Big Elk Creek Coal Company

Plain-English summary

Arnold Sharp claimed that Big Elk Creek Coal Company harassed or retaliated against him after mine inspectors cited the operation and after he missed work for a consumer complaint hearing. Judge George A. Koutras found that the foreman's request for proof of Sharp's absence was legitimate and that management reasonably treated the absence as unexcused when Sharp refused to provide documents he had. The judge found no credible or probative evidence that the company acted because of protected activity. He dismissed the discrimination complaint and denied Sharp's requested relief.

Decision snapshot

• Cited provisions: 30 U.S.C. § 815(c)(1), (2), and (3); 29 C.F.R. § 2700.1.
• Outcome: The discrimination complaint was dismissed and relief was denied.
• Key point: The ALJ found that the employer's actions were legitimate workplace decisions, not retaliation for protected safety activity.

Full text (FMSHRC public release)

CCASE:
ARNOLD SHARP V. BIG ELK CREEK COAL
DDATE:
19890320
TTEXT:

~382
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

ARNOLD SHARP, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. KENT 88-165-D
v. MSHA Case No. PIKE CD 88-10

BIG ELK CREEK COAL COMPANY, No. 5 Surface Mine
RESPONDENT

                           DECISION

Appearances: Arnold Sharp, Bulan, Kentucky, pro se, for the
Complainant;
Edwin S. Hopson, Esq., Wyatt, Tarrant & Combs,
Louisville, Kentucky, for the Respondent.

Before: Judge Koutras

                    Statement of the Case

 This proceeding concerns a pro se discrimination complaint

filed by Mr. Sharp on July 18, 1988, against the respondent
pursuant to section 105(c) of the Federal Mine Safety and Health
Act of 1977. In a statement executed by Mr. Sharp on April 13,
1988, on an MSHA complaint form, he made the following allegation
of discrimination:

      On 4-4-88, I told Harlan Couch, Foreman, Night Shift,
      that I would be off from work on 4-11-88 to be in court
      in Lexington. I again reminded him on 4-9-88. He said
      it would be fine. On 4-12-88, an inspector wrote 15
      violations on the mine. I was told I would have to
      prove I was in court on 4-11-88 or I would be fired. I
      feel I am being harassed. I request that the Foreman
      stop harassing me.

 The Secretary of Labor, Mine Safety and Health

Administration (MSHA), conducted an investigation of Mr. Sharp's
complaint, and by letter dated July 8, 1988, advised Mr. Sharp
that on the basis of the information gathered during the course
of its investigation, MSHA concluded that a violation of section
105(c) of the Act had not incurred. Mr. Sharp was

~383
advised of his right to pursue his claim further with the
Commission, and his pro se complaint was received and docketed by
the Commission on July 18, 1988.

 The respondent filed an answer to the complaint denying that

it had discriminated against Mr. Sharp, and it takes the position
that any personnel actions taken against Mr. Sharp were for
reasons unrelated to any protected safety activities on his part.
A hearing was convened in Pikeville, Kentucky, on January 4,
1989, and the parties appeared and participated fully therein.
The parties filed posthearing briefs, and I have considered their
respective arguments in the course of my adjudication of this
case. I have also considered all oral arguments and
representations made by the parties on the record during the
course of the hearing.

                        Issues

 The issues in this case are (1) whether or not Mr. Sharp's

section foreman Harlan Couch harassed Mr. Sharp by requesting him
to produce an excuse for a day's absence from his job, (2)
whether or not Mr. Couch's request for such an excuse was
motivated by his alleged belief that Mr. Sharp had called an MSHA
inspector and informed him about certain violative mine
conditions which resulted in an inspection and issuance of
citations against the respondent; and (3) whether the
respondent's decision to treat Mr. Sharp's absence from work as
an unexcused absence was made to retaliate against him for past
discrimination claims filed against the respondent, or to harass
him or otherwise retaliate against him for calling the inspector.

   Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C.

301 et seq

 2. Sections 105(c)(1), (2) and (3) of the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. 815(c)(1), (2) and
(3).

 3. Commission Rules, 29 C.F.R.    2700.1 et seq.

Complainant's Testimony and Evidence

 Arnold Sharp, the complainant, stated that on April 4, 1988,

he informed Mr. Harlan Couch, his day shift foreman, that he had
to be off work of April 11, 1988, because he had to be in court
in Lexington on that day, and that Mr. Couch "said fine." Upon
his return to work after his court appearance, Mr. Sharp stated
that Mr. Couch informed him that he had

~384
to provide proof showing where he was at on April 11, "because
the federal had been there and wrote them up citations, and I was
the one report them" (Tr. 16). Mr. Sharp asserted that he was
harassed because the mine inspector was at the mine and "wrote
them up." He also stated that "everytime a mine inspector comes
on the job I'm harassed" (Tr. 17).

