<DOC>
[DOCID: f:weva94357.wais]

 
TANGLEWOOD ENERGY, INC.; FERN COVE, INC.
WEVA 94-357-D
May 15, 1997


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730  K  STREET  NW,  6TH  FLOOR

                     WASHINGTON, D.C. 20006


                          May 15, 1997

                                :
SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
  on behalf of SAMUEL KNOTTS,   :
                                : Docket No. WEVA 94-357-D
          v.                    :
                                :
TANGLEWOOD ENERGY, INC.,        :
  FERN COVE, INC., RANDY BURKE  :
  and RANDALL KEY               :
                                :

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


                             DECISION
BY THE COMMISSION:

     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"), involves challenges to decisions
by Administrative Law Judge Roy J. Maurer.  After an evidentiary
hearing, the judge issued his decision on liability in favor of
complainant Samuel Knotts.  17 FMSHRC 1044 (June 1995) (ALJ).
Subsequently, the judge issued his decision on damages.  17
FMSHRC 1667 (September 1995) (ALJ).  Tanglewood Energy, Inc.
("Tanglewood") filed a petition for discretionary review of  the
judge's finding that Tanglewood[2] violated section 105(c) of 
the Mine Act, 30 U.S.C. � 815(c), and his holding that both the 
corporate and individual respondents are jointly and severally 
liable.  The Secretary of Labor filed a petition for 
discretionary review of the remedy and the civil penalty 
assessed. The Commission granted both petitions. For the reasons 
that follow, we affirm the liability ruling, reverse the judge's 
deduction of unemployment compensation from the backpay award, 
and vacate and remand the penalty determination.

                                I.

                Factual and Procedural Background

     At the time of his discharge on January 28, 1994, Samuel
Knotts had been employed by Tanglewood for approximately three
years as an "outside man."  Tr. I 137.[3]  Knotts' duties as an
outside man included loading trucks, stockpiling coal, sweeping
the men's dressing rooms, ordering supplies, watching the belts
to ensure they were running, checking the mantrips, answering
questions from visitors to the mine and performing mechanical
work on equipment. 17 FMSHRC at 1053; Tr. I 138.

     During the time he worked at the mine, Knotts communicated
information about safety violations at the site to state and
local inspectors.  17 FMSHRC at 1046-1048.  Mine management was
aware of Knotts' actions.  Id. at 1048; Tr. I 41.

     On September 1, 1993, Knotts testified on behalf of the
Secretary in the case of Secretary of Labor on behalf of Poddey
v. Tanglewood Energy, Inc., 15 FMSHRC 2401, 2411 (November 1993)
(ALJ).  17 FMSHRC at 1048.  Knotts' testimony was specifically
cited by the administrative law judge in that case to support 
his finding of discrimination. 15 FMSHRC at 2411. On January 25,
1994, the administrative law judge in the Poddey case issued his
decision on damages.  17 FMSHRC at 1048.

     On January 27, 1994, Randy Campbell, a representative of 
the mine landowner, arrived at the mine office to investigate
conditions in order to submit a productivity report to the
landowner. Id. at 1049. Knotts attempted to secure Campbell a
ride underground but was told there was no transportation
available for this purpose. Tr. I 102, 103, 105. Campbell then
spoke by telephone with Randall Key, vice president of
Tanglewood, who at the time was working underground. Tr. I 106.
After his telephone conversation with Key, Campbell remained in
the mine office and asked Knotts questions about the mine. Tr. 
I 106-07.  Key was able to listen to this conversation from
underground, via the telephone.  Tr. II 130.

     During the conversation, Campbell and Knotts discussed the
general condition of the belts, problems with production, the
amount of downtime, equipment problems and morale at the mine.
Tr. I 111.  They also discussed the ram cars, the mine vacation
policy, bypassed components on mantrips, previous safety
violations at the mine, and the purchase of a new truck by Randy
Burke, Tanglewood's president.  17 FMSHRC at 1049.  The judge
found that the conversation could have lasted as long as 1 hour
and 30 minutes.  Id. at 1050.


