.
KENNECOTT BARNEY'S CANYON MINING COMPANY
March 27, 2000
WEST 99-169-DM

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268

                         March 27, 2000

SECRETARY OF LABOR, MSHA        : DISCRIMINATION PROCEEDING
  on behalf of MARK L. POLLOCK, :
               Complainant      : Docket No. WEST 99-169-DM
                                :
          v.                    :
                                : Barney's Canyon Mine
KENNECOTT BARNEY'S CANYON       : MSHA Id. No. 42-02040
  MINING COMPANY,               :
               Respondent       :
                                :
                                :
SECRETARY OF LABOR, MSHA        : DISCRIMINATION PROCEEDING
  on behalf of TONY M. LOPEZ,   :
               Complainant      : Docket No. WEST 99-170-DM
                                :
          v.                    :
                                : Barney's Canyon Mine
KENNECOTT BARNEY'S CANYON       : MSHA Id. No. 42-02040
  MINING COMPANY,               :
               Respondent       :

                             DECISION

Appearances: Mark W. Nelson, Office of the Solicitor, U.S.
             Department of Labor, Denver, Colorado, for
             Complainants;
             Laura E. Beverage, Esq., and Karen L. Johnston,
             Esq., Jackson & Kelly, Denver, Colorado, for
             Respondent.

Before: Judge Manning

     These cases are before  me  on  complaints of discrimination
brought by the Secretary of Labor on behalf  of  Mark  L. Pollock
and  Tony  M.  Lopez  against  Kennecott  Barney's  Canyon Mining
Company ("Kennecott") under section 105(c)(2) of the Federal Mine
Safety  and  Health Act of 1977, 30 U.S.C. 815(c)(3) (the  "Mine
Act").  A hearing  in the cases was held in Salt Lake City, Utah.
The parties presented  testimony  and  documentary  evidence  and
filed post-hearing briefs.

     Mr.  Pollock  filed  three complaints of discrimination with
the Department of Labor's Mine  Safety  and Health Administration
("MSHA")  and Mr. Lopez filed one complaint.   MSHA  investigated
the complaints, determined that Kennecott violated the provisions
of section  105(c)(1)  as  alleged  in  each complaint, and filed
these discrimination cases.

                       I.  FINDINGS OF FACT

     Barney's Canyon Mine is a surface gold  mine  in  Salt  Lake
County, Utah.  Several unions represent the employees at the mine
under  one  collective bargaining agreement.  Messrs. Pollock and
Lopez acted as  miners' representatives under the Mine Act at the
Barney's  Canyon  Mine.    Mr.   Lopez   has   been   a   miners'
representative   since   1990,   but   his   role  as  a  miners'
representative  diminished  over  time.  He was chairman  of  the
local steelworkers union and was on the grievance committee.  Mr.
Pollock began representing miners in  about 1995 and he was quite
active  in  that role at the time of the  events  in  this  case.
Between May 20  and  June  14,  1998, five hazard complaints were
filed  with  MSHA by miners at the  Barney's  Canyon  Mine.   Mr.
Pollock was directly responsible for filing two of the complaints
while Mr. Lopez filed one of the complaints.

     At all pertinent  times,  Mr.  Pollock  was  an  ore-control
technician on the day shift .  He was required to perform various
duties  that  sequentially  take  place at the mine.  As an  ore-
control technician, Pollock marked the exact locations on benches
for the drilling crew to drill holes  that  would subsequently be
filled  with explosives.  This task is referred  to  as  "marking
pattern."   After  the  holes  are  drilled, he tags and collects
samples of cuttings that are placed in bags by the drilling crew.
He delivers the bags to the assay laboratory  at the mine.  Next,
he "flags the holes," using numbered flags that  correspond  with
the bags of drill cuttings.  The assay lab identifies the samples
as  ore  or  waste  and plots this information on a computer map.
The mine's surveyor performs  a  survey  of  the area using a GPS
pack  and  the  computer  map.   With the assistance  of  an  ore
technician or another person, he marks  the  areas containing ore
with green lath so that the mining crew knows which areas contain
gold ore and which areas are waste.  Painted stakes  and lath are
used to mark the outside boundary of the ore-containing material.
Because  of  the  nature of his work, Pollock travels around  the
mine in a company pickup  and frequently works independently.  At
all relevant times, Kennecott  was  mining in an area of the mine
known as the Melco pit, which is about  a  20- to 30-minute round
trip drive from the assay lab.  Mr. Lopez was  an  ore technician
until  1996.  In the summer of 1996, he became a driller  on  the
swing shift.

      A.  Mr. Lopez's Discrimination Complaint

     On  July  10,  1998, Mr. Lopez was assigned to operate Drill
No. 102 (the "drill").   During his preshift inspection, he noted
that the side window on the  drill  was  broken.   He  previously
reported that this window was broken during the week of  June 29,
1998.   Mr.  Lopez's supervisor, Gil Valdez, told Lopez that  the
window would be  fixed.  When Lopez pointed out the broken window
to Valdez on July  10,  Valdez told Lopez to get to work.  Valdez
also told Lopez that he would  be sent home if he did not operate
the drill.  Lopez believed that  the  condition  of the glass was
caused  by the hydraulic hoses of the drill banging  against  the
window and  that  he  was  worried  the he could get glass in his
eyes.  The window apparently had been  replaced  the  week before
but  the  hydraulic  lines  broke  it again.  Mr. Lopez contacted
Kennecott safety representatives Brian  Regan  and  Steve Lackey.
After  examining the window, Mr. Regan concluded that  no  safety
hazard was  created  by  the condition of the glass.  Regan noted
that the safety glass was cracked, not broken, and asked Lopez if
he  could finish his shift  and  the  drill  would  be  fixed  in
accordance with the mine's preventive maintenance program.

     Lopez also contacted Ray Gottling, Operations Manager.  When
Gottling  arrived  at  the  drill,  he  determined that no safety
hazard  existed.  Nevertheless, he shut down  the  drill  because
Lopez seemed  so  upset about it.  Mr. Gottling testified that he
was not aware that  Mr. Lopez was concerned about hydraulic hoses
hitting the window.   (Tr.  1340).   Lopez  also complained about
hydraulic fluid on the walking surfaces of the  truck.  After the
drill  was  shut  down, Valdez ordered him to clean  the  walking
surfaces of the truck with a steam cleaner.  Lopez testified that
Valdez told him that  he  "wasn't  through"  with him and that he
would "get even."  (Tr. 392).  Mr. Lopez asked  another  employee
to telephone MSHA to complain about the hazardous condition.   An
MSHA  inspector  subsequently inspected the drill, but he did not
issue any citations.  The window had been replaced by the time he
arrived.

     The next day,  Mr.  Pollock  and  Tom  Withers, an equipment
operator, were doing reclamation work.  Mr. Valdez  drove  up and
asked  Mr.  Pollock  why he is always getting him in trouble with
Mr. Gottling.[1]  (Tr.  69).   Pollock  testified  that  he  told
Valdez  that  if he did things safely, he would not be in trouble
so much.  Mr. Withers  then  asked  Valdez how he likes Lopez and
Pollock getting him in trouble by going  over  his  head.  Valdez
responded,  "I'll  get  even."  (Tr. 69, 275.)  Both Pollock  and
Withers believed that Valdez's threat was serious.

     A few days later, Mr.  Lopez  went on a previously scheduled
vacation.  When he returned, Lopez was  charged with a failure to
meet   Kennecott's   mandatory  drilling  quota.    Following   a
disciplinary hearing,  a  disciplinary  letter  was placed in his
file for this offense.  (Ex. R-1).  On September  13,  1998,  Mr.
Lopez  filed  his discrimination complaint with MSHA.  He alleges
that this discipline was taken against him in retaliation for his
safety complaint.

     The disciplinary letter was signed by Valdez and states that
Lopez failed to  meet  the  company's  drilling  standards during
March, May, and June 1998.  Id.  It further states  that if Lopez
failed  to  meet these standards in any month before March  1999,
another disciplinary  hearing would be held.  Lopez contends that
he should not have been  disciplined  at all or that, at most, he
should have received an oral warning.   (Tr.  463).   He believes
that if he had not made the safety complaint described  above, he
would  have  received  an  oral  warning.  By filing this action,
Lopez is seeking to have the letter  removed  from  his personnel
file  along with records of all other disciplinary actions  taken
against him by Mr. Valdez.

