.
KNIFE RIVER CORPORATION
June 28, 1999
WEST 99-106-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1244 SPEER BOULEVARD #280

                      DENVER, CO 80204-3582

                  303-844-3577/FAX 303-844-5268


                          June 28, 1999

ARTHUR R. OLMSTEAD,             : DISCRIMINATION PROCEEDING
               Complainant      :
                                : Docket No. WEST 99-106-D
          v.                    :
                                : Savage Mine
KNIFE RIVER CORPORATION,        :
               Respondent       : Mine I.D. 24-00106


                            DECISION

Appearances: Arthur R. Olmstead, Savage, Montana, Pro se;
             David M. Arnolds, Esq., Jackson & Kelly, Denver,
             Colorado, for Respondent.

Before: Judge Manning

     This case is before me on a complaint of discrimination
brought by Author R. Olmstead against Knife River Corporation
("Knife River") under section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. 815(c)(3) (the "Mine
Act").  The complaint alleges that Knife River suspended Mr.
Olmstead without pay and demoted him to a lower paying position
in October 1998 in violation of section 105(c).  A hearing in
this case was held in Sidney, Montana, on May 25 and 26, 1999.
For the reasons set forth below, I find that Mr. Olmstead did not
establish that he was discriminated against and I dismiss his
complaint of discrimination.

                       I.  FINDINGS OF FACT

     Knife River operates two open pit coal mines.  The Beulah
Mine in North Dakota produces about 2.7 million tons of coal a
year and employs about 130 miners.  The Savage Mine near Savage,
Montana, is a much smaller mine that employs about eight to ten
miners.  Mr. Olmstead has worked at the Savage Mine for about 33
years.  During this time, he has held a number of positions and
has operated most of the equipment at the mine.

     On June 30, 1995, when Mr. Olmstead was discharged from his
employment at the Savage Mine, he filed a discrimination
complaint under section 105(c) of the Mine Act.  Mr. Olmstead
injured his wrist and decided to have his wrist fused.  He did
not immediately return to work after his surgery.  The stated
reason for Mr. Olmstead's discharge was dishonesty for failure to
advise management that the doctor had released him to return to
light duty work.

     A hearing was held before Commission Judge T. Todd Hodgdon
in February 1996.  Judge Hodgdon determined that Knife River had
discharged Mr. Olmstead in violation of section 105(c) of the
Mine Act.  Secretary of Labor o/b/o Arthur R. Olmstead v. Knife
River Coal Mining Co., 18 FMSHRC 1103 (June 1996).  Judge Hodgdon
found that Mr. Olmstead engaged in protected activity.  The judge
credited the testimony of Mr. Olmstead and concluded that while
"Mr. Olmstead was ostensibly discharged for dishonesty, I find
that he was really discharged for continually raising safety
concerns at the mine."  Id. 1116.  Judge Hodgdon ordered Mr.
Olmstead reinstated to his previous position and awarded him back
pay.

     Mr. Olmstead was reinstated in July of 1996 to his previous
position as tipple operator.   Soon after he was reinstated, he
bid on the loader operator position.  This position is at the
highest rate of pay for an hourly employee.  Because of his
seniority, he was awarded this position.  The loader operator
scoops up coal that has been blasted and dumps it into coal
trucks for transportation to the preparation plant.  The loader
is a very large piece of equipment with an 18-yard bucket and
tires that are about 8 feet tall.  (Tr. 170, Ex. C-2M).  It
weighs about 90 tons.

     Knife River has a written disciplinary policy in its
employee handbook.  (Ex. R-7).  Rule 11 concerns carelessness
and negligence.  This rule states that it applies whenever an
employee:  (A) demonstrates carelessness or negligence in the
performance of work assignments; or (B) damages property or
product due to carelessness or negligence in the operation of
equipment.  Id.  Under a section entitled "Penalty for
Violation," the rule states: "First Offense - Warning Letter;
Second Offense - Disciplinary Suspension; Third Offense -
Dismissal."  Id.  Knife River contends that the actions that
it took against Mr. Olmstead were pursuant to Rule 11 of the
employee handbook and section 2(C) of the employee manual.

