Whitesburg KY

2nd miner reinstated after firing

A second deep miner has been ordered temporarily reinstated to his job at a Letcher County coal company under protections provided by the Federal Mine Safety and Health Act.

Administrative Law Judge Gary Melick ruled last week that North Fork Coal Co. must reinstate roof bolter Mark Gray to his job at the company’s No. 4 mine at Partridge. Melick determined that Gray was not acting “frivolously” when he charged that he was fired from his job on a double-headed Fletcher roof bolting machine because he refused to work in unsafe conditions.

North Fork Coal is a subsidiary of Black Mountain Resources.

After he was fired from his job on May 15, Gray filed a complaint with the Federal Mine Safety and Health Review Commission charging that he was dismissed because he “refused to roof bolt an entire cutthrough of about 60 feet plus in depth.” Seams of coal are normally cut about 40 feet before roof bolts are installed to keep the mine roof from caving in.

Belick ruled that Gray was testifying credibly when Gray said his section foreman became angry because Gray would stop the bolt machine to install ventilation curtains when methane levels became dangerous with readings “in the .9% to 1% range.”

“According to Gray, foreman Tom Cornett, when observing this activ ity, expressed his dissatisfaction with Gray, presumably for holding up production by not working on the roof bolter, by just walking off ‘like he was upset’ and by no longer talking to him,” Melick wrote in his opinion. “Gray also testified at hearings that sometime in April 2009, he was roof bolting in the section where normal cuts were 30 feet deep. His foreman then asked him to bolt a deep cut of about 55 feet and he did. After bolting the deep cut he told Cornett that he would not bolt another one like that. Gray testified that it was illegal to take such deep cuts, as it was not permitted in the roof control plan and that it was not safe.”

Melick said Gray’s firing a week later by second shift supervisor Robert Estevez was improper under the Mine Safety Act. He noted that Gray has been a miner since 1981, and that North Fork management had never complained to him about his work since he began working there in 2007.

“Considering the testimony and statements of Mr. Gray, it is apparent that he engaged in protected activity when he told his foreman that he had to hang ventilation curtains and that he made protected safety complaints and engaged in a protected work refusal in refusing to roof bolt what he perceived to have been a dangerous deep cut, one which was well in excess of the 40-foot cuts permitted by the mine’s roof control plan,” Melick’s opinion says.

Gray was represented in the case by Lexington attorney Tony Oppegard, who specializes in mine safety issues. Oppegard said the ruling demonstrates how the Mine Safety Act can protect miners from being fired for complaining about unsafe conditions.

“Temporary reinstatement is a powerful tool for coal miners because it is effective until the Federal Mine Safety & Health Review Commission issues its ‘final order’ in (discrimination cases),” Oppegard said.

Roxana coal miner Scott Howard won temporary reinstatement from Cumberland River Coal Co. in a similar case in which a ruling was handed down earlier this month.

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