**FOOTNOTES**

     [1]: Commissioner Verheggen assumed office after this case
had been considered and decided at a Commission decisional
meeting.  A new Commissioner possesses legal authority to
participate in pending cases, but such participation is
discretionary.  Mid-Continent Resources, Inc., 16 FMSHRC 1218,
n.2 (June 1994).  In the interest of efficient decision making,
Commissioner Verheggen has elected not to participate in this
matter.

     [2]: The Secretary also charged Fern Cove, Inc. ("Fern
Cove"), a successor in interest to Tanglewood, Randy Burke
(President of Fern Cove and Tanglewood) and Randall Key (part
owner and officer of Fern Cove and Vice President of Tanglewood).
We refer to all of these respondents as "Tanglewood."

     [3]:  References to "Tr. I" are to the January 19, 1995
transcript; references to "Tr. II" are to the January 20, 1995
transcript.


     The next morning, Key called Knotts into the mine office 
and discharged him.  Tr. I 164-167, 260.  Knotts testified that,
prior to discharging him, Key stated, "[w]e have suspected for a
long time that you've been telling them what is going on."  Tr.
164.  Key maintains he fired Knotts because he sat in the office
for two hours and talked to Campbell, instead of doing his work.
Tr. II 140.  Key's testimony indicates that he was also upset
about Knotts' statements criticizing mine management.  Tr. II
131, 133, 138.

     Knotts filed a complaint of discrimination with the
Department of Labor's Mine Safety and Health Administration
("MSHA"), which determined that Knotts had been discriminated
against in violation of section 105(c) of the Mine Act.  The
Secretary then filed a complaint of discrimination with the
Commission.

     The judge determined that Tanglewood violated section 
105(c) by discharging Knotts. 17 FMSHRC at 1054.   He concluded 
that Knotts had engaged in protected activity and that his 
discharge was motivated at least in part by his protected 
activity.  Id. at 1051-54.  He found that Tanglewood did not 
meet its burden of proving its affirmative defense by showing 
that it would have taken the adverse action in any event. Id. at 
1054.  He rejected Tanglewood's argument that it fired Knotts 
for talking to Campbell for a long period of time instead of 
doing his job, concluding that Knotts was "essentially doing his 
job" during the conversation.  Id. at 1053.  He did not accept 
Tanglewood's contention that Knotts was fired due to the critical 
nature of his comments because, according to the judge, "in the 
context of the coal mining industry this was pretty mild stuff." 
Id.

     With respect to the remedy, the judge found Tanglewood, 
Fern Cove, Burke and Key jointly and severally liable.  
17 FMSHRC at 1667.  He awarded Knotts $20,760 in backpay, and
ordered that $3,640 Knotts received in state unemployment
benefits be deducted from that amount.  Id.  He assessed a 
civil penalty of $1,000 against the respondents, although the 
Secretary had sought a penalty of $25,000.  Id. at 1668.  The 
judge based his penalty assessment in part on his conclusion 
that this was "a relatively close `mixed-motives' case."  Id.  
He also noted that the mine was experiencing serious financial 
difficulties including several hundred thousand dollars in 
civil penalties that it had not paid. Id.  He suggested that 
the backpay award to Knotts would serve as a disincentive 
against future discrimination violations. Id.

                               II.

                           Disposition

     Tanglewood argues that it took no adverse action against
Knotts for cooperating with mine inspectors, or for being a
witness in the Poddey case, noting that these events occurred
well before the discharge.  T. Reply Br. at 2.  Tanglewood
asserts that it had perceived Knotts' testimony as neutral, not
adverse to the company.  Id.   It argues that Knotts'
conversation with Campbell was not protected activity, because
the discussion was either "production related, or of a gossiping
nature."  T. Br. at 7.  Tanglewood insists that it would have
taken the adverse action in any event for Knotts' unprotected
activity alone, and that the duration and content of the
conversation warranted his termination.  Id. at 12.  Tanglewood
contends that Knotts was not doing his job during the lengthy
conversation with Campbell.  T. Reply Br. at 4.

