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

 
KENNETH L. DRIESSEN
April 9, 1998
WEST 96-291-DM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                          April 9, 1998

KENNETH L. DRIESSEN                :
                                   :
          v.                       : Docket No. WEST 96-291-DM
                                   :
NEVADA GOLDFIELDS, INC.            :


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


                            DECISION

BY:  Jordan, Chairman; Riley and Verheggen, Commissioners

     In this discrimination proceeding, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C.  801 et seq.
(1994) ("Mine Act" or "Act"), Administrative Law Judge T. Todd
Hodgdon determined that Nevada Goldfields did not violate section
105(c) of the Act, 30 U.S.C.  815(c),[1] when it terminated
employee Kenneth L. Driessen on February 7, 1996.             19
FMSHRC 157 (Jan. 1997) (ALJ).  We granted the petition for
discretionary review filed by Driessen challenging the judge's
decision.  For reasons that follow, we affirm the judge.

                               I.

                Factual and Procedural Background

     Nevada Goldfields, Inc. ("Nevada Goldfields") began mining
operations at the Nixon Fork Mine, located in the central
interior of Alaska near McGrath, in October, 1995.  19 FMSHRC at
158; Tr. 110.  Access to the mine is limited; everything is
transported in or out by airplane.  19 FMSHRC at 158; Tr. 129.
The Nixon Fork Mine employs 50 miners and produces gold and some
silver and copper.  19 FMSHRC at 158.  The miners work 12-hour
shifts, seven days a week.  Id.  The shifts begin at 7:00 a.m.
and 7:00 p.m.  Id.  The miners work either two weeks on, one week
off, or four weeks on, two weeks off.  Id.

     The ore comes out of the mine in rocks which are then
conveyed through crushers, ball mills, and other processors until
it is shipped out as bagged concentrate of dore ingots.[2]  Id.
The No. 1 ball mill at the mine processes the raw ore into
copper/gold concentrate and operates continuously except during
periods of maintenance.  Tr. 118-19, 162.  The ball mill is
essential to processing ore at the mine.  Tr. 167.

     Prior to January 24, 1996, there were problems with the No.
1 ball mill and measures were taken to repair it.  Tr. 47-48,
168.  The mill sometimes overheated and slurry water leaked into
the bearings, causing steam to be emitted.  Tr. 48, 167.  It was
determined that the main problem was a seal leak, and grease
fittings were installed as a stop-gap measure to reduce the
operating temperature of the mill until the damaged discharge end
bearing could be replaced.  Tr. 47, 169-70, 173.  The mill was
shut down on the evening of January 24, and Kenneth Driessen, who
was hired as a mechanic in October 1995, was asked to clean the
mill, grease it, and put it back together.  19 FMSHRC at 160; Tr.
168.  Driessen took apart the bearing and noticed that the
grooves in the shaft of the mill were deep, indicating severe
wear and damage caused by the leaking slurry water.  Tr. 19, 168.
Later that shift, Driessen informed mill superintendent Mike
Rusesky that he believed that restarting the mill would be
dangerous, and Rusesky decided not to restart the mill.  19
FMSHRC at 160; Tr. 19-20, 171.  Both Driessen and Rusesky were
later reproached for failing to speak with either maintenance
supervisor Ted Botnan or mine manager Mel Swanson before deciding
not to restart the mill, because this violated the procedures set
forth in the communications section of the employee handbook.  19
FMSHRC at 160-61; Ex. H at 5.[3]

     The faulty bearing in the ball mill was flown to San Diego
for repairs.  Tr. 172-73.  Subsequently, it was fixed and
returned to the mine early the following week.  Tr. 173-74.  From
January 30 to February 6, a contract millwright supervised the
installation of the bearing.  Tr. 175.  In a test on February 3,
the mill did not exceed acceptable temperature levels when
operated without grinding balls.  Tr. 176-77.  However, on
February 6, the mill would not run when the steel grinding balls
were put back into it.  Tr. 20, 178.

