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

 
WELLMORE COAL CORPORATION
January 31, 1997
VA 95-9-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730  K  STREET  NW,  6TH  FLOOR

                    WASHINGTON,  D.C.   20006


                        January 31, 1997


BILLY R. McCLANAHAN             :
                                :
          v.                    :  Docket No. VA 95-9-D
                                :
WELLMORE COAL CORPORATION       :


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


                             DECISION

BY THE COMMISSION:

     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"), Billy R. McClanahan
seeks review of a decision by Administrative Law Judge
David Barbour dismissing a complaint that he filed
pursuant to section 105(c)(3) of the Mine Act, 30
U.S.C. � 815(c)(3).[2]  17 FMSHRC 1773 (October 1995)
(ALJ).  The judge determined that McClanahan's safety
complaints regarding the weight haulage limitation
required by his employer, Wellmore Coal Corporation
("Wellmore"), were not based on a good faith belief
that hauling the required weight was hazardous.  For
the reasons that follow, we reverse and remand.

                           I.

           Factual and Procedural Background

     In 1978, McClanahan began working for Wellmore as a
haulage truck driver.[3]  17 FMSHRC at 1774.  On August 20,
1992, McClanahan was advised that Wellmore was
terminating its trucking business but that its former
truckers could purchase trucks and haul as independent
contractors at Knox Creek's No. 3 Preparation Plant, or
Wellmore's No. 7 or No. 8 plants.  Id.; Tr. 316-18.
McClanahan entered into an agreement, dated August 21,
1992, to purchase Truck No. 42, the truck he usually
drove.  17 FMSHRC at 1775.  As an independent
contractor, McClanahan hauled refuse regularly at the
No. 3 Preparation Plant and continued to be paid by the
hour for hauling at that location.  Id. at 1775; Tr.
61, 319.

     In December 1993 or January 1994, a new refuse fill area
was opened at Knox Creek No. 3.  Id.  The haulage route to
the new area was approximately two miles longer than
the route previously traveled by the truckers, and
included a one-lane road over a hill.  Id.  As a
result, trucks took longer to travel the distance to
dump refuse.  Id.  At approximately this time, in an
effort to increase refuse removal, the company
instituted a policy requiring trucks to haul at least
25 tons per load.  Id.; Tr. 300, 362, 366, 438.  The
policy was later modified to allow trucks to haul no
less than 24 tons.  17 FMSHRC at 1775.  A trucker with
a load weighing less than 24 tons was prohibited from
hauling for the remainder of the shift and the next
day.  Tr. 77-78.

     McClanahan testified that he repeatedly made safety
complaints about the weight requirement from its
inception.[4]  17 FMSHRC at 1788.  He maintained that,
on January 27, he told Danny Estep, the trucking
foreman, that he was afraid to haul 25 tons up the one-
lane road, that 25 tons was too much weight for the
truck, and that if the truck's drive line broke, the
truck could travel over the highwall.  Id.; Tr. 74.
McClanahan stated that, on January 31, he told Estep
that it was unsafe and unfair to make the truckers
choose between being injured or going home, and that on
February 1, he informed Estep that he could not haul
that much weight safely or efficiently.  17 FMSHRC at
1788; Tr. 78-79.  He testified that, on February 4, he
complained on the CB radio about "overloading being so
hazardous," and that, on February 27, he told Charles
Carter, the president of Wellmore, that he was "scared
of trying to haul that much weight because of the
hazards."  17 FMSHRC at 1788; Tr. 79, 87.

     On March 2, McClanahan's truck was weighed.  17 FMSHRC 
at 1778.  The load was 100 pounds under 24 tons.  Id.
Estep told McClanahan that he could not return to work
the next day.  Id.  McClanahan testified that it was
snowing and that he told Estep that he already was
"scared to death" but that the snow made it worse.
Id.; Tr. 93.  He stated that Estep told him that he did
not want to hear any excuses.  Tr. 93.  After
McClanahan hauled that load, Estep ordered him to have
his next load weighed.  Tr. 93-94.  McClanahan's next
load weighed 21 tons.  Tr. 94.  McClanahan stated that
Estep informed him that Dave Fortner, the company's
vice president of preparation, would fire him if he
refused to haul 24 tons.  Tr. 94, 294-95.  McClanahan
replied that he was refusing to haul because he was
scared, not because he "didn't want to work."  Tr. 94.
McClanahan testified that he also informed Estep about
the manufacturer's recommended maximum gross vehicle
weight ("GVW") for his truck,[5] and tried to show him
the portion of the manufacturer's manual stating that
it was hazardous to haul loads exceeding the
recommended GVW, but that Estep had responded, "Bull."
17 FMSHRC at 1778.  Estep denied that McClanahan ever
mentioned the GVW sticker or any other safety concerns
at any time.  Id.; Tr. 450, 473, 477, 479.

