Whitesburg KY

Fired miner loses fight over job

An underground miner has lost his claim that he was fired from his job as a roof bolter in a Letcher County mine because he had refused to install roof bolts in an illegal and dangerous place.

North Fork Coal Corp. fired Mark Gray on May 15, 2009. After Secretary of Labor Hilda Solis declined to file suit on Gray’s behalf under the Federal Mine Safety and Health Act of 1977, Gray filed his own action on Dec. 30, 2009. Administrative Law Judge Priscilla M. Rae ruled October 20 that North Fork fired Gray for poor performance at work and that he did not engage in any protected activities under the Mine Act.

“Having carefully reviewed the record in the light most favorable to (Gray), I find there is no support for Gray’s allegations of engaging in protected activity. Having the burden of proof of establishing a prima facie case, Gray has failed to produce a single credible witness or tangible evidence in support thereof,” Rae said.

Gray has been a miner for 29 years, with 17 of those years spent as a roof bolter. He worked at North Fork’s Mine No. 4 at Partridge for a little more than a year before he was fired.

Gray operated a double-headed bolting machine that requires two operators. The roof control plan in effect called for 40-foot cuts on four-foot patterns. Gray contended that on May 5, 2009, the company ordered a 50 to 60 foot cut and directed he and his partner to bolt the area. Three days later, he said the company ordered a second cut in violation of the roof control plan and he refused to bolt the cut. He said his foreman also acted angrily when he stopped to hang ventilation curtains.

However, several witnesses for North Fork testified that because of dangerous roof conditions, the company never made a cut bigger than 40 feet. The usual size was about 20 feet.

Gray’s immediate supervisor, Thomas Cornett, said cuts in May 2009 were 18 feet because the roof consisted of draw rock. If a larger cut had been made, he and other miners would have noticed, Cornett said, adding that Gray never refused to bolt a cut or filed a complaint.

Cornett said that in fact he’d had to discipline Gray for bolting too slowly, using the wrong sized bolts, placing bolts too far apart and not hanging curtains as required, among many issues. He said he had to point out errors to Gray almost every day during some months.

Second shift foreman Marty Bates said he never permitted a cut of more than 20 feet and never heard any complaints about 50- foot cuts. Even Mine Safety and Health Administration (MSHA) inspector Kevin Doan testified that he never saw a 50-foot cut in the entire mine during any inspection at the mine or any other mine in the MSHA district headquartered in Barbourville. Two other inspectors at the mine confirmed that no 50-foot cuts were found.

As a result, the Administrative Law Judge Rae found Gray’s claim of two cuts of more than 50 feet to be “without merit.” The company also put on evidence that once Gray was fired, production of the roof bolting team actually increased. Evidence also showed that Gray’s former co-worker on the bolter had asked to be transferred because he did not want to be fired because of Gray’s slow performance.

“For all the reasons discussed above, I conclude that Gray did not meet his burden of providing a prima facie case of discrimination. The unsafe activities or conditions he alleges were not prove to have occurred,” Judge Rae said in dismissing the claim.

Rae’s ruling will become final in 40 days unless the decision is ordered reviewed. Gray will ask for review of the decision, claiming that Rae would not allow witnesses to testify about the possibility of forged documents in the case.

Should Gray’s request for a review of Rae’s decision be denied by the Federal Mine Safety and Health Review Commission, his case has still set a precedent in the area of mine safety law. Citing Gray’s case as an example, the Commission ruled earlier this year that when a miner files a safety discrimination case with MSHA and is “temporarily reinstated” to his job, the miner is entitled to continue drawing pay and benefits until the Commission has reached a final decision in the case, even if MSHA rejects the case for prosecution and the miner thereafter, as in Gray’s case, files his own “complaint of discrimination” with the Commission.

In a narrow 3-2 ruling issued January 7, the Commission rejected North Fork Coal’s argument that it no longer had to make courtordered salary and benefi t payments to Gray since Labor Secretary Solis announced that MSHA would not be filing a discrimination complaint on Gray’s behalf. The ruling resulted in North Fork Coal being ordered to pay Gray’s salary and benefits retroactive to Dec. 2, 2009 — the date a previous administrative law judge ruled for the first time that Gray’s case had no merit.

While North Fork was originally ordered to pay Gray $1,179.70 per week for the time period (a sum that would have totaled nearly $116,000 by the time of Administrative Law Judge Rae’s October ruling), those payments were ordered reduced by the Commission on March 25 after an appeal filed by North Fork on grounds that Gray wasn’t entitled to the full sum because he had been working at another mine since the month after his firing.

Gray is represented in the case by attorneys Tony Oppegard of Lexington and Wes Addington of the Whitesburg-based Appalachian Citizens Law Center. North Fork is represented by attorney Stephen M. Hodges of the Abingdon, Va., firm of Penn Stuart & Eskridge.

Information used in this report was gathered by the Mine Safety and Health News, an independent legal news service which has won 33 national journalism awards for its coverage of MSHA and the Federal Mine Safety Health and Review Commission, and by The Mountain Eagle.

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