     At 7:00 p.m. on the evening of February 6 at the beginning
of his shift, Driessen was asked to look at the ball mill to
determine why it would not run normally, and he opined that the
mill would not run because the rubber seal or flange on the
feeder end of the mill, which was out of alignment, was binding.
Tr. 179, 182-83.  Management was aware that the flange was out of
alignment, but this had never been a problem except to cause the
flange to wear out more frequently.  19 FMSHRC at 164; Tr. 182.
After allowing Driessen to attempt various repairs, Botnan and
Swanson became convinced that the problem was electrical rather
than mechanical.[4]  19 FMSHRC at 163.  Driessen suggested
cutting a flap on the flange but, after some argument, mine
manager Swanson specifically ordered Driessen not to touch the
flange, which mechanics on the prior shift had spent several
hours fabricating and installing.  Id. at 164; Tr. 147, 182-83.
At approximately 11:00 p.m., Botnan and Swanson left.  Tr. 147-
48, 183-84.

     The parties differ regarding which tasks Driessen was
assigned to perform when Botnan and Swanson left.  Driessen
maintained that he was assigned to troubleshoot the mill on
February 6-7 and was not given any other assignments.  19 FMSHRC
at 161; Tr. 24, 68.  Swanson and Botnan testified that, after
Swanson had concluded that the problem with the mill was
electrical, Driessen was given three specific tasks to be
completed on his shift:  reassemble and tighten the
feed chute tube on the mill; reassemble the coupling on the
mill's motor; and change a tire on the 966 loader.[5]  19 FMSHRC
at 163-64; Tr. 130, 186.

     At 7:00 a.m. the following morning at the end of Driessen's
shift, Driessen spoke to Nevada Goldfields vice president Joe
Kercher regarding the continuing problems with the ball mill, and
gave Kercher a drawing of the mill he had drafted.  19 FMSHRC at
159, 164; Ex. 1.  Botnan and Swanson arrived and discovered that
the three assignments given to Driessen had not been completed;
the flange on the mill had been cut; and Driessen had worked on
drawings of the mill.  19 FMSHRC at 160, 164.  The cut flange
created a leak, destroying the work performed by the previous
shift.  Id. at 164; Tr. 185.  After discussing the matter,
Kercher, Botnan, and Swanson decided to fire Driessen for
insubordination because he failed to complete the tasks assigned
him and instead focused on other matters on which he had not been
told to work.  19 FMSHRC at 164; Tr. 186.  Botnan then informed
Driessen that he was terminated.  19 FMSHRC at 164; Tr. 30-31,
187.

     On March 4, 1996, Driessen filed a complaint with the
Secretary of Labor's Mine Safety and Health Administration
("MSHA"), alleging that he had been discriminated against for
engaging in protected activity.  19 FMSHRC at 157.  Following an
investigation, MSHA informed Driessen it had determined that no
discrimination had occurred.  Ex. C.  Driessen filed a complaint
with the Commission, and the matter proceeded to hearing before
Judge Hodgdon.

     The judge concluded that Nevada Goldfields did not violate
section 105(c) by firing Driessen.  19 FMSHRC at 164.  The judge
found that Driessen engaged in protected activity prior to his
termination.  Id. at 160.  On January 24, 1995, Driessen told
mill superintendent Rusesky that it would be dangerous to restart
the ball mill; and on February 7, 1996, Driessen expressed to
company vice president Kercher his opinion about what repairs
were still needed to be able to restart the mill.  Id. at 159;
Tr. 26-27.  While the judge held that Driessen had made a
protected safety complaint under section 105(c), he nevertheless
concluded that Driessen was fired for insubordination.  19 FMSHRC
at 164.  Based on his determination that the company had the more
credible version of the events prior to Driessen's discharge, the
judge concluded that the termination was precipitated solely by
Driessen's failure to comply with several direct orders and was
in no part based on protected activity.  Id.

                               II.

