Scotts Branch Mine

Read the official release (fmshrc.gov)

Plain-English summary

Eddie D. Johnson alleged that Scotts Branch Mine transferred him from a coal-producing section to construction work in retaliation for safety complaints and his work on the mine safety committee. The judge found that the mine was reorganizing its workforce to improve production before installing a longwall machine, and that Johnson kept the same job classification, pay, shift, and committee role. The evidence did not establish that the transfer or later events were discriminatory. The complaint and claims for relief, including costs, were dismissed.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(1), (2), and (3)
• Outcome: The discrimination complaint was dismissed, and the complainant's claims for relief were denied.
• Key point: A workforce realignment motivated by legitimate production concerns is not discrimination merely because it affects an employee who has made safety complaints.

Full text (FMSHRC public release)

CCASE:
EDDIE JOHNSON V. SCOTTS BRANCH MINE
DDATE:
19871102
TTEXT:

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           Federal Mine Safety and Health Review Commission
                  Office of Administrative Law Judges

EDDIE D. JOHNSON, DISCRIMINATION PROCEEDING
COMPLAINANT
v. Docket No. KENT 87-26-D
MSHA Case No. PIKE CD 86-16
SCOTTS BRANCH MINE,
RESPONDENT Scotts Branch Mine

                                 DECISION

Appearances: Mr. James Boyd, International Representative,
UMWA, District 30, Pikeville, Kentucky, for
the Complainant;
Mr. Edward N. Hall, Robinson & McElwee,
Lexington, Kentucky, for the Respondent.

Before: Judge Koutras

                           Statement of the Case

 This proceeding concerns a discrimination complaint filed on

November 12, 1986, by the complainant Eddie D. Johnson pursuant
to section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 801 et seq. Mr. Johnson filed his initial
complaint with the Secretary of Labor, Mine Safety and Health
Administration (MSHA), and following an investigation of his
complaint, MSHA made a determination that a violation of section
105(c) had not occurred, and informed Mr. Johnson of this finding
by letter of October 16, 1986. Mr. Johnson then filed a timely
complaint with the Commission pro se, but subsequently retained
the United Mine Workers of America (UMWA), District 30, to
represent him in connection with his complaint. A hearing on the
merits of the complaint was held in Pikeville, Kentucky, and the
parties appeared and participated fully therein. The parties
filed posthearing briefs, and the arguments presented therein
have been considered by me in the adjudication of this matter. I
have also considered the arguments advanced by the parties during
the course of the hearing, as well as the testimony presented in
the depositions of the complainant, which are a matter of the
record herein.

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The complainant contends that he was transferred from a coal
producing section (first right) of the mine where he was employed
as a continuous-miner operator, and also served as a member of
the mine safety committee, to a construction section in
retaliation for withdrawing himself from unsafe places and for
making complaints about certain unsafe conditions on the first
right section. He also contends that mine management has harassed
and intimidated him for making safety complaints, and for
exercising his rights as a safety committeeman, and that mine
management is still harassing him and interfering with his rights
as a committeeman. Complainant's initial requested relief was to
be transferred back to his job on the first right producing
section, and an order prohibiting the respondent from further
subjecting him to harassment because of his safety concerns and
activities as a member of the safety committee.

 The respondent filed a timely answer to the complaint, and

it denies that it has discriminated against the complainant or
harassed him because of his safety complaints and his activities
as a member of the safety committee. The respondent asserts that
the complainant's transfer from a coal producing section to a
construction section was part of an overall work force
realignment which took place on June 2, 1986, and that the
realignment was the result of a management decision to realign
its work force to increase production on its working sections,
including the first right section, in preparation for the
installation of a longwall mining machine. Respondent contends
that even assuming that the realignment and transfer of the
complainant could have been motivated in part by protected
activity, which it denies, it nonetheless had a legitimate right
and concern for increasing production on the complainant's
section in order to retain its production schedule for the
installation of the longwall mining machine. The respondent
points out that although the complainant was admittedly
transferred from a producing section to a construction crew as a
continuous-miner operator, he was retained within his same union
job classification as a miner operator, for the same working
shift, and with the same rate of pay.

 The record in this case establishes that since the filing of

the complaint, and subsequent to the realignment of June 2, 1986,
the first right producing section has been mined out and no
longer exists. The complainant has conceded that any requested
relief with respect to his return to that section is no longer
available to him (Tr. 105). The record also establishes that the
complainant is still gainfully employed by the respondent as a
faceman on the longwall coal producing section, that he
successfully bid on that job subsequent to the

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realignment in question, and that he is still functioning as an
active member of the mine safety committee (Tr. 106).

 The complainant concedes that assuming a finding is made by

me that the respondent discriminated against him in violation of
section 105(c), the only available remedy, aside from such a
finding, would be an order directing the respondent to cease and
desist from any further discrimination or acts of harassment
against him. Further, during the course of the hearing the
complainant's representative indicated that the complainant also
seeks an award of monetary costs and expenses incident to the
complaint and the hearing, including lost wages for the witnesses
who appeared and testified on his behalf (Tr. 107Ä109).

                                  Issues

 The critical issues in this case is whether or not the

complainant's realignment and transfer from a producing section
to a construction section was prompted or motivated in any way by
his engaging in protected safety activity, whether the transfer
was in retaliation for those safety activities, and whether or
not the respondent harassed, or continues to harass, the
complainant for those activities. Additional issues raised by the
parties are identified and disposed of in the course of my
adjudication of this case.

            Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C.

301 et seq

 2. Sections 105(c)(1), (2) and (3) of the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. 815(c)(1), (2) and
(3).

 3. Commission Rules, 29 C.F.R.     2700.1, et seq.

Pretrial and Bench Rulings

 Respondent's pretrial motions for summary dismissal of the

complaint on the ground that the complainant's complaint, when
considered in conjunction with his pretrial depositions, did not
establish a viable complaint of discrimination, particularly in
light of the respondent's offer to reinstate the complainant to
the coal producing section from which he was transferred (which
was rejected by the complainant), and his admission that he did
not consider his transfer as a form of management "punishment"
WERE DENIED.

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During opening statements at the hearing, respondent's counsel
renewed his motion for summary judgment and dismissal of the
complaint. In support of his oral motion, counsel stated that
since the complainant successfully bid on a job as a longwall
faceman on a coal producing section, and since the first right
section has been mined out, his requested relief to be
transferred back to the first right producing section is moot.
Counsel pointed out that the complainant suffered no loss of pay
or job status as a result of the transfer, and that he is still
functioning as a member of the mine safety committee. Counsel
further pointed out that in his pretrial depositions, the
complainant admitted that mine management never indicated to him
that he was being transferred because of his safety complaints,
and that "the only thing the court could doÄ Äat least the only
thing that seems plausibleÄ Äwould be just to say that the company
discriminated against this individual" (Tr. 19Ä22).

 Complainant's representative agreed that the first right

section no longer exists. He stated that he intended to establish
that the complainant was discriminated against, and that at the
time he bid on the longwall faceman's job, the respondent "used
discriminatory actions against him to keep him from getting the
job," and that the mine manager stated that the realignment,
which resulted in the complainant's transfer, was motivated by
"chicken shit complaints." Complainant's representative further
asserted that Mr. Johnson's transfer was made by management to
keep him off the new longwall section because management
considered him to be a "troublesome" safety committeeman (Tr.
28Ä30).

 After consideration of the arguments presented on the

record, the respondent's renewed motion for summary judgment and
dismissal of the complaint was DENIED (Tr. 34). The parties
agreed to incorporate by reference the deposition testimony of
the complainant's pretrial depositions (Tr. 37).

 At the close of the complainant's case presentation, the

respondent renewed its motion for summary judgment and dismissal
of the complaint (Tr. 109). The motion was again DENIED (Tr. 114,
Vol. II).

Complainant's Testimony and Evidence

 Burt Melton, Electrician and Chairman of the mine committee,

testified that on May 27 or 28, 1986, he attended

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a union-management meeting concerning the proposed realignment,
and that when he returned to work the next Monday, June 2, 1986,
the proposed realignment was not the same in that Mr. Johnny
Damron, the union vice-president, Mr. Russell Ratliff, chairman
of the safety committee, and Mr. Johnson were all taken off the
first right section and assigned to the construction crew. Mr.
Melton believed that none of these individuals were originally
scheduled to be realigned as shown in the original posted
realignment, and he believed that management had agreed not to
move them off the production section (Tr. 41Ä44).

 Mr. Melton stated that during a meeting with Mine Manager

Herbert "Tubby" Kinder, on Monday, June 2, he asked Mr. Kinder
why he had taken Mr. Damron off the production section, and Mr.
Kinder responded "because they had made too many chicken shit
complaints and the production was not what it should be up there"
(Tr. 45). Mr. Melton confirmed that he also participated in a
meeting with management 2Äweeks later and Mr. Kinder stated that
Mr. Johnson, Mr. Damron, and Mr. Ratliff had been realigned
because "the section was not producing the way it should." Mr.
Melton stated that Mr. Kinder again mentioned complaints, and
while he did not specifically mention "safety complaints," Mr.
Melton assumed and speculated that this is what Mr. Kinder had in
mind (Tr. 48). Mr. Melton confirmed that he was involved in a
grievance proceeding concerning Mr. Johnson's bid for a longwall
faceman's job in March, 1987, and that Mr. Johnson was awarded
the job (Tr. 48, exhibit CÄ1).

 On cross-examination, Mr. Melton confirmed that he first

learned about the realignment of Mr. Johnson, Mr. Ratliff, and
Mr. Damron on Monday, June 2, and that based on a prior
realignment list which he had seen, these individuals were not
scheduled to be affected. Mr. Melton stated that he usually
represents all employees on behalf of the union in such
realignments, and Mr. John Hodges, the respondent's personnel
director, represents the company (Tr. 58). Mr. Melton confirmed
that when Mr. Hodges showed him the first list, Mr. Hodges did
advise him that it was subject to change (Tr. 59Ä60). Mr. Melton
identified exhibit RÄ7 as a list similar to the one he saw, but
indicated that it was not the "original list" (Tr. 57).

 Mr. Melton confirmed that the realignment was made in

preparation of the installation of a longwall panel but that
certain problems delayed the installation, setting it up, and
that the realignment "mostly concerned producing coal on that
panel" (Tr. 60). Mr. Melton also confirmed that management

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was concerned about production on the third shift right panel,
and that he had discussed this with James Ratliff, the assistant
mine manager who no longer works for the respondent, in an
attempt to resolve what management perceived to be a production
problem on that section. Mr. Melton stated that Mr. Ratliff
advised him that the senior men would be retained on the
production section, and that less senior men would be realigned
to the construction crew. Since Mr. Johnson, Mr. Ratliff, and Mr.
Damron did not sign off the production section voluntarily, Mr.
Melton was surprised to learn that they had been realigned (Tr.
60Ä64}.

 Mr. Melton confirmed that mine management had discussed with

him a request that men work on Saturday to catch up with the
work, and that discussions regarding production on the section
had taken place for several weeks prior to the realignment of
June 2 (Tr. 69). Thirty-five to 40 men on three shifts were
affected by the realignment, and all of the men, except for Mr.
Johnson, Mr. Ratliff, and Mr. Damron "were pacified and
everything was fine so far as they were concerned" (Tr. 75).

 Mr. Melton stated that Mr. Damron, Mr. Ratliff, and Mr.

Johnson all filed discrimination complaints with MSHA, but that
Mr. Damron and Mr. Ratliff settled their dispute when the
respondent agreed to put them back on the production section and
the complaints were not further pursued (Tr. 76). Respondent's
counsel confirmed that the two cases were settled and that the
terms of the settlements were identical to the one offered Mr.
Johnson, which he refused (Tr. 77, exhibit RÄ9).

 Mr. James Boyd, confirmed that no grievance was filed with

respect to the realignment, and that management was informed of
the union's decision to proceed with a section 105(c)
discrimination complaint instead. Mr. Boyd stated that the union
decided against a grievance because of the cost involved and its
belief that it would have received an adverse ruling (Tr. 80).
The union believed it could prove discrimination (Tr. 80).

 Mr. Melton stated that when he first learned about the

realignment on May 27 or 28, and posted a list, Mr. Damron, Mr.
Ratliff, and Mr. Jackson were shown as being retained in their
jobs on the production section, and he dealt with their cases
because they were the only ones who complained to him about the
subsequent realignment on June 2 in which they were realigned off
the production section to the construction crew (Tr. 82). Mr.
Melton confirmed that all three individuals in

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question retained their pay and job classifications, and that the
action taken by the respondent in this regard was legal (Tr. 84).
Mr. Melton stated that he assumed and speculated that management
"reached out to Damron, Johnson and Ratliff and proposed to
switch them off one section to another because of the safety
problems," and that is why the union decided not to file
discrimination complaints (Tr. 85Ä86).

 Mr. Melton stated that he decided to opt for the filing of

discrimination complaints with respect to the realignment of Mr.
Damron, Mr. Johnson, and Mr. Ratliff because he could think of no
legitimate reason why management would seek to realign the men in
question. He stated that Mr. Ratliff "had several safety
complaints," but he had no first knowledge that Mr. Damron ever
caused any "safety problems" for management, although Mr. Damron
has advised him that he has had "run-ins with his foreman" (Tr.
87). Mr. Melton confirmed that while he has had disagreements
with his foreman, none were related to safety matters (Tr. 88).
He also confirmed that he has never observed any safety
complaints at the mine and that he does not work on a section
where coal is produced (Tr. 89). However, he has been involved in
"safety issues" that others have complained about in his capacity
as an alternative safety committeeman, but he was not affected by
the realignment (Tr. 90).

 Mr. Melton confirmed that the only other safety committeeman

affected by the realignment was Mr. A.B. Thacker, but he lacked
enough seniority to maintain his job. Mr. Melton also confirmed
that after the realignment, his conclusion that Mr. Johnson, Mr.
Damron, and Mr. Ratliff "were left out to dry by management
because of their safety activities" was based on Mr. Kinder's
statement about the "chicken shit complaints" (Tr. 92). Mr.
Melton stated that he never discussed Mr. Kinder's statement with
him (Tr. 93). However, when Mr. Boyd met with Mr. Kinder to
discuss the reasons from the realignment, Mr. Kinder stated "If I
put them back, you will make me put them back," and that Mr. Boyd
advised Mr. Kinder that a section 105(c) discrimination complaint
would be filed (Tr. 94).

