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Judge orders Alpha to reinstate coal miner alleging safety violations

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Updated with comments from Alpha Natural Resources.

An administrative law judge at the Federal Mine Safety and Health Review Commission says Alpha Natural Resources must reinstate a Virginia coal miner who reported safety violations to federal regulators.

The 51-year-old coal miner, a scoop operator whose name was redacted from a June 20 ALJ order shared by legal representation Katz, Marshall & Banks LLP, claims to have made three reports of safety violations to the Mine Safety and Health Administration. The mine, Tiller No. 1, is an underground coal mine owned Alpha Natural Resources subsidiary Knox Creek Corporation.

Alpha obtained the subsidiary when it purchased Massey Energy following the Upper Big Branch mine explosion that killed 29 coal miners. At a recent corporate event, Alpha Natural Resources said it has been working to transition its safety culture to legacy Massey mines, something its executives said was a work in progress.

Ted Pile, Alpha spokesman, said Knox Creek disputes the miner's allegation of discrimination.

"The real reason that this individual's job was terminated, as laid out in Knox Creek's arguments, was because he threatened to shoot several members of mine management," Pile said. "The miner's claim is currently under investigation by MSHA and they have not yet determined whether there's any merit it.  If the finding is that there is merit, then the claim will be tried before an Administrative Law Judge."

Pile said that at this point, "the Administrative Law Judge is not allowed to even consider the merits of the miner's claims or the credibility of witnesses."

The miner's lawyer, Alexis Ronickher and Abigail Cook-Mack, said the miner reported allegations of insufficient training of a miner charged with rock dusting, insufficient dusting at the mine and engagement in the practice of advance notification. Rock dusting is done to minimize the explosion risk of coal accumulations in the mine. Advance notice is a practice federal regulators have clamped down on after suspecting that numerous unsafe mines are effectively hiding violations when they become aware of an approaching inspection.

Providing advance notice is a criminal offense under federal mining laws.

"Miners play a critical role in making the mining industry safer," Ronickher said. "The willingness of miners to come forward and report safety violations makes it possible for MSHA to protect all coal miners from disasters like the one that killed twenty-nine miners at the Upper Big Branch Mine in 2010.

"When miners risk their careers to protect the lives of others and suffer retaliation from their employers as a result, they must be able to rely on the FMSHRC to protect them by enforcing the whistleblower protection laws. The Administrative Law Judge did just that by granting my client temporary reinstatement."

According to a news release from his attorneys, the miner reported the company to MSHA three times before the company fired him a week after discovering he had met with MSHA investigators twice. The miner filed a whistleblower discrimination charge with the FMSCHRC shortly after.

The judge determined there was "sufficient evidence to support the miner's reinstatement" to his job at the mine at the same hours and compensation as prior to the firing while the merits of the case are being resolved.

Administrative Law Judge William Steele wrote in the order that the company's termination of the miner involved "threatening to kill members of upper management." The judge found that the miners' claims were not frivolous, but he notes that conflicting reports of death threats made by the miner were beyond the scope of the commission's decision.

In his order, Steele said that while he did not find the miner's application for reinstatement "frivolous," he would consider an agreement for economic reinstatement if the company fears for the safety of upper management or other miners. Pile said the miner was offered economic reinstatement due to a fear for the safety of other employees.

"I was told I was discharged for making threats against personnel, which did not happen," the miner said in his statement. "I believe I was fired because I talked to Lannie Gilbert from MSHA about a discrimination case a former employee filed. I want a job back, preferably at another mine, with backpay and all benefits restored. I want temporary reinstatement."

David Earl Smith, special investigator with MSHA, said there is "reasonable cause" to believe the miner was discharged for engaging in activities protected by federal mining law.

"Based on my investigation to this date, I have concluded there is reasonable cause to believe that (redacted) was discharged because he engaged in protected activities by complaining about unsafe practices at the mine, and testifying to MSHA in its investigation," Smith said. "I have concluded that the complaint filed by (redacted) was not frivolous."

The company says its president made the termination without knowledge of any whistle blowing activity, instead citing safety concerns for the personnel decision.

"Further, Respondent claims it would have taken the same action even if it knew about the protected activity because of the seriousness of the death threats," the ALJ order states.

The miner said he has been targeted since a June 2, 2010, Washington Post story that quoted him regarding Massey Energy safety practices shortly after the explosion at Upper Big Branch.

"(Redacted) believes that tension regarding his safety concerns built up over the years leading to his firing and that the Washington Post story was part of it," the judge wrote.

In a June 2, 2010, Washington Post story, a miner named Randy Lester talks about the dangers in the Tiller No. 1 mine.

"Lester said he and his co-workers usually sound an alarm when they see state or federal inspectors approaching, radioing down to give the crew inside the mine as much as 45 minutes to spruce things up," Washington Post reporter Kimberly Kindy wrote.

Ron Patrick, the current president of Knox, said in his testimony he is not aware of any instance of advance notice being provided since he took his present position in January 2013. 

"He is personally committed to safety and does not approve of advance notice," the ALJ described Patrick's testimony in the order. "He has told all of his subordinates about his positions."