Kentucky Stone Company

Plain-English summary

Stanley Baker worked at Kentucky Stone Company's Pulaski Plant, where he operated a Caterpillar 988A loader. Judge Avram Weisberger found that Baker's repeated marking of the loader's brakes as inoperable on daily safety checklists was protected activity under section 105(c) of the Mine Act. He also found that Kentucky Stone fired Baker at least in part because of that protected activity and rejected the company's defense. The judge denied the company's motion for a directed opinion, but reserved the specific back pay, attorney fees, and other relief for a later order.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: The discrimination claim was sustained, while relief and the amount of any back pay and fees were reserved for a later order.
• Key point: Reporting a good-faith safety concern through required equipment checklists can be protected activity under the Mine Act.

Full text (FMSHRC public release)

CCASE:
STANLEY BAKER V. KENTUCKY STONE
DDATE:
19880728
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

STANLEY BAKER, DISCRIMINATION PROCEEDING
COMPLAINANT
v. Docket No. KENT 87-142-D

KENTUCKY STONE COMPANY, Pulaski Plant
RESPONDENT

                                DECISION

Appearances: Philip P. Durand, Esq. and Wendy Tucker, Esq., Ambrose,
Wilson, Grimm & Durand, Knoxville, Tennessee,
for Complainant;
John G. Prather, Jr., Esq., Law Offices of John G.
Prather, Jr., Somerset, Kentucky, for Respondent.

Before: Judge Weisberger

Statement of the Case

 Complainant filed a complaint with the Commission under

section 105(c) of the Federal Mine Safety and Health Act of 1977,
30 U.F.C. 815(c) (the Act) alleging, in essence, that he was
illegally fired in violation of the Act.

 Pursuant to notice of November 6, 1987, the case was set for

hearing in Knoxville, Tennessee, on December 8 Ä 9, 1987. In a
conference call initiated by the undersigned on November 30,
1987, between the undersigned and the attorneys for both Parties,
the Complainant's attorney made a request for the hearing to be
adjourned. This request was not objected to by Respondent's
attorney. Accordingly, pursuant to notice, the case was
rescheduled and subsequently heard in Knoxville, Tennessee, on
March 15 Ä 16, 1988. Stanley Baker, Charlotte Dykes, Roger Hasty,
Sherman McClure, Melvin Thomas, Mark Lueking, Dale Tabor, Johnny
Bruner, and Donny Tabor testified for the Complainant. Dennis
Halcomb, Glennis Miller, Danny Roberts, Earl Howard, and Herbert
Robbins testified for the Respondent.

 At the hearing, at the conclusion of the Complainant's case,

Respondent make a motion for a directed opinion in favor of the
Respondent, and decision was reserved on this motion.

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Complainant filed its Proposed Findings of Fact and Memorandum of
Law on June 1, 1988, and Respondent filed its Proposed Findings
of Fact and Memorandum on June 1, 1988. On June 10, 1988,
Complainant filed a Response to Respondent's Summary of
Proceedings and Response to Respondent's Memorandum of Law.

Stipulations

 1. Except for occasional layoffs, Complainant worked at

Kentucky Stone Corporation's Pulaski Plant from September 15,
1976 until he was fired on May 2, 1985.

 2. The Kentucky Stone Corporation ("Kentucky Stone") is a

wholly owned subsidiary of the Kopper's Corporation and is
located in Pulaski County, Kentucky.

 3. The Kentucky Stone Corporation is engaged in limestone

mining operations and is subject to the provisions of the Federal
Mine Safety and Health Act of 1977, including 815(c)(1).
Further, Kentucky Stone falls within the definition of an
"operator" as provided for in the Act.

 4. Complainant was operating a Caterpillar 988A (Company No.

444) front-end loader, which was owned and/or leased by Kentucky
Stone at the time of his discharge on May 2, 1985. At no time did
Complainant refuse to operate the Caterpillar 988A (Company No.
444) front-end loader.

 5. Dennis Halcomb was acting as an agent for Kentucky Stone

when he fired Complainant.

Findings of Fact

 1. Stanley Ray Baker, Complainant herein, was first employed

at Kentucky Stone Company on September 17, 1976. While employed
with Kentucky Stone Company, he has also operated a bulldozer and
a "front-end loader" which, for the purpose of this proceeding,
pertains primarily to the operation of a Caterpillar 988A loader.

