UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WELLMORE COAL CORPORATION,
Petitioner,

v.
                                                                      No. 97-1280
FEDERAL MINE SAFETY & HEALTH
REVIEW COMMISSION; BILLY R.
MCCLANAHAN,
Respondents.

On Petition for Review of an Order
of the Federal Mine Safety and Health Review Commission.
(VA-95-9-D)

Argued: October 28, 1997

Decided: December 30, 1997

Before RUSSELL and WIDENER, Circuit Judges, and
TRAXLER, United States District Judge for the
District of South Carolina, sitting by designation.

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Reversed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Donna Colberg Kelly, SMITH, HEENAN & ALTHEN,
Charleston, West Virginia, for Petitioner. Martin Douglas Wegbreit,
CLIENT CENTERED LEGAL SERVICES OF SOUTHWEST VIR-
GINIA, INC., Castlewood, Virginia, for Respondents. ON BRIEF:
Ronald L. King, ROBERTSON, CECIL, KING & PRUITT, Grundy,
Virginia; Ronald E. Meisberg, SMITH, HEENAN & ALTHEN,
Washington, D.C., for Petitioner.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

The issue presented on appeal is whether the Federal Mine Safety
and Health Review Commission (the "Commission") properly
reversed an administrative law judge's ("ALJ's") determination that
Wellmore Coal Corporation ("Wellmore") did not discriminate
against an independent contractor. Because we find that the ALJ's
determination was supported by substantial evidence, we hold that the
Commission misapplied its statutory standard of review. Accordingly,
we reverse the Commission's decision.

I.

In 1978, Billy R. McClanahan ("McClanahan") began working as
a haulage truck driver for Wellmore, which mines and processes coal
in Southwestern Virginia and Eastern Kentucky. On August 20, 1992,
Wellmore informed its drivers that it was terminating its trucking
business, but that former drivers could purchase the company's trucks
and continue to haul refuse as independent contractors. McClanahan
purchased the 1990 Ford truck he had driven as a Wellmore employee
and began hauling coal refuse for Wellmore as an independent con-
tractor.

In December 1993 or January 1994, Wellmore opened a new refuse
area. The truck route to the new area was approximately two miles
longer than the previous route and included a one-lane road over a
hill, thus taking longer to travel. At approximately this time, in an
effort to increase refuse removal, Wellmore instituted a policy which

                    2
prohibited a trucker with a load weighing less than 24 tons from haul-
ing for the remainder of his shift or the following day.1 Wellmore
enforced the policy through random weighing.

Wellmore's imposition of the weight requirement led to a series of
events that culminated with the termination of McClanahan's con-
tract. On September 12, 1994, McClanahan's truck weighed 23.65
tons and he was not permitted to haul the remainder of that day or his
next shift. When he returned on September 14, 1994, his truck
weighed 22.74 tons, and again he was not allowed to haul the remain-
der of that day or his next shift. On September 19, 1994, his truck
weighed 23.50 tons, and once more, Wellmore prohibited him from
hauling the remainder of that day or his following shift.

On September 22, 1994, the trucking foreman and two members of
Wellmore's management met with McClanahan and discussed his
failure to abide by the weight requirement. According to McClana-
han, he had consistently protested the weight requirement, maintain-
ing that hauling 24 or more tons constituted an unacceptable safety
hazard. Wellmore offered McClanahan an alternative route hauling
refuse from another plant that paid drivers by the ton rather than by
the hour. When McClanahan rejected this offer, Wellmore informed
him that his contract would be terminated the next time his truck was
underweight. Later that day, McClanahan's truck weighed 22.96 tons,
and he was terminated as an independent contractor. McClanahan
then instituted a discrimination suit against Wellmore.

II.

Under the Federal Mine Safety and Health Act of 1977 (the "Mine
Act"),2 miners3 generally have the right to complain of a safety or
health hazard and refuse to perform work which they perceive as haz-
_________________________________________________________________
1 Wellmore's Vice President stated that the policy was enacted to
ensure that the drivers, who were paid to haul by the hour, and not by
the ton, were hauling a sufficient amount.
2 30 U.S.C. §§ 801-962 (1994).
3 The Mine Act defines "miner" as "any individual working in a coal
or other mine." 30 U.S.C. § 802(g) (1994). Therefore, McClanahan is
covered by the provisions of the Act.

