Harlan Cumberland Coal Co.

Plain-English summary

Elmer Darrell Burgan alleged that Harlan Cumberland Coal Company suspended and transferred him because he complained about blocked shuttle-car breakers, and that Dixie Fuel Company denied his request to transfer closer to home because of his safety complaints. Judge Jerold Feldman found that Burgan did not prove that the alleged breaker-blocking activity occurred or that the employment actions were motivated by protected activity. He also found that Burgan quit Dixie because of commuting problems and a revoked driver's license, not because the mine was unsafe. The judge dismissed both discrimination complaints.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(2), 815(c)(3), and 820(c)
• Outcome: The discrimination complaints against Harlan Cumberland Coal Company and Dixie Fuel Company were dismissed.
• Key point: A discrimination claim requires proof of protected safety activity and a connection between that activity and the adverse employment action.

Full text (FMSHRC public release)

CCASE:
ELMER DARRELL BURGAN V. HARLAN CUMBERLAND
ELMER DARRELL BURGAN, V. DIXIE FUEL
DDATE:
19930512
TTEXT:

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        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA 22041

ELMER DARRELL BURGAN, : DISCRIMINATION PROCEEDINGS
Complainant :
: Docket No. KENT 92-915-D
v. : BARB-CD-92-31
:
HARLAN CUMBERLAND COAL CO., : Harlan Mine
Respondent :
:
:
ELMER DARRELL BURGAN, : Docket No. KENT 93-101-D
Complainant :
v. : No. 1 Mine
:
DIXIE FUEL COMPANY, :
Respondent :

                            DECISION

Appearances: Phyllis Robinson, Esq., Hyden, Kentucky,
for the Complainant
H. Kent Hendrickson, Esq., Harlan,
Kentucky, for the Respondents.

Before: Judge Feldman

  These cases are before me based upon discrimination

complaints filed pursuant to Section 105(c)(3) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. 815(c)(3) (the
Act) by complainant Elmer Darrell Burgan (Burgan) against
corporate respondents Harlan Cumberland Coal Company (Harlan) and
Dixie Fuel Company (Dixie).(Footnote 1) Clyde Bennett is the
general manager of the respondents which are closed family
corporations. Bennett's children are the corporate officers of
these

1
Burgan's complaints which serve as the jurisdictional basis for
this matter were filed with the Secretary in accordance with
Section 105(c)(2) of the Act, 30 U.S.C. 815(c)(2). Burgan's
complaints were investigated by the Mine Safety and Health
Administration (MSHA) which concluded that there were no Section
105(c) violations with respect to Burgan's employment at Harlan
Cumberland Coal Company or Dixie Fuel Company. Burgan
subsequently filed complaints with this Commission which are the
subject of this proceeding.

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corporations. These cases were consolidated for hearing at the
complainant's request by order dated January 6, 1993. The cases
were heard in Richmond, Kentucky on March 9 and March 10, 1993.
For the reasons discussed herein, Burgan's discrimination
complaints against the corporate respondents are dismissed.

 At trial, the parties stipulated that Harlan and Dixie are

coal companies engaged in interstate commerce. Therefore, the
parties agree that I have jurisdiction to hear these matters.
The parties also stipulated to Burgan's employment history. The
complainant's direct case consisted of his testimony as well as
the testimony of six other individuals, including the
complainant's brother, Robert Burgan, who was the Superintendent
at Harlan. In defense of the charges filed by Burgan, the
respondents provided the testimony of Clyde Bennett and two
employees of Harlan and one individual employed by Dixie. The
parties filed simultaneous proposed findings and conclusions
which were received in my office on April 26 and April 27, 1993.