      B.  Mr. Pollock's First Discrimination Complaint

     On  July 14, 1998, Mr. Pollock filed a safety complaint with
MSHA because  of  his  belief  that  the  drill still presented a
safety hazard.  (Tr. 63; Ex. C-5).  He was  especially  concerned
that  the  Murphy  switch on the drill was broken with the result
that the drill operator  would  not know if the compressor engine
"was going to explode."  (Tr. 64).   The Murphy switch apparently
indicates the temperature of the compressor  oil.   The complaint
also  states  that  the  window  was  broken  again.   When  MSHA
investigated  this  complaint,  it determined that the conditions
did  not present a hazard.  MSHA determined  that  the  defective
Murphy  switch  merely posed a risk to the equipment, but that no
miners would be injured if the compressor engine overheated.

     On July 15,  Gerald  Slothower, the engineer and short-range
planner, approached Pollock  to  tell  him  that "people in admin
were a little upset with [Pollock] for calling  MSHA."  (Tr. 80).
Mr. Slothower indicated that he believed that Pollock's  concerns
were not unreasonable.  Slothower was Pollock's supervisor.

     Mr.   Pollock  talked  to  Laurie  Priano,  Human  Resources
Manager, about  this  alleged harassment, but she did not believe
that   he  was  being  harassed.    Pollock   filed   his   first
discrimination  complaint  with MSHA on August 31, 1998 (MSHA No.
RM MD 98-14).  The complaint alleges that as a result of the five
complaints filed with MSHA,  including  the  complaints about the
drill, he was continually harassed by mine management, especially
Messrs. Valdez and J. Ed. Switzer, the chief mining engineer.

      C.  Mr. Pollock's Second Discrimination Complaint

     In   November  1998,  Pollock  assisted  another   Kennecott
employee file  a  complaint  with  MSHA.   (Ex C-14).  On Sunday,
December 6, 1998, Pollock entered a break room  to eat his lunch.
The television used for training videos was on and  was  tuned to
an  NFL  football  game.  Pollock did not turn off the television
and watched the game  as  he  was  eating.   Mr.  Gottling walked
through  the room when Pollock was present but Gottling  did  not
say anything.

     On December  7,  1998,  Pollock was called to a disciplinary
hearing for violating Kennecott's general code of conduct because
he was watching television.  At  the  conclusion  of the hearing,
Pollock was advised that he would be given a written  warning for
the misuse of company property.  (Ex. C-18).

     On December 8, 1998, Mine Superintendent Leonard Wolff  told
Pollock  to  report to the administration building.  MSHA arrived
at the mine to  begin a regular inspection and Pollock was one of
the miners' representatives.   Wolff  told Pollock that he was to
accompany the inspectors during that portion  of  the  inspection
involving  the surface mine areas.  After the opening conference,
Mr. Slothower  asked  Pollock to come into his office.  Slothower
handed Pollock the written  warning.   Pollock  asked  why he was
being disciplined for such a minor offense.  Slothower said  that
he  was  being  issued a written warning because of "his abrasive
attitude  toward  management  personnel."   (Tr.  102).   Pollock
testified  that  he was  amazed  by  Slothower's  statement.   He
responded by saying:  "Well, if I have such an abrasive attitude,
it's going to be a tough  [MSHA]  inspection  for me to be around
management  personnel  for  the  next  two or three  days."   Id.
Pollock testified that this was meant as  a  smart  aleck comment
that   he  would  have  a  tough  time  being  constantly  around
management    employees   during   the   inspection.    Slothower
interpreted  the   conversation  differently  and  believed  that
Pollock  was attempting  to  intimidate  him  into  reducing  the
discipline for the television incident.

     Mr. Slothower  also  asked Pollock if he was responsible for
the MSHA inspection.  Pollock  replied  that he did not call MSHA
and that it was a regular MSHA inspection.   Mr. Pollock left the
building and while traveling around the mine that  afternoon,  he
advised  various  people  to  get  the  mine  in  shape  for  the
inspection.  For example, Curtis Sanchez was an acting supervisor
that  week and was worried about the MSHA inspection.  (Tr. 289).
Pollock  told  him  to  make  sure  that  equipment  operators do
thorough preshift examinations and to check the portable  toilets
to make sure they are upright and clean.  Pollock also examined a
highwall with another supervisor.

     On December 9, Pollock arrived at the mine to accompany  the
MSHA  inspection team as a walk-around representative.  Slothower
approached  Pollock  and told him that he was being suspended for
making threats against Kennecott during his conversation with him
the previous day.  Pollock  was  escorted  from the mine property
and  was  unable  to act as a miners' representative  during  the
inspection.   Another   miners'  representative  accompanied  the
inspectors and no citations were issued during the inspection.

     One  of the reasons that  Kennecott's  managers  decided  to
suspend Pollock  was  because  they believed that he was going to
try to create violative conditions  that  would be cited by MSHA.
They based that belief on Pollock's statement  to  Slothower that
it  was going to be a "tough inspection" with him around.   Thus,
Kennecott  believed  that he might engage in deliberate sabotage.
As discussed above, Pollock  did  not  try  to  create violations
after his conversation with Slothower on December 8 but worked to
try to eliminate potential violations.

     A  disciplinary  hearing was held on December  12.   Pollock
contends that he was not  permitted  to call all of the witnesses
that he wanted to call.  A meeting was  held on December 13 where
Pollock was advised that Kennecott was dropping  the  charge that
he threatened to create violations of safety standards.   He  was
charged  with  insubordination  for making threats to management.
His suspension was reduced to one  day.   (Tr. 115).  He was also
required  to  write a letter of apology to Mr.  Slothower.   (Tr.
118; Ex. C-23).   A  written warning was placed in Pollock's file
describing the reasons for Kennecott's disciplinary action.  (Ex.
C-25).  Pollock filed grievances for the written warnings and his
suspension.

     On  December  21,  1998,   Mr.   Pollock  filed  his  second
discrimination complaint with MSHA (MSHA  No. RM MD 99-02).  This
complaint alleges that the disciplinary actions  that  were taken
against him between December 6 and 13 were a direct result of his
protected  safety  activities.   In the complaint he stated  that
management  "will  stop  at nothing to  harass  and  discriminate
against miners' representatives  [whom]  they  view as a threat."
(Ex. C-15).

      D.  Mr. Pollock's Third Discrimination Complaint

     On April 20, 1999, Robert Jones, the surveyor, asked Pollock
to  help him flag and stake ore in the Melco pit.   Pollock  told
Jones  that  Jones  was required to ask someone from the overtime
board to help him.  The job of assisting Jones flag and stake ore
would  have  taken about  20-30  minutes.   Jones  complained  to
Slothower who  then ordered Pollock to report to the pit at 11:00
a.m.  Pollock reported  to  the  area but remained in his pickup.
April  20  was a rainy day and Pollock  passed  by  the  building
containing his locker where he stored his rain gear several times
that morning.  He did not stop to put his rain gear in his truck.

     When Jones  arrived  at  the pit, he parked his truck within
150 feet of Pollock's truck.  Jones  tried  to contact Pollock by
radio but Pollock did not respond.  Jones got  out  of  his truck
and  began working.  He painted the lathing needed to stake  ore.
Pollock  did  not attempt to assist him.  Cory Withers, the drill
and blast supervisor,  [2]  drove  by  and  asked  Jones  for his
assistance. Jones left for a few minutes to assist Withers.  When
he  returned  to  the  pit,  he  again radioed Pollock but got no
response.  Jones then walked over  to Pollock's truck and knocked
on his window.  Jones was wearing his  rain  gear and had his GPS
pack on his back.  When Pollock opened his window, Jones told him
he was ready.  As Jones walked toward the area to be surveyed, he
turned  back  and  saw Pollock driving away.  Unknown  to  Jones,
Pollock called Slothower  to  ask  if he could get his rain gear.
It would have taken Pollock about 30 minutes to get his rain gear
and return to the pit.

