D.H. Blattner & Sons, Inc.

Plain-English summary

Larry E. Burns was discharged from his haul-truck job at the Basin Creek open-pit gold mine after refusing to drive an older truck. His estate continued the case and alleged that he had been fired for raising concerns about the truck's canopy, transmission, and exhaust. Judge Michael A. Lasher, Jr. found that Burns did not communicate safety complaints to management before the discharge and that the company acted because of equipment abuse, hostile conduct, and the refusal to drive the truck. The judge found no Mine Act discrimination and dismissed the complaint.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(1), 815(c)(2), and 815(c)(3)
• Outcome: The discrimination complaint was dismissed.
• Key point: A refusal to operate equipment is not protected Mine Act activity when the miner does not communicate the safety concern to management and the operator proves a nonprotected reason for the discharge.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
The Federal Building
Room 280, 1244 Speer Boulevard
Denver, CO 80204

LARRY E. BURNS, DISCRIMINATION PROCEEDING
COMPLAINANT
v. Docket No. WEST 90-166-DM
MD 89-118
D.H. BLATTNER & SONS, INC.,
RESPONDENT Basin Creek Mine

                                  DECISION

Appearances: Eula Compton, Esq., Bozeman, Montana,
for Complainant;
Thomas E. Hattersley III, Esq., Michael S. Lattier,
Esq., GOUGH, SHANAHAN, JOHNSON & WATERMAN, Helena,
Montana,
for Respondent.

Before: Judge Lasher

 This proceeding arises under Section 105(c)(3) of the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et
seq. (1982) (herein the Act). Complainant's initial complaint
with the Labor Department's Mine Safety and Health Administration
(MSHA) under section 105(c)(2) of the Act was dismissed.

 Complainant contends that he was discharged on August 13,

1989, for refusing to drive an unsafe truck. (I-T. 72-73).

 Respondent contends inter alia that Complainant did not make

safety complaints and was discharged for abuse of equipment and
unacceptable behavior.

 Complainant contends that he informed his foreman Ted

Roberts of three separate safety concerns he had with respect to
the "A" model truck No. 583 (with 3-speed automatic transmission)
which he was directed to drive on the day he was discharged
(August 13, 1989) involving the transmission, the canopy, and
exhaust fumes. (I-T. 42).

 Respondent (1) denies that any safety concerns were

communicated by Complainant Burns to any of Respondent's
management personnel on the day he was terminated (I-T. 26) and
(2) contends that he was discharged primarily for abuse of
equipment (II-T. 104, 114, 126, 130, 176) together with his
belligerent conduct toward supervisors and his unexplained
refusal to drive Truck No. 583 (II-T. 104, 126, 130, 150,
176-177, 202-203, 214).

Order Substituting Estate.

 The Complainant, Larry E. Burns, passed away subsequent to

the hearing in the matter. (Footnote 1) It appears that his estate
was opened on April 1, 1991, under a special administrator who has
requested an order substituting the estate for the decedent as a
party in this matter. Respondent, having no objection (see
Complainant's motion received April 12, 1991), the Estate of
Larry Burns is hereby substituted as complainant in this section.
See Secretary of Labor v. Metric Constructors, Inc., 4 FMSHRC
791, 808 (April 1982). Rule 25(a) F.R.C.P.

 It is well-established that the Act is remedial and clothed

in the public interest. Since the remedy provided for a
discriminatee represents reimbursement of a lost property right,
i.e., back pay, it is found to survive his death and to be
subject to an award in an action brought by the appropriate
government agency on his behalf. See Secretary of Labor v. Metric
Constructors, Inc., 4 FMSHRC 791, 808 (April 1982).

                              FINDINGS   (Footnote 2)

A. GENERAL

 Respondent at material times was a Minnesota corporation

engaged in highway, mining, and heavy construction and was the
mining contractor for the Basin Creek open pit gold mine engaged
in constructing roads, leach pads, pad extensions and ponds, and
excavating and hauling ore from pits.

 Complainant Burns was hired by Respondent on July 10, 1989,

as a haul-truck driver (I-T. 57) and was discharged on August 13,
1989 (I-T. 74).