 Mr. Sharp explained that his court appearance was in

connection with a consumer complaint that he had filed with the
Better Business Bureau against an automobile dealer who had
failed to make certain repairs to an automobile which he had
purchased. Mr. Sharp produced copies of certain documents
concerning his complaint, and one of the documents is a Notice of
Hearing dated April 5, 1988, from the Better Business Bureau of
Central Kentucky, Inc., informing Mr. Sharp that he was to appear
before an arbitrator at 11:00 a.m., April 11, 1988, in Lexington,
Kentucky, when the complaint would be heard. Mr. Sharp confirmed
that he appeared at the hearing on April 11, and did not go to
work. He also stated that he had also reminded Mr. Couch on April
9, that he would be in court and not at work, and that Mr. Couch
responded that "it would be fine."

 Mr. Sharp stated that Mr. Mike Cornett took over as boss of

the day shift on April 11, the day that he was off, and that when
he returned to work on the evening of April 12, Mr. Couch accused
him of calling the MSHA inspectors and reporting the conditions
which resulted in the issuance of citations that same day. Mr.
Sharp stated that Mr. Couch told him that "we think you called"
the inspectors, and informed him that unless he could produce
proof as to his whereabouts on April 11, he would be fired (Tr.
20).

 Mr. Sharp admitted that when Mr. Couch asked him to produce

some proof that he was in court, he did not show him the
documents from the Better Business Bureau because Mr. Couch did
not "ask him right." Mr. Sharp stated that "if he had asked
right, I would have gladly showed him" (Tr. 21). Mr. Sharp stated
that instead of informing him that he needed to see proof of his
court appearance, Mr. Couch accused him of calling in the mine
inspectors, and that is why he did not show the documents to Mr.
Couch (Tr. 21-22). Mr. Sharp confirmed that he subsequently
contacted the inspectors and obtained copies of their "mine
inspection reports" in order to prove that they issued citations
on the day he was allegedly harassed by Mr. Couch. Mr. Sharp
confirmed that he had not called in the inspectors or reported
any violations, but that he did tell Mr. Couch that this was the
case. When asked why he failed to tell Mr. Couch that he had not
reported anything

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to the inspectors, Mr. Sharp responded "It doesn't do any good to
tell him. I didn't see any use in it, I was being accused of it"
(Tr. 22-23).

 Mr. Sharp confirmed that his allegation of harassment is

based on the fact that Mr. Couch threatened to fire him if he
could not produce proof that he was in court, and the fact that
the respondent resents him since he prevailed in a prior
discrimination case. Mr. Sharp stated that he is harassed every
day when he is at work, and he produced a notebook with his notes
which he claimed were examples of instances of harassment. He
also produced "a piece of a rain suit" which he claims he was
required to wear while steam-cleaning equipment, and he cited
this as an example of harassment by the respondent (Tr. 25-27).

 Mr. Sharp produced a notebook containing personal notes

which he kept, and he offered them to the court as "examples" of
acts of harassment by the respondent. He was given an opportunity
to review the material and to cite any instances of harassment
which may be documented by these materials (Tr. 28-30).

 Mr. Sharp produced some notes dated April 30, and May 4,

1988, dealing with the failure of two individuals named "Allan"
and "John" to produce doctor's excuses for days they missed work.
Mr. Sharp implied that they were not asked to provide proof to
Mr. Couch that they missed work, and that he is the only person
who is required to show such proof (Tr. 31).

 Mr. Sharp produced a copy of a memorandum dated July 26,

1988, addressed to him, which stated "This is to serve notice
that you have been warned verbally about stopping work and
leaving the job site prior to the end of the shift on July 20 and
26, 1988." Mr. Sharp denied that he left work early on these
days, and he asserted that the respondent attempted to get other
miners to sign and make false statements against him to support
management's claim that he left work early (Tr. 32-33).

 Mr. Sharp confirmed that he was not laid off or disciplined

in any way by Mr. Couch as a result of taking off work for his
consumer complaint appearance (Tr. 35, 38-40). Mr. Sharp asserted
that the respondent has attempted to have miners make false
statements against him because "they are trying to set me up to
fire me, because they resent me because I beat them in the first
case. They started from day one when I went on the job from Judge
Fauver's decision. It started

~386
the first day I started to work . . . and the notes tell
everything they have done" (Tr. 35).