     As to the penalty issues, Tanglewood contends that
individual liability may only be based on section 110(c) of the
Mine Act, 30 U.S.C. � 820(c), which provides for civil penalties
against certain directors, officers or agents of a corporate
operator for knowing violations.  T. Br. at 13.  Tanglewood
argues that, since Burke and Key acted in good faith, they could
not have knowingly violated the law.  Id.  With respect to the
penalty against Tanglewood, it claims that the judge did not
ignore the penalty criteria of section 110(i), 30 U.S.C. �
820(i), and that the penalty was appropriate because of large
financial losses experienced by Tanglewood in the last two years
of its existence.  T. Reply Br. at 7-8.  It supports the judge's
deduction of unemployment compensation.  Id. at 8.

     The Secretary contends that Knotts made safety complaints 
to Campbell during their conversation, which suffices to
establish that Knotts engaged in protected activity under the 
Mine Act.  S. Br. at 10.  He relies on the judge's holding that
parts of the conversation containing mildly "inflammatory 
language" were "an inextricable part of the safety discussion," 
and did not motivate Knotts' discharge.  Id. at 14.  The
Secretary argues that the operator failed to prove its 
affirmative defense that it would have taken the adverse action 
in any event for the unprotected activity alone. Id. at 11-14.

     The Secretary claims that the question of individual
liability is not before the Commission because the operator did
not raise it before the judge.  S. Br. at 14.  In the
alternative, the Secretary relies on prior Commission cases 
where joint and several liability for 105(c) violations has been
imposed on individual respondents. Id. at 15.  He argues that it
is appropriate to impose liability on Burke and Key because they
are president and vice president of the corporate respondents and
because they personally made and carried out the decision to fire
Knotts.  Id. at 15-16.  The Secretary also contends that the
judge failed to consider and properly apply the six statutory
penalty criteria of section 110(i) of the Mine Act when he
assessed a civil penalty of $1,000 for the violation, and that 
he improperly reduced Knotts' backpay award by the amount of
unemployment compensation he received.  Id. at 22-29.

     A.   General principles

     A miner alleging discrimination under the 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 also was motivated by the miner's unprotected
activity and would have taken the adverse action for the
unprotected activity alone.   Id.; Robinette, 3 FMSHRC at 817-18;
see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642
(4th Cir. 1987).

     B.   Liability

          1.   Protected Activity

     The judge's finding that Knotts engaged in protected
activity is supported by substantial evidence.[4]  Although
remote in time from the discharge, it is undisputed that Knotts
had previously engaged in protected activity by testifying in
Poddey and assisting inspectors. His conversation with Campbell
was also protected, as it included complaints about unsafe
equipment at the mine.  Knotts testified that his purpose in
telling Campbell about violations at the mine was to make
conditions there safer.  Tr. I 179-80.  The judge found that
Knotts was motivated by his belief that Campbell's report to the
landowner could positively influence safety at the mine.[5]  17
FMSHRC at 1051.  The operator's claim that the discussion was
either "production related, or of a gossiping nature," T. Br. at
7, is not supported by the record. Substantial evidence supports
the judge's finding that the conversation included the mine's
violation history, the condition of the batteries on the ram
cars, and the condition of the mantrips.  Tr. I 112-113, 179.

     Moreover, Knotts met his burden of proving that the
discharge was motivated at least in part by his protected
activity.  Because direct evidence of discriminatory motive is
rare, it may be established by circumstantial evidence.
Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508, 2510 (November 1981), rev'd on other grounds, 709
F.2d 86 (D.C. Cir. 1983).  Here, Knotts proved discriminatory
intent by showing that the operator had full knowledge of his
protected activities and that only a short period of time 
elapsed between the final protected activity (his conversation 
with Campbell) and the discharge.

