Twentymile Coal Company

Plain-English summary

Ross S. Stewart alleged that Twentymile Coal Company terminated him in retaliation for reporting alcohol concerns, questioning the safety of shuttle-car wheel rims, and testifying in another Mine Act case. The judge found those activities were protected, but concluded that the discharge was motivated by the company's belief that Stewart was sleeping on the job and would have occurred for that reason alone. The complaint was dismissed.

Decision snapshot

• Cited provision: 30 U.S.C. § 815(c)
• Outcome: The discrimination complaint was dismissed.
• Key point: Protected safety activity does not establish discrimination when the evidence shows the adverse action was based on separate, unprotected conduct.

Full text (FMSHRC public release)

[DOCID: f:w-95-27.wais]

TWENTYMILE COAL COMPANY
May 7, 1996
WEST 95-27-D

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1244 SPEER BOULEVARD #280
                  DENVER, CO 80204-3582
              303-844-3577/FAX 303-844-5268


                       May 7, 1996

ROSS S. STEWART, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. WEST 95-27-D
v. :
:
TWENTYMILE COAL COMPANY, : Foidel Creek Mine
Respondent :

                        DECISION

Appearances: Brian L. Lewis, Esq., Denver,
Colorado, for Complainant;
R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania,
for Respondent.

Before: Judge Manning

 This case is before me on a complaint of discrimination

brought by Ross S. Stewart against Twentymile Coal Company
("Twentymile") under section 105(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 815(c)(1988)("Mine Act").
For the reasons set forth below, I find that Mr. Stewart did not
establish that his discharge by Twentymile was motivated by his
protected activity. Accordingly, I find that Mr. Stewart was not
discriminated against by Twentymile in violation of the Mine Act.

 Mr. Stewart filed a discrimination complaint with the

Department of Labor's Mine Safety and Health Administration
("MSHA") pursuant to section 105(c)(2) of the Mine Act, 30
U.S.C. � 815(c)(2). MSHA concluded that the facts disclosed
during its investigation did not constitute a violation of
section 105(c). Mr. Stewart then instituted this proceeding
before the Commission pursuant to section 105(c)(3), 30 U.S.C.
� 815(c)(3). A hearing was held in Steamboat Springs, Colorado.
The parties presented testimony and documentary evidence, and
filed post-hearing briefs.

                    FINDINGS OF FACT

 Mr. Stewart was employed by Twentymile at the Foidel Creek

Mine for about ten years. During that period, he held a number of
positions with Twentymile and was a shuttle car operator at the time
of his discharge. The Foidel Creek Mine is an under ground coal mine
in Routt County, Colorado, and employs about 280 people.

 On the day shift of May 16, 1994, Mr. Stewart was operating

a shuttle car in a continuous miner section. The section was
developing entries in preparation for longwall mining.
Two shuttle cars weretransporting coal from the continuous mining
machine to the belt. The shuttle cars dumped the coal at the feeder
breaker for the belt. In a typical shift, Mr. Stewart would make about
50 trips from the continuous miner to the feeder breaker. A shuttle
car is a large piece of mobile mining equip- ment. The operator sits
in a small compartment and faces the opposite side of the shuttle car.
He can see to the front and back of the shuttle car through openings in
the operator's compartment.

 Allen Meckley was Mr. Stewart's supervisor from late Septem-

ber 1993 through May 16, 1994. On May 16 Mr. Meckley was in the vicinity
of the feeder breaker when he observed Mr. Stewart dump several loads of
coal. On one trip Mr. Meckley noticed that the conveyor on the shuttle
car continued to operate after all of the coal was dumped. (Tr. 419).
Because Mr. Stewart did not back away from the feeder breaker after the
coal was dumped, Mr. Meck- ley was concerned that Mr. Stewart was asleep.
(Tr. 431, 499). Meckley approached the shuttle car and stood to the side
of the operator's compartment. Mr. Stewart did not react to his presence.
(Tr. 500). Mr. Stewart's head was down, his hands were in his lap, and
Mr. Meckley believed that his eyes were closed. (Tr. 30, 154-55, 430, 500-01).
The conveyor of the shuttle car was still running. (Tr. 27, 154). Meckley
tapped Stewart on the shoulder. When Stewart looked up, Meckley said, "Ross,
are you sick?" (Tr. 28, 419, 501). Mr. Stewart replied, "No." Id. Meckley
told Stewart to park his shuttle car and get his lunch. They then proceeded out
of the mine. On the way out Meckley said, "I think you know why we are going
outside, I told you the next time I caught you sleeping we were going out.
" (Tr. 32-33, 157, 435, 501-02). Mr. Stewart replied, "Yeh, I know"
or "If that's what you want to call it." (Tr. 33, 435).