 When asked why he had not given his notebook and notes to

MSHA when he filed his complaint on April 13, 1988, Mr. Sharp
responded as follows (Tr. 41).

      JUDGE KOUTRAS: And another question I would have is,
      why wasn't all this given to MSHA when you went there
      on April the 13th to file this complaint? Why didn't
      you give the complaint examiner that pile of paper
      there?

      THE WITNESS: It was give to him.

      JUDGE KOUTRAS: And what did they do?

      THE WITNESS: Nothing, because MSHA is in with the
      company.

      JUDGE KOUTRAS: Oh, okay. The judge is in with the
      company, and MSHA is in with the company, right?

      THE WITNESS: I ain't saying the judge is.

      JUDGE KOUTRAS: Well, okay.

      THE WITNESS: But I'm saying MSHA is.

      JUDGE KOUTRAS: MSHA is.

      THE WITNESS: They won't take nothing against Big Elk
      Creek Coal.

      JUDGE KOUTRAS: Okay.

      THE WITNESS: I don't care what kind of proof you give
      them. I've given them all kinds of proof.

 On cross-examination, Mr. Sharp stated that his conversation

with Mr. Couch on April 12, 1988, concerning his consumer
complaint appearance took place on the mine parking lot prior to
his starting work at 6:00 p.m., and he described the conversation
which took place as follows (Tr. 52-53):

      Q. Was there anybody close enough to overhear what was
      being said?

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A. No, but he told it on the C.B.

      Q. Okay, I'll get to that in a minute.
      Now, if you would, tell me as best you can recall it
      word for word what you said, and what Harlan Couch said
      on that occasion on April the 12th.

      A. I come up, I parked, got out of my truck, started
      walking over towards the other men. He stopped, said
      where's the proof that you were in court yesterday.
      I said, what do you mean. I told you I was out. He
      said, well, the mine inspector has been up there, and
      we think you reported us. We got wrote up. You've got
      to show proof where you was at or you're fired on
      account of it.

      Q. What did you say?

      A. Didn't say nothing, except I didn't bring proof
      because if they'd have asked it right --

      Q. Now, what did you say? Did you say anything in
      response to his statement.

      A. No, not that I can recall.

      Q. Was that the end of the conversation?

      A. As far as I can recall, yes.

      Q. Did Mr. Couch say anything else?

      A. Not that I can recall.

 Mr. Sharp denied that he ever told Mr. Couch that he would

be off work on April 11, 1988, because he was going to court
against the respondent in Lexington. He also denied that he ever
told Mr. Couch that he was going to court in Lexington to sue the
respondent for $150,000 or "a lot of money" (Tr. 54-55).

 In response to further questions, Mr. Sharp stated that some

of his fellow miners, including Mr. Ronnie Ball, told him

~388
that they heard Mr. Couch state on the C.B. radio at the mine
that he was going to require him to prove that he was in court on
April 11, or he would fire him "because they got wrote up" (Tr.
58). Mr. Sharp confirmed that he did not personally hear Mr.
Couch make the statements over the C.B. (Tr. 57).

 Mr. Sharp confirmed that he simply told Mr. Couch that he

had to be in court in Lexington, and did not further explain what
the proceeding was all about (Tr. 78).

 NOTE: Prior to the convening of the hearing on the record,

Mr. Sharp advised me that he had subpoenaed mine employee Ronnie
Ball to appear on his behalf, and he furnished me with a copy of
the subpoena certifying that he served the subpoena on Mr. Ball.
However, Mr. Ball failed to appear.

 After confirming that Mr. Ball was in fact employed by the

respondent, respondent's counsel was requested to ascertain Mr.
Ball's whereabouts and to instruct him to come to the hearing.
Respondent's counsel advised me that he requested respondent's
management representative, who was present in the courtroom, to
locate Mr. Ball and to instruct him to come to the hearing. Mr.
Ball was subsequently contacted, and instructed to come to the
hearing (Tr. 86). The hearing proceeded, and the parties were
informed that Mr. Ball would be given an opportunity to testify
when he arrived (Tr. 6).

 Mr. Sharp asserted that Mr. Ball would testify that he was

"set up and fired" by the respondent because he would not sign a
false statement against him, and that he has turned this
information over to "the Federal," and that Mr. Ball will be
subpoenaed to appear in Federal court with regard to this matter.
Mr. Sharp stated that he has turned the matter over to the U.S.
Attorney in Lexington for prosecution (Tr. 37).