 In August 1989, Respondent's management personnel at the

mine site were Superintendent Lance Power, overall operational
Foreman Rusty Giulio, Head Mechanic Randolph R. "Randy" Wiener,
and Ted Roberts (who served as acting foreman when Rusty Giulio
was absent). (I-T. 57, 58, 60; II-T. 6, 19, 140).

 On August 13, 1989, Complainant Burns was assigned to drive

truck No. 583, a spare truck (I-T. 215). His normally assigned
truck was No. 589 (I-T. 32) which had "broken down" and was
"being worked on." (I-T. 215). (Footnote 3) His work assignment
to haul overburden (common excavation) from the leach pad
extension to a dump one-half mile away. (I-T. 32, 215, 218).

 On August 13, 1989, Complainant's immediate supervisor was

leach pad foreman Ted Roberts. (I-T. 57, 214; II-T. 140). The
hours of his shift were 6 a.m to 4:30 p.m. (I-T. 147, 214) seven
days a week. On this day, when Mr. Roberts assigned Mr. Burns to
drive Truck 583, Mr. Burns made no complaint about driving it.
(I-T. 84, 85, 216). Mr. Burns had operated the truck on two or
three prior occasions (I-T. 35-36, 75). When Mr. Roberts made the
assignment, he told Mr. Burns that 583 was an older truck and was
the only one available, and thus Mr. Burns "could take it

easy" and didn't have to "cycle," i.e., keep up with another
truck. After Mr. Burns had been making his runs on a fairly
regular schedule, at some point he did not show up, and Mr.
Roberts got in his pickup and drove up the haul road looking for
along his route. (I-T. 217-218).

 After hauling overburden for one and one-half hours,

Complainant parked the truck allegedly because "the canopy on the
truck was unsafe" (I-T. 32) and he was due to start working in a
more dangerous area called the PPD. (I-T. 85).

 Before Mr. Roberts found Complainant, a significant incident

happened resulting in a conversation between Complainant and Head
Mechanic Wiener.

 Mr. Wiener was on the haul road near the maintenance

department and saw Complainant pull off the road and talk to
another truck driver. After finishing the talk, Complainant "let
the truck roll back . . . revved the engine up and dropped it
into first gear and took off." When he dropped it into first
gear, the front of the truck raised up on the suspension
approximately six inches. (II-T. 19, 24-27). The truck had a full
load at the time. Complainant then drove off. On what appears to
be the Complainant's next load, Mr. Wiener stopped him and told
him that he (Mr. Weiner) didn't want him to do that again, and
that if it happened again, Complainant would be sent home, to
which Complainant responded, "Do me a favor." Mr. Wiener gave
this account:

      A. He told me, do him a favor. That was his words.

      Q. Did he say anything else to you?

      A. No, he didn't.

      Q. Did he say anything about why he started the truck
      that way, why he revved it up and put it into gear?

      A. No.

      Q. Did he say anything to you about problems or
      concerns that he had with the safety of the truck?

      A. No, he didn't.

      Q. Did he say anything to you about a hole in the
      canopy or problems with the exhaust?

      A. No.

Q. So the only thing he said to you was, "Do me a favor."?

      A. Yes.

      Q. What did he do after that?

      A. What did I do or what did he do?

      Q. What did Larry do after that. Did he drive off?

      A. He drove off, yes. (II-T. 21).

 On August 13, 1989, Mr. Wiener was not aware of problems

with Truck 583 and in his conversation with Complainant on that
date, Complainant made no safety complaints or reference to
problems with the truck (II-T. 35, 42, 75-79, 83). Mr. Wiener did
not authorize Complainant to park the truck (II-T. 49).

 Later in the day in a conversation with Mr. Roberts, Mr.