 Mr. Melton denied that he was attempting to "put mine

management in its place," and he stated that his concern was
trying to find out why management realigned Mr. Johnson, Mr.
Damron, and Mr. Ratliff in the first place, and that management
never gave him any legitimate reasons for their action in this
regard (Tr. 95). Mr. Melton confirmed that in a statement which
he gave to an MSHA investigator during the

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investigation of Mr. Johnson's complaint he told the investigator
that Mr. Hodges did advise him that the first realignment list
which he saw on May 27 or 28 was "spur of the moment thing and
that there could be a change" (Tr. 97). Mr. Melton had no
independent recollection that Mr. Hodges told him that the list
was subject to change by General Mine Foreman Charles Morley or
Second Shift Foreman Otis Slone, but if he so testifies, Mr.
Melton could not say he would be lying (Tr. 97). Mr. Melton
confirmed that Mr. Donny Saunders, the day shift continuous miner
operator placed on the first right section after the realignment
was senior in job classification to Mr. Johnson (Tr. 97Ä98), but
that it would have been customary for Mr. Saunders to have taken
the lesser seniority miner operator's job on the second shift
when he was transferred from the day shift (Tr. 102).

 Mr. Melton stated that as a result of the realignment, Mr.

Johnson contacted the union because he believed that he had "been
put upon" by management, and that after mine manager Kinder
indicated that he would not put Mr. Johnson back on his
production section unless he was forced to, the union decided to
file a section 105(c) discrimination complaint. Mr. Melton stated
that during discussions with Mr. Kinder he was informed of the
union's belief that Mr. Johnson was realigned because of his
safety complaints. Mr. Melton also stated that in the past, Mr.
Johnson had advised him that he "felt like he had had trouble
with management," especially with Mr. Slone on the evening shift,
and that Mr. Johnson had informed him of this "a year and a half
ago, I guess." Mr. Melton stated that Mr. Russell Ratliff also
informed him of a complaint he had made about water on the track,
and that he did so "I guess it had to be a year and a half ago."
However, he could recall Mr. Damron making no such complaints.
Mr. Melton confirmed that the union and Mr. Johnson decided to
file a discrimination complaint because Mr. Johnson felt that he
was realigned because of his safety complaints (Tr. 105Ä111).

 Denver Thacker, roof bolter operator, testified that in

November, 1986, during job bids on the longwall panel, section
boss Glen Matheny offered to put him on a shift paying
time-and-one-half if he would put his name back on the bid list
for a longwall job that Mr. Johnson had bid on. Mr. Thacker
stated that Mr. Matheny told him that he had discussed this with
the "old man," namely Mr. Kinder. Mr. Thacker stated that he had
taken his name off the bid because of some gas in the panel, and
that Mr. Matheny explained that he wanted him to get the job
because "if the wrong man got up there, that he could knock us
all out of the job" (Tr. 118). Although

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Mr. Matheny gave no specific reasons for offering him the
inducement of a time and one-half shift, Mr. Thacker speculated
that Mr. Matheny did not want Mr. Johnson to get the job because
"they did not want a safety manÄ Äor him in particular up there on
the longwall" (Tr. 118). Although Mr. Matheny did not
specifically mention Mr. Johnson, Mr. Thacker stated that "I just
took it he meant Eddie" (Tr. 118).

 Mr. Thacker stated that he removed his name from the job bid

because "I knowed Eddie could take better care of it than I
could. He knows more about safety business," and "I just know I
had knocked him out of the job. That is the reason I took my name
off" (Tr. 119Ä120). Mr. Thacker confirmed that he testified in
the arbitration proceeding in December 1986, concerning the job
bid in question (Tr. 123).

 Ricky Varner, roof bolter operator, stated that in December,

1986, he was working on a bolting machine with Mr. Thacker, and
that Mr. Matheny came to the working place to speak with Mr.
Thacker. After their conversation, Mr. Thacker told him that Mr.
Matheny stated to him that he "was wanting him to sign the
longwall job to beat Eddie out of it" (Tr. 126). Mr. Varner
stated that Mr. Thacker told him that Mr. Matheny had stated that
"one man could ruin the whole thing up there," but that he did
not identify "the one man" (Tr. 127). Mr. Varner stated that Mr.
Thacker also told him that Mr. Matheny spoke to him again the
next day and offered him a Saturday shift if he would take the
longwall job (Tr. 128). Mr. Varner stated that in response to a
question by Mr. Thacker as to why the respondent would ask him
(Thacker) to bid on the job, Mr. Varner told Mr. Thacker that
because of gas on the section, the respondent did not want Mr.
Johnson there because it thought Mr. Johnson would shut the
section down (Tr. 129).

 Mr. Varner was of the opinion that the respondent tried to

persuade Mr. Thacker to bid on the longwall job to keep Mr.
Johnson off that section because he would take care of safety
problems. Mr. Varner stated that he has shut his bolter down
because of methane on his section, and called it to the attention
of management. Although he has been realigned in the past, he did
not believe that this was done because of his complaints about
methane. He was not part of the June 2 realignment involving Mr.
Johnson (Tr. 132).

 Mitchell Mullins, head drive man, testified that in April,

1986, he overheard section foreman Randy Smith call out on a mine
phone to shift foreman Otis Slone and inform him that the men in
the section wanted to exercise their

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individual safety rights to be on the outby side before a shot
was fired (Tr. 144). Mr. Mullins did not know whether the men
proceeded outby before the shot was fired because he was too far
away to even hear the shot (Tr. 145).

 Representative Boyd introduced a copy of a grievance which

was filed over this shot firing incident (Tr. 145; exhibit CÄ2).
Respondent's counsel stated that the grievance was settled in
order to avoid calling in Federal and state inspectors to
determine whether the shot was accomplished in accordance with
the regulations, and to avoid further interruption to production
(Tr. 147). He took the position that the shot was legal, and the
parties agreed that MSHA was not called in to resolve the matter
(Tr. 148). Mr. Boyd confirmed that the shot was fired 1,000 feet
outby where the men were working on the section, but took the
position that the men were not given the opportunity to be outby
and that Mr. Slone went ahead and fired the shot before the men
had an opportunity to be outby. Mr. Boyd confirmed that the
grievance was filed during the next shift and that no section
103(g) inspection was requested (Tr. 151), and that no safeguard
notices were ever issued covering the shot (Tr. 155).

 Mr. Mullins confirmed that he had no independent knowledge

about the details of the shot, did not hear it, did not know
whether the men actually left the mine, and that he did not
leave. When asked whether he had any personal knowledge as to
what this case is all about, Mr. Mullins responded "the
harassment and trouble Otis Slone and the company has given Eddie
on his job classification, if he is qualified to do the job or
not or who is better qualified they want in there besides him."
Mr. Mullins confirmed that he has no personal knowledge of any
harassment of Mr. Johnson (Tr. 162).

 Donald Robinson, general laborer, was called to testify as

to his knowledge of an incident of January 8, 1986, referred to
by Mr. Johnson in his complaint. Mr. Johnson stated that he filed
a safety grievance over the alleged failure by shift foreman Otis
Slone to follow a pillar plan.

 Mr. Boyd stated that this incident is part of "a pattern of

discrimination charges and of acts that have been committed
against Mr. Johnson by the company" (Tr. 166). Mr. Boyd asserted
that Mr. Slone tried to get Mr. Johnson to cut the left-hand side
after the right-hand side had already been cut, but that this was
not done and "they finally pulled away from it and went to
another block. They backed up, timbered it off and started mining
again" (Tr. 167). Mr. Boyd conceded that Mr. Johnson exercised
his safety rights, refused to cut the

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pillar, and withdrew himself. However, he was not assigned other
work, and the crew simply backed out, set timbers, and continued
mining in another area (Tr. 169). Mr. Boyd implied that Mr. Slone
attempted to have Mr. Johnson cut a pillar which would have been
in violation of the pillar plan (Tr. 169). Mr. Boyd suggested
that Mr. Johnson "took a lot of ribbing" over that incident (Tr.
170).

 Mr. Robinson stated that he recalled the incident and he

confirmed that he and the rest of the crew exercised their safety
rights and withdrew from the pillar area. However, he stated that
Mr. Slone did not insist that the pillar be mined after they
withdrew and that he could not recall "no big hassle" over the
incident (Tr. 171).

 On cross-examination, Mr. Robinson stated that Mr. Slone

simply asked the crew to mine the pillar, but they believed it
was unsafe and chose not to. The crew withdrew, and the area was
timbered, and mining continued in another area (Tr. 174).

 Lynville E. Johnson, general laborer, was called to testify

about an incident which occurred during December, 1985 to January
1986, during which section foreman Earl Matheny asked Mr. Johnson
to take some coal cuts from an area which Mr. Johnson believed
was unsafe. Mr. Slone was called in, and was mad, and both Mr.
Matheny and Mr. Slone stated that Mr. Johnson did not want to
work (Tr. 176). Mr. Johnson stated that Mr. Slone stated "God
damn it. Eddie don't want to work no way" (Tr. 177).

 Mr. Boyd stated that this incident is another example of a

section foreman asking men to do work in an area which they
believed was unsafe (Tr. 189). Mr. Boyd also alluded to a rock
fall which covered up a continuous-mining machine (Tr. 187).

 On cross-examination, Mr. Johnson alluded to another work

force realignment which occurred during December, 1985, and
respondent's counsel asserted that this realignment resulted in a
union grievance, but that the arbitrator rejected any notion that
the realignment resulted from any safety complaints (Tr. 181).

 Since it appeared that the men exercised their safety rights

and withdrew from areas which they believed to be unsafe, Mr.
Boyd was asked to explain the relevance of these incidents to Mr.
Johnson's complaint of discrimination. He responded "I am trying
to show the integrity of the mine

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foreman, Otis Slone, and things he will do and the actions he has
took" (Tr. 190). Mr. Boyd stated that he did not believe that Mr.
Slone was involved in the realignment decision made by management
that is in issue in this case (Tr. 190).
Jerry D. Hicks, continuous miner operator, was called to
testify about an incident concerning the use of 5Äfoot glue for
6Äfoot roof bolts. Mr. Hicks stated that this occurred
approximately 2 years ago, and after concluding that the use of
5Äfoot of glue for 6Äfoot bolts may have been unsafe, Mr. Johnson
asked Mr. Slone to send a "safety man" in to make a
determination. Mr. Slone came into the section and asked Mr.
Hicks whether the use of the glue was safe. Mr. Hicks stated that
he was of the opinion that additional "spot bolting" with 4Äfoot
bolts, using 4Äfoot of glue, would make the area safe. Mr. Slone
asked Mr. Johnson for his opinion, and Mr. Johnson told Mr. Slone
that he was not qualified to make the decision and asked Mr.
Slone "to have someone with a little more authority come in and
check it out." No safety man was called in, but Mr. Slone
proceeded to spot bolt with 4Äfoot bolts. Mr. Hicks confirmed
that since it could not be determined how many breaks had been
bolted with 5Äfoot glue, spot bolting was done for two breaks "to
make sure they got it all" (Tr. 195Ä197).

 Mr. Hicks stated that Mr. Slone "was wanting us to run coal"

and asked each crew member whether it was safe to continue mining
with the area bolted with 5Äfoot of glue. Mr. Hicks stated that
the section "was awful low on production" and that Mr. Slone
informed the crew that "he thought we ought to pick it up a
little" (Tr. 197).

 Mr. Hicks testified to an incident which occurred in

September of 1985, when the men on the section were questioned in
the mine office about low production on one evening. After
listening to the explanations, foreman Charles Morley concluded
that the low production resulted from "unsatisfactory work all
the way across the board" and that everyone on the shift was
given a warning. However, Mr. Eddie Johnson was given an
unsatisfactory work slip (Tr. 198). Mr. Hicks recalled that on
one Saturday evening shift Mr. Slone made a statement that Mr.
Johnson "was trying to slow things down," but he could not recall
whether it was the same evening when the warnings were given out.
He also stated that Mr. Slone "may not have been talking totally
to Eddie. He might have been talking to all of us. I really can't
remember. It has been a long time" (Tr. 201).

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Mr. Hicks identified the foreman in charge during the spot
bolting-glue incident as Miles Robinson. He stated that Mr.
Robinson was fired shortly after the spot bolting was done, and
was replaced by foreman Randy Smith (Tr. 203). Although Mr.
Robinson would make air readings and gas checks, Mr. Hicks stated
that "he wasn't real thrilled about it," and that Mr. Smith would
"shake his head and go ahead and take it" (Tr. 204).

 Mr. Hicks stated that when he and Mr. Eddie Johnson had an

equipment break down with their mining machine, Mr. Slone seemed
to question Mr. Johnson more, and would say little to him, and
that Mr. Smith would not say much about it (Tr. 205). Mr. Hicks
stated that Mr. Slone told the men to cut out the "sweetie
(coffee) breaks" and would sometimes get after the crew for
waiting around for him to instruct them as to their work duties
(Tr. 206).

  On cross-examination, Mr. Hicks stated that it was perfectly

appropriate for someone other than the shift foreman to fireboss
the section before energizing the equipment, and that the spot
bolting which took place came about as a result of the complaints
concerning the glue (Tr. 211). Mr. Hicks confirmed that he heard
"rumors" that Mr. Eddie Johnson received an unsatisfactory work
slip because he had previously received a verbal warning (Tr.
212).

 Tommy Tackett, electrician, was called to testify about an

incident concerning a continuous-mining machine being worked on
by Mr. Slone. Mr. Slone was working under the head of the miner
attempting to replace a conveyor chain, and the miner head was
supported by a scoop bucket rather than being adequately blocked
or otherwise supported with wooden crib blocks. When Mr. Johnson
observed Mr. Slone under the miner head, he told him that "it
didn't look very safe," and that Mr. Slone replied to Mr. Johnson
"If you got anything to say about this, Eddie, we will talk about
it tomorrow. All you are wanting to do is hold up production"
(Tr. 223). Mr. Tackett stated that the power was not
disconnected, and in his opinion, Mr. Slone was engaged in an
unsafe practice (Tr. 223Ä226). Mr. Boyd confirmed that the
incident was not reported to MSHA, and no violation was issued
(Tr. 233).

 Mr. Tackett confirmed that he has worked in the mine for 7

years, and he indicated that during this time period Mr. Johnson
was reluctant to work under roof conditions which he believed
were bad and needed additional support and a section foreman
would take the opposite view and try to convince

---

Page 15

~1864
him or the crew that the roof was sound and work should continue
(Tr. 234Ä236). Mr. Tackett stated that on one occasion he and
foreman Randy Smith had a difference of opinion as to whether a
roof area was sound. Mr. Smith thought the roof was sound and
suggested that he continue bolting. Mr. Tackett refused, and
after retreating from the area, the roof fell (Tr. 239). Mr.
Tackett conceded that any time he and a foreman disagree as to
whether work can proceed safety, he has exercised his safety
rights to withdraw, and the foreman would assign him to some
other work (Tr. 239).

