of back pay.  20 FMSHRC 847 (Aug. 1998) (ALJ).  The
Commission granted the petition for discretionary review filed by
F&E challenging the judge's conclusion that F&E discriminated
against Dolan, and directed for review sua sponte the issue of
whether Dolan failed to mitigate his damages.  For the reasons
that follow, we vacate the finding of discrimination, the
determination that Dolan failed to mitigate damages, and the
award of relief, and remand for further proceedings.

                               I.

                Factual and Procedural Background

     The complainant, Bryce Dolan, was an iron worker employed by
F&E, a construction contractor that performed work at an alumina
smelter in Point Comfort, Texas operated by the Aluminum Company
of America ("Alcoa").  20 FMSHRC at 594-95.  In September or
October 1994, Dolan began working in an area of the facility
referred to as the R35 tank farm.  Id.; Tr. I 19, 76.  Dolan's
work involved welding "stiffeners"[1] on trusses that support
large storage tanks.  20 FMSHRC at 595.  In order to ensure a
good weld on the stiffeners, Dolan and the five to six other
members of  his crew would remove paint from the angle iron of
the trusses before affixing the stiffeners.  Id.; Tr. II 141-42.
The crew removed the paint by burning it off using a cutting
torch.  20 FMSHRC at 591.  From late 1994 until March 1996,
Dolan's crew was not furnished with any personal protective
equipment or clothing.  Id. at 595.

     In March 1996, Dolan learned that Alcoa employees performing
similar work in the R35 tank farm were furnished with protective
clothing and respirators and that the entire R35 tank farm was to
be treated as a lead abatement area.  20 FMSHRC at 596; Tr. I 45-
46.  Dolan complained to safety man Dennis Spears, crew foreman
Howard Talbert, and general foreman Steve Whitehead about the
health hazards of removing lead-based paint without wearing
personal protective gear, and about symptoms of lead poisoning
that he and members of his crew were experiencing.[2]  20 FMSHRC
at 596; Tr. I 24, 47-48, 54-56, 78-80, 95-96, 153-54, 347, 397;
Tr. II 146-47.  From March 18 to March 22, 1996, F&E contracted
with Health and Safety Management Inc. ("HSM") to perform air
sample monitoring on crew members who, in the meantime, had been
provided with Tyvek suits[3] and half-face respirators.[4]  20
FMSHRC at 596.  Based on lead exposure levels measured,[5] HSM
recommended that the crew member using the cutting torch wear a
full-face respirator,[6] while the remaining crew members could
continue to wear half-face respirators.  20 FMSHRC at 596.  F&E
implemented this recommendation.  Id. at 597; Tr. I 405-08.

     On or about March 25, 1996, Dolan complained that the entire
crew should wear full-face respirators due to their close
proximity to each other, and that the Tyvek suits were inadequate
to prevent lead contamination because they were easily torn and
sparks from the cutting torch readily burned holes in the suits.
20 FMSHRC at 597; Tr. II 155-56.  In response, F&E provided a
large quantity of Tyvek suits so that the crew could replace them
as needed.  20 FMSHRC at 597.  In addition, F&E required the crew
to vacuum their clothing with high efficiency vacuums before
leaving the work area.  Id.; Tr. I 513.

      Dolan continued to complain about the inadequacy of the
half-face respirators and Tyvek suits.  20 FMSHRC at 597.  On
April 16, 1996, F&E held a meeting to address Dolan's concerns.
Id.  At this meeting, Whitehead stated that F&E was going to
continue using the half-face respirators and Tyvek suits and he
offered to transfer any employee who wanted to perform non-lead
work.  Id. at 598.  No employees accepted Whitehead's offer of
reassignment.  Tr. I 417-19.  At the conclusion of this meeting,
Dolan quit his job due to his belief that the personal protective
gear was inadequate to prevent lead exposure to himself and his
family.  20 FMSHRC at 598.

     After quitting on April 16, 1996, Dolan looked for work and
received unemployment compensation.  Id. at 598; Tr. I 113-14;
CX-7.  He began seeing Dr. Arch Carson on May 17, 1996.  CX-8.
According to Dr. Carson, Dolan's symptoms included  "muscle and
joint pains, tremor, severe headache, and additional neurologic
symptoms which are disabling in nature."  Id.  Dr. Carson stated
in a memorandum dated June 5, 1996, that Dolan was "currently
unable to engage in employment in his usual trade, or in any
other usual form of employment."  Id.  On or about August 11 and
12, 1996, Dolan worked for United Kensington Group as a
construction worker.  20 FMSHRC at 598, 849; Tr. I 114-15, Tr. II
166, 280.  He quit on or about August 12 due to severe pains in
his legs.  20 FMSHRC at 598, 849; Tr. I 115.  He testified that
he has been disabled from working since that date.  20 FMSHRC at
598, 849; Tr. I 115-16.  Dolan did not look for work thereafter.
20 FMSHRC 598, 849.

     Dolan filed a discrimination complaint with MSHA on May 20,
1996.  MSHA subsequently informed Dolan that, because F&E had
taken appropriate remedial actions, his complaint did not merit
litigation.  On December 27, 1996, Dolan filed a complaint of
discrimination on his own behalf pursuant to section 105(c)(3) of
the Mine Act, 30 U.S.C. � 815(c)(3).  Evidentiary hearings were
held in San Antonio, Texas on April 15 and 16, 1997, and April 14
and 15, 1998.