Burgan's Section 105(c) Complaints

  The gravamen of Burgan's complaint against Harlan is that

his three day suspension and subsequent transfer from Harlan's H2
Mine to its D3 and C3 Mines following a January 14, 1992,
altercation with his brother Allen was, in fact, discriminatorily
motivated because of Burgan's safety related complaints.
Specifically, Burgan asserts that he complained about H2 Mine
Foreman Matthew Coots' intentional blocking of shuttle car
breakers which interfered with Burgan's short circuit protection
during his shuttle car operation. Burgan contends that Coots'
blocking of these breakers exposed him to electric shock and
potential electrocution. Burgan alleges that his discriminatory
suspension and transfer ultimately resulted in his unemployment
when the C3 Mine was closed until Burgan was called back to work
to open Dixie's No. 1 Mine. With respect to Dixie, Burgan argues
that Clyde Bennett's June 11, 1992, denial of his request to
transfer from the Dixie No. 1 Mine back to the H2 Mine, because
the H2 mine was closer to Burgan's home, was also motivated by
discrimination because of his past safety complaints.(Footnote 2)

2
The complainant's theory of the case regarding Dixie is not well
focused. For example, Burgan initially argued that he was afraid
to return to the Dixie No. 1 Mine on June 10, 1992, because he
believed the mine was unsafe after a smoke incident caused by a
conveyor belt stoppage on June 4, 1992. (See Verified Complaint,
Kent 93-101-D, Para. 9; Tr. 27, 81, 86, 89, 91, 96, 102-103).
However, late in the first day of the trial counsel conceded that
the evidence reflected that this belt condition was abated the
next day and that Burgan did not experience any reoccurrence of
smoke related problems when he returned to work at the Dixie No.
1 Mine on June 8, 1992. (See Tr. 288-292).

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Respondents' Defense

 The respondent counters by denying that blocking of breakers

occurred and by denying that Burgan ever communicated any safety
related complaints. In addition, the respondent maintains that
Burgan's three day suspension and transfer were motivated solely
by its desire to separate Burgan from his brother Allen Burgan
after a serious altercation. The respondent states that Burgan's
subsequent temporary layoff from March 14 through June 3, 1992,
occurred because the D3 and C3 Mines were closed because they
were not profitable. In this regard, the respondent contends
that Burgan was laid off along with the rest of the crew that was
assigned to these mines. Finally, the respondent asserts that
Burgan quit his job at the Dixie No. 1 Mine in Cawood, located
approximately 30 miles from Burgan's home, on June 11, 1992,
after Clyde Bennett told him that he did not have any work for
him at the H2 mine in Louellen, Kentucky.

              PRELIMINARY FINDINGS OF FACT

 The fundamental facts are not in dispute. Burgan resides in

Closplint which is located within a few miles of Louellan,
Kentucky. He has been employed by coal mines operated by Clyde
Bennett since 1979. From 1979 until March of 1982, he was
employed at the Dixie mine at Cawood, in Harlan County, Kentucky
which is, as noted above, located approximately 30 miles from his
home in Closplint. From March 1983 until January 14, 1992, he
was employed at several Harlan mines located in Louellan, in
close proximity to his home in Closplint. During this period,
the complainant and his brother Allen Burgan worked together at
Harlan's H2 Mine for approximately four years. Burgan's other
brother, Robert Burgan, was the Superintendent of the H2 Mine
since the latter part of 1987 until he terminated his employment
on January 7, 1992, because of a reported back condition. During
the period that the three Burgan brothers were employed by
Harlan, Matthew Coots was the Foreman at the H2 Mine. Coots
reported directly to Robert Burgan who in turn reported to Clyde
Bennett.

fn. 2 (continued)
Counsel thereupon modified the alleged discriminatory action
associated with Burgan's Dixie employment to Clyde Bennett's
refusal to transfer Burgan to the H2 Mine closer to Burgan's
home. (Tr. 275). In support of this new approach, Counsel now
argues that Burgan needed to work close to home because of car
problems and because Burgan's driver's license had been revoked
for driving under the influence (DUI). (See Tr. 272-276). I am
not unmindful of the contradiction associated with Burgan's car
problems at a time when he had no driver's license.
Nevertheless, it is the theory advanced on behalf of the
complainant.