 Mr. Tackett stated that on one occasion 2Ämonths before the

realignment, bad top was encountered at the feeder and Mr. Slone
was called in to look at the area. Mr. Slone assured the crew
that the feeder top would be taken care of on the next shift, and
assigned the crew to work on the top in the intake. The feeder
top was not corrected by the next shift, and Mr. Tackett's crew
had to correct the condition when they next went to work (Tr.
241Ä242).

 Mr. Tackett testified about the incident concerning

inadequate glue which was used in conjunction with resin roof
bolts. Mr. Tackett confirmed that Mr. Slone was called into the
section, and disagreed with Mr. Johnson's assessment that
anything was wrong, and indicated that work should proceed. After
arguments, Mr. Slone agreed to spot bolt the area, and assigned
the crew to other work shoveling the belt (Tr. 244).

 Mr. Tackett alluded to another incident in which Mr. Johnson

complained to foreman Randy Smith about a missing handle on a
continuous-mining machine fire suppression device, and after
giving the respondent 24Ähours to repair the device, it was
repaired (Tr. 245). Mr. Tackett stated that he had previously
reported the condition, but that it was not taken care of until
Mr. Johnson complained (Tr. 248). Mr. Tackett also alluded to
another incident in which Mr. Johnson asked him to calibrate a
methane monitor on a continuous-mining machine, and that he did
it. However, he indicated that materials were not always readily
available on the section to do the calibration (Tr. 249). Mr.
Boyd conceded that in this instance, the calibration was done and
that the necessary materials was "probably there" (Tr. 255).

 Mr. Tackett stated that anytime there was a safety problem

or complaint on the section Mr. Slone would come in and always
inquired of Mr. Johnson as to the problem (Tr. 257), and that
this occurred at times when Mr. Johnson was not the safety
committeeman (Tr. 258). Mr. Boyd suggested that this occurred
because Mr. Slone may have thought that

---

Page 16

~1865
Mr. Johnson was the spokesman for the men on the section (Tr.
259).

 A.B. Thacker, continuous miner operator, and president of

Local Union 2264, confirmed that he worked on the first right
section with Mr. Johnson as a miner helper for approximately 6
months in 1984 and 1985. Mr. Thacker stated that there were
safety complaints on first right "from the day it started from
Eddie Johnson and the whole crew," and that the complaints dealt
with "bad roof, methane gas. It was just that way all the time."
Mr. Thacker confirmed that he was realigned on June 2, 1986, to
the "hootowl" shift, but subsequently signed back to the evening
shift (Tr. 266Ä267).

 Mr. Thacker alluded to the feeder bad roof condition

incident, and stated that after the condition was reported to the
section boss, the men withdrew from the area and foremen Slone
and Herald Mullins were summoned to the area, and they asked Mr.
Johnson about the problem. Mr. Slone checked the roof test holes
and agreed that the top was bad and assigned the men to other
work. Although Mr. Slone assured the men that the roof condition
would be subsequently taken care of, Mr. Tackett contended that
this was not done and that the next shift did some work under the
bad top (Tr. 270).

 When asked about any "threatening statements" by Mr. Slone

to Mr. Johnson over safety complaints, Mr. Thacker mentioned the
incident concerning Mr. Slone doing some work under a continuous
miner head which was propped up by a scoop bucket. Mr. Thacker
described the encounter between Mr. Slone and Mr. Johnson as
follows (Tr. 271Ä272):

      * * * And Eddie asked themÄ Äto the best of my
      remembrance right now, he asked them, he said, "Do you
      all feel that this is a safe way to work on that miner?
      Don't you think you should put a crib under it to
      protect yourself?"

      That kind of got Otis peed off. He got back. He come up
      in Eddie's face. He told Eddie, He said, "I want to
      know who you think you are and what gave you the right
      to tell me and the mechanic that we are doing our job
      unsafe." He said, "I have worked in the mines a long
      time. I've never gotten nobody hurt; ain't going to get
      hurt."

      And I told Otis then myself, I said, "Otis, he is a
      safety representative for

---

Page 17

~1866
United Mine Workers in this Local and he has got
a right to ask that boy is he doing his job safe
if he feels he is not. As a matter of fact, I
think he ought to write you and Tommy Tackett
both up for working in an unsafe condition."

          And Otis, he got all over him. He just kept on. And
      then I told him, I said, "If you have got anything to
      say, we should wait till we get outside." And Otis more
      or less, he said, "yeah, we will take it up tomorrow
      evening." But it never was mentioned no more that I
      know of.

 Mr. Thacker was of the opinion that Mr. Slone engaged in an

imminently dangerous unsafe practice and violated the law by
working under the miner head. Although he and Mr. Johnson
observed him doing the work, Mr. Thacker admitted that no union
safety committee complaint was filed, no imminent danger
complaint or order was issued, no one complained about it, no one
reported the matter to MSHA, the matter was not reported to mine
superintendent Kinder, and no violation was ever issued (Tr.
274Ä276). Mr. Thacker stated further that Mr. Slone took the
position that he was not in any danger and stated "I have been
mining a long time before you fellows ever got here" (Tr. 276).

 Mr. Thacker stated that when he worked with Mr. Johnson on

the first right section in 1984 and 1985, Mr. Johnson made one or
two safety complaints every day about the roof and ventilation
problems (Tr. 276Ä277). Mr. Thacker stated that he was present
many times when Mr. Johnson requested foreman Randy Smith to take
air readings, and after doing so, Mr. Slone would appear on the
section and would argue about the amount of air on the section.
Mr. Thacker also stated that when Mr. Johnson asked Mr. Smith
about the "mean air velocity," Mr. Smith would reply that "he
didn't know what it meant" (Tr. 279).

 Russell Ratliff, roof bolter, confirmed that he was

realigned on June 2, 1986, from the first right section to the
construction section (Tr. 283, 298). He stated that when he
worked on that section for a period of approximately 8 months he
often exercised his safety rights and made safety complaints to
his section foreman Jerry Bentley, and that "the biggest part of
the time, he wouldn't agree with me" (Tr. 285). Mr. Ratliff
estimated that he made approximately "a couple of dozen"
complaints, and in those instances where

---

Page 18

~1867
Mr. Bentley disagreed with him, Mr. Bentley would call mine
foreman Charles Morley and safety committeeman Charles Cantrell
to the section to discuss the matters (Tr. 287).

 Mr. Ratliff confirmed that when he complained to Mr.

Bentley, he sometimes agreed with him, and sometimes disagreed
with him, but that Mr. Bentley did take corrective action (Tr.
288). Mr. Ratliff also confirmed that after discussions with mine
management and union safety committeeman about his complaints "we
would work out a corrective means of fixing the roof conditions
like putting collars up and cribs where it was needed" (Tr. 290).
Mr. Ratliff stated that he never exercised his right to "walk
off" the section because of his safety complaints and always
waited for the arrival of mine management and a safety
committeeman to resolve the question (Tr. 291). He confirmed that
in those instances where disagreement still existed, Federal or
state inspectors were called in (Tr. 292Ä293).

  Mr. Ratliff stated that he was present during a

union-management meeting concerning the June 2, 1986, realignment
and that mine superintendent Kinder made a statement to him that
he would not be put back on the first right section "because of
our chicken shit complaints. That was his words" (Tr. 294). Mr.
Ratliff further stated that Mr. Kinder also stated that "if he
put me back on the section, he would be made to put me back" (Tr.
295).

 Mr. Ratliff confirmed that he filed a section 105(c)

discrimination complaint, and that the respondent settled the
matter by putting him back on the first right section, and this
was the only remedy that he sought (Tr. 295). When asked for his
opinion as to why he was initially realigned off the section, Mr.
Ratliff stated "I guess, you know, where we had so many problems
and I would act on them. You know, where I was a roof bolter man,
you know, the condition was extreme. That is the worst top I ever
worked in" (Tr. 296). Mr. Ratliff confirmed that he lost no pay
as a result of the realignment and worked the same shift and the
same number of hours. He stated that he wanted to stay on the
first right section because he knew the roof conditions and "I
feel like I can take care of the men that was on the section
better than anyone else could." He confirmed that he was not a
safety committeeman at that time, but subsequently became one on
June 11, 1986 (Tr. 298Ä299; 305).

 Mr. Ratliff stated that he believed he was initially

realigned because of his safety complaints, but conceded that
other miners who were also working on his section, and who

---

Page 19

~1868
made safety complaints, were not affected by the realignment (Tr.
307). In response to further questions in this regard, Mr.
Ratliff stated as follows (Tr. 307Ä308):

      Q. Did you have any clues as to why that was? Had
      anybody ever threatened you, called you out or showed
      anger toward you?

      A. The statement Tubby Kinder made, the mine manager,
      was proof enough to me.

      Q. When was that?

      A. In that meeting.

      Q. I am talking about before this happened. Now, prior
      to this, had Mr. Kinder ever come to you and said,
      "Listen, what are you trying to do calling all the feds
      in, calling all the state people in. You are filing
      complaints left and right and most of these are chicken
      shit," as you put itÄ Äor I mean as he put it. Did this
      sort of thing happen before the realignment?

      A. No.

      Q. Did Mr. Kinder explain what he meant about his
      comment? Did he indicate to you what kind of complaints
      he had in mind?

      A. No, he did not. I guess it was all complaints in
      general.

      Q. Excuse me?

      A. All the complaints in general.

   Johnny Damron, longwall shearer operator, and union

vice-president, testified that prior to the realignment he worked
on the first right section for 6 months as a miner operator. He
recalled one safety complaint he made concerning some unbolted
roof places, and other complaints which were made by the roof
bolters. The complaints were made to section foreman Jerry
Bentley, and Mr. Damron stated that Mr. Bentley "always took the
attitude, you know, we were trying to slow production" (Tr. 316).
Mr. Damron stated that Mr. Bentley would get mad when a union
safety committeeman was called into the section in response to
the complaints,

---

Page 20

~1869
and if the complaint was taken care of "it stopped at that point"
(Tr. 316).

 Mr. Damron could not recall any instances when a Federal

inspector came to the section to inspect the roof, but did recall
one occasion when a state inspector came in to look at a roof
fall (Tr. 317). Mr. Damron stated that on one occasion when he
questioned the adequacy of the ventilation on the section, Mr.
Bentley "just took the attitude he didn't see it as a serious
problem or something" (Tr. 317). On another occasion, when a
scoop man refused to go under bad top, mine foreman Charles
Morley was called to the section, and he assigned him and a
mechanic to set collars and timbers and Mr. Morley "sat there and
made smart remarks" (Tr. 318).

 Mr. Damron recalled a meeting at which he was present along

with Mr. Johnson, Mr. Ratliff, Mr. Boyd, Mr. Melton, and mine
management personnel concerning the June 2, 1986, realignment.
Mr. Damron stated that Mr. Kinder was informed that he, Mr.
Johnson, and Mr. Ratliff believed that they were discriminated
against because of their safety complaints. When asked about Mr.
Kinder's responses, Mr. Damron stated "I can't recall exactly
what he said, but he said there have been a lot of chicken shit
complaints up there" (Tr. 319). Mr. Kinder specifically referred
to a complaint about a trolley wire that came in contact with the
mantrip, and Mr. Damron confirmed that the men refused to go
under the wire and tried to get the foreman to move the track.
Mr. Damron could not recall how that dispute was resolved, and
stated that the section foreman "would try to get something to
get back at you" (Tr. 320).

 Mr. Damron stated that an initial realignment sheet did not

reflect that he was being realigned, and when he found out on
June 2, that he was to be realigned, he filed a discrimination
complaint, but subsequently settled it when he was put back on
his original section (Tr. 320Ä321). He believed that the company
tried "to get back at him" be attempting to realign him (Tr.
322). Mr. Damron stated that roof bolter Russell Ratliff also
made complaints, but that other than himself, Mr. Johnson, and
Mr. Ratliff, he knows of no other complaining miners who were
realigned (Tr. 324).

 Mr. Damron had no knowledge that foreman Bentley had

anything to do with his realignment, and Mr. Boyd confirmed that
Mr. Bentley himself was also realigned (Tr. 327). Mr. Damron
confirmed that production on his section was low, but he
attributed it to bad top conditions (Tr. 326). Mr. Damron has no
knowledge as to the number of complaints made by Mr. Ratliff on
the section (Tr. 329). Mr. Damron

---

Page 21

~1870
confirmed that at least 17 men were relocated to other shifts as
a result of the 382 section closing down on June 2, 1986 (Tr.
330).

 Mr. Damron stated that no management person ever instructed

him to go out under unsupported roof to work, and that when bad
top was encountered the men had to withdraw from the area "and
that is why I felt we were harassed was because you have to go in
and set extra support" (Tr. 334).

 Mr. Damron claimed that during the 2 years he served as a

safety committeeman, mine management, namely former assistant
mine manager James Ratliff, was unhappy because of his safety
complaints. When asked when this occurred, Mr. Damron replied "it
has been some years back," but he could not recall seeking out
the mine superintendent or anyone else higher in management than
Mr. Ratliff to complain about the purported treatment accorded
him by Mr. Ratliff (Tr. 343Ä344).

 Complainant Eddie D. Johnson confirmed that he is presently

employed by the respondent as a faceman on the longwall, and that
prior to June 2, 1986, he was employed as a continuous-miner
operator on the first right section (Tr. 13). Mr. Johnson's
testimony included references to the safety complaints referred
to in his discrimination complaint, as well as in prior
depositions, which have been incorporated by reference in these
proceedings. Mr. Johnson confirmed that a week or so before the
realignment of June 2, 1986, he complained to section foreman
Randy Smith about a missing handle on a fire suppression device
and some bad top in the section. Mr. Johnson also confirmed that
approximately 4 or 5 weeks before the realignment, he also
complained to Mr. Smith about a methane buildup, and that he also
had complained on prior occasions about additional levels of
methane on the section. Mr. Johnson stated that Mr. Smith on
occasion became angry with him over the complaints, and he
confirmed that he did not complain to MSHA or the safety
committee.

