<DOC>
[DOCID: f:p95-479.wais]
WIMPEY MINERALS and TARMAC AMERICA, INC., SUCCESSOR-IN-INTEREST
June 28, 1996
PENN 95-479-DM
        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
WILLIAM F. METZ,                :   DISCRIMINATION PROCEEDING
               Complainant      :
                                :   Docket No. PENN 95-479-DM
                                :   NE MD 95-06
          v.                    :
                                :   Millard Lime & Stone
WIMPEY MINERALS and             :
  TARMAC AMERICA, INC.,         :   Mine ID36-00017
  SUCCESSOR-IN-INTEREST,        :
               Respondents      :
                                :
                             DECISION
Appearances:  William F. Metz, Lebanon, Pennsylvania, pro se;
              William Doran, Esq., Smith, Heenan and Althen,
              Washington, D.C. for Respondent.
Before:  Judge Melick
This case is before me upon the complaint by William Metz
under Section 105(c)(3) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C.  801 et seq., the "Act," alleging that
Wimpey Minerals discharged him on March 21, 1995, presumably in
violation of Section 105(c)(1) of the Act.[1]More particularly,
Mr. Metz alleges in his May 6, 1995, complaint to the Department
of Labor's Mine Safety and Health Administration (MSHA) as follows:
After several attempts to convey to management our
concerns about Gene Graham mainly safety related issues they
told us that they did not want to here [sic] any problems
related to Gene Graham &  on or around March 16th I told Roy
Lashbrook again my concerns & that I wanted a meeting with
James Gregory, Vice President.  Roy told Carrol & Carrol came
to see me wanted to know what my problem was now I sad [sic]
same thing as [illegible] other than that Gene was trying
very hard not to flip out on anybody but that was it and you
know the things (safety items) are not getting repaired &
also telling people to do things they should not be doing
(the safe way) he said bill [sic] whats [sic] your problem
everything is running I said thats [sic] my problem thing
[sic] running that probably shouldn't on March 21st he came
to me about 9:00 p.m. & told me I was fired why I asked he
said it just wasn't working out.  This is just a brief and
to the point response to the action I don't believe people
should be fired for voicing their concerns about safety &
also they should make a mockery of MSHA since you's [sic]
are there for are [sic] safety I will get into that with the
investigator
I would like to be reinstated to my job with my seniority
and back pay from March 21st and unemployment payed [sic]
back because if & when I go back if they lay me off I won't
have any unemployment you only get 26 weeks and till this is
resolve [sic] I might not have any left and Insurance
Reinstated from time of firing.
The Secretary declined to pursue the above complaint and
Mr. Metz brought this action before this Commission on his
own under Section 105(c)(3).
Metz testified at hearing that he began working for Wimpey
Minerals in February 1988 as a heavy equipment mechanic and
continued to work in that capacity until he was terminated
on March 21, 1995.  It appears that Metz' difficulties began
when Gene Graham took over as Team Leader of the shop in
1993.  According to Metz, in late 1993 or early 1994, he
observed Graham remove a "tag" that Metz had placed on the
fuel truck because it purportedly had no brakes.  Metz
claims he told Graham that if the truck went out again
(presumably without the brakes being repaired) he would see
Graham's supervisor, Gary Nolan.  There were apparently no
further problems with that truck and Metz concedes that
nothing happened to him as a result of this complaint.
The next relevant incident apparently occurred on
April 11, 1994.  In the early morning hours of that date
Metz and mechanic John Leffew were working together.  Metz
had previously noted a series of problems with defective
steering cylinders on some of the 50-ton haul trucks so he
and Leffew went out to the quarry to check on some of the
other 50-ton trucks.  Checking the trucks with a flashlight
around 3:00 or 4:00 in the morning, Metz found what he
deemed to be defective steering problems on four of them.
He tagged those trucks, thereby, in effect, barring their
use until repaired.
