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

 
CONSOLIDATION COAL COMPANY
March 31, 1997
LAKE 94-704-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730  K  STREET  NW,  6TH  FLOOR

                     WASHINGTON, D.C. 20006


                          March 31, 1997


SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :
  on behalf of KENNETH HANNAH,  :
  PHILIP PAYNE, and FLOYD MEZO  :
                                :  Docket No. LAKE 94-704-D
          v.                    :
                                :
CONSOLIDATION COAL COMPANY      :


BEFORE: Jordan, Chairman; Marks and Riley, Commissioners[1]


                  DIRECTION FOR REVIEW AND ORDER

BY THE COMMISSION:

     This discrimination proceeding arises under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994) ("Mine Act" or "Act").  On December 10, 1996,
the Commission reversed Administrative Law Judge Gary
Melick's determination that the miners' work refusal
was unreasonable and unprotected and his finding that
the operator's subsequent conduct did not violate the
Mine Act and remanded this matter to the judge for
computation of a backpay award and assessment of a
civil penalty.  18 FMSHRC 2085 (December 1996).  On
February 5, 1997, the judge issued a partial decision,
stating that the parties had agreed to the amounts of
backpay and interest to be awarded, but that
significant issues remained concerning the assessment
of a civil penalty.  19 FMSHRC 435 (February 1997)
(ALJ).  On February 18, 1997, Consolidation Coal
Company ("Consolidation") filed a petition for
discretionary review of that decision.  Thereafter, on
March 6, 1997, the judge issued a final decision on the
assessment of a civil penalty.  19 FMSHRC _____ (March
1997.  On March 28, 1997, Consolidation filed an
additional petition for discretionary review of the
March 6, 1997 decision.

     Consolidation's February 18, 1997 petition for discretionary
review is denied.

     Consolidation's March 28, 1997 petition for discretionary
review is granted.  In addition, pursuant to section
113(d)(2)(B) of the Mine Act, 30 U.S.C. � 823(d)(2)(B),
the Commission on its own motion, directs review of the
March 6, 1997 decision on the ground that it may be
contrary to law in that the judge may have failed to
make all the requisite findings under section 110(i) of
the Mine Act, 30 U.S.C. � 820(i), in assessing
penalties against Consolidation.


                                   Mary Lu Jordan, Chairman
                                   
                                   Marc Lincoln Marks, Commissioner
                                   
                                   James C. Riley, Commissioner

                                   Mary Lu Jordan, Chairman

                                   For the Commission:



**FOOTNOTES**

     [1]:   Pursuant to section 113(c) of the Federal Mine Safety
and Health Act  of  1977, 30 U.S.C. � 823(c), this panel of three
Commissioners has been  designated  to exercise the powers of the
Commission.