     Pollock  never helped Jones stake  the  ore.   By  the  time
Pollock got back  to  the  pit with his rain gear, the GPS system
was no longer functioning.   Slothower  ordered  Pollock  to mark
pattern  instead.   Jones  staked  the  ore  himself  later  that
afternoon when the GPS system was working.  Pollock was scheduled
to be at a grievance hearing at 1 p.m. that afternoon and did not
assist  Jones.   Thus,  Pollock  sat in his truck at the pit from
about  10:55  am  to  about  11:30  a.m.  without  providing  any
assistance to Jones.  Soon after Jones knocked on Pollock's truck
window, Pollock left the area to get  his rain gear.  Pollock did
not mark any pattern that afternoon until after the hearing.[3]

     Kennecott  management  was upset at  Pollock's  conduct  and
conducted an investigation.   At  about 11:30 a.m. on April 21, a
disciplinary hearing was held concerning  this  matter.   Pollock
was  charged  with  the  failure  to  perform  a  reasonable  job
assignment and with insubordination.[4]  At the conclusion of the
hearing,  Pollock  was  sent  home  and  paid for the rest of his
shift.   Pollock  wanted  to call a number of  witnesses  to  the
hearing, but this request was denied.  These witnesses were to be
called in response to the radio charge which was dropped.

     There was a considerable  delay  before Pollock was notified
of the nature of his discipline.  Kennecott  management  received
permission  for an extension of time from a union representative.
Pollock was informed  by this representative that the company was
thinking about terminating him from his employment.

     On  May  3,  Pollock  was  presented  with  a  "Last  Chance
Agreement."   Under  this  agreement,  Pollock  would  remain  an
employee but he  would, in essence, be on probation.  (Ex. G-29).
He would also be required to withdraw all pending complaints that
he filed under section  105(c)  of the Mine Act.  In exchange for
this agreement, Pollock's suspension  would  be  reduced to three
days.   Pollock  refused  to  sign  the agreement and there  were
extensive negotiations between the company,  union officials, and
Pollock.  (Exs. G-30-31).

     When  these  negotiations  broke  down,  Kennecott   reduced
Pollock's  termination  to  an  eight-day suspension with a final
warning that future violations of  the  mine's  general  code  of
conduct  will  result  in termination from employment.  (Ex. 32).
The warning was issued because  of  Pollock's  "argumentative and
combative behavior and failure to complete ... work assignments."
Id.  Pollock was instructed to return to work on  May 9.   In the
meantime,  Pollock  filed  his  third complaint of discrimination
with MSHA on May 4, 1999 (MSHA No. RM MD 99-09).  (Ex. G-26).  In
the complaint, Pollock alleges that  Kennecott terminated him for
not signing the last chance agreement.   Pollock remains employed
by Kennecott.

              II.  DISCUSSION WITH FINDINGS OF FACT
                      AND CONCLUSIONS OF LAW

     Section  105(c)  of  the  Mine Act prohibits  discrimination
against miners for exercising any  protected right under the Mine
Act.  The purpose of the protection  is  to  encourage miners "to
play  an  active  part  in  the  enforcement of the  [Mine]  Act"
recognizing that, "if miners are to be encouraged to be active in
matters of safety and health, they  must be protected against any
possible discrimination which they might  suffer  as  a result of
their participation."  S. Rep. No. 181, 95th Cong., 1st  Sess. 35
(1977),  reprinted in Senate Subcommittee on Labor, Committee  on
Human Resources,  95th  Cong.,  2nd Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977 at 623 (1978).

     A  miner  alleging  discrimination   under   the   Mine  Act
establishes  a  prima facie case of prohibited discrimination  by
proving  that he 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, 2797-800 (October 1980),
rev'd on other grounds,  663  F.2d 1211 (3d Cir. 1981); Secretary
of Labor on behalf of Robinette  v.  United  Castle  Coal  Co., 3
FMSHRC 803, 817-18 (April 1981).  The mine operator may rebut the
prima  facie  case  by  showing either that no protected activity
occurred or that the adverse  action  was in no part motivated by
the protected activity.  Pasula, 2 FMSHRC  at  2799-800.   If the
mine  operator  cannot rebut the prima facie case in this manner,
it nevertheless may  defend by proving that it was also motivated
by the miner's unprotected  activity  and  would  have  taken the
adverse   action   for  the  unprotected  activity  alone.   Id.;
Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).

     There is no dispute  that  Messrs. Lopez and Pollock engaged
in protected activity.  The issue  is whether the adverse actions
taken were motivated by that protected  activity.  In determining
whether a mine operator's adverse action  was  motivated  by  the
miner's  protected  activity,  the  judge  must bear in mind that
"direct  evidence  of  motivation  is  rarely  encountered;  more
typically,  the only available evidence is indirect."   Secretary
of Labor on behalf  of  Chacon  v.  Phelps  Dodge Corp., 3 FMSHRC
2508, 2510 (November 1981), rev'd on other grounds,  709  F.2d 86
(D.C.  Cir  1983).   "Intent  is subjective and in many cases the
discrimination can be proven only  by  the  use of circumstantial
evidence."  Id. (citation omitted).  Some of  the  circumstantial
indicia  of  discriminatory intent include (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.

      A.  Mr. Lopez's Discrimination Complaint

     Valdez gave Lopez a disciplinary letter for failure  to meet
Kennecott's mandatory drilling quota during March, May, and  June
1998.   The  Secretary  contends  that  this letter was issued in
violation  of the company's progressive discipline  policy.   She
argues that, at most, Lopez should have received a verbal warning
for this violation.   She  notes that when other employees failed
to meet the performance standards,  no discipline was given.  The
Secretary also points to the threats  made by Valdez to establish
a discriminatory motive.  She argues that when Lopez attempted to
discuss Valdez's threats with Ms. Priano,  he  was  rebuffed and,
thus,  had  no  choice  but to file his discrimination complaint.
Lopez was concerned that  if  he  raised  other safety issues, he
would face even stronger discipline.

     Kennecott contends that its managers recognized  that  Lopez
had  the  right  to shut down the drill and, at the conclusion of
its investigation,  it  allowed  Lopez  to do so despite the fact
that no safety hazard was actually present.  Lopez contacted MSHA
after  the  drill  had been shut down.  Kennecott  questions  the
accuracy of Lopez's  description  of  Valdez's  comments  to him.
Lopez  did not tell Kennecott managers and safety representatives
that he had been threatened by Valdez.  Ms. Priano testified that
she did not hear of these alleged threats from Lopez, but learned
about them during the course of a grievance hearing involving Mr.
Pollock.

     Kennecott  argues  that  Lopez  did  not  suffer any adverse
action  as  a  result  of Valdez's alleged threats.   First,  the
Secretary failed to establish that the threats were actually made
or that he reported the  threats to anyone in management.  In his
statement to MSHA, Valdez  denied  making  any  threats to Lopez.
(Ex. R-23).  Valdez also stated that he was joking around when he
told Pollock and Withers that he would "get even."   Id.  Even if
the  threats  were  made,  Kennecott maintains that an unrealized
threat cannot constitute adverse action under the Mine Action.

     Kennecott contends that  the  Secretary  did not establish a
nexus between the protected activity and any adverse action.  The
company has an excellent record with respect to safety issues and
it  does  not  take  adverse action against employees  who  raise
safety issues.  Lopez's  discipline  was  motivated solely by his
failure to meet the company's drilling standards.  The standards,
which set forth how many holes each driller  must  complete  on a
monthly  average,  were  provided  to  drillers in February 1998.
(Ex. R-28).  Lopez failed to meet the standard  for  three out of
four  months.  In essence, Lopez was placed on probation  because
of his failure to meet the standards.

     Kennecott argues that the Secretary also failed to establish
disparate  treatment.  The Secretary did not establish that Lopez
was  treated   more   harshly   than  those  similarly  situated.
Kennecott  states  that  the  Secretary   did  not  identify  any
similarly situated employee who was treated  better  than  Lopez.
Lopez  was  the  only employee who missed the standards for three
months and, as a consequence, he was issued the warning letter.

     I find that the  Secretary  established  that adverse action
was taken against Lopez.  I credit the testimony of Lopez and Tom
Withers that Valdez made threats against Lopez.   Although Valdez
could  not  testify  to  counter  Lopez's testimony, I note  that
Lopez's testimony is consistent with the testimony of Pollock and
Tom  Withers  on  this  issue.   The  fact  that  Lopez  did  not
immediately report these threats is not surprising because Valdez
was his immediate supervisor.  He wanted  the window on the drill
fixed.   Raising  issues  about  threats would  not  have  helped
resolve the safety issue.  If Valdez denied making the threats to
upper  management,  it  would  put  Lopez  in  a  very  difficult
position.

     I  reject Kennecott's argument that  since  the  threat  was
never carried  out,  it cannot constitute adverse action.  First,
as discussed below, I  find  that the threat was carried out.  In
addition, even if it were not,  such  threats  on  the  part of a
front  line supervisor would have a chilling effect on the  right
of miners  to  raise safety issues.  No miner is going to raise a
safety issue if  his supervisor tells him or other employees that
he will "get even."