     Analyzing the case as a work refusal, the judge concluded
that Dolan's work refusal was protected (20 FMSHRC at 606) and
that, accordingly, Dolan should be awarded back pay, attorney's
fees, and litigation expenses.  Id. at 847.  First, the judge
found that Dolan's complaints were made in good faith and that
his concerns were reasonable in light of F&E's admission that "it
should have taken protective measures prior to the time of the
complaints."  Id. at 599.  He further found that Dolan adequately
communicated his complaints to F&E personnel.  Id. at 600.  The
judge found that F&E's continued use of the half-face respirators
and Tyvek suits failed to provide "a meaningful response" so as
to quell Dolan's fears.  Id. at 604.  He also noted that F&E's
offer to transfer employees "did not address the hazardous
conditions complained of by Dolan" and "thwart[ed] the Mine Act's
purpose of encouraging a safe workplace" by continuing to expose
any employees who remained at the R35 tank farm to lead
poisoning.  Id. at 604-05.

     Concerning back pay eligibility, the judge noted that
"whether Dolan is disabled is beyond the scope of this
proceeding," and that he did not claim back pay from July 25,
1997, the date Dolan began receiving temporary lost wage payments
under the Texas workers' compensation program.  Id. at 849.  The
judge rejected Dolan's claim of back pay for the period August
12, 1996 to July 25, 1997, on the basis that Dolan "removed
himself from the labor market as of [August 12, 1996]."  Id. at
849-50.  Noting that it is appropriate to reduce back pay where
an employee incurs a "willful" loss of earnings, the judge
determined that, in the absence of a medical finding of
disability for the relevant time period, "Dolan's loss of
earnings due to his decision not to look for work must be
characterized as voluntary."  Id.  Excluding the period from
August 12, 1996 to July 25, 1997, the judge ordered F&E to pay
Dolan $12,094.60 in back pay, less applicable deductions.  
Id. at 850.

                               II.

                      Disposition of Issues

     F&E argues that Dolan "voluntarily quit his job" and that
substantial evidence does not support the judge's finding of a
protected work refusal.  PDR at 1, 8-10, 18; F&E Br. at 2, 13-20.
It contends that Dolan's work refusal was not reasonable because
(1) Dolan knew that his blood lead level was well below that
recognized as safe by the OSHA standard; (2) there was no
evidence that Dolan's family was exposed to lead and, in any
event, the protection of family members is beyond the scope of
the Mine Act; (3) the protective measures implemented by F&E
following Dolan's complaint were adequate; and (4) F&E offered to
transfer Dolan to a non-lead job.  Id.  F&E also argues that the
judge erred in applying the wrong legal standard by focusing on
Dolan's subjective concerns and not whether a reasonable person
standing in Dolan's place would be justified in refusing to work.
PDR at 10; F&E Br. at 21-22.

     Dolan responds that substantial evidence supports the
judge's finding that his work refusal was protected.  D. Br. at
9-19.  He points to evidence of faulty monitoring, inadequate
personal protective gear, and health hazards to himself and his
crew, as well as his fears about "bringing lead home to his
family."  Id.  Dolan asserts that, prior to giving blood samples,
workers were usually assigned to non-lead jobs for 2 weeks or
longer, which casts doubt on the significance of his blood lead
level test results.  Id. at 9.  In addition, Dolan argues that
the judge applied the correct legal standard by considering
whether, viewed from Dolan's perspective, he had a good faith,
reasonable belief of a hazardous condition.  Id. at 19-22.

     We conclude that the judge erred by failing to analyze this
case as a constructive discharge.  There is no dispute that Dolan
was not disciplined, but rather quit his job.  Under our
precedent, a finding that an operator took adverse action against
a miner engaged in protected activity is a necessary element of
the complainant's case.  Secretary of Labor on behalf of Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (Oct. 1980),
rev'd on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 
817-18 (Apr. 1981). Thus, unless Dolan was forced to resign, i.e.,
constructively discharged, there was no adverse action here, and
hence no finding of discrimination could be made.

     By contrast, a work refusal is a form of protected activity.
See Price v. Monterey Coal Co., 12 FMSHRC 1505, 1514 (Aug. 1990);
Secretary of Labor on behalf of Cooley v. Ottawa Silica Co., 6
FMSHRC 516, 520 (Mar. 1984), aff'd mem., 780 F.2d 1022 (6th Cir.
1985).  Not all work refusals lead to a termination of the
employment relationship, even where they are not protected. See,
e.g., National Cement Co. v. FMSHRC, 27 F.3d 526 (11th Cir.
1994). In the work refusal context as well, a finding of adverse
action is a prerequisite to a determination that the operator
violated section 105(c).  See id. at 534.  Thus, in proceeding
directly from his finding of protected work refusal to his
conclusion that F&E discriminated against Dolan, the judge erred.

     In declining to consider the constructive discharge claim,
at trial the judge purported to distinguish the concepts of
constructive discharge and work refusal, stating:

               I don't see any issue of constructive
          discharge in this case.  I don't view the
          circumstances of Mr. Dolan's employment as
          being created for the specific purpose of
          creating intolerable conditions to encourage
          him to quit his employment.

