Barrick Goldstrike Mines, Inc.

Plain-English summary

Donald S. Wallace alleged that Barrick Goldstrike Mines fired him in retaliation for safety-related communications and efforts to establish a miners' representative. Judge Arthur J. Amchan found that Wallace's radio instruction to skip a scheduled lunch break was not protected activity and that the evidence did not connect his discharge to his other protected communications with MSHA or management. The discrimination complaint was dismissed.

Decision snapshot

• Cited provision(s): 30 U.S.C. § 815(c), 30 C.F.R. § 40.1, 30 U.S.C. § 813(g)
• Outcome: The discrimination complaint was dismissed.
• Key point: Safety-related activity is not enough by itself to establish discriminatory discharge; the complainant must show that the employer knew of the protected activity and that it contributed to the adverse action.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA 22041



                         June 26, 1996

DONALD S. WALLACE, : DISCRIMINATION PROCEEDING
Complainant :
v. : Docket No. WEST 95-282-DM
: MSHA Case No. WE MD 95-01
BARRICK GOLDSTRIKE MINES, INC., :
Respondent : Mine I. D. # 26-01089
: Barrick Goldstrike Mine

                            DECISION

Appearances: James L. Kennedy, Jr., Esq., Ketchum, Idaho,
for Complainant;
Charles R. Zeh, Esq., Zeh, Polaha, Spoo and

Before: Judge Amchan

                     Procedural History

 On October 21, 1994, Donald Wallace filed a complaint with

the Mine Safety and Health Administration (MSHA) alleging that
he had been fired from his job at Barrick Goldstrike Mines in
retaliation for activities protected by section 105(c) of the
Federal Mine Safety and Health Act. On February 17, 1995, MSHA
notified Mr. Wallace that it had determined that no violation of
the Act had occurred. Mr. Wallace filed a complaint on his own
behalf with the Commission.

 On January 17, 1996, I denied the parties= cross-motions for

summary judgment in this matter, 18 FMSHRC 103. Wallace’s motion
was denied because I concluded that Mr. Wallace was not engaging
in activity protected by the Federal Mine Safety and Health Act
when he advised a fellow miner over his radio to “punch through”
or skip his assigned lunch break. Wallace told his friend to
take two or three Delay-80s (an unscheduled break to combat
fatigue) later if necessary. Respondent contends that this

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conversation, which occurred on September 26-27, 1994, the last
night Complainant was allowed to work for Barrick Goldstrike, led
to his termination.

 I denied Respondent’s motion for summary judgment because

Mr. Wallace alleged that he would not have been discharged had he
not engaged in other activities, which appeared to be protected
under the Act. A hearing was held in Elko, Nevada, on March 28-
29, 1996, to afford Complainant an opportunity to establish that
his discharge was related to these protected activities.

                    Findings of Fact

 Donald S. Wallace worked for Respondent at its mine near

Carlin, Nevada, from September 1990 until September 27, 1994,
when he was suspended and then terminated (Tr. 336, 361-62).
Mr. Wallace worked as a haul truck driver, sometimes on the night
shift. At the time of his discharge, this was a 12 2-hour
shift, beginning at 7:00 p.m. Miners were allotted a 30 minute
lunch break and two 15-minute scheduled breaks during each shift
(Tr. 75-77). Respondent also allowed for unscheduled bathroom
breaks (“Delay-40s”) and unscheduled breaks to combat fatigue
(“Delay-80s”) (Tr. 77, Exh. R-1, Tab 26).

 Mr. Wallace’s first involvement with Respondent’s discipli -

nary program occurred in November, 1993. Prior to this time,
shovel operators on Wallace’s shift worked with an oiler, who
assisted the operator in running and maintaining the shovel.
Respondent abruptly stopped assigning employees to work as
oilers. When Wallace discovered this, he got on the radio in
his haul truck and asked shovel operator Donald Randall whether
Randall was working without an oiler. When Randall responded in
the affirmative, Wallace made a comment questioning the safety of
this practice (Tr. 210-14, 340-41).