     I  find  that  the   Secretary   established   that  Lopez's
discipline  was  motivated,  at  least  in part, by his protected
activity.   As  stated above, direct evidence  of  motivation  is
rarely encountered.   In this case, however, I find that there is
a direct link between the  protected  activity  and  the  adverse
action.   Mr.  Valdez  expressed  his  hostility to the protected
activity and he is the person who issued the disciplinary letter.
He  had  knowledge  of  the  protected  activity;   he  displayed
hostility towards the protected activity; and the adverse  action
was  taken  in  a  matter  of  days  after the protected activity
occurred.

     Valdez based the discipline on Lopez's  failure  to meet the
production  standards for drillers.  The letter he issued  stated
that if Lopez  failed  to  meet  any  of  the  required  drilling
standards  for a nine-month period he could be discharged.   (Ex.
R-1).  This  was  the  first  time  that  Lopez  failed  to  meet
production  standards  at the mine.  (Tr. 1438).  He felt that if
he made any mistake, even  a  minor one, he would face discharge.
Although  Valdez had warned the  drilling  crew  that  some  crew
members were  not  meeting the drilling quotas, Mr. Lopez had not
received  a  verbal  warning   specifically   directed   at   his
performance.   (Tr.  1444).    Mr. Lopez met all of the company's
other requirements during these months.

     Kennecott  articulated a legitimate  business  justification
for disciplining  Lopez.  He did not drill a sufficient number of
holes during three  months.   The  memo  from  Gil  Valdez, dated
February  24,  1998,  that  set forth the new drilling standards,
provided that "should a driller  fail  to make the standard three
(3) times in any rolling 12-month period,  the  driller  will  be
considered  for  disqualification."   (Ex.  R-28).  The Secretary
argues that the discipline was too harsh to be  solely  motivated
by  the company's stated justification and that Lopez's protected
activity played a part.

     I agree with the Secretary that Lopez's protected activities
were  considered  when  it  was determined that a written warning
would be issued.  Mixed motive  cases  are  difficult  to resolve
because   "[o]nce   it   appears   that   a   proffered  business
justification is not plainly incredible or implausible, a finding
of pretext is inappropriate."  Chacon, 3  FMSHRC  2516.   In this
case,  the  issue  is  whether  Kennecott  would  have issued the
warning letter for his unprotected activities alone.  I find that
Kennecott would not have issued the letter had Lopez  not engaged
in protected activity.  I reach this conclusion based on Valdez's
hostility to the protected activity and the coincidence  in time.
Although  I  cannot  speculate  what  discipline  he  would  have
received if he had not engaged in protected activity, I find that
Mr. Valdez was motivated, in part, by the protected activity when
he  issued  the  disciplinary letter.  This violation was serious
and Kennecott's negligence  was moderate.  A penalty of $1,000 is
appropriate.

      B.  Mr. Pollock's First Discrimination Complaint

     Mr. Pollock engaged in protected  activity  by filing safety
complaints with MSHA.  He did not receive any discipline  for the
protected   activity   set   forth  in  his  first  complaint  of
discrimination.  In the Secretary's  complaint  of discrimination
filed  with  the Commission, the Secretary alleges  that  Pollock
"was and continues  to  be threatened, harassed, and intimidated"
by Kennecott for exercising  his  rights under the Mine Act.  The
Secretary seeks an order directing Kennecott to "cease and desist
from threatening, harassing, or intimidating Mr. Pollock" for his
protected activity.

     The alleged threats and intimidation  came  from  Mr. Valdez
and  Mr.  Switzer.   Valdez's  threats  are  discussed  above  in
conjunction  with  Mr. Lopez's discrimination complaint.  For the
same reasons discussed above, I find that Mr. Valdez made threats
against Mr. Pollock as a result of Pollock's protected activity.

     The alleged harassment  by  Mr.  Switzer is described by the
Secretary  as  "yelling at Pollock over benign  work  performance
issues."  (S. Br. 7).  As proof of discriminatory animus, Pollock
states that Switzer  asked Slothower in July 1998 whether Pollock
had enough work "to keep [him] busy to keep him from calling MSHA
all the time."  (Tr. 81).   Pollock  believes  that  Mr.  Switzer
continually harassed him after he made complaints to MSHA.

     One  of  the incidents relied upon by the Secretary occurred
in  August  1998,  when  Switzer  was  filling  in  as  Pollock's
supervisor in place of Slothower.  Pollock testified that Switzer
wanted Pollock  to  mark  more  pattern  than  Slothower  usually
required.  When Pollock questioned the need to mark more pattern,
Switzer  yelled  at him for arguing with him about it.  (Tr.  84-
85).  Switzer testified that he asked Pollock three times to mark
pattern in a certain  area  and  he refused to do it.  (Tr. 1010-
11).  At a subsequent meeting during  which  the  duties  of  ore
technicians  were discussed, Switzer explained to Pollock that he
needed to mark  as much pattern as possible so that Kennecott can
get the results back  from  the  assay lab as quickly as possible
after  the holes are drilled.  (Tr.  1015).   He  explained  that
marking  more  holes  gives  the  drilling crew flexibility as to
where they can drill on a particular  shift.   At  this  meeting,
Pollock  complained  about his job duties, argued with management
about these duties, and  argued about the need to mark additional
pattern.  (Tr. 1016).

     Another incident relied  upon  by Pollock concerned overtime
pay.   Mr. Jones was authorized to work  overtime  in August 1998
doing some reclamation work.  When Pollock found out  about  this
he  complained  to  Switzer  about this overtime and asked why he
could not work overtime.  (Tr.  1021).   Switzer  responded  in a
heated  manner that he determined who works overtime not Pollock.
Switzer canceled Jones's overtime.

     I find  that  the Secretary did not establish any connection
between Switzer's alleged  "harassment"  of Pollock and Pollock's
discrimination  complaints.   First, both Slothower  and  Switzer
denied that Switzer made the statement  to  keep  Pollock busy to
keep  him  from  filing complaints.  I credit their testimony  in
this regard.  Second,  Switzer's  relationship  with  Pollock was
always strained especially after Pollock was suspended by Switzer
in 1996.  Pollock refused to pick up and deliver sample  bags  to
the  assay  lab in July 1996 because he believed that some of the
bags were heavier  than normal.  (Tr. 1000-02).  When Pollock was
told that someone else would pick them up, Pollock refused to tag
the samples.  Switzer  met with Pollock later that day to discuss
the matter.  Pollock came  into Switzer's office "very agitated,"
he was "yelling and screaming," and he was very "irate."  Pollock
received a three-day suspension  which  was  upheld  by the labor
arbitrator.  (Ex. R-21).

     The  conflict  between  these  two  men in August 1998  also
concerned whether Pollock refused to complete  a  work assignment
and  this conflict does not demonstrate animus towards  protected
activity.    Switzer   was  Slothower's  supervisor  and  Switzer
believed that the ore technicians  were  not  marking  sufficient
pattern.  He resented Pollock's argumentative attitude about  the
issue.   He  believed  that  Pollock  was refusing to carry out a
reasonable job assignment.

     I find that the evidence of record  establishes that Switzer
believed   that  Pollock  exhibited  disregard   for   management
directives and  that  he  displayed  an  aggressive attitude when
given job assignments that he did not like  or disagreed with.  I
find that any hostility Switzer exhibited towards  Pollock  was a
result  of  the  unprotected  activity  discussed  above and that
Pollock's   protected   activity  played  no  part  in  Switzer's
relationship with or attitude  towards  Pollock.   Even  assuming
that  Switzer was also motivated, in part, by Pollock's protected
activity  when he allegedly harassed Pollock, I find that Switzer
would have treated Pollock in the same manner for the unprotected
activity alone.

     As a consequence,  only  the  threats  made  by  Mr.  Valdez
support  Mr.  Pollock's first discrimination complaint.  I reject
the other allegations  contained  in Pollock's first complaint of
discrimination filed with MSHA.  This  violation  was  moderately
serious  and  Kennecott's negligence was moderate.  A penalty  of
$500 is appropriate.