When the drivers appeared for work later that morning they
inquired of their boss, Lenny Mussar, why their trucks had
been tagged-out and Metz responded that it was because of
steering problems.  Metz then returned to the shop where
Graham later inquired about the tagged trucks.  According to
Metz, Graham asked him to remove the tag from at least one
of the trucks and Metz refused.  Metz claims that Graham
then told him to come to his office where he presented Metz
with two warning slips he pulled out of his desk.  One
warning was for failing to note the time on a meter reading
slip and the second was for failing to stop before driving
across the railroad tracks.  According to Metz, Graham then
again asked him to remove one of the tags and when he again
refused, purportedly told Metz he was fired.  Metz then went
home.  He was later called by Human Resources Manager Chris
Harvan who set up a meeting for the next day.
At the meeting on the next day, April 12, Harvan, Gene
Graham and the Complainant met.  As a result of this meeting
Harvan presented Metz with a letter (Complainant's Exhibit
No. 1) indicating that his suspension with intent to
discharge was reduced to a three-day suspension without pay
and 90-days probation.  Harvan did not testify but,
according to Graham, this was based on the warning notice he
issued on April 11, 1994 after the "tag-out" confrontation
(Respondent's Exhibit No. 3) because Metz was "loud",
"insubordinate", and "the biggest thing was his threatening
statements" that "I am going to become your worst
nightmare."  Graham acknowledged that he also gave Metz two
other warning notices after the April 11 confrontation
(Respondent's Exhibits No. 1 and 2).  Graham further
acknowledged that the "conversation got out of hand" only
after he asked Metz to reverse his decision about tagging-
out the trucks.  Both Graham and Carroll Laufmann claim that
Metz' suspension was not based however on his tagging-out
the trucks.
Metz claims that he also complained at the April 12 meeting
about Graham's prior removal of warning tags and was told
not to confront Graham about anything.  He noted that
"everybody" was having verbal exchanges with Graham who,
according to Metz, "kept going nuts" and was always arguing
about something.
Metz also testified that there had been a meeting between
January and April, 1994, at which Graham's supervisor,
Carroll Laufmann, told a group consisting of Metz and co-
workers, Ted Gress, Jim Shirk, John Leffew, and Feliciano
"Chico" Rivera, that "I do not want to hear anything negative
to do with Gene Graham, safetywise or otherwise."  Laufmann
acknowledges that he wanted the mobile equipment shop crew
to stop looking at all the negative things Graham was doing
as a supervisor but could not recall telling them not to
bring safety issues regarding Graham to his attention.
Metz further testified that his discharge on March 21, 1995,
was preceded by a meeting with Laufmann on March 16, 1995.
Metz described the meeting in the following colloquy:
     [Complainant Metz]:   He [Carroll Laufmann] walked in
and said,  "What's your fucking problem now,"  and that's a
quote.
     And I said, "Same thing it's been, just a few
more incidents.:
     And he said, "What's your fucking problem?
Everything's running."
     And I said, "That's my problem.  Everything's
running, and things that shouldn't be running."
     And at that point, he just sat there and looked
at me.  I said, "You've either got to do something [or] I'm
going to [c]all MSHA and let them deal with it because I
can't take it no more."
     BY JUDGE MELICK
     Q.   This is what Carol said?
     A.   No, I told this to Carol.  And as he walked up,
he got up and walked out and didn't say nothing more to
me.  And I told him, "By the way, tell James I'm the one
that sent the letter."  And that's all I said to him.
     Q.   Who is James?
     A.   James Gregory, I guess he's the vice president.
At that time, I guess he was the vice president of Wimpey
USA.  I don't know what his -- he's some kind of
president.
     Q.   And did Carol know what this letter was?  Did
you discuss the letter in this conversation?
     A.   No.
     Q.   Well, how would he know what this letter was
then if he didn't know, if you didn't discuss it?
     A.   I don't know if he knew or not.  The person
that the letter was sent to -- and I can only speculate
that the day he go it --
     JUDGE MELICK:  Well, I don't want speculation.
Unfortunately, we can only have what you know.
     THE WITNESS:   Well, I'm the guy that sent the
letter.
BY JUDGE MELICK:
     Q.   Well, what letter is this, by the way?
     A.   It was a letter of a conversation I'd overheard
between Gene Graham and Dave Douville.  I was standing
right there.  Gene was telling me about it.  Dave
Douville walked in.
     Q.   Who is Dave Douville?
     A.   Do you want me to tell you what was said in
that conversation?