 Mr. Sharp stated further that Mr. Ball would also testify

that he heard Mr. Couch state over the mine C.B. radio that he
would fire Mr. Sharp if he did not provide proof that he was in
court (Tr. 38).

 Mr. Sharp later confirmed that he served the subpoena on Mr.

Ball on December 31, 1988, on the mine parking lot (Tr. 56-57).

 Mr. Sharp also testified that the respondent attempted to

have Mr. Ball and another miner, Stanley Boggs, sign false
statements that he (Sharp) had threatened to kill Harlan Couch,
Mike Cornett, and M. C. Couch, and that Mr. Ball was subsequently
fired for damaging a truck. Mr. Sharp stated

~389
that after Mr. Ball was fired, he discussed the matter with him,
and Mr. Sharp advised him to file a complaint with MSHA. Mr. Ball
filed a complaint on June 23, 1988, but he was subsequently
reinstated by the respondent after signing a release and dropping
his complaint (Tr. 58-60).

 Ronnie Ball was called to testify, and he denied that he was

served with any subpoena appear at the hearing (Tr. 111-114).

 Mr. Ball denied that he ever heard Mr. Harlan Couch announce

over the mine C.B. radio that he would fire Mr. Sharp if he could
not prove that he was in court on April 11, 1988 (Tr. 115-116).
Mr. Ball stated further that he has no information or evidence
with respect to any alleged acts of harassment by the respondent
against Mr. Sharp, and that he has never discussed with Mr. Sharp
any of the complaints he has initiated against the respondent
(Tr. 118).

 Mr. Ball confirmed that he was discharged by the respondent

in June, 1988, after a rim on a truck he was driving was broken,
and that his dismissal was for "a few days until they found out
that I was not the cause of the rim being busted." He confirmed
that he had filed a discrimination complaint with MSHA several
days after his discharge, but later agreed to dismiss the
complaint after he returned to work. Mr. Ball stated that during
MSHA's investigation of his complaint, the MSHA special
investigator who interviewed him stated in his report that he had
been fired because "I did not go for the company against Arnold
Sharp and that was a false statement, so, I dropped charges" (Tr.
118-122).

Respondent's Testimony and Evidence

 Harlan Couch, respondent's night shift foreman, testified

that he has worked for the respondent for approximately 1 year,
and that in April of 1988, 19 miners worked on his shift. Mr.
Couch stated that on April 4, 1988, Mr. Sharp requested to be off
work on April 11, 1988, because "he had to go to court with the
company. I told him okay." Mr. Couch stated that he assumed Mr.
Sharp had some action against the company. Mr. Sharp asked him
again on April 11, 1988, and Mr. Couch told him "fine." At that
time, Mr. Couch stated that he asked Mr. Sharp if his court
appearance was still with the company, and that Mr. Sharp replied
"yes, concerning $150,000 worth" and Mr. Couch replied "that's
okay" (Tr. 64-66).

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Mr. Couch confirmed that Mr. Sharp was off work on April 11,
1988, and that when he (Couch) asked day shift foreman Mike
Cornett about the trial, Mr. Cornett advised him that the
respondent was not in court with Mr. Sharp. Upon Mr. Sharp's
return to work on April 12, Mr. Couch stated that he discussed
the matter with Mr. Sharp, and he explained the conversation
which took place as follows (Tr. 67-68):

      A. Yeah. I asked him for an excuse because he had been
      in court. I told him it was a company policy to have an
      excuse. I also told him he'd lied to me, because he
      said he was going to court with the company, and he'd
      never done it.

      Q. What did he say, anything?

      A. He said, I don't have to have no excuse. That's what
      he said.

      Q. Did you ever take any action against him because of
      that?

      A. No, sir.

      Q. Did you ever threaten to discharge him because he
      didn't have an excuse?

      A. No, sir, I didn't.

      Q. Did you talk on the C.B. radio about the situation?

      A. No, sir.

      Q. Did you mention anything about a federal mine
      inspection to Mr. Sharp?

      A. No. They get them on the day shift ever now and then
      and they pull a night shift on me. That's the ones I
      would know about.

      Q. And you testified you didn't know about this mine
      inspection?

      A. No, sir. He comes on days. That's Mike Cornett's
      department on days. He takes care of all of that.

~391
Q. Mike Cornett takes care of federal mine inspections that
happen on day shift?

      A. That's right.

      Q. As far as you know, have you treated Mr. Sharp in
      this situation any differently than you would anybody
      else?