                           Disposition

     Driessen, who was represented by counsel before the judge,
filed a pro se petition for discretionary review, challenging the
judge's conclusion that Nevada Goldfields did not violate section
105(c).  Driessen argues that the judge erred in finding that
Nevada Goldfields fired him for his allegedly insubordinate
behavior alone.  PDR at 1-3.  Driessen maintains that, as a
result of twice bringing to the company's attention what he
considered to be dangerous situations, he was discriminatorily
discharged.  D. Br. at 1.[6]  Finally, Driessen asserts that
witnesses whom he subpoenaed for the hearing were unable to
testify truthfully because they feared losing their jobs.  PDR at
3.

     Nevada Goldfields responds that the judge properly concluded
that Driessen's termination did not violate section 105(c).
Resp. Br. at 1, 5.  The company asserts that the judge correctly
found that company officials assigned Driessen three specific
tasks which were to be performed on the February 6-7 night shift
and that Driessen failed to complete any of these tasks.  Id. at
2, 10.  The company further argues that the judge's finding that
it fired Driessen only for these insubordinate actions and that
his safety complaints were in no part considered in the
termination decision is supported by substantial evidence.  Id.
at 5.  With regard to Driessen's assertions about witness
credibility, Nevada Goldfields argues that the Commission should
reject them as untrue and based on non-record evidence.  Id. at
6-7.

     Section 105(c) of the Mine Act prohibits discrimination
against miners for exercising any protected right under the Act.
A complainant alleging discrimination under the Mine Act
establishes a prima facie case of prohibited discrimination by
presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse
action complained of was motivated in any part by that activity.
Secretary of Labor on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981);
Secretary of Labor on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803, 817-18 (Apr. 1981).  The operator may rebut
the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by
protected activity.  Robinette, 3 FMSHRC at 818 n.20.  If the
operator cannot rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action for the unprotected activity alone.  Id.
at 817; Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc.
Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).

     As the judge found, Driessen engaged in acts protected by
section 105(c), when he complained that starting the No. 1 ball
mill would be dangerous,[7] and that he believed problems with
the mill still existed.  19 FMSHRC at 159-60.  Nevada Goldfields
nowhere denies that these acts were related to safety.
Therefore, as the judge concluded, Driessen engaged in protected
activity before he was terminated, satisfying the first element
of a Pasula-Robinette prima facie case.  Id.; see Robinette, 3
FMSHRC at 817 (citing Pasula, 2 FMSHRC at 2799-800).  Further, it
is undisputed that Driessen was discharged on February 7, 1996.
See Robinette, 3 FMSHRC at 817.  Discharge is perhaps the
clearest form of adverse action prohibited by the plain language
of the Mine Act.  See 30 U.S.C.  815(c)(1); Secretary of Labor
on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842,
1847-48 (Aug. 1984) (stating that discharge of a miner is "a
self-evident form of adverse action").

     The final inquiry to establish a prima facie case under
Pasula-Robinette is whether the adverse action was motivated in
any part by the protected activity.  Robinette, 3 FMSHRC at 817
(citing Pasula, 2 FMSHRC at 2799-800).  The complainant bears the
burden of establishing that the adverse action complained of was
motivated in any part by the protected activity.  See Secretary
of Labor on behalf of Ribel v. Eastern Assoc. Coal Corp., 7
FMSHRC 2015, 2019 (Dec. 1985).  Here, substantial evidence[8]
supports the judge's conclusion that Nevada Goldfields' discharge
of Driessen was in no part motivated by his protected activity.