     Q.   Well, I'm just wondering what the relevance of
this letter has to do with --
     A.   Well, a guy died.
     Q.   A guy died?
     A.   Yes.
     Q.   And what did the letter have to do with the
guy's death?
     A.   The letter had to do with two weeks prior to
the guy dying, Gene Graham and Dave Douville that works
for Tire Centers, Incorporated, walked across the same
grating and fell through it; didn't fall through it, but
almost fell through it.
     Q.   So who did you send the letter to?
     A.   I sent it to Bob Furlong.
     Q.   Who is Bob Furlong?
     A.   And also sent a copy to George Brandt's wife.
     Q.   Well, who are these people; Bob Furlong and
somebody's wife?
     A.   Bob Furlong was the president of the company.
     Q.   This was not then sent to the Mine Safety and
Health Administration or any government agency?
     A.   I don't think so.
     Q.   So then what happened after this conversation
with Carol Laufmann?
     A.   I can only go by their dates.  I wasn't writing
stuff down.   But I believe it was three days later, I
started at, like, 8:30.  It was about 9:00.  He walked
up.
     Q.   When you say "he," is that Mr. Laufmann?
     A.   Yes.  He told me he wanted to see me in the
office.  I walked in.  He set down.  He told me he was
going to have to ask for my resignation.  I told him I
was in no position to give him my resignation nor did I
want to.
     He asked me again, and I said, "Well, what's
the problem?  What did I do?"  I said, "I asked for a
meeting and all of a sudden, I got fired."  I said, "I'm
using your grievance procedure."  They have it right here
in a book.  And all of a sudden, I got fired because I'm
making one more safety complaint about Gene Graham.
     And it wasn't just about that letter that I
wanted to talk to him about.  I never got to tell him
anything.
     Q.   And then what happened at that point?
     A.   Well, then I was fired because I wouldn't give
him my resignation.  He followed me up to my toolbox.  I
took all my personal stuff and left.
     Q.   Now, I guess we're going to have to get a
little more information.  When you said you had made a
safety complaint about Gene Graham, when did you make
this safety complaint?
     A.   We made many -- we attempted to.
     Q.   Did you, in fact, ever make a safety complaint?
     A.   They wouldn't let us.  (Tr. 15-19).
Laufmann's description of the March 1995 events leading to
     the Complainant's discharge is set forth in the
     following colloquy:
     Q.   And Mr. Metz was discharged March 21 of 1995.
Was there a specific incident that led to his discharge
at that time?
     A.   Yes, there was.
     Q.   Could you describe that incident for me, please?
     A.   The incident began a couple days earlier when
John Leffew approached Roy Lashbrook, who at this time
had been substituted in the sort of chain of command
between Gene Graham and myself.  John came to Roy and
said that Bill had requested that Roy set up a meeting
with James Gregory.
          Roy suggested that he go back and tell Bill
that he needed to go through the chain of command, rather
than jumping over Roy and myself directly to James.  And
I believe Roy, at that time, also sent back the message
that he would meet with Bill the next morning at 5:30.
     Q.   To your knowledge, did Roy meet with Bill?
     A.   Yes.  To my knowledge, that meeting did indeed
take place.
     Q.   Did Roy talk to you after that meeting?
     A.   Roy talked to me after that meeting and said
that he hadn't been able to satisfy Bill, that Bill was
still asking to meet with James Gregory and suggested
that, to follow the procedure outline, that I come in
early the following morning to meet with Bill and see if
I could answer Bill's question or problem.
     Q.   Did Roy explain to you or present any issues to
you that Mr. Metz had raised?
     A.   Not in any detail, no.
     Q.   Did you meet the next day with Mr. Metz?
     A.   Yes, I did.  I came in, arrived at the quarry
site at approximately 5:30 the next morning and went to
find Bill.  I located Bill and told him that I was there
to discuss the situation.  Bill was fairly
noncommunicative.
          I said, "Look, we've got to follow the
procedure.  I need to know what the problem is, so I can
carry it on to James, tell him what I know about it and
arrange a meeting."
          So I pressed Bill again.  I said, What is the
problem?
          Bill finally said, "It's the same old thing.