 2. A Caterpillar 988A loader is a large rubber-tired piece

of equipment used, by Kentucky Stone Company in its quarrying
operations, to load stone into the trucks hauling stone for its
customers, to clear and organize stockpile of stone, and to clear
roadways and pathways from spillage within the plant area.

 3. Complainant has substantial experience operating

front-end loaders, having previously operated a 980C Caterpillar,
a 988B, and an H100, as well as a 275 Michigan, a 125 Michigan, a
175 Michigan, and other models of loaders.

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4. Kentucky Stone Company, Respondent, at its quarry in Pulaski
County, Kentucky, is engaged in the business of quarrying
(mining) limestone rock from an open pit. When consumers purchase
the rock, trucks are obtained to haul the rock from the "plant"
at the quarry to the site designated by the consumer.
Complainant's job included loading those trucks from the
stockpiles. Some of the locations where the trucks parked to be
loaded included grades. Loading the trucks requires the loader,
with the bucket in a lowered position, to be driven into the
stockpile to obtain limestone rock and to then be backed out of
the pile, raising the bucket as the piece of equipment moves
backward, and then maneuvering the loader into a position
sufficient to permit the limestone rock to be dumped from the
bucket into the truck. Throughout the time that the loading of
the truck occurs, the loader is kept in first gear. The distance
of travel is some 10 to 20 feet and the brakes of the loader are
usually applied 8 to 12 feet before reaching a truck bed.

  5. Occasionally, Complainant took the loader into the pit to

clear off areas in the pit, or on shelves, to provide areas for
the rock drills to drill, or he would haul fuel into the pit
area.

 6. The loader is used, from time to time, to "push off the

stockpiles." This means that the crushed material is dumped on
the stockpiles and then has to be organized or pushed around on
the stockpiles to permit the piles to be orderly and usable.
Roadway grading with the loader involves filling small potholes
that occurred in the roadways, and clearing haul roads.

 7. It was Baker's responsibility to watch the quarry site

for trucks which were seeking to be loaded and to load them
promptly in order to avoid delaying other trucks seeking to be
loaded.

 8. Baker testified that he was required to complete a daily

checklist on every piece of equipment that he operated, and that
he always filled it out.

 9. Prior to operating the 988A loader, which is principally

the subject matter of this action, Baker operated a 980C loader,
which was a later model loader. On the April 24, 1985, Baker
marked the brakes on the 980C loader "inoperable" and that loader
was taken out of service and sent off to a shop for repairs. He
was then assigned to the 988A loader and continued running it
until the end of the shift.

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10. The safety checklist, designed and supplied by Respondent,
contains two columns for marking. One column is headed "OK" and
the other column is headed "INOP." Mr. Baker believed that
"INOP." meant "improper" (Tr. 120) or "inoperable" (Tr. 121).
Neither side of this form contains any space specifically
designated for comments.

 11. On the date that he first operated the loader, Baker

claimed the brakes would not catch properly when they were
applied and that the loader would continue to roll 5 to 10 feet.
He testified, in essence, that the distance the loader rolled
after the application of the brakes varied. Baker testified that
because of the condition of the brakes, he was concerned for his
safety because if the brakes did not catch, the loader would
roll, possibly backwards into a stockpile or forwards into the
side of a truck. Once the loader stopped it did so abruptly. This
created a danger because the loader bucket often held 10 to 12
tons of gravel in the air while loading a truck. The sudden stop
would shift the weight of the bucket and thus force the back
wheels of the loader to lift off the ground, causing the gravel
to scatter into the objects below. Baker was concerned that the
gravel would damage the trucks and injure the truck drivers who
were on the ground below. Baker said he had trouble with the
windshield wiper, that the windshield was cracked, and that he
also marked problems with one mirror and an accessory ladder. He
also claimed he was having problems with the steering, but that
he did not report the problems with the steering because there
was no place on the safety checklist to report problems with
steering. He alleged he did tell the Superintendent, Dennis
Halcomb, he was having problems with the steering and that he
also told the on-site mechanic, Glennis Miller, of such problems.

 12. The safety checklists are posted on clipboards and hung

on a wall in the shop.

 13. Baker testified that Glennis Miller indicated on one of

the early days of his usage of the loader that there was a
"problem" with the brakes (Tr. 129). Also, Baker said that
Sherman McClure said the brakes were "no good" and they "wouldn't
catch when you first hit them" (Tr. 129). Baker also claimed that
the brakes wouldn't hold, so he attempted to use the fuel control
to hold the loader in place. For safety reasons, Baker did alter
the way he loaded trucks. Baker normally loaded trucks on an
incline so that his loader would be above (on the upper side of)
the truck. After Baker detected problems with the brakes, he
reversed this process and began loading from below the trucks. He
also positioned his loader so that if the brakes did not catch he
would roll backwards into a pile of gravel to cushion his stop.