Wiener learned that Mr. Roberts had sent Complainant home, and
that evening Mr. Wiener received a call from Rusty Giulio (II-T.
48) inquiring if he had observed Complainant abuse the
truck. (Footnote 4) At this point, Mr. Giulio had not made up
his mind about discharging Complainant. (II-T. 23) (Footnote 5)

 At approximately 7:30 a.m. (I-T. 220), Mr. Roberts came upon

Mr. Burns approximately midway along the one-half mile route
between the leach pad and the dump--near a junction of haul roads
and near the employee parking lot. (I-T. 218, 222). Mr. Roberts
remained in this pickup and Mr. Burns approached him in agitated
fashion, stating as he came up, "I am not driving that piece of

s___ anymore." Mr. Roberts credibly denied that Mr. Burns
expressed any safety problems or concerns with truck 583 in this
conversation. (I-T. 219, 220, 228). (Footnote 6)

 Mr. Roberts replied to Mr. Burns that "If you are not going

to drive the truck, then you'd just as well take your stuff and
go home." Mr. Burns made no offer to do other work. (I-T. 220).
Mr. Roberts had no other work for Mr. Burns to do. (I-T. 120,
214, 215, 220, 222, 223).

 Complainant, whose testimony I have found unreliable,

testified that he gave Mr. Roberts three reasons for not driving
the truck, i.e., "the canopy, the transmission, and the smoke
from the exhaust." (I-T. 42). (Footnote 7)

After Mr. Burns left, two other employees (oilers) approached

Mr. Roberts and asked him what had happened. Mr. Roberts told them
that he had sent Larry Burns home and they informed Mr. Roberts
that Head Mechanic Randy Wiener had, just previously, "jumped"
Mr. Burns about abusing the truck. (I-T. 221). As above noted,
later in the day Mr. Roberts discussed the matter with Randy
Wiener who confirmed "he had said something" to Mr. Burns about
abusing the truck, i.e., revving it up and dropping it into gear.
(I-T. 223).

 That evening Mr. Roberts called Rusty Giulio and advised him

of the problem he had with Mr. Burns, of what Mr. Wiener had told
him, and that he had sent Mr. Burns home "because he refused to
drive the old truck." (I-T. 224). Mr. Roberts also mentioned the
language Complainant used in referring to the truck (II-T. 147).
Mr. Giulio then contacted Randy Wiener and discussed the truck
abuse incident. He also called Superintendent Lance Power and
told him what he heard about the incident. Mr. Power advised
Giulio to do "whatever was necessary." (II-T. 149).

 Giulio then telephoned Complainant to discuss the matter,

and get Complainant's "side of the story." (II-T. 149, 168).
(Footnote 8) Giulio recounted the conversation as follows:

      A. I said I had heard there was a problem on the job
      today, and he said, "Yeah, there was, I'm not going to
      run that piece of s___."

      Q. He used the same language as with Mr. Roberts?

      A. That's correct.

      Q. What did you reply?

      A. I said, "If you're not going to run a truck, then I
      guess we don't have any use for you."

      Q. Did you discuss the abuse he had done to the equipment?

      A. No, he hung up on me then. (Footnote 9)

                               * * * * *

      Q. Was he hostile in talking with you?

      A. Yes, he got a little heated.

      Q. At any time during your discussion with Mr. Burns .
      . . did he raise any concerns to you at all about the
      condition of the truck or any safety and mechanical
      problems whatsoever?

      A. No. At no time that Larry worked on the mine site
      did he ever raise questions concerning safety. (II-T.
      149-150).

 Mr. Giulio, whose testimony I credit over that of

Complainant Burns for the reasons indicated in this decision,
also indicated that Complainant did not, during his conversation,
tell him anything to justify his actions (II-T. 150), and that
his impression was that Complainant simply was not going to drive
the truck. Thus, on cross-examination he gave these answers:

      Q. Had he agreed to drive the truck, would he have come
      in the next day?

      A. He wasn't going to drive it. As far as I could get
      out of him, he wasn't going to drive the truck anyway.

      Q. My question is, if he agreed to drive the truck,
      would you have said, "Show up at 6:00 tomorrow?"

      A. Yes.

      Q. You didn't inquire what his complaints were at all
      as to the truck?

      A. No, we didn't get that far. (II-T. 168-169).

 Mr. Giulio denied ever giving Complainant authority to rev

up the truck and drop it into gear. (II-T. 151). Mr. Giulio's
primary reason for terminating Complainant was for "abuse of
equipment (II-T. 150-151). He also took into consideration
Complainant's "conduct toward the other supervisors and personnel
and his attitude basically was smart and belligerent, and also
for the refusal to drive a truck." (II-T. 150-151).