     The first event at issue in this proceeding occurred on or
about March 12, 1997.  Duane "Chuck" Reynolds, an electrician at
the Savage Mine, went to the mine superintendent, Carl "Junior"
Etzel, to complain about Mr. Olmstead's operation of the loader.
As stated above, the loader is used to load coal but, on
occasion, it is used to move submersible sump pumps in and out of
holes dug to dewater the area.  A chain is attached to the pump
and a tooth on the bucket of the loader.  An electrician on the
ground uses hand signals to guide the loader operator to raise or
lower the bucket and to move forward or backward.  The pumps are
very heavy.  Mr. Etzel testified that Mr. Reynolds told him that
"Art pays absolutely no attention to [his] direction of when to
lower, when to raise, when to tip the bucket back, when to tip it
forward, and that he had come close to catching his fingers in
the chain."  (Tr. 174).

     Mr. Reynolds testified that when he gave hand signals to Mr.
Olmstead, who was operating the loader, Reynolds would never know
which way Olmstead would go.  (Tr. 338).   Reynolds stated that
when he gave a signal to stop, Olmstead would follow it some of
the time and ignore it other times.  Reynolds complained that
Olmstead was not consistent with respect to the same hand
signals.  Reynolds testified that he told Mr. Etzel that he felt
he was putting his life in jeopardy when he worked with Mr.
Olmstead.  (Tr. 339-40).  Reynolds testified that this was not
the first time that Mr. Olmstead failed to follow his hand
signals.

     Following Mr. Reynolds' complaint, Mr. Etzel talked to Mr.
Olmstead about the incident.  Mr. Olmstead told Etzel that
Reynolds did not know what he was doing and did not know how to
give proper hand signals.  (Tr. 174).  Mr. Etzel told Mr.
Olmstead that he should try to be more careful, but Mr. Reynolds
felt that the situation was more serious than that.  Mr. Etzel
called Larry Duppong, vice president of operations, to discuss
the situation.  Mr. Duppong works at the company's headquarters
in Bismarck, North Dakota.  About a week later, Mr. Duppong
traveled to the Savage Mine to attend a meeting with Messrs.
Etzel and Olmstead.   It was agreed that a system of uniform hand
signals would be adopted.   (Tr. 176).  Nevertheless, Etzel and
Duppong did not believe that it was really a hand signal issue.
(Tr. 176, 291).  Other mine employees had told Mr. Etzel that "it
doesn't really matter what you do, Art does not pay any attention
to you."  (Tr. 176-77).  Two of the employees who complained to
Etzel were Leroy Miller and Garry "Bink" Miller.

     Management considered this meeting as an oral warning to
Olmstead.  (Tr. 291).  Etzel put his notes of the meeting in
Olmstead's personnel file but a copy was not given to him.  (Tr.
177; Ex. R-6).  Mr. Olmstead did not consider this meeting to be
an oral warning.  Indeed, Etzel's written notes do not indicate
that the discussions were an oral warning.  Olmstead believes
that the hazards created were entirely the result of Mr.
Reynolds' lack of understanding of hand signals.  Olmstead does
not believe that he was at fault.

     The second event occurred on April 20, 1998, when Mr.
Olmstead ran the loader into a beam supporting the overhead
walkway at the fuel station.  (Tr. 79, 178).  Mr. Olmstead
approached the fuel station from the east, misjudged the distance
between his bucket and the support beam, and pushed the beam to
the west.  (Tr. 178).  The beam was made of 12-inch pipe filled
with concrete, which helped support the walkway and protect the
fuel station.  Mr. Etzel attempted to straighten it by using a
chain and a backhoe, but he was only partially successful. 
(Tr. 179).

     Mr. Olmstead testified that the accident was not his fault.
(Tr. 79).  He stated that the fuel station was not properly
designed and that, on that particular day, he had to approach it
from an angle because a pile of rocks was in his way.  (Tr. 80).
He also testified that the area was very muddy.  He stated that
he gave the pipe only a "glancing blow."  Id.

     As a result of this accident, Mr. Etzel issued Mr. Olmstead
a warning letter for carelessness and neglect under rule 11 of
the employee handbook.  (Tr. 180; Ex. R-4).  The letter states:

          This is a warning letter regarding your
          violation of Rule #11, Carelessness and
          Negligence of Knife River Corporation's Rules
          of Conduct.

          On April 20, 1998, while preparing to fuel
          the 992 loader, you hit the fuel station with
          the loader bucket, causing the station guard
          to tip backward.

          After examining the incident, I have resolved
          that no real monetary damage was done, other
          than labor costs to straighten the guard back
          up to the proper position.