 Mr. Johnson confirmed his prior statements made in his

depositions that Mr. Smith had no knowledge of the impending
realignment of June 2, 1986, and made no statements to him
indicating that his realignment had anything to do with his
complaints. However, Mr. Johnson was of the opinion that Mr.
Smith "has an influence on realignments" (Tr. 20). Mr. Johnson
also confirmed that in each instance when he complained to Mr.
Smith, his complaints were addressed and the conditions
complained of were corrected, or he was assigned to other work.
Mr. Johnson also confirmed that

---

Page 22

~1871
foreman Otis Slone was not present during these complaints made
to Mr. Smith (Tr. 17Ä35; 45).

 Mr. Johnson confirmed that approximately 1 month before the

realignment he complained to Mr. Smith about respirable dust
which was coming back on the continuous miner operator, and the
need for more ventilation and water sprays. In this instance, the
water sprays were checked and repaired, the adequacy of
ventilation curtains was reviewed, and the complaint was taken
care of by Mr. Smith within 35 minutes, and he said nothing to
Mr. Johnson which would lead him to believe that he would be
transferred for complaining (Tr. 41Ä43).

 With regard to the incident concerning Mr. Slone's working

under the miner head, Mr. Johnson stated that Mr. Slone became
angry with him when he confronted him about the matter, and Mr.
Johnson conceded that he may have provoked Mr. Slone (Tr. 51Ä52).
Mr. Johnson confirmed that when he received an unsatisfactory
work slip on September 28, 1985, he was not a member of the
safety committee. Although conceding that the slip was issued
because management believed he was "goofing off" and not doing
his work, Mr. Johnson believed that it was indicative of
management's attitude toward him because "they don't like me for
what I stand for" (Tr. 66), and he viewed it as a continued form
of harassment. Mr. Johnson confirmed that the incident was
resolved after he filed a grievance and the matter was settled
(Tr. 60Ä70). Mr. Johnson denied that he ever received any verbal
warnings about his work prior to the issuance of the slip in
question, but admitted that he and Mr. Slone "had talked several
times" about equipment problems, coal production, and "about my
work" (Tr. 72Ä73).

 Mr. Johnson also testified about the incident concerning a

premature shot which resulted in a grievance being filed, and he
stated that after the shot was fired, Mr. Slone accused him of
trying to slow down production (Tr. 74Ä82). He went on to testify
about other complaints and confirmed that while he believed he
was resented and not liked by management, management nonetheless
addressed his complaints and took corrective action (Tr. 84Ä101).
Mr. Johnson also believed that management had no legitimate right
or reason for the realignment, and that it was done as a
convenient way to get him off the producing section (Tr.
102Ä103).

Respondent's Testimony and Evidence

 General Mine Foreman Charles Morley testified as to the

circumstances surrounding the work force realignment which

---

Page 23

~1872
took place on June 2, 1986. Mr. Morley confirmed that there have
been several realignments during his tenure as mine foreman, and
with regard to the June 2 realignment he stated that in
preparation of that personnel action, Mr. John Hodges,
respondent's supervisor of human resources (personnel director),
prepared a list of mine personnel according to their union job
classifications, and that this was given to him for the purpose
of determining the composition and establishment of particular
work crews which would be effected by the realignment.

 Mr. Morley stated that the realignment came about in order

to establish a crew to increase production so as to speed up the
advancing of the first right section in anticipation of the
completion of the installation of the longwall system. Mr. Morley
stated that the decision to purchase the longwall system was made
in approximately, 1985, that the decision was communicated to the
union, and that the advancement of the first right section in
anticipation of the longwall had been the topic of many
discussions. The scheduled date for the longwall installation was
September, 1986, and it was imperative that the first right and
second sections be driven up and connected before the longwall
could be installed and made operational (Tr. 116Ä122).

 Mr. Morley confirmed that the respondent hired three

consultants for the planning of the longwall installation, and
that certain projections, including production and roof control
problems, had to be addressed. He confirmed that production on
the first right section had fallen behind, and he testified as to
certain production data compiled on the sections (Tr. 122Ä127,
exhibit RÄ1). He stated that production on the first and second
right longwall sections was lower in comparison to production on
the other sections (Tr. 130). Mr. Morley confirmed that the
second right section had a three-entry system, and that the
second right section began as a five-entry system, and then
dropped to a four-entry system within the past 2 months. Although
one would expect better production from a five-entry system, this
was not the case (Tr. 131). Mr. Morley identified exhibit RÄ11 as
a representation of mine production for all working sections, as
of May, 1986, a month before the realignment, and he confirmed
that it indicates lower cumulative coal production figures for
the first and second right sections (Tr. 145).

 Mr. Morley confirmed that the initial realignment list

prepared by Mr. Hodges was not final, and that it was subject to
his (Morley's) review and consideration, and that in compiling
the crews, he would take into consideration the

---

Page 24

~1873
personalities and work habits of the personnel to insure a good
mix of people who could get along with each other (Tr. 129). He
confirmed that in order to improve production, he determined that
there should be a different mix of people on the first right
section for both the day and second shifts, and this was
discussed with Otis Slone, the second shift foreman, and changes
were made not only for Mr. Johnson's shift, but also included the
second right section. Mr. Morley denied any discriminatory intent
in the shift changes, and he stated that they were made in order
to pick up production and to get the mine back on schedule (Tr.
131Ä132). After further discussions with Mr. Slone and assistant
mine manager Jim Ratliff, the realignment changes were made,
effective June 2, 1986, and they are reflected on exhibit RÄ7
(Tr. 133Ä135). Mr. Morley confirmed that he had no idea what
happened to the initial list compiled by Mr. Hodges (Tr. 137),
and stated that it contained only names and occupations (Tr. 137,
144). He further explained the realignment information which
appears on exhibit RÄ7, and confirmed that after making the
necessary adjustments and changes, he returned it to Mr. Hodges
who finally prepared it to show who would be on the sections in
question (Tr. 144Ä145).

 Mr. Morley confirmed that as continuous miner operators, Mr.

Damron and Mr. Johnson filled critical positions with respect to
the advancement of their sections in anticipation of the
installation of the longwall system, and in his opinion their
work performance was less than adequate. Mr. Morley was of the
opinion that many union people were afraid that the longwall
system would cost them jobs, when in fact it kept them working
(Tr. 150). He confirmed that at the time of the realignment, the
development of the first right section was at least one-third
away from its final completion, and was at least 2 months behind
in its anticipated completion (Tr. 153).

 Mr. Morley conceded that Mr. Johnson's safety complaints

caused delays in the anticipated completion of the first right
section, and he believed that many of the roof control complaints
were invalid. However, he insisted that all of Mr. Johnson's
complaints were addressed, and if management agreed that they
were legitimate, corrective action would be taken. Mr. Morley
agreed that a safety committeeman has the right and obligation to
make safety complaints, and he confirmed that Mr. Johnson never
came directly to him with his complaints, and that they were
usually made to section foremen Otis Slone and Randy Smith, or
safety director Jerry Ratliff. Mr. Morley also confirmed that he
never went into the section to look into the complaints, and that
this responsibility was delegated to the section foremen (Tr.
153Ä156).

---

Page 25

~1874
Mr. Morley confirmed that any information he had with respect to
any frivolous or invalid complaints by Mr. Johnson would have
come from the section foremen, and he stated that Mr. Slone
believed that Mr. Johnson was slowing down the section by cutting
slow, and that both Mr. Slone and Mr. Smith "couldn't get things
going the way they should" (Tr. 157). Mr. Morley further
confirmed that he was aware of this at the time of the
realignment, and that he considered the fact that "the section is
not moving like it should be and production is not like it should
be" at the time he made his realignment decisions (Tr. 158).

 Mr. Morley confirmed that he personally checked on some roof

safety complaints made by Mr. Russell Ratliff, and that he did so
in the company of safety committeeman Charles Cantrell, and at
times they differed on the merits of the complaints, and in those
cases where the roof was bad, corrective action was always taken
(Tr. 161). Mr. Morley was not personally aware of any safety
complaints made by Mr. Damron, and he confirmed that many times,
he had no knowledge as to who was complaining (Tr. 162).

 Mr. Morley denied that he ever harassed Mr. Damron with

regard to the placement of roof cribs, and he confirmed that a
complaint about a man trip trolley wire was corrected as soon as
it came to his attention (Tr. 166Ä168). Mr. Morley denied that he
ever contemplated moving or realigning Mr. Johnson because of any
safety complaints, and it made no difference to him who worked on
the sections as long as he was satisfied that he had a good mix
of personnel to get the job done. He confirmed that union
personnel, as well as section foremen, were moved during the
realignment in an effort to "get a better chemistry or something
going up there and get production going" (Tr. 169).

 Mr. Morley stated that after the realignment, production

"picked up some," but that subsequent problems and bad top
conditions, including a roof fall, delayed matters further. With
regard to the results of the realignment, Mr. Morley stated "I
don't know if it accomplished a whole lot. It picked up some."
However, he indicated that the intent of the realignment was
aimed at an effort to pick up production (Tr. 172).

 On cross-examination, Mr. Morley stated that he considered

Mr. Slone to be a "pretty good" foreman, and he denied any
personal knowledge of Mr. Slone ever committing any

---

Page 26

~1875
unsafe acts (Tr. 180). He answered certain hypothetical questions
concerning the incident involving Mr. Slone's work under the
continuous miner head, including roof control violations and
complaints on the section (Tr. 180Ä194).

 Mr. Morley confirmed that he discussed the realignments made

on the second shift with Mr. Slone, and that he and Mr. Slone
made the decisions in that regard. Mr. Morley could not recall
speaking with Mr. Ratliff with regard to the day shift
realignments, and indicated that he (Morley) would have made the
decisions alone in the absence of Mr. Ratliff (Tr. 195).

 Mr. Morley stated that he was not present at any meeting

held by the union with Mr. Hodges on May 28, or 29, 1986, and
that any decision regarding job classifications would have been
made by Mr. Hodges (Tr. 195Ä196). During the course of a colloquy
with the parties, respondent's counsel indicated that the
realignment shown on exhibit RÄ6 reflects the line-up prior to
the actual effective date of the realignment, and that exhibit
RÄ7 reflects the line-up after the realignment became effective
on June 2, 1986. Complainant's representative Boyd contended that
exhibit RÄ6 was presented to the union mine committee by mine
management at the mine on either May 27 or 28, 1986, and the
committee was informed that "This realignment will go into effect
June 2nd" (Tr. 198). Respondent's counsel disagreed (Tr. 198).
Mr. Boyd stated that RÄ6 was the list posted on the mine bulletin
board, and Mr. Hall insisted that the list which was posted was
similar to RÄ6, and that it cannot be located (Tr. 200).

 Mr. Morley stated that exhibit RÄ6 was similar to RÄ7, and

he confirmed that he was not aware that RÄ6 was given to the
union committee by Mr. Hodges. Mr. Morley suggested that Mr.
Hodges would have given the union such a list in order to let
them know who was in any job classification, but he confirmed
that Mr. Hodges could not align the particular crews, and that
this was done by him (Morley) (Tr. 199).

 Mr. Morley stated that his decision to realign Mr. Johnson,

Mr. Damron, and Mr. Ratliff was made on Friday, May 30, 1987, and
that Mr. Slone was present. Mr. Morley then advised Mr. Hodges as
to his realignment decision, and Mr. Hodges compiled the
realignment list shown on exhibit RÄ7 (Tr. 200), and he explained
what was reflected on that list (Tr. 206Ä214).

 Mr. Morley confirmed that during his discussions with Mr.

Slone prior to the realignment, Mr. Slone advised him that

---

Page 27

~1876
the miner operators should be changed because he believed this
was necessary in order to increase production. At no time did Mr.
Slone mention any safety complaints, and he did not mention that
the complaints may have been slowing down production (Tr. 215).

 Mr. Morley could not recall attending any meeting with

members of the mine committee and mine management subsequent to
the realignment, but that he was aware that such a meeting took
place through "talk." Mr. Morley stated that he had to attend to
his business of running the mine, rather than attending meetings
concerning labor-management contractual matters (Tr. 219). Mr.
Morley did recall being present at a meeting at which Mr. Boyd
and Mr. Kinder were present when Mr. Boyd advised Mr. Kinder that
a discrimination complaint would be filed, and he recalled Mr.
Kinder commenting to Mr. Boyd to file the complaint "if he felt
that way" (Tr. 220). Mr. Morley denied hearing Mr. Kinder make
any statement to the effect that the realignment came about
"because he was tired of the chicken shit complaints" (Tr. 221).
Mr. Morley confirmed that Mr. Kinder did state that the
realignment would be made in order to try and speed up production
and the mining advance rate on the first right section so that
the longwall could be set up (Tr. 222). Mr. Morley stated that
Mr. Johnson, Mr. Damron, and Mr. Ratliff never indicated to him
that they believed they were being realigned because of their
safety complaints (Tr. 222).

 During the course of the hearing, complainant's

representative Boyd asserted that the only three employees
affected by the realignment whose job classifications were not
changed, but nonetheless realigned on their shift, were Mr.
Johnson, Mr. Ratliff, and Mr. Damron. However, Mr. Boyd conceded
that all three suffered no changes in their job classifications
as a result of the realignment, and suffered no loss in pay. They
were simply moved to different mine locations (Tr. 223Ä225). Mr.
Boyd further contended that everyone else shown on the
realignment lists (exhibits RÄ6 and RÄ7) remained within their
job classifications and same work locations. However, he
subsequently conceded that everyone from the section as shown on
the lists were affected by the realignment, and either had their
job classifications changed or were physically assigned to other
locations in the mine (Tr. 225Ä228).

 Mr. Morley testified as to the work being performed by the

construction crew on the construction section after the
realignment, and he confirmed that hazardous conditions could be
encountered anywhere in the mine, including the construction
area, and he could not state that the construction area

---

Page 28

~1877
exposed miners to more hazards than on a producing section (Tr.
239).

 Mr. Morley again denied that Mr. Johnson was moved to the

construction section because of his safety complaints, and he
confirmed that Mr. Johnson has filed safety complaints since the
realignment and that "we try to take care of them as quick as we
can" (Tr. 242). Mr. Morley denied that he has ever harassed Mr.
Johnson, and he confirmed that Mr. Johnson is still serving as a
safety committeeman. Mr. Morley denied any knowledge of any
offers made to anyone to bid on a job for which Mr. Johnson had
bid (Tr. 243).

