Knife River Coal Mining Co.

Plain-English summary

Arthur R. Olmstead worked for Knife River Coal Mining Co. at its Savage Mine and was known for raising safety concerns. Judge T. Todd Hodgdon found that the company discharged Olmstead for repeatedly making safety complaints, rather than for the stated reason of dishonesty about his medical status. The judge ordered reinstatement, back pay, benefits, reimbursement of related losses or litigation expenses, expungement of the discharge, and a $1,000 civil penalty. The judge retained jurisdiction because the parties still had to resolve the specific remedies and monetary amounts.

Decision snapshot

• Cited provision(s): 30 U.S.C. § 815(c), 30 U.S.C. § 813(g), 30 U.S.C. § 820(i)
• Outcome: Discrimination liability was established, reinstatement and make-whole relief were ordered, and the $1,000 civil penalty was assessed, with specific relief amounts reserved for later proceedings.
• Key point: The judge found the employer's stated dishonesty reason was a pretext for discharging a miner who repeatedly raised safety concerns.

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 28, 1996

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 96-130-D
on behalf of ARTHUR R. OLMSTEAD : DENV-CD-95-20
Complainant :
v. :
: Savage Mine
KNIFE RIVER COAL MINING CO., :
Respondent :

                            DECISION

Appearances: Tambra Leonard, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Complainant;
Laura E. Beverage, Esq., and Rebecca Graves Payne,
Esq., Jackson & Kelly, Denver, Colorado, for
Respondent.

Before: Judge Hodgdon

 This case is before me on a Complaint of Discrimination

brought by the Secretary of Labor, acting through his Mine Safety
and Health Administration (MSHA), on behalf of Arthur R.
Olmstead, against Knife River Coal Mining Company under section
105(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. ' 815(c). For the reasons set forth below, I find that
Knife River violated section 105(c) when it discharged Mr.
Olmstead on June 30, 1995.

 A hearing was held on February 27 through March 1, 1996, in

Billings, Montana. In addition, the parties filed post-hearing
briefs in the case.

                       BACKGROUND

 Mr. Olmstead worked for Knife River from September 11, 1967,

until his discharge on June 30, 1995, a total of 27 years. He
operated the tipple since 1987. During his employment, Mr.
Olmstead was well known for raising operational and safety
matters, both with management and state and federal mine
inspectors. Until 1995, he had never had any disciplinary
problems with the company.

 Richard Kalina became superintendent of the Savage Mine on

March 1, 1993, having been promoted from Knife River=s Gascoyne,
North Dakota, mine where he had been foreman since 1984. On Mr.
Kalina=s recommendation, Mr. Olmstead was suspended without pay
for five days beginning on March 6, 1995, for an unauthorized
absence. The absence occurred when Mr. Olmstead accompanied his
son to traffic court, for which he claimed on his time card AJury
or Court Duty.@ (Comp. Ex. 7.)

 Mr. Olmstead=s employment with Knife River was terminated

effective June 30, 1995, for dishonesty. The dishonesty
concerned alleged misrepresentations on Mr. Olmstead=s part about
his medical status and availability for work following surgery on
his right wrist.

         FINDINGS OF FACT AND CONCLUSIONS OF LAW

 In his Discrimination Complaint filed with MSHA, Mr.

Olmstead alleged that Knife River discriminated against him by
terminating him. In the Complaint of Discrimination filed by
MSHA with the Commission, the assertion that the company
discriminated against Mr. Olmstead by suspending him without pay
was added. At the hearing a third claim was made, that the
Complainant was required to take coffee and lunch breaks at times
different than the rest of the employees. I conclude that only
the original allegation has merit.

                          1104



 In order to establish a prima facie case of discrimination

under Section 105(c) of the Act,1 a complaining miner bears the
burden of establishing (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 2768 (1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F2d.
1211 (2d Cir. 1981); Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803 (1981); Secretary on behalf of
Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (1984); Secretary
on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981),
rev'd on other grounds sub nom. Donovan v. Phelps Dodge Corp.,
709 F.2d 86 (D.C. Cir. 1983).