          Nevertheless, Art, it is critical for your
          safety and the safety of your fellow
          employees that due care be exercised at all
          times on the job.

(Ex. R-4).  Mr. Olmstead refers to this letter as "Step 1"
discipline.  He contends that this letter was unfairly issued
because other employees have had accidents which caused more
significant damage or resulted in lost production in which no
disciplinary action was taken.  He testified about several
accidents.  These accidents are discussed later in this decision.

     Mr. Etzel stated that he issued the letter because it is his
practice to issue warning letters to employees who have a
significant accident.  He also took into consideration the fact
that he had received a number of safety complaints about Mr.
Olmstead from other employees.  (Tr. 180-81).  He discussed the
letter with Mr. Duppong before he issued it.  (Tr. 183, 291).

     The final event in this case is the accident that occurred
on September 24, 1998.  Olmstead's loader is parked in a garage
during the night to protect it from the elements.  At the end of
his shift on September 23, he drove the loader into the garage
bucket first as was his practice.  He arrived at the mine on
September 24 at about 5:30 a.m. to begin his shift at 6 a.m.  He
entered the garage from the back, pre-shifted his loader, and
entered the cab.  Using the remote control inside the cab for the
large garage door, he opened the door.  It was still pretty dark
outside.  After looking in his rear view mirrors, he backed out
and hit a company pickup truck that was parked outside.  The
pickup was demolished.  (Exs. C-2H, R-1).  There are no yard
lights in the vicinity of the doors for this garage.

     Generally, vehicles are not parked behind these garage
doors.  On the evening of September 23, repair work was being
performed on another vehicle in the other bay of the garage.  The
repair crew needed parts to complete the repair.  Mr. Etzel drove
to Glendive, Montana, procured the parts, and returned to the
mine.  He parked the pickup by the large garage doors because he
believed that a winch might be necessary to remove the heavier
parts from the truck.  The repair crew would be able to easily
get to the parts from that location.  He parked the pickup about
12 feet back from and parallel to the garage door.  This placed
the pickup directly behind and perpendicular to the loader that
was behind the closed garage door.  Mr. Etzel then left the mine
at about 6:30 p.m. to start his vacation.

     The repair crew was not able to complete the repairs that
evening.  When the crew left the mine, they did not move the
truck.  Mr. Olmstead left the mine after the end of his shift on
September 23 before the pickup was parked near the garage.  Mr.
Olmstead testified that he did not see the pickup and, because it
was still dark, it would have been very difficult to see from
inside the cab of the loader.  The pickup was a deep red color
and there were no yard lights in the area.  The headlights on the
back of the loader were working, but they are about ten feet off
the ground.  There is an obstructed area behind the loader than
cannot be seen from the cab.

     Knife River conducted an investigation of the accident.
In  Mr. Etzel's  absence,  Leroy  Miller  did a  preliminary
investigation.  He apparently concluded that Mr. Olmstead failed
to look behind the loader when he backed out.  (Tr. 184).  When
Mr. Etzel returned to the mine a week later, he parked a pickup
in the same general area and got into the loader's cab at about 6
a.m. to find out what could be seen.  He testified that it was
hard to see the pickup in the right mirror, but that it was easy
to see the pickup in the left, driver's side mirror.  Id.  He
stated that the mercury vapor lights inside the garage provided
enough illumination to see the truck from inside the cab of the
loader.  (Tr. 185).

     Mr. Etzel also testified that he did not know that Mr.
Olmstead was using the remote control device to open the garage
door from the inside of his cab.  (Tr. 186-87).  He stated that
he would have removed the remote control from the cab if he had
known that Olmstead was using it to open the door upon exiting
the garage.  (Tr. 234).  He stated that the proper procedure was
to open the garage door using the button on the wall of the
garage so that the loader operator can check the area behind the
loader.  (Tr. 188, 233-34).  The remote control device was placed
in the cab so that the operator could open the door to enter the
garage without getting out.