 Truck No. 583 on August 13, 1989, was unsafe. (Footnote 10) (I-T.

175-176; Ex. C-1 to C-9; II-T. 129). On August 13, 1989,
supervisorial personnel Roberts, Wiener, and Giulio were unaware
of the unsafe condition of Truck 583. (I-T. 216, 220, 229, 231;
II-T. 9-10, 13, 35, 184).

B. RESPONDENT'S POLICIES AND PROCEDURES

  Respondent at material times had no "formal step"

disciplinary procedure or structured termination policy. (II-T.
135).

 Respondent relies to a considerable extent on so-called

"bitch slips" (shift tickets) to identify problems with
equipment. Equipment operators, including truck drivers, are
required to fill out bitch slips after each shift whether or not
a truck has problems, and a lack of problems is indicated by
checking a box thereon labeled "satisfactory." (I-T. 76, 103-104,
109-110; II-T. 11-12). The majority of bitch slips which were
turned in contain no request for repairs. (II-T. 97).

 Under Respondent's maintenance program, approximately 50

percent of equipment problems are detected through inspection.
Significantly, the rest are discovered through the participation
of equipment operators and drivers who either fill our shift
tickets, inform their supervisor, or bring equipment directly to
Chief Mechanic Randy Wiener and his personnel. (I-T. 76, 109,
112; II-T. 7-14, 87-88). (Footnote 11)

 Complainant, a short time prior to August 13, 1989, had

brought his regularly assigned truck (No. 589) directly in to the
maintenance shop for repairs and, at that time, referred to it as
"a piece of s." It was repaired immediately. (II-T. 16-18). It
is inferred from this and other evidence (I-T. 55, 77) that (a)
Complainant knew he could have had the canopy on No. 583 repaired
on August 13, 1989, by taking the truck directly to the
maintenance shop, and (b) Complainant, in conversations with
management personnel, repeatedly referred to the equipment he was
assigned to drive as a "piece of s," or other disparaging way.
In this connection, it is noted that Complainant conceded at
hearing that he was not aware of a single person who was ever
fired by Respondent because of having made a safety complaint
about equipment. (I-T. 76).

C. RESOLUTION OF CREDIBILITY

 I have generally credited the testimony of Respondent's

witnesses over the testimony of Complainant with respect to
whether Complainant made a safety complaint to Leach Pad Foreman
Roberts

on August 13, 1989, and whether supervisors Rusty Giulio and
Randy Wiener were aware of any safety problems with Truck 583.
Specifically, I have credited the denials of Roberts, Wiener, and
Giulio (1) that Mr. Burns made safety complaints about the truck
on August 13, 1989, and (2) that they were aware of safety
problems, including the hole in the canopy, at the time
Complainant Burns was discharged.

 Based on observation at the hearing of the demeanor of the

witnesses, the various reasons appearing in this decision, and
the convincing testimony of Respondent's witnesses, the accounts
of Complainant Burns have been determined not to carry the same
degree of reliability as those of Respondent's primary witnesses,
Roberts, Giulio, and Wiener.

 Additional factors weakening Complainant's testimonial

trustworthiness follow.

 Respondent established prior instances where Complainant had

quit a number of jobs when he had "cash in hand" and was
dissatisfied with working conditions. Thus, he quit one
truck-driving job after three months because he felt the trucks
were "junk." He quit another truck-driving job after five months
because he was unhappy with his tax burden while his sister was
on welfare. He quit another job partly because of what appears to
be problems with other persons and threats. (I-T. 80-85).
(Footnote 12)

 Although Complainant testified that being assigned to work

in the PD-44 area (an hour or so after he had commenced work on
August 13, 1989) increased the danger of driving the truck, (I-T.
32, 78), he thereafter saw Randy Wiener and made no safety
complaint to Mr. Wiener, much less asking that the truck be
repaired--a procedure he accomplished previously and which, I
infer from this record, would have been feasible for him to have
followed on the day he was discharged had he had genuine safety
concerns. (I-T. 83-87; II-T. 16-18).