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On January 14, 1992, the complainant had an altercation with
his brother Allen Burgan after Allen backed a continuous miner
into a bolting machine located behind a curtain where the
complainant and James Skidmore were eating. An argument ensued
during which there was cursing. During the argument the
complainant grabbed a piece of roof bolting steel and drew it
back and threatened to hit Allen. Allen walked away and no blows
were exchanged. (Tr.375-376). As a result of this incident, the
complainant was suspended without pay from Wednesday, January 15,
through Friday, January 17, 1992. On Monday, January 20, 1992,
the complainant was transferred to Harlan's D3 Mine in Louellan
until it was closed on January 24, 1992. Burgan was then
transferred to Harlan's C3 Mine at Louellan on January 25, 1992.
His employment continued until March 13, 1992, when the C3 Mine
was closed. Burgan was laid off and collecting unemployment
insurance from March 14, 1992 through June 2, 1992.

 On June 3, 1992, Burgan was called back to work at the Dixie

Fuel Company No. 1 Mine in Cawood, Kentucky. Burgan worked at
the Dixie No. 1 Mine on Wednesday, June 3rd, and Thursday, June
4th. At the end of the June 4th shift, at approximately
4:00 p.m., there was an incident wherein the belt slipped off the
head drive. The roller continued to turn against the stationary
belt scorching the belt causing smoke. Employee Elvis Saylor
shut the belt down immediately. Burgan and three other mine
personnel in the belt entry traveled through a door from the belt
entry into a fresh air course to escape the smoke. Shortly
thereafter, Foreman Ron Osborne received a call from the surface
informing him that Burgan's wife was enroute to the hospital to
deliver a baby. Osborne informed Burgan that he could take
Friday, June 5th off in view of his wife's childbirth.

  Burgan returned to work at the Dixie No. 1 Mine on the

morning of Monday, June 8th. He also worked the following day on
June 9th. On Wednesday, June 10th, he telephoned Clyde Bennett
and stated that he could not come to work because his car broke
down. On Thursday, June 11th, he called Bennett and stated that
his car was still inoperable. Bennett inquired why it was taking
so long to fix his car.(Footnote 3) Burgan asked Bennett for a
transfer back to the H2 Mine in Louellan which was nearer to his
home.

3
Bennett testified that Burgan told him that his car needed its
tie rod ends replaced. Bennett called several local auto supply
stores and determined that the parts were readily available.
Bennett estimated that it would take approximately 30 minutes to
repair the vehicle. (Tr. 352).

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Bennett replied that he did not need him at the H2 Mine. The
respondent then told Bennett that he quit. He also told Bennett
that the Dixie No. 1 Mine was unsafe.(Footnote 4)

FURTHER FINDINGS AND CONCLUSIONS

 Applicable Case Law

 In order to establish a prima facie case of discrimination

under Section 105(c) of the Act, a complaining miner bears the
burden of establishing (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 Co., 2 FMSHRC 2768 (1980), rev'd on other
grounds sub nom., Consolidation Coal Company v. Marshall, 663
F.2d 1211 (3rd Cir. 1981); Secretary on behalf of Robinette v.
United Castle Coal Company, 3 FMSHRC 803 (1981); Secretary on
behalf of Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842
(1984); Secretary on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508 (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 that
either no protected activity occurred, or, that the adverse
action was in no way motivated by the protected activity.
Robinette, 3 FMSHRC at 810 n.20.