      C.  Mr. Pollock's Second Discrimination Complaint

     The Secretary  contends that "Kennecott's removal of Pollock
from  the mine on December  9,  1998,  was  a  direct  result  of
Kennecott's  concern  about Pollock fulfilling his role as a pro-
active  miners'  representative   during   the   course   of  the
inspection."   (S.  Br.  11).   Kennecott  contends that, because
Pollock  denied  watching television during his  lunch  break  on
December 6 at the  disciplinary  hearing  on  December  7, he was
issued a written warning for the offense.  Kennecott states  that
if  Pollock  had  admitted  watching  television  he  would  have
received  an  oral  warning.   It maintains that when Pollock was
given the written warning on December  8,  Pollock  was angry and
tried to get it reduced.  Kennecott contends that when  Slothower
refused to reduce the offense to an oral warning, "Pollock warned
Slothower  that  the  company  would pay for the issuance of  the
discipline  in  the  course of the  inspection."   (K.  Br.  28).
Kennecott argues that  Slothower  reasonably  perceived Pollock's
statements  as  a  threat  against  the company, no  matter  what
Pollock's exact words were during this  conversation.   Kennecott
believes  that  this perceived threat is sufficient to support  a
charge of insubordination  and  a  two-day suspension.  Pollock's
"expression  of  disrespect  and disobedience  toward  authority"
supports the charge of insubordination even assuming that Pollock
did not intend his statement to Slothower to be a threat. (K. Br.
31).

     The  first  issue  is  whether   Pollock's   discipline  was
motivated in any part by his protected activity.  The  events  at
the  disciplinary  hearing  on  December  7  are  disputed by the
parties.   Pollock  testified  that  he  did  not  deny  watching
television  on  December  6.  (Tr. 96).  Mr. Jones also testified
that  Pollock  did  not  deny  watching   television  during  the
disciplinary  hearing.   (Tr.  318).  Mr. Slothower  and  Melissa
Miller, a human resources employee, testified that Pollock denied
watching  television  on  December   6  during  the  disciplinary
hearing.  (Tr. 985, 1180-81).  Slothower testified that he issued
the   written   warning   because  Pollock  "lied"   during   the
disciplinary hearing when he  stated  that  he  was  not watching
television.   (Tr.  1181).   Pollock  stated  that he would  have
accepted an oral warning.  (Tr. 179).

     There  is no dispute that, during the disciplinary  hearing,
Pollock argued  that  watching  the  company  television  did not
violate  the  general  code  of  conduct.  I find that during the
course of this discussion Pollock  failed  to take responsibility
for his actions but that he did not affirmatively  deny  that the
television was on or that he looked at the television.  His point
may  well have been that simply being in a room with a television
on does  not  violate  the  code  of  conduct unless the employee
turned it on.  In his complaint filed with  MSHA,  Pollock merely
mentions the television incident.  At the hearing in  this  case,
Pollock testified that he did not know what motivated the company
to issue the warning letter.  (Tr. 178).

     I  credit  the testimony of Mr. Slothower that he would have
given  Pollock  an   oral   warning   if   Pollock  had  accepted
responsibility for his actions.  Whether or  not Pollock actually
lied  at the disciplinary hearing, Slothower reasonably  believed
that Pollock failed to admit that he violated the general code of
conduct.[5]  I find that Slothower issued the written warning for
that reason  alone and that he was not motivated, in any part, by
Pollock's protected activity.

     Pollock's   second   discrimination   complaint  principally
focuses on the events of December 8-12, 1998.   As  stated above,
the Secretary alleges that Pollock was removed from mine property
because  Kennecott was concerned that Pollock would exercise  his
statutory  rights  during  the  MSHA  inspection.   I  find  that
Slothower  was  intimidated  by Pollock's statement to him in his
office on December 8.  I note that Slothower, who is a geologist,
is not a tough manager.  He goes out of his way to avoid conflict
with the employees he supervises.  (Tr. 1174-75).  Until December
8, his relationship with Pollock  was  "amicable."  Id.  Whatever
words were actually used, Slothower felt  that  Pollock was using
his  position  as a miners' representative to intimidate  him  to
reduce  his discipline  for  watching  television.   (Tr.  1190).
Kennecott  argues  that  Pollock's  misuse  of  his position as a
miners' representative is not protected under the  Mine  Act.   I
agree.  If a miner, including a miners' representative, threatens
to  create  a  hostile  environment  during an MSHA inspection in
order to reduce the severity of disciplinary action taken against
him, such threats are not protected by  the  Mine  Act.   In this
case,  Slothower  did  not  believe  that  Pollock would create a
hazard that would threaten the safety of miners  or that he would
damage company property, but he feared that Pollock  would create
a  hostile  environment  that  would create friction between  the
company and MSHA.  Slothower believed  that Pollock might "go out
and  try  to  cause  the company to get an undeserved  citation."
(Tr. 1189-90).  This belief was shared by Wolff and Priano.  (Tr.
677, 764-65).

      Pollock had a reputation  as  a  rather hard-nosed advocate
for safety at the mine.  Kennecott takes  mine  safety and health
issues  seriously  and  Barney's  Canyon  Mine  received   MSHA's
Sentinels  of  Safety  Award  in 1998.  MSHA Inspector Okuniewicz
testified that this mine has an  excellent  history  of  previous
violations  compared with other mines of its size.  (Tr. 529-30).
The mine had  not  interfered  with  Pollock's  right to act as a
walk-around representative, but a number of disputes  have arisen
over  the  years  in which Pollock disagreed with the company  on
safety issues.  It  is  quite  clear that Pollock is an "in-your-
face" type of person who does not back down when he believes that
a safety hazard is present.  He is also a strong advocate for the
union.  I find that most of the  hostility that developed between
the company and Pollock is a result  of  his union activities and
the   perception   that   he  is  frequently  disrespectful   and
disobedient to Kennecott's  managers.   The  record shows that he
frequently  argues  with  supervisors  about  work   assignments.
Slothower,  on  the  other hand, is a rather quiet and unassuming
individual.

     Was Slothower's decision to suspend Pollock motivated in any
part by his protected  activity?   The  Secretary argues that the
"timing  of the discipline in relation to  Pollock's  involvement
with MSHA  activities  at  the  mine,  coupled  with  Kennecott's
knowledge  of  Pollock's  involvement  with  MSHA,  is  more than
sufficient to establish the requisite motivational nexus  between
Pollock's protected activity and the adverse action taken against
him."   (S.  Br.  12).   Slothower  knew that Pollock was an MSHA
advocate and that, even if he did not create violations, he would
aggressively assist MSHA inspectors in  finding  violations.  His
right  to  do  so  is  protected  under the Mine Act.  A  miners'
representative has the right to point  out  violations to an MSHA
inspector.

     It  is important to recognize that until  Pollock  made  the
comment  to   Slothower   that  it  was  going  to  be  a  "tough
inspection,"   Pollock   was  scheduled   to   be   the   miners'
representative  during  the   inspection.    Kennecott  had  made
arrangements  for Pollock to attend the opening  MSHA  conference
and to accompany  the  MSHA  inspectors  during  the  inspection.
Because of his work schedule that week, Pollock was going  to  be
paid  at  his  overtime  rate  during the MSHA inspection.  Thus,
until  the  "tough  inspection"  conversation,   there   was   no
indication  of any animus against Pollock's full participation in
the inspection  as  a  walk-around  representative,  despite  his
reputation as a strong safety advocate.

     Pollock  was  suspended  in December 1998, because Kennecott
perceived that he threatened Slothower.   Although Slothower knew
of Pollock's past protected activity, there  is  no evidence that
he was hostile to this activity.  Indeed, Slothower  told Pollock
in  July  that  he  understood his concerns about the drill.   As
stated  above,  Pollock   was   scheduled  to  be  a  walk-around
representative  during  the  inspection.    Slothower  felt  that
Pollock  was attempting to intimidate him to reduce  the  written
warning to an oral warning.

     The fact  that  a  miner  frequently makes safety complaints
does not immunize him from discipline for threatening management.
See e.g. Sapunarich v. Lehigh Portland  Cement Co., 11 FMSHRC 81,
88  (January 1989)(ALJ).  In reviewing a claim  that  a  whistle-
blower  had  been discriminated against for raising safety issues
at a nuclear power  plant,  the  Seventh  Circuit  noted that "an
employee's insubordination toward supervisors and coworkers, even
when   engaged  in  protected  activity,  is  justification   for
termination."  Kahn v. U.S. Secretary of Labor, 64 F. 3d 271, 279
(1995)(citations  omitted).   The court went on to state that the
rights afforded employees under  the  Energy  Reorganization  Act
"are a shield against employer retaliation not a sword with which
one  may  threaten  ...  supervisors."  Id.  The Mine Act affords
miners broader protection  than  a  whistle-blower  statute.   In
addition,  one must take into consideration the fact that, in the
mining industry, harsh words are often spoken between supervisors
and employees.   Although  Slothower  enjoyed  a  reasonably good
relationship  with Pollock,  Slothower genuinely felt  threatened
by Pollock's "tough  inspection" statement.  Slothower's decision
to discipline Pollock  was based solely on Pollock's statement to
him on December 8.