Gene Graham's blowing smoke up your ass."
     Q.   What did he mean by that?
     A.   I am not sure what Bill meant by that.
     Q.   Did you ask him what he meant by that?
     A.   No, I did not.
     Q.   Did you ask what the "same old" problem was?
     A.   I continued to say, "Let's elaborate more on
this situation."  Again, I don't recall exact -- that
exact phrase sticks in my mind, but after that, I don't
recall exact words.  It came out something to the effect
that it was Gene Graham -- that Bill could just no longer
work with Gene.
          I said, "Bill, this is directly 180 degrees
against what we put in the letter in April of `94," that
was sort of the letter that had saved his job at that
time.  I said, "Bill, if it's that bad, why didn't you
take the opportunity to bid on the job posting to get
into the line plant?"
     Q.   And what's that?  Explain that to me.  What's
the job posting at the line plant?
     A.   The job postings at Millard are done if a vacancy
occurs anywhere on the Millard site.  The job,
the rate and description are put up in our change
building, left up for a week or two.  I forget which
exactly the time is.
          And during that time, people can stop in at our
plant office, sign up, put their name on a list of people
to be evaluated for filling that position.  The advantage
to this position was that it would have been a transfer.
I believe the two jobs paid the same.  So it wouldn't
have been -- they're both right at the top of the pay
scale at Millard.  There wouldn't have been the problem
with taking a pay cut or something.
     Q.   Let me ask you, you had mentioned that you said
to Mr. Metz that this was a contravention of his
agreement that he made in April of `94.
          Can you describe to me what you mean there?
What agreement are you talking about?
     A.   Again, as I said earlier, I had actually made
the decision that Bill should be discharged twice.  The
time in April of `94 was overruled, if you will, I think
largely because the person I was working for was brand
new to Millard, had only been there three or four weeks,
really didn't know me and really didn't know the
situation well.
     Q.   And who is that?
     A.   James Gregory.  He really didn't know me well.
I knew part of the reason maybe he was there was because
the previous administration, if you will, maybe hadn't
been as cautious in all cases and maybe should have been
in some of these instances.  And he wanted to be very
sure he was doing the right thing.
          So he basically said, "Let's go back and see if
we can't find a way to keep this person's job."
     Q.   And what did you do at that point?
     A.   At that point, Chris Harvan and I, who at that
point was human resources director, I believe, set down
and over a series of a meeting or two hammered out what
we felt were the minimum requirements that it would take
for me to be willing to keep Bill Metz on his job.
(Tr. 308-312)
     Q.   Focusing back on your decision to discharge
Mr. Metz, at any time in making your decision -- well, first
of all, let me ask you, did you consult with anyone else
in making your decision?
     A.   In March of `95 now?
     Q.   That's right.
     A.   Yes, I basically made the decision.  I called
my supervisor, the vice president of -- I'm sorry.  I'm
getting the two instances confused.  Let me start over.
          In March of `95, once Bill had told me that,
number one, that he thought the letter of agreement from
April of `94 was "bullshit" and that he could -- and had
also made the statement that either he or Gene Graham was
going to have to go, I didn't feel like I had any choice.
Once Bill made those two positions very clear to me, I
thanked him and left, said I would set up a --
          JUDGE MELICK:  This was at the meeting you had
with him in March of `95?
          THE WITNESS:   This was when I came into the
job site at 5:30 in the morning in March of `95, that's
correct.
          JUDGE MELICK:  And he told you at that time
that the --
          THE WITNESS:   He told me at that time that
this letter that he unfortunately didn't sign and return
was a "bunch of bullshit," that he had never agreed to it
in the first place and didn't agree to it now.
          JUDGE MELICK:  Wait a second.  That was at the
prior meeting?  This was not in March of `95?
          THE WITNESS:   This was in March of `95, again,
bringing up the fact that he did not ever agree to the
letter, despite the fact that we had set in Chris
Harvan's office and agreed that this was the terms and
conditions he was going to come back to work for.  And in
March of `95, he's saying "it's bullshit," that he never
agreed to it, still doesn't agree to it and basically
refused to agree with it.
BY MR. DORAN:
     Q.   If I can ask you a question, this is the
meeting the day after he met with Roy Lashbrook?
