Whitesburg KY
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Judge agrees with finding that miner was being punished

An administrative law judge has ordered the immediate reinstatement of a Letcher County coal miner who charged that he was laid off from his job in May because of his role as a miner’s safety advocate.

Federal Mine Safety and Health Review Commission Judge Michael Zielinski declined last week to overturn a finding by the office of U.S. Labor Secretary Hilda Solis that Scott Howard, of Premium, was laid off by Cumberland River Coal Co. because of Howard’s “history of safety complaints” against the company, which is a susidiary of St. Louis-based Arch Coal Inc.

Zielinski’s order, issued after a hearing in Whitesburg on Sept. 9, requires Cumberland River Coal to immediately reinstate Howard to his former job as a member of Band Mill Mine No. 2’s underground construction crew.

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. Howard protested the layoff by filing a discrimination complaint and application for temporary reinstatement under the Federal Mine Safety and Health Act of 1977.

Zielinski’s ruling upholds an August finding by Stanley Sturgill, a special investigator with the Mine Safety and Health Administration’s Harlan office, that Howard was laid because he has a history of testifying in state and federal hearings about deep-mine safety issues and has filed “several complaints relating to discriminatory actions by Cumberland River Coal Co.”

Howard’s attorney, Tony Oppegard of Lexington, said it was clear that Cumberland River Coal laid off just enough workers to be sure that Howard would be included in the seniority list under the company’s collective bargaining agreement with the Scotia Employees Association.

“It is a major victory for Scott,” said Oppegard. “If Scott had been number 65, Cumberland River Coal Co. would have laid off 65 miners; if he had been No. 67, the company would have laid off 67 miners. In other words, we believe the company went down far enough to get him and stopped there.”

Zielinski wrote in his ruling that Howard’s protected activities under the Mine Safety and Health Act “were numerous and have extended over a considerable period of time. Two discrimination actions that he filed are currently pending before the (Federal Mine Safety and Review) Commission. Cumberland’s managers were well aware of the bulk of his activities, and anticipated that he would freely raise safety issues, and institute discrimination complaints as to any suspected retaliatory conduct. His status as a miner who engaged in protected activity was, in essence, continuing in nature, such that it could be said that the layoff was almost contemporaneous with his protected activities.”

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