 At the surface, Mr. Stewart was advised that he was suspended pending an

investigation as to the appropriate discipline. Mine management conducted
an investigation into the matter, met with Mr. Stewart to obtain his views,
and reached the conclusion that he should be terminated for sleeping on the job.
In reach- ing this conclusion, management took into consideration Mr. Meckley's
belief that he caught Mr. Stewart sleeping underground in October 1993 and in
December 1993. Mr. Stewart admits that he was drowsy when Mr. Meckley observed
him in December 1993, but denies that he was asleep on May 16, 1994. (Tr. 143-44).

 Mr. Stewart maintains that he was terminated for engaging in

activities that are protected under section 105(c)(1) of the Mine Act.
30 U.S.C. � 815(c)(1). First, he contends that he com- plained to

management that Mr. Meckley and other members of
the crew reported to work with the smell of
alcohol on their breath. Second, he argues that
he complained about the safety of the wheel rims
on his shuttle car. Third, he maintains that he
testified at a hearing before former Administrative
Law Judge John A. Morris in a discrimination proceeding
brought by Fred Peters against Twentymile. Mr. Stewart
contends that these activities were protected under the
Mine Act and that he was terminated, at least in part,
because of these activities.

                   SUMMARY OF THE LAW

 Section 105(c)(1) of the Mine Act protects miners from

retaliation for exercising rights protected under the Mine Act.
The purpose of the protection is to encourage miners "to play
an active part in the enforcement of the Act" recognizing that,
"if miners are to be encouraged to be active in matters of safety
and health, they must be protected against any possible discrimination
which they might suffer as a result of their participation."
S. Rep. No. 181, tb Cong., 1st Sess. 35 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 623 (1978).

 A miner alleging discrimination under the Mine Act estab-

lishes a prima facie case by proving that he engaged in protected
activity and 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, 2799-2800 (October 1980),
rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211(3d Cir. 1981). The mine 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
the protected activity. Secretary on Behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981).
If an operator cannot rebut the prima facie case in this manner,
it may nevertheless affirmatively defend by proving that it was
also motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected activity
alone. Haro v. Magma Copper Co., 1935, 1937 (November1982).

 Because direct evidence of actual discriminatory motive is

rare, illegal motive may be established through circumstantial
evidence or 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 subnom. Donovan
v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). Examples of
circumstantial evidence that tend to show discriminatory intent
on the part of the mine operator include: (1) knowledge of the
protected activity; (2) hostility or animus towards the protected
activity; (3) coincidence in time between the protected activity
and the adverse action; and (4) disparate treatment of the complainant.
Chacon, 3 FMSHRC at 2510.

        DISCUSSION WITH FURTHER FINDINGS OF FACT
                           AND
                   CONCLUSIONS OF LAW

 There is no doubt that Mr. Stewart had a statutory right to

voice his concerns about the safety of his workplace without fear
of retribution by management. I find that Mr. Stewart's com-
plaints about alcohol use and the safety of the wheel rims of the
shuttle car, and his testimony at the Peters hearing were protected
under the Mine Act. The issue is whether his discharge was
motivated in any part by this protected activity.