     On March 3, McClanahan went to the mine office and spoke
with David Wampler, the president of Knox Creek.  17
FMSHRC at 1778-79.  McClanahan stated that as soon as
he walked in the office, Wampler told him that he had
to haul the 24-ton limit.  Id. at 1779.  McClanahan
told him that hauling that much weight scared him.  Id.
He stated that Wampler said that the company would buy
back the truck for McClanahan's ownership interest in
it.  Id.  McClanahan testified that he then offered to
sell the truck for the book or appraised value, but
Wampler replied that he would just terminate
McClanahan.  Tr. 97.  McClanahan testified that he
tried to get Wampler to look at the GVW information and
the truck owner's manual, but that Wampler refused.  17
FMSHRC at 1779.  Wampler testified that McClanahan had
informed him that he could not haul the 24-ton limit
because of the wear-and-tear to his truck.  Id.; Tr.
323.

     McClanahan testified that, on March 4, he called MSHA
but was informed that MSHA could not help.  17 FMSHRC at
1779.  He stated that he also called Virginia's
Department of Mine Land Reclamation ("DMLR") and
eventually spoke with Inspector Lawrence Odum.  Id.  On
March 7, Odum met McClanahan at the plant.  Id.

     During the March 7 meeting, McClanahan expressed concern
over dumping refuse into the slurry basins.  Id. at
1780.  He was afraid that his truck would get too near
the edge of a basin and fall in, and that the weight
that he was hauling would make it more likely that the
edge would give way.  Id.  Odum informed McClanahan
that the conditions at the mine did not look like
something his agency would be involved in, rendered no
opinions about safety, and referred McClanahan to the
Occupational Safety and Health Administration ("OSHA"),
MSHA, or the Virginia Division of Mines.  Id.; Tr. 26,
43.

     On September 12, McClanahan's load was weighed at 23.65
tons.  17 FMSHRC at 1781.  According to McClanahan,
Estep told McClanahan to "straighten up [his]
attitude."  Id.  According to Estep, after McClanahan's
load was found to be underweight, Estep told him that
he needed to haul the required weight and to stop being
stubborn about it.  Tr. 450.  When Estep pressed
McClanahan about whether he was going to comply with
the haulage requirements, Estep testified that
McClanahan had replied, "I might be light again and I
might not."  17 FMSHRC at 1781.  McClanahan was told to
go home and to not come to work the next day.  Id.

     On September 14, when McClanahan returned, his load 
was again weighed.  Id.  His load weighed 22.74 tons.  Id.
McClanahan was laid off for the rest of the shift and
the next day.  Id.  When he returned to work on
September 19, his load was weighed again.  Id.  His
load weighed 23.50 tons.  Id.  McClanahan was again
sent home for the remainder of the shift and the next
day.  Id.  When he returned on September 21,
McClanahan's load was again weighed.  Id.  McClanahan's
load weighed 24.96 tons.  Id.  McClanahan explained
that he had been loaded with mud, which is heavy, along
with slate.  Tr. 122.

     On the morning of September 22, Estep called McClanahan
via the CB radio and asked him to go the mine office.  17
FMSHRC at 1781.  Estep, Fortner and Gross were waiting
for him when he arrived.  Id.  According to McClanahan,
Fortner told McClanahan that he would be fired if he
hauled under the weight limit again.  Id. at 1782.
McClanahan testified that when he tried to explain that
he was scared of hauling that excessive weight and that
he did not want to risk his health or life, Fortner
replied that he had a solution for him and offered him
a job at Wellmore No. 8.  Tr. 123.  McClanahan rejected
the offer because truckers at Wellmore No. 8 were paid
by the ton hauled, and he believed that he would have
to haul twice his truck's recommended GVW "just to make
a living."  Tr. 123.

     Later that day, McClanahan's truck was weighed.  Tr. 124.
McClanahan's load weighed 22.96 tons.  17 FMSHRC at
1783.  Gross told McClanahan, "That's all for you."
Tr. 124.  When McClanahan asked him if that was all for
the day or for good, Gross replied, "You're fired."
Tr. 124.

     On November 7, 1994, McClanahan filed with MSHA a complaint
alleging discrimination in violation of section 105(c)
of the Mine Act.  Id. at 1773.  After an investigation,
MSHA advised McClanahan of its conclusion that no
violation of section 105(c) had occurred.  Id.  On
January 6, 1995, McClanahan filed with the Commission a
complaint on his own behalf pursuant to section
105(c)(3) of the Act.  Id.

     The judge denied McClanahan's discrimination complaint.
17 FMSHRC at 1793.  He found that McClanahan had made
safety complaints to management regarding dumping
refuse into slurry basins, but that those complaints
lost their protected status under the Mine Act because
management had adequately addressed them.  Id. at 1787.
He also found that McClanahan had expressed safety
concerns to management about hauling 24 or more tons.
Id. at 1788-89.  The judge concluded, however, that
McClanahan's concerns were those of a truck owner for
cost and repair, and were not  based on a good-faith
belief that the haulage requirement was hazardous to
his safety.  Id. at 1789.  The judge based his
conclusion on evidence that, as an employee of
Wellmore's, prior to McClanahan's purchase of the
truck, McClanahan repeatedly hauled more than 24 tons
without making known his complaints to management or
MSHA.  Id. at 1789-91.  In addition, the judge relied
on evidence that, after purchasing his truck,
McClanahan failed to complain to MSHA about the
purported hazards of the weight limit.  Id. at 1791-92.
The judge also found unsupported by the record
McClanahan's assertion that hauling loads in excess of
the manufacturer's recommended GVW was inherently
dangerous.  Id. at 1792.  Accordingly, the judge
dismissed the proceedings.