  If the operator fails to rebut the complaint, it may

nevertheless affirmatively defend against the prima facie case by
proving that it was also motivated by unprotected activity and
that it would have taken the adverse action in any event for the
unprotected activity alone. See also Donovan v. Stafford

4
Bennett's account of these telephone conversations is consistent
with Burgan's testimony during his unemployment case wherein he
told the hearing officer, "Yeah, [I quit], I told [Bennett], I
said if you have anywhere else for me to work where I can get to
work close to home ... [Bennett] could have put me up there if he
wanted to...." (Joint Ex. 1, pp. 26-27). Burgan's unemployment
testimony is also consistent with his testimony in this
proceeding where he testified that Bennett never told him that he
was fired from the Dixie mine. (Tr. 146-147, 363). Burgan also
opined that the Dixie mine was unsafe during a telephone
conversation on June 11th. Bennett states that this statement
was made during a subsequent telephone call on June 11th
approximately one hour after Burgan told Bennett that he quit.
Burgan cannot recall whether he made a second telephone call.
(Tr. 146). However, resolution of whether a second telephone
call was made by Burgan is not dispositive, particularly in view
of the complainant's abandonment of the unsafe theory. (See fn. 2
supra; Tr. 333-336).

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Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically
approving the Commission's Pasula-Robinette test).

The Complaint Against Harlan Cumberland Coal Company

 The Complainant's Direct Case

 As a threshold matter, in order to determine if Burgan

engaged in a protected activity, it is first necessary to
identify the alleged conduct which serves as the basis for the
complaint. In this case, Burgan maintains that Foreman Matthew
Coots who was under the direct supervision of Burgan's brother,
Superintendent Robert Burgan, engaged in a course of conduct,
i.e., blocking in breakers, presumably with the knowledge and
acquiescence of electrician Wendell Griffin. It is alleged that
this conduct negated the circuit breaker protection and exposed
shuttle car operators, such as Burgan, to electric shock and
possible electrocution. These are serious charges which, if
established, would subject the offending individuals to personal
liability for civil penalties under Section 110(c) of the Mine
Act, 30 U.S.C. 820(c).(Footnote 5)

 In support of his complaint, Burgan relies on the testimony

of Gary Lee Couch who replaced Burgan as a shuttle car operator
at the H2 Mine when Burgan was transferred to the D3 Mine on
January 20, 1992. (Tr.172). Couch continued to work at the H2
Mine until April 8, 1992, when he reportedly sustained a job
related back injury. Bennett subsequently rehired Couch for
light duty work as a night watchman. Couch performed these
duties for approximately six weeks until he was fired for
repeatedly sleeping on the job. (Tr.184-185, 350). Couch is a
litigant in his workman's compensation case against the Harlan
Cumberland Coal Company. (Tr.186).

  Couch testified that Coots blocked breakers and instructed

Couch how to do it. Thereafter, Couch stated that he blocked
breakers at Coots' request. (Tr.174-175, 178, 188). Couch
testified that he subjected himself to electric shock as a result
of blocking breakers. (Tr.175). Couch described an awkward
maneuver by which he entered the shuttle car so as to avoid
electric shock. Couch described this shuttle car entry procedure
as follows:

5
Section 110(c) of the Mine Act provides that whenever a
corporate operator violates a mandatory safety standard, any
agent of such corporation who knowingly authorized, ordered or
carried out such violation, shall be subject to the same civil
and criminal penalties that can be imposed upon the operator
under the Act.

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Well, after a while you kind of learned how to get in
and off the car without getting shocked. You jumped
with both feet at one time to get off or you jump on
all at one time. If you're touching the ground when
you lay your hand on the car you got shocked if it was
hot (Tr.175).

 Couch reportedly was so concerned about his personal safety

that he told a friend to tell his wife about the breakers if
"something stupid [happened] that got [him] killed." (Tr.176-
178). Despite the fact that Couch testified that he feared for
his life, he never reported the breaker problem to Bennett or the
Mine Safety and Health Administration (MSHA).(Footnote 6)
(Tr.186, 192).