     A.   This is a meeting the day after he met with Roy
Lashbrook, yes.
          JUDGE MELICK:  He had said at that meeting
then, again, that the letter of April of `94 was
"Bullshit"?
          THE WITNESS:   Was "bullshit," he didn't agree
to it then and doesn't agree to it now.
     Q.   And the decision to discharge Bill Metz was not
given to him on that date; is that correct?
     A.   That's correct.  I left that meeting.  I
thanked Bill for his time.  I said I would set up the
meeting with James Gregory, contacted James, told him
what had transpired, said that I just couldn't see any
option any longer and that I felt that we had to
terminate Bill.  And that was my recommendation.
          At this point, James has worked with me for a
year.  I'm permanent in my position.  James has a better
feel for the plant and people and basically agreed with
my recommendation.
     Q.   And did you communicate that decision to
Mr. Metz?
     A.   Yes, I did.  It was not intended for me to
communicate that decision to Mr. Metz.  There was a date
set for Bill to talk to James Gregory.  James and I had
agreed that, unless something came up during that meeting
that didn't come up during my meeting with Bill, that at
the conclusion of that meeting, that James would inform
Bill that he was terminated.
          The day before the meeting with James was to
take place, we internally in the plant talked the
decision over with a few of the team leaders, what we
thought in private, to get them ready to -- again, we
just don't like to have decisions like this to be made
and then the rumor mill get a hold of them before we can
make any kind of announcement for the work place.  So we
told some people ahead of time.
          For one reason or another, that information got
out into the work force, yet, that afternoon, Bill was
scheduled to come to work that night.  I believe Roy
Lashbrook received the first call at home at 6:00 p.m. or
7:00 p.m. in the evening saying, "The word's out.  You
guys maybe ought to consider doing something different."
Roy called me and told me.
          I called James.  I said, "I don't think it's a
good idea to have Bill on site, unsupervised," because at
that point, we didn't have a supervisor on the night
shift, "if he gets word that he is to be discharged the
next day."
          James said, "Yes," he agreed with that.  We
agreed that, since I lived closer to the mine site, I
would drive back, meet with Bill and give him the word
that he was being discharged, but also tell Bill he
should, by all means, go ahead and call James Gregory and
set up a meeting with James to have the meeting that they
were to have had the following day.
     Q.   And did you meet with Mr. Metz?
     A.   Yes, I did.
     Q.   And during that meeting, did Mr. Metz express
any safety concerns to you?
     A.   No, he did not.  (Tr. 334-338)
Whether safety issues were considered in discharging Metz
     was discussed by Laufmann in the following colloquy:
     Q.   [Mr. Doran] Let me ask you one final questionhere.
     In making your decision to discharge Metz, did any
effort on your part to prevent Mr. Metz from making
safety concerns enter into your decision?
     A.   No.  At no time, if anybody comes to me with a
safety concern, it's basically between them and I.  And
again, if somebody comes and says, "I need five minutes
of your time.  Can I close the door and can we discuss a
safety concern?"  by all means, we close the door and
discuss a safety concern.
     Q.   Did Mr. Metz at any time during your tenure as
stone plant manager ever make any specific safety
complaints or safety concerns regarding Mr. Graham?
     A.   I don't recall Bill ever coming to me with a
specific hard fact that Gene had --
     Q.   Did you ever ask him for hard facts?  Did you
ever ask him for specific issues?
     A.   I never went to Bill Metz and said, "Bill, can
you tell me three things that Gene has done unsafe?"  At
every team meeting, there was a period at the end of the
meeting that everyone was invited to bring up a safety
concern, if they had one.
          And there were some minor things brought up
there that tended to be more on the line of, "Can we do a
better job of snow removal," or "What's the temperature
in the shop going to be this year," or there's maybe a
door that needs to be fixed or something.