 Complainant considered refusing to drive Truck 583 the first

time he was assigned to do so in July 1989. (I-T. 69). He also
considered complaining about it another time before August 13,
1989 (he only drove the truck two or three times during his
31-day employment) but alleged he thought he might be discharged
if

he did. (I-T. 69, 76). Yet, he admitted he was not aware of
anyone being discharged for making a safety complaint about
equipment. (I-T. 76). (Footnote 13)

                  DISCUSSION AND ADDITIONAL FINDINGS

 In order to establish a prima facie case of mine safety

discrimination under Section 105(c) of the 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 Co., 2 FMSHRC
2786, 2797-2800 (October 1980), rev'd on other grounds sub nom.,
and Secretary on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803, 817-818 (April 1981). The operator may rebut the
prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by
pretected 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, and (2) would have taken the adverse action in any
event for the unprotected activities alone. The operator bears
the burden of proof with regard to the affirmative defense. Haro
v. Magma Copper Co., 4 FMSHRC 1935, 1936-1938 (November 1982).
The ultimate burden of persuasion does not shift from the
Complainant. Robinette, 3 FMSHRC at 818 n. 20. See also Donovan
v. Stafford Construction Co., 732 F.2d 954, 958-959 (D.C. Cir.
1984) (specifically approving the Commission's Pasula-Robinette
test); and Goff v. Youghiogheny & Ohio Coal Company, 8 FMSHRC
1860 (December 1986).

 The disposition of this case turns on whether Complainant's

refusal to drive the truck was based on a belief (and reasonable
communication) that the truck was unsafe or whether it was due to
some subjective reasons and attitude, and whether Complainant
communicated any safety concerns to management personnel prior to
being discharged and, assuming that he did, whether he was
discharged for this protected activity or for the reasons
assigned by Respondent, meaning his non-protected activities,
abuse of equipment, insubordinate conduct, (Footnote 14) and
unexplained refusal to drive the truck.

 Under the Mine Safety Act, discriminatory motive may not be

presumed but must be proved. Simpson v. Kenta Energy, Inc. and
Jackson, 8 FMSHRC 1034, 1040 (1986).

 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, 2510-2511 (November 1981), rev'd on other grounds sub nom
Donovan v. Phelps Dodge, 709 F.2d (D.C. Cir. 1983); Sammons v.
Mine Services Co., 6 FMSHRC 1391, 1398-1399 (June 1984). The
instant record contains no reliable direct evidence that
Respondent was illegally motivated nor does it support a
reasonable inference of discriminatory intent.

 In reaching the conclusion that Complainant failed to

establish a prima facie case by failing to establish that his
discharge was discriminatorily motivated, consideration also has
been given to the fact that the instant record does not reflect a
disposition on the part of Respondent's management personnel,
individually, or collectively, to engage in such conduct. A
history of, or contemporary action indicating antagonism or
retaliatory reaction to the expression of safety complaints was
not shown.

 Although not elaborated on herein, Respondent established in

this record that it has at least a reasonable approach to safety
and that operators and drivers are encouraged to bring safety

problems into its repair shop immediately and directly for
repair. (I-T. 16, 108-110, 112-114, 131-132, 140, 224-226; II-T.
7-10, 13, 36-37, 87, 88).

 Further, I have credited the version of the facts of

Respondent's supervisorial witnesses with respect to the question
of whether Complainant made safety complaints concerning Truck
No. 583 on August 13, 1989, and find that no such complaints were
registered. (Footnote 15) Thus, in this respect also, Complainant
failed to establish the prerequisites of a prima facie case under the
Act, since the unexplained work refusal is not an activity
protected under the Act. Dillard Smith v. Reco, Inc., 9 FMSHRC
992 (June 1987).