                    3
ardous, provided that the complaints and work refusals are based
upon the miner's good faith, reasonable belief in a hazardous condition.4
Pursuant to § 105(c) of the Mine Act,5 McClanahan filed a discrimi-
nation suit against Wellmore, claiming he was fired because he
objected to hauling loads that constituted an unacceptable safety haz-
ard. After an investigation, the Mine Safety and Health Administra-
tion ("MSHA") concluded that no violation had occurred. On January
6, 1995, McClanahan filed a complaint on his own behalf with the
Commission, which then assigned the case to an ALJ.

A.

On June 6, 1995, the ALJ conducted a 15-hour hearing in which
both parties presented testimony, submitted evidence, and cross-
examined witnesses. The ALJ determined that, while McClanahan
had expressed general safety concerns regarding the weight require-
ment, his concerns were not based on a good faith belief that hauling
loads of 24 or more tons was hazardous.
_________________________________________________________________

4 Gilbert v. FMSHRC, 866 F.2d 1433, 1439 (D.C. Cir. 1989); Secretary
ex rel. Robinette v. United Castle Coal Co., 3 F.M.S.H.R.C. 803, 812
(1981).
5 30 U.S.C. § 815(c) (1994), provides in part that:

          (c)(1) No person shall discharge or in any manner discriminate
          against or cause to be discharged or cause discrimination against
          or otherwise interfere with the exercise of the statutory rights of
          any miner . . . because such miner . . . has filed or made a com-
          plaint under or related to this chapter, including a complaint noti-
          fying the operator . . . of an alleged danger or safety or health
          violation in a coal or other mine . . .

          (c)(2) Any miner . . . who believes that he has been discharged,
          interfered with, or otherwise discriminated against by any person
          in violation of this subsection may . . . file a complaint with the
          Secretary alleging such discrimination. . . .

          (c)(3) If the Secretary, upon investigation, determines that the
          provisions of this subsection have not been violated, the com-
          plainant shall have the right . . . to file an action on his own
          behalf before the Commission charging discrimination or inter-
          ference in violation of paragraph (1). . . .

                    4
In making his determination, the ALJ emphasized that"prior to
becoming a truck owner McClanahan repeatedly hauled loads weigh-
ing more than 24 tons without making known his supposed safety
concerns to either management or to MSHA."6 The ALJ also noted
that as an independent contractor, McClanahan had assumed financial
responsibility for the truck's upkeep and maintenance, and therefore,
McClanahan's concerns "were those of a truck owner for the cost of
the requirement to his business and not those of a driver for his and
others' safety."7

Finally, the ALJ concluded that McClanahan's failure to complain
to MSHA about the purported safety hazards indicated his lack of
good faith. McClanahan testified that:

         I . . . called MSHA about the hazardous conditions and at
         the time I didn't write down who I talked to or anything.
         They just said they couldn't help.8

The ALJ discredited this testimony for three reasons. First, McClana-
han later modified his testimony and stated that his wife had called
MSHA. Second, McClanahan's failure to remember who placed the
call was at odds with the carefully written records he maintained of
his conversations and incidents related to his ultimate termination.
Third, if a complaint to MSHA was made, the ALJ thought it highly
unlikely that MSHA would indicate it was powerless to act. Accord-
ingly, the ALJ determined that McClanahan's safety complaints were
not made in good faith and dismissed the discrimination suit.

B.

McClanahan then filed a petition for discretionary review with the
full Commission, which determined that the ALJ's finding was not
supported by substantial evidence. The Commission concluded that
McClanahan's record of hauling loads in excess of 24 tons did not
establish that he was unconcerned with his safety. Additionally, the
_________________________________________________________________
6 J.A. at 58.
7 Id.
8 Id. at 60.

                    5
Commission did not find demonstrative of a lack of good faith evi-
dence that McClanahan only voiced his complaints after purchasing
the truck. Finally, the Commission determined that substantial evi-
dence established that McClanahan engaged in actions which consti-
tuted safety complaints. Having found that McClanahan's complaints
demonstrated his good faith belief of a safety hazard, the Commission
further found that McClanahan's belief was reasonable and that Well-
more failed to respond adequately to McClanahan's concern. Accord-
ingly, the Commission ordered McClanahan's immediate
reinstatement and remanded the action for a calculation of back pay,
interest, and attorney's fees. Wellmore now appeals, claiming that the
Commission erred in reversing the ALJ's determination.

III.