      A. No, sir.

 During his cross-examination of Mr. Couch, Mr. Sharp

produced copies of an MSHA computer print-out showing the
respondent's history of civil penalty assessments. This document
reflects civil penalty assessments for 14 alleged violations
which are included in 14 section 104(a) citations served on the
respondent on April 12, 1988. Mr. Sharp also produced copies of
the citations which reflect that they were served on Foreman Mike
Cornett on the morning of April 12, 1988 (Tr. 70-71).

 Mr. Couch denied any knowledge of the violations, and he

denied that he accused Mr. Sharp of calling in the MSHA inspector
who issued the citations, or that he had any knowledge that Mr.
Sharp had in fact called in the inspector (Tr. 74-75). Mr. Couch
also denied any knowledge of making any announcement over the
C.B. radio that he would fire Mr. Sharp if he failed to present
an excuse for his court appearance (Tr. 77).

 Mr. Couch denied that he ever accused Mr. Sharp of calling

in MSHA, or that he ever threatened to fire him for not having an
excuse for his court appearance. Mr. Couch stated that he advised
Mr. Sharp that it was company policy to have an excuse for such
an absence, but that Mr. Sharp never presented such an excuse.
Although Mr. Sharp violated company policy for not presenting an
excuse for his absence from work, Mr. Couch stated that he did
not discipline Mr. Sharp because he purportedly filed a complaint
with MSHA. Mr. Couch stated further that he simply reported the
matter to M. C. Couch, the mine superintendent, and according to
mine policy, any decision to discipline Mr. Sharp was within the
discretion of the respondent (Tr. 81-84).

 Mr. Couch stated that the company policy concerning excuses

for absences was in effect before he came to work for the
respondent, and that Mr. Sharp was aware of it (Tr. 84-85).

 In response to further questions, Mr. Couch confirmed that

he believed Mr. Sharp's failure to produce an excuse for

~392
his absence from work on April 11, 1988, was an unexcused absence
(Tr. 86). Mr. Couch reiterated that Mr. Sharp had lied to him
when he said that he would be in court against the respondent,
and that he simply turned the matter over to the mine
superintendent. Mr. Couch reviewed the documents offered by Mr.
Sharp with respect to his consumer complaint, and he confirmed
that he had never previously seen the documents, and that Mr.
Sharp never showed them to him or offered any explanation as to
why he was not at work other than his statement that he was in
court (Tr. 87-88).

 Marcus Couch, Jr., mine surface superintendent, stated that

he has worked for the respondent for approximately 5 years and
that he is not related to Harlan Couch. Mr. Couch confirmed that
he was aware of an MSHA inspection which took place on April 12,
1988, during which citations were issued, and he characterized
the inspection as a routine quarterly mine inspection. He denied
that mine management was "upset" with Mr. Sharp because of this
inspection, and he also denied blaming Mr. Sharp for the
inspection (Tr. 90-92).

 Mr. Couch confirmed that no adverse action was taken against

Mr. Sharp for his unexcused absence of April 11, 1988, and that
he did not treat the absence as unexcused because Mr. Sharp has
previously filed complaints with MSHA's, or as a means of
retaliating against him (Tr. 93).

 On cross-examination, Mr. Couch stated that Mr. Sharp has

not been treated any differently from other employees with
respect to the respondent's excused or unexcused leave policy.
Mr. Couch stated further that employees other than Mr. Sharp have
been "written up" for unexcused absences and absenteeism, and
that company records will attest to this fact (Tr. 94-95). Mr.
Couch explained the procedures for documenting such absences, and
stated that other employees have in fact been cited for unexcused
absences. He confirmed that after two unexcused absences, an
employee is subject to discharge (Tr. 97).

 Mr. Couch was shown copies of the documents produced by Mr.

Sharp with respect to his consumer complaint and appearance at
the hearing, and he stated that "this is the first time I've ever
saw this" (Tr. 104). Mr. Couch confirmed that he would probably
have accepted these documents as an excuse for Mr. Sharp's
absence of April 11, 1988, but since Mr. Sharp did not present
them or document his absence, his absence from work was treated
as unexcused (Tr. 105).