 Finally, even assuming for the sake of argument that such

complaints were made, Respondent established by a preponderance
of credible and reliable evidence that its reasons for
discharging Complainant were his abuse of equipment together wih
his hostile conduct and approach to driving Truck No. 583.
(Footnote 16) Stated another way, Respondent carried its burden--even
under the hypothesis that a safety complaint had been made--that it was
motivated by Complainant's unprotected activities and that it had
good reasons and would have taken the adverse action in any event
for such.

 It is concluded that Complainant Burns was discharged for

the reasons assigned by Respondent, abuse of equipment, together
with his accompanying belligerent attitude and conduct toward his
supervisors and the circumstances of his refusal to drive Truck
No. 583. It is further found that Respondent's management had

sufficient basis in terms of both business and disciplinary
reasons to justify the discharge of Complainant.

 As the Commission stated in Bradley v. Belva Coal Company, 4

FMSHRC 981, 991 (June 1982): "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."

 The record in this matter is convincing that Respondent was

motivated for the reasons and justifications it claims.
Complainant's evidence was not found to be persuasive that his
discharge was due in any way to any alleged expression of safety
complaints.

                              CONCLUSIONS

 Respondent's motivation in discharging Complainant was for

his unprotected activities and the decision to take such adverse
action was justified. This adverse action was not wholly or in
part discriminatorily motivated. Thus, Complainant has failed to
establish a prima facie case of discrimination under Section
105(c) of the Mine Act.

 Even assuming arguendo, that it was established by a

preponderance of the reliable probative evidence, that
Complainant's discharge was motivated in part by protected
activities, Respondent established by a clear preponderance of
such evidence that it was also motivated by Complainant's
unprotected activities and that it would have taken the adverse
action in any event for such. Gravely v. Ranger Fuel Corp., 6
FMSHRC 729 (1984).

                                 ORDER

 Complainant, having failed to establish Mine Act

discrimination on the part of Respondent, the Complaint herein is
found to lack merit and this proceeding is DISMISSED.

                            Michael A. Lasher, Jr.
                            Administrative Law Judge

Footnotes start here:-

 1. The Federal Mine safety and Health Act contains no

provision with respect to whether the claim of an employee for
back pay and other monetary remedies survives his subsequent
death. With some few exceptions, the federal statutes contain no
express provisions for survivability of causes of action in the
federal courts (1 Am. Jur. 2d, Abatement, Survival and Revival, S
112, p. 128), and where no specific provision for survival is
made by federal law, the cause survives or not according to the
common law. At common law, the basic principle of survivability
is that survivable actions are those in which the wrong
complained of affects principally property and property rights,

including monetary interests, and in which any injury to the
person is incidental, whereas nonsurvivable actions are those in
which the injury complained of is to the person and any effect on
property or property rights is incidental. Pierce v. Allen B. Du
Mont Laboratories, Inc., 297 F.2d 323 (3d Cir. 1961); 1 Am. Jur.
2d Abatement, Survival and Revival, S 51, p. 86.

 2. The hearing was held on two hearing days, January 30 and

31, 1991. For both days of hearing there is a separate transcript
beginning with page one. Accordingly, the transcript citations
will be prefaced with "I" and a "II" for January 30 and January
31, respectively.

  3. No. 583 was an "A" model with a three-speed automatic

transmission; No. 589, a "B" model, was equipped with an
automatic seven-speed transmission. (I-T. 32, 76, 215; II-T.
152).

 4. Complainant's action in revving up the engine of the

truck "real high" and throwing it into gear, as observed by Mr.
Wiener, is found to constitute severe abuse of the power train
(I-T. 224; II-T. 20, 24-32) which could have resulted in repair
costs of $5,000 to $15,000. (II-T. 31, 32).

 5. The record is clear that Mr. Roberts' sending Complainant

home earlier did not constitute a discharge.

 6. Mr. Roberts explained the reasons for his certainty in

this connection:

      Q. You have stated that Larry Burns just described this

truck in general terms, and you have stated that he did not tell
you about any of the problems with the truck.