     On November 29, McClanahan filed a petition for
discretionary review, challenging the judge's decision,
which the Commission granted.[6]  The Commission
subsequently heard oral argument.

                               II.

                           Disposition

     McClanahan argues that the judge erred in dismissing 
his discrimination complaint.  He submits that substantial
evidence does not support the judge's findings that he
consistently hauled loads of 24 or more tons as an
employee, that he failed to contact MSHA, and that it
is not inherently dangerous to haul loads exceeding the
manufacturer's recommended GVW.  M. Br. at 7-15.
McClanahan also asserts that substantial evidence does
not support the judge's finding that his concerns about
dumping refuse into the slurry basins were adequately
addressed by management.  Id. at 15-17.  He requests
that the Commission sustain his discrimination
complaint, reverse the judge's decision, and grant him
"reinstatement with full back pay and benefits,
including any and all costs related to his unlawful
discharge, and including attorney's fees."  Id. at 19.
Wellmore responds that each of the judge's findings is
supported by substantial evidence and that the judge
correctly dismissed the complaint.  W. Br. at 4-24.

     A.   General Principles

     A miner alleging discrimination under the Mine Act
establishes a prima facie case of prohibited discrimination by
proving that he engaged in protected activity and that the
adverse action complained of was motivated in any part by that
activity.  Secretary of Labor on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980),
rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary
of Labor on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803, 817-18 (April 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
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 is also
was 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. United Castle Coal Co., 813 F.2d 639, 642 (4th Cir.
1987).

     The Mine Act grants miners the right to complain of a safety
or health danger or violation, but does not expressly grant the
right to refuse to work under such circumstances.  Nevertheless,
the Commission and the courts have inferred a right to refuse to
work in the face of a perceived danger.  See Secretary of Labor
on behalf of Cooley v. Ottawa Silica Co., 6 FMSHRC 516, 519-21
(March 1984), aff'd, 780 F.2d 1022 (6th Cir. 1985); Price v.
Monterey Coal Co., 12 FMSHRC 1505, 1514 (August 1990).  A miner
refusing work is not required to prove that a hazard actually
existed.  See Robinette, 3 FMSHRC at 812.  In order to be
protected, work refusals must be based upon the miner's "good
faith, reasonable belief in a hazardous condition."  Id.; Gilbert
v. FMSHRC, 866 F.2d 1433, 1439 (D.C. Cir. 1989).  The complaining
miner has the burden of proving both the good faith and the
reasonableness of his belief that a hazard existed.  Robinette, 3
FMSHRC at 807-12; Secretary of Labor on behalf of Bush v. Union
Carbide Corp., 5 FMSHRC 993, 997 (June 1983).  A good faith
belief "simply means honest belief that a hazard exists."
Robinette, 3 FMSHRC at 810.  The purpose of this requirement is
to "remove from the Act's protection work refusals involving
frauds or other forms of deception."  Id.

     The Commission is bound by the terms of the Mine Act to
apply the substantial evidence test when reviewing an
administrative law judge's decision.  30 U.S.C. �
823(d)(2)(A)(ii)(I).  The term "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 (November 1989) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
While we do not lightly overturn a judge's factual findings and
credibility resolutions, neither are we bound to affirm such
determinations if only slight or dubious evidence is present to
support them.  See, e.g., Krispy Kreme Doughnut Corp. v. NLRB,
732 F.2d 1288, 1293 (6th Cir. 1984); Midwest Stock Exchange, Inc.
v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980).  We are guided by
the settled principle that, in reviewing the whole record, an
appellate tribunal must also consider anything in the record that
"fairly detracts" from the weight of the evidence that supports a
challenged finding.  Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951).

     B.   Weight Requirement Complaints
              
          1.   Good Faith Belief that Weight Requirement was
               Hazardous

               a.   McClanahan's Actions as an Employee

     We conclude that substantial evidence does not support the
judge's finding that McClanahan's actions, including his
complaints about hauling 24 or more tons as an independent
contractor, were not based on a good faith belief in a hazard.
Although, as an employee, McClanahan hauled loads with actual
weights in excess of 24 tons on the seven days enumerated by the
judge, a large majority of his weighed loads over the course of
his employment weighed less than 24 tons.  See R. Ex. 2, at 27,
33-36, 38, 39, 43, 45, 46, 49, 51, 54, 59, 62, 67, 70, 74, 76.
In addition, on January 4 and 5, 1990, two of the days listed by
the judge, McClanahan was driving Truck No. 33, a different truck
than the truck he usually drove and ultimately purchased.  C. Ex.
8, at 31-33.  Contrary to the judge's finding that McClanahan did
not maintain that the trucks were essentially different (17
FMSHRC at 1790), McClanahan testified that Truck No. 33 was "a
little bit heavier duty truck" that probably had a higher GVW
than Truck No. 42.  Tr. 216.