Although the Commission recognized that it "is bound by the terms
of the Mine Act to apply the substantial evidence test when reviewing
an administrative law judge's decision,"9 it nevertheless ignored this
limitation, and merely substituted a competing view of the facts.
Accordingly, we hold that the Commission misapplied its statutory
standard of review and reverse the Commission's decision.

Section 113(d) of the Mine Act explicitly states that the Commis-
sion's review authority is limited to one or more of five specified
grounds:

          (I) A finding or conclusion of material fact is not supported
          by substantial evidence.

          (II) A necessary legal conclusion is erroneous.

          (III) The decision is contrary to law or to the duly promul-
          gated rules or decisions of the Commission.

        (IV) A substantial question of law, policy or discretion is
        involved.
_________________________________________________________________

9 Id. at 69.

                    6
          (V) A prejudicial error o[f] procedure was committed.10

Thus, "the only `question' related to the factual findings of an ALJ
that the Commission can consider is whether those findings are sup-
ported by substantial evidence."11 The Supreme Court has defined
substantial evidence as "`such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'"12

We find Donovan ex rel. Chacon v. Phelps Dodge Corp.13 particu-
larly relevant to our inquiry. In that case, the United States Court of
Appeals for the D.C. Circuit held that the Commission improperly
reversed an ALJ's determination that an employer had illegally dis-
criminated against an employee active in promoting mine safety. The
court noted that:

          . . . the Commission did no more than substitute a competing
          view of the facts for the view the ALJ reasonably reached.
          There can be little doubt that the ALJ's findings were amply
          supported by substantial evidence, and even if the Commis-
          sion's own view found support in the record as well, it was
          bound to uphold the ALJ's determinations.14

Similarly, in the instant case, our review of the record demonstrates
that the ALJ's determination was supported by substantial evidence.
We, like the ALJ, emphasize the fact that before purchasing the truck,
McClanahan repeatedly hauled loads in excess of 24 tons without
complaint. Specifically, McClanahan signed at least 133 time sheets
from 1990 to 1992 indicating that his load exceeded 24 tons.

McClanahan contends that the ALJ failed to consider the record as
a whole, and only evaluated the evidence favorable to Wellmore. For
_________________________________________________________________
10 30 U.S.C. § 823(d)(2)(A)(ii) (1994).
11 Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 91
(D.C. Cir. 1983).
12 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
13 709 F.2d 86 (D.C. Cir. 1983).
14 Chacon, 709 F.2d at 92 (internal citations omitted).

                    7
example, although the ALJ noted that McClanahan's truck had a haul-
ing capacity of 15 tons, McClanahan contends that the ALJ then
ignored the overwhelming evidence that demonstrated the danger of
exceeding this capacity. Such evidence included the 1990 Ford Truck
Owner's Guide, which warned against exceeding the hauling capac-
ity, and a MSHA Bulletin dated November 22, 1994 which warned
about overloading trucks.

We disagree with McClanahan. The ALJ heard, evaluated, and
weighed the evidence, made credibility determinations, and rendered
a reasoned decision. "`[T]he ALJ has sole power to make credibility
determinations and resolve inconsistencies in the evidence.'"15 The
fact that evidence exists in the record to support McClanahan's posi-
tion is not determinative. Rather, the Commission's review was statu-
torily limited to whether the ALJ's findings of fact were supported by
substantial evidence. The "`possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative
agency's finding from being supported by substantial evidence.'"16

IV.

Based on the foregoing reasons, we find that the ALJ's determina-
tion was supported by substantial evidence. Accordingly, we reverse
the Commission's decision.

REVERSED
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15 Grizzle v. Pickands Mather & Co./Chisholm Mines, 994 F.2d 1093,
1096 (4th Cir. 1993) (quoting Freeman United Coal Mining Co. v. Bene-
fits Review Bd., 912 F.2d 164, 168 (7th Cir. 1990)).

16 Wamsley v. Mutual Min., Inc. , 80 F.3d 110, 113 (4th Cir. 1996)
(quoting Consolo v. Federal Maritime Comm'n , 383 U.S. 607, 620
(1966)); see also Parker v. DOWCP, 590 F.2d 748, 749 (8th Cir. 1979)
(stating that if the ALJ's decision is "adequately supported by the evi-
dence and not inconsistent with the law[,] the[ALJ's] determination is
conclusive, and it is immaterial that the facts permit the drawing of
diverse inferences.").

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