1. Testimony at the Peters Hearing

   Mr. Stewart was subpoenaed to testify at hearing before
   former Administrative Law Judge John A. Morris in Fred L.
   Peters v. Twentymile Coal Company. Mr. Stewart contends
   that Twenty-mile's decision to terminate him was motivated,
   at least in part, by the fact that he testified in this
   proceeding. The hearing was held on December 8, 1992. The
   adverse action in that case was a letter of discipline that
   was placed in Mr. Peters' file. In his decision, Judge
   Morris dismissed the discrimination com-plaint because he
   determined that the adverse action was not motivated in any
   part by Mr. Peters' protected activity. 15 FMSHRC 704, 734
   (April 1993). Stewart believes that his partici-pation in
   the hearing angered mine management. He points to the fact
   that other employees were allowed to carry over vacation
   time from one year to the next and that he lost vacation
   days because he did not use them by a certain date. (Tr.
   60-63). He attributes this disparate treatment to the fact
   that he testified at the Peters hearing. (Tr. 61).

   I find that Mr. Stewart's termination was not motivated
   in any part by the fact that he testified at the Peters
   hearing. First, it is worth noting that Mr. Peters, the
   complainant in that case, is still employed by Twentymile.
   It is highly unlike-ly that Twentymile would be motivated,
   in whole or in part, to terminate an employee because he
   testified under subpoena in a Commission proceeding while
   retaining the employee who brought the case in the first
   place. Other miners were subpoenaed to testify in that case
   and did not suffer any adverse consequences. (Tr. 105-07).
   It does not appear from the judge's decision that Mr.
   Stewart's testimony was particularly important in that case.

   Mr. Stewart lost his vacation days well before the Peters
   hearing. The record demonstrates that a number of employees
   including Mr. Stewart were allowed to carry over 1991
   vacation leave into early 1992. He lost the vacation days
   that he carried over because he did not use them by March
   31, 1992.[1] The Peters hearing was held on December 8,
   1992. Thus, he did not lose vacation days in retaliation
   for his testimony.

   Finally, I credit the testimony of the applicable
   management witnesses that they did not consider the fact that
   he testified in the Peters case when they determined that
   Stewart should be terminated. Mr. Meckley was not involved
   in the Peters case and was an hourly employee at the time of
   the hearing. Ronald K. Spangler, Twentymile's manager of
   human resources, was a key player in the decision to
   terminate Mr. Stewart. He was not employed by Twentymile at
   the time of the Peters hearing.Mr. Spangler testified that,
   during his investigation of the Stewart matter, the Peters
   hearing was only mentioned once. He was told by Daryl Firestone
   that Mr. Stewart was under the mis-taken belief that Twentymile
   management was mad at him for testi-fying at the Peters hearing.
   (Tr. 298, 350-51). Mr. Firestone was Peters' supervisor who
   issued the disciplinary letter that was the subject of that case.
   Mr. Spangler further testified that Firestone told him that
   Stewart's testimony was "more in favor of the Company." Id.
   Mr. Firestone testified that he was present when Stewart
   testified at the Peters hearing and believed that his
   testimony supported the company. (Tr. 634, 636). I
   conclude that Mr. Spangler did not consider Stewart's
   participa- tion at the Peters hearing when he recommended to
   the general manager that Stewart be terminated. William
   Ivy, general manager at Twentymile, made the ultimate
   decision to terminate Mr. Stewart and he testified that
   Stewart's participation in the Peters hearing was not a factor
   in his decision to terminate Mr. Stewart. (Tr. 595).

2. Split Rim Complaint

   In May 1991, Mr. Stewart refused to operate his shuttle
   car because he believed it to be unsafe. (Tr. 97-98; Ex. R-4).
   Spe- cifically, he complained about the split rim wheel
   assembly on the shuttle car. He contends that the rim
   exploded and a nearby miner could have been injured. (Tr.
   54-55). Each wheel rim on his shuttle car consisted of two
   pieces that were designed to be held together by the air
   pressure in the tire. Mr. Stewart be- lieved that the rims
   were faulty and created a safety hazard. There is no
   question that this complaint was protected under the Mine
   Act.