     Moreover, it is not clear that McClanahan knew the actual
tonnage he was carrying when he hauled as an employee.
McClanahan explained that, as an employee, he did not know how
much weight he was hauling because the truck was loaded by an
endloader operator with just one "hump," or mound, of
material.[7]  Tr. 151-52, 227.  He believed that one hump
generally weighed 20 tons.  Tr. 226, 228.

     In any event, evidence that McClanahan hauled loads in
excess of 24 tons on the occasions relied upon by the judge does
not establish that McClanahan was unconcerned with his safety.
On October 12 and December 20, 1990, two of the seven days listed
by the judge, McClanahan complained to his supervisor that his
loads were too heavy.  Tr. 144, 217-18, 219.  McClanahan also
generally testified that when he was hauling in Kentucky or
loading out of a gob pile, his weights were high and that, after
he got to the scales and found out his weight, he told his
supervisor at the first opportunity that "was way too much weight
for the trucks."  Tr. 216-17.  It is difficult to construe this
statement as anything other than a safety-based complaint; there
is no evidence that McClanahan had an economic motivation, as
McClanahan did not own the truck at that time, and McClanahan was
paid the same hourly rate regardless of the tonnage that he
hauled.  McClanahan's failure to expressly link these complaints
to safety does not preclude the characterization of those
complaints as relating to safety, particularly given the
possibility of equipment failure resulting from hauling excessive
weight.  C. Ex. 16, at 2-3; Tr. 75, 108, 112, 191.

     Unlike the judge, we do not find demonstrative of a lack of
good faith evidence that "McClanahan's complaints concerning the
hauling of 24 tons or more are definitely linked to safety only
after he became the owner of the truck."  17 FMSHRC at 1790
(emphasis in original).  The basis for the safety complaints that
McClanahan made as an independent contractor was not present at
the time that McClanahan was an employee.  Wellmore did not begin
its practice of regularly weighing trucks and sending home
drivers that were not hauling at least 24 tons per load until
January 1994.[8]  17 FMSHRC at 1775.  McClanahan owned the truck
for one-and-a-half years before making complaints that hauling 24
or more tons was hazardous.  His complaints began not after he
assumed ownership of the truck in August 1992 but, rather, after
Wellmore implemented its policy requiring truckers to
consistently haul at least 24 tons or be sent home.

     Nor do we find determinative of a lack of good faith
evidence that, as an employee, McClanahan repeatedly estimated
that he hauled loads weighing 25 tons.  See R. Ex. 2.  The judge,
relying upon such evidence, stated that "it strikes me as
completely incongruous to McClanahan's purported belief in the
inherent hazards of hauling more than 24 tons, that he would have
indicated he was engaging consistently in hazardous work."  17
FMSHRC at 1790.  The judge discredited McClanahan's testimony
that, although he estimated 25 tons, he was hauling less, relying
upon evidence of the seven days in which loads were actually
weighed in excess of 24 tons.  Id.  As noted, a majority of the
weighed loads that McClanahan hauled as an employee had actual
weights of less than 24 tons.  Moreover, we do not agree with the
judge that, because McClanahan signed weight sheets estimating
his loads at 25 tons, McClanahan essentially acknowledged the
safety of hauling loads that actually weighed that amount.[9]
Section 105(c) was enacted in recognition that miners are
sometimes placed in the situation where they must effectively
choose between engaging in an activity that would compromise
their safety or forfeiting employment in areas where employment
opportunities are scarce.  See S. Rep. No. 181, 95th Cong., 1st
Sess. 35 (1977), 95th Cong., 2d Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 623 (1978)
(recognizing that miners must be protected against discrimination
as a result of their participation in safety matters and that
"mining often takes place in remote sections . . . and in places
where work in the mines offers the only real employment
opportunity").



**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.

     [2]:  Section 105 provides in part:

               (c)(1)  No person shall  discharge or in
          any manner discriminate against  or  cause to
          be discharged or cause discrimination against
          or  otherwise  interfere  with  the statutory
          rights of any miner . . . because  such miner
          . . . has filed or made a complaint  under or
          related  to  this  Act, including a complaint
          notifying the operator  .  .  . of an alleged
          danger  or  safety or health violation  in  a
          coal  or  other   mine,  or  because  of  the
          exercise by such miner . . . of any statutory
          right afforded by this Act.

               (c)(2)  Any miner  .  .  .  who believes
          that he has been discharged, interfered with,
          or  otherwise  discriminated against  by  any
          person in violation  of this subsection may .
          .  .  file  a  complaint with  the  Secretary
          alleging such discrimination. . . .