 Gary Puckett, respondent's office supervisor, confirmed that

part of his duties include the tabulation and maintenance of
certain mine production records. Mr. Puckett confirmed that he
was familiar with the production records as reflected by exhibits
RÄ1, RÄ2, and RÄ11, and he explained the data reflected therein
(Tr. 253Ä258). He confirmed that the differences in production
could be caused by adverse roof conditions or other factors not
reflected in the production information, and that any differences
in production with regard to the first and second right sections,
as reflected in the data, may not be conclusive unless one knows
or takes into account the prevailing mining conditions in those
sections (Tr. 259).

 Mr. Puckett testified as to certain daily carload production

data maintained in his notebooks, and respondent's counsel
confirmed that this data does not take into account any
prevailing conditions on the sections. Based on his review of the
production information as recorded in his books, Mr. Puckett
concluded that for the period February 28, 1986, to May 30, 1986,
the first right section had less than half of the production as
compared with all the other sections noted (Tr. 260Ä261). For the
period June 2, 1986, to July 30, 1986, the data reflects that
mine production did not pick up (Tr. 261Ä265).

  Jerry Ratliff, mine safety director, confirmed that he has

worked at the mine 10 years, and he stated that he has daily
contact with the mine safety committee, and that he can work with
Mr. Johnson, who makes safety complaints on a regular basis. Mr.
Ratliff confirmed that he has no reason to believe that mine
management was motivated to realign the work force in order to
punish Mr. Johnson for making safety complaints, and he was never
at any meetings or heard any discussions among management that
Mr. Johnson was realigned because of his complaints (Tr. 266Ä268,
273).

---

Page 29

~1878
With regard to an incident in which Mr. Slone fired a shot to
clear hanging draw rock from the roof, Mr. Ratliff stated that
when Mr. Johnson brought this to his attention, he (Ratliff)
called the state and Federal regulatory agencies to determine
whether any laws may have been violated. He confirmed that there
was no violation in this instance (Tr. 269), and he assumed that
what Mr. Slone did was correct (Tr. 270).

 Mr. Ratliff confirmed that Mr. Johnson regularly calls to

his attention mine conditions which he observes on his shift,
including any violations, and that he addresses these matters and
takes Mr. Johnson to the appropriate mine production or
maintenance departments to ascertain the facts "so they get
something done about it" (Tr. 279, 282). Mr. Ratliff stated
further that he has never refused any safety complaints from Mr.
Johnson or any other miner, nor has he ever refused to
immediately communicate any such complaints to the appropriate
mine departments (Tr. 293). He also confirmed that he has many
times personally taken Mr. Johnson to the places he complained
about, and while he sometimes disagrees with Mr. Johnson's
assessment of the situation, he and Mr. Johnson resolved the
matters (Tr. 294).

 Mr. Ratliff stated that he had no knowledge concerning Mr.

Denver Thacker's allegation that a section foreman tried to bribe
another employee to bid on a job that Mr. Johnson had bid on, and
Mr. Ratliff confirmed that he had some reservations about Mr.
Thacker's credibility, and he explained why (Tr. 298Ä302).

 Mr. Ratliff confirmed that he had nothing to do with the

realignment in question, was in no way connected with that
decision, and that Mr. Morley and Mr. Slone never consulted with
him in this regard (Tr. 311). Mr. Ratliff discounts any
"conspiracy theory" that the realignment was in some way designed
to isolate Mr. Johnson as a safety committeeman, and he stated as
follows in this regard (Tr. 312):

      A. * * * I have personally not had any problems with
      Eddie other thanÄ Äheck, we're going to disagree on
      things. But I've never sat inÄ ÄI've spent a lot of my
      time with Charles Morley, Herbert Kinder, Otis Slone,
      Gerald Mullins. I've never heard anybody say, "hey,
      we're going to screw Eddie and move him because of a
      safety complaint." I've never heard that.

---

Page 30

~1879
Otis Slone testified that he has worked in underground mines for
34 years, has served as a second shift foreman at the mine for
over 10 1/2 years, and has known Mr. Johnson most of his life
"since he was a kid" (Tr. 313). Mr. Slone confirmed that he
participated in the determination as to the make-up of the work
crews in connection with the June 2, 1986, realignment, and that
he discussed the matter with Mr. Morley as is the usual practice
during such realignments. Mr. Slone stated that he absolutely did
not suggest to Mr. Morley that Mr. Johnson should be reassigned
because of his safety complaints, and indicated that he has
worked closely with Mr. Johnson since he became a safety
committeeman. Mr. Slone was of the opinion that some of the
complaints made by Mr. Johnson were not legitimate, and he
confirmed that at times during their discussion on safety matters
they became heated and he became upset with Mr. Johnson (Tr.
317).

 Mr. Slone stated that on a day-to-day basis, the first right

section was "way behind" in production, and that the realignment
was made in an effort to increase production. Mr. Johnson's
safety complaints had nothing to do with that decision, and
safety complaints were made by individuals other than Mr. Johnson
(Tr. 318).

 Mr. Slone testified as to the circumstances under which he

fired the shot which has been testified to in this case, and he
confirmed that no violation of any safety law resulted from the
manner in which he conducted that shot (Tr. 318Ä323). He also
testified about the incident in which he performed work under a
continuous miner head, and concluded that it was not unsafe (Tr.
326Ä328).

 Mr. Slone testified as to the circumstances surrounding his

issuance of an "unsatisfactory work slip" to Mr. Johnson sometime
in 1985, and indicated that the entire production crew was taken
out of the mine so that he could talk to them about production
and his belief that they "were all laying down." A day or two
later, he spoke with Mr. Johnson and issued the slip, and he did
so because he believed that Mr. Johnson was "goofing off." He
confirmed that he had previously spoken to Mr. Johnson at least
one time about not doing his job (Tr. 331). Mr. Slone confirmed
that he has stated from time-to-time that "Eddie Johnson just
doesn't want to work anywhere," and that he made that statement
to Mr. Johnson on at least one occasion (Tr. 335).

 Mr. Slone confirmed that he recommended that Mr. Johnson be

moved off the first right section, but denied that he made any
recommendations with respect to Russell Ratliff, who

---

Page 31

~1880
worked on a different shift. Mr. Slone confirmed that Mr. Johnson
has made quite a few safety complaints, and has been "a burr in
his saddle." Mr. Slone further confirmed that if Mr. Johnson
observes something on his section that needs to be done, he will
contact him and he will then go into the section to take care of
the problem. Mr. Slone stated that "sometimes I may not take care
of all he wants done, but we work on it" (Tr. 355).

 Mr. Slone confirmed his belief that Mr. Johnson has made

quite a few so-called "chicken shit complaints," and he cited
several examples (Tr. 357). He also confirmed that coal
production picked up "very little" after the realignment, and he
attributed this to bad top and draw rock conditions encountered
in the section (Tr. 357).

 Randy Smith, stated that he has served as a section foreman

in the mine for approximately 2 years, and that he has 16 years
of mining experience. He confirmed that he was Mr. Johnson's
foreman on the first right section for approximately 9Ämonths
prior to the June 2, 1986, realignment. He also confirmed that he
had many occasions to discuss mining conditions and safety
matters with Mr. Johnson and that at times he disagreed with Mr.
Johnson's evaluation of the mining conditions. Attempts were
always made to resolve any differences, and Mr. Smith indicated
that if he could not resolve them "I would always contact the
mine foreman" (Tr. 361).

 Mr. Smith stated that he has discussed Mr. Johnson's work

and slow production with him, as well as with his entire crew,
and that he was receptive to Mr. Johnson's complaints in his
attempts to address them and take corrective action. Conceding
that he may have sometimes overlooked some complaints which he
characterized as "little" or "nothing," Mr. Smith confirmed that
"we would take care of them as we could" (Tr. 363).

 Mr. Smith stated that at no time did he ever suggest to Mr.

Slone or Mr. Morley that Mr. Johnson should be transferred to
some other section because of his safety complaints, or because
he "was a problem." Mr. Smith stated that "me and Eddie had
between ourselvesÄ ÄI thought we done all right about working them
out between us" (Tr. 364). Mr. Smith stated that he holds no
animosity towards Mr. Johnson and he confirmed that Mr. Johnson
no longer works with him (Tr. 366).

 Mr. Smith denied that Mr. Slone ever indicated to him

directly or indirectly that "if we had Eddie off the section,

---

Page 32

~1881
we could do better" (Tr. 371Ä372). Mr. Slone did mention that he
and Mr. Johnson sometimes had differences of opinion about roof
conditions, and he confirmed that production continued "about the
same" after Mr. Johnson left the section because the conditions
worsened (Tr. 372).

 Glen Matheny, section foreman, stated that at one time he

served as president of the local union at another mining
operation. He denied that he was sent to speak with Denver
Thacker about re-bidding for a job as a faceman on the longwall
machine in order to insure that Mr. Johnson would not be afforded
an opportunity to take that job. He also denied that he had ever
offered anyone an opportunity to work a shift and a half to
re-bid the job that Mr. Johnson desired, or that he had any
discussions with anyone which could be interpreted that such an
offer was made (Tr. 374Ä375).

 Mr. Matheny had no idea as to why Mr. Thacker would make up

"this big story." Mr. Matheny further stated that he is familiar
with the union contract, and he confirmed that once Mr. Thacker
had removed himself for consideration for the faceman's job, it
was not possible under the contract to re-bid for that job, and
that this would be prohibited under the contract. Mr. Matheny
confirmed that he had Mr. Thacker take his name off the bid for
the faceman's job in the first place because he discussed the
matter with him and advised him that he wished to keep him on the
section as a roof bolter operator since pillaring work was
anticipated (Tr. 377Ä378). He confirmed that Mr. Thacker remained
on the section as a roof bolter (Tr. 378).

  Mr. Matheny denied that he ever took Mr. Thacker aside

underground at his working place in the presence of Mr. Varney to
speak with him, and indicated that "I've never had anything to
say to Denver that I wouldn't have to say to Rick," and that they
were both roof bolters. Mr. Matheny also denied that he spoke
with Mr. Thacker in the bath house about re-bidding for the
faceman's job (Tr. 379). Mr. Matheny stated that there is no
truth in any statement by Mr. Thacker that he (Matheny) told Mr.
Thacker that any offer to re-bid the faceman's job had been
"cleared by the old man," namely mine manager "Tubby" Kinder (Tr.
381).

 Herbert E. "tubby" Kinder, testified that he has served as

mine manager for approximately 3 years and has been involved in
mining for 47 years. He stated that he did not participate to any
great extent in the realignment of June 2, 1986, and that the
realignment was the general mine foreman's responsibility. Mr.
Kinder confirmed that mine production

---

Page 33

~1882
was down on the first right section and that he discussed this
with Mr. Morley, but did not indicate to him that "the mix of
people needed to be changed or looked at." Mr. Kinder denied that
he ever indicated to anyone that Mr. Johnson should be
transferred to another section because he had made safety
complaints or because he was a safety committeeman (Tr. 386).

 Mr. Kinder stated that Mr. Hodges takes care of personnel

grievances, and with respect to Mr. Russell Ratliff, he confirmed
that he had been suspended with intent to discharge on two
occasions because of absenteeism (Tr. 387).

  Mr. Kinder denied that he ever instructed Glen Matheny or

anyone else to bribe Denver Thacker to re-bid a longwall job so
that Mr. Johnson would not get it . Mr. Kinder stated that while
he might know Mr. Thacker, he could not recall who he is (Tr.
390). Mr. Kinder could not recall any realignment list which may
have been posted in the bathhouse on May 29, 30, and June 2,
1986, and he confirmed that Mr. Hodges handles such matters (Tr.
398).

  Mr. Kinder recalled meeting Mr. Melton, Mr. Damron, Mr.

Hodges, and safety committeeman Charles Cantrell in the hallway
outside the mine foreman's office after the realignment on June
2, 1986, and he confirmed that he did make the comment that "I
was tired of those chicken shit complaints" (Tr. 385, 399). He
also recalled a subsequent meeting 2 weeks later with members of
the union when the realignment was discussed, and that Mr.
Johnson, Mr. Damron, and Mr. Ratliff stated that they believed
they were realigned because of their safety complaints. Mr.
Kinder denied stating that before putting these individuals back
on their sections "somebody will make me do it." He did recall
remarking that "everything you do at Scotts Branch, if you ask
somebody to do something, was discrimination or harassment" (Tr.
400).

 Mr. Kinder confirmed that he made the decision that a

realignment was necessary, and did so in order to provide a third
shift made up of personnel from the other two shifts to speed up
the advance rate on the two sections. Mr. Kinder denied that he
had anything to do with the details of the realignment regarding
actual shift or job selections, and he confirmed that these
details were left to Mr. Hodges and the shift and mine foreman.
Mr. Kinder denied that any management personnel ever discussed
with him that Mr. Johnson or Mr. Ratliff would be realigned "to
keep the old man happy," and that he never discussed such a
matter with anyone (Tr. 403Ä404).

---

Page 34

~1883
John E. Hodges, respondent's Supervisor of Human Resources,
testified that he has been so employed since 1980, and that prior
to this time, he served as chairman of a UMWA mine committee and
a field representative for District 19. Mr. Hodges stated that
the decision to install the longwall was made in early 1985, and
a longwall coordinator was hired in August of that year. The
decision was communicated to the union in approximately June,
1985. On March 27, 1986, he discussed with the union the need to
increase production on the first and right panels, and asked it
to speak to its membership about working the first and right
panels on Saturdays so as to speed up the advance of those panels
for the installation of the longwall (Tr. 409Ä410). Another
meeting was held on May 1, 1986, and the union was advised that
unless it agreed to work the two panels on Saturdays, the entire
382 working section would be eliminated in order to put another
crew on the third shift to operate the first and second right
panels. However, the membership would not agree (Tr. 411).

 Mr. Hodges stated that 35 to 40 people were affected by

shift changes and reassignments resulting from the June 2, 1986,
realignment, and the elimination of the 382 section affected the
job classifications of 18 people (Tr. 412). Mr. Hodges confirmed
that he gave mine committee chairman Melton a list similar to
exhibit RÄ7 to let him know who was going to be realigned, but
that he made it clear to Mr. Melton there may be some changes as
to the placement of personnel because he (Hodges) had not spoken
to Mr. Slone or Mr. Morley at the time he gave Mr. Melton the
list (Tr. 414).

 Mr. Hodges confirmed that he lacks the authority to make

actual crew assignments, and that in past alignments and
realignments sufficient time was allowed so that he could
communicate the assignment of personnel to Mr. Melton. However,
in the case of the June 2, 1986, realignment, he did not have
enough advance notice, and made that clear to Mr. Melton when he
gave him the list. He also made it clear to Mr. Melton that the
list was subject to change because he had not met with Mr. Morley
or Mr. Slone (Tr. 414, 416).