~393
Findings and Conclusions

 In order to establish a prima facie case of discrimination

under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company, 2
FMSHRC 2768 (1980), rev'd on other grounds sub nom. Consolidation
Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary
on behalf of Robinette v. United Castle Coal Company, 3 FMSHRC
803 (1981); Secretary on behalf of Jenkins v. Hecla-Day Mines
Corporation, 6 FMSHRC 1842 (1984); Secretary on behalf of Chacon
v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511 (November 1981),
rev'd on other grounds sub nom. Donovan v. Phelps Dodge Corp.,
709 F.2d 86 (D.C. Cir. 1983). The operator may rebut the prima
facie case by showing either that no protected activity occurred
or that the adverse action was in no way motivated by protected
activity. If an operator cannot rebut the prima facie case in
this manner it may nevertheless affirmatively defend by proving
that (1) it was also motivated by the miner's unprotected
activities alone. The operator bears the burden of proof with
regard to the affirmative defense. Haro v. Magma Copper Company,
4 FMSHRC 1935 (1982). The ultimate burden of persuasion does not
shift from the complainant. Robinette, supra. See also Boich v.
FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Donovan v. Stafford
Construction Company, No. 83-1566 D.C. Cir. (April 20, 1984)
(specifically-approving the Commission's Pasula-Robinette test).
See also NLRB v. Transportation Management Corporation, ___ U.S.
__, 76 L.ed.2d 667 (1983), where the Supreme Court approved the
NLRB's virtually identical analysis for discrimination cases
arising under the National Labor Relations Act.

 Direct evidence of actual discriminatory motive is rare.

Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2510-11 (November 1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983);
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984).
As the Eight Circuit analogously stated with regard to
discrimination cases arising under the National Labor Relations
Act in NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th
Cir. 1965):

      It would indeed be the unusual case in which the link
      between the discharge and the

~394
[protected] activity could be supplied exclusively by direct
evidence. Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial
evidence. Furthermore, in analyzing the evidence, circumstantial
or direct, the [NLRB] is free to draw any reasonable inferences.

 Circumstantial indicia of discriminatory intent by a mine

operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator.

 In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June

1982), the Commission stated as follows:

      As we emphasized in Pasula, and recently re-emphasized
      in Chacon, the operator must prove that it would have
      disciplined the miner anyway for the unprotected
      activity alone. Ordinarily, an operator can attempt to
      demonstrate this by showing, for example, past
      discipline consistent with that meted out to the
      alleged discriminatee, the miner's unsatisfactory past
      work record, prior warnings to the miner, or personnel
      rules or practices forbidding the conduct in question.
      Our function is not to pass on the wisdom or fairness
      of such asserted business justifications, but rather
      only to determine whether they are credible and, if so,
      whether they would have motivated the particular
      operator as claimed.

Protected Activity

 Section 105(c)(1) prohibits a mine operator from discharging

a miner, or otherwise discriminating against him for making
safety complaints to MSHA or to mine management. That section
also prohibits a mine operator from discriminating against a
miner, or otherwise interfering with any of his statutory rights
under the Act. A miner is protected against any retaliatory
action by the respondent because of any safety complaints he may
have made to MSHA or to mine management. He is also protected
against retaliation for exercising his section 103(g) right to
request an inspection of the mine by MSHA when he has reasonable
grounds to believe that violations exist in the mine.

~395
Further, I believe that section 105(c)(1) is broad enough to
protect a miner against retaliation for threatening to contact or
inform mine enforcement agencies about perceived safety
violations in the mine.

Mr. Sharp's Complaint

 In the case at hand, Mr. Sharp alleges that his section

foreman Harlan Couch harassed him on April 12, 1988, when he
asked him to produce some proof of his absence from work on that
day. Mr. Sharp claims that Mr. Couch had previously given him
permission to be away from work, and that the request to provide
proof of his whereabouts was motivated by Mr. Couch's belief that
he had called an MSHA inspector to the mine for an inspection
which resulted in several citations being issued to the
respondent.

The MSHA Inspection of April 12, 1988

 The evidence establishes that the inspection in question

took place during the day shift, and that the citations were
issued to the day shift foreman and not to Mr. Harlan Couch. Mr.
Couch denied any knowledge of the inspection when he confronted
Mr. Sharp about his absence on April 12, and superintendent
Marcus Couch confirmed that he considered the inspection to be
routine and that he was not upset about it. He also confirmed
that he had no reason to believe that Mr. Sharp initiated the
inspection, and he denied that the inspection had anything to do
with his decision to treat Mr. Sharp's absence as unexcused.
Insofar as foreman Harlan Couch is concerned, the record
establishes that he took no action against Mr. Sharp for the
unexcused absence, and simply informed Marcus Couch that Mr.
Sharp could not produce any excuse for his purported court
appearance.

 Given the history of ongoing confrontations between Mr.

