<DOC>
[DOCID: f:west9796c.wais]

 
DURANGO GRAVEL
September 13, 1999
WEST 97-96-DM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                       September 13, 1999

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
  on behalf of CLAY BAIER       :
                                :
             v.                 : WEST 97-96-DM
                                :
DURANGO GRAVEL                  :


BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
        Commissioners


                            DECISION

BY THE COMMISSION:

     In this discrimination proceeding, arising under the 
Federal Mine Safety and Health Act of 1977, 30 U.S.C.  801 
et seq. (1994) ("Mine Act" or "Act"), Administrative Law 
Judge Richard W. Manning concluded that Durango Gravel 
("Durango") violated section 105(c) of the Mine Act, 30 U.S.C. 
 815(c), when it terminated employee Clay Baier on August 1, 
1996.  20 FMSHRC 59, 60, 71 (Jan. 1998) (ALJ). The Commission
granted Durango's petition for discretionary review 
challenging the judge's determination.  For the reasons that 
follow, we affirm the judge.  

                               I.

                Factual and Procedural Background

     Durango owns and operates the J & J pit, a sand and gravel
pit in La Plata County, Colorado.  20 FMSHRC at 59; Tr. 25.
Durango is owned by James Helmericks and his family, and
generally employs two individuals in addition to Helmericks. 20
FMSHRC at 59; Tr. 248. All Durango employees perform a variety
of tasks, as directed by Helmericks. 20 FMSHRC at 60. The mine
facility consists of a pit and a crusher.  Id. at 59.  

     In April 1996, Baier began working for Durango as a truck
driver.  Id. at 60.  Among other duties, Baier operated the
loader and repaired equipment, including the crusher. Id. Also
in April, the Department of Labor's Mine Safety and Health
Administration ("MSHA") received a complaint from William
Elvidge, a former employee at the J & J pit, concerning 
hazardous conditions at the mine, including the operator's 
alleged undercutting of the highwall by removing material from 
the "toe"[1] of the highwall.  20 FMSHRC at 60, 64.[2]  On or 
about July 17, 1996, MSHA inspectors Royal Williams and George 
Renton inspected the mine in response to Elvidge's complaint. 
Id. at 60; Tr. 314.  During the inspection, Baier informed 
Inspector Williams that he had been cutting into the toe of 
the highwall to get material.  Tr. 19-20, 215.  The inspectors 
talked with Helmericks and Baier about the dangers of mining 
the toe of the highwall.  20 FMSHRC at 60.  Inspector Williams 
told Baier not to dig into the face of the highwall because 
the highwall could fail and seriously injure or kill him. Id.  
Williams also advised Baier that if rock was needed to feed 
the crusher, material should be pushed down from the top of 
the highwall and scooped up with the loader. Id. 

     The parties dispute the circumstances surrounding Baier's
discharge.  Id.  Baier testified that, in the weeks between 
the mid-July inspection and the August 1 discharge, he pushed
material down from the top of the highwall with the loader, 
but that Helmericks told him not to go on top of the highwall.
Id.; Tr. 17.  Baier added that, on the Monday before the 
termination, Helmericks observed him pushing material off the 
top of the highwall, and that Helmericks berated him for doing 
so. 20 FMSHRC at 60; Tr. 65. Baier testified that, on Thursday,
August 1, he arrived at work at 7:00 a.m.  20 FMSHRC at 60; 
Tr. 70. He stated that he had started all of the equipment in 
preparation for operations, and that the crusher was not down 
for repairs. Tr. 38, 41-42. Baier said that Helmericks and his 
son ("Jim, Jr.") arrived soon after, and that Helmericks fired 
Baier immediately.  20 FMSHRC at 60.  Baier testified that 
Helmericks then verbally berated him, but that Helmericks did 
not give him a reason for the termination. Id.; Tr. 23.  

     Helmericks, however, testified that he did not observe 
Baier on the highwall during the two weeks preceding the 
August 1 termination.  Tr. 273.  Helmericks testified that he 
told Baier that only Helmericks was permitted to push material 
from the top of the highwall.  Tr. 264, 267.  Helmericks also 
testified that, upon his arrival at the property on August 1,
he assigned Baier and Jim, Jr. to repair the crusher, which 
was inoperative.  20 FMSHRC at 60.  Helmericks stated that he 
left the property and traveled to Farmington, New Mexico, to 
get parts and that, upon his return at approximately 10:30 or 
11:00 a.m., Baier was on the highwall pushing material down 
with the loader.  Id.; Tr. 250. Helmericks testified that he 
terminated Baier for disobeying two direct orders: assist Jim, 
Jr. with the crusher repairs and refrain from pushing material 
down from the top of the highwall with the loader. 20 FMSHRC 
at 60-61.  