 14. Baker denied anyone inspecting the brakes on the first

day that he marked the safety checklist.

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15. Baker continued to operate the loader on Monday, April 30.
Baker denied that anyone from Kentucky Stone Company talked to
him about the brakes on the second day of operation. Two sets of
checklists were marked on April 30. In filling out the
checklists, throughout the entire time that he operated the 988A,
Baker continued to mark the brakes "INOP."

 16. Baker acknowledged that he discussed the brakes of the

loader with Glennis Miller, on-site mechanic, on the first or
second day that he had operated it, and told him the loader would
roll before the brakes caught. Baker denied that anyone got on
the loader or stood by and watched him operate the loader on the
first or second day.

 17. When Dennis Halcomb, Respondent's Superintendent, first

received a form indicating the 988A brakes were marked "INOP.",
he went to talk to Baker and was told that the brakes were
inoperable. Halcomb told Baker that he would have the mechanic
check the brakes. Halcomb said the mechanic, Glennis Miller, got
on the loader, drove it into the pile, backed out, checked the
brakes, oil, fluid, and other items to determine if there was a
problem, taking approximately 10 to 15 minutes. Halcomb said
Miller reported to him that there was nothing wrong with the
brakes.

 18. On the next day, Halcomb again had Glennis Miller check

the brakes. Miller said Baker was present, but did not tell him
there was anything wrong with the way he was testing the brakes.
Halcomb said Miller reported back that the brakes had nothing
wrong with them and that he suspected that Baker had been used to
the disc brakes on the 980 loader which catch more quickly than
the ballon-type brakes on the 988A. Halcomb said he told Baker
what Miller said about the brakes.

 However, based upon observations of his demeanor, I placed

more weight on the testimony of Miller as to what he actually
did. I find thus that all Miller did was to travel forward with
the loader and hit the brakes two to three time. He noted after
the brakes were applied, the loader would roll a few feet before
stopping and he told this to Baker stating there was a problem,
although he did not say the brakes were unsafe. He also noted the
loader stopped in the same distance at the same speed each time
and that there was no inconsistency in stopping distance.

 19. On the third day, another complaint was made regarding

the brakes and Halcomb felt that the machine could not continue
to be operated with the brakes designated as inoperable as a

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violation of MSHA policy. Miller checked the brakes again the
same way he did the two previous days. Halcomb then contacted
Herbert Ray Robbins, Mechanic Superintendent over the Eastern
Division of Kentucky Stone Company at the Mt. Vernon Shop.

 20. Robbins began to operate the loader, putting it in first

gear, revving it up, then letting off the throttle and hitting
the brake. He applied the brakes just one time. He found "that
the brakes were still plenty safe to operate" (Tr. 566). He also
tested the right brake by putting his left foot on the right
brake and revving the engine to about half throttle to determine
whether the brakes would hold, finding the brakes held it OK. He
then told Baker "it was okay to go ahead and run it" (Tr. 569),
and told Halcomb that he would give the loader a thorough check
when it was taken into the shop, but he did not see any reason to
take it to the shop at that time, and said there was no reason to
take it out of production. Halcomb was told that it was okay to
run it and that it was safe to run, but Robbins said the brakes
were not as fast catching as a 980 loader with disc brakes.

 21. On the last day that Baker worked, May 2, 1985, he

marked the brakes "INOP." but continued to use the loader. Miller
got on the loader and there was no difference in the operation of
the brakes from the previous examinations, indicating that the
delay in stopping was 2 to 3 feet and never 10 or 12 feet. This
distance was within the normal limits established in the
testimony of Complainant's expert, Mark Leuking. At about 11:00
a.m., Halcomb told Baker he (Halcomb) was sure there was nothing
wrong with the brakes and that Baker was marking the checklist
"false" (Tr. 438). According to Baker, Halcomb informed him that
he will have to let him to go. According to Halcomb, he told
Baker that if he (Baker) did not want to talk about it and work
something out "I would let him go" (Tr. 438). Based on
observations of Baker's demeanor, I adopt his version. Baker left
and has not subsequently been employed by Kentucky Stone Company.

