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Feds order miner returned to work

A Letcher County miner who was laid off from his job at Cumberland River Coal Co. in May was ordered reinstated to his job last week after federal officials determined he was being punished because of his role as a miner’s safety advocate.

Charles Scott Howard, of Roxana, was ordered reinstated to his former job as a member of Band Mill Mine No. 2’s underground construction crew after the office of U.S. Labor Secretary Hilda L. Solis determined that a discrimination complaint Howard filed after his layoff in May was “not frivolous.”

The ruling issued August 4 is the result of Howard filing a discrimination complaint and application for temporary reinstatement under the Federal Mine Safety and Health Act of 1977. Howard will receive full back pay and benefits plus interest for the time he missed work.

Howard was one of 88 hourly and salaried miners who were laid off from Cumberland River Coal’s operations in Letcher and Harlan counties on May 14. Cumberland River’s parent company, St. Louisbased Arch Coal, Inc., blamed the layoffs on the “global economic crisis.”

Howard filed the discrimination complaint on June 11 and an investigation was opened by the federal tion (MSHA). Stanley Sturgill, a special investigator with MSHA’s Harlan office, determined that Howard “has a history of safety complaints including formal and informal complaints about discrete safety hazards at mines where he was employed, testifying before Congress and MSHA relating to the safe operations of coal mines, and filing several complaints relating to discriminatory actions by Cumberland River Coal Co. ” Sturgill said that Howard is “well known throughout the eastern Kentucky mining community as a coal mine safety advocate,” and that Howard was laid off “because of his role.”

To support his finding, Sturgill pointed out that Cumberland River employees work under a collective bargaining agreement with the Scotia Employees Association and that Howard “was the most senior rank and file employee who received a layoff notice” and the “only rank and file employee selected for layoff in his work unit.”

Sturgill also found that at least one miner with far less seniority than Howard, No 179 compared to Howard’s No. 125, was called back to work in the mine’s belt corridor in violation of the collective bargaining agreement. Miners at seniority levels 121, 122, 123, and 124 have been working more than 40 hours a week since Howard’s dismissal, also in violation of the collective bargaining agreement, Sturgill said.

Howard’s attorney, Tony Oppegard of Lexington, said the ruling in Howard’s favor is “a substantial victory for a coal miner who is a true safety advocate.”

“There are 88 hourly employees laid off by Cumberland River Coal. Our position is that CRCC went down just far enough to get Scott because of his prior safety cases, and that the choice of Scott for layoff also violated the terms of the union contract between CRCC and the Scotia Employees Association,” said Oppegard.

Oppegard said he is disturbed that the Scotia Employees Association would not take Howard’s layoff case to arbitration, “just as it has refused to take any prior grievance of his to arbitration.” He said the union’s inaction may be in violation of “its duty of fair representation.”

On March 22, 1988, Howard filed a lawsuit against Cumberland River claiming that the company improperly disciplined him for videotaping underground safety problems and showing the footage to federal inspectors.

The suit, filed in Letcher Circuit Court, seeks unspecified financial damages for “the intentional infliction of emotional distress.”

One day before the suit was filed, Howard filed a complaint with the Federal Mine Safety and Health Review Commission against Cumberland River Coal Co. for reprimanding him for having a video recorder underground. Testimony in that case was heard by an administrative law judge in December 2008. A ruling is still pending.

In August 2007, Howard and another miner filed a lawsuit in Letcher Circuit Court charging they suffered emotional distress when they were sexually harassed by a third-shift supervisor at the Band Mill No. 2 Mine at Eolia. The two men are seeking an unspecified amount of compensatory and punitive damages in that case.

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