               So really what we have to do is focus in
          on the issue of work refusal.  Mr. Dolan
          refused to work under the conditions that F&E
          was requesting him to work under and the
          issue is whether or not that work refusal is
          covered under the Mine Act.

Tr. II 8 (emphasis supplied).  The judge further stated:

               A  work refusal is where an employee
          refuses to continue working under the
          conditions that he's been working under be-
          cause of a perceived hazard.

               . . . .

               A constructive discharge is where when
          the employee complains about a perceived
          hazard, the employer then creates working
          conditions that are so intolerable, unrelated
          to the perceived hazard, that he wants the
          employee to quit.

Tr. II 9 (emphasis supplied).

     It thus appears that the judge's failure to analyze the
constructive discharge question was based on his view that the
complainant must show that, in retaliation for the miner's
protected activity, the operator intended to create the
conditions prompting the resignation.  The judge's statements
regarding constructive discharge reflect a misunderstanding of
our constructive discharge jurisprudence.  In light of this
error, we find it necessary to review our analytical framework
for constructive discharge cases.

     A constructive discharge is proven when a miner engaged in
protected activity shows that an operator created or maintained
conditions so intolerable that a reasonable miner would have felt
compelled to resign.  See, e.g., Simpson v. FMSHRC, 842 F.2d 453,
461-63 (D.C. Cir. 1988).  Contrary to the judge's statement at
trial, in determining whether a constructive discharge has
occurred, the focus is not on whether the operator has retaliated
against a miner's engaging in protected activities by
deliberately causing hazardous conditions in an explicit effort
to get the employee to resign.  In Simpson, the D.C. Circuit
specifically rejected any requirement that a miner establish
retaliatory motivation to establish a constructive discharge.
Id. at 462-63.  Rather, the key inquiry in a constructive
discharge case is whether intolerable conditions existed such
that a reasonable miner would have felt compelled to resign.  It
is the operator's failure to reasonably remedy such conditions
that converts the resignation into an adverse action.  See
Secretary of Labor on behalf of Nantz v. Nally & Hamilton
Enters., Inc., 16 FMSHRC 2208, 2210-13 (Nov. 1994) (affirming
conclusion of constructive discharge in the absence of finding
that operator deliberately created intolerable conditions to
provoke miner's resignation).  The question whether conditions
are intolerable is "viewed from the perspective of a reasonable
employee alleging such conditions."  Secretary of Labor on behalf
of Bowling v. Mountain Top Trucking Co., 21 FMSHRC 265, 276 (Mar.
1999), pet. for review docketed, No. 99-4278 (6th Cir. Oct. 22,
1999).  The Simpson court also explained that "[w]hether
conditions are so intolerable that a reasonable person would 
feel compelled to resign is a question for the trier of fact."  
842 F.2d at 463.

     In cases involving claims of constructive discharge, the
Commission has first examined whether the miner engaged in a
protected work refusal, and then whether the conditions faced by
the miner constituted intolerable conditions.  See Bowling, 21
FMSHRC at 272-81; Nantz, 16 FMSHRC at 2210-13.  The Mine Act
grants miners the right to complain of a safety or health danger
or violation, but does not expressly state that miners have the
right to refuse to work under such circumstances.  Nevertheless,
the Commission and the courts have recognized the right to refuse
to work in the face of such perceived danger.  See Price, 12
FMSHRC at 1514; Cooley, 6 FMSHRC at 520.  In order to be
protected, work refusals must be based upon the miner's "good
faith, reasonable belief in a hazardous condition."  Robinette, 
3 FMSHRC at 812; accord Gilbert v. FMSHRC, 866 F.2d 1433, 1439
(D.C. Cir. 1989).  A good faith belief "simply means honest
belief that a hazard exists."  Robinette, 3 FMSHRC at 810.
Consistent with the requirement that the complainant establish a
good faith, reasonable belief in a hazard, "a miner refusing work
should ordinarily communicate, or at least attempt to
communicate, to some representative of the operator his belief in
the safety or health hazard at issue."  Secretary of Labor on
behalf of Dunmire v. Northern Coal Co., 4 FMSHRC 126, 133 (Feb.
1982).

     Once it is determined that a miner has expressed a good
faith, reasonable concern about safety, the analysis shifts to an
evaluation of whether the operator addressed the miner's concern
"in a way that his fears reasonably should have been quelled."
Gilbert, 866 F.2d at 1441; see also Secretary of Labor on behalf
of Bush v. Union Carbide Co., 5 FMSHRC 993, 998-99 (June 1983);
Thurman v. Queen Anne Coal Co., 10 FMSHRC 131, 135 (Feb. 1988),
aff'd mem., 866 F.2d 431 (6th Cir. 1989).  A miner's continuing
refusal to work may be deemed unreasonable after an operator has
taken reasonable steps to dissipate fears or ensure the safety of
the challenged task or condition.  See Bush, 5 FMSHRC at 998-99.

