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Coal miner Scott Howard told not to return to work, names firm in 5th action

Letcher County coal miner and safety advocate Charles Scott Howard has filed another safety discrimination complaint against Cumberland River Coal Company with the federal Mine Safety and Health Administration (MSHA) — his fifth such action in four years.

Howard alleges in his latest complaint that Cumberland River Coal, a subsidiary of St. Louis-based Arch Coal Inc., discharged him Monday just as he was on the verge of returning to work after he was injured in an underground accident last July.

Howard, who lives at Roxana with his wife Susie, is seeking both temporary and permanent reinstatement to the position to which he was supposed to return today (Wednesday).

According to the discrimination complaint, Howard was seriously injured in Cumberland River Coal’s Band Mill mine on July 26, 2010. Howard claims he was released to return to work by a neurologist on May 11, and that on May 13 Cumberland River Coal instructed him to take annual safety retraining on May 16 and 17, and to report for work May 18.

The complaint claims that while Howard was receiving his annual retraining on May 16, Cumberland River Coal notified him that his workers compensation benefits were being terminated, that he could not return to work on May 18, and that he no longer had a job with the company. Howard alleges that Cumberland River Coal’s action violated section 105(c) of the Federal Mine Safety & Health Act of 1977.

According to Howard’s attorneys, section 105(c) of the Mine Act protects miners against discharge and other types of discrimination for engaging in safetyrelated activities such as making safety complaints to a foreman or to federal or state mine inspectors, or for refusing to work in unsafe conditions. The law applies to both union and non-union miners.

Miners who have been discharged for their safety activities have 60 days in which to file a safety discrimination complaint with MSHA. Once a complaint has been filed, MSHA assigns a special investigator to investigate the miner’s claim. In the case of a miner who has been fired from his job, MSHA can seek temporary reinstatement on the miner’s behalf. A federal Administrative Law Judge (ALJ) has the authority to order a coal company to reinstate a miner to his former position until the discrimination case is fully resolved.

This is the fifth discrimination complaint that Howard has filed against Cumberland River Coal in the last four years. On August 10, 2010, a federal ALJ ruled that Cumberland River Coal discriminated against Howard when it issued a written warning to him because he had shown a videotape of leaking mine seals at a public hearing held by MSHA in Lexington. And on September 4, 2009, another federal ALJ ordered Cumberland River Coal to temporarily reinstate Howard to his former position after he was laid off by the company in May 2009.

Howard, who says in his complaint that he earns $25.05 per regular working hour ($37.12 per hour overtime), is represented in this case by attorneys Tony Oppegard of Lexington and Wes Addington of Whitesburg, both of whom specialize in mine safety cases. Cumberland River Coal, with offices in Appalachia, Va., has been represented in Howard’s safety cases by the Washington, D.C. law firm Crowell & Moring.

In a letter sent Monday to MSHA attorney Douglas Parker expedited action on Howard’s complaint, Oppegard and Addington say “it is clear” that Cumberland River Coal “does not want Mr. Howard back on its property because of his safety activities.”

Oppengard and Addington also charge in their letter to Parker that Cumberland River Coal’s latest action against Howard is tied to what the attorneys characterize as “false testimony” by Arch Coal’s vice president for safety, Anthony Bumbico, during a U.S. House of Representatives hearing before the Committee on Education and the Workforce in Washington on May 4.

On May 13, committee members Rep. George Miller and Rep. Lynn Woolsey, both of California, charged that Bumbico provided “questionable testimony” during the May 4 hearing when Bumbico denied that Howard had been punished by Arch for being a “whistleblower” after Howard videotaped leaking water seals in the Band Mill mine and showed them during a public hearing organized by MSHA in Lexington in July 2007. Bumbico claimed that instead, Howard, who was working as a preshift examiner at the time, was disciplined because he had failed to notify mine management about the leaking water seals before showing them during the Lexington hearing.

Rep Woolsey and Rep. Miller, who is sponsoring a bill that would provide better protection to whistleblowers who complain about unsafe mining conditions, have called on Education and Workforce Committee Chairman Tim Walberg (R-Mich.) to seek written clarification from Bumbico “about statements he made during the ‘Modernizing Mine Safety’ hearing on May 4.”

“Witnesses before the Committee have the duty to provide truthful testimony,” Miller and Woolsey wrote to Walberg, “and the Committee must take care to ensure the integrity of its proceedings and the accuracy of the record we collect. … Mr. Bumbico’s testimony appears to be contradicted by a final decision and order of the Federal Mine Safety and Health Review Commission (FMSHRC) regarding unlawful retaliation against Charles Scott Howard.”

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