Sharp and mine management, and Mr. Sharp's proclivity for filing
discrimination claims, I have serious doubts that foreman Harlan
Couch would directly accuse Mr. Sharp of calling in an MSHA
inspector or openly announce over the mine C.B. radio that he
would fire Mr. Sharp for causing the inspection which resulted in
the issuance of the citations. With regard to this purported
announcement, Mr. Sharp admitted that he did not personally hear
Mr. Couch make the statement, and his own witness Ronnie Ball
denied that he ever heard Mr. Couch make the statement. Further,
Mr. Sharp produced no other witnesses or any evidence to support
his allegation in this regard.

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In view of the foregoing, I find no credible or probative
evidence to support any conclusion that the MSHA inspection of
April 12, played any role, either directly or indirectly, in the
respondent's decision to treat Mr. Sharp's absence of April 11,
1988, as an unexcused absence. Further, even assuming that the
respondent suspected Mr. Sharp of initiating the inspection, I
find no credible or probative evidence to establish that the
respondent's consideration of Mr. Sharp's absence as unexcused
was made to retaliate against Mr. Sharp or to harass him for any
protected activities.

The Respondent's Leave Policy

 The respondent produced credible probative evidence with

respect to its established absenteeism policy, including the
requirement that employees must document or present excuses for
all unexcused absences. Foreman Harlan Couch testified that the
policy requiring employees to produce proof for an absence from
work which may be considered unexcused has been in effect for
over a year, that it was in effect when he came to work for the
respondent, and that Mr. Sharp was aware of the policy. Mr. Sharp
did not deny that he was aware of the policy, but claimed that it
is not enforced against anyone but him.

 Superintendent Marcus Couch explained the respondent's leave

policy, including the procedures requiring employees to document
all absences which are considered as unexcused, and he confirmed
that after two unexcused absences, an employee may be discharged.
Mr. Couch also confirmed that other employees have been cited for
unexcused absences, and that he treated Mr. Sharp no differently
from other employees in concluding that his absence on April 11,
was unexcused. Indeed, Mr. Couch confirmed that had Mr. Sharp
produced or shown him the documents which he had in his
possession with respect to his consumer complaint, he would have
considered Mr. Sharp's absence as excused leave. However, since
Mr. Sharp failed or refused to present this documentation, or to
further explain his court appearance, and since he was unaware of
these documents and saw them for the first time at the hearing,
Mr. Couch confirmed that he considered Mr. Sharp's absence as
unexcused and contrary to the respondent's leave policy.

 Having viewed Harlan and Marcus Couch during the course of

the hearing, I find them to be credible witnesses and I find no
credible evidence to support any conclusion of any disparate
treatment of Mr. Sharp. Mr. Sharp's contentions that the
respondent's leave and absenteeism policy was not enforced
against other employees, and that he was singled out

~397
by the respondent, are rejected as unsupported by any credible or
probative evidence. Although Mr. Sharp mentioned the names of
several employees who he contended were allowed to miss work
without excuses, he failed to produce any witnesses or other
credible evidence to support his claim.

Mr. Sharp's Absence of April 11, 1988

 The evidence establishes that on two occasions prior to

April 11, Mr. Sharp informed his foreman Harlan Couch that he
would be off work that day because he had to be "in court" in
Lexington, and that Mr. Couch gave his tacit approval to Mr.
Sharp when he replied "it would be fine." Mr. Couch testified
that Mr. Sharp advised him that his court appearance was in
connection with a legal action he filed against the respondent,
and Mr. Sharp denied that he made such a statement to Mr. Couch.

 Harlan Couch further testified that when he learned on April

12, upon Mr. Sharp's return to work, that he had not been in
Court in a case against the respondent, he concluded that Mr.
Sharp had lied to him and he asked him to produce proof that he
was in fact in court on April 11. When Mr. Sharp could not
produce such proof, Mr. Couch reported the matter to mine
superintendent Marcus Couch, and took no further action against
Mr. Sharp.

 Mr. Sharp testified that his "court" appearance was in fact

an appearance before the Better Business Bureau in Lexington in
connection with a consumer complaint that he had filed against an
automobile dealer who had failed to make certain repairs to an
automobile which Mr. Sharp had purchased. Mr. Sharp produced
copies of several documents concerning his appearance, including
a copy of a notice of hearing dated April 5, 1988, instructing
him to appear before an arbitrator for a hearing on his
complaint, and a copy of the arbitrator's decision in Mr. Sharp's
favor.