 The operator may rebut the prima facie case by showing

either that no protected activity occurred or that the adverse
action was in no part motivated by the protected activity.
Pasula, 2 FMSHRC at 2799-800. If the operator cannot rebut the
prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it was also motivated by the
miner's unprotected activity and would have taken the adverse

 1
   Section 105(c)(1) of the Act provides that a miner cannot

be discharged, discriminated against or interfered with in the
exercise of his statutory rights because: (1) he Ahas filed or
made a complaint under or related to this Act, including a
complaint . . . of an alleged danger or safety or health
violation;@ (2) he Ais the subject of medical evaluations and
potential transfer under a standard published pursuant to section
101;@ (3) he Ahas instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is
about to testify in any such proceeding;@ or, (4) he has
exercised Aon behalf of himself or others . . . any statutory
right afforded by this Act.@

                          1105

action for the unprotected activity alone. Id. at 2800;
Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
Const. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically
approving the Commission=s Pasula-Robinette test).

                          1106



 It is undisputed that Mr. Olmstead engaged in protected

activity. It is apparent that he was constantly making
complaints about matters that he considered to be safety and
health issues to whomever would listen. Therefore, the questions
in this case are whether the company took adverse actions against
him, whether the adverse actions were because of the protected
activity, and, if so, whether the company would have taken the
adverse actions solely because of unprotected activity in which
the Complainant may have engaged.

Solitary Coffee and Lunch Breaks

 Turning first to the claim, that Mr. Olmstead was required

to take his coffee and lunch breaks alone, I find that this was
not an adverse action. On April 14, 1994, Mr. Kalina instructed
Mr. Olmstead to finish crushing the coal in the crusher before
taking his coffee or lunch breaks. This caused him to take the
breaks at different times than the rest of the employees. While
Mr. Olmstead testified that this lasted two or three weeks, in a
record he kept at the time, on a page headed Ainfo to establish
Harrasment [sic] Charges against Management concerning lunch time
and dinner time,@ only four dates are listed, April 14, 15, 18
and 19. (Comp Ex. 4, at 102.)

 On the other hand, the other witnesses, including employees

Steve Ler and Brian Carr, testified that it was not unusual for
management occasionally to require employees to take lunch or
coffee breaks at different times, if the job required it.
Furthermore, no one corroborated Mr. Olmstead=s statement that he
was required to do this for two or three weeks. In addition,
even his contemporaneous notes, made for the specific purpose of
documenting adverse actions, only show four days. Consequently,
I conclude that this was no more than a reasonable job request,
no different than that made of all employees, and not an adverse
action.

Suspension without Pay

 The suspension without pay is a more difficult question. It

is entirely believable that the court may have required a parent
to accompany a minor to traffic court. Clearly, however, this
was not jury duty, nor did Mr. Olmstead ever claim that he was
serving on a jury. That he was uncertain whether accompanying

                          1107

his son to court entitled him to any type of court leave is
supported by his discussions with his fellow employees before
going and his putting AJury or Court Duty@ on his time card.

 However, despite his apparent confusion, Mr. Olmstead never

consulted anyone in a position to give him an answer. The union
contract was clear that only jury duty entitled an employee to
special leave; he did not bother to read it. Nor did he ever
question any of his supervisors about what type of leave he could
take, although at least one of is friends, Steve Ler, told him he
should check it out. Mr. Olmstead testified that he put the time
card on Jody Reed=s desk and told her that he did not know how
the jury duty applied and would let her figure it out. Jody
Reed, a part-time secretary, was plainly not in a position of
authority and, further, stated that Mr. Olmstead did not say
anything to her about the time card.

 The day after the court appearance, Mr. Kalina asked Mr.