 Mr. Hodges indicated that he first learned about the final

decision to make the realignment on May 28, 1986, when Mine
Manager Kinder and Frank McGuire, Division Manager of Mines,
informed him of their decision to eliminate the 382 section and
put a crew on the third shift. They informed him that they would
need 10 miner operators, and informed him of the positions which
had to be eliminated and others which

---

Page 35

~1884
needed to be filled. Mr. Kinder explained that he then prepared
some sheets similar to RÄ7, "slotting" the necessary positions,
but that he did not make the actual crew assignments. Mr. Hodges
denied that he delivered exhibit RÄ6 to Mr. Melton before the
crew selections were made by the production people, and
respondent's counsel pointed out that this was the case because
the 382 section was still shown on that list (Tr. 416). Mr.
Hodges confirmed that the RÄ6 list is his work product, but that
it was prepared by his secretary at his direction. He confirmed
that he did give Mr. Melton another list similar to RÄ6 and that
Mr. Melton put it up on the mine bulletin board (Tr. 417).

 Mr. Melton confirmed that the "lists" he put up on the

bulletin board in the bathhouse were roughly eight or nine sheets
of paper which he taped individually on the board to inform the
men in the event they were affected by the realignment. Mr.
Melton confirmed that the list was torn down by the bathhouse
man, and he did not keep a copy. Mr. Hodges was not sure that he
saw the list posted on the board, and he explained that following
his normal procedure, after such lists are finalized, and any
problems concerning reassignments are resolved, he makes out a
final list which he personally posts on the board (Tr. 420).

 Mr. Hodges stated that he gave lists similar to the ones he

gave to Mr. Melton to Mr. Slone and to Mr. Morley, and that the
only thing he attempted to do was to list personnel in their
proper job titles. Mr. Morley and Mr. Slone made the actual crew
assignments because he (Hodges) had no authority to make those
assignments (Tr. 421). Mr. Hodges denied that Mr. Morley ever
said anything to him about an assignment for Mr. Johnson or that
he wanted to get rid of him (Tr. 421).

 Mr. Hodges confirmed that he did object to Mr. Morley's

original placement of Mr. Ratliff on the fourth left section
working with foreman Paul Fouts, because they had a prior
personality "run-in," and Mr. Ratliff received a 15Äday
suspension for refusing to obey orders and threatening and
abusing Mr. Fouts. Mr. Hodges confirmed further that Mr. Ratliff
had previously received another suspension for threatening
another supervisor and himself, and was also suspended for
absenteeism. As a result of these incidents, and after several
meetings with him, Mr. Ratliff was given "a last chance
agreement" (exhibit RÄ12), and Mr. Hodges did not consider him to
be a credible individual (Tr. 426Ä428).

 Mr. Hodges identified exhibit RÄ5, as a part of the

realignment sheets showing how various people were affected

---

Page 36

~1885
by the realignment (Tr. 429, 431). He confirmed that at least 16
hourly employees on the 382 section were affected by the
realignment, and that most of them stayed in the same job title
(Tr. 432). Mr. Hodges denied that Mr. Johnson, Mr. Ratliff, and
Mr. Damron were the only three people, other than the 382
section, that were moved from their jobs on their shift (Tr.
433), and referring to exhibits RÄ6 and RÄ7, he named several
(Tr. 433Ä434).

 Mr. Hodges confirmed that he met with Mr. Melton on May 28

or 29, 1986, during a "24/48 hour meeting" and gave him a list of
the personnel who would be moved out of their job
classifications, and he explained the purpose of the meeting (Tr.
447Ä449).

                       Findings and Conclusions

 In order to establish a prima facie case of discrimination

under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company, 2
FMSHRC 2768 (1980), rev'd on other grounds sub nom. Consolidation
Coal Company v. Marshall, 663 F.2d 1211 (3d Cir.1981); Secretary
on behalf of Robinette v. United Castle Coal Company, 3 FMSHRC
803 (1981); Secretary on behalf of Jenkins v. HeclaÄDay Mines
Corporation, 6 FMSHRC 1842 (1984); Secretary on behalf of Chacon
v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510Ä2511 (November 1981),
rev'd on other grounds sub nom. Donovan v. Phelps Dodge Corp.,
709 F.2d 86 (D.C.Cir.1983). The operator may rebut the prima
facie case by showing either that no protected activity occurred
or that the adverse action was in no way motivated by protected
activity. If an operator cannot rebut the prima facie case in
this manner it may nevertheless affirmatively defend by proving
that (1) it was also motivated by the miner's unprotected
activities alone. The operator bears the burden of proof with
regard to the affirmative defense. Haro v. Magma Copper Company,
4 FMSHRC 1935 (1982). The ultimate burden of persuasion does not
shift from the complainant. Robinette, supra. See also Boich v.
FMSHRC, 719 F.2d 194 (6th Cir.1983); and Donovan v. Stafford
Construction Company, No. 83Ä1566 D.C.Cir. (April 20, 1984)
(specifically-approving the Commission's PasulaÄRobinette test).
See also NLRB v. Transportation Management Corporation, ÄÄÄ U.S.
ÄÄÄÄ, 76 L. ed. 2d 667 (1983), where the Supreme Court approved
the NLRB's virtually identical analysis for discrimination cases
arising under the National Labor Relations Act.

---

Page 37

~1886
Direct evidence of actual discriminatory motive is rare. Short
of such evidence, illegal motive may be established if the facts
support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2510Ä11 (November 1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C.Cir.1983);
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398Ä99 (June 1984).
As the Eight Circuit analogously stated with regard to
discrimination cases arising under the National Labor Relations
Act in NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th
Cir.1965):

         It would indeed be the unusual case in which the link
      between the discharge and the [protected] activity
      could be supplied exclusively by direct evidence.
      Intent is subjective and in many cases the
      discrimination can be proven only by the use of
      circumstantial evidence. Furthermore, in analyzing the
      evidence, circumstantial or direct, the [NLRB] is free
      to draw any reasonable inferences.

 Circumstantial indicia of discriminatory intent by a mine

operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator.

Mr. Johnson's Protected Activities

 It is clear that Mr. Johnson enjoys a statutory right to

serve on the mine safety committee, and the respondent may not
discriminate against him because of his safety duties as a
committeeman. Mr. Johnson also has a right to file safety
complaints, request MSHA to perform section 103(g) safety
inspections, to inform state or Federal mine inspectors of
conditions which he believes are hazardous, and to complain or
inform mine management of mine conditions which he believes
present hazards to himself or to his fellow miners. Mr. Johnson's
safety complaints and related duties incident to his service as a
safety committeeman are protected activities which may not be the
motivation by mine management for any adverse action against him.
Further, management is prohibited from interfering with Mr.
Johnson's protected safety activities, and it may not harass,
intimidate, or otherwise unduly impede his participation in those
activities. Secretary of Labor ex rel. Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786

---

Page 38

~1887
(October 1980), rev'd on other grounds sub nom. Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir.1981), and Secretary
of Labor ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC
803 (April 1981). Safety complaints to mine management or to a
section foreman constitutes protected activity, Baker v. Interior
Board of Mine Operations Appeals, 595 F.2d 746 (D.C.Cir.1978);
Chacon, supra. However, the miner's safety complaints must be
made with reasonable promptness and in good faith, and be
communicated to mine management, MSHA ex rel. Michael J. Dunmire
and James Estle v. Northern Coal Company, 4 FMSHRC 126 (February
1982); Miller v. FMSHRC, 687 F.2d 194, 195Ä96 (7th Cir.1982);
Sammons v. Mine Services Co., 6 FMSHRC 1391 (June 1984).

 The record in this case establishes that Mr. Johnson

frequently made safety complaints to his section foremen about
mine conditions which he believed constituted hazardous
conditions or violations of certain mandatory standards. As a
matter of fact respondent's safety director Jerry Ratliff
confirmed that Mr. Johnson has made safety complaints to him on a
regular basis in his capacity as a member of the safety
committee, and that Mr. Johnson rather routinely brings to his
attention mining conditions on his shift which he believes are
either questionable, hazardous, or violations. The record also
establishes that the complaints often resulted in a foreman being
called to Mr. Johnson's section to discuss the conditions, and
that they sometimes had heated discussions or differences of
opinions as to whether or not the conditions were in fact
hazardous or not in compliance with the applicable safety
regulations.

 The record also establishes that Mr. Johnson has filed union

safety and other job-related grievances against the respondent
during his employment, some of which went to formal arbitration,
and others which were settled by the parties pursuant to the
labor-management agreement (Exhibits CÄ1, CÄ2, CÄ4, CÄ5, CÄ11,
RÄ3, RÄ4).

 Although there is no direct evidence that Mr. Johnson made

any specific complaints to any MSHA or state mine inspectors, the
testimony presented on his behalf, as well as his deposition,
suggests that on occasions, MSHA inspectors may have been called
to the mine to resolve safety questions or "disputes" resulting
from Mr. Johnson's safety involvement with the union and/or the
mine safety committee. Some of Mr. Johnson's complaints to
management resulted in refusals by Mr. Johnson or his crew to
work in the areas deemed by

---

Page 39

~1888
them to be hazardous, thereby necessitating their reassignment to
other work while management addressed their safety concerns.

 In view of the foregoing, I conclude and find that Mr.

Johnson has established that both in his capacity as a miner, and
as a member of the mine safety committee, he made and
communicated safety complaints to mine management prior to the
June 2, 1986, realignment which resulted in his transfer from a
producing section to a construction section. Further, under all
of these circumstances, it seems clear to me that Mr. Johnson's
safety complaints and safety-related activities in bringing these
complaints to the attention of management in his capacity as a
miner or safety committeeman are protected activities under
section 105(c) of the Act, and that the respondent is prohibited
from retaliating against Mr. Johnson for making the complaints.

Management's Alleged Harassment and Intimidation of Mr. Johnson

 Mr. Johnson's original complaint makes no mention of any

specific instances of harassment or intimidation by management
because of his safety complaints. Mr. Johnson's pretrial
depositions of January 16, and June 9, 1987, are also devoid of
any credible references concerning instances or acts of
management harassment or intimidation toward Mr. Johnson because
of his safety activities. Quite the contrary. The record in this
case, including past grievances filed by Mr. Johnson on safety
and non-safety matters, reflects that he was a rather active and
combative safety committeeman who did not shy away from
confrontations with his supervisors over safety issues. As a
matter of fact, after the realignment, Mr. Johnson continued, and
still continues, to function as a viable safety committeeman on a
coal producing section, and he still brings his safety concerns
and complaints to the attention of the mine safety director.

 The record in this case establishes that in each instance

when Mr. Johnson or other safety committeemen brought their
safety complaints or concerns to the attention of their foremen,
they and their fellow miners were allowed to withdraw from the
affected areas and were assigned other work while management
ultimately addressed their concerns and took corrective action.
While it may be true that in some instances, management disagreed
with Mr. Johnson's safety assessments and opinions and the
discussions may have been rather heated, I find no credible basis
for concluding that management ignored Mr. Johnson's complaints
or retaliated against him because of

---

Page 40

~1889
his complaints. While it may also be true that some foremen may
have initially attempted to convince a working crew that certain
conditions were not unsafe and suggested that they should
continue working, the issues were either resolved through further
involvement of management and the safety committee, or the miners
were allowed to withdraw and were assigned other work. I find no
credible evidence that miners were ever forced or coerced to work
under unsafe conditions.

 In his deposition of January 16, 1987, Mr. Johnson conceded

that he did not consider his realignment transfer to be a form of
"punishment" because of his safety complaints (Tr. 13). In his
June 9, 1987, deposition, Mr. Johnson confirmed that no one from
management has ever made any statements to him, or suggested to
anyone else, that his transfer resulted from his safety
complaints (Tr. 55). Mr. Johnson alluded to a complaint
concerning roof bolts which he made to safety director Jerry
Ratliff, and indicated that Mr. Ratliff expressed some
dissatisfaction with his filing a grievance. Mr. Johnson conceded
that Mr. Ratliff never abused him verbally, and never threatened
him because of his complaints, but that he did give him some
"dirty or hateful looks" (Tr. 87Ä89).

 Mr. Ratliff's unrebutted testimony, which I find credible,

reflects that while he and Mr. Johnson sometimes had differences
of opinion over the substance and merits of Mr. Johnson's
complaints, Mr. Ratliff always addressed them in any effort to
take corrective action, and that Mr. Johnson still brings safety
matters to Mr. Ratliff's attention in his capacity as a safety
committeeman. Further, Mr. Ratliff's unrebutted testimony
establishes that he had nothing to do with the realignment, and
took no part in that decision.

 In his deposition of June 9, Mr. Johnson alluded to a

complaint he made to section foreman Randy Smith concerning a bad
roof condition. While he asserted that Mr. Smith had a "bad
attitude" against him, Mr. Johnson confirmed that Mr. Smith
allowed him to withdraw his mining machine from the bad top area
and assigned him to work in another area until the roof
conditions were subsequently corrected. Conceding that Mr. Smith
disagreed with his safety assessment of the bad top, Mr. Johnson
confirmed that Mr. Smith displayed no anger towards him, did
nothing to suggest that "he would get back to him," or in any
manner suggested that he would transfer him because of his
complaint (Tr. 26Ä27).

 With regard to his encounter with foreman Otis Slone when

Mr. Johnson confronted Mr. Slone and questioned the

---

Page 41

~1890
wisdom of his working under the ripper head of a mining machine,
Mr. Johnson stated in his deposition that Mr. Slone displayed his
anger towards him. However, he conceded that neither Mr. Slone,
Mr. Ratliff, or Mr. Gerald Mullins ever threatened him, or in any
manner indicated that they would transfer him because of this
complaint (Tr. 52Ä53). As a matter of fact, during the course of
the hearing, Mr. Johnson admitted that he may have provoked Mr.
Slone during this encounter (Tr. 51Ä52). Mr. Johnson also
admitted that he too is prone to anger and that he sometimes
loses his temper when dealing with his foremen (Tr. 33).

 Mr. Johnson alluded to his 1985 receipt of an

"unsatisfactory work slip" from Mr. Slone as an example of past
harassment. The record shows that when the slip was issued Mr.
Johnson was not a safety committeeman, and that the slip was
issued because Mr. Slone believed that Mr. Johnson was "goofing
off" and that he and his entire work crew were slowing down
production. Mr. Johnson filed a grievance, and it was
subsequently withdrawn after Mr. Johnson showed improvement in
his work (Exhibits CÄ11, CÄ12). Mr. Slone testified that Mr.
Johnson had previously been warned about his work, and Mr.
Johnson denied that was the case, but did admit that Mr. Slone
had previously "talked to him" about his work performance. Upon
review and consideration of the facts surrounding this "work
slip" incident, I cannot conclude that the slip was issued by Mr.
Slone to harass Mr. Johnson.