     On March 5, 1997, the Secretary of Labor filed a complaint
with the Commission on Baier's behalf alleging that Baier's
termination constituted discrimination under section 105(c) of
the Mine Act.[3]  Compl. at 1.  On October 8, the matter
proceeded to hearing before Judge Manning. 

     The judge found that Baier's conversation with MSHA
inspectors and his refusal to dig into the toe of the highwall
constituted protected activity.  20 FMSHRC at 62, 65.  He
concluded that the Secretary established her prima facie case
of discrimination.  Id. at 66.  The judge found that Helmericks 
knew that Baier had discussed safety issues with an MSHA 
inspector, and that Helmericks disapproved of the fact that 
Baier raised these issues with the inspector.  Id.  The judge 
further found that Helmericks expressed animus towards MSHA in 
general. Id. The judge observed that the termination occurred 
two weeks after the July 1996 inspection.  Id.  The judge 
acknowledged that Baier's action of pushing material off the 
highwall was not protected but recognized that "it was related
to the safety concerns Baier raised with Inspector Williams."  
Id.  He found that Durango did not rebut the Secretary's prima 
facie case.  Id. at 66, 71.  The judge further concluded that 
Durango did not prove its affirmative defense, because it "did
not establish that it would have terminated Baier for being on 
top of the highwall on August 1 if his activities did not spring 
from his safety complaints to MSHA."  Id. at 69. 

     The judge subsequently issued a supplemental decision
awarding Baier $1,634 in back pay.  20 FMSHRC 268, 270, 272 
(Mar. 1998) (ALJ).  After considering the section 110(i) 
civil penalty criteria C particularly Durango's very small 
size and its ability to continue in business C the judge 
reduced the $2,500 civil penalty proposed by the Secretary to 
$100.  Id. at 271-72.   

                               II.

                           Disposition

     Durango challenges the judge's conclusion that Baier's
termination was motivated in part by his conversation with an
MSHA inspector, and the reasoning upon which this conclusion is
based.  PDR at 1.[4]  Durango argues that the period of time
between Baier's conversations with MSHA and his termination is
too long to establish a coincidence in time, especially
considering the judge's finding that Helmericks was not the type
of individual to wait to take adverse action against an employee.
Id.  Durango also denies having harbored any hostility towards
MSHA prior to MSHA's investigation of Baier's complaint of
discrimination.  Id. at 1-2.  Durango further contends that the
judge erred in analyzing this case as one involving work refusal
because Baier could not reasonably and in good faith have
believed that he was required to dig into the toe of the highwall
to get material on August 1.  Id. at 2, 4.  The operator asserts
that Baier's insubordination on August 1 constitutes a legitimate
reason for his termination.  Id. at 3.  Durango also maintains
that, following prior incidents that led it to regard Baier's
work record as unsatisfactory, his insubordinate action on August
1 constituted the "straw that broke the camel's back."  Id.

     The Secretary argues that substantial evidence supports the
judge's finding that Baier's termination was motivated at least
in part by his protected activities.  S. Br. at 7-13, 20.  She
contends that the 11 business days which passed between the July
17 inspection and the August 1 termination provide the requisite
temporal relationship to permit a reasonable inference of
improper motivation through circumstantial evidence.  Id. at 8.
She also maintains that the record contains evidence supporting
the judge's finding that Helmericks harbored hostility towards
MSHA in general as well as towards Baier's protected activity,
and that such hostility played a part in Helmericks' decision to
terminate Baier.  Id. at 8-12.  The Secretary submits that the
judge correctly found that Baier's refusal to dig into the
highwall was protected and that his August 1 activity was closely
related to his earlier refusals and his discussions with the
inspector and Helmericks about his concerns regarding mining the
toe of the highwall.  Id. at 12-13.  The Secretary asserts that
none of the grounds given by Durango to support its assertion
that it would have terminated Baier for his unprotected
activities alone provides a basis for reversing the judge's
finding that the operator failed to establish an affirmative
defense.  Id. at 13-17.[5] 
     