 22. The Caterpillar 988A loader has two brakes. One brake,

located on the right hand side of the steering column, applies
immediate braking pressure and does not take the piece of
equipment out of gear. The other brake, known as the "D-clutch,"
first takes the piece of machinery out of gear, then permits the
engine to be revved to permit raising of the bucket, and then
begins braking. It is customary in Caterpillar 988A loaders for
the braking process on the application of a D-clutch to be
slightly delayed.

 23. On cross-examination, the Complainant acknowledged that

no one informed him that the brakes on the 988A were unsafe.

 24. Roger Hasty was working for Respondent at the time of

the discharge of Baker. Hasty indicated that he operated the 988A
for several days, approximately 2 weeks, after Baker was

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dismissed, and he had some problem with the loader stopping
inconsistently. Because of this inconsistency he placed his
loader on the lower side of the truck when loading on a hill
side. Hasty did not fill out a safety checklist for the 988A
loader.

 25. Sherman McClure, an employee of Respondent, was working

at the Pulaski Plant in 1985. He operated the 988A loader
approximately 2 or 3 weeks after the discharge of Baker, and felt
something was wrong with the brakes because they would roll 1 to
4 feet before coming to a complete stop, at which time they would
hold firmly. Even though McClure did not usually fill out
checklists, he indicated that he would have "probably" marked the
brakes inoperable had he been requested to fill out a safety
checklist (Tr. 286). During the time that he operated it, he felt
that he was familiar with the length of the roll upon application
of brakes and that the rolling was something that he had been
able to get used to.

 26. Melvin Thomas has worked for Kentucky Stone Company for

22 years and works as a mechanic at the Mt. Vernon Shop. He
recalls being on the loader at approximately the same time Baker
was discharged and recalls that when the brakes were applied, the
loader went approximately 3 feet and then stopped.

 27. Mark Leuking was presented as an expert for the

Complainant. He has worked with two 988A loaders and operated one
on a daily basis. He experienced situations in which the brakes
on a 988A would permit rolling of varying distances before the
brakes caught.

 28. Dale Tabor, Johnny Bruner, and Donnie Tabor all

essentially noted that Baker, in loading their trucks with the
988A loader, placed his loader below their trucks while loading
on an incline.

 29. When a piece of equipment is transferred in or out of a

particular Kentucky Stone location, the Office Manager sending
out the piece of equipment fills out a transfer form, based upon
instructions from the Superintendent, and then when the piece of
equipment is received, the receiving Superintendent also inspects
the equipment. Each plant has its own costs charged to that
particular plant. At the time the 988A loader was received in the
Pulaski Plant, nothing was found wrong with it on inspection. At
the time it was shipped out, there was likewise nothing indicated
to be wrong with the equipment.

 30. On the day that Stanley Baker was discharged, Danny

Roberts, another loader operator, operated the loader for the
rest of the day and for an additional period thereafter. During
the period of time that Roberts operated the loader, nothing was

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indicated on any checklist to indicate that the loader brakes
were inoperable. In the testimony of Roberts, he indicated that
the travel on the loader when the brakes were applied, was
customary and usual for a 988A and that the travel did not create
a danger. The length of travel was consistent. Roberts had no
trouble with the brakes during the period of time that he
operated the equipment until it was transferred to Tyrone.
Checklists for May 21, 22, 23, 24, 28, 30, and 31 and June 1, 3,
4, 5, 6, 7, and 8, all signed by Russell Hines, indicate the
brakes were marked "OK."

 31. The 988A loader was received on April 1, 1985, from

Yellow Rock, near Beatyville, Kentucky, and was shipped to
Tyrone, near Lawrenceburg, Kentucky, on May 7, 1985. It was
shipped back to the Pulaski Plant on May 13, 1985, and remained
in Pulaski County until June 20, 1985, when it was shipped to the
Mt. Vernon Shop. The starter and electrical system were repaired
at that time, and the brakes were serviced. No problems were
reported with the brakes from the time the loader was received on
May 13 until it was shipped to Mt. Vernon on June 20.

 32. Halcomb also indicated that he had had certain previous

problems with Baker, including cleaning up stone in the traveled
areas to prevent customers' trucks from having to back their
tires over them; problems with keeping Baker watching for trucks;
problems with Baker being in the Control Room; problems with
Baker leaving his loader; and problems with Baker not doing a
good job servicing his loader. He also recalled a problem of
excessive speed which resulted in damage to the pick-up truck
belonging to Roberts.

 33. Halcomb indicated that he would not have "sent (Baker)

home if it hadn't been for the false check sheets" (Tr. 460).