               (c)(3)  Within 90 days of the receipt of
          a complaint filed  under  paragraph  (2), the
          Secretary shall notify . . . the miner  . . .
          of his determination whether a violation  has
          occurred.     If    the    Secretary,    upon
          investigation, determines that the provisions
          of  this  subsection  have not been violated,
          the complainant shall have the right . . . to
          file an action in his own  behalf  before the
          Commission,   charging   discrimination    or
          interference in violation of paragraph (1). .
          .  .  Whenever  an order is issued sustaining
          the   complainant's    charges   under   this
          subsection,  a  sum equal  to  the  aggregate
          amount of all costs  and  expenses (including
          attorney's   fees)  as  determined   by   the
          Commission to  have  been reasonably incurred
          by the
          miner . . . for, or in  connection  with, the
          institution    and    prosecution   of   such
          proceedings  shall  be assessed  against  the
          person committing such violation.

30 U.S.C. � 815(c).

     [3]:   Wellmore  and  Knox  Creek  Coal  Corporation  ("Knox
Creek") were affiliated with United  Coal Company ("United").  17
FMSHRC at 1774; W. Br. at 1-2.

     [4]:   Wellmore witnesses denied that  McClanahan  had  made
safety  complaints,  testifying  that  McClanahan's  only  stated
concern was  for  the  wear-and-tear  that the weight requirement
would inflict on his truck.  17 FMSHRC  at 1788.  The judge found
that, at least by September 22, 1994, management  understood that
McClanahan's complaints about the weight requirement were related
to safety.  Id. at 1788-89.  Wellmore challenged that finding for
the first time at oral argument.  Oral Arg. Tr. 38-40.   Although
we  need not address arguments raised for the first time at  oral
argument  (Tarpley  v.  Greene,  684  F.2d  1,  7 n.17 (D.C. Cir.
1982)),  we  conclude  that  the judge's finding is supported  by
substantial  evidence.   As  noted   by   the  judge,  McClanahan
meticulously   documented   the  dates  and  substance   of   his
complaints.  17 FMSHRC at 1788; C. Ex. 4.  At least nine of those
complaints were related to safety.  17 FMSHRC at 1788.

     [5]:  The manufacturer's  recommended  maximum  GVW  is  the
weight  of  the empty truck plus the amount that the manufacturer
recommends  that  the  truck  haul.   McClanahan's  truck  had  a
manufacturer's  recommended  GVW  of  56,800  pounds  and weighed
26,900  pounds  empty.  Tr. 230-31.  The maximum amount that  the
truck could haul  in  accordance  with  the manufacturer's GVW is
calculated by subtracting the weight of the  empty  truck (26,900
pounds)  from the GVW of the truck (56,800 pounds) to  arrive  at
the difference  of  29,900  pounds.   Tr. 230-31.  To convert the
amount of 29,900 pounds to tons, the figure  of 29,900 is divided
by 2,000 to arrive at the amount of 14.95 tons,  or approximately
15 tons.  Tr. 231.

     [6]:  Prior to filing his petition for discretionary review,
McClanahan mailed a letter to Judge Barbour, which  was forwarded
to  and  received  by  the Commission on November 20, 1995.   The
existence of the letter  was disclosed to counsel of both parties
and copies were provided upon counsels' requests.  The Commission
determined that the letter  is  outside  of  the record on review
and, accordingly, did not consider it in its disposition  of  the
case.  See 30 U.S.C. � 823(d)(2)(C).

     [7]:   In  contrast,  during the time that Wellmore enforced
its weight requirement, truckers  were  responsible for operating
the hopper that loaded their trucks.  Tr. 509.

     [8]:   Wellmore, relying upon testimony  of  its  witnesses,
asserts that  there  had been a 25-ton haulage requirement at the
plant for years while McClanahan was an employee.  W. Br. at 5-8.
The judge declined to  credit such testimony.  17 FMSHRC at 1775.
Even if this testimony were  credited, the evidence is undisputed
that the policy requiring truckers  to haul 24 or more tons or be
sent  home  was  not  instituted at the preparation  plant  until
January 1994.  Tr. 77, 300-01, 366.

     [9]:    There  is  evidence   in   the   record   supporting
McClanahan's perception  that  he  was actually hauling less than
those  estimated weights.  McClanahan  and  Curtis  Christian,  a
former trucker  for  United,  testified  that,  at  the time that
United  owned  the  trucks,  truckers were sent home for  hauling
loads that weighed more than 20  tons.  Tr. 226, 249, 275-76.  In
addition, McClanahan testified that  the  truckers  had estimated
their  loads  to be 20 tons until approximately 1989, when  their
foreman had told  them to begin estimating their loads at 25 tons
although they did not  have  to  actually  load more weight.  Tr.
142-43, 145-46, 215.  He explained that other  United  operations
wanted  them  to haul more, while the truck supervisors did  not.
Tr. 215.  He stated  that his supervisors asked the truck drivers
to estimate 25 tons to  "keep  them off their back[s]."  Tr. 215.
McClanahan stated that management  knew  that the estimates of 25
tons were not accurate and told the truckers  to estimate 25 tons
"no matter if you had half a load or a full load  or  two buckets
full."  Tr. 215, 221.



               b.   McClanahan's Contacts with MSHA

     The judge determined that McClanahan did not have a good
faith belief that the weight requirement was hazardous because
the judge found McClanahan failed to make a safety complaint to
MSHA.  This conclusion is premised on errors of fact and law.