     Section 105(c) of the Mine Act prohibits discrimination
against miners for exercising any protected right under the 
Act. A miner alleging discrimination under the Mine Act 
establishes a prima facie case of prohibited discrimination 
by presenting evidence sufficient to support a conclusion that 
the individual engaged in protected activity and that the 
adverse action complained of was motivated in any part by 
that activity. Secretary of Labor on behalf of Pasula v. 
Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd 
on other grounds sub nom. Consolidation Coal Co. v. Marshall, 
663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on behalf of 
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 
(Apr. 1981).  The operator may rebut the prima facie case by 
showing either that no protected activity occurred or that the 
adverse action was in no part motivated by protected activity.  
See Robinette, 3 FMSHRC at 818 n.20. If the operator cannot 
rebut the prima facie case in this manner, it nevertheless may 
defend affirmatively by proving that it also was motivated by 
the miner's unprotected activity and would have taken the 
adverse action for the unprotected activity alone.  See id. 
at 817-18; Pasula, 2 FMSHRC at 2799-800; see also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir.
1987).  

     A	Prima Facie Case

     We have acknowledged the difficulty in establishing a
motivational nexus between protected activity and the adverse
action that is the subject of the complaint.  "Direct evidence 
of motivation is rarely encountered; more typically, the only
available evidence is indirect. . . .  'Intent is subjective 
and in many cases the discrimination can be proven only by the 
use of circumstantial evidence.'"  Secretary of Labor on behalf 
of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 
1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983) 
(quoting NLRB v. Melrose Processing Co., 351 F.2d 693, 698 
(8th Cir. 1965)).  In Chacon, we listed some of the 
circumstantial indicia of discriminatory intent, including 
(1) knowledge of the protected activity; (2) hostility or 
animus towards the protected activity; and (3) coincidence in 
time between the protected activity and the adverse action.  
Id. We also have held that an "operator's knowledge of the 
miner's protected activity is probably the single most 
important aspect of a circumstantial case" and that "knowledge 
. . . can be proved by circumstantial evidence and reasonable 
inferences." Id.  


     The judge found that "Helmericks knew that Clay Baier had
discussed safety issues with MSHA inspectors."  20 FMSHRC at 66.
On review, Durango does not appear to dispute the judge's 
finding that Helmericks knew Baier's discussion with Inspector 
Williams was safety-related.  PDR at 1.  However, to the extent 
Durango's challenge to "the reasoning upon which the [judge's] 
conclusion [that the Secretary established a prima facie case of
discrimination] is based" (PDR at 1) can be construed to raise
the issue of knowledge, we address it.  See Haines v. Kerner, 404
U.S. 519, 520 (1972) (pro se complainant's pleadings held to less
stringent standards than pleadings drafted by attorneys).  In
finding that Helmericks knew of Baier's safety-related discussion
with Inspector Williams, the judge implicitly rejected
Helmericks' claim at the hearing that he did not understand this
discussion to be safety-related.  Tr. 320-22, 444.  The judge's
finding of knowledge is supported by Helmericks' knowledge that
the discussion involved an MSHA safety inspector, that Inspector
Williams suggested to Baier a method of mining the highwall, and
that the discussion coincided with an MSHA inspection of the mine
site.  Tr. 212, 320-22.  We see no reason to disturb the judge's
implicit rejection of Helmericks' claim that he was unaware that
Baier's discussion with Inspector Williams was safety-related.
See, e.g., Fort Scott Fertilizer-Cullor, Inc., 19 FMSHRC 1511,
1516 (Sept. 1997) (finding no circumstances warranting
overturning judge's implicit credibility determinations).
Accordingly, we find that substantial evidence[6] in the record
supports the judge's finding that Helmericks knew that Baier's
discussion with Inspector Williams related to safety.  

     We previously have found improper motivation where the
complainant proved that the operator knew of the protected
activities and that only a short period of time elapsed between
the protected activity and the discharge.  Secretary of Labor on
behalf of Knotts v. Tanglewood Energy, Inc., 19 FMSHRC 833, 837
(May 1997); Bradley v. Belva Coal Co., 4 FMSHRC 982 (June 1982).
The Commission applies no hard and fast criteria in determining
coincidence in time between protected activity and subsequent
adverse action when assessing whether an illegal motive can be
inferred.  See Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531
(Apr. 1991). Surrounding factors and circumstances may influence
the effect to be given to such coincidence in time.  Id.  In
Chacon, for example, complaints ranging from four days to one 
and onehalf months before the adverse action were deemed 
sufficiently coincidental in time to establish illegal motive.  
Chacon, 3 FMSHRC at 2511.  In Donovan on behalf of Anderson v. 
Stafford Constr. Co., 732 F.2d 954 (D.C. Cir. 1984), the court, 
noting that two weeks had elapsed between the alleged protected 
activity and the miner's dismissal, held that "[t]he fact that 
the Company's adverse action against [the miner] so closely 
followed the protected activity is itself evidence of an illicit
 motive." Id. at 960. 