     I also find that Pollock  was  not  provoked into making the
statement.   The "tough inspection" statement  was  made  in  the
context  of  an  informal  conversation  in  Slothower's  office.
Slothower told  Pollock  that  he  would  get along with managers
better if he were less abrasive.  (Tr. 1185).   At  the  hearing,
Pollock  testified  that  he was "amazed" by Slothower's comment.
(Tr.  102).   I  find  this response  by  Pollock  to  be  rather
disingenuous.  As stated  above, Pollock was known as an in-your-
face type of person and he  had  quite  a  few disagreements with
managers  at  the mine about work-related issues.   Pollock  knew
about the written  warning  and he did not raise safety issues at
the  meeting.   Thus,  I  find  that   nothing  in  the  informal
conversation  that  occurred  that  morning  reasonably  provoked
Pollock's response.

     The  Secretary  argues  that  other   evidence  demonstrates
Kennecott's  hostility  to  Pollock's  protected  activity.   For
example, Slothower asked Pollock if a call  from him precipitated
the MSHA inspection.  The Secretary also relies on testimony from
Mr. Wolff that, although a miners' representative  has  the right
to  act  as "a second set of eyes for the inspector," he takes  a
dim view of  it.   (Tr. 680-82).  I find that Wolff merely stated
the obvious.  Every mine manager would prefer miners to point out
safety  violations  to   management   or   the  company's  safety
department first rather than to MSHA so that  the  company can be
given  the opportunity to correct the problem.  Wolff  recognized
that Pollock  had  the  right to show violations to an inspector.
His statement that he prefers  to correct safety hazards in house
does  not indicate specific animus  towards  Pollock's  protected
activity.   The Secretary also criticizes the fact that there was
a delay between  the  conversation  between Pollock and Slothower
and the decision to suspend Pollock.  Slothower testified that he
does not like to discipline employees  so he usually thinks about
it first and seeks advice from upper management.   (Tr. 1188-89).
The  ultimate decision to discipline Pollock was Slothower's  and
he based  his  decision  on  the  factors  discussed above.  (Tr.
1192).

     I   find   that   Kennecott   had   a  legitimate   business
justification  for  disciplining  Pollock.  I  do  not  have  the
authority to determine whether the  terms  of his discipline were
fair  or reasonable.  The "Commission does not  sit  as  a  super
grievance   board  to  judge  the  industrial  merits,  fairness,
reasonableness,  or  wisdom  of an operator's employment policies
except insofar as those policies may conflict with rights granted
under section 105(c) of the Mine  Act."   Delisio v. Mathies Coal
Co., 12 FMSHRC 2535, 2544 (December 1990)(citations  omitted).  I
conclude that Mr. Pollock's suspension in December 1998  was  not
motivated in any part by his protected activity.

      D.  Mr. Pollock's Third Discrimination Complaint

     When  Pollock would not help Jones stake and flag ore on the
morning of April 20, 1999, Slothower walked up to Pollock's truck
and told Pollock  to report to the Melco Pit at 11 a.m. to assist
Jones.  Pollock told  Slothower  that  Jones should get help from
the overtime board.  In response, Slothower  told  Pollock not to
dictate policy and that Jones did not need to go to  the overtime
board.  (Tr. 218).  Pollock told Slothower that he was  going  to
file a grievance over this issue because Jones was never required
to  help  the  ore  technicians.   (Tr.  219).  Pollock construes
Slothower's order to help Jones stake the  ore  to  be harassment
and favoritism because Jones is never required to help  him.  Id.
Pollock admits, however,  that assisting the surveyor is  part of
the  job  responsibility  of an ore technician.  (Tr. 221).  Such
assistance may include staking  and  flagging  ore.   (Ex.  R-5).
Pollock provided such assistance in the past.

     Kennecott  argues  that  Pollock's  response  to Slothower's
reasonable job assignment "encapsulates the real issue:   Pollock
does  not  want  to do anything that he perceives to be more than
his  fair  share,  even   when   it   is   included  in  his  job
responsibilities and is a direct order from his supervisor."  (K.
Br.  37).    Kennecott  contends that Pollock's  conduct  between
11:00 and 1:00 a.m. demonstrates  his  continuing  resistance  to
carry  out  this  job  assignment  despite  a  direct  order from
Slothower.  It maintains that Pollock sat in his truck for  about
30  minutes  while  Jones  worked at preparing the stakes without
making any effort to assist Jones.  When Jones walked over to his
truck to specifically request  his  assistance,  Pollock abruptly
left  the  area without notifying Jones.  Kennecott  argues  that
Pollock knew  that Jones could finish the job in the time it took
him to drive to his locker to get his rain gear and return to the
pit.   It  maintains   that   Pollock   deliberately  disregarded
Slothower's order to assist Jones.  If Pollock  had helped Jones,
the job could have been completed by noon.  Kennecott states that
it disciplined Pollock for his refusal to complete  a  reasonable
job assignment.

     The  Secretary  argues  that "the undisputed facts establish
that none of [the] purported reasons  for  discipline  occurred."
(S. Br. 15).  She points to testimony from Jones that Pollock was
not insubordinate to him.  (Tr.  323).  Jones also testified that
this  was the first time that Pollock was assigned to assist  him
and he  did  not  do  so.   (Tr.  335).   She  also relies on the
testimony of Slothower that, had the GPS system not failed, Jones
and  Pollock  would  have  had  time  to finish the survey  after
Pollock retrieved his rain gear.  (Tr.  1289-90).   The Secretary
argues  that  the  reasons  offered  by  Kennecott  for Pollock's
discipline are "contrived and inconsistent."  (S. Br. 16).

     The  Secretary submits that Pollock was disciplined  because
of his protected  activities including the fact that he filed two
complaints of discrimination  with  MSHA.   She believes that the
last chance agreement confirms the relationship between Pollock's
protected  activities and the adverse action taken  against  him.
She maintains  that  Pollock  was  treated  far more harshly than
other  employees  who violated company rules and  that  the  last
chance agreement was unlike anything anyone had seen before.  She
concluded that the  discipline  given  Pollock  far  exceeds  the
discipline  received  by  other  employees for significantly more
serious infractions.

     The  issues  surrounding this discrimination  complaint  are
factual in nature.   The  Secretary relies heavily on a disparate
treatment theory.  The other  ore control technician, Carl Bluth,
had a significant absentee problem  and  he  frequently failed to
fill  out  laboratory sample sheets as required.   The  Secretary
points to the  fact  that  Bluth  only received oral warnings for
failing to perform this important part  of  his  job  duties.  In
addition,  Bluth  was  put  on  probation  in  December  1998 for
excessive  absences,  yet  when  he  violated  the  terms  of his
probation  in  August  he  was  given a second chance.  Kennecott
contends that both Pollock and Bluth  have  failed  to  fill  out
laboratory  sample  sheets  and  that Pollock was treated no more
harshly than Bluth.  Moreover, Slothower  testified  that Bluth's
alleged  infraction  was  never  brought to his attention.   (Tr.
1268, 1477).  In addition, Kennecott  argues  that  this issue is
not  relevant  because  the  incidents  upon  which the Secretary
relies  occurred  after  Pollock  returned  from his  April  1999
suspension.  (Ex. G-45).

     Except  as  discussed below, I find that Kennecott  rebutted
the Secretary's prima  facie  case  by  showing  that the adverse
action  was  not  motivated  in  any part by Pollock's  protected
activity.  The dispute between Slothower  and  Pollock  concerned
his  work  assignment  on  April  20, 1999.  I credit Slothower's
testimony and find that he reasonably  believed  that Pollock was
deliberately  refusing  to carry out a work assignment.   Pollock
refused to help Jones until  he  was directly ordered to do so by
Slothower.  He argued with Slothower  about  the  job assignment.
When  Pollock  went  to the pit, he sat in his truck while  Jones
began working.  Pollock  drove  away  in  his truck shortly after
Jones knocked on Pollock's truck window.  Thus, it was reasonable
for Slothower to conclude that Pollock was  deliberately  defying
his order to help Jones.  The fact that Jones did not regard this
as "insubordination" or that Pollock helped Jones in the past  is
irrelevant.   Pollock  did not want to help Jones; he argued with
Slothower about it; and  he  managed  to  avoid helping him.  The
entire project could have been completed in less than 45 minutes.
No  protected  activity  was  involved.  Nothing  in  the  record
indicates  that any part of Slothower's  decision  to  discipline
Pollock was based on his prior protected activity.