     There is no doubt that Dolan's initial fears in March 1996,
at a time when F&E had provided no personal protective gear to
Dolan's crew, were reasonable.  As the judge noted, F&E conceded
as much at the hearing.  20 FMSHRC at 599-600.  Nor is it
disputed that Dolan made protected safety complaints to F&E based
on his fears.  The question is whether a reasonable miner in
Dolan's position would have had his fears quelled by the measures
taken by F&E in response to Dolan's initial complaint.[7]  We
find that substantial evidence supports the judge's conclusion
that F&E failed to address Dolan's concerns in a way that should
have alleviated his fears.[8]

     Concerning the half-face respirators provided to the crew,
Dolan testified that, due to the close proximity of the crew
members (all working within a 10-foot square area) and exposure
to what Dolan believed was the same air, the entire crew should
wear full-face respirators.  Tr. II 154-56.  Dolan's concerns
about the half-face respirators were shared by Robert Miller, an
industrial hygienist called to testify as an expert witness on
Dolan's behalf.  Miller testified that welders, as well as those
using the cutting torch, should be issued full-face respirators
with supplied air, in part based on air monitoring readings
showing a high lead content in the air sampled by a welder. Tr.
II 245-48, 251-52; CX-9, 28.  The judge credited Miller's
testimony that respirators may leak due to a poor fit or
perspiration.  20 FMSHRC at 601.

     With regard to the Tyvek suits, Dolan testified that sparks
from the cutting torch readily burned holes in the suits and they
were easily torn, thus exposing the crew to lead contamination.
Tr. I 32, 44, 69, 88, 111.  Crew members Kenneth Tam and Troy
Stewart also testified that the Tyvek suits were inadequate.  Tr.
I 203-08, 217, 225, 292-93.  Although F&E further made available
a quantity of Tyvek suits for replacement and provided a high
efficiency vacuum following Dolan's subsequent complaints, the
record indicates that the availability of replacement Tyvek suits
was inadequate to protect workers because rips and holes exposed
underlying clothing to lead contamination.  20 FMSHRC at 600.
Moreover, the vacuuming of body parts that were not covered by
the Tyvek suits before departing the work area did not prevent
lead contamination to the underlying clothing.  Id. at 597.

     Miller also testified that the Tyvek suits were inadequate.
He stated that "[t]he use of Tyvek suits when welding or cutting
or any use of flame producing situation . . . is not an optimal
solution because of the propensity for spun olefin materials to
develop holes . . . from the heat of particulate hot particles
hitting the suits . . . .  [T]he concern . . . would be with
potential contamination of clothing underneath the coverall 
. . . ."  Tr. II 233-34.  Miller further testified:

          [t]he particles are so small in a fume
          [created by burning lead-based paint] that
          they readily penetrate most mechanical
          barriers.  For example, the spun olefin Tyvek
          suits are designed to block large particulate
          material.  However, a fume would find very
          little problem in finding its way through the
          suit, even if they . . . didn't have holes as
          a result of the burning activity, which would
          certainly raise concerns for potential
          contamination of clothing underneath the
          Tyvek suit itself, because you're dealing
          with such small particulates.

Tr. II 239.  Noting that Dolan was required to take home the
clothing he wore underneath the Tyvek suit, Miller further
testified that, because of "both the holes as well as the size of
the fume particles, [the Tyvek suit] doesn't necessarily
represent an appropriate particulate protection system for the
clothing he wore underneath."  Tr. II 263.  Finally, Miller added
that, unlike the Tyvek suits, "there are several [fire resistant]
materials that are job appropriate" as a protective coverall for
torch burning and welding.  Tr. II 276.  Miller's testimony about
the inadequacy of the Tyvek suits was uncontradicted.[9]

     A major shortcoming in our dissenting colleague's opinion is
that it fails to recognize the importance in the distinction
between the largely subjective legal standard applied in the
protected work refusal context, and the objective standard used
in determining if intolerable conditions existed in the
workplace.  The dissenters collapse these separate and distinct
legal standards into a single inquiry by asserting that there is
no basis for drawing "a distinction between a miner who is
engaged in a protected work refusal with no end in sight and a
miner who quits under the same conditions."  Slip op. at 13.  In
our view the merging of these two legal constructs into a single
analytical framework creates a legal hodgepodge that is
inconsistent with Commission case law.  More importantly,
however, the collapsing of these standards is also a venturous
legal maneuver that may lead to unintended and inconsistent
results.

     As we stated above, the issue of whether a miner has engaged
in a protected work refusal is determined by whether the miner
has a "good faith, reasonable belief in a hazardous condition."
Robinette, 3 FMSHRC at 812.  From a practical standpoint, this
means that miners are able to make decisions removing themselves
from potentially hazardous conditions without the concern of
having to prove that the condition actually existed.  Id.  This
is an extremely important legal construct, particularly in the
mining industry, where hazards often appear instantaneously and a
miner's decision to remove him or herself from a dangerous
situation could be the difference between life and death.

     We see a further problem with our colleagues' approach
collapsing these two different standards into a single inquiry.
As we have stated, once a miner engages in a protected work
refusal based on his or her good faith, reasonable belief in the
existence of a hazard, the operator must take steps to reasonably
quell the miner's concerns.  A situation could arise, however,
where an operator has taken such measures, but the miner clings
to his or her belief in the existence of a hazard and quits.  In
this situation, resorting to the largely subjective standard
applied to work refusals would almost certainly turn the miner's
quitting into a constructive discharge - and this is essentially
what our dissenting colleagues do in this case.  In other words,
a miner's continuing belief in a hazard would establish a
constructive discharge even where the operator took reasonable
steps to address the miner's concern.  At its worst under this
approach, a miner could prove a constructive discharge even where
the hazard in which he or she believed was illusory and where the
operator could not address his or her concerns because the hazard
did not exist.