     Even if McClanahan had not made a safety complaint to MSHA,
the judge erred in considering that as evidence of a lack of good
faith.  In making that inference, the judge rejected out of hand
McClanahan's testimony that he feared his identity would not be
kept confidential by MSHA if he filed a complaint and that he
might be the subject of retribution.  17 FMSHRC at 1792.  Despite
the Act's confidentiality requirements, we do not consider
McClanahan's fear to be unreasonable.  See United Mine Workers of
America on behalf of Nelson v. Secretary of Labor, 15 FMSHRC 365
(March 1993) (involving allegations that MSHA officials failed to
protect confidentiality of miners who had reported safety
violations).  Moreover, the Commission has previously rejected
the contention that a miner must file a complaint with MSHA in
order to make a protected safety complaint to an operator.
Sammon v. Mine Services Co., 6 FMSHRC 1391, 1396-97 (June 1984).

     In any event, substantial evidence establishes that
McClanahan engaged in actions that clearly constitute a safety
complaint, and fails to support the judge's conclusion to the
contrary.  McClanahan testified that he contacted MSHA about the
weight requirement, but was informed that MSHA could not help.
The judge discredited this testimony based on his findings that:
(1) McClanahan later modified that testimony, stating that either
he or his wife had called; (2) McClanahan's failure to keep
records of that alleged contact was inconsistent with his record-
keeping habits; and (3) if Mr. or Ms. McClanahan had contacted
MSHA, MSHA would not have responded that there was nothing it
could do.  17 FMSHRC at 1791.

     First, contrary to the judge's findings, the record
establishes that Mr. or Ms. McClanahan did, in fact, contact
MSHA.  Ms. McClanahan testified that she made two calls to MSHA
on March 4, 1994, related the conditions at the mine, and was
informed that an effort would be made to find the correct contact
for her.  Tr. 260-62.  She stated she was given various agency
names and phone numbers because MSHA was not sure that it was the
appropriate agency to contact.  Tr. 266.  Ms. McClanahan
explained that she made several calls and that every agency she
contacted referred her to a different person or agency to
contact.  Tr. 263.  She stated that MSHA called back prior to the
time that McClanahan filed his discrimination complaint and spoke
with each of them on different dates.  Tr. 265.  She stated that,
at the time, MSHA "didn't think it was their department to handle
it until [she] explained in detail, and [she] ended up sending
some information to them to help them decide that they should
follow up on it."  Tr. 266.  She said that they later heard from
MSHA when they took McClanahan's statement in connection with his
discrimination complaint.  Tr. 266.  The McClanahans' phone bill
introduced at trial, and ignored by the judge in his decision,
indicates two calls to MSHA on March 4 for three minutes and
twenty-seven minutes.  C. Ex. 31.

     In addition, it appears that McClanahan made a concerted
effort to have his concerns addressed by other government
agencies, although he may have been uncertain as to which agency
to contact.  The McClanahans' phone bill reflects a March 4 call
to DMLR, a March 4 call to the Virginia Employment Commission,
two March 4 calls to the National Labor Relations Board, and
March 4, March 11 and March 14 calls to the Virginia Department
of Labor.  M. Br. at 13-14; C. Ex. 31.  On March 7, 1994,
McClanahan met with DMLR Inspector Odum at the refuse dumping
site.  Tr. 26.  Odum also informed McClanahan that his agency was
not the appropriate agency to contact and referred McClanahan to
OSHA or MSHA or the Virginia Division of Mines.  Tr. 26.  Such
repeated efforts do not support the judge's finding of lack of
good faith.


               c.   Summary

     In sum, substantial evidence does not support the judge's
finding that McClanahan failed to demonstrate a good faith belief
that hauling 24 or more tons was hazardous.  Accordingly, we
reverse the judge's finding that McClanahan's safety complaints
regarding Wellmore's weight requirements were not based on a good
faith belief in a hazard.

          2.   Reasonableness of Belief that Weight Requirement
               was Hazardous

     Because the judge dismissed McClanahan's complaints
regarding Wellmore's weight requirement on the basis that they
were not made in good faith, he did not reach the question of the
reasonableness of McClanahan's belief that the weight requirement
was hazardous.  However, the judge rejected McClanahan's
assertion that it was inherently dangerous to haul over the
manufacturer's recommended GVW.  17 FMSHRC at 1792.  The judge
reasoned the assertion was not supported by the record because
McClanahan had consistently hauled loads in excess of that
amount, and Virginia and Kentucky licensed the truck to haul
loads beyond the manufacturer's maximum GVW.  Id.  McClanahan
argues that substantial evidence does not support the judge's
finding.  M. Br. at 7-13.