 Wallace was then summoned to the office of his foreman, Vern

Goglio. Mr. Goglio orally reprimanded Mr. Wallace for making
his comments about the lack of an oiler over the radio (Tr. 74,
340-41, 465-66, Exh. R-1, Tab 8)

 Mr. Wallace’s second brush with Respondent’s disciplinary

program occurred in January, 1994. At this time, Complainant was
given “decision-making leave” as the result of another comment he

made over the radio in his truck. Mr. Wallace was put on a
one-year probation as the result of this incident (Tr. 51-52,
70-71, Exh. R-1, Tabs 14 & 15).

 Respondent was in the process of changing its lunch-break

system for the night shift. Previously, miners on the night
shift had some discretion as to when they took their lunch break.
Barrick was implementing a system in which miners would eat at
times assigned by the supervisory employee serving as dispatcher.
This change was implemented so that equipment continued to
operate at maximum efficiency throughout the shift. A number of
miners did not like the change (Tr. 72-76).

 On January 12, 1994, a shovel broke down and foreman Mo

Cunliffe announced that lunch breaks would start at 11:00 p.m..
Mr. Wallace sarcastically asked over his radio, A[ w]hy don’t you
give us our breaks at the beginning of the shift and just work us
the rest of the night” (Tr. 339, 344). Wallace was thereupon
summoned to Mr. Cunliffe’s office and was reprimanded for making
an insubordinate remark over the radio. During Wallace’s
discussion with Cunliffe, both lost their temper.

 Afterwards, Complainant was given a Adecision-making leave

day (DMLD)” for making disruptive comments over the radio. On
this day, he was not allowed to come to work, but was paid.
The objective of the DMLD was to make an employee aware of the
seriousness of his violation of company policy. The DMLD was a
step in Respondent’s progressive discipline program beyond verbal
and written reprimands (Exh. R-1, Tab 15, Tab 38, Policy and/or
Procedure 90-202, pp. 2-3, Tr. 465-66)).

 Mr. Wallace had a meeting with Respondent’s Human Resources

Glenn Wyman, general foreman of mine operations at this time,
stated that under the old system not enough equipment operators
were choosing an early lunch break, thus causing inefficiencies
in equipment utilization. Foremen were also unsystematically
assigning employees an early lunch to make up for the lack of
volunteers, creating tension among some operators who believed
the early lunch breaks were assigned inequitably (Tr. 430).

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Manager Ron Sled and Assistant Mine Manager Ron Johnson in

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February 1994, to discuss the DMLD. Following this meeting,
Wallace signed a form which advised him that Aany further policy
or procedure violations may cause other discipline or termination
of employment.” He also executed a statement indicating his
willingness to change his behavior to conform to Respondent’s
policies. Further, he acknowledged his understanding of his
position in the progressive discipline policy (Exh. R-1, Tab 15).

 The decision-making leave day form remained active in

Mr. Wallace’s personnel file for one year. Seven and a half
months after he signed it, the incident which led to his
termination occurred.

 During this period, Respondent continued to have difficulty

establishing a lunch break system for the night shift that
satisfied management and the equipment operators. It tried a
“mass break” system whereby the entire pit shut down at the same
time and then abandoned it. In September Barrick changed to an
“autobreak” system, whereby lunch was assigned to operators by
computer (Tr. 419-20, 430-34, 504).

 Respondent also experimented with its procedure for equip-

ment operators to take unscheduled breaks to combat fatigue.
To take such a break an operator entered the code Adelay-80" on
the computer onboard his truck (Tr. 420). In late September 1994
Respondent was concerned on the one hand, that some miners were
not taking Adelay-80" breaks when they should, and on the other
hand, that some miners were abusing the Adelay-80" breaks
(Tr. 183-86, Exh. R-1, tabs 24 & 28).