     As illustrated above, the distinction between these separate
legal constructs is more than semantic.  Under our colleagues'
line of reasoning, it is unclear which legal standard would apply
to a miner's protected work refusal, and which would apply to a
determination of intolerable conditions.  We are extremely
reluctant to adopt a mode of legal analysis that serves to
confuse a clear area of Commission case law, particularly one
that has the potential to have such important ramifications on a
miner's safety rights.

     In sum, substantial evidence supports the judge's conclusion
that Dolan's refusal to perform lead abatement work was
protected.  However, because the judge erred in failing to
analyze the constructive discharge issue, we remand for the judge
to determine whether Dolan faced intolerable conditions as of the
date of his resignation.[10]  In so doing, the judge must
consider anew the impact of F&E's offer to reassign Dolan and
other crew members to non-lead jobs.  On this issue, we have held
that a short-term reassignment, which the miner reasonably
believes would soon be followed by his return to duties
subjecting him to intolerable conditions, is not an adequate
response to a miner's complaint involving such conditions.
Nantz, 16 FMSHRC at 2214.  Because the record contains evidence
on both sides of this question,[11] it is the judge in the first
instance who must resolve the parties' dispute over whether Dolan
reasonably believed that the transfer offered by Whitehead would
only last for a short period of time before he would again be
returned to intolerable conditions.  Unlike our dissenting
colleagues, we are unwilling to usurp the province of the judge,
as the initial finder of fact, on this and the other significant
factual issues he must resolve on remand.

                              III.

                           Conclusion

     For the foregoing reasons, we vacate the judge's finding of
discrimination and remand the case for further proceedings
consistent with this opinion.[12]

                              ________________________________
                              James C. Riley, Commissioner
                               
                              ________________________________
                              Theodore F. Verheggen, Commissioner
                               
                              ________________________________
                              Robert H. Beatty, Jr., Commissioner



**FOOTNOTES**

     [1]   "Stiffeners"  are  4-inch-wide pieces of channel iron
welded  onto  the  trusses to "stiffen"  or  strengthen  them  to
prevent bending.  Tr. II 141-43.

     [2]  Lead can  be  absorbed into the body by inhalation and
ingestion of dust and fumes.  20 FMSHRC at 593; RX-1 (29 C.F.R. 
� 1926.62  App.  A., part II.A).  Symptoms  of lead overexposure
include  loss  of   appetite,   constipation,  nausea,  excessive
tiredness, weakness, insomnia, headache, muscle and joint pain or
soreness, fine tremors, numbness,  and  dizziness.   20 FMSHRC at
593; RX-1 (29 C.F.R. � 1926.62 App. A., part II.B).  Overexposure
to  lead  can  result  in  severe  damage  to blood-forming,  and
nervous, urinary, and reproductive systems.  Id.

     [3]   Tyvek suits are thin, disposable  coveralls  made  of
spun olefin.  20 FMSHRC at 597; CX-6.

     [4]  Half-face  respirators  are  air purifying respirators
with high efficiency filters that provide  protection  up  to 500
micrograms  per  cubic meter of air ("�g/m3").  20 FMSHRC at 593;
Tr. II 44; RX-1 (Table 1).

     [5]  The March  1996  air  sample  monitoring measured lead
levels ranging up to 467 �g/m3.  20 FMSHRC  at  596;  CX-3.   The
standard  regulating  exposure to airborne contaminants issued by
the Department of Labor's  Mine  Safety and Health Administration
("MSHA") limits lead exposure to an  average  of  150  �g/m3.  30
C.F.R.  �  56.5001(a);  RX-3;  Tr.  I  518-21.   The construction
industry  lead  standard  issued  by  the  Department of  Labor's
Occupational Safety and Health Administration ("OSHA"), a copy of
which was provided to F&E employees (Tr. I 521-22), requires that
employers provide respiratory protection, protective clothing,
housekeeping, and hygiene facilities to employees who are exposed
to lead above the permissible exposure limit of 50 �g/m3 averaged
over an 8-hour period.  20 FMSHRC at 596; 29 C.F.R.
� 1926.62(c), (f) - (i).

     [6]  Full-face respirators provide lead  protection  up  to
either 2,500 or 100,000 �g/m3, depending on the type of full-face
respirator used.  20 FMSHRC at 593; Tr. II 42-43; 29 C.F.R.
� 1926.62(f)(3) (Table I).

     [7]   We reject F&E's suggestion that the judge erroneously
adopted a subjective  test  to  determine the work refusal issue.
In  fact, the standard under which  work  refusals  are  analyzed
includes  the subjective element of a miner's "honest belief that
a hazard exists,"  as  well as the objective requirement that the
miner's  belief  be  reasonable.   Robinette,  3  FMSHRC  at  810
(emphasis added).  In contrast, a constructive discharge analysis
requires a determination  of  whether the conditions faced by the
miner were so intolerable that a reasonable miner would have felt
compelled to quit.  On this question,  the  sine  qua  non  of  a
constructive discharge, we employ a purely objective standard and
view  the conditions faced by the miner from the perspective of a
reasonable employee alleging such conditions.  Bowling, 21 FMSHRC
at 276.