     Mr. Alan Abbey, the safety director for Knife River, also
conducted an investigation at the request of Mr. Duppong.  (Tr.
293).  Mr. Abbey is normally stationed at the Beulah Mine.  He
traveled to the Savage Mine, met with Mr. Olmstead, and tried to
reenact the accident scene.   Mr. Olmstead explained how the
accident happened and showed Mr. Abby where the pickup was
parked.  Mr. Abbey returned to the Savage Mine at 5:30 a.m. the
next day, parked his red pickup in the location that Mr. Olmstead
had indicated, and got in the cab of the loader to find out what
he could see using the rear view mirrors.  (Tr. 257-59).   Mr.
Abbey testified that he could clearly see the pickup from the
rear view mirrors.  (Tr. 262; Ex. R-13).  He stated that he could
see it even more easily by standing on the platform just outside
the left door of the loader that the operator uses to enter the
cab. (Tr. 260-61).  He concluded that Mr. Olmstead failed to look
behind the loader before he backed out of the garage.  (Tr. 263-
64).  In his accident report, Mr. Abbey stated that he "could see
the pickup quite well with the illumination from [t]he shop
lights."  (Ex. R-8).  Mr. Abbey testified the photographs that he
took accurately represent what he saw that morning.  (Tr. 262;
Ex. R-13).

     Knife River distributes a safety booklet to all employees.
(Ex. R-9).    Rule 39 in the section entitled "Loading and
Haulage" provides as follows:

          Prior to backing a machine with restricted
          rear visibility, the operator, or a guide, is
          responsible to inspect the area to the rear
          of the machine.  In all cases, the operator
          has the ultimate responsibility for the safe
          operation of the machine.

(Ex. R-9).  Based on these investigations and Knife River's
safety rule No. 39, Mr. Etzel determined that Mr. Olmstead was
responsible for the accident.  When Etzel and Duppong discussed
the accident, they were concerned that Mr. Olmstead might be
having vision problems because everyone else could see the pickup
from the cab of the loader.  (Tr. 293).  Mr. Olmstead has
diabetes and they wanted to make sure that it was not affecting
his eyesight.   Duppong called a physician in Sidney, Montana,
who agreed to see Mr. Olmstead.  The physician also suggested
that Olmstead see an ophthalmologist in Williston, North Dakota.
Id.  Knife River's employee manual at section 9(G) provides that
an employee can be required to undergo a medical examination if
the company reasonably believes that the employee "poses a danger
to himself or to other employees because of a physical or mental
impairment."  (Ex. R-11).

     Mr. Olmstead was given leave with pay so that he could see
these two physicians.  (Tr. 193-94, 294; Ex. R-10).  The
physicians subsequently advised Knife River that there was
nothing about Mr. Olmstead's health or eyesight that should
prevent him from operating the loader safely.

     Messrs. Etzel and Duppong discussed the accident and Mr.
Olmstead's "track record with the operation of the [loader]."
(Tr. 294).  They were especially concerned because whenever Mr.
Olmstead was involved in an accident or a safety dispute with
another employee, Mr. Olmstead always denied any responsibility.
Id.  It was always "somebody else's fault."  Id.  Knife River
decided to suspend Mr. Olmstead for four days without pay for the
accident and to demote him to a general equipment operator
position.  He was assigned to operate the dozer because he would
not be working around other employees in that position.  The
dozer operator is paid $20.19 an hour while a loader operator is
paid $20.86 an hour; a difference of 67 cents an hour.

     The suspension letter was sent to Olmstead on October 19,
1998.  It states that Olmstead failed to insure that the area
behind the loader was clear.  (Ex. 12).  The letter further
states that the accident was the result of Mr. Olmstead's
"recklessness and carelessness" in the performance of his duties.
Id.  The letter advised Mr. Olmstead that under rule 11 of the
employee handbook he was being suspended for four days because
this was his second offense within 12 months. (See Ex. R-7).
The letter also advised him that under section 2(C) of the
employee manual he would "revert to a general equipment operator
position" upon his return to the mine.  (Ex. R-12).  Section 2(C)
of the employee manual provides that if an employee "cannot
perform his present job due to health or safety considerations,
he may revert to a general laborer position or be assigned to
another classified position, if able to perform the duties of
that position."  (Ex. R-11).