          2.   Affirmative Defense

     The intermediate burdens of producing evidence and of
persuasion shift to the operator to prove the elements of the
affirmative defense that it would have taken the adverse action
in any event based on the miner's unprotected activity.
Robinette, 3 FMSHRC at 818 n.20.  The Commission has cautioned
that this affirmative defense should not be "examined
superficially or be approved automatically once offered."  Haro
v. Magma Copper Co., 4 FMSHRC 1935, 1938 (November 1982).  In
reviewing affirmative defenses, the judge must "determine
whether they are credible and, if so, whether they would have 
motivated the particular operator as claimed."  Id. (citation 
omitted).

     The Commission has articulated ways in which an operator 
may prove its affirmative defense.  These include showing "past
discipline consistent with that meted out to the alleged
discriminatee, the miner's unsatisfactory past work record, prior
warnings to the miner, or personnel rules or practices forbidding
the conduct in question."  Bradley v. Belva Coal Co.,
4 FMSHRC 982, 993 (June 1982).

     Substantial evidence  supports the judge's finding that
Tanglewood failed to prove its affirmative defense.  It offered
no evidence of past discipline, prior work record, or personnel
practices showing that it would have terminated Knotts regardless
of his protected activity.  In fact, it admitted that Knotts was
"one of the best employees."  Tr. II 144.  Instead of addressing
the Bradley criteria, Tanglewood's affirmative defense relies on
two other asserted reasons why it would have fired Knotts in any
event.  First, it contends it would have fired Knotts despite his
protected activity because he was neglecting his work during his
lengthy conversation with Campbell.  We conclude, however, that
the judge's finding that Knotts was essentially doing his job
during the time he spoke with Campbell is supported by
substantial evidence.  Knotts' foreman admitted that miners were
permitted to answer questions posed by engineers and inspectors.
Tr. I 265.  At the hearing, Key affirmed his deposition testimony
that he wouldn't have fired Knotts for answering questions for 30
minutes.  Tr. II 161-164.[6]  Moreover, Knotts' job duties
included answering questions of visitors such as Campbell, 17
FMSHRC at 1053, and substantial evidence supports the judge's
finding that most of Knotts' conversation consisted of
"embellished responses to questions put to him by Campbell."  Id.

     Campbell's testimony that he initiated questions to Knotts
because Knotts was knowledgeable, Tr. I 107, further supports 
the judge's finding that Knotts was performing his job duties 
by speaking with Campbell. The purpose of Campbell's visit was 
to represent the mineral owners, inspect the mine and to ask
questions concerning the production and the manner in which coal
was mined.  Tr. I 123.  His inspection report included
information he learned during his conversation with Knotts. Tr.
I 117-19. Campbell's testimony indicates that the conversation
was business-oriented, and that during the discussion Knotts
provided relevant information to the landowners' agent, who,
according to Burke's testimony, had the right to be at the mine
gathering data for his report.  Tr. II 80-81.

     Tanglewood also asserts that, notwithstanding Knotts'
protected activity, it would have fired Knotts in any event for
expressing disparaging views about mine management during his
conversation with Campbell.[7]  PDR at 12-13; Tr. II 135, 138-39.
The conversation between Knotts and Campbell contained both
protected and unprotected elements.  The parts of the
conversation that were protected included a discussion of the
origin, condition and batteries on the ram cars; the mantrips 
and the fact that a lot of them were junked or needed 
substantial repairs; bypassed components on mantrips; and the 
history of violations at the mine.  17 FMSHRC at 1049.  On the 
other hand, the discussion regarding morale at the mine, the 
prior foreman, problems with management, vacation pay issues, 
problems with the bucket count, the purchase of a new company
truck, and a statement allegedly made by Knotts that the mine 
manager "sets outside with his feet on the desk and acts like
a bigshot coal operator,"[8] Tr. I 253, was unprotected.