     Helmericks' discharge of Baier occurred approximately two
weeks after Baier's discussion with Inspector Williams.  20
FMSHRC at 60; Tr. 314.  The proximity in time between these
events supports the judge's finding of a discriminatory motive
on the part of Helmericks.  See Donovan, 732 F.2d at 960.  
Moreover, the close relationship between Baier's discussion 
with Inspector Williams, concerning a safe method of mining 
the highwall, and the action which prompted Baier's termination 
also supports the judge's finding of improper motive by 
Helmericks.[7]  The judge's conclusion of unlawful motivation 
is further supported by evidence that none of Baier's alleged 
insubordinate or disrespectful unprotected activities occurring 
prior to his complaint to MSHA C including damaging a loader, 
taunting Helmericks in front of his wife, being rude to female
customers, disobeying Helmericks by bringing his dog to work, 
and the destruction of equipment at the mine by Baier's dog 
(20 FMSHRC at 69-70; Tr. 134-35, 140, 160-62, 182, 246-47, 372)
C resulted inany discipline for Baier.

     Additionally, we note that the judge found that Helmericks
was hostile towards MSHA in general, as well as Baier's
conversation with Inspector Williams.  20 FMSHRC at 66.
Substantial evidence in the record supports the judge's finding
of hostility.  Helmericks appears to have viewed MSHA's decision
on July 17 to talk to Baier rather than his son as an unwelcome
threat to his authority over the mine.  Id. at 62, 69; Tr.
129-30, 360-63.  Furthermore, Baier testified that Helmericks
told him that MSHA inspectors "don't know what they are talking
about" and that MSHA inspectors "give [him] a hard time and want
[his] money."  Tr. 17.  Finally, Helmericks' hostility towards
safety complaints is evidenced by Elvidge's testimony that, when
he expressed to Helmericks his safety concerns and took
photographs of what he considered dangerous conditions,
Helmericks told him to "shut up and get off his property and if
[Elvidge] ever came back [he] would be arrested."  Tr. 169, 173.
At the hearing, Helmericks expressed hostility towards Elvidge
for taking these photographs.  Tr. 323.  Accordingly, we find
that substantial evidence supports the judge's finding that
Helmericks harbored animus towards Baier's safety-related
conversation with MSHA.  

     In sum, based on the factors enunciated in Chacon,
substantial evidence in the record supports the judge's
conclusion that Baier's protected conversation with an MSHA
inspector contributed to Durango's decision to terminate 
Baier's employment.  
     
     B.	Affirmative Defense 

     The raising of an affirmative defense necessitates an
inquiry into whether the proffered business justification was
reason "enough to have legitimately moved that operator to have
disciplined the miner."  Chacon, 3 FMSHRC at 2517.  We have
explained that this affirmative defense should not be "examined
superficially or be approved automatically once offered."  Haro
v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982).  In
reviewing affirmative defenses, the judge must "determine whether
they are credible and, if so, whether they would have motivated
the particular operator as claimed."  Id. (citation omitted).  In
Bradley, 4 FMSHRC 982, we enunciated several indicia of
non-discriminatory reasons for an employer's adverse actions.
Id. at 993.  These include evidence of past discipline consistent
with that meted out to the complainant, the miner's
unsatisfactory past work record, prior warnings to the miner, and
personnel rules or practices forbidding the conduct in question.
Id.  We also have stated:  "It is not sufficient for the employer
to show that the miner deserved to have been fired for engaging
in the unprotected activity; if the unprotected conduct did not
originally concern the employer enough to have resulted in the
same adverse action, we will not consider it."  Pasula, 2 FMSHRC
at 2800. 