     Based on credibility determinations and the lack of any
corroborating testimony or evidence supporting Driessen's version
of events, the judge concluded that Driessen did not carry his
burden of proving that his safety complaints played any role in
his discharge.[9]  19 FMSHRC at 160, 164.  Mine manager Swanson
testified that he, company vice president Kercher, and
maintenance supervisor Botnan decided to fire Driessen for
insubordination because Botnan "had given [Driessen] three
specific instructions on what to do and he failed to do them, and
he had done a project that . . . he was not instructed to do."
Tr. 184-86; see also Tr. 130 (Botnan's testimony that Driessen
failed to do the three tasks given him).  The judge credited
Swanson's and Botnan's testimony that the company fired Driessen
solely for his failure to complete his assigned tasks.[10]  19
FMSHRC at 160.  The judge did not find credible Driessen's
testimony that he had been assigned to troubleshoot the mill.
Id. at 161.  The judge noted that Driessen's testimony "was so
filled with inabilities to recall, irrelevancies, blanks,
inconsistencies and lack of corroboration that it lacks
credibility."[11]  Id.; see id. at 161-63.  Our review of the
record indicates no basis for overturning the judge's credibility
resolutions in finding that Driessen was terminated solely for
insubordination.[12]

     Nor are we persuaded by Driessen's asserted reasons for
failing to complete his assigned tasks.  Driessen's claim that
his failure to complete his assigned tasks was due, in part, to
another mechanic requesting assistance with a water problem has
no credible support in the record.  PDR at 2-3.  As the judge
found, Driessen's testimony was "rambling" and "contradictory"
and not supported by any corroborating evidence.  19 FMSHRC at
164.  Compare, e.g., Tr. 26, 32 with 60.  His claim that he made
some progress on his assignments on February 6-7 (Tr. 71) is
controverted by other testimony.  Tr. 154, 156 (Botnan's
testimony that the ball mill assignments would take less than two
hours to complete and that the tools and lug nuts near the 966
loader had not been moved during Driessen's shift).  Also, no
evidence was presented that anyone other than Driessen was
instructed to reassemble the feed chute tube on the ball mill,
reassemble the coupling on the mill, or change the loader tire on
February 6-7,[13] all of which went unfinished that night.  See
Tr. 130, 147, 182.  The judge found that Driessen's testimony
regarding these tasks was unconvincing.  19 FMSHRC at 164.  In
sum, substantial evidence supports the judge's finding that
Driessen was not discharged in violation of section 105(c).[14]

     Driessen urges one final ground for reversing the judge - an
allegation of witness bias.  PDR at 3.  In support of that
ground, Driessen references a letter that he wrote to the judge
after the hearing[15] and an affidavit attached to his petition
for review.  Id.  Both documents allege essentially that, after
the hearing, mill superintendent Rusesky told Driessen that
Driessen was fired for saying that the ball mill was dangerous
but that Rusesky could not so testify because he was afraid of
losing his job.  See Driessen Aff. dated Jan. 9, 1997; Letter
from Driessen to Judge Hodgdon of Dec. 17, 1996.  Neither
document is properly part of the record and thus neither can be
considered by the Commission on review.  30 U.S.C. 
823(d)(2)(C).[16]  Such evidence should be considered by the
judge in the first instance (see Union Oil Co. of Cal., 11 FMSHRC
289, 301 (Mar. 1989)), and Driessen has not established "good
cause" for failing to explore the issue of witness bias at the
hearing where he was represented by counsel.  30 U.S.C. 
823(d)(2)(A)(iii).  Indeed, Driessen asserts in his petition that
he knew before the hearing that neither Rusesky, nor
a second subpoenaed witness, Dan Steely, could testify truthfully
because of fear of losing their jobs.[17]  PDR at 3.

     Even if the Commission were to treat Driessen's petition and
supporting documents as a motion to reopen the proceedings before
the judge under Rule 60(b)(2) of the Federal Rules of Civil
Procedure,[18] he fails to meet the criteria of the rule.  Given
Driessen's statement that he was aware prior to the hearing of
the issue of the credibility of Rusesky and Steely, whom he
subpoenaed and who were still employed by Nevada Goldfields, he
fails to show that the evidence upon which he now relies was
newly discovered and could not have been discovered by due
diligence.  See Bruno v. Cyprus Plateau Mining Corp., 11 FMSHRC
150, 153 (Feb. 1989).  Thus, it is not apparent why Driessen
could not have pursued the issue of witness bias in discovery and
used it at trial.  Further evincing a lack of diligence, Driessen
waited over a month after Rusesky's purported statement to bring
it to the attention of the judge.  In these circumstances, we
deny consideration of Driessen's post-hearing evidence.