     In effect, the judge made a credibility determination that
Key would not have fired Knotts based on these unprotected
statements alone.  See Bradley, 4 FMSHRC at 993 (judge must
assess credibility of justification offered as affirmative
defense).  The Commission does not lightly overturn credibility
determinations, which are entitled to great weight.  In re:
Contests of Respirable Dust Sample Alteration Citations, 17
FMSHRC 1819, 1878 (November 1995) (citations omitted).
Generally, we  will uphold a judge's credibility determination
unless compelling evidence supporting reversal is offered. See,
e.g., S&H Mining, Inc., 15 FMSHRC 956, 960 (June 1993); Bjes v.
Consolidation Coal Co., 6 FMSHRC 1411, 1418 (June 1984). When a
judge's finding rests upon a credibility determination, we will
not substitute our judgment for that of the judge absent a 
clear indication of error.  Metric Constructors, Inc. 6 FMSHRC 
226, 232 (February 1984), aff'd 766 F.2d 469 (11th Cir. 1985).

     Here, although the record is silent regarding the judge's
assertion that "in the context of the coal mining industry this
was pretty mild stuff compared to many other cases which come
before the trial judges of this Commission,"  17 FMSHRC at 1053,
we find no compelling reason to overturn the judge's credibility
finding.  Key's testimony that "it wasn't a very good feeling"
listening to Knotts "hammer  .  .  .  [him and his] partner  
.  .  .  criticizing everything we done [,]" Tr. II 138-39, 
appears to refer to protected as well as unprotected activity. 
Moreover, a significant portion of the conversation between 
Campbell and Knotts concerned safety issues.

     We think these protected safety concerns expressed by Knotts
were inextricably linked with the unprotected statements made
during the conversation.  As the Supreme Court has stated, "[i]t
is fair that  .  .  . [the employer] bear the risk that the
influence of legal and illegal motives cannot be separated." NLRB
v. Transportation Management Corp., 462 U.S. 393, 403 (1983).
See also Secretary of Labor on behalf of Nantz v. Nally &
Hamilton Enterprises, Inc., 16 FMSHRC 2208, 2214 (November 1994).

     Because Tanglewood failed to produce any other evidence
(such as prior discipline of Knotts or others for similar
conduct) that Knotts' statements warranted discharge, the judge
correctly determined that Tanglewood did not meet its burden of
establishing its affirmative defense that Knotts' unprotected
statements, by themselves, led to his dismissal.  Consequently,
he correctly found that both the corporate and individual
respondents discriminated against Knotts in violation of section
105(c)(2).[9]

     C.   Penalty Assessment

     The judge erred in his assessment of the civil penalty. He
considered only one of the six statutory penalty criteria of
section 110(i), the operator's ability to stay in business.  17
FMSHRC at 1668.  We remand the case for consideration of the
other five criteria.  See Dolese Bros. Co., 16 FMSHRC 689, 696
(April 1994).  On remand, the judge should make findings of fact
regarding the criteria that provide the respondents with the
required notice as to the basis upon which they are being
assessed a particular penalty, and "also provide the Commission
and the courts . . . with the necessary foundation upon which to
base a determination as to whether the penalties assessed by the
judge are appropriate, excessive, or insufficient."  Sellersburg
Stone Co., 5 FMSHRC 287, 292-93 (March 1983), aff'd, 736 F.2d
1147 (7th Cir. 1984). See also Sunny Ridge Mining Co., 19 FMSHRC
254, 272 (February 1997).

     In concluding that a $1,000 penalty was appropriate the
judge considered that "[t]his was a relatively close `mixed-
motives' case where the complainant prevailed by the thinnest of
margins."  17 FMSHRC at 1668.  Commission precedent makes clear
that the judge must confine himself to the statutory penalty
criteria.  See Dolese, 16 FMSHRC at 695.  Nonetheless, the
Commission has recently held that a judge is permitted to
determine whether mitigating factors exist that would reduce the
level of negligence, one of the statutory factors to be
considered.   Secretary of Labor on behalf of Poddey v.
Tanglewood Energy, Inc., 18 FMSHRC 1315, 1319-20 (August 1996).
Similarly, when the judge evaluates the degree of operator
negligence in this case, he may take mitigating circumstances
into account, including the unprotected part of Knotts'
conversation with Campbell.