     The judge found that Durango had a personnel rule 
forbidding employees other than Helmericks from mining from 
the highwall. 20 FMSHRC at 65.[8]  However, Helmericks did 
not discipline Baier following his prior violations of the 
highwall rule or warn him that any adverse action, let alone 
termination, would result from a violation of the highwall 
rule.  Tr. 60, 63, 65-66, 273, 319. To the extent the 
operator argues that the violation of a work rule warrants 
immediate termination (PDR at 3-4), such an argument is 
inconsistent with Durango's treatment of Baier following his 
previous violations of the highwall rule.  While the judge 
made no findings related to Durango's discipline of its
employees, Durango's treatment of Baier is inconsistent with
nearly all the record evidence of its prior treatment of
allegedly insubordinate employees.[9]  Moreover, the scant 
record evidence of past discipline (Tr. 171, 378) claimed to 
be consistent with that meted out to the complainant involved 
the violation of a different work rule and therefore is 
insufficient to warrant a remand to the judge.  See Virginia 
Crews Coal Co., 15 FMSHRC 2103, 2106 (Oct. 1993) (holding that 
judge's error in failing to comment on evidence was harmless 
where such evidence would not have altered judge's 
determination).

     Durango alleges that Baier's prior unsatisfactory work
record rendered his insubordination on August 1 the "straw 
that broke the camel's back" justifying his termination. PDR 
at 3. The judge made no findings regarding whether the alleged 
previous incidents occurred but, after considering the 
evidence, he found that "[u]ntil Baier raised safety concerns 
following MSHA's inspection, . . . none of the alleged 
insubordinate and disrespectful actions Helmericks refers to 
caused him to terminate Baier's employment with Durango
Gravel."  20 FMSHRC at 70.

     Durango's "straw that broke the camel's back" argument 
was presented before the judge and implicitly rejected. Id. at
69-70; see Fort Scott, 19 FMSHRC at 1516.  The complete absence
of prior warnings and discipline for Baier's alleged prior bad
behavior supports the judge's finding that Durango failed to
establish that the cumulative effect of Baier's prior work 
record rendered his unprotected activity on August 1 the fatal 
"straw." Contrary to Durango's suggestion, we do not read the 
judge's decision as an indication that he considered the alleged
incidents of poor workplace behavior in isolation.  Rather, his
analysis reflects a reading of the entire record, and complies
with Commission Procedural Rule 69(a), 29 C.F.R.  700.69(a),[10] 
and Commission precedent.  See Bradley, 4 FMSHRC at 993 
(affirming judge's finding that operator failed to establish 
affirmative defense, despite the fact that operator presented 
"some reasonable arguments").  We find nothing in the record 
warranting reversal of the judge's rejection of Durango's
argument.  Accordingly, we find that substantial evidence
supports the judge's conclusion that Durango failed to carry 
its burden of establishing that it would have terminated 
Baier's employment for unprotected reasons alone.

                              III.

                           Conclusion

     For the foregoing reasons, we affirm the judge's finding
that Durango Gravel's termination of Baier violated section
105(c) of the Mine Act.
                              
                                                                                
                              Mary Lu Jordan, Chairman  
                                                                                                                                       
                              Marc Lincoln Marks, Commissioner
                                                                                                                                      
                              James C. Riley, Commissioner
                                                                                                                                    
                              Theodore F. Verheggen, 
                                Commissioner
                                                                                                                                    
                              Robert H. Beatty, Jr., 
                                Commissioner



Distribution

Jim Helmericks
Durango Gravel
995 Highway 3
Durango, CO 81301

Stephen D. Turow, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204


**Footnotes:**

     [1] The "toe" is the bottom part of the highwall face, 
and does not include the loose fallen material deposited near 
the highwall.  20 FMSHRC at 67 & n.1 (judge distinguishing 
between digging at toe and scooping loose material); Tr. 16-17, 
19, 166-67; see also American Geological Institute, Dictionary 
of Mining, Mineral, and Related Terms 576 (2d ed. 1997) 
(defining "toe" as the "lowest part of a slope or cliff").

     [2] In 1993, MSHA issued Durango an imminent danger 
order because an inspector observed an employee digging at the 
toe of a highwall with a loader.  20 FMSHRC 60; Ex. P-3.

     [3]   Section 105(c)(2) provides, in pertinent part:  

          Any miner . . . who believes that he has been
          discharged . . . in violation of this subsection
          may, within 60 days after such violation occurs, 
          file a complaint with the Secretary alleging such
          discrimination. . . . If upon such investigation, 
          the Secretary determines that the provisions of 
          this subsection have been violated, he shall 
          immediately file a complaint with the 
          Commission . . . . 