          But in the way of items that I would say are
real true safety, life-threatening or injury-threatening
          safety concerns, no.  (Tr. 340-341)
This Commission has long held that a miner seeking to
establish a prima facie case of discrimination
under Section 105(c) of the Act bears the burden
of persuasion the he engaged in protected activity
and that the adverse action complained of was
motivated in any part by that activity.  Secretary
on behalf of Pasula v. Consolidation Coal Co., 2
FMSHRC 2786, 2797-2800 (1980), rev'd on grounds,
sub nom.  Consolidation Coal Co. V. Marshall, 663
F.2d 1211 (3rd Cir. 1981); and Secretary on behalf
of Robinette v. United Castle Coal Co., 3 FMSHRC
803, 817-18 (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 the protected
activity.  If an operator cannot rebut the prima
facie case in this manner, it may nevertheless
defend affirmatively by proving that it would have
taken the adverse action in any event on the basis
of the miner's unprotected activity alone.
Pasula, supra; Robinette, supra.  See also Eastern
Assoc., Coal Cor. V. FMSHRC, 813 F.2d 639, 642
(4th Cir. 1987); Donovan v. Stafford Construction
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).  Cf. NLRB v. Transportation
Management Corp., 462 U.S. 393, 397-413 (1983)
(approving nearly identical test under National
Labor Relations Act).
It cannot be disputed that Metz' activity on
April 11, 1994, in tagging-out Respondent's
haulage trucks for steering defects was protected
activity.  In addition, while not clearly articulated,
it is apparent from Metz' credible testimony that he
also attempted to report safety issues regarding
Team Leader Graham to Graham's supervisor, Carroll
Laufmann in early 1994 and again at his meeting
with Laufmann on March 16, 1995, five days before
his dismissal.  At the latter meeting Metz also
complained that certain equipment "shouldn't be
running" and told Laufmann that "you've either got
to do something [or] I'm going to [c]all MSHA and
let them deal with it because I can't take it no
more," (Tr. 16).  It is noted that Laufmann never
specifically denied this testimony and was
generally evasive on the subject.  These too are
clearly activities protected under the Act.
As noted, the second element of a prima facie case
of discrimination is a showing that the adverse
action was motivated in any part by the protected
activity.  As this Commission observed in 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), "[d]irect
evidence of motivation is rarely encountered; more
typically, the only available evidence is
indirect."  The Commission considered in that case
the following circumstantial indicia of
discriminatory intent: knowledge of protected
activity; hostility towards protected activity;
coincidence of time between the protected activity
and the adverse action; and disparate treatment.
In examining these indicia the Commission noted
that the operator's knowledge of the miner's
protected activity is "probably the single most
important aspect of the circumstantial case."
In the instant case there is both direct and indirect
evidence that Metz' discharge was motivated by his
protected activity.  The direct evidence is in
Respondent's letter confirming the reasons for
Metz' dismissal (Complainant's Exhibit No. 2)
wherein Respondent cites the April 11, 1994,
alleged "insubordination" as an underlying basis
for the dismissal.  Insubordination is
disobedience or the unwillingness to submit to
authority.  In the context of the April 11
incident Metz' insubordination was essentially
only his refusal to comply with his supervisor's
(Graham's) request for him to remove at least one
of the danger tags he had placed on the haul
trucks at the quarry.
While Graham testified that Metz' discipline in
April 1994, was also based on his loudness and the
fact that he said to Graham "I will be your worst
nightmare", neither factor under the circumstances
of this case would warrant the subsequent severe
disciplinary action and discharge.[2]  No physical
threat was cited by Graham in his testimony and
Metz' "loud" spontaneous reaction may reasonably
be construed as having been provoked by Graham's
efforts to have Metz submit to his authority and
allow at least one of the trucks Metz found
hazardous to operate without repair.  A miner does
not forfeit his rights to Mine Act protections
under such circumstances.
As noted, the latter complaints and threat to call
MSHA were made only five days before Metz was
discharged and were made to the same person, Laufmann,
who had already concluded that Metz  should have been
fired for his April 11, 1994, protected activity
and to the same person who again recommended Metz'
discharge. [3]   It may reasonably be inferred
therefore that Respondent was also motivated by
these protected activities in discharging  Metz.
  Metz  has  accordingly established  a prima
facie case of  discrimination that is unrebutted.