 Burgan also called James Edward Skidmore who was a fellow

employee at the H2 Mine. Skidmore witnessed the January 14,
1992, altercation between Burgan and his brother Allen.
Skidmore's recollection of the incident is consistent with Coots'
testimony that Burgan threatened to hit Allen with a piece of
roof bolting steel. (Tr.215-216, 376). Skidmore testified that
neither Burgan nor Couch ever told him about blocked shuttle car
breakers. (Tr.211-212). He stated that he never observed anyone
routinely "jumping out of a shuttle car in a funny way so as to
avoid shock or injury" (Tr.217). Although he is a roof bolt
operator and does not use a shuttle car frequently, he stated
that he had no fear or reluctance to ride in the H2 shuttle cars.
(Tr.217).

  Finally, the complainant called his brother Robert Burgan

who was Superintendent at the H2 Mine and directly in charge of
Coots. Robert Burgan last worked for the respondent Harlan
Cumberland Coal Company on January 7, 1992, because of a job
related back injury. He is receiving workman's compensation
which is still pending final litigation. (Tr.306, 309). Robert
Burgan testified that the complainant told him that Coots was

6
The respondent Harlan Cumberland Coal Company stipulated that
anonymous complaints about blocked breakers were apparently
communicated to MSHA in April 1992. (Tr. 372). As a result of
these complaints, on April 24, 1992, MSHA inspected the H2 Mine.
This inspection resulted in several citations. The record was
kept open for entry of copies of these citations into the record
after trial. (Resp. Ex. 3). The MSHA inspection did not
substantiate the complaints. (Tr. 369-372, 422). The failure of
the Secretary to confirm the alleged misconduct accounts for the
Secretary's disinclination to prosecute the subject complaints on
behalf of Burgan. Moreover, these unsubstantiated complaints to
MSHA lodged several months after Burgan's January 1992 transfer
from the H2 Mine and contemporaneous with his April 30, 1992,
discrimination complaint are self-serving and do not establish
the protected activity alleged by Burgan. (See Comp. Ex 1).

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blocking breakers and that he had a meeting with Coots and H2
electrician Wendell Griffin in November or December 1991 at which
time they denied that blocking of breakers occurred. (Tr.300-
302). In their testimony, Coots and Griffin deny that this
meeting ever occurred. (Tr.382, 414). Significantly, Robert
Burgan's testimony indicates that he could not confirm the
complaints about blocking breakers in that he never fired or
otherwise disciplined anyone for this activity. In fact,
Robert Burgan testified that, "I never had proof" that Coots or
anyone else was engaged in blocking breakers. (Tr.309). This
accounts for Robert Burgan's failure to report this matter to his
immediate boss, Clyde Bennett. (Tr.262).

 With respect to the altercation, Robert Burgan testified

that suspension, termination, or separation of employees who
engage in fighting are appropriate sanctions. (Tr.311-312,315).
He also testified that personnel actions should be based upon
seniority. (Tr.315-316). Although Robert Burgan questioned the
transfer of the complainant, it was consistent with seniority
considerations in that Allen Burgan had 16 to 18 years experience
which gave him more seniority than the complainant. (Tr.316).

 The Respondent's Direct Case

 The respondent called Coots who unequivocally denied the

allegations of the complainant. In this regard, Coots stated
that he never had a meeting about blocked breakers with
Robert Burgan. He also testified that he did not know how to
block in a breaker. (Tr.395). Coots conceded that supervision of
the complainant was difficult because he (Coots) was supervised
by the complainant's brother. Coots stated that the complainant
would always run to Robert Burgan whenever he was told to do
something he didn't like to do. (Tr.378-379). Coots described
the altercation between the complainant and Allen Burgan.
(Tr.384). After this incident Coots recommended to Bennett that
the complainant and Allen Burgan be separated. (Tr.389).

 Electrician Wendell Griffin also denied any pertinent

meetings or discussions with Robert Burgan. (Tr.414,421).
Griffin testified that he never blocked in breakers. He also
testified that neither Coots nor Couch knew how to block in a
breaker. (Tr.423-424). Griffin denied receiving any pertinent
complaints from the complainant or Couch. (Tr.413).