   I find, however, that Mr. Stewart's termination was not
   motivated in any part by his complaint. The split rim
   incident was remote in time from the events in May 1994 that
   resulted in his termination. Mr. Meckley was not his
   supervisor in May 1991, but was an hourly employee on his
   crew. He has no recollection of the complaint. (Tr. 468-
   69). Mr. Spangler did not work for Twentymile at the time
   of the split rim complaint and did not learn about it until
   after Mr. Stewart was terminated. (Tr. 323). Mr. Stewart
   did not raise this issue with Mr. Spangler during their
   meeting of June 2, 1994, when he was given the opportunity
   to present his views. (Ex. R-18). Mr. Ivy, the general
   manager, testified that he remembers hearing that about
   problems with the rims but he does not recall any of the
   details. (Tr. 602).

   When Mr. Stewart complained about the safety of the wheel
   rims, his supervisor, Mr. Firestone, looked into the matter.
   (Tr. 637-38). Mr. Stewart's complaint was that the locking
   ring tab was not connected on the wheel rim. (Tr. 88, 539,
   637-38, 656). Mr. Firestone discussed the matter with the
   shift foreman. Id. Joseph F. Hampton, a maintenance
   supervisor, and William G. Kendall, the manager of
   maintenance for Twentymile, called the company that supplied
   tires and rims for the mine. (Tr. 540, 656-57). The
   supplier replied that the locking tabs are neces- sary only
   when the tire is being inflated and that they were not
   necessary after that. (Tr. 540, 659-62). Mr. Kendall met
   with a representative of the rim supplier to discuss the
   split rim is- sue. He circulated a memorandum on May 24,
   1991, explaining why the locking tabs are not necessary
   after the tire is inflated. (Tr. 658-59; Ex. R-4). Mr.
   Hampton also discussed the matter with Stewart. (Tr. 541-
   42).

   Mr. Stewart relies heavily on the fact that Twentymile
   had to scrap the wheel rims on his shuttle car as a result of
   his complaint, at a cost of up to $24,000.00,[2] and that
   the shuttle car was shut down for several hours. The record
   reveals that the rims had to be replaced because Frank
   Pavlisick, a maintenance foreman, welded the two parts of
   the wheel rims together without consulting his supervisors.
   (Tr. 662-63). The welding was un- safe and damaged the
   wheel rims. Id. It is apparent that mine management was
   concerned about the welding rather than Mr. Stew- art's
   safety complaint. (Tr. 663). There is no credible evi-
   dence that the company held Mr. Stewart accountable for this
   matter. In addition, I cannot draw a reasonable inference
   of discriminatory intent. Management handled his complaint
   with the same degree of concern that it does all safety
   complaints. The record makes it clear that employees
   frequently shut down equip- ment for safety reasons and that
   employees are not disciplined for such conduct. Mr. Stewart
   did not have a history of shutting down equipment for safety
   reasons. (Tr. 98). He was not discip- lined at the time of
   these events and I find that his termination was not
   motivated, directly or indirectly, by this safety complaint.

3. Alcohol Use Complaints

   Mr. Stewart complained to management that miners were
   coming to work with the smell of alcohol on their breath. His
   concern was that the miners' judgment could be impaired and
   that mine safety was affected. Mr. Stewart testified that
   about four or five miners would come to work with the smell
   of alcohol on their breath. (Tr. 42-43). One of these
   miners was Allen Meckley, who was a bolter on his crew at
   the time. Stewart contends that when Meckley became his
   supervisor in September 1993, Meckley set out to get him
   fired in retaliation for his protected activity. He
   believes that Meckley harbored a grudge against him because
   of these complaints.

   All of the evidence relied upon by Mr. Stewart is circum-
   stantial. Mr. Stewart maintains that Mr. Meckley was
   overtly hostile from the moment he became his supervisor.
   He argues that the issue of whether Twentymile had cause to
   discharge him "boils down to a `swearing contest' between
   Mr. Stewart and Mr. Meck- ley." (Br. at 5). Stewart
   contends that because Meckley had an ulterior motive for
   alleging that he was sleeping, Meckley's testimony should
   not be credited. Mr. Stewart points to the fact that
   Meckley admitted that Stewart did not get along well with
   his fellow crew members. (Br. 7; Tr. 475). Stewart
   contends that the crew had a grudge against him because he
   was a "snitch". He points to the testimony of Charles L.
   Moss to support his position. Moss testified that when he
   was the crew's foreman, one of the crew members complained
   to him that Stewart was a snitch. (Tr. 180). In addition,
   Stewart testified that Hansel Burum, a former member of the
   crew, told him that he was a snitch. (Tr. 66). Finally,
   Stewart heard rumors in Craig, Colorado, where he lived,
   that "Allen [Meckley] finally got me." (Tr. 73).