 At about midnight on September 26-27, 1994, miner David

Paules was notified by a computer message that he had been
scheduled for a midnight lunch break. Paules complained to the
dispatcher over his radio that he had been assigned an “early”
lunch break several nights in a row (Tr. 199-200).

 The dispatcher told Paules to take his lunch break as

assigned. He apparently promised to try to rectify the situation
afterwards. After a few minutes Complainant Wallace got on the
radio (Tr. 200).

 Wallace said to Paules, ADave, why don’t you punch through

lunch and take two or three Delay-80s later when needed to help

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you make it through the night.” These remarks were heard by
everyone in the pit (Tr. 74, 201, 206-07, 266, Wallace
Deposition I: 131-32).

 At the conclusion of the night shift on the morning of

September 27, 1994, Complainant was suspended from his employ-
ment by Terry Sheehan, Mine Operations Superintendent. Wallace
described Sheehan as being “very agitated” (Tr. 361-62). On
September 28, Wallace had a meeting with Jeff Marrott from
Barrick’s Human Relations Department and Glenn Wyman, a general
foreman in Respondent’s Mine Operations Department. They
discussed with him his comment over the radio to Mr. Paules and
decided to recommend that the suspension become a termination of
Wallace’s employment (Tr. 425-30, 476-77).

 On October 3, 1994, a committee of managers from the Mine

Operations Department formally recommended that Mr. Wallace be
terminated(Exh. R-1, tab 35). This committee consisted of
Marrott and Wyman, Terry Steinhausen, another general foreman,
Terry Sheehan and George Bee, Mine Division Manager (Tr. 61-62).
On October 10, 1994, Wallace met with Charles Geary, Vice-
President and General Manager of the mine, to appeal his
termination. At this meeting, Wallace told Geary that he
believed that he was being terminated because he had inquired
about a “miners= representative” at the mine and because he had
contacted MSHA about safety and health concerns at the mine.
Mr. Geary ratified Complainant’s termination (Tr. 314-16,
Exh . R-1, tab 36).

 Complainant’s allegations of protected activity

 Complainant alleges that the comments for which he was

counseled in November 1993, concerned safety. Pursuant to a
sudden change in policy, Respondent required an operator to run
and maintain a large electric shovel by himself. Wallace
contends his comments over the radio were intended to raise
concerns over the safety of this decision (Tr. 340-41).

 On July 28, 1994, Complainant contacted State of Nevada

Mine Safety officials to complain of a lack of air conditioning
in his haul truck. Drivers sit near the vehicle’s engine which
generates heat (Tr. 141, 352). The air conditioning in
Complainant’s vehicle had not been working for 52 shifts prior to

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this telephone call. Wallace had brought this to Respondent’s
attention without result. The day after his call the air
conditioning was repaired (Tr. 347-53, Wallace deposition I: 68-
75).

 Wallace never informed management of this phone call and

there is insufficient evidence to establish that Respondent knew
of it. Complainant informed several fellow miners that he made
the call, but there is no evidence that any of them informed any
supervisory employees (Tr. 349-51).

 On one occasion in the late summer or early fall of 1994,

haul truck driver William Pennell approached foreman Mo Cunliffe
and asked if Cunliffe could get his truck’s air conditioner fixed
(Tr. 145-46). Cunliffe pointed to Wallace, who was in his
office. Without any apparent hostility, the foreman said,
“[h]ere’s the man who can get your air conditioner fixed”
(Tr. 145-6, 148, 366-68). I am unable to conclude from this
remark that Cunliffe had determined that Wallace had been
responsible for the MSHA inspection.

 Wallace had a reputation for being one of the most outspoken

employees at Respondent’s mine, if not the most outspoken miner
(Tr. I: 267-70, 275, 468). Cunliffe’s comment may simply have
been a reference to Wallace’s willingness to let management know
what was bothering him, including inoperable air conditioning
(Tr. 368). Moreover, even if Cunliffe thought Complainant called
MSHA, there is no evidence that he bore Wallace any animus as a
result. Wallace testified that he got along “well enough” with
Cunliffe and only had a problem with him regarding the lunch
break system (Tr. 366).