Olmstead how the Ajury trial went@ and Mr. Olmstead responded, Ait
went fine.@ (Tr. 120.) Nothing further was said about the
incident until late February or early March when Mr. Kalina,
after finding out that the company had not received any jury fees
for Mr. Olmstead=s appearance, questioned Mr. Olmstead about the
fees. Mr. Olmstead responded that the company should be
receiving a check from the court. It was only by calling the
court that the company determined that Mr. Olmstead had not
served on a jury and was, therefore, not entitled to jury leave.

 It is not necessary to determine whether Mr. Olmstead was

being disingenuous or really was bewildered in this situation to
conclude that the adverse action was not based on his protected
activities. Viewing the situation through the eyes of
management, a conclusion that Mr. Olmstead was being deceptive

Although the Secretary has advanced that management was aware of
his dilemma because his discussions with his friends took place
in a room outside of Mr. Kalina=s office, I give this evidence no
weight. There was no showing that Mr. Kalina was in his office
at the time, or that, even if he was, he would have been able to
hear the discussion.

                          1108

with them was perfectly reasonable. In fact, since Mr. Olmstead
never bothered to attempt to clarify matters until he was

                         1109

suspended, such a conclusion was the only reasonable one to be
drawn.

 An unauthorized absence is clearly unprotected activity.
                                                      =s

Even though the company may have been tired of Mr. Olmstead
constant safety complaints and recommendations, I find that the
five day suspension was allotted, mainly, if not solely, for the
unprotected activity. Accordingly, I conclude that Mr. Olmstead
was not discriminated against in this instance.

Discharge

 Mr. Olmstead injured his wrist in April 1994. In March

1995, he decided to have the wrist fused. The surgery was
performed on March 21, 1995. After the surgery, the doctor
advised Mr. Olmstead, on March 24, that he expected him to be off
work for three months and scheduled a return visit for April 21.
Thereafter, return check-ups were scheduled every 30 days.

 Mr. Olmstead=s next visit was on May 19. After the

examination, the doctor gave Mr. Olmstead a slip which stated:
AIf avail. lite duty -- no shoveling or lifting over 15 pounds
rt. hand.@ (Comp. Ex. 11.) According to Mr. Olmstead, he went
to the mine on May 23 and gave the slip to Mr. Kalina. He
testified that Mr. Kalina kept the original of the slip, made a
copy for him, and wrote down on his desk calendar when Mr.
Olmstead=s next appointment was.

 Mr. Olmstead further testified that he explained to Mr.

Kalina that he was not completely healed, that there was a risk
that he would reinjure the wrist, but that he could return to
work with the restrictions listed. Mr. Olmstead asserted that
Mr. Kalina replied that they would wait until after his next
appointment before putting him back to work.

 Mr. Kalina=s recollection of this visit was somewhat

different. He testified:

 Q. Now, did Mr. Olmstead visit you at the mine site on
 or about May 23, 1995?

 A.     Yes.




                          1110



Q. And did Mr. Olmstead at that time provide you with
a May 19, 1995, doctor=s slip?

A.   Not that I recall.

Q. Did you discuss with Mr. Olmstead whether he could
return to light duty at that time, on May 23, 1995?

A.   No, I never did.

Q. Did Mr. Olmstead discuss with you his general
medical condition?

A. Yes. The conversation went, Art sat down and we
talked about his arm, what it looked like. If I
remember right he had a new cast on. And he said his
doctor said he could not come back to work, no light
duty. He said his diabetes was hindering his healing
and he needed more time.
    He mumbled something about 15 pounds and what I
could do with that. And I said, AI can=t,@ something
about Awhen your doctor releases you, you can come back
to work.@

(Tr. 655-56.)

 Mr. Olmstead=s next doctor=s appointment was on June 15. His

cast was replaced with a wrist brace. He did not receive a work
restriction slip when he left the doctor=s office. He returned
to his home on June 16.