30 U.S.C.  815(c)(2).

     [4] Durango is represented on appeal, as it was below, 
by Helmericks. PDR at 5; 20 FMSHRC at 69. Pursuant to 
Commission Procedural Rule 75(a), 29 C.F.R.  2700.75(a), 
Durango designated its PDR as its brief.  

     [5] The parties focus partly on whether the judge 
properly analyzed the case as one presenting a work refusal 
and whether he correctly determined that Baier's termination 
was discriminatory based on Baier's work refusal. PDR at 2, 
4; S. Br. at 12-13. However, the judge found that the 
Secretary established a prima facie case of discrimination 
with respect to Baier's safety complaint without reference 
to his alleged work refusal, and determined that "Durango 
Gravel did not establish that it would have terminated Baier 
for being on top of the highwall on August 1 if his activities 
did not spring from his safety complaints to MSHA." 20 FMSHRC 
at 66, 69. Because the judge relied on Baier's complaint to 
MSHA as a factor motivating his termination, and because we 
find that substantial evidence supports the judge's conclusion 
that Durango violated section 105(c) based on his protected 
conversations with the MSHA inspector, we need not reach the 
work refusal issue.  

     [6] When reviewing an administrative law judge's 
factual determinations, we are bound by the terms of the 
Mine Act to apply the substantial evidence test.  30 U.S.C. 
 823(d)(2)(A)(ii)(I).  "Substantial evidence" means "'such
relevant evidence as a reasonable mind might accept as 
adequate to support [the judge's] conclusion.'"  Rochester & 
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 
"The possibility of drawing two inconsistent conclusions from 
the evidence does not prevent an administrative agency's 
finding from being supported by substantial evidence."  
Secretary of Labor on behalf of Wamsley v. Mutual Mining, 
Inc., 80 F.3d 110, 113 (4th Cir. 1996) (citation omitted).  

    [7] We are not persuaded by Durango's argument that the
two-week period between MSHA's inspection and the termination 
is too long to establish a coincidence in time in light of the
judge's finding that Helmericks was not the kind of person to
wait to take adverse action against an employee.  PDR at 1.  
The judge found that Baier's unprotected activity was closely
intertwined with his protected discussion with MSHA during the
inspection.  20 FMSHRC at 69.  According to Helmericks' version
of events, the day Helmericks terminated Baier was the first 
time Helmericks had observed Baier on the highwall since the 
MSHA inspection.  Tr. 273, 319. Helmericks fired Baier 
immediately thereafter.  20 FMSHRC at 65.  Accordingly, the 
two-week period between the inspection and the termination 
supports the judge's finding that the termination was motivated 
in part by the MSHA inspection, and is not inconsistent with 
his finding that Helmericks was "volatile."  Id.

     [8]   Although Durango introduced no evidence of any 
written work rules or personnel handbook of any kind, it is
uncontroverted that, prior to August 1, Helmericks told Baier
that no one but Helmericks was permitted to operate equipment 
on top of the highwall. 20 FMSHRC at 65; Tr. 60.

     [9]   The evidence presented by Durango regarding James
Johnson and William Elvidge does not support a claim of
consistent past discipline.  In Durango's answer to the 
complaint of discrimination, Helmericks stated that he 
"discharged" Johnson for refusing to accept a pay reduction 
after violating the no-smoking rule and for failing to 
complete repairs, but admits that Johnson walked off the job 
prior to the "discharge."  Ex. P-5 at 3.  Furthermore, 
Durango's admission that it did not terminate Johnson for his 
failure to obey an order to repair equipment or for his 
violation of a work rule undermines any claim of consistent 
past discipline.  Id.  In Durango's answer to the complaint 
of discrimination, the operator also claimed that it 
terminated Elvidge for "not return[ing] to work as ordered
because he had to ride home with James Johnson" on the day
Johnson was terminated.  Id.  Not only is this asserted 
reason for the termination unrelated to insubordination, but, 
at the hearing, Helmericks equivocated and testified that he 
terminated Elvidge for violating Durango's no-smoking rule.  
Tr. 171, 378. We also note that Elvidge testified that he 
quit because of safety concerns. Tr. 168-70, 173, 193.
  
     [10]   Commission Procedural Rule 69(a) states, in 
pertinent part, that "[t]he [judge's] decision shall be in
writing and shall include all findings of fact and conclusions 
of law, and the reasons or bases for them, on all the material 
issues of fact, law or discretion presented by the record." 
 29 C.F.R.  2700.69(a).