**FOOTNOTES**

     [1]:  Section 105(c) of the Act provides, in pertinent part:

      (1)  No person shall discharge or in any
      manner  discriminate  against  or  . . .
      otherwise interfere with the exercise of
      the statutory rights of any miner .  . .
      in  any  coal  or  other mine subject to
      this Act because such  miner  .  . . has
      filed  or  made  a  complaint  under  or
      related   to   this   Act,  including  a
      complaint notifying the  operator or the
      operator's  agent  . . . of  an  alleged
      danger or safety or  health violation in
      a coal or other mine,  .  . . or because
      of the exercise by such miner  .  . . of
      any  statutory  right  afforded  by this
      Act.

      (2)   Any miner . . . who believes  that
      he has been discharged, interfered with,
      or otherwise  discriminated  against  by
      any   person   in   violation   of  this
      subsection may, within 60 days after

      such  violation occurs, file a complaint
      with   the   Secretary   alleging   such
      discrimination. . . .

      (3)   .  .  .  If  the  Secretary,  upon
      investigation,   determines   that   the
      provisions  of  this subsection have not
      been  violated,  the  complainant  shall
      have the right, within 30 days of notice
      of  the  Secretary's  determination,  to
      file an action  in his own behalf before
      the Commission, charging  discrimination
      or   interference   in   violation    of
      paragraph (1).

     [2]: "Dore" is defined as "gold and silver bullion . . . ."
U.S.  Dep't  of Interior, Dictionary of Mining, Mineral, and
Related  Terms  164  (2d ed. 1997). "Ingot" is defined as "
[a]  mass of cast metal  as  it  comes  from  a  mold   or
crucible;  specif[ically], a bar of gold or  silver  for  
assaying,  coining,  or export."  Id. at 279.

     [3]:  The employee  handbook provides in pertinent part: 
"If  you have a problem or concern, you should  discuss 
it with your  supervisor  first."   Ex. H at  5. Mill 
superintendent Rusesky,  the  only person to whom Driessen
reported his initial  concerns  about the ball  mill, was 
not Driessen's supervisor.  Tr. 116. Botnan  acted as the 
mechanics'  direct supervisor.  Tr. 127, 130.  According to
company procedure, either Botnan or mine manager Swanson
should have been consulted before  the  decision was made
not to restart the ball mill.  19 FMSHRC at 161.

     [4]:  Botnan and Swanson were correct in their assessment.
19 FMSHRC at 163 n.7. The electrical problem was  repaired  by 
an electrician the next day and the ball mill  had  operated 
without incident up through the date of the hearing. Id.

     [5]: On February 6-7, the 966 loader was  the  only  piece
of machinery that could  unload  freight from  planes  and plow
snow off the  landing  field. Tr. 155-56.

     [6]: Driessen also asserts that he was denied notice of the
insubordination defense which  was  used  against him at
the hearing.  See PDR at 2, 3.  However, documents  in the record
undermine  this  claim.   See   Letter   from  Melvin  R.
Swanson  with  copy  to Driessen,  dated August  11, 1996, Ex. E 
(detailing  the  reasons for Driessen's discharge, including "his
failure  to perform assigned tasks,  and  to destroy [sic] a
previous shift's construction  effort"); Resp. Preliminary Statement
at 2, dated November 8, 1996 (stating that Driessen was discharged 
for "blatant insubordination"). In short, Driessen was on notice 
of the insubordination defense  well  before the  November  13,
1996 hearing date.