 While he was helping his sons adjust a hay rake that was

pulled behind a tractor, Mr. Kalina and Junior Etzel, the
foreman, came out to the hay field in a pick-up truck. Mr.
Kalina remarked that it looked like Mr. Olmstead could return to
work. Mr. Olmstead replied that he had not been released to
return to work. Mr. Kalina asked Mr. Olmstead for a doctor=s
slip to update his file.

 As a result of this confrontation, both Mr. Olmstead and Mr.

Kalina apparently called the doctor=s office to obtain a doctor=s
slip. The slip subsequently received by both indicated that the
restrictions were: ANo pushing or pulling, cannot carry items up

                          1111

a ladder. No lifting over 10 pounds. No repetitive or twisting
motions.@ (Comp. Ex. 12.)

 A meeting with management was held on June 28, 1995. At the

meeting, Mr. Olmstead was represented by counsel who was
allowed to be present but not to participate, and Mr. Olmstead
was not permitted to question any of the witnesses against him.
After the meeting, Mr. Olmstead was informed by a June 30 letter
that

there is a clear discrepancy between your statements to
management about your work status and the written work
releases. You failed to provide a reasonable, credible
explanation for the discrepancy. Therefore, we have
concluded that your actions represent dishonesty in
violation of Rule 1 of Knife River Coal Mining Company
Rules of Conduct and warrant immediate dismissal.

(Comp. Ex. 19.)

The letter gave the following reasons for this conclusion:

It is the recollection of Rich Kalina, the mine
superintendent, that you told him on May 23 that you
could not return to work yet. He recalls advising you
to provide a doctor=s statement for the file. Notes
taken by Rich in his daily calendar for May 23 are
consistent with his recollection.

You stated at the meeting held at the Savage Mine on
June 28 regarding this matter that you knew you were
released to light-duty work in May and that you gave
the doctor=s statement to Rich around May 23 but he
told you that you could not return to light duty.

Knife River=s long-standing practice is to utilize
light duty whenever we can accommodate restrictions.

Mr. Olmstead was evidently misadvised by his union that a lawyer
could represent him at the meeting in the place of union
representation. Apparently, the union contract would have
permitted a union representative to participate in the
proceedings.

                          1112



Your statement that Rich told you in May that you could
not return to light duty would be inconsistent with
that practice and is not credible in view of Rich=s
recollection and notes taken at the time.

. . . .

On June 16, 1995, Rich and Junior went to Savage to get
Junior=s pickup and stopped at your place to see how
your last doctor=s appointment had gone. You were in
the field haying but according to both Rich and Junior,
told them you could not return to work for 30 days.
Rich told you Knife River would need a doctor=s
statement regarding work status.

You stated at the June 28 meeting that what you had
said was that it would be 30 days until your next
doctor=s appointment not that you couldn=t work for 30
days. This conflicts directly with the recollection of
both Rich and Junior and lacks credibility.

Rich followed up by contacting your doctor=s office on
June 16 and was advised that you had been re-released
to return to work on light duty at the appointment on
June 15. When he asked what was meant by Are-
released,@ he was advised that you had been released
for light duty following your May 19 appointment also.

(Id.)

 Clearly, the key to this case depends on whether Mr.

Olmstead or Mr. Kalina is telling the truth about the May 23
meeting. If Mr. Olmstead=s version of the meeting is untrue,
then the company had a non-protected reason for discharging him,
even if they also wanted to get rid of him because of his
constant safety complaints. However, if his version is true,
then it becomes clear that Mr. Kalina manipulated the facts so
that dishonesty could be used as a subterfuge for dismissing Mr.
Olmstead for being a nuisance with his constant complaining. I
find that Mr. Olmstead=s version of the May 23 meeting is true.

 To find Mr. Kalina=s story credible, it is necessary to

believe that Mr. Olmstead came to the mine office on May 23 and

                          1113

did not give Mr. Kalina the doctor=s slip given him on May 19.
Mr. Kalina=s version is not supported by the evidence or common
sense. He testified that he never saw the original slip and was
not aware of it until the doctor=s nurse informed him on June 16
that Mr. Olmstead had been re-released for light duty. Indeed,
in the letter of termination this was the last discrepancy noted.