 John Kirkwood is a haul truck driver who was terminated by

Respondent in March 1995 (Tr. 151-53, 166-67). He testified that
in mid-August 1994, he was sitting at a computer terminal in the
foremen’s office when he heard Vern Goglio, one of the foremen
who superivsed Mr. Wallace, talking to another foreman.
According to Kirkwood, Goglio said:

 Something to the effect that, since Don [Wallace] had
 called MSHA it wasn’t going to be tolerated, something
 to do with nails and coffins, he had driven a nail in a
 coffin or something like that. (Tr. 155)




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 Mr. Kirkwood also testified that in September 1994, while

turning in his time card, he overheard one foreman say to
two other foremen, A[t]hat could result in somebody calling
MSH“.” Then Mr. Kirkwood states that foreman John Simler
responded, A[ n]o , they know what happens around here if you
call MSH“” (Tr. 158).

 I find Mr. Kirkwood’s testimony regarding these alleged

conversations to be insufficiently credible to support any
factual findings. In addition to his animus towards Respondent
regarding his own termination, there are other puzzling aspects
to Kirkwood’s testimony. I can understand why Mr. Kirkwood may
not have reported these conversations to Barrick Goldstrike
management or MSHA (Tr. 168). However, if Mr. Goglio made the
remarks attributed to him, I cannot understand why Kirkwood did
not warn Complainant. There is no evidence from either Kirkwood
or Wallace that he did so.

 Finally, if Goglio was looking for an excuse to have

Complainant fired, one would think that this would be revealed
in Goglio’s attitude towards Mr. Wallace prior to his discharge.
To the contrary, Wallace testified that he got along well with
Goglio (Tr. 367).

 The comment attributed to Foreman Simler is similarly

suspect because there appears to have been no reason for him
to make it. There may have been a belief amongst miners after
Mr. Wallace’s discharge that his termination was related to
calling MSHA (Tr. 147). However, there is no indication prior
to Wallace’s discharge that Respondent had taken any action that
would lead miners to think that a call to MSHA would lead to
retaliation.

 State MSHA officials conducted an inspection pursuant to

Wallace’s complaint and Wallace’s air conditioning was repaired
almost immediately following this inspection. However, the
inspectors did not talk to Wallace or inspect his haul truck
(Tr. 352-53, Wallace deposition I: 68-75). Repair of his vehicle
on July 29, may have had nothing to do with the inspection
(Tr. 258).

 Mr. Wallace was not the only equipment operator who

complained about his air conditioning (Tr. 368). There were

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approximately 120-130 miners working on his crew (Tr. 500).
Thus, the shift on which he worked was sufficiently large that
Barrick could not necessarily identify Complainant as the source
of the inspection request by process of elimination. Finally,
there is no evidence that any state or federal MSHA official
violated the law in identifying Wallace to Barrick as the source
of the complaint (Tr. 351).

 There is no evidence that any citations resulted from this

inspection (Tr. 361). This makes it very difficult to infer that
Barrick management would have retained sufficient animus towards
Wallace to consider this inspection in terminating him two and a
half months later--assuming that it did suspect him of initiating
the inspection.

  Between September 1 and September 10, 1994, Wallace

contacted State mine inspector Norman Pickett on at least
two occasions. He asked Pickett about the procedures for
designating a “miners= representative” at Respondent’s mine.
He had a similar discussion or discussions with Federal MSHA
Inspector James Watson during this period. There is no evidence
that Respondent was aware of either inquiry (Tr. 354-55, 358,
406).

“ Aminer’s representative” is a person who represents two or more
miners for purposes related to the Mine Safety and Health Act, 30
C. F. R. Part 40. Such a representative has the authority to ask
MSHA for an inspection of a mine pursuant to section 103(g) of
the Act. The representative must also be afforded the
opportunity to accompany a MSHA inspector and management
representative during an inspection, and an opportunity to
participate in pre-inspection or post inspection conferences held
at the mine, §103(f) of the Act. There were no Aminers=
representatives” at Barrick Goldstrike in September 1994 (Tr.
356).