   Mr. Stewart discussed his concern about alcohol use with
   several of the mine's supervisors. When Mr. Moss was his
   super- visor, he complained that members of the crew had
   alcohol on their breath. (Tr. 182-83). On at least one
   occasion, Mr. Moss checked it out and could not detect any
   alcohol on the individu- al's breath. (Tr. 190-91). Around
   February 1993, Stewart com- plained to Mr. Ivy about alcohol
   abuse at the mine. (Tr. 47-49, 112, 389, 595-99). He did
   not name any particular individuals. Mr. Ivy discussed the
   issue in a general manner at a crew meet-ting. Apparently
   several members of the crew made snide comments to Stewart
   about this. Mr. Meckley, who was a bolter at the

   time, did not make any comments. (Tr. 118). Stewart also
   testified that he complained to Meckley, when Meckley was
   his supervisor. (Tr. 42-47). Stewart said that Meckley did
   not have any particular response. Meckley could not recall any
   such discussion. (Tr. 469).

   There is no direct evidence linking Mr. Stewart's termina-
   tion with his complaints about alcohol use. Mr. Stewart
   main-tains that there is "ample circumstantial indicia of
   discrimina-tory intent ... ." (Reply Br. at 4). I used a
   two-step process to analyze this issue. First, I considered
   the guidelines set forth by the Commission in Chacon, 3
   FMSHRC at 2510, to determine whether I could draw a
   reasonable inference of discriminatory intent. Second, I
   examined the facts surrounding Mr. Stewart's termination to
   determine whether his termination appeared to be internally
   consistent with Twentymile's position.

   The first factor set forth in Chacon is whether the company
   had knowledge of the protected activity. I find that there
   is sufficient circumstantial evidence to establish that
   Meckley had knowledge of Mr. Stewart's complaints about
   alcohol use, despite the fact that he could not recall such
   complaints at the hearing. Mr. Spangler testified that he
   did not know that Mr. Stewart had complained about alcohol
   use at the time he recommended that Mr. Stewart be terminated
   for sleeping on the job. (Tr. 323). He was not employed at
   Twentymile at the time of the complaints. Mr. Hampton could
   not recall that Mr. Stewart complained about alcohol use.
   (Tr. 554). Mr. Ivy remembers meeting with Stewart at the end
   of a shift in February 1993, but could not recall the contents
   of the discussion. (Tr. 595-96). Mr. Ivy stated that they may
   have discussed alcohol and he may have raised it at a crew meeting.
   (Tr. 596-97). Accordingly, I find that mine man- agement had
   knowledge of the protected activity.

   The next factor is whether there was hostility or animus
   towards the protected activity. I find that circumstantial
   evi- dence does not establish such hostility or animus.
   Management witnesses testified that they would not tolerate
   miners coming to work under the influence of alcohol or
   drugs. (Tr. 182, 595-96). I credit this testimony. There
   is no evidence, other than the testimony of Mr. Stewart,
   that anyone came to work with alcohol on his breath or was
   under the influence of alcohol at the mine.[3] Mr. Meckley
   denied that he ever came to work with alcohol on his breath
   and does not remember the issue being raised. (Tr. 469-70).
   Mr. Moss testified that when he was the crew's supervisor,

   Meckley never came to work with alcohol on his breath.
   (Tr.182). Some of Stewart's fellow crew members mocked him
   about his complaints in 1993 but I cannot draw an inference
   that this was a factor in his termination. Mr. Stewart
   relies on the fact that he did not get along with the other
   members of the crew to estab- lish that there was hostility
   towards his protected activity. I find that the animus
   directed towards Mr. Stewart by the crew and his immediate
   supervisors was the result of the fact that they believed
   that he did not pull his weight on the crew. (Tr. 179-181,
   183-84, 187-89, 193, 195-6, 207-08, 211-12, 322-23, 465,
   475-76, 488-89, 544-46, 554, 641, 647). I cannot ascertain
   whether or not Mr. Stewart was a hard worker, but the
   evidence shows that he was perceived as someone who was
   reluctant to help others on the crew and the crew sometimes
   gave him a hard time as a result. Id.