     [7]: Driessen was reproached for failing to inform his direct
supervisors before advising  Rusesky that restarting the mill might
be  dangerous. 19 FMSHRC at 160-61.  Contrary  to  the  dissent, slip 
op. at 14, Rusesky was verbally reprimanded as well for failing to 
inform  his supervisors of his  decision  not to restart  the mill.
Tr. 114, 119-20. Following the shutdown of the mill on January 24,
it was  not  run  again - aside  from  a  series of test-runs (Tr.
176-81) - until it  was  repaired during  the following weeks.
Tr. 117, 138.

     [8]: When reviewing an administrative law judge's factual
determinations, the Commission is bound by  the terms of the Mine Act
to apply the substantial evidence test. 30 U.S.C.  823(d)(2)(A)(ii)(I).
See Secretary of Labor on behalf  of  Price  and Vacha v. Jim Walter
Resources, Inc., 14  FMSHRC 1549, 1555 (Sept.  1992).   "Substantial
evidence" means "`such relevant evidence as  a  reasonable  mind might
accept  as adequate   to  support   [the   judge's]  conclusion.'" 
Rochester & Pittsburgh Coal  Co.,  11  FMSHRC 2159, 2163  (Nov.  1989)
(quoting Consolidated  Edison  Co. v.  NLRB, 305 U.S. 197, 229 (1938)). 
In  reviewing the whole record, an appellate tribunal  must  consider
anything in the  record that "fairly  detracts"  from the  weight  of
the evidence that supports  a challenged  finding.   Midwest  Material
Co.,  19  FMSHRC  30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp.
v. NLRB, 340 U.S. 474, 488 (1951)).

     [9]: The dissent's use of circumstantial evidence to establish
Nevada Goldfields' motive in terminating Driessen is misplaced. Slip
op. 13-17. Here, the judge found that there was direct  evidence of
the reason for Driessen's termination. 19 FMSHRC at 160, 164. Therefore,
use of circumstantial evidence to bypass the judge's fact findings on 
the pivotal issue of motivation is improper. See Secretary of Labor on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSRHC 2508, 2510 (Nov. 1981),
rev'd on other grounds 709 F.2d 86 (D.C. Cir. 1983).

     [10]: We also note that Driessen's termination was not inconsistent
with the company's employee  handbook.  Ex. H at 5 (a Nevada Goldfields 
employee must be "willing to take directions"), 6 (insubordination and 
failure  to perform a  satisfactory  quantity or quality  of work are 
considered acts of misconduct);  see  also  Chacon,  3   FMSHRC  at  2513
(noting  that  complainant's  discipline was consistent with  company 
practice). While the handbook provides for a progressive discipline  
procedure, it also unambiguously  states:  "Any or all of the first three
[disciplinary] steps may  be  omitted,  depending on the seriousness of
the violation."  Ex. H at 6. Driessen's conduct on February 6-7 exhibited
a clear disregard for the orders given by his supervisors. See 19 FMSHRC
at 164 (discussing Driessen's failure to complete his assigned tasks).
Furthermore, his failure to change the loader tire resulted in the delay
of incoming cargo from the aircraft which arrived at the isolated mine
on February 7. See Tr. 186; see also Tr. 129, 156 (discussing loader's 
importance to mine's operation).

     [11]: Driessen argues that the judge's conclusion that he cut the
ball mill seal  or  flange  is  not  supported  by substantial evidence.
See PDR at 2. However, the judge did not  specifically find that Driessen
cut the seal, and he based his dismissal of the complaint  on Driessen's
failure to complete the three tasks  given him. See 19 FMSHRC at 164.
The judge relied, however, on Driessen's equivocal  testimony  regarding
the cut flange (Tr. 60-67) to evidence his overall lack of candor.
19 FMSHRC at 162-63.