     The Commission has "rejected a requirement that miners who
have refused to work must objectively prove that the hazards
existed . . . [and has] adopted a `simple requirement that the
miner's honest perception be a reasonable one under the
circumstances.'"  Secretary of Labor on behalf of Pratt v.
Hurricane Coal Co., 5 FMSHRC 1529, 1533 (September 1983), quoting
Robinette, 3 FMSHRC at 812.  Our focus, therefore, is on the
reasonableness of McClanahan's belief that the weight requirement
was hazardous.

     The record reveals that, after January 1994, McClanahan was
required to haul on a regular basis an amount that exceeded the
manufacturer's recommended GVW by approximately 60 percent.  M.
Reply Br. at 4.  As acknowledged by the judge, "if the truck was
going to have to haul 24 tons or more each time it was loaded,
there was going to be wear and tear on the truck."  17 FMSHRC at
1790-91.  Equipment failure could lead to serious accidents.  C.
Ex. 16, at 2-3; Tr. 75, 108, 112, 191.  For instance, McClanahan
testified that if the driveline broke, the truck would be unable
to stop and could travel over the highwall.  Tr. 74-75, 85.

     In recognition of such hazards, MSHA issued an alert, dated
November 22, 1994, cautioning mine operators and independent
contractors that accidents involving haulage trucks are the
leading cause of death at surface mines.  C. Ex. 16, at 1.  The
MSHA alert states in part that, to prevent haulage accidents,
equipment operators should not overload their trucks.  C. Ex. 16,
at 3.  See also C. Ex. 17, at 1 (to prevent surface haulage
accidents, truck[ers] . . . should . . . [n]ever exceed the
truck's rated load capacity").  Similarly, the 1990 Ford Truck
Owner's Guide states that "[u]nder no circumstances should your
vehicle be loaded in excess of the [recommended GVW]," while the
warranty booklet provides that exceeding the recommended GVW may
void the truck's warranty.  C. Exs. 18, 19.  A memorandum from
MSHA District Manager Ray McKinney, dated November 1, 1994, also
refers to problems at the mine associated with hauling in excess
of the maximum GVW:

          The trucks hauling slate to the slate dump
          are required to haul at least 24 tons which
          exceeds the manufacturer recommended load by
          7 to 9 tons (depending on type of truck).
          Several of the employees interviewed felt
          like at certain times this is unsafe.  When
          the haul road is wet and muddy it is
          difficult to control the truck.  The
          excessive weight that the trucks are required
          to haul also causes breakdowns while
          operating the truck which causes unsafe
          operating conditions. . . .

C. Ex. 27, at 3.

     We find unavailing evidence relied upon by Wellmore to
support its contention that McClanahan's safety concerns about
the weight requirement were unfounded. Wellmore emphasizes that,
during a haulage technical inspection conducted at the mine on
November 9, 1994, MSHA investigators did not observe any unsafe
conditions or practices at the mine.  C. Ex. 27, at 1-2.
However, the trucks observed during that inspection were not
weighed and could have been hauling under Wellmore's weight
limitation.  C. Ex. 27, at 1-2.  In addition, the Commission has
repeatedly recognized that the "fact that a subsequent
investigation fails to confirm an actual violative condition does
not vitiate the reasonableness of a miner's work refusal."
Secretary of Labor on behalf of Hogan v. Emerald Mines Corp., 8
FMSHRC 1066, 1073 n.4 (July 1986) (citations omitted).  Moreover,
Wellmore offered no persuasive evidence to refute the assertion
that consistently hauling in excess of the rated capacity of
trucks posed safety risks.  In fact, the only evidence it offered
was testimony by its witnesses that they did not consider
Wellmore's haulage requirement unsafe.  Tr. 491, 517-18; R. Ex.
1, at 25-37.[10]  The operator's vice president of preparation
acknowledged that Wellmore instituted the 24-ton requirement
without consideration of the size of the trucks or their GVW.
Tr. 302-03.  Wellmore's sole criterion in establishing the weight
limit was simply the amount of refuse that needed to be hauled by
each truck in order to keep the plant operating.  Tr. 302-03.

     We therefore conclude that the record supports no other
conclusion than that McClanahan reasonably believed Wellmore's
weight requirement was hazardous.  In such circumstances, a
remand to the judge for consideration of the issue would serve no
purpose.  See American Mine Services, Inc., 15 FMSHRC 1830, 1834
(September 1993), citing Donovan v. Stafford Constr. Co., 732
F.2d 954, 961 (D.C. Cir. 1984) (remand unnecessary because
evidence could justify only one conclusion).  Accordingly, we
conclude that McClanahan expressed a good faith, reasonable
concern about the safety of Wellmore's weight requirement.