In accordance with the Pasula analysis the issue
then is whether Respondent has affirmatively
defended by proving that it would have taken the
adverse action in any event on the basis of Metz'
unprotected activity alone.  In this regard
Respondent's evidence is insufficient.  Again,
looking to the April 21, 1995, letter setting
forth the reasons for Metz' termination, it is
noted that the warnings for incidents on April 7 and
April 8, 1994, were not issued to Metz until after
he had engaged in the April 11 protected activity
and, according to  witnesses,  were trivial
incidents others had also committed without
repercussion.  The April 12, 1994, "agreement" or
"second chance" was clearly premised on Metz'
protected activity on the day before and cannot
therefore be considered a non-protected basis for
subsequent  action.  The undisputed charges that
Metz ignored his Team Leader, avoided
acknowledging instructions from him and often did
not complete his paperwork in a timely fashion and
the  October - November 1994 instances of "poor
conduct" where Metz was reportedly "extremely
arrogant and argumentative" and when he
was overheard by an outside vendor's employee,
Charles Vlasic, "shout abusively at his Team
Leader for about five minutes"
(Tr.  218) clearly provided  legitimate  and non-
protected  grounds for  disciplinary action but no
action was then taken.  If  this behavior was
considered sufficiently serious to warrant
dismissal, such action should then have been
taken.   Here no action was taken until Metz
engaged in additional protected activity on March
16, 1995.
Finally  the alleged ultimatum, in which Metz
purportedly said that either Graham or he would
have to go, is credibly denied by Metz.  This denial
is also corroborated by the  testimony of employee
James Shirk who was given contradictory  reasons for
Metz' dismissal by Wimpey Vice President James
Gregory.  In addition, if such an ultimatum were
in fact presented  then  it may reasonably be
concluded that Metz  would in fact  have resigned.
Under the circumstances Respondent has failed in its
burden of proving an affirmative defense.  Complainant
has established that he was discharged in
violation of the Act.
                         ORDER
The parties are directed to confer regarding
reinstatement, costs, damages and interest and are
directed to report to the undersigned on or before
July  16, 1996, regarding whether such issues can be
stipulated.  If such issues cannot be stipulated
by that date, further hearings will be held on
these issues on
July 25, 1996, in Harrisburg, Pennsylvania.  This
decision is accordingly not final and a final
decision will not be issued until such issues are
resolved.  Boone v. Rebel Coal co., 3 FMSHRC 1900
(August 1981)
                         Gary Melick
                         Administrative Law Judge
                         703-756-6261
Distribution:
Mr. William F. Metz, 2404 Long Lane, Lebanon, PA 17046
(Certified Mail)
William Doran, Esq., Smith, Heenan & Althen,
1110 Vermont Ave., N.W., Washington, D.C.  20005
(Certified Mail)
\jf
**FOOTNOTES**
[1]: Section 105(c)(1) of the Act provides as follows:
     No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discriminationagainst
or otherwise interfere with the exercise of thestatutory rights
of any miner, representative of miners orapplicant for employment
in any coal or other mine subjectto this Act because such miner,
representative of miners orapplicant for employment has filed or
made a complaint underor related to this Act, including a
complaint notifying theoperator of the operator's agent, or the
representative ofthe miners at the coal or other mine of an
alleged danger orsafety or health violation in a coal or other
mine, orbecause such miner, representative of miners or applicant
for employment is the subject of medical evaluations andpotential
transfer under a standard published pursuant to
Footnote 1 Continued
     Section 101 or because such miner, representative of miners
or applicant for employment has instituted or caused to be
instituted any proceeding under or related to this Actor has
testified or is about to testify in any suchproceeding, or
because of the exercise by such miner,representative of miners or
applicant for employment onbehalf of himself or others of any
statutory right affordedby this Act.
     [2]: While the subject dismissal letter states that Metz
also said to Graham "I will get you Gene", Graham testified only
that Metz said "I will be your worst nightmare".  Graham's
testimony under oath is accorded the greater weight and is deemed
to be the more accurate version of what he claims was said.  (Tr.
233-234)
     [3]:  While Metz acknowledged on cross examination that he
did not in March 1995 make "safety complaints" to management,
this testimony is not necessarily contradictory.  Metz apparently
did not construe as "safety complaints" his threat to call the
Mine Safety and Health Administration (MSHA) if certain equipment
was allowed to continue operating.