     Mr. Olmstead contends that the accident of September 24,
1998, was not his fault.  First, he maintains that Mr. Etzel
should not have parked the pickup behind the garage doors.  He
testified that Etzel knew or should have known that his loader
was parked in the garage and that he would be backing out the
following morning.  Furthermore, Olmstead contends that Etzel
knew or should have known that it was his habit to open the
garage door from inside the cab of the loader rather than from
the floor of the garage.  Second, Olmstead contends that Leroy
Miller was at fault for not warning him that the pickup was
there.  He testified that Mr. Miller was responsible for doing
the preshift inspection of the mine and that this inspection
should have included the area behind the garage.  Third, 
Olmstead contends that the repair crew that was working 
on the vehicle in the other bay should have moved the
pickup when they did not use the parts in the bed of the pickup
that evening.  The crew should at least have warned him.  Fourth,
Olmstead testified that he had asked that a yard light be
installed behind the garage and that additional lights be
installed on the loader.  Fifth, Olmstead believes that windows
should have been installed in the garage doors so that he could
look out before he opened the door.  Sixth, Olmstead states that
because no small vehicle had been parked behind the door since he
began operating the loader, he "saw no reason to change his
method of [opening the garage door], because [he] could usually
see something that was big enough to be seen...."  (Tr. 122).
Finally, Olmstead disagrees with Knife River's safety rule that
places responsibility on loader operators to make sure that the
area behind their vehicle is clear.  He believes that the driver
of a small vehicle, such as a pickup, should not be allowed to
park behind a large vehicle, such as a loader.

     It is Mr. Olmstead's contention that he was treated
differently from other employees in part because he had been
reinstated to his job in 1997 under Judge Hodgdon's decision
finding that he had been discriminated against under section
105(c) of the Mine Act.  He believes that other employees have
caused accidents that are as serious or more serious than his
accidents and that these employees have not been disciplined as
severely as he has.

      II.  DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS

     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).

     A.  Did Arthur Olmstead Engage in Protected Activity?

     Mr. Olmstead engaged in protected activity when the
Secretary of Labor filed a discrimination complaint on his
behalf and he was ordered reinstated by Judge Hodgdon.  In
his decision, Judge Hodgdon found that Mr. Olmstead "was
well known for raising operational and safety matters, both
with management and state and federal mine inspectors."  18
FMSHRC at 1104.  Although Mr. Olmstead asked for more
lighting around the garage and on the loader, there is no
evidence in the present case to indicate that he was
actively engaged in safety issues or that he discussed
safety issues with mine inspectors.  Nevertheless, I adopt
Judge Hodgdon's findings in this regard.

     B.  Was Arthur Olmstead's Suspension and Demotion Motivated
     in any part by his 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).

     Mr. Olmstead is claiming disparate treatment. He points
to a number of events to establish that he was treated
differently than other miners.  I find that Mr. Olmstead
failed to show that he suffered disparate treatment.
Indeed, the events that he relies upon are reasonably
consistent with Knife River's decision to suspend and demote
Mr. Olmstead.

     The first event relates not to a previous accident, 
but to the failure of Knife River to discipline a former
mine superintendent, Richard Kalina.  Mr. Kalina was the
superintendent when the Secretary filed the previous
discrimination complaint on Mr. Olmstead's behalf.  He was
also the superintendent when Mr. Olmstead was reinstated.
Apparently, Olmstead was operating a loader that was having
starter problems on one particular day in February 1997.
Olmstead shut down the loader during his lunch break.  When
Olmstead was not able to start it after lunch, Kalina became
angry with Olmstead for not letting the loader idle through
lunch.  (Tr. 89-91).  Kalina apparently thought that
Olmstead's actions were malicious and he shoved Olmstead
against the door of the loader.  Kalina was not disciplined.
Instead, the record indicates that he was given a desk job
"in the basement in the Bismarck office" the next day.  (Tr.
22).  Etzel succeeded Kalina as superintendent.  Rule 4 of
the employee handbook provides for immediate dismissal for
assaulting another individual.

     The second event that Olmstead relies upon occurred when
Bud King overturned a scraper in October 1995.  Mr. King was
using a scraper on top of a soil pile and his front left
tire went off the edge of the pile.  Rather than trying to
back off the pile, Mr. King decided to raise the bowl of the
scraper and drive forward down the hill.  (Tr. 16, 87-88).
The scraper overturned as he was descending the hill.  (Ex.
C-1).   Mr. King was not disciplined for this accident.
(Ex. R-3).  The cab windows, left fender, air filter, and
muffler were damaged.  Id.  Mr. Etzel was not the
superintendent at the time of this accident and knew nothing
about it.