 34. Halcomb testified that Baker had at least two and maybe

three warnings before the day that he filed the last checklist
and was discharged. Halcomb said that throughout that time, Baker
did not tell him that the loader brakes were inconsistent and did
not stop the same way every time, although he had several
opportunities to do so. Halcomb said he first heard Baker claim a
variation in the way the brakes stopped on the first day of the
trial proceedings. According to Halcomb, Baker did not tell
Miller or Robbins of variations in the brakes at the time of
stopping. In contrast Baker testified, in essence, that he told
Miller the loader rolled before the brakes caught. I adopt
Baker's version due to my observations of his demeanor and also
as it finds some corroboration in the testimony of Miller that he
checked the stopping distance of the loader.

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Issues

 1. Whether the Complainant has established that he was

engaged in an activity protected by the Act.

 2. If so, whether the Complainant suffered adverse action as

the result of the protected activity.

 3. If so, to what relief is he entitled.

Discussion

 The Commission, in a recent decision, Goff v. Youghiogheny &

Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated the
legal standards to be applied in a case where a miner has alleged
acts of discrimination. The Commission, Goff, supra, at 1863,
stated as follows:

         A complaining miner establishes a prima facie case of
         prohibited discrimination under the Mine Act by proving
         that he engaged in protected activity and that the
         adverse action complained of was motivated in any part
         by that activity. Pasula, 2 FMSHRC at 2797Ä2800;
         Secretary on behalf of Robinette v. United Castle Coal
         Co., 3 FMSHRC 803, 817Ä18 (April 1981). The operator
         may rebut the prima facie case by showing either that
         no protected activity occurred or that the adverse
         action was not motivated in any part by protected
         activity. Robinette, 3 FMSHRC at 818 n. 20. See also
         Donovan v. Stafford Constr. Co., 732 F.2d 954, 958Ä59
         (D.C.Cir1984); Boich v. FMSHRC, 719 F.2d 194, 195Ä96
         (6th Cir.1983) (specifically approving the Commission's
         PasulaÄRobinette test).

 Protected activity

 The key issue presented for resolution is whether Baker was

engaged in a protected activity when he checked the brakes
"INOP.", on the daily safety checklist. In essence, according to
Baker, he initially marked the brakes on the 988A front-end
loader as being "INOP.", as it continued to roll between 5 and 12
feet after application of the D-clutch brake petal, and that when
the brakes did catch they would catch suddenly. Also, according
to Baker, the distance that the brake on the front-end loader
would roll upon application of the D-clutch was inconsistent.

 Baker continued to mark the daily safety form up to and

including the date of his discharge as indicating the brakes
being "INOP." as the brakes continued to perform in the fashion
that they had on the first day. According to Baker, he was
concerned with the hazard of being unable to stop upon
approaching a

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truck down the incline or upon working leveling at the top of the
stockpile. Halcomb, in essence, testified that marking the brakes
as being "INOP." was false, especially after he had Miller drive
it on three occasions after Baker had marked them to be "INOP.",
and Miller had said that he could not find anything wrong with
the brakes. However, according to Baker, Miller had told him that
the brakes are not catching like they ought to. This is
corroborated by Miller who indicated, upon cross examinations,
that he told Baker that there was something wrong with the
brakes. Thus, I adopt Baker's version of what Miller told him,
rather than the version of Halcomb that he told Baker that Miller
told him that he could not find anything wrong with the brakes.

 Habcomb testified that upon driving the front-end loader

Robbins had told him that the brakes were not as fast at catching
as the 980 with the disc brakes and that he sure he told that to
Baker. Robbins said he found that upon stopping, the brakes were
plenty safe to operate and stop within a acceptable stoppage.
Also, he said that any traveling of the loader upon the
application of the brakes was consistent and could be adjusted
to. He also opined that he could not find any danger with this
traveling. Robbins had testified that he told Baker that the
brakes were OK and to run the loader.

 Although Robbins indicated the brakes were OK, he did not

contradict the testimony of Baker on direct that specifically he
(Robbins) had told him that the brakes did not catch like they
ought to and that he was going to have to put on a booster on
them. Also, although Robbins and Miller presented testimony at
variance with Baker with regard to the distance that the 988A
rolled upon application of the D-clutch and as to whether the
distance of the roll was consistent or not, I note that Robbins
tested it only once. Also, there is a no evidence that either
Miller or Robbins drove the front-end loader under the conditions
driven by Baker, i.e. loaded and down a incline. In this
connection, I find that the testimony of Baker that Robbins
tested the loader by driving it on the level around a pile to be
uncontradicted.