 Finally, Clyde Bennett testified that after talking to Coots

about the January 14, 1992, fight between the Burgan brothers, he
decided to transfer Burgan to the D3 Mine. The transfer was
motivated solely by Burgan's fight (Tr.278). Bennett explained
his decision as follows:

Page 10

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It was based on fighting in the mine. That's against
the law, you know, it's very dangerous and I just won't
have that in our mines and I made the decision to give
him three days off and transfer him to another mine.
If I'd made any other decision it would have been to
fire him right then. I thought I give him a break
(sic). (Tr. 293).

 Bennett suspended Burgan for the three workdays following

the fight and transferred him to the D3 Mine on Monday,
January 20, 1992. The D3 Mine was closed on January 24, 1992,
when the entire crew, including Burgan, was transferred to the
C3 Mine. (Tr.279). The C3 Mine was closed on March 14, 1992,
because the sulphur content in the coal was too high to satisfy
the respondent's existing orders. (Tr.279). Two individuals at
the C3 Mine were reassigned and the eight remaining crewmen were
laid off. (Tr.314). At trial, and, in his unemployment hearing,
Burgan testified that Danny Cochran was given preferential
treatment because, unlike Burgan, Cochran continued to pump water
at C3 and was not laid off. (See Joint Ex. 1. pp. 26-27).
Bennett explained that Cochran has foreman's papers which allows
him to go into a mine alone and that Cochran was obviously better
qualified than Burgan. (Tr.347, 364). Most of the employees laid
off from the C3 Mine were called back to the Dixie No. 1 Mine in
May or June 1992.

The Complaint Against Dixie Fuel Company

   The Complainant's Direct Case

 Burgan was laid off from the C3 Mine in Louellen on

March 14, 1992. He was subsequently called back to work on
June 3, 1992, to open the Dixie No. 1 Mine in Cawood, Harlan
County, Kentucky. At trial, the complainant presented
considerable testimony concerning a June 4, 1992, conveyor belt
incident that caused smoke and evacuation. Burgan testified at
length regarding his alleged severe smoke inhalation suffered
during this event as well as the fact that he feared returning to
the Dixie mine although he conceded the belt problem was
immediately remedied. In fact, there is no evidence that Burgan
ever received treatment for smoke inhalation or that he ever
experienced any problems when he returned to work at Dixie on
June 8 and June 9, 1992. (Tr.88). Burgan's witnesses Monus Peace
and Danny Cochran failed to support Burgan's claim that the Dixie
mine was unsafe. In fact, Cochran rebutted Burgan's testimony
that Cochran had requested a transfer from the Dixie mine because

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he believed it to be unsafe.(Footnote 7) At the hearing,
Burgan's counsel distanced herself from the safety issue as a
basis for Burgan's discrimination complaint. (Tr.153-160, 272-
278, 288-289, 337). Counsel now alleges that Bennett's denial of
Burgan's transfer from Dixie to H2 was motivated by
discrimination because of Burgan's earlier safety related
complaints concerning Coots. (Tr.275, 277, 289).

 The Respondent's Direct Case

 The respondent called Ron Osborne, the Foreman at the Dixie

mine who testified that he was with Burgan when they escaped from
the smoke on June 4th by entering a fresh air course from the
belt entry and that they were only exposed to smoke for a short
period of time. Osborne also stated that Burgan never complained
of smoke related injuries on that day or when he returned to work
on June 8th. Bennett was called upon to testify regarding his
telephone conversations wherein Burgan called on June 10 and
stated he had car problems. In addition to his car problems,
Burgan testified that his driver's license was revoked for DUI.
(Tr.132-133). Bennett testified that he did not know that Burgan
had lost his license. (Tr.270-271). Bennett recalled that Burgan
telephoned on the following day and requested a transfer to the
H2 Mine because it was closer to his home. Bennett told him that
he did not need him there whereupon Burgan said he quit. Burgan
called back an hour later and stated that he quit because the
mine was unsafe rather than because of his car problems.