     The third event occurred in 1994 when a coal truck that
Bink Miller was operating went off the road and overturned.
Bryan Carr, who testified on behalf of Mr. Olmstead,
believes that the accident occurred because Mr. Miller fell
asleep.  (Tr. 49).   Mr. Olmstead was involved in the
recovery effort and felt that the truck was damaged but did
not suffer "serious heavy damage."  (Tr. 93).   He believes
that Mr. Miller should have been disciplined for the
accident.  Knife River did not discipline Mr. Miller because
the truck was only slightly damaged and the incident was not
considered to be an accident.  (Ex. R-3).  Mr. Etzel
testified that after the truck was uprighted it was in good
enough shape to be returned to service the same day.  (Tr.
200-01).   Although Mr. Etzel was an hourly worker at the
time of this incident, it is his understanding that
the berm gave way and the incident was attributed to road
failure not operator error.  (Tr. 202).

     The fourth event concerns two incidents involving pickup
trucks operated by Carl Vender.  Mr. Vender is an engineer
at the mine who is sometimes required to drive through
reclamation areas.  On two occasions he drove through areas
that had suffered heavy erosion and damaged the pickup he
was driving.  Although Mr. Olmstead testified that these two
incidents occurred a few months apart, Knife River's records
establish that the first accident occurred in July 1996 and
the second occurred in October 1998.  (Ex. R-3).  Mr. Vender
received an oral warning for the first accident.  The second
event occurred at night and, after it began raining heavily,
his pickup slid into a gully.  (Tr. 204).  The vehicle was
not damaged and no disciplinary action was taken because it
was not attributed to operator error.  (Tr. 205).  Instead,
Mr. Vender was instructed to use an "older junkier pickup"
whenever he traveled in reclamation areas.  (Tr. 95).

     The fifth incident occurred when a coal truck operated
by George Swisse ran into a pickup operated by Bink Miller
in March 1966.  The coal truck was a large vehicle with an
obstructed rear view.  There had been a blockage in the
tipple and Mr. Swisse parked his coal truck in the area
until the blockage was removed.  In the meantime, Mr. Miller
parked a pickup behind the coal truck.  When Mr. Swisse
backed up after operations resumed, he ran into the pickup.
Mr. Swisse received a written warning under Rule 39 of the
company's safety booklet, quoted above, for not making sure
that the area was clear before backing the coal truck.  Mr.
Miller did not receive any discipline.  As stated above, Mr.
Olmstead does not agree with this safety rule and believes
that Mr. Miller should have received the written warning for
parking a pickup in the blind spot behind the coal truck.
(Tr. 96-98).

     The sixth incident that Olmstead relies upon to establish
disparate treatment involved two draglines, which were in
the same confined area in February 1994.  The dragline that
was operating had just been moved and the operator, Mr.
Leroy Miller, swung it around to see if there was enough
clearance between the two draglines.  The cable on his
dragline hit the other dragline and damaged it.  Mr. Miller
received a written warning.  (Tr. 100, 205-06).

     The final incident also involved Leroy Miller. In April
1997, Mr. Miller damaged the east wall of the garage when he
was moving an engine with a loader.  A Caterpillar dealer
had brought an engine to the mine and Mr. Miller was using
the loader to lift it out of the truck when he struck the
wall of the garage and damaged it.  A representative from
the dealer was on the ground guiding Mr. Miller.  (Tr. 101-
02, 206-07).  Mr. Miller received an oral warning.

     I find that these incidents do not establish that Mr.
Olmstead was treated more harshly than other employees who
were involved in accidents.  Knife River looks primarily at
the carelessness and negligence of the equipment operator
when determining whether discipline is warranted.  Mr. King,
for example, had been regularly operating the scraper for
only a few days when the accident occurred.  (Tr. 34-35).
Although his actions might have been negligent, it appears
that he was given the benefit of the doubt.  When Leroy
Miller ran into the wall of the garage with a loader, he was
only given an oral warning because management took into
consideration that fact that he was relying on a guide on
the ground.

     Knife River's handling of the George Swisse-Bink Miller
accident is entirely consistent with the discipline of Mr.
Olmstead in this case.  The operator of the larger coal
truck was given a written warning and the operator of the
pickup was not disciplined.  Although Mr. Olmstead disagrees
with the rule that puts the responsibility for making sure
that an area is clear on the operator of the larger vehicle,
that is the rule at the Savage Mine and it appears that the
rule has been consistently applied.