     Here, as the judge correctly noted, the issue is whether F&E
addressed Dolan's concerns "in a way that should have alleviated"
his fears.  20 FMSHRC at 592.  Whether Dolan's fears were in fact
quelled  is  relevant to the determination of this question.  See
Secretary of Labor  on  behalf  of  James  Johnson  v. Jim Walter
Resources,  Inc.,  18  FMSHRC 841, 848-49 (June 1996) (discussing
operator's failure to quell discriminatee's fears).

     [8]  When reviewing  an  administrative law judge's factual
determinations, the Commission is  bound by the terms of the Mine
Act to apply the substantial evidence test.  30 U.S.C.
�  823(d)(2)(A)(ii)(I).   "Substantial   evidence"  means  "`such
relevant evidence as a reasonable mind might  accept  as adequate
to  support  [the  judge's] conclusion.'"  Rochester & Pittsburgh
Coal Co., 11 FMSHRC  2159, 2163 (Nov. 1989) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

     [9]   The judge discussed,  at  length,  the  propriety  of
burning paint  with a cutting torch, rather than chipping it with
a  needle  gun and  grinder,  as  a  method  of  lead  abatement,
concluding that  burning  "was contrary to industry standards and
maximized worker exposure to  lead  fumes."  20 FMSHRC at 600-04.
However, Dolan complained about the lack  of  personal protective
gear,  not  about the method of lead abatement.   Tr.  II  69-70.
Moreover, the  burning  method  is not prohibited by OSHA or MSHA
regulations.  Tr. II 96-97; 29 C.F.R. � 1926.62(d)(2)(iv)(D); see
30 C.F.R. �� 56.5001 - 56.5006.   Thus,  while the method of lead
abatement is relevant for purposes of evaluating  the adequacy of
F&E's  protective  measures in response to Dolan's complaint,  we
agree with F&E that  it  is not in and of itself an issue in this
case.

     [10]    While  we  are  sympathetic   to   our   dissenting
colleagues' desire  to  avoid  a  remand of this case, we believe
that such a result is necessitated  by  the  judge's  fundamental
error in not analyzing this case as a constructive discharge.  We
are  troubled  by our colleagues' attempt to derive the necessary
elements of a constructive  discharge  from factual findings made
by the judge in his opinion below, since those findings were made
in  the  context  of  applying  an  admittedly   incorrect  legal
standard.  Given our perspective that a judge's factual  findings
are often colored by the legal standard applied, we believe  that
the  more  appropriate course here is to remand so that the judge
can base his  factual  findings  upon  application of the correct
(i.e., constructive discharge) standard.

     [11]  Dolan, Tam and Whitehead testified that at times, F&E
moved crew members to non-lead work for  short  periods  of time.
Tr.  I 72-73, 221-23, 478-83.  Dolan testified that he understood
F&E's  reassignment offer to be a short-term reassignment similar
to past  transfers.   Tr.  I  72-73.   Whitehead, Talbert and F&E
foreman  Gary  Smith  testified  that in the  April  16  meeting,
Whitehead  did  not  state any limitations  on  the  reassignment
offer.   Tr.  I 348-49,  368,  382-83,  417-19.   Whitehead  also
testified that,  at  the time he made the offer, there were about
300 F&E employees at Point Comfort, and that Dolan's crew was the
only one doing lead abatement work.  Tr. II 44, 64-67.

     [12]  Given our decision remanding the discrimination issue
to the judge, we do not believe it is appropriate at this time to
decide the mitigation  of  damages  issue the Commission directed
for review sua sponte.


     Chairman Jordan and Commissioner Marks, concurring in part 
and dissenting in part:

     We agree with the majority that the judge erred when he
ruled that in a constructive discharge case a complainant must
show that the operator acted in retaliation against his or her
protected activity.  The majority is correct that the D.C.
Circuit resolved this question in Simpson v. FMSHRC, 842 F.2d 453
(D.C. Cir. 1988), holding that a complainant need not prove
retaliatory motivation.  However, because the evidence
demonstrates that Dolan was subjected to intolerable conditions
and constructively discharged, we believe that a remand is
unnecessary, and would instead affirm the judge's finding of
discrimination.

     The majority remands this case because the judge failed to
apply a constructive discharge analysis.  But the very evidence
relied on by our colleagues to support the judge's finding of a
protected work refusal - coupled with additional evidence already
in the record - shows that Dolan met his burden of showing that
he faced intolerable conditions and thus was forced to quit.

     The analyses of a work refusal and a constructive discharge
often overlap, as they do in this case.  This is because, at the
heart of a work refusal case is the existence of a "hazardous
condition" (Robinette, 3 FMSHRC at 812), while a successful
constructive discharge claim requires "that conditions be
`intolerable'" (Simpson, 842 F.2d at 463). It is not surprising
that the intersection between these two concepts and the evidence
needed to prove each is sometimes blurred.  This is especially
true when, as is the case here, the intolerable condition is the
continued exposure to the hazardous condition prompting the work
refusal.

     The case of Secretary of Labor on behalf of Nantz v. Nally &
Hamilton Enters., Inc., 16 FMSHRC 2208 (Nov. 1994) is instructive
in this regard.  In Nantz, the complainant was routinely exposed
to dust after the window of his enclosed-cab bulldozer was
broken.  He complained about the dust exposure, and when the
situation was not remedied, he quit.  The Commission upheld his
discrimination claim, finding that he had engaged in protected
activity when he refused to operate the bulldozer based on his
good faith, reasonable belief that the dust conditions were
hazardous.  Id. at 2211-13.  In upholding this finding, the
Commission relied on Nantz's testimony and the testimony of his
co-workers.  Id.