   The third Chacon factor is the coincidence in time between
   the protected activity and the adverse action. Mr.
   Stewart's complaints about alcohol use occurred well before
   his termina- tion. He was very vague about when he made
   these complaints, but it is clear that the complaint to the
   general manager was made around February 1993, about 15
   months before his discharge.
   Mr. Meckley was his supervisor for about eight of these
   months. While it is certainly possible for a supervisor to
   hold a grudge for 15 months and take action in retaliation
   in the manner de- scribed by Mr. Stewart, I cannot make such
   an inference in this case. The linkage is simply too
   tenuous to reach such a conclusion.

   The final factor is whether there was disparate treatment of
   the complainant. This factor is difficult to analyze
   because there is no evidence that other employees complained
   that miners were coming to work with the smell of alcohol on
   their breath. As stated above, however, I credit the
   testimony of management witnesses that the company would not
   tolerate employees coming to work under the influence of
   alcohol. In addition, other employ- ees who were caught
   sleeping at work were terminated unless man- agement
   determined that there were mitigating circumstances. One
   employee was discharged for sleeping underground. (Tr. 395-
   96). Two other employees were caught sleeping in a truck on
   the sur- face and were given a two-week suspension, lost all
   bonus pay, and were placed on probation for a year. (Tr.
   224, 393). Mr. Spangler determined that they should not be
   terminated be- cause it was a first offense, they were not
   operating equipment at the time, their supervisor was against
   termination, and they cooperated during Twentymile's
   investigation of the incident. (Tr. 391-94). I credit Mr.
   Spangler's testimony describing the reasons why Mr. Stewart
   was terminated and these other two miners were not. I find
   that Mr. Stewart failed to establish disparate
   treatment. I cannot draw a reasonable inference that he was
   treated differently because of his safety complaints.[4]

   Twentymile's stated reason for terminating Mr. Stewart is
   consistent with the evidence. The testimony about the
   events of May 16, 1994, differ in some of the details.
   Stewart testified that Meckley approached him from the left
   and tapped him on his left shoulder, while Meckley testified
   that he observed Stewart from the right side and tapped his
   right shoulder. (Tr. 423-26, 693). Stewart testified that
   Meckley could not have determined that his eyes were closed
   or that he was sleeping because of the design of the cab on
   the shuttle car. (Tr. 22) He further stated that Meckley's
   testimony that he tapped Stewart on the right shoulder is
   not credible because the right side of the shuttle car was
   against the coal feeder. (Tr. 693-94). Meckley testified
   that there was enough space for him to stand to the right of
   the cab. (Tr. 422-24; Ex. R-39). Stewart testified that
   his eyes were open and that he kept the conveyor on his
   shuttle car running to make sure that all of the coal was
   dis- charged onto the feeder breaker. (Tr. 29-31). He
   testified that he had on his ear plugs and did not see or
   hear Meckley until he tapped him on his shoulder. Id. He
   stated that he immediately turned to Meckley and asked him
   what he wanted. Id.

   These discrepancies are not as significant as Mr. Stewart
   believes and do not provide a basis for discrediting
   Meckley's testimony. I find that Mr. Meckley had an honest,
   good faith belief that Mr. Stewart was asleep on May 16,
   1996. I also find that Meckley believed that Stewart was
   asleep in his shuttle car at the feeder in October 1993.
   (Tr. 445-47). Meckley verbally warned him not to sleep
   underground. Id. Meckley also believed that Stewart was
   asleep on December 21, 1993. In that incident, the operator
   of the continuous miner and Meckley signaled Stewart to tram
   his shuttle car forward to be loaded with coal. (Tr. 448-
   49). Stewart did not respond to the signal. Meckley
   approached Stewart and said, "Ross, Ross, you need to get a
   load." (Tr. 449).