            ULTIMATE FINDINGS AND CONCLUSIONS

  As noted above, in order for Burgan to benefit from the

protection afforded by Congress under Section 105(c) of the Mine
Act, he must bear the burden of establishing that he was the
victim of discriminatory adverse action as a result of his
alleged protected activity. Specifically, Burgan must show that
he complained about Coots' conduct concerning the blocking of
breakers and that he had a good faith belief for such complaints.
As Burgan's complaints are based on his alleged personal

7
At the hearing it was obvious that Danny Cochran suffers from a
significant hearing impairment. (Tr. 219-220). Burgan testified
that Cochran told him that he requested Bennett to
transfer him from the Dixie mine back to a Harlan mine in
Louellen after the belt smoke incident "...because of (sic) he
wasn't going to be scared like that." (Tr. 99). However, Cochran
denied this statement when he was called upon to testify on
behalf of the complainant. (Tr. 226, 231). In fact, Cochran
explained that he requested a transfer on the advice of his
physician who recommended that Cochran avoid the damp conditions
in the Dixie mine which could exacerbate his hearing disorder.
(Tr. 230-231).

Page 12

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knowledge of Coots' behavior, his good faith belief must be
demonstrated by proving that this unsafe activity actually
occurred. In addition, if Burgan can establish his protected
activity as alleged, he must also show that the adverse action
complained of, i.e., his transfer from the H2 Mine, was in part
influenced by his protected activity. Burgan's principal
witnesses supporting his allegations against Coots and Griffin
are former employee Gary Couch and Burgan's brother, former
Superintendent Robert Burgan.(Footnote 8) Their testimony should
be evaluated in the context of whether it is credible and whether
it is effectively rebutted by other witnesses. In addition, in
determining the evidentiary value of their testimony,
consideration must be given as to whether they are disinterested
or biased.

 Couch is currently litigating a workman's compensation claim

filed against the Harlan Cumberland Coal Company. Moreover, it
is uncontroverted that Couch was fired by Bennett for repeatedly
sleeping on the job as a night watchman after he was placed on
light duty following his reported job related back injury. Thus,
Couch must be considered a biased witness.

  Moreover, the credibility of Couch's testimony is suspect

notwithstanding his apparent bias. It is difficult to imagine
Couch's assertion that he knowingly and repeatedly exposed
himself to electric shock or electrocution by personally blocking
shuttle car breakers. It is equally incredible that he then
proceeded to awkwardly jump in and out of the shuttle cars so as
to avoid injury or electrocution. It is also difficult to
understand how he could continue to engage in such activity,
having testified that he feared for his life to such an extent
that he told a friend to tell his wife what he was doing in the
event he was killed because of "something stupid." Couch's
testimony that he engaged in these activities because he was
afraid of losing his job is also unconvincing. Finally, Couch's
allegations were rebutted by the testimony of fellow employee
James Skidmore, called as a witness by Burgan, as well as the
testimony of Coots and Griffin.

8
At trial complainant's counsel also sought to call Allen Burgan
as a corroborating witness. Counsel stated that Allen Burgan is
no longer employed by Harlan Cumberland Coal Company and that she
thought that he also had a workman's compensation case pending.
(Tr. 324, 439). At the conclusion of the hearing counsel moved
to keep the record open to depose Allen Burgan. The motion was
denied as Allen Burgan was not served with a subpoena and the
information sought to be introduced through his testimony was
already adequately reflected in the record. (Tr. 440-441).