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      Wallace’s September 17, 1994 discussion with
               General Foreman Glenn Wyman

 Immediately after Wallace’s crew assembled for their shift

on Saturday, September 17, 1994, General Foreman Glenn Wyman
approached Complainant and asked for his opinion regarding a

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safety meeting at which the lunch breaks and the “delay-80s” were
discussed (Tr. 357-59, 383-86, 410-13, Exh. R-1, Tab 23).

 Wallace told Wyman he thought Respondent was making the new

computerized “autobreak” system fail. Wyman denied this and told
Wallace that the company was trying to find a way to make the
system work.

 The two men then discussed two recent incidents which almost

resulted in serious accidents. Wyman told Wallace that both
drivers in these incidents had just had a break and therefore he
believed they were not related to the new lunch break system
(Tr. 411-12).

 Complainant then asked Wyman if there should be a Aminers=

representative” at the mine (Tr. 357-359, 383-86, 410-413).
Wyman said that he did not think that was necessary because
Barrick’s open-door policy and other company procedures were
adequate to address employee concerns. Although Wallace
described Wyman as “uncomfortable” with his suggestion, there
is no evidence that Wyman exhibited anger or hostility either
to Wallace or to the suggestion. Wallace then went to work
(Tr. 359, 412-13).

 Three days later, on Tuesday, September 20, Wyman mentioned

his conversation with Wallace to Jeff Marrott, of Respondent’s
Human Resources Department (Tr. 417). Marrott recalled Wyman
saying that Wallace expressed a desire for rank and file miners
to have more input at the mine. Wyman also told Marrott that
he thought Wallace was “pushing for a union” (Tr. 487, Also see
Tr. II: 323). A little more than a week later, Wyman and Marrott
decided that Wallace should be terminated after his comments to
David Paules over his truck radio (Tr. 452).

 In early October 1994, Barrick’s Human Resources manager

Ron Sled conducted an investigation of Wallace’s allegations of

Wyman testified that he did not understand that Wallace was
suggesting a “miners= representative” for MSHA purposes
(Tr. 416). Nevertheless, I credit Wallace’s testimony that this
is what he was suggesting and thus find the discussion to
constitute protected activity under the Act.

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retaliatory discharge. When Sled interviewed Wyman, the latter
said that he recalled Wallace stating that the miners needed
“some representation.” Wyman told Sled that he did not recall
any mention of MSHA and that he thought that Wallace meant union
representation (Tr. 323).

  Wallace’s call to MSHA the day before his termination

 On September 26, 1994, Wallace left a message with MSHA that

the air conditioning in his truck was not operating again. There
is no evidence that Respondent knew of this call (Tr. 359-60).

           Analysis of Mr. Wallace’s Complaint

 Section 105(c)(1) of the Federal Mine Safety and Health Act

provides that:

 No person shall discharge or in any manner
 discriminate against or cause to be discharged
 or cause discrimination against or otherwise
 interfere with the exercise of the statutory
 rights of any ... miner because such miner
 ... has   filed or made a complaint under or
 related to this Act, including a complaint
 notifying the operator or the operator§s agent
 ... of an alleged danger or safety or health
 violation ... or because such miner ... has
 instituted or caused to be instituted any
 proceeding under or related to this Act ...
 or because of the exercise by such miner ...
 of any statutory right afforded by this Act.

 The Federal Mine Safety and Health Review Commission has

enunciated the general principles for analyzing discrimination
cases under the Mine Act in Sec. ex rel. Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786 (October 1980), rev§d on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3d Cir. 1981), and Sec. ex rel. Robinette v. United Castle
Coal Co., 3 FMSHRC 803 (April 1981). In these cases, the
Commission held that a complainant establishes a prima facie case
of discrimination by showing (1) that he engaged in protected
activity and (2) that an adverse action was motivated in part
by the protected activity.