     Pollock  had a history of arguing about job assignments with
supervisors.  As  discussed  earlier  in this decision, he argued
with  Switzer about how much pattern should  be  marked,  and  he
refused  to  tag  and deliver sample bags to the lab if they were
not filled correctly.   The  record  documents other incidents in
which Pollock argued with managers about overtime, working hours,
and work assignments.  It is significant  that  Pollock  regarded
Slothower's order that he help Jones as harassment and favoritism
because Jones was never required to help him.  The Mine Act  does
not  protect  an  hourly  employee  who  continually questions or
argues with supervisors about job assignments, working hours, and
the manner in which the mine is being managed.  Such disputes are
not  protected  under  the  Mine Act unless they  involve  safety
issues.

     The  Secretary's  reliance   on   disparate   treatment   is
misplaced.   There  are  no  other  employees  whose  conduct  is
comparable  to  Pollock's.   None of the other employees that the
Secretary points to for comparison  had a history of arguing with
managers about job assignments.  Mr.  Bluth,  for example, had an
absentee problem.  He was placed on probation and  then  given  a
second chance.  Pollock, on the other hand, was given an award by
Kennecott  in  July  1999  for seven years of perfect attendance.
(Ex. G-28).  Both Bluth and Pollock failed to completely fill out
the laboratory sample sheets  some  of  the time, but there is no
showing  that  Pollock was treated more harshly.   The  Secretary
argues that Bluth  was  not as good an ore technician as Pollock.
Even if I assume that to  be  true, I do not have jurisdiction to
be  Solomon  in  this  case  to  determine  who  deserves  to  be
disciplined and what discipline should be meted out.

     The Secretary also relies on  the  terms  of the last chance
agreement to establish her case.  (Ex. G-29).  I  agree  that the
last chance agreement is the most troubling aspect of this  case.
I  credit  the  testimony of the Secretary's witnesses, including
union officials, that this agreement was unlike anything they had
seen at the Barney's  Canyon Mine.  Paragraph D of that agreement
is  of  particular concern  in  the  context  of  this  Mine  Act
proceeding.   In  that  paragraph,  Pollock  was  required,  as a
condition  of  keeping  his job, to admit that the discrimination
complaints he filed with  MSHA  were "without foundation or merit
and  were  filed  only  in  an  attempt  to  shield  myself  from
discipline for my misconduct."  Id.   As  stated  above,  Pollock
refused to sign the agreement.  He was allowed to return to work,
was  given  an  eight-day  suspension,  and  was told that future
violations of the mine's general code of conduct  would result in
his termination.

     I  find  that  the  last  chance agreement violated  section
105(c) of the Mine Act.  An operator  cannot  demand that a miner
waive  his  Mine  Act  rights  as  a  precondition  to  continued
employment.   Such  a  provision  puts  a  miner  in an untenable
position at odds with the protections set forth in  the Mine Act.
He  must  either  face  termination  or give up his rights.   The
agreement  was  not  reached following negotiations  between  the
parties but was compelled  by  Kennecott.  A mine operator cannot
include in its disciplinary program a provision that a miner must
waive his section 105(c) rights  as  a precondition to employment
or reduced discipline.   Requiring Pollock  to  sign  Paragraph D
was  an obvious and egregious violation of section 105(c).   Even
though  Pollock  did  not  sign  the last chance agreement, other
miners at Barney's Canyon may well  be  reluctant to raise safety
issues or file safety complaints with MSHA.   It  had  a chilling
effect on miners' rights.

     The  discipline  that  Pollock was ultimately given did  not
include any references to his  Mine  Act  rights.  Because I find
that  Slothower  did  not  discipline Pollock for  his  protected
activity,  the issue is whether  the  last  chance  agreement  is
evidence  of   a  discriminatory  motive.   Slothower  wanted  to
terminate Pollock  but  was  not  involved  in drafting the last-
chance agreement.  (Tr. 1224).  Mr. Pollock was  under  probation
as  a  result  of his previous discipline for insubordination  in
December 1998.   After  negotiations  between  Kennecott  and the
union  broke down over the last-chance agreement, Kennecott  gave
Pollock  a final warning and suspended him for nine days.  I find
that Kennecott's attempt to impose Paragraph D of the last-chance
agreement  does  not  indicate  that  Slothower  or Kennecott was
motivated by his protected activity when it was decided  that  he
should be disciplined for insubordination.

     I   disagree   with   the  Secretary's  characterization  of
Kennecott's rationale for disciplining  Pollock  as contrived and
inconsistent.  Slothower was responsible for supervising Pollock.
He  believed  that Pollock was becoming increasingly  defiant  of
management direction.   He  knew  of many instances where Pollock
refused to follow his orders and company  policy.   It  was  this
history  that  lead  Slothower  to  conclude  that discipline was
necessary following the events of  April 20, 1999.   I  find that
Kennecott  established that this discipline was not motivated  by
his protected activity.

     Kennecott  violated  section 105(c) when it required Pollock
to  sign  the last-chance agreement.   This  violation  was  very
serious and  Kennecott's  negligence  was  high.   A  penalty  of
$10,000 for this violation is appropriate.

      E.  Consideration of Mr. Pollock's Cases as a Whole

     Because  Mr.  Pollock  engaged in protected activity over an
extended  period  of  time as a  miners'  representative,  it  is
important to look at his  case  as a whole and not simply analyze
each complaint of discrimination  in isolation.  The Secretary is
alleging  that  Kennecott  engaged in  a  course  of  conduct  to
discourage Pollock from being  a  zealous  safety  advocate.  She
contends  that  Kennecott's discipline of Pollock would  tend  to
have  a  chilling  effect  on  other  miners'  expressing  safety
concerns.   Some  of  the   evidence   of   record  supports  the
Secretary's position.  Mr. Jones, for example, testified that any
individual  who  raises  safety concerns "will have  a  difficult
relationship with this particular  administration."   (Tr.  335).
He  also  stated  that  "if you're as involved as [Pollock] is in
safety issues out there,  that  you're  going to have a hard time
with the Company."  (Tr. 325).  I credit Mr. Jones's testimony in
this regard and find that the company was  becoming  increasingly
impatient with Pollock's aggressive safety advocacy.

     I  find  that the Kennecott's relationship with Pollock  was
influenced at least  in part by Pollock's safety advocacy.  It is
difficult  to  separate   Kennecott's   animosity   towards   his
unprotected  activities  from  its dislike of his zeal for safety
issues.   It  is particularly difficult  to  analyze  this  issue
because, in each instance, Kennecott had reasons for disciplining
Pollock.

     As  a  consequence,   I   will  assume  that  the  Secretary
established that the decision to  discipline  Pollock in December
1998  and  April/May  1999  was  motivated  in some part  by  his
protected    activities.   The   issue   is   whether   Kennecott
affirmatively  proved  that  it  considered Pollock's unprotected
activity when disciplining him and would have disciplined him for
that conduct alone.  In Bradley v. Belva Coal Co., the Commission
set out the framework for analyzing  this affirmative defense, as
follows:

               [T]he operator must prove  that it would
          have  disciplined  the miner anyway  for  the
          unprotected activity  alone.   Ordinarily, an
          operator can attempt to demonstrate  this  by
          showing,   for   example,   past   discipline
          consistent with that meted out to the alleged
          discriminatee,   the  miner's  unsatisfactory
          past  work  record,  prior  warnings  to  the
          miner,  or  personnel   rules   or  practices
          forbidding  the  conduct  in  question.   Our
          function  is  not  to pass on the  wisdom  or
          fairness    of    such   asserted    business
          justifications, but  rather only to determine
          whether they are credible and, if so, whether
          they  would  have  motivated  the  particular
          operator as claimed.