      A. No, he didn't.

      Q. Are you sure that he didn't, or do you not recall

him doing so?

      A. I am sure he didn't, and the reason that I am sure

is because it was brought to my attention the first thing the
next morning.

      Q. Who was that brought to your attention by?

      A. Lance Power asked me what had taken place, and he

wanted to know word for word of what he said, because an MSHA
inspector was coming up on the job. (I-T. 228).

 7. Of the three reasons allegedly given to Mr. Roberts, the

hole in the canopy was the most serious. After being discharged
in the evening of August 13, 1989, Complainant made a complaint
to MSHA and the following day (August 14) two citations were
issued on the canopy and transmission, and on August 16, a
citation was issued on the exhaust (Exs. C-1 through 9). It is
found that Truck 583 was in unsafe condition on August 13, 1989.

 8. Giulio specifically testified that at this juncture he

had not made up his mind what action to take regarding
Complainnant. (II-T. 150, 167, 168, 169, 177).

 9. While Mr. Giulio subsequently added to his testimony that

he also told Complainant that "we couldn't handle equipment
abuse." (II-T. 150, 167, 168, 169, 177). I do not consider this
an inconsistency in his testimony since discussion of equipment
abuse was cut off by Complainant's hanging up the phone.
Complainant's accounts of this conversation are essentially the
same as Mr. Giulio's, other than when testifying as a rebuttal
witness Complainant did not mention that it was for safety
reasons that he refused to drive the truck (I-T. 44, 71,; II-T.
214-215). On the issue of whether Complainant voiced safety
complaints concerning Truck 583, it is also observed that the
accounts of Messrs. Giulio, Weiner, and Roberts, are relatively
steady throughout, whereas Complainant engaged in a major
"perfecting" of his testimony on rebuttal (II-T. 213-214) from
that on his case in chief. (I-T. 42, 71).

 10. Nevertheless, as noted elsewhere in this decision, this

does not excuse Complainant's abuse of the truck, neutralize the
legal effect of the failure of Complainant to communicate safety
concerns to his supervisors, or justify his belligerent,
provocative behavior toward supervision. There is considerable
evidence in the record overall that Complainant's essential
motivation in refusing to drive the truck was less of a safety
concern than it was for some personal, subjective resentment and
desire to terminate employment. It is ultimately concluded herein
that Respondent's motivation in discharging Complainant was not
due to anti-safety motivation or other discriminatory intent
cognizable under the Act.

 11. During Mr. Wiener's three-year tenure as head mechanic,

there were no accidents at the mine due to unsafe equipment.
(II-T. 13).

 12. Complainant was employed by Respondent only a total of

34 days. (I-T. 80).

 13. Complainant's own witness, Project Office Manager Opal

Holsworth, also conceded this major point in Respondent's favor
in the following colloquy:

      Q. Would you believe any employee who refused to drive

a piece of equipment or a truck because it was unsafe would be
fired?

      A. I don't believe that any employee would have been

fired, because sometimes employees did more severe things than
refused to drive a truck and got fired, and other people didn't
do hardly anything and got fired. It just depended on the person
that was bein taken into consideration. (I-T. 140).

 14. The use of profanity in the belligerent context

Complainant used it in on August 15 can itself be an unprotected
activity sufficient upon which a discharge can be legitimately

based. Hicks v. Cobra Mining, Inc., 18 FMSHRC 623, 532 (April
1991).

 15. Since Complainant, at the time he refused to drive the

truck, did not communicate his alleged safety concerns to Mr.
Roberts (or later to Mr. Giulio) Respondent had no opportunity to
understand the basis for the refusal and to take any corrective
action. See Conatser v. Red Flame Coal Company, Inc., 11 FMSHRC
12 (January 1989).

 16. Rather than taking the truck to the maintenance

department for repair, Complainant parked it, refused to drive
it, was insubordinate, and this attitude and conduct precipitated
his discharge. By analogy to the concept of a mine operator's
constructive discharge of an emloyee, Complainant's actions
approached being a constructive resignation. In this case, it
appeared that Complainant forced the issue, that is, he forced
the adverse action taken against him.