     [12]: The Commission does not lightly overturn an administrative
law judge's credibility  determinations,  which  are entitled to great
weight. In re: Contests of Respirable Dust Sample Alteration Citations,
17 FMSHRC 1819, 1878 (Nov. 1995); Farmer v. Island Creek Coal  Co., 14
FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh  Coal  Co., 3 FMSHRC 2767,
2770 (Dec. 1981). Generally, the Commission  will  uphold  a  judge's
credibility determination unless compelling  evidence supporting reversal
is offered. See, e.g., S&H  Mining, Inc.,  15 FMSHRC 956, 960 (June 1993)
(upholding judge's credibility determination because no compelling evidence
supporting reversal was offered); Bjes v. Consolidation  Coal Co., 6 
FMSHRC 1411, 1418 (June 1984) (refusing to take the "exceptional step"
of overturning judge's findings based on credibility   resolutions); 
see also Metric Constructors, Inc., 6 FMSHRC 226, 232 (Feb. 1984), aff'd
766 F.2d 469 (11th Cir. 1985) (stating that when the judge's finding 
rests upon a credibility determination, the Commission will not
substitute its judgment  for that of the judge absent clear indication
of error).

     [13]: Driessen acknowledged that working on the loader tire was on
his work list (Tr. 32) and that changing the tire was a "priority."
Tr. 71.

     [14]: Our dissenting colleagues correctly state  that  Botnan 
testified that  "at  least some attempt to try  to [perform assignments]
is good enough for me."  Slip op.  at 17 (alteration added) (quoting  Tr.
151). They fail to acknowledge, however, that Botnan further stated that
Driessen made "no attempt to try" completing any of his assigned tasks.
Tr. 151 (emphasis added).  Given that there were no  plans to run the
ball mill until further tests were run, the mill posed no danger to
Driessen or other workers that would  have justified  Driessen's 
disregarding his work assignments in order to compose his two page 
sketch and notes.

     The dissent evaluates Driessen's termination as one involving
disparate treatment. Slip op. at 12. However, it is incumbent on the
complainant to introduce  evidence showing that another employee guilty
of the same or more serious offense escaped the disciplinary fate 
suffered  by the complainant. See Schulte v. Lizza  Indus., Inc., 
6 FMSHRC 8, 16 (Jan. 1984); Chacon, 3 FMSHRC at 2512.  Here, Driessen 
introduced  no evidence of disparate treatment, despite the dissent's
attempts to glean such evidence from the record. Finally, in addressing
Nevada Goldfields' grounds for terminating Driessen as an affirmative
defense, our dissenting colleagues invade the fact-finding province
of the judge, slip op. at 16-17, and make credibility determinations, 
slip op. at 18, exceeding the Commission's role under the Mine Act.
See 30 U.S.C.  823 (d)(2)(C).

     [15]: The judge declined to consider the December 17 letter which
Driessen faxed  to his office over a month after the hearing because the
record was closed and the parties had elected not to file briefs. 19 FMSHRC
at 158 n.3. The judge did not abuse his discretion in refusing to consider
the letter. See Kerr-McGee Coal Corp., 15 FMSHRC 352, 357 (Mar. 1993). In
his PDR, Driessen indicated that he had attached a copy of the letter to
his petition; however none was attached. The letter submitted to the judge 
was retained in the record.

     [16]: 30 U.S.C.  823(d)(2)(C) states in pertinent part:

          For the purpose of review by the Commission .  .  .  the
     record shall include: (i) all matters constituting the record
	 upon which  the  decision  of the  administrative law judge was
	 based; (ii) the rulings upon proposed findings and conclusions;
	 (iii) the decision of the administrative law judge; (iv) the
     petition  or petitions for discretionary review, responses 
	 thereto, and the Commission's order for review; and (v) briefs
	 filed  on review. No other material  shall  be  considered by
	 the Commission upon review.

     [17]: It is, of course, a violation to discriminate  against 
any miner who has testified in a Mine Act  proceeding.  30 U.S.C.
 815(c)(1). However, the  Commission cannot  infer  bias  on every
occasion  a testifying witness is still employed  by  an  operator
which is a respondent in a Mine Act proceeding.

     [18]: Rule 60(b) states, in pertinent part:  "On motion and upon
such terms as are just, the court may  relieve a party . . . from a
final judgment, order, or proceeding for the following reasons: 
. . . (2) newly discovered evidence which by due  diligence  could 
not have been discovered  in  time  to move for a  new trial under
Rule 59(b)."