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 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 the protected activity. If
the operator cannot thus rebut the prima facie case, it may still
defend itself by proving that it was motivated in part by the
miner§s unprotected activities, and that it would have taken the
adverse action for the unprotected activities alone.

 Complainant’s termination would not have occurred but for

his radio communication with David Paules on September 27, 1994.
If I were to conclude that the comment was protected activity
under section 105(c), I would find that his discharge violated
the Act. However, I reach the opposite conclusion.

 A good faith safety or health complaint made to management

is protected by section 105(c). However, Mr. Wallace has not
established that his comment was a safety and health complaint.
Wallace contends that he thought Respondent’s new system for
assigning lunch breaks was dangerous because it left some
equipment operators with seven hours until the end of the shift
and only one 15-minute break (Wallace deposition I: 166-68).

 I find, however, on the basis of the evidence before me,

that Wallace’s radio communication was not a good faith safety
complaint. First, it was not directed to management, but instead
was directed to fellow-miner David Paules and could have
encouraged Paules to disregard company policy with regard to
lunch breaks. Second, Wallace had no grounds for concluding
that Paules= objection to an early lunch-break was made for
safety reasons (Wallace deposition II: 48).

 The evidence before me is insufficient to indicate that

there was anything inherently hazardous about Respondent’s new
lunch break policy for its night shift. In this regard, I note
that the Mine Communication Sheet dated September 22, 1994
( Exh . R-1, Tab 24), allows for more than a 15-minute Adelay-80"
break if deemed necessary by a supervisor. More than two Adelay
80" breaks in one shift also could be taken with the approval of
a supervisor (Exh. R-1, Tab 28).

 In conclusion, I find that Mr. Wallace’s comment of

September 27, 1994, was not protected activity. Therefore, to
establish that his discharge violated section 105(c) of the Act

                          1084

he must establish that he would not have been terminated but
for other activities that are protected.

         Complainant’s communications with MSHA

 While Mr. Wallace has established that he engaged in

activities protected by the Mine Act, he has failed to prove
that his termination is related to these activities. As the
Commission and Federal Courts have repeatedly noted, it is rare
that a link between the discharge and the protected activity
will be supplied exclusively by direct evidence. Usually
discrimination can be proven only by circumstantial evidence
upon which the trier of fact draws an inference regarding the
employer’s motivation, Secretary of Labor on behalf of Chacon v.
Phelps Dodge Corporation, 3 FMSHRC 2508, 2510 (November 1981).

 The most common circumstances upon which such an inference

may be based are the employer’s knowledge of the protected
activity, hostility towards the protected activity (animus),
coincidence in time between the protected activity and the
discharge or other adverse action, and disparate treatment of the
complainant and similarly situated employees, Ibid., at 2510.
Mr. Wallace fails to establish a link between his discharge and
calls to MSHA primarily because there is insufficient direct or
circumstantial evidence that Respondent was aware of them.

 Moreover, assuming Barrick knew or surmised that Complainant

had engaged in any of these protected acts, there are insuffi -
cient grounds to conclude that Respondent bore sufficient
animus towards these activities for them to have contributed to
his termination.

     The November 1993 radio conversation regarding
   the lack of oilers on shovels and the January 1994
        comment regarding the early lunch break.

 Complainant contends that he commented upon Respondent’s

decision to cease assigning oilers to its shovels in November
1993, and the early lunch break of January 12, 1994, out of
concern for the safety of equipment operators. I conclude that
he has not established that the January incident constituted a
good faith safety complaint protected by the Act.

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 The comment regarding the shovel is a closer question.

However, I conclude that it is unnecessary to decide whether it
is protected because I see no substantial link between this
incident and Wallace’s termination, which occurred ten months
later.

 The September 17, 1994, discussion with Glenn    Wyman
            regarding miners= representatives.