     After an extensive analysis of this work refusal, the
Commission disposed of the question of whether conditions reached
an intolerable level in one brief paragraph, in which it upheld
the judge's findings that the dust conditions were in fact
severe, and thus intolerable.  The judge based his determination
on Nantz's testimony and the corroborating testimony of his co-
workers - undoubtedly, the same evidence the Commission used to
find a protected work refusal.  With a general reference to that
testimony, the Commission simply held that substantial evidence
supported the judge's finding that the dust reached an
intolerable level.  Id. at 2213.  Thus, the Commission relied on
identical evidence for both findings.

     An even more explicit illustration of the overlap between
the evidence of a work refusal and a constructive discharge was
provided in the decision of the administrative law judge in
Simpson v. Kenta Energy, Inc., 6 FMSHRC 1454 (June 1984)
(ALJ).[1]  In Simpson, the complainant refused to work because of
dangerous conditions.  The judge stated that "[t]he intolerable
conditions which caused him to quit his employment are the same
conditions justifying his work refusal."  Id. at 1461.

     Although the judge here did not analyze the evidence in
terms of a constructive discharge, he found that the operator
failed to adequately respond to Dolan's concerns, and that
Dolan's work refusal therefore retained its protected status. 20
FMSHRC at 604-05.  If a judge finds a miner justified in refusing
to work under certain conditions and there is no dispute that
those conditions are not going to improve, then the judge has
conferred protected status on an indefinite work refusal.  We
fail to see why we would make a distinction between a miner who
is engaged in a protected work refusal with no end in sight and a
miner who quits under the same conditions.  In determining that a
work refusal remains protected even though the operator had ample
opportunity to address the concerns motivating the refusal, a
judge necessarily concludes that the miner does not have to
tolerate the conditions under which the employer is requiring him
or her to work.  The conditions have, therefore, been deemed
intolerable.

     In this case, although the judge never used the word
"intolerable," he found that the working conditions facing Dolan
were objectively intolerable, and that Dolan was therefore
justified in quitting his job.  The judge found that F&E
completely ignored Dolan's legitimate complaints about lead
exposure and continued to employ inadequate protective measures.
Id. The judge's implicit finding of intolerable conditions is
amply supported by the record.  For instance, the judge concluded
that the frequent replacement of Tyvek suits (relied on heavily
by the operator to prove that its response to Dolan's complaints
was adequate) "does not prevent contamination." Id. at 600.  This
finding is supported by Dolan's testimony that he was constantly
forced to keep changing the Tyvek suits and taking off his
clothes in a contaminated area.  Tr. I 69.  He stated that
sometimes he had to use 15 Tyvek suits in one day.  Tr. I 146.
He also testified that when he complained that there were no
full-face respirators Whitehead simply told him "just keep your
face out of the smoke and everything will be okay."  Tr. I 53.

     In addition, the dangers of lead contamination were
unequivocally described in a pamphlet from the Texas Department
of Health admitted into evidence as Complainant's Exhibit 2.
This handout, which Dolan testified he had received from other
employees who took a lead abatement course in 1996 (Tr. I 38),
outlined in detail the potential hazards of lead, characterizing
it as a "strong poison," with detrimental effects ranging from
fatigue and numbness to reproductive problems and brain
disorders.  CX-2; see also RX- 9 at 5.

     The judge's finding that the Tyvek suits did not prevent
lead contamination, coupled with the dire warning in the pamphlet
that lead poisoning could lead to a "decreased life span," and
that extreme cases "can result in convulsions, coma, or death,"
(CX-2 at 5), supports the judge's conclusion that Dolan's
continued work refusal was reasonable.  As we explained above,
this is, in fact, an implicit finding that Dolan faced
intolerable conditions and thus was constructively discharged.
See Liggett Indus., Inc. v. FMSHRC, 923 F.2d 150 (10th Cir. 1991)
(walking off job because of exposure to inadequate ventilation of
welding fumes and noxious gases constituted constructive
discharge).  Consequently, remanding the case to the judge to
address this issue is not warranted.[2]

     Nor is it necessary to remand the case to the judge to
determine whether the employer's offer to transfer Dolan to a
non-lead job defeats Dolan's claim that he faced intolerable
conditions.  Although Whitehead did not place a restriction on
his offer, prior transfers had invariably resulted in only a
short-term reassignment.  Tr. I 72, 221-22, 478-83.  The judge
found that "the sincerity of F&E's offer of reassignment as a
permanent solution to Dolan's complaints is suspect."  20 FMSHRC
at 604-605.  The judge also acknowledged that the offer of
reassignment "was not a permanent solution."  Id. at 605.  We
believe, therefore, that the judge has already made a finding
that the transfer would be temporary, and that consequently there
is no need to remand this issue back to him.  See Nantz, 16
FMSHRC at 2214 (miner's refusal to accept  temporary job was
inextricably connected to his initial work refusal and also
qualified as protected activity).

     Because we would affirm the judge's ruling that F&E
discriminated against Dolan, we next turn to the question of how
Dolan's damages should be computed.  Specifically at issue is
whether he should be compensated for the period August 12, 1996
(when he left a construction job due to pain in his legs) to July
25, 1997 (when he began to receive temporary lost wage payments
under the Texas workers' compensation program).