          3.   Adequacy of Operator's Response

     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 Bush, 5 FMSHRC at 997-99;
Thurman v. Queen Anne Coal Co., 10 FMSHRC 131, 135 (February
1988), aff'd, 866 F.2d 431 (6th Cir. 1989).  A miner's continuing
refusal to work may become unreasonable after an operator has
taken reasonable steps to dissipate fears or ensure the safety of
the challenged task or condition.  Bush, 5 FMSHRC at 998-99.
Having dismissed McClanahan's complaint on the ground of lack of
good-faith belief in the existence of a hazardous condition, the
judge did not reach the issue of the adequacy of Wellmore's
response to McClanahan's concerns.

     At the September 22 meeting, the last time McClanahan
expressed his safety concerns to Wellmore about the weight
requirement, McClanahan was offered work at Wellmore No. 8, where
truckers were paid by the tonnage hauled rather than by the hour.
17 FMSHRC at 1775, 1782.  McClanahan testified he declined the
offer because he would have to haul twice the GVW just to make a
living, that the truckers there were "having all kinds of
problems," and that the hazardous conditions would remain
unchanged.  Tr. 123.  McClanahan testified that in late 1992,
Clifford Hurley had informed him that since the company had begun
paying truckers at Wellmore No. 8 by the ton, truckers were "more
or less racing," and Hurley was afraid to visit the site because
he might get run over.  Tr. 155-56.  McClanahan testified that
truckers were being paid approximately 65 cents a ton and those
truckers had informed him they were hauling 35 to 40 tons per
trip to make a living.  Tr. 156.  Wellmore presented no evidence
rebutting McClanahan's testimony.

     We conclude the record supports no other conclusion than
that Wellmore's offer for alternate employment did not adequately
quell McClanahan's safety concerns about the 24-ton weight
requirement.  Wellmore took no action to determine whether
McClanahan's concerns regarding consistently hauling
approximately 60 percent in excess of the truck's recommended GVW
were reasonable.  Rather, it ignored those concerns, essentially
offering McClanahan the choice of hauling equal or greater
weights than the 24-ton limit that he reasonably and in good
faith believed to be unsafe, or transferring him to Wellmore No.
8 where McClanahan believed the working conditions were unsafe
and where he would be taking an untenable reduction in pay.  A
conclusion that Wellmore adequately quelled McClanahan's fears
under such circumstances would run counter to the remedial
purposes of section 105(c) of the Mine Act.  See Secretary of
Labor on behalf of Parker v. Metric Constructors, Inc., 766 F.2d
469, 472 (11th Cir. 1985), aff'g 6 FMSHRC 226 (February 1984)
(discrimination found where operator offered discriminatees the
choice of returning to hazardous conditions or going home).[11]
Therefore, we conclude Wellmore failed to address McClanahan's
concern about the weight requirement in a way that his fears
reasonably should have been quelled.  Accordingly, we hold that
McClanahan's refusal to haul Wellmore's weight requirement was
protected under the Act, and that Wellmore's termination of
McClanahan violated section 105(c)(1) of the Act.[12]

          4.   Remedy

     Wellmore is hereby ordered to immediately reinstate
McClanahan to the position he held as a trucking contractor to
the operator prior to his termination on September 22, 1994.  By
this decision we also advise the Secretary of Labor, who was not
a party to this action, that we have ordered reinstatement and
that, pursuant to section 103(a)(4) of the Mine Act, 30 U.S.C.
� 813(a)(4), the Secretary has the authority and duty to ensure
that "there is compliance with
the . . . decision" rendered herein.  We remand for calculation
of the amount of back pay, interest, hearing expenses and
reasonable attorney's fees to be awarded McClanahan.



**FOOTNOTES**

     [10]:   Evidence  was  offered  showing  that  Virginia  and
Kentucky   licensed   the   truck   to  carry  loads  beyond  the
manufacturer's  recommended GVW.  17 FMSHRC  at  1792.   However,
Wellmore's counsel  confirmed  at oral argument that these limits
applied only to highway, not off-road, travel.  Oral Arg. Tr. 51-
52.  Moreover, even if the Virginia  weight limit had applied, it
only would have permitted McClanahan to haul about 16.5 tons.  17
FMSHRC at 1778.

     [11]:  An offer of reemployment conditioned  upon  a miner's
willingness  to  work under dangerous conditions of which he  has
previously complained  has  been  held to constitute a separately
actionable  violation  of  section  105(c)   of   the  Mine  Act.
Secretary of Labor on behalf of Keene v. Mullins, 888  F.2d  1448
(D.C. Cir. 1989).

     [12]:   Given  our  holding,  we  need  not  address whether
McClanahan's slurry basin complaints lost their protected  status
under the Act because management adequately addressed them.



                               III.

                            Conclusion

     For the foregoing reasons, we reverse the judge's conclusion
that Wellmore did not discriminate against McClanahan in
violation of section 105(c)(1) of the Mine Act.  We order
McClanahan's immediate reinstatement and remand for expeditious
calculation of a monetary award consistent with this decision.


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