 The conversation with Glenn Wyman provides two common

indicia of discriminatory intent: knowledge of protected
activities and proximity in time to Wallace’s discharge. Indeed,
with regard to the latter, Wyman and Jeff Marrott, the
two individuals who decided to fire Wallace, discussed his
request for “representation” little more than a week before
making this decision.

 My reason for declining to inferentially find a relationship

between this conversation and the termination is the complete
lack of evidence of hostility or animus on the part of Respondent
to Wallace’s protected activity. The fact that Foreman Wyman did
not agree with Complainant does not constitute hostility or
animus sufficient to allow an inference that Wyman was motivated
by this discussion in recommending Wallace’s termination.

 Wallace testified that he believed that he could talk to

Wyman about his concerns regarding the break system (Tr. 358).
Nothing in his description of the conversation indicates that
Wyman reacted to his suggestion with anger or hostility. The
closest the record comes to suggesting animus is the fact that
Wyman thought Wallace’s discussion regarding “representation”
sufficiently significant that he told Marrott about it three days
later. However, I conclude this fails to provide sufficient
basis for drawing an inference that Wyman or Marrott, the only
two management officials aware of this conversation, were
motivated by it when recommending Wallace’s termination.

 If Wyman and/or Marrott would not have recommended termi -

nation but for activities protected by the Mine Act, I would deem
it irrelevant that others involved in the termination were not
aware of these activities. I would find a section 105(c)
violation. However, in addition to finding an insufficient
nexus between the September 17, 1994 discussion and Wallace’s

                          1086

termination, I conclude that retaliation, if it did occur, was
not for activity protected by the Mine Act.

 There is no suggestion that Wyman or Marrott were hostile or

concerned with the possibility that Wallace or another miner
would become “miner’s representative.” While this might not be
true with regard to the inception of campaign for a union, such
considerations are beyond the purview of the Federal Mine Safety
and Health Act.

   Complainant’s argument that his discharge must have
   been motivated by his protected activities because
  Respondent could not have possibly fired him for the
          September 26-27, 1994 radio comment.

 Much of Complainant’s case is directed to showing that no

reasonable employer would have fired him for suggesting to
Mr. Paules that he skip the lunch break and take “delay-80s”
later, if he needed them. To the contrary, I conclude that
Respondent had sufficient non-protected reasons to fire him.

 Mr. Wallace appears to have been genuinely concerned with

the welfare of his fellow miners. Further, his work record
appears to have been unblemished apart from his use of the
truck radio to communicate his disagreement with management
decisions on at least three occasions. One might agree with
Complainant that Respondent should not have fired him. However,
that does not mean that he has established that his discharge
violated section 105(c) of the Act.

 Respondent’s witnesses have established that the scheduling

of lunch breaks was a very sensitive issue at the mine in 1994
(Tr. 419-20, 504). Barrick had tried several methods of
balancing its concerns for productivity with the wishes of its
equipment operators. Each of these apparently met with some
resistance from its employees.

  In this context, the company might have reacted very

strongly to a suggestion from one employee to another, regarding
the lunch break that appeared to be inconsistent with the
instructions of their supervisors. This is all the more true
when this suggestion was made over the mine radio system whereby
all employees could hear it.

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 Finally, when an employee is on a probationary status for

criticizing management over the radio, it is certainly possible
that he would be fired if he again made remarks over the radio
that management could interpret as another challenge to its
authority.

 In conclusion, I find that Complainant has not established

that his termination violated section 105(c) of the Act. His
complaint is therefore DISMISSED.

                            Arthur J. Amchan
                            Administrative Law Judge

Distribution:

James L. Kennedy, Jr., Esq., P.O. Box 2165, Ketchum,
ID 83340 (Certified Mail)

Charles R. Zeh, Esq., Zeh, Polaha, Spoo & Hearne,
450 Marsh Ave., Reno, NV 89509 (Certified Mail)

/lh

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