 Harlan and Marcus Couch both testified that they were

unaware of the fact that Mr. Sharp's "court" appearance was in
connection with his consumer complaint, and they confirmed that
they had not previously seen the documentation produced by Mr.
Sharp for the first time during his discrimination hearing of
January 4, 1989. They also confirmed that Mr. Sharp had not
previously offered any explanation or details concerning his
purported "court" appearance. I find Harlan and Marcus Couch's
testimony to be credible, and it is corroborated by

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Mr. Sharp himself who confirmed that he did not show the
documents to Harlan Couch or offer any further explanation as to
his whereabouts on April 11.

 The evidence establishes that Mr. Sharp's purported "court"

appearance on April 11, was not in fact an appearance before a
court of record, but rather, an appearance before an arbitrator
in connection with a consumer complaint. I take note of the fact
that the Better Business Bureau notice of hearing received by Mr.
Sharp informing him to appear at the hearing on April 11, is
dated April 5, a day after Mr. Sharp's first notification to
Harlan Couch that he would be in Court on April 11. Although Mr.
Sharp could not recall when he actually received notification of
the hearing, at page 4 of his brief, he acknowledges that he was
initially informed of the hearing by telephone on April 4.

 It seems clear to me from the documentation produced by Mr.

Sharp that he was in fact at the hearing in Lexington on April
11, in connection with his consumer complaint. It is also clear
that Mr. Sharp had at least two opportunities to show the April 5
Notice of Hearing to Harlan Couch. One opportunity was on March
9, when Mr. Sharp had the notice of hearing in his possession and
reminded Mr. Couch that he would be in "court." A second
opportunity presented itself on April 12, when Mr. Sharp returned
to work and was confronted by Mr. Couch who asked him for an
explanation as to his purported "court" appearance.

 Although Mr. Sharp may not have had any reason to show

Harlan Couch the notice of hearing on April 9, when Mr. Couch
informed him that his absence from work "would be fine," I find
that Mr. Sharp's refusal on April 12, to show Mr. Couch the
notice of hearing regarding his hearing appearance, or to
otherwise offer an explanation to Mr. Couch was inexcusable.
Given the respondent's leave and absenteeism policy, Mr. Couch's
doubts concerning Mr. Sharp's appearance in court, valid or
otherwise, and the fact that Mr. Couch was Mr. Sharp's
supervisor, I believe that Mr. Couch was entitled to some
explanation, and that Mr. Sharp's refusal to provide proof of his
whereabouts placed him at risk of being charged with an unexcused
absence. Mr. Sharp's unreasonable refusal to explain his
whereabouts to Mr. Couch obviously triggered management's
decision to treat the absence as unexcused.

 I conclude that had Mr. Sharp shown Harlan Couch the hearing

notice concerning his consumer complaint appearance,

~399
Mr. Couch may not have had any legitimate reason for concluding
that Mr. Sharp's absence from work was an unexcused absence. As a
matter of fact, superintendent Marcus Couch, the individual who
made the decision that Mr. Sharp's absence was unexcused,
confirmed that had Mr. Sharp presented the documentation which he
deliberately withheld and refused to supply, he would have
treated Mr. Sharp's absence from work as excused.

 In view of the foregoing, I conclude and find that Harlan

Couch's request of Mr. Sharp for some proof of his asserted court
appearance was a legitimate and reasonable request,
notwithstanding his previous approval to Mr. Sharp, and that the
inquiry by Mr. Couch was not made to harass Mr. Sharp or to
otherwise retaliate against him for any protected activity. I
also conclude and find that the only action taken by Harlan Couch
against Mr. Sharp was to report the matter to superintendent
Marcus Couch, and that Harlan Couch's reporting of the matter was
a legitimate and reasonable exercise of his supervisory
authority.

 With regard to Marcus Couch's determination that Mr. Sharp's

absence from work was unexcused, I conclude and find that given
the fact that Mr. Sharp refused to provide an explanation which
was readily in his possession and at his disposal, Mr. Couch's
decision was a justifiable and reasonable exercise of his
authority as the mine superintendent. I also conclude and find
that Mr. Couch's determination was not made to harass Mr. Sharp
or to otherwise retaliate against him for any protected
activities.

 I further conclude and find that Mr. Sharp has failed to

present any credible or probative evidence to support his claim
of discrimination and that he has failed to establish a prima
facie case.

                        ORDER

 In view of the foregoing findings and conclusions, and on

the basis of a preponderance of all of the credible testimony and
evidence adduced in this case, I conclude and find that Mr. Sharp
has failed to establish that the respondent has

~400
discriminated against him or has otherwise harassed him or
retaliated against him because of the exercise of any protected
rights on his part. Accordingly, Mr. Sharp's complaint IS
DISMISSED, and his claims for relief ARE DENIED.

                            George A. Koutras
                            Administrative Law Judge