     As the judge noted, he was not required to decide in the
Mine Act proceeding whether Dolan was actually disabled during
this period.  That determination had yet to be made by the
appropriate Texas agency at the time the parties submitted their
evidence on back pay to the judge.  20 FMSHRC at 849; Tr. I 184-
86.  If in fact Dolan was disabled, then his failure to look for
work could hardly be called "voluntary."  Therefore the judge
erred in concluding that Dolan's failure to look for work after
August 12 was "willful."

      F&E is correct in asserting the general proposition that
when a miner is disabled, he or she is not entitled to back pay
for the period the disability renders the miner unavailable for
work.  Although this appears to be a question of first impression
under the Mine Act, it is well settled under the National Labor
Relations Act, a statute to which the Commission has referred in
other cases involving mitigation of damages,[3] that back pay is
generally not awarded for periods when an employee is unavailable
due to a disability.  NLRB v. Louton, Inc., 822 F.2d 412, 415 (3d
Cir. 1987); American Mfg. Co., 167 NLRB 520, 522 (1967).
However, this does not settle the question of Dolan's mitigation
of damage, because under the NLRA an exception to this general
rule is recognized "[w]here an interim disability is closely
related to the nature of the interim employment or arises from
the unlawful discharge and is not a usual incident of the hazards
of living generally."  Id.; see also Graves Trucking, Inc. v.
NLRB, 692 F.2d 470, 476-77 (7th Cir. 1982) (upholding award of
back pay to union steward disabled by his supervisor, but
shortening time period of award) (citing cases).  In Becton-
Dickinson Co., 189 NLRB 787 (1971), the NLRB awarded back pay to
an employee for a period during which she was disabled due to an
acute anxiety reaction which the Board concluded the employer had
induced or to which it had substantially contributed.  Concluding
that "[t]o withhold a backpay order in these circumstances would
permit [the employer] to escape all liability for the loss of
wages which [the employee] may have suffered because of factors
[the employer] unlawfully set in motion, contrary to the remedial
purposes of the Act."  Id. at 789.

      Under Title VII as well, a causation analysis has been
applied to determine whether periods of disability are to be
included in a back pay calculation.  Martin v. Department of Air
Force, 184 F.3d 1366 (Fed. Cir. 1999).  In Martin, a Back Pay Act
case, the Federal Circuit awarded back pay to an employee for a
period of time when he was disabled as a result of an interim job
he was forced to take after his unlawful termination from his
government job.  The Court ruled that, taking into account the
Congressional intent in passing the Back Pay Act and the
requirement of a causation analysis in connection with the back
pay provisions of similar federal laws, denying an employee back
pay for a period of disablity without reviewing the cause of the
disability would be unreasonable.  Id. at 1371.  The court
explained that "equity and reason require that if such an
employee is unable to work because of an accident or illness
closely related or due to interim employment or arises because of
the unlawful discharge, the period of disability should be
included in a back pay period." Id. at 1372.

     We agree with the NLRB that "the practice of disallowing
back pay without inquiry as to the nature of the physical
disability, [and] the cause thereof, . . . may be convenient but
is not always equitable."  American Mfg. Co., 167 NLRB at 522.
Therefore, we would adopt the exception discussed above to ensure
that miners disabled due to the conditions which gave rise to
their employer's discriminatory conduct can still receive
redress.  Thus, if his exposure to lead caused Dolan's
disability, Dolan should be entitled to back pay for the period
of time at issue.  Because the Commission had not explicitly
adopted this principle prior to the trial in this case, we would
remand and reopen the record for the submission of evidence
relevant to this issue.


                              Mary Lu Jordan, Chairman

                              Marc Lincoln Marks, Commissioner


Distribution

James S. Cheslock, Esq.
Cheslock, Deely & Rapp
408 North St. Mary's Street, Suite 600
San Antonio, TX 78205

Errol John Dietze, Esq.
Dietze & Reese
108 N. Esplande
P.O. Box 841
Cuero, TX 77954

Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041


**FOOTNOTES**

     [1]  Although unreviewed decisions of administrative law
judges   are  not  binding  Commission  precedent  (29  C.F.R.  
� 2700.72), we  nonetheless  find  it  helpful to examine how
constructive discharge was analyzed in the Simpson case.

     [2]  The majority  hypothesizes that the foregoing analysis
would  permit a finding of  constructive  discharge  where,  even
though the  operator  has  taken  reasonable steps to address the
complaining miner's concern, the miner  continues  to  believe in
the  existence  of  a hazard and quits.  Slip op. at 10.  As  the
majority recognizes,  however,  it  is  unlikely that a miner who
continues  to  refuse  to  work  after  an  operator   has  taken
reasonable  steps to dissipate his fears or ensure the safety  of
the challenged  task  or  condition  will  be  considered  to  be
engaging  in  a work refusal protected by the Mine Act.  See slip
op.  at  7 (citing  Bush,  5  FMSHRC  at  998-99).   The  miner's
reasonable  belief  in  the hazard remains a central component of
the work refusal test.  Thus,  the majority's fears that we would
somehow dilute the constructive discharge standard because we are
adopting the findings the judge made in concluding that this work
refusal was protected are unfounded.

     [3]  See, e.g., Metric Constructors,  Inc.,  6  FMSHRC 226,
231-32 (Feb. 1984).