     However, the judge mistakenly concluded that the $25,000
penalty proposed by the Secretary was not appropriate because
the backpay award to Knotts would serve as a deterrent.  The
legislative history of the Mine Act makes clear that "[t]he
relief provided under section [105(c)] is in addition to that
provided  .  .  .  for violation of standards." S. Rep. No. 181,
95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee
on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act of
1977, at 623 (1978) (emphasis added).  The judge also erred when
he reduced the civil penalty on the basis that the operator had
failed to pay large civil penalties in the past.  "An operator's
delinquency in payment of penalties is not one of the criteria
set forth in section 110(i) of the Mine Act for consideration in
the assessment of penalties."  Secretary of Labor on behalf of
Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 841, 850 (June
1996).

     Finally, we reverse the judge's order deducting Knotts'
unemployment compensation from his backpay award.  Poddey, 18
FMSHRC at 1323-25.

                               III.

                            Conclusion

     For the foregoing reasons, we affirm the judge's finding
that the corporate and individual respondents discriminated
against the complainant in violation of section 105(c).   We
vacate the judge's penalty assessment and remand to the Chief
Administrative Law Judge for reassignment[10]  and for proper
consideration.  We reverse the judge's order deducting
unemployment compensation from the backpay award.


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



**FOOTNOTES**

     [4]:  The Commission is bound by the terms of the Mine Act
to apply the substantial evidence test when reviewing an
administrative law judge's factual determinations.  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)). In reviewing the whole record, an appellate tribunal
must 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).

     [5]:  By making this finding, the judge implicitly held 
that Knotts met the requirement that a complaint be made "under 
or related to this Act" in order to come under the protection of
section 105(c)(1).  That section defines "under or related to
this Act" as "including a complaint notifying the operator or 
the operator's agent, or the representative of the miners . . .
of an alleged danger or safety or health violation." 30 U.S.C. 
� 815(c)(1) (emphasis supplied). Congress' use of the term
"including" indicates that this list of persons to whom
complaints may be made is not exclusive.  Because we conclude
that Campbell, as the representative of the mine owner, was in a
position to affect mining operations (Tr. I 97; P. Ex. 7) and,
hence, safety, we need not specify here all the different
categories of individuals to whom protected complaints may be
made. Accordingly, we find that Knotts safety complaints to
Campbell were "under or related to" the Act.

     [6]:  The operator's contention that Campbell had not posed
safety-related questions to Knotts during the conversation is
simply not dispositive, as Key testified that Knotts' job duties
included answering questions "on things that pertained to the
mines," Tr. II 162, not solely those that were safety-related.

     [7]:  The operator's reliance on Knotts' statement during
the conversation that he could be fired if management could hear
his comments is misplaced.  T. Br. at 9-10.  Tanglewood's
construction of this comment as an admission of wrongdoing is 
not the only possible reading.  It is equally plausible that 
Knotts was making a prediction about his manager's unlawful 
reaction to Knotts' safety complaints.

     [8]:  This is arguably the most "inflammatory" remark
attributed to Knotts, but both he and Campbell deny that he said
it.  Tr. I. 115, 160. The judge did not make a finding regarding
this disputed fact.

     [9]:  Tanglewood's contention that the individual
respondents could only be found liable in this case if they had
been charged under section 110(c) is not before the Commission
because Tanglewood failed to raise this question before the
judge.  30 U.S.C. � 113(d)(2)(A)(iii); see United States v. L.A.
Tucker Truck Lines, Inc., 344 U.S. 33, 36 (1952); U. S. Steel
Mining Co., 8 FMSHRC 314, 318 n.4 (March 1986); Jones & Laughlin
Steel Corp., 5 FMSHRC 1209, 1211-12 (July 1983).

     [10]:  Judge Maurer has transferred to another agency.