However, Mr. Kalina also testified:

Q. Now, Mr. Kalina, the time you called Nurse Durden,
had you looked in Art Olmstead=s file?

A.   Yes, just before I called her.

Q. And did you find a May 19, 1995, slip return -- or
a slip with Orthopedic Surgeons on it?

A.   Yes, I did.

 The termination letter does not mention that management was

aware of the May 19 slip as of the date of the letter. It only
states that Mr. Kalina Awas advised that you had been released
for light duty following your May 19 appointment also,@ even
though at the hearing Mr. Kalina claimed to have found the slip
on June 16 and had even asked the doctor=s nurse to decipher it
for him. It is also not mentioned in a June 16 memo from Mr.
Kalina to Larry Duppong, the Vice President of Operations who
actually discharge Mr. Olmstead, even though the memo relates
that Mr. Kalina had talked to the doctor=s nurse.

 Mr. Kalina was interviewed by Special Investigator Jerry

Thompson on August 24, 1995. According to Investigator Thompson,
Mr. Kalina originally claimed that he had never seen the May 19
slip and did not know what it said. Then he changed his story
=s
and said that he had found a copy of the slip in Mr. Olmstead
file at a later date, that he had no idea how it had gotten
there, and that only he and Junior Etzel had access to the file
cabinet.

 The most impeaching pieces of evidence to Mr. Kalina=s

story, however, are the various copies of the May 19 slip that
were offered at the hearing. None were offered by the company.
The first one, sponsored by Mr. Olmstead as the copy he received

                          1114

back from Mr. Kalina on May 23, is a copy of the slip and has
only the doctor=s writing on it. (Comp. Ex. 11.) The next one,
identified by Mr. Kalina, purports to be the copy he discovered
in Mr. Olmstead=s file on June 16. In addition to the doctor=s
writing, the following writing appears in an area where it could
have been written on the slip itself: ANurse -- Pat Durden?sp@ at
the top, and Awill examine 6-15-95 next appt.@ at the bottom.
(Comp. Ex. 36.) Finally, a third copy, also identified by Mr.
Kalina, appears identical to the second one, except that at the
bottom it says Awill examine 6-15-95 next appt. RK.@

  Mr. Kalina identified the additional writing as his. He

could not explain why the ARK@ had been added to the third copy,
nor why the Awill examine@ writing had been made darker. Mr.
Kalina claimed that he made the Awill examine@ note when talking
to the nurse on June 16. When questioned as to why he had used
the future tense for an examination that had occurred the day
before, Mr. Kalina stated: AI think she was just probably --
I=m just surmising this -- I think she was reading from a file
and I was just putting all pertinent information down that I
thought about.@ (Tr. 742.)

 This explanation makes no sense. In the first place, this

does not appear to be what would normally be pertinent
information. In the second place, nothing else was written down.
What does make sense is that Mr. Kalina wrote Awill examine 6-
15-95 next appt.@ on the original slip when Mr. Olmstead gave it
to him on May 23. This would also explain how Mr. Kalina knew
that Mr. Olmstead had been to the doctor on June 15, when he
decided to go see him on June 16. It would also explain how Mr.
Kalina knew about the 15 pound lifting restriction that he
claimed Mr. Olmstead mumbled to him on May 23.

 In short, I do not find Mr. Kalina=s version of this event

credible. While the notes on his calendar seem to support his
version, I do not give those notes any weight. Almost all of the
entries pertain to Mr. Olmstead, presumably to document the case
against him. However, by his own admission, Mr. Kalina did not
make all of the entries on the day that they allegedly occurred,
but added some at a later date. Furthermore, some of the added
ones were inserted on an incorrect date, according to Mr. Kalina.
Therefore, there is no way of knowing which were written

                          1115

concurrently and which were written later to bolster the case
against Mr. Olmstead.

