Coal company is ordered to pay Harlan County miners $19,000

Workers punished unjustly, judge says

bestep@herald-leader.comJanuary 25, 2011 

A federal judge has ordered a coal company to pay a $20,000 penalty for discriminating against two Harlan County miners who a superintendent thought had reported a safety problem.

The judge also ordered D&C Mining Corp. to pay Chad Alex Green and William Donnie Smith a total of nearly $19,000 in back pay, according to a copy of the decision.

The company could appeal.

However, Administrative Law Judge Janet G. Harner said in her judgment that key company claims simply didn't hold water, the miners' attorney pointed out.

"They would have zero chance of winning an appeal in this case," Lexington attorney Tony Oppegard, who represented the miners, said of the coal company.

An attorney for D&C Mining said no decision has been made on whether to appeal.

The case stems from an incident in September 2009 at the company's underground mine in Harlan County.

A seal began leaking, allowing water from an unused, closed-off section of the mine to spill out, creating concern about flooding in areas where people were working.

Later that day, state and federal inspectors came to investigate and shut down the mine until the problem was fixed.

The mine superintendent, Barry Rogers, thought Green or Smith had notified the inspectors, later asking Smith's wife "why the f--- did Donnie and Chad call the f------ inspectors on me for?" according to the decision.

Rogers said a state inspector told him Oppegard called inspectors after one of the men called the attorney, according to testimony.

At the time, Oppegard was representing Smith's mother in the investigation of the death of her husband, Wilson "Rome" Meade, who was crushed to death at the D&C mine in June 2009.

The company kept other miners working during the September shutdown but, when Smith and Green asked about coming back, a foreman told them there was no work, according to the decision.

When coal production resumed, D&C called back all the miners except Smith and Green, according to the decision.

The company argued that the two quit, but the judge pointed out that the miners had asked several times about coming back.

D&C eventually rehired both men after they challenged being let go. The back pay the judge ordered is for the time they were off.

Harner ruled that D&C laid off the two miners and did not recall them in a timely manner because the management thought, mistakenly, that they had taken part in an act protected under federal mine law — that is, reporting a safety problem.

Green still works at the mine; Smith does not.

Oppegard said that if a state inspector disclosed who called authorities about the potential safety problem at the mine, that would be a violation.

Oppegard plans to ask state mining officials to investigate, he said.

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