 In addition, in evaluating whether Baker had good cause to

believe the brakes were not "OK" and were "INOP.", I placed more
weight upon the testimony of Hasty and McClure, based on their
demeanor, rather than on the testimony of Miller and Robbins. In
this connection, I noted that Hasty corroborated Baker's
testimony that the brakes were inconsistent and that once they
caught they caught suddenly. Also, McClure, who similarly
operated the 988A after Baker was fired, opined that something
was wrong with the brakes and that he would have marked the
safety form as "INOP.", as would have Hasty. Also, I find
significant that Hasty, like Baker, placed the trucks that he
loaded uphill from the loader as

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did Baker upon transferring to the 988A. Indeed, Baker's action
in this regard was corroborated by Dale Tabor, Donny Tabor, Jack
Bruner. Also, Melvin Thomas, a mechanic at the Mount Vernon plant
under Robbins, had indicated that when he drove the 988A about
the time when Baker was fired it rolled and stopped suddenly.
Although he indicated that the rolling of the loader
approximately 3 feet before it stopped was consistent, he opined
that the loader in question takes longer than usual to stop than
other 988As, and therefore that the brakes were not working
properly and that there had to be something wrong.

 Accordingly, I conclude that Baker operated in good faith in

checking the brakes as being "INOP." (See, Secretary on Behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981)).
No bad faith can be found by Baker not following the opinions of
Miller and Robbins. Neither of them actually operated the
front-end loader while driving loaded down an incline, and
neither of them physically performed any mechanical investigation
or examination of the braking system. I find that the record does
not present sufficient evidence to conclude that Baker's
motivation in checking the brakes as being "INOP.", was as a
result of other than safety concerns. Accordingly, I find that
Baker engaged in protected activity in filling out the daily
safety forms during the period that he was riding the 988A
loader, and marking the brakes as "INOP." (Robinette, supra).

 Motivation

 I find that when Halcomb sent Baker home on May 2nd, 1985,

that Baker was, in essence, fired and that this constitutes an
adverse action. Halcomb testified, in essence, that when he sent
Baker home on May 2, 1985, for, in his opinion, falsely filling
out the daily checklist, it was the straw that broke the camels
back. When asked whether the sole reason for firing Baker was the
false checklist, he indicated in the affirmative and "the other
stuff building up to it too." (Tr. 504) In this fashion, he
indicated various other complaints that he had with Baker
including Baker not cleaning up stones on the road, not servicing
the loader properly, driving the loader at a unsafe speed, being
in the control room (an unauthorized location), and not being
available when needed to service truckers. However, there is no
evidence that respondent would have fired complainant for these
activities alone. Indeed, when asked why Baker was fired Halcomb
indicated that he was sent home "mostly" for filling out the
false truck sheets and that there were no other reasons "at that
time," (Tr. 460). Also, I find it most significant that when
asked whether the other problems he had been having with Baker
affected him in any way in determining to send Baker home on May
2, he said as follows: "No, I don't think I would have sent him
home if it hadn't been for the false check sheets," (Tr. 460).

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Thus, based upon the testimony of Halcomb I conclude that the
complainant here has established that the firing was motivated in
any part by the protected activity. (See, Robinette, supra.)

 Respondent has not rebutted the prima facie case. Indeed the

evidence establishes that the sole motivation for the firing of
complainant on May 2, was the protected activity. I also find
that an affirmative defense of respondent cannot be sustained, as
the evidence fails to establish that respondent would have fired
complainant based on the nonprotected activities alone.
(Robinette, supra.)

 Therefore I conclude that complainant has established a

cause of action under section 105(c) of the Act. In light of this
conclusion, Respondent's Motion, made at the Hearing for a
directed opinion, is DENIED.

                             ORDER

 1. Complainant shall file a statement within 20 days of this

decision indicating the specific relief requested. This statement
shall show the amount he claims as back pay, if any, and interest
to be calculated in accordance with the formula in
Secretary/Bailey v. Arkansas Carbona, 5 FMSHRC 2042 (1984). The
statement shall also show the amount he requests for attorney's
fees and necessary legal expenses if any. The statements shall be
served on Respondent who shall have 20 days from the date service
is attempted to reply thereto.

 2. This decision is not final until a further order is

issued with respect to Complainant's relief and the amount of
Complainant's entitlement to back pay and attorney's fees.

                              Avram Weisberger
                              Administrative Law Judge