 This is particularly crucial in view of the self-serving

nature of the entry on May 23 which states: AArt stopped in --
not to come to work yet. No lite duty -- needs healing time.
Asked Art to get a Drs. slip for his file.@ (Comp. Exs. 23 and
42.) The credibility of this entry is further put in doubt by
the subsequent mysterious discovery of the doctor=s slip in Mr.
Olmstead=s file.

 In addition, I do not find that Mr. Olmstead=s version is

contradicted by AKnife River=s long-standing practice [] to
utilize light duty whenever we can accommodate restrictions. @ In
the first place, this Along standing practice@ is not written
down any where in the company=s rules and regulations. In the
second place, such a practice does not mean that Mr. Kalina could
not have concluded that Mr. Olmstead was still too restricted to
work any place since he had a cast on his right (dominant) hand.

 Having found that Mr. Olmstead=s version of the May 23

meeting is the credible one, his actions in the hay field on June
16 cease to appear deceptive. If Mr. Kalina told him there was
no light duty, it would be logical that Mr. Olmstead would relay
that to the doctor. This would explain why the doctor did not
give Mr. Olmstead a doctor=s slip after his June 15 visit, and
why Mr. Olmstead then told Mr. Kalina and Etzel that he had not
been released to return to work. Ironically, the June 16
doctor=s slip appears to be more restrictive than the May 19
slip.

 Obviously, Mr. Olmstead=s constant safety complaints made

him an annoyance to the company. Evidently he quickly got under
Mr. Kalina=s skin. Mr. Olmstead related that shortly after Mr.
Kalina arrived at the mine, the mine had an inspection during
which Mr. Olmstead pointed out several problems to the inspector.
He testified that after the inspector had gone, Mr. Kalina came
to him and told him that he did not want Mr. Olmstead discussing
safety problems with inspectors unless he had already brought the

Interestingly, Alite duty@ is spelled the same way it is on the
doctor=s slip.

                          1116

problem to Mr. Kalina. He further testified that Mr. Kalina told
him that Ahe always got even with anybody who ever crossed that
line with him.@ (Tr. 27.)

 This obviously did not deter Mr. Olmstead, who continued

raising safety concerns. Mr. Kalina got more exasperated with
Mr. Olmstead, noting on March 8, 1994, AArt argues all the time,@
(Comp. Ex. 30), on March 23, 1994, AI=m getting very tired of
arguing with Art,@ (Comp. Ex. 31), and in February 1995, having a
heated discussion with him over the necessity for replacing
guards before operating the crusher, (Tr. 106, 386-90).

 The Astraw that broke the camel=s back@ occurred on May 25,

1995. Mr. Olmstead had filed a section 103(g) complaint, 30
      U.S.C. ' 813(g), over the non-reporting of his wrist injury.
      Because of the nature of the complaint, it was obvious that Mr.
      Olmstead had made it. Inspector Herbert Skeens came to the mine
      on May 25 to investigate the complaint. He testified that when
      he gave a copy of the complaint to Mr. Kalina, Mr. Kalina
      appeared to be Afrustrated, disgusted, aggravated with the fact
      that the complaint had been made.@ (Tr. 351.) He described Mr.
      Kalina as pacing rapidly in a circle and related that Mr. Kalina

      made a comment something to the effect this had been a
      problem for some time, something to that effect. I
      cannot quote him verbatim. I know he made a comment
      that he had a problem or had a problem with Mr.
      Olmstead, or something to that effect, for some time.
      This had been an ongoing situation. That was the
      comment that was made, something to that -- along that
      line.

Mr. Kalina made a similar statement to Brian Carr. (Tr. 458.)

Section 103(g) provides, in pertinent part, that: AWhenever . .
. a miner has reasonable grounds to believe that a violation of
this Act or a mandatory health or safety standard exists . . .,
such miner . . . shall have a right to obtain an immediate
inspection by giving notice to the Secretary or his authorized
representative of such violation or danger.@

                          1117

(Tr. 353.)