     The other accidents that Olmstead referred to are either
different or the discipline given is consistent with the
discipline that Mr. Olmstead received.  The incident
concerning Mr. Kalina is not really relevant here.  Although
Kalina could have been disciplined, he was a management
employee.  He was immediately removed from the mine
property.

     The record in this case indicates that no other employee
at the Savage Mine had caused two significant accidents within
a 12-month period, at least since 1996 when Olmstead
returned to work.  His suspension and demotion is directly
related to the fact that he had two accidents within six
months and other employees were complaining to Mr. Etzel
about Olmstead's ability to safely operate the loader.  The
record reveals that Olmstead typically blamed others
whenever safety issues were raised.  For example, he only
grudgingly accepted partial responsibility for backing into
the pickup truck.  (Tr. 145-46).

     When Olmstead requested more lights on the loader, 
Mr. Etzel looked into the matter.  An MSHA inspector advised
Etzel that as long as all the lights installed on the loader
by the manufacturer are working, the loader complies with MSHA
lighting requirements.  Etzel apparently was not aware that
Olmstead had requested a yard light near the garage doors.
(Tr. 224).  I credit the testimony of Messrs. Etzel and
Duppong concerning the chain of events that led to Mr.
Olmstead's suspension and dismissal.

     I find that Mr. Olmstead could have seen the pickup behind
his loader on September 24 if he had looked more carefully.
Although it may have been a little difficult to see using
the rear view mirrors, he could have looked from the
platform adjacent to the door to the cab or from the floor
of the garage.  The discipline he received was consistent
with Knife River's written policies and as well as its
practices.  The record establishes that other Knife River
employees have been suspended under rule 11 of the employee
handbook and at least one employee at the Beulah Mine has
been taken off equipment for safety considerations.  (Tr.
265; Ex. R-7).

     At the hearing, I asked Mr. Olmstead why he thought he
was suspended and demoted by Mr. Etzel.  It appears that he
believes that the principal reason was to allow Bink Miller
to operate the loader.  (Tr. 140).  Apparently Bink Miller
operated the loader prior to Olmstead's reinstatement.
Olmstead was able to bump Bink Miller from that position
after he returned because he had greater seniority.

     I find that Mr. Olmstead established a prima facie case 
that his discipline may have been motivated, at least in part,
by his protected activity.  If Olmstead was demoted because
Etzel wanted to return Bink Miller to the loader, Etzel was
motivated, at least indirectly, by Olmstead's protected
activity.  The evidence to support Mr. Olmstead's claim is
not very convincing but I am giving Mr. Olmstead the benefit
of the doubt because he proceeded in this case without the
benefit of counsel.

     I find, however, that Knife River successfully rebutted 
Mr. Olmstead's case. I find that Knife River established that,
even if it was motivated in part by Mr. Olmstead's protected
activity, it would have taken the adverse action for the
unprotected activity alone.  I base my conclusion on the
facts described above.  I credit the testimony of Etzel and
Duppong as to their reasons for disciplining Mr. Olmstead.
In analyzing motivation, I have taken into consideration
that fact that Mr. Olmstead was reinstated in July 1996 and
the suspension and demotion involved in this case occurred
over two years later.  Although people can hold grudges for
a long period of time, I did not get any sense of that in
this case.  Moreover, Mr. Etzel was not involved in the
decision to discharge Olmstead in 1995 and Mr. Kalina was
not involved in any discipline against Olmstead in this
case.

     Both Etzel and Olmstead testified that their personalities
clashed to a certain extent.  The Savage Mine is a small
operation and personalities can play a large role when there
are less than ten employees at a work site.  Olmstead
testified that his relationship with Etzel improved when
Etzel became the superintendent at the mine.  They did not
get along particularly well when they were both hourly
employees.

     Mr. Olmstead believes that his suspension and demotion 
were unfair. I do not have the authority to determine whether
this discipline was 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. Olmstead's suspension and demotion did not
violate section 105(c) of the Mine Act.

                           III.  ORDER

     For the reasons set forth above, the complaint filed 
by Arthur R. Olmstead against Knife River Corporation under
section 105(c) of the Mine Act is DISMISSED.


                              Richard W. Manning
                              Administrative Law Judge


Distribution:

Mr. Arthur R. Olmstead, Route 2 Box 250, Savage, MT 59262  
(Certified Mail)

David M. Arnolds, Esq., Jackson & Kelly, 1660 Lincoln Street,
Suite 2710, Denver, CO  80264  (Certified Mail)

RWM