   Mr. Spangler had worked at Twentymile for about six weeks
   when Stewart was suspended on May 16. As the human
   resources manager, he was responsible for investigating the
   incident. He performed a thorough, independent and
   professional investigation into the matter. I find his
   testimony to be particularly persua- sive and credible. He
   made several attempts to get Stewart's position on the
   incident. Mr. Spangler believes that Stewart was
   uncooperative and evasive during the investigation. As
   discussed above, Spangler knew very little about any of
   Stewart's protected activities and knew nothing about his
   complaints concerning the smell of alcohol. I credit his
   testimony that Stewart's protec- ted activities were not a
   factor he considered in recommending that he be terminated.
   I believe that if Meckley had set Stewart up in retaliation
   for his safety complaints, it is likely that Spangler would
   have uncovered it.

   Mr. Stewart contends that Twentymile's hostility toward him
   can be inferred because of its "irregular handling of [his]
   ter- mination." (Br. at 9). He bases this argument on the
   fact that Mr. Meckley's notes regarding the sleeping
   incidents were not kept in Stewart's personnel file and the
   company failed to follow its own internal disciplinary
   procedures. Twentymile's discipli- nary system is rather
   informal and subjective. It has a set of procedures known
   as the Green Answer Book, that it follows when dealing with
   personnel issues. (Ex. R-28). I find that Twenty-mile
   generally followed its procedures and Mr. Spangler gave
   Mr. Stewart an opportunity to present any mitigating
   factors. The Mine Act does not mandate any particular type
   of disciplinary system. I do not have the authority to
   determine whether Mr. Stewart's discharge was fair or reasonable.
   The "Commission does not sit as a super grievance board to judge
   the industrial merits, fairness, reasonableness, or wisdom
   of an operator's employment policies except insofar as those
   policies may conflict with rights granted under section
   105(c) of the Mine Act." Delisio v. Mathies Coal Co., 12
   FMSHRC 2535, 2544 (December 1990)
   (citations omitted).

   I conclude that Mr. Stewart's discharge did not violate
   section 105(c) of the Mine Act. I find that Mr. Stewart
   engaged in protected activity but that his termination was
   not motivated in any part by his protected activity. I also
   find that, even if his protected activity were a factor, he
   would have been termi- nated in any event for his
   unprotected activity alone.

                         ORDER
   

Accordingly, the complaint filed by Ross S. Stewart against
Twentymile Coal Company under section 105(c) of the Mine Act
is DISMISSED.

                          Richard W. Manning
                          Administrative Law Judge

Distribution:

Brian L. Lewis, Esq., 10200 E. Girard Avenue, No. B-233, Denver,
Colorado 80231-5508 (Certified Mail)

R. Henry Moore, Esq., BUCHANAN INGERSOLL, One Oxford Tower, 20th
Floor, 301 Grant Street, Pittsburgh, PA 15219-1410
(Certified Mail)

RWM

FOOTNOTES

Other employees who were allowed to carry over vacation days
from 1991 to 1992 did not lose any of this leave because they
used it before the deadline of March 31, 1992. Mr. Stewart lost
10 days of vacation because he failed to use them in time, rather
than in retaliation for protected activity under the Mine Act.

It is not clear from the record how many of the rims had to be
replaced. For the purposes of Mr. Stewart's argument, I assume
that all four were replaced.

Mr. Peters, however, had been in alcohol abuse counseling and
Mr. Firestone smelled alcohol on his breath on one occasion.
(Tr. 639-40; 15 FMSHRC at 721).

Mr. Stewart also contends that there were other instances where
he was mistreated because of his safety complaints. He states
that he was temporarily transferred to another crew, tem-
porarily removed from his position as shuttle car operator, and
lost some vacation leave because of his protected activity. He
did not lose any pay or benefits because of these transfers.
Based on the record, I find that the temporary reassignments and
loss of vacation time were unrelated to any of his protected
activities.