 Mr. Kalina was out of town from June 5 through June 14. On

the June 16, Mr. Kalina and Junior Etzel drove out to Mr.
Olmstead=s farm to Asee how he was doing.@ Before this date, no
one in management had been out to see how Mr. Olmstead was doing.
This was not a friendly visit. Shortly thereafter, Mr. Olmstead
found himself discharged as a result of this visit. The evidence
to support the discharge was provided by Mr. Kalina. As has been
seen, it was less than truthful.

 While Mr. Olmstead was ostensibly discharged for dishonesty,

I find that he was really discharged for continually raising
safety concerns at the mine. Accordingly, I conclude that his
discharge was based on his engaging in protected activity and
that there was no legitimate non-protected activity reason for
discharging him.

                CIVIL PENALTY ASSESSMENT

 The Secretary has proposed a civil penalty of $1,000.00 for

the company=s violation of section 105(c). However, it is the
judge=s independent responsibility to determine the appropriate
amount of penalty, in accordance with the six criteria set out in
section 110(i) of the Act, 30 U.S.C. ' 820(i). Sellersburg Stone
Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace
Brothers, Inc., 18 FMSHRC 481, 483-84 (April 1996).

 In connection with the six criteria, the parties have

stipulated that the proposed penalty will not affect the
company=s ability to remain in business. The mine is a small
mine and it=s Assessed Violation History Report indicates that it
received only 29 citations or orders, none involving section
105(c), between January 1, 1978, and August 1, 1995. Plainly,
its history of prior violations is very good. On the other hand,
the gravity and negligence involved in this violation are very
serious. Taking all of this into consideration, I conclude that
the proposed penalty of $1,000.00 is appropriate.

                          ORDER

 Having found that Knife River Coal Mining Company=s June 30,

1995, discharge of Arthur R. Olmstead was motivated by his

                          1118

protected activity and, thus, in violation of section 105(c) of
the Act, it is ORDERED that:

1. The Respondent REINSTATE Mr. Olmstead to his former
position with full pay and benefits;

2. The Respondent PAY Mr. Olmstead full back pay,
with interest, and benefits for the period from July 1,
1995, until December 7, 1995, the effective date of his
temporary economic reinstatement.

3. The Respondent REIMBURSE Mr. Olmstead for any other
reasonable and related economic losses or litigation
expenses incurred as a result of his discharge.

4. The Respondent EXPUNGE from Mr. Olmstead=s
personnel file and from company records the discharge
and all references to the circumstances involved in it.

5. The Respondent is ORDERED TO PAY a civil penalty in
the amount of $1,000.00 for its violation of section
105(c).

 The parties are ORDERED to confer within 21 days of the date

of this decision for the purpose arriving at a settlement of the
specific actions and monetary amounts that the Respondent will
undertake to carry out the remedies set out above. If an
agreement cannot be reached, the parties are FURTHER ORDERED to
submit their respective positions, concerning those issues on
which they cannot agree, with supporting arguments, case
citations and references to the record, within 30 days of the
date of this decision. For those areas involving monetary
damages on which the parties disagree, they shall submit specific
proposed dollar amounts for each category of relief. If a
further hearing is required on the remedial aspects of this case
the parties should so state.

 The judge retains jurisdiction in this matter until the

specific remedies Mr. Olmstead is entitled to are resolved and
finalized. Accordingly, this decision will not become final
until an order granting specific relief and awarding monetary
damages has been entered. Consequently, payment of the civil

                          1119

penalty by Respondent is HELD IN ABEYANCE until the final order
is entered.

                           T. Todd Hodgdon
                           Administrative Law Judge

Distribution:

Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)

Laura E. Beverage, Esq., Jackson & Kelly, 1660 Lincoln St.,
Suite 2710, Denver, CO 80264 (Certified Mail)

/lt

                          1120