 During the course of the hearing, when pressed for details

concerning any acts of harassment, threats, or hostility
exhibited by management towards him, Mr. Johnson responded with
his conclusory beliefs that management did not like him "for what
I stand for" (Tr. 66), and that it displayed resentment, anger,
and rejection because of his safety concerns (Tr. 95Ä96). Mr.
Johnson stated that "nine times out of ten, with myself, you end
up with a big argument" over his safety complaints (Tr. 93Ä94).
Notwithstanding these beliefs of resentment by management, Mr.
Johnson conceded that it nonetheless addressed his safety
complaints and took appropriate corrective action (Tr. 84Ä101).

 Although not specifically pleaded as incidents of alleged

management acts of harassment, during the course of the hearing
Mr. Johnson and Mr. Boyd implied that management's harassment of
Mr. Johnson resulted in, or forced Mr. Johnson to file formal
safety and other grievances. A discussion of these grievances
follows.

---

Page 42

~1891
In a prior grievance arbitrated in August, 1985, in connection
with a job posting issue, the arbitrator noted that when Mr.
Johnson expressed fear in operating his mining machine in a
pillar section to which he was being transferred, the respondent
accommodated his concerns and reassigned him elsewhere. The
arbitrator found that by virtue of a company favor, rather than a
contractual right, Mr. Johnson was transferred from normal work
of which he had a fear to temporary duties while awaiting an
appropriate opening to which he could be assigned on a permanent
basis (Arbitration Decision, pg. 7, exhibit RÄ4).

 In a grievance filed on January 15, 1984, Mr. Johnson

protested his assignment to a "floater job" after the respondent
assigned an employee junior to him as a permanent equipment
operator while Mr. Johnson was designated a "floater." Mr.
Johnson contended that his assignment as a "floater" was made in
retaliation for safety complaints he had lodged. The arbitrator
rejected this contention and found no evidence of retaliation by
management because of Mr. Johnson's safety complaints (exhibit
RÄ3, pg. 5). Citing numerous instances where Mr. Johnson was
reassigned during January and February, 1984, the arbitrator
further found no evidence of a pattern of abuse and concluded
that management acted within its contractual authority in making
the reassignments (pgs. 11Ä13).

 After consideration of all of the testimony and evidence

adduced in this case, I find no probative or credible evidence to
support Mr. Johnson's assertions that mine management harassed or
intimidated him because of his complaints or the exercise of any
protected safety rights incident to his service as a safety
committeeman, and Mr. Johnson's assertions in this regard ARE
REJECTED.

Mine Management's Motivation for the Realignment of June 2, 1986

 In my view, the thrust of Mr. Johnson's complaint is the

claim that shift foreman Charles Morley and mine foreman Otis
Slone exhibited a disregard for safety through their "attitude"
towards him as the safety committeeman, and by their efforts to
transfer him from a producing section to a nonproducing
construction area, thereby effectively restricting the area of
the mine where he could effectively function as a safety
committeeman on behalf of his fellow miners who looked to him as
their leader.

 In support of the claimed discrimination in this case, Mr.

Johnson believes that Mr. Morley and Mr. Slone, the two

---

Page 43

~1892
key principals who made the realignment decision with respect to
the make-up of the newly aligned work crews, aided and abetted by
other key management officials, conspired to transfer Mr. Johnson
in order to isolate him and to restrict his safety activities.

 In his posthearing brief, and in further reliance on his

claims of past and ongoing discrimination, Mr. Johnson's
representative Boyd points to the fact that after the
realignment, production on the longwall section showed no
improvement, and that this does not support the respondent's
assertion that the realignment was prompted out of management's
concern for production. Mr. Boyd further relies on the testimony
of Mr. Thacker and Mr. Varner in support of his argument that
mine management, through Mr. Matheny, and with the "blessing" of
mine manager Kinder, attempted to "bribe" Mr. Thacker to bid on
the longwall faceman's job with an offer of extra shift work, in
order to prevent Mr. Johnson from getting the job. Conceding the
fact that this purported "bribe" came well after the realignment,
Mr. Boyd concludes that this was simply another discriminatory
management attempt to prevent Mr. Johnson from effectively
functioning as a safety committeeman. Finally, Mr. Boyd points to
the statement by Mr. Kinder after the realignment, that the
realignment was the result of "too many chicken shit complaints,"
in support of his conclusion that the realignment was
retaliatory.

 Mr. Kinder's statement must be taken in context. Mr. Melton

testified that during one meeting with Mr. Kinder and the union
concerning the realignment, and in response to a question from
Mr. Melton as to why Mr. Damron was realigned, Mr. Kinder
responded "because they had made too many chicken complaints and
the production was not what it should be up there" (Tr. 45). In a
subsequent meeting with Mr. Kinder, and in response to a question
from Mr. Melton as to why Mr. Johnson, Mr. Damron, and Mr.
Ratliff had been realigned, Mr. Melton testified that Mr. Kinder
responded "because the section was not producing the way it
should" (Tr. 48). Mr. Melton admitted that at no time did Mr.
Kinder mention safety complaints, and he conceded that he simply
assumed and speculated that Mr. Kinder had in mind safety
complaints (Tr. 48). Further, there is absolutely no testimony or
evidence that Mr. Kinder ever mentioned safety complaints as the
basis for the realignment.

 Mr. Russell Ratliff confirmed that at the time of the

realignment, he was not a safety committeeman, and while he was
of the opinion that his prior safety complaints resulted in his
realignment, he conceded that other miners who made

---

Page 44

~1893
safety complaints were not affected by the realignment. Mr.
Ratliff also confirmed that at no time prior to the realignment
did Mr. Kinder ever mention anything to him about making any
"chicken shit complaints," and when asked about the types of
complaints Mr. Kinder may have had in mind when he made his
statement, Mr. Ratliff replied "all the complaints in general."

 Mr. Damron, who also serves as union vice-president, stated

that he heard Mr. Kinder's comment, but indicated that "I can't
recall exactly what he said, but he said there have been a lot of
chicken shit complaints up there." Mr. Damron confirmed that
other miners also made complaints, but he could think of no other
complaining miners who were realigned, and he confirmed that 17
others were relocated to other work shifts as a result of the
section closing down and the realignment.

 The record in this case shows that both prior to, and after

the realignment, the union met with management to discuss the
proposed realignment. The record also shows that management's
concern to increase production on the first and second right
sections in anticipation of placing the longwall section in
production prompted it to seek help from the union by having the
men agree to work extra shifts on Saturdays, but that this
suggestion was rejected by the union. Mr. Kinder testified that
he made the decision that the realignment was necessary in order
to add a third shift composed of personnel from the other two
shifts in order to speed up the production rate of those sections
in preparation for the longwall.

 Mr. Kinder testified that he had nothing to do with the

selection or make-up of the realigned crews, that such decisions
are made by Mr. Hodges and the respective foremen, and he denied
that he ever discussed the particular make-up of the crews with
his foremen or Mr. Hodges. Having viewed Mr. Kinder during his
testimony at the hearing, he impressed me as a candid and
straightforward individual, and I find him to be a credible
witness. Given the fact that the initial purchase of the
longwall, and the anticipated realignment, was the subject of
much debate among management and the union, and given the obvious
past and ongoing tensions that existed and still exists between
management and the union over past grievances, complaints, and
controversies as reflected by the record in this case, I am
convinced that Mr. Kinder, as the mine manager responsible for
the overall operation of the mine, found himself frustrated over
his attempts to solve his production problems. In this setting, I
am further convinced that Mr. Kinder's statement concerning

---

Page 45

~1894
"chicken complaints," which was made in conjunction with his
stated concerns over the lagging production rate of the two
sections which were driving towards completion in anticipation of
the longwall, and which was made subsequent to the realignment in
a rather off-handed fashion, was the result of his legitimate
concern and frustration over production, rather than any concern
over past safety complaints.

 I conclude and find that Mr. Kinder's decision to implement

the work force realignment in question was well within his
management prerogative, and that his decision in this regard was
prompted by his intent to attempt to increase production rather
than to isolate Mr. Johnson as a safety committeeman, or to
otherwise retaliate against him for his activities as a safety
committeeman.

 The record in this case establishes that the realignment

affected miners other than Mr. Johnson, and that rank-and-file
miners, as well as foreman were moved. Miners other than Mr.
Johnson were moved from their jobs on the second shift production
section to the construction section, and the entire 382 working
section was eliminated. Mr. Melton conceded that at least 25 to
40 miners were affected by the realignment; Mr. Damron believed
that at least 17 miners were relocated to other shifts as a
result of the elimination of the former producing section; and
Mr. Boyd conceded that miners working with Mr. Johnson on the
second shift producing section were affected by the realignment.
Given these circumstances, and the fact that Mr. Johnson is still
serving as a safety committeeman, with no loss of pay or other
job rights on the same work shift, I find it most difficult to
believe that mine management would have conspired to engineer the
realignment simply to restrict Mr. Johnson's safety activities. I
find no credible evidence of any disparate treatment of Mr.
Johnson.

 Mr. Boyd argued that as a result of the realignment,

everyone else affected with the exception of Mr. Johnson, Mr.
Ratliff, and Mr. Damron, were realigned by seniority and job
classification. Mr. Boyd took contradictory positions on this
issue during the hearing. On the one hand, he insisted that the
realignment was illegal because seniority was not followed, and
he asserted that the union had prevailed in prior grievances on
the issues of realignment, job classification, and seniority
rights. On the other hand, Mr. Boyd confirmed that there was no
requirement for seniority and job classification considerations
during such realignments. Mr. Boyd was invited to present further
arguments in his post-hearing brief with regard to these issues,
as well as the

---

Page 46

~1895
contractual implications of the realignment, but he did not do
so.

 Mr. Hodges confirmed that the respondent need not consider

seniority when making work force realignments, and that numerous
arbitration decisions have sustained management's prerogative to
make job assignments (Tr. 441Ä442). Respondent's counsel
introduced two such arbitration decisions, (exhibits RÄ3 and
RÄ4), and he indicated that one such case (RÄ3), concerned the
precise issue as to whether the respondent may align by
seniority, and that the arbitrator rejected Mr. Johnson's
contentions that he was realigned because of his safety
complaints (Tr. 441Ä442).

 Mr. Melton confirmed that Mr. A.B. Thacker, was the only

other safety committeeman affected by the realignment. Yet, there
is no suggestion that Mr. Thacker believed his realignment
resulted from his service as a safety committeeman. Mr. Melton
explained that Mr. Thacker lacked enough seniority to maintain
his job after the realignment. One may conclude from this that
the Union's position with respect to the realignment, focused on
the seniority rights of those affected, rather than on any safety
complaints. Further support for this conclusion may also be found
in the position taken by Mr. Johnson's representative Boyd with
respect to the merits of the realignment. Although he first
indicated that there was no requirement that seniority be
followed in the realignment, he insisted that the entire
realignment was illegal because the respondent failed to follow
the applicable contractual seniority and job classification
requirements. Given this position, I find it rather strange that
the union failed to file a grievance challenging the purported
illegality of the realignment.

 In his posthearing brief, Mr. Boyd suggested that coal

production on the first right section was low because of adverse
roof conditions, and that subsequent to the realignment,
production did not pick up. While this may be true, I am not
convinced that production was consistently low on the section
because of roof conditions. Although the respondent stipulated
that shortly before and after the realignment, the top in the
first right section was bad (Tr. 139), the record reflects that
management's concern for lagging production had been a
long-standing concern for at least a year or so prior to the
realignment, and it was out of this concern that Mr. Slone took
the entire crew out of the mine in 1985 at the time he gave Mr.
Johnson an unsatisfactory work slip.

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Page 47

~1896
Miner operator Jerry Hicks, who worked on Mr. Johnson's section,
confirmed that the section "was awful low on production," and
that Mr. Slone spoke to the crew about picking up their
production rate. He also confirmed that Mr. Slone mentioned
eliminating the coffee breaks, and would sometimes admonish the
crew about "waiting around" for their work instructions.

 Mine foreman Morley's unrebutted testimony was that the

first right section was at least 2 months behind its anticipated
completion, and that at the time he realigned the crews,
production was not moving like it should have (Tr. 153Ä156).
Section foreman Slone testified that the production on the
section was "way behind" on a day-to-day basis (Tr. 318).

 Mr. Damron confirmed that production was low on his section,

and he too attributed it to the roof conditions (Tr. 326).
However, he confirmed that he only made one complaint about the
roof conditions, and that this occurred several weeks before the
realignment (Tr. 328).

 Although Mr. Melton initially indicated that he could find

no legitimate reason for the realignment, he subsequently
conceded that it was made in preparation for the longwall, that
management was concerned with production, and that he had
discussed management's concern over the low production on the
advancing section with management several weeks before the
realignment, including management's request for Saturday work by
the crew to pick up their production rate in anticipation of the
longwall installation. I find nothing in Mr. Melton's testimony
to suggest that low production was the result of adverse roof
conditions. While it is true that Mr. Melton did not work on a
producing section and may not have been aware of any adverse roof
conditions, I find it hard to believe that in his capacity as
chairman of the mine committee, he would not have been aware of
any consistently bad top conditions or complaints from miners in
this regard.

 In response to a hypothetical bench question as to whether

or not mine management, believing that Mr. Johnson, Mr. Damron,
and Mr. Ratliff were "non-producers," could legally and
contractually reassign them to a non-producing section, Mr.
Melton responded in the affirmative so long they were retained in
their job classification at the same rate of pay. In Mr.
Johnson's case, Mr. Melton conceded that Mr. Johnson was
realigned with his pay and job classification intact, on the same
work shift, and that he still remained a safety committeeman (Tr.
83Ä84).

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Page 48

~1897
I have carefully reviewed the testimony of the miners who
testified in this case, and while it was true that adverse roof
conditions were encountered from time-to-time, I find nothing to
suggest that such conditions prevailed for any long period of
time, or that any such adverse roof conditions regularly impacted
to any great degree on the low production rate or low advance
rate which was of concern to management.