4 FMSHRC 982, 993 (June 1982).

     As  stated  above,  there are  no  other  employees  at  the
Barney's Canyon Mine who can be compared with Pollock.  As stated
by  Kennecott, "insubordination  is  not  a  common  problem  and
discharge  and  suspensions  for such behavior are limited."  (K.
Br. 49).  The employees that the  Secretary offers for comparison
were  not  charged  with  failure  to  follow  the  orders  of  a
supervisor or insubordination.  Pollock  has  been  involved in a
number of such disputes, as discussed in this decision.   Pollock
is a careful and diligent ore technician.  He has been granted  a
great deal of independence by Kennecott in the performance of his
job duties.  Kennecott's complaint is that when he is directed to
perform any task that is outside his daily routine he argues with
his supervisors about it.  Pollock was given a number of warnings
about   his  combative  attitude  and  refusal  to  perform  work
assignments.   Both Switzer and Slothower expressed concern about
it to Pollock.   Finally,  Kennecott's  General  Code  of Conduct
requires  employees  to perform work assignments and comply  with
instructions from supervisors.

     Based on the record,  I find that Kennecott established that
it would have disciplined Pollock  for  his  unprotected activity
alone and that the reasons given by Kennecott  were  not pretext.
Based on credible evidence that Kennecott is not always receptive
to  safety  complaints  from  miners,  I  include  an  order that
Kennecott cease and desist from taking any adverse action against
miners who exercise their rights under section 105(c) of the Mine
Act.   This  order is entered as part of the remediation for  the
Lopez's complaint and Pollock's first and third complaints.

     The Commission's recent decision in Secretary of Labor o/b/o
Bernardyn v. Reading  Anthracite Co., 22 FMSHRC _____, (March 16,
2000), discusses issues  that are relevant here.  In that case, a
miner raised safety issues  and,  in  the process, used profanity
and made what might be construed as threats.  The Commission held
that a miner should be given leeway for  impulsive  behavior when
raising  safety  issues  or  refusing  to perform a task that  he
believes  is  unsafe.   As the Commission stated,  "[w]hether  an
employee's indiscrete reaction  upon  being provoked is excusable
is  a  question  that  depends  on  the  particular   facts   and
circumstances  of  each  case."   Id. at Slip. Op. 9.  Subject to
limits,  I  believe  that  if a miner is  engaged  in  protective
activity, he should not be stripped  of his rights under the Mine
Act   simply   because,   in  raising  the  safety   issues,   he
spontaneously and impulsively  says  impertinent  things  to  his
supervisor.[6]

     Pollock  was  often  emotional when he raised safety issues.
He  states  that  he  became  agitated   only  if  he  felt  that
supervisors were not responding in an appropriate fashion.  Thus,
from his point of view, he became aggressive when he was provoked
by  management.   The  events  giving rise to  his  December  and
April/May discipline, however, did  not  involve safety disputes.
In  each  instance,  the  dispute concerned work  rules  and  job
assignments.   Although  aggressive   behavior  while  discussing
safety disputes may be protected by the  Mine  Act, such behavior
is not protected if the discussions concern activities  that  are
not protected.  Otherwise, a mine operator would have a difficult
time  disciplining  a  miner  who  is actively involved in safety
issues for insubordination or other  unprotected conduct.  I find
that the conduct that gave rise to Pollock's  discipline  was not
protected in this manner.

     The  record  in this case consists of about 1,480 transcript
pages  and over 75 exhibits.   As  a  consequence,  I  could  not
discuss  all of the evidence in this decision.  Any evidence that
is inconsistent  with  my  findings  and  conclusions  is  hereby
rejected.

                   III.  CIVIL PENALTY CRITERIA

     Section 110(i) of the Mine Act sets forth six criteria to be
considered  in  determining  appropriate  civil  penalties.   The
Barney's Canyon Mine is a relatively large operation with 388,262
man  hours  worked  during  1998.   The total number of man hours
worked at all operations is 5,594,546  in 1998.  In the two years
prior to May 1, 1999, the mine was issued 24 citations and orders
and paid $1,634 in civil penalties.  The  penalties  assessed  in
this  decision  will  not  have  an adverse effect on Kennecott's
ability to continue in business.   It  has  not  been  shown that
Kennecott  failed to demonstrate good faith with respect  to  the
charges brought  by  the Secretary in these cases.  Based on this
criteria,  I  find  that   the  penalties  set  forth  below  are
appropriate.

                            IV.  ORDER

     For  the reasons set forth  above,  I  hold  that  Kennecott
discriminated   against   Tony   Lopez   when  he  was  issued  a
disciplinary letter on July 23, 1998, by Gill  Valdez.  Kennecott
is ORDERED to remove the letter from his personnel  file and this
letter  shall  not  be  considered  as  part  of his disciplinary
history by Kennecott.   All other allegations contained  in  this
complaint and any other relief requested by the Secretary and Mr.
Lopez  are  DENIED.  Kennecott is ORDERED TO PAY the Secretary of
Labor a civil  penalty in the amount of $1,000 for this violation
of section 105(c) within 40 days of the date of this decision.

     For the reasons  set  forth  above,  I  hold  that Kennecott
discriminated  against Mark Pollock when Mr. Valdez made  threats
against him in July  1998.   Kennecott  is  ORDERED  to cease and
desist  from  making  threats  against  Mr.  Pollock or otherwise
discriminating  against  Mr.  Pollock  for  activities  that  are
protected  under  section  105(c)  of  the  Mine  Act,  including
telephoning  MSHA with safety complaints.  All other  allegations
related to Mr.  Pollock's  first complaint of discrimination (No.
RM MD 98-14) and any other relief requested by the Secretary and
Mr.  Pollock  are  DENIED.   Kennecott  is  ORDERED  TO  PAY  the
Secretary of Labor a civil penalty in the amount of $500 for this
violation of section 105(c) within  40  days  of the date of this
decision.

     For the reasons ser forth above, I hold that  Kennecott  did
not  discriminate against Mark Pollock when it disciplined him in
December   1999.    Accordingly,  the  Secretary's  complaint  of
discrimination filed  with  respect to this discipline (RM MD 99-
02) is DISMISSED.

     For  the reasons set forth  above,  I  hold  that  Kennecott
discriminated  against  Mark Pollock when it required him to sign
the last chance agreement  as  a result of events that took place
on April 20, 1999, because Paragraph D of that agreement violated
the Mine Act.  Kennecott is ORDERED  to  cease  and  desist  from
including  such  language in any future last chance agreements it
may execute with respect  to any employee at its mine.  All other
allegations  related  to  Mr.   Pollock's   third   complaint  of
discrimination  (RM  MD 99-09) and any other relief requested  by
the Secretary and Mr.  Pollock  are DENIED.  Kennecott is ORDERED
TO PAY the Secretary of Labor a civil  penalty  in  the amount of
$10,000  for this violation of section 105(c) within 40  days  of
the date of this decision.

     For the  reasons  set  forth  above, Kennecott is ORDERED to
cease and desist from taking adverse  actions  against  any miner
who exercises his or her rights under section 105(c) of the  Mine
Act.   This  decision  is  my  final  decision and order in these
cases.

                              Richard W. Manning
                              Administrative Law Judge

Distribution:

Ann M. Noble, 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 Street,
Suite 2710, Denver, CO  80264  (Certified Mail)

RWM

**FOOTNOTES**

     [1]  For  example,  during  the  Week  of  July  7,  Pollock
reported to Gottling that Valdez's crew was  drilling  on a catch
bench.   The  catch  bench  was  not  supposed  to  be drilled or
blasted.   Valdez was the drilling supervisor and he admitted  to
Gottling that it was a mistake.

     [2]  Cory  Withers,  who  is  not  related  to  Tom Withers,
replaced Mr. Valdez in this position.  Mr. Valdez died in an auto
accident in January 1999.

     [3]  The testimony of Pollock and Jones  differed  somewhat
concerning the  events  that  morning.  I credit the testimony of
Jones in all respects.  Jones was  one  of  the  Secretary's most
credible witnesses.

     [4]  Pollock was also charged with failure  to  respond  to
radio calls, but that charge was dropped.

     [5]  At  the  hearing  in  this  case, Pollock admitted that
watching the company television was  a  violation  of Kennecott's
general code of conduct.  (Tr. 179).

     [6]  As  the  dissent  states in Bernardyn:  "A  miner  must
feel  free  to  communicate   about  [safety]  issues  -  with  a
management safety director, a foreman,  or  a  union  official  -
without  undue  concern about whether the complaint is couched in
an acceptable format, and thus should not be fired for the manner
in which he states  them except in extreme circumstances."  Slip.
Op 12-13.