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Burgan's alleged protected activity was also not adequately
supported by the testimony of his brother, Robert Burgan, who
also has a back related workman's compensation case pending
against the respondent. In this regard, Robert Burgan testified
that he never took any disciplinary action against anyone; that
he could not prove that Coots was engaging in the activity
alleged by his brother; and that he never reported his brother's
complaints to Bennett. Simply put, if the complainant's brother,
the superintendent on the scene, could not confirm the validity
of Burgan's alleged complaints, I am similarly unconvinced. It
is noteworthy that Coots and Griffin both deny ever discussing
blocked breakers with Robert Burgan. Moreover, Robert Burgan's
failure to report these alleged meetings to Bennett further
supports the denials of Coots and Griffin.

 Thus, I conclude that Burgan has failed to demonstrate by a

preponderance of the evidence that he engaged in the alleged
protected activity. However, even if I were to find that Burgan
did make generalized isolated safety related complaints that
qualify as protected activity under Section 105(c) of the Mine
Act, the evidence reflects that Burgan's three day suspension and
transfer was motivated by Bennett's desire to separate Burgan
from his brother Allen after their serious encounter.(Footnote 9)
In this regard, Robert Burgan testified that suspension, transfer
and termination are all appropriate sanctions for fighting in an
underground mine. In addition, Robert Burgan stated that Allen
Burgan had more seniority than the complainant further justifying
the transfer of the complainant rather than Allen. The immediate
suspension and transfer after the subject altercation is further
evidence that the adverse action complained of was not influenced
by any other considerations. Moreover, the record does not
reflect that Burgan received any disparate treatment in that he
was laid off from the C3 Mine and rehired at the Dixie mine with
other individuals. (Tr.245-246).

  Finally, turning to Burgan's complaint against the Dixie

Fuel Company, it is clear that Burgan quit his job at Dixie on
June 11, 1992, after Bennett refused to transfer Burgan to the H2
Mine which is closer to Burgan's home. (Tr.155). The complainant
has not rebutted Bennett's testimony that Burgan was not needed
at the H2 Mine. While mining is inherently dangerous, smoke

9
Although Burgan's alleged complaints concerning blocked breakers
served as the basis for the discrimination complaints that are
the subject of this proceeding, Burgan also testified about a
variety of other alleged complaints. These included complaints
about inoperable lights and poor brakes on shuttle cars, and
unfair treatment he endured at the hands of Coots. (Tr. 38-45).
Assuming that these complaints occurred, the evidence fails to
demonstrate that Burgan's suspension and transfer were in any way
motivated by such complaints.

Page 14

~901
caused by a belt slippage does not establish that a mine is
unsafe if the condition is corrected. In this case, the belt
malfunction was immediately repaired and there is no evidence of
reoccurrence. Under these circumstances, Burgan's assertion that
he was afraid to go back to the Dixie No. 1 Mine because it was
unsafe and not suitable for work is without merit. Moreover,
this assertion is inconsistent with Burgan's own testimony and
the testimony of his own witnesses Monus Peace and Danny Cochran.
(Tr.154-158, 223, 226, 249-250). It is clear that Burgan's
decision not to return to the Dixie mine was motivated by the
commuting distance from his residence. Section 105(c) of the
Mine Act protects a broad array of activities so as to encourage
mine safety. However, car problems and the hardship associated
with a driver's license revocation for driving under the
influence (DUI) go beyond the scope of the protected activities
contemplated by the Act.

                          ORDER

 ACCORDINGLY, Elmer Darrell Burgan's Complaints against the

Harlan Cumberland Coal Company in Docket No. KENT 92-915-D and
the Dixie Fuel Company in Docket No. KENT 93-101-D ARE DISMISSED.

                              Jerold Feldman
                              Administrative Law Judge

Distribution:

Kent Hendrickson, Esq., Rice & Hendrickson, P.O. Drawer 980,
127 Woodlawn Hills, Harlan, KY 40831 (Certified Mail)

Phyllis L. Robinson, Esq., P.O. Box 952, Hyden, KY 41749
(Certified Mail)

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