 The testimony of mine management personnel Hodges, Kinder,

Morley, and Slone, which I find credible, corroborates
management's production concerns, and reflects management's
concern that the production on the first right section needed to
be addressed and speeded up so as to insure its timely completion
and connection with the anticipated longwall. I conclude and find
that the realignment of June 2, 1986, resulted from management's
legitimate concern that the production needed to be improved, and
that in deciding to proceed with the realignment, management was
motivated by its intentions to increase the rate of speed at
which the production section was advancing, rather than to
attempt to isolate any safety committeemen because of their
complaints.

 With regard to the actual implementation of the realignment

and the role played by Mr. Slone and Mr. Morley in the selection
and assignment of the crews, the record establishes that they
alone made the crew selections on Friday, May 30, 1986, and Mr.
Boyd confirmed that they had the authority to make such decisions
(Tr. 451). Mr. Hodges testified that when he gave Mr. Melton the
list, it was not a list showing the actual realigned work force,
and that he informed Mr. Melton that the list was subject to
changes after Mr. Slone and Mr. Morley reviewed it for the
purpose of "slotting" employees into their realigned positions.
Mr. Melton admitted that Mr. Hodges advised him in advance of the
actual realignment that the list was subject to change. Although
the list in question no longer exists and was apparently
destroyed after Mr. Melton posted it, I accept as credible and
plausible Mr. Hodges' explanation with regard to his role in the
realignment, including the use of the personnel data and "lists"
reflected by exhibits RÄ5 through RÄ7).

 All of the management individuals who were either directly

or indirectly involved in the realignment (Hodges, Morley,
Slone), testified that no effort was made to assign Mr. Johnson
to the construction crew because of his safety complaints or
service as a safety committeeman. Mr. Kinder testified that he
made his realignment decision without regard to personalities,
did not discuss the make-up of the crews with Mr. Slone or Mr.
Morley, and that his realignment decision was in no way

---

Page 49

~1898
motivated by any desire to get rid of Mr. Johnson. Likewise,
section foreman Randy Smith denied that he ever spoke with Mr.
Slone about transferring Mr. Johnson, or that he harbored any
animosity toward Mr. Johnson, or sought to retaliate against him
because of his safety complaints. Safety Director Jerry Ratliff,
who has had, and continues to have, regular contact with Mr.

who has had, and continues to have, regular contact with Mr.
Johnson, testified that he was unaware of any discussions or
suggestions that Mr. Johnson be transferred to the construction
section because of his safety complaints, or that mine management
sought to punish Mr. Johnson for his safety complaints.

 Although it is true that Mr. Morley and Mr. Slone were aware

of Mr. Johnson's past safety complaints at the time they made up
the realigned work crews, they both denied that Mr. Johnson's
safety activities influenced them, or played any part in their
decision to transfer him to the construction section. The record
reflects that both Mr. Morley and Mr. Slone had in the past,
experienced differences of opinions with Mr. Johnson's asserted
safety concerns and complaints. Mr. Slone readily admitted that
some of his discussions with Mr. Johnson were "heated" and that
he became upset over some of Mr. Johnson's complaints which Mr.
Slone believed were invalid. Likewise, Mr. Morley considered some
of Mr. Johnson's complaints to be invalid, and he conceded that
Mr. Johnson's complaints did cause delays in production. Given
these circumstances, and notwithstanding Mr. Morley's and Mr.
Slone's denials to the contrary, there is an inference that Mr.
Johnson's safety activities did influence Mr. Morley and Mr.
Slone in their collective decision to transfer Mr. Johnson to the
construction section. Nevertheless, if it can be shown by a
preponderance of the evidence that the decision by Mr. Morley and
Mr. Slone with respect to the make-up of the work crews was
motivated by their legitimate concern to increase production, the
motivational factor behind management's initial decision for the
need of a realignment, any inference of discriminatory intent may
be successfully rebutted.

 Mr. Morley testified that his primary concern in assigning

miners to particular work crews was to insure a good mix of
productive people who could work together harmoniously in order
to achieve mine management's production objectives. Mr. Morley
candidly conceded that he considered the personalities and work
habits of all available personnel, concluded that there should be
a different mix of people, including foremen, in order to improve
production, and that he freely discussed this with Mr. Slone.
With regard to the slotting of Mr. Johnson, as well as Mr.
Damron, Mr. Morley believed

---

Page 50

~1899
that their past work performance was less than adequate. Mr.
Morley further believed that the continuous miner positions in
the realigned section would be most critical to any attempts to
increase production and he concluded that those positions which
had previously been occupied by Mr. Johnson and Mr. Damron should
be filled by someone else on the newly created production
section.

 Mr. Morley stated that Mr. Slone shared his view with

respect to the past work performance of Mr. Johnson, and in fact
it was Mr. Slone who suggested that changes should be made in the
crew assignment of continuous miner operators, and it was Mr.
Slone who informed Mr. Morley that Mr. Johnson was a slow machine
operator and that he and section foreman Smith had problems
keeping Mr. Johnson's section moving at a pace to suit him.
Further, as indicated earlier, Mr. Slone had previously warned
and spoken to Mr. Johnson about his work, issued him an
unsatisfactory work slip, and had made previous statements to Mr.
Johnson that he did not want to work. Mr. Morley was directly
involved in the prior warning to Mr. Johnson, and miner operator
Jerry Hicks corroborated the fact that Mr. Morley believed that
the low production on the section was the result of
unsatisfactory work by the entire crew, and that Mr. Morley gave
them all a warning in this regard. Mr. Slone confirmed that he
recommended to Mr. Morley that Mr. Johnson be moved off the first
right section, and he corroborated the fact that he discussed the
make-up of the crews with Mr. Morley.

 Mr. Morley asserted that his decision with respect to his

desire to obtain a different mix or personalities on the newly
aligned work crews was equally applied to personnel on the second
right section shift, as well as Mr. Johnson's shift, and that
foremen, as well as union personnel were moved in his attempts to
"get a better chemistry or something going up there an get
production going" (Tr. 169). Conceding that production did not
substantially increase after the realignment, Mr. Morley insisted
that his intent in making up the particular work crews was aimed
at increasing production.

 I conclude and find that Mr. Morley and Mr. Slone were

simply carrying out their management responsibilities in
implementing the realignment decision made by Mr. Kinder. There
is nothing to suggest that Mr. Morley or Mr. Slone initiated the
realignment or made any suggestions to Mr. Kinder that a
realignment was necessary in order to isolate Mr. Johnson. As a
matter of fact, Mr. Boyd conceded that he had no reason to
believe that Mr. Slone had anything to do with the initial
realignment decision (Tr. 190).

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Page 51

~1900
Having viewed Mr. Morley and Mr. Slone during their testimony
at the hearing, I find them to be credible individuals. I find no
credible basis for concluding that Mr. Johnson was treated any
differently from other miners with respect to the selections and
decisions made by Mr. Morley and Mr. Slone in realigning the
available work force. The record clearly establishes that one
entire section was abolished, and that foremen as well
rank-and-file miners, including other miners on Mr. Johnson's
shift, were affected by realignment, and that some miners who had
complained about safety were not realigned. Mr. Melton confirmed
that with the exception of Mr. Johnson, Mr. Ratliff, and Mr.
Damron, the remaining miners affected by the realignment were
"pacified and everything was fine as far as they were concerned"
(Tr. 75).

 With regard to the purported "adverse" decision by

management to realign the work force, I take note of the
Commission's decision in Bradley v. Belva Coal Company, 4 FMSHRC
982 (June 1982). Citing its Pasula and Chacon decisions, the
Commission stated in pertinent part as follows at 4 FMSHRC 993:
"* * * Our function is not to pass on the wisdom or fairness of
such asserted business justifications, but rather only to
determine whether they are credible and, if so, whether they
would have motivated the particular operator as claimed."

 I conclude and find that Mr. Morley and Mr. Slone acted well

within their managerial and discretionary authority in deciding
upon which particular personnel at their disposal would be
transferred or realigned. Acting within their authority as
managers, they were free to make judgments and decisions with
respect to the relative work performance levels of the available
personnel, including any personality traits or work habits which
they believed were required to assure that a productive and
harmonious group of workers were available to achieve
management's production objectives.

 I find Mr. Morley's explanation as to the factors which he

and Mr. Slone chose to follow in making their crew selections to
be reasonable and plausible, and that their selection decisions
were motivated by their good faith intentions to attempt to
increase production in anticipation of the longwall, rather than
to discriminate against Mr. Johnson or to isolate him for his
safety complaints or his activities as a safety committeeman. I
reject Mr. Johnson's assumptions and conclusions that management
somehow conspired to realign him out of retaliation for his
safety activities. Mr. Johnson's service as a safety committeeman
does not insulate him from legitimate managerial business-related
non-discriminatory

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~1901
personnel actions, UMWA ex rel Billy Dale Wise v. Consolidation
Coal Company, 4 FMSHRC 1307 (July 1982), aff'd by the Commission
at 6 FMSHRC 1447 (June 1984); Ronnie R. Ross, et. al v. Monterey
Coal Company, et. al., 3 FMSHRC 1171 (May 1981).

 With regard to the issue raised for the first time at the

hearing by the union concerning an alleged "bribe" by management
as an indication of its purported attempt to keep Mr. Johnson off
of the producing longwall section, I take note of the fact that
this alleged incident occurred well after the realignment, and
there is absolutely no evidence to suggest that Mr. Morley or Mr.
Slone were involved in that alleged incident.

 The issue concerning the bidding for the longwall faceman's

job which Mr. Johnson now occupies was the subject of
arbitration. The record establishes that after a formal
arbitration hearing held on February 18, 1987, Mr. Johnson was
awarded the job (exhibit CÄ1). In that proceeding, Mr. Hodges and
Mr. Matheny appeared on behalf of management, and Mr. Melton, Mr.
Johnson, Mr. Thacker, and Mr. Varney appeared on behalf of Mr.
Johnson.

 The union's position with respect to Mr. Johnson's

grievance, as reflected by the arbitrator's decision, was that
the respondent was attempting to circumvent the contract and not
award the job to Mr. Johnson because he was a safety
committeeman. In sustaining Mr. Johnson's grievance and awarding
him the job, the arbitrator based his decision on a finding that
the respondent failed to follow established company policy
prohibiting anyone but the actual job bidder from adding or
deleting a bidder's name from the bid sheet. The arbitrator
rejected the claim that the respondent attempted to bypass Mr.
Johnson because he was a safety committeeman. In doing so, the
arbitrator found that there was no evidence which even suggested
that this was the case (exhibit CÄ1, pg. 5).

 Although I am not bound by decisions of arbitrators, I may

nonetheless give deference to an arbitrator's "specialized
competence" in interpreting a provision of any applicable
labor-management agreements. Chadrick Casebolt v. Falcon Coal
Company, Inc., 6 FMSHRC 485, 495 (February 1984); David Hollis v.
Consolidation Coal Company, 6 FMSHRC 21, 26Ä27 (January 1984);
Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786 (October 1980), rev'd on other grounds sub nom.
Consolidation Coal Co., v. Marshall, 663 F.2d 1211 (3d Cir.1981).

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~1902
I take particular note of the arbitrator's comments at page four
of his decision that a full and complete hearing was conducted
and that the parties had an ample opportunity to present evidence
in support of their claims. I note the arbitrator's comment that
the union's assertion that Mr. Johnson was bypassed because he
was a committeeman was made in closing arguments, and his
conclusion that the union submitted no evidence to even suggest
that Mr. Johnson's status as a safety committeeman had anything
to do with the job bid in question.

 Neither party presented any posthearing discussion with

regard to the prior arbitration hearing. The respondent simply
characterized the alleged "bribe" as an "incredible" pretexual
fabrication by the union to discredit management. The complainant
simply concludes that the arbitrator's ruling that the bid made
by the employee in competition with Mr. Johnson was too late, and
that a foreman could not add a bidder's name on the job bid,
"shows true signs of discrimination on the company's part."

  In this case, Mr. Thacker's testimony is devoid of any

credible statements to indicate or even suggest that at the time
Mr. Matheny may have discussed the job bids with him, Mr. Matheny
said anything directly or indirectly that would lead Mr. Thacker
to conclude that Mr. Matheny made any job overtures to him with
the intent to isolate or get rid of Mr. Johnson. Mr. Thacker
admitted that his belief that Mr. Matheny did not want Mr.
Johnson to get the longwall faceman's job was based on
speculation, and that Mr. Matheny did not mention Mr. Johnson by
name.

 Mr. Varner first testified that Mr. Thacker told him that

Mr. Matheny wanted him to bid for the faceman's job in order "to
beat Eddie out of it." He later stated that Mr. Thacker indicated
to him that Mr. Matheny did not identify Mr. Johnson as the
individual who he was trying to keep out of the section. Thus,
Mr. Varner not only contradicts himself, but he contradicts Mr.
Thacker's testimony that Mr. Johnson did not mention Mr.
Johnson's name at all.

 Mr. Varner also testified that it was he who suggested to

Mr. Thacker that Mr. Matheny was trying to keep Mr. Johnson off
the section for fear he would shut it down because of methane.
Mr. Varner confirmed that he made the suggestion in response to
an injury from Mr. Thacker as why anyone would ask him to bid for
the job. This also contradicts Mr. Thacker's statement indicating
that it was he who told Mr. Varner that Mr. Matheny wanted to get
Mr. Johnson off the section.

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~1903
After careful consideration of the testimony of Mr. Thacker and
Mr. Varner, which I conclude is contradictory, and lacking in
credibility, and taking into consideration the arbitrator's
finding with respect to the merits of the alleged "bribe," I
reject the complainant's assertion that Mr. Matheny, or anyone
else, made an offer to Mr. Thacker with the intent to exclude Mr.
Johnson from the longwall section in order to prevent him from
functioning as a safety committeeman or to prevent him from
making complaints.

                                 ORDER

 In view of the foregoing findings and conclusions, and on

the basis of a preponderance of all of the credible testimony and
evidence adduced in this case, I conclude and find that the
complainant has failed to establish that the realignment of June
2, 1986, was in any way discriminatory, or was motivated by the
respondent's intent to prevent him from exercising any protected
rights with respect to his employment as a miner or in his
capacity as a member of the safety committee. Even had the
complainant established a prima facie case, I conclude that it
was clearly rebutted by the respondent's credible evidence which
established that the realignment constituted a reasonable and
plausible business-related and non-discriminatory effort by
management to increase production in order to facilitate and
expedite the installation of the longwall. Accordingly, the
complaint IS DISMISSED, and the complainant's claims for relief,
including costs, ARE DENIED.

                          George A. Koutras
                          Administrative Law Judge