                              III.

                           Conclusion

     For the foregoing reasons, we affirm the judge's dismissal
of Driessen's section 105(c) complaint.


                              Mary Lu Jordan, Chairman
                                                            
							  James C. Riley, Commissioner
                              
                              Theodore F. Verheggen, Commissioner


     Commissioners Marks and Beatty, dissenting:

     We respectfully dissent from our colleagues' decision to
affirm the judge's dismissal of the complaint filed by miner
Kenneth Driessen based upon the judge's determination that
the discharge of Driessen by Nevada Goldfields, Inc.
("Nevada Goldfields") was in no part motivated by Driessen's
conduct in raising safety complaints relating to the No. 1
ball mill at Nevada Goldfield's Nixon Fork Mine.  See slip
op. at 6.  We believe that the judge erred in failing to
consider record evidence that, in our view, was clearly
sufficient to establish a prima facie case that Driessen was
discharged at least in part because of his protected
conduct.  Moreover, we believe that the record compels a
conclusion that Driessen was discharged by Nevada Goldfields
because of his protected activity, because Nevada Goldfields
failed to either rebut the prima facie case or establish as
an affirmative defense that it was also motivated by
Driessen's unprotected activity and would have discharged
him for the unprotected activity alone.  Accordingly, we
would reverse the judge's order dismissing Driessen's
complaint, and conclude that Driessen was discharged for his
protected conduct in violation of section 105(c) of the Mine
Act.[19]

     A miner alleging discrimination under the Mine Act
establishes a prima facie case of prohibited discrimination
by presenting evidence sufficient to support a conclusion
that the individual engaged in protected activity and that
the adverse action complained of was motivated in any part
by that activity.  Secretary of Labor on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980),
rev'd on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor
on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC
803, 817-18 (Apr. 1981).  The operator may rebut the prima
facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated
by protected activity.  Robinette, 3 FMSHRC at 818 n.20.  If
the operator cannot rebut the prima facie case in this
manner, it nevertheless may defend affirmatively by proving
that it also was motivated by the miner's unprotected
activity and would have taken the adverse action for the
unprotected activity alone.  Id. at 817-18; Pasula, 2 FMSHRC
at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC,
813 F.2d 639, 642 (4th Cir. 1987).

     Applying these principles, our colleagues in the majority
conclude that substantial evidence supports the judge's
conclusion that "Nevada Goldfields' discharge of Driessen
was in no part motivated by his protected activity."  Slip.
op. at 6 (emphasis added).  We cannot concur in this
assessment.  In our view, the judge misapplied the Pasula-
Robinette test by failing to initially consider whether a
prima facie case was established that Driessen's discharge
was motivated in any part by the protected activity that he
undisputably engaged in.  Instead of first analyzing this
issue independently, as Pasula-Robinette requires, the judge
jumped ahead to the second step of the analysis, and
determined that he believed Nevada Goldfield's explanation
that Driessen was discharged solely on the basis of his
failure to perform three work assignments on the evening of
February 6-7, 1996.  19 FMSHRC 157, 160, 164 (Jan. 1997)
(ALJ).  As a result of his improper combination of the first
and second steps of the Pasula-Robinette test, the judge
failed to consider compelling record evidence indicating
that the discharge of Driessen was motivated at least in
part by his protected conduct.  We believe that the
Commission majority commits the same error as the judge by
ignoring this strong evidence that the discharge of Driessen
was unlawfully motivated at least in part, and focusing
instead on Nevada Goldfield's rebuttal explanation, based
upon Driessen's alleged insubordination, in upholding the
judge's conclusion that Driessen failed to make out a prima
facie case under Pasula-Robinette.  See slip op. at 6-8.

     In our view, the majority also fails to consider Commission
precedent which provides us with an analytical framework for
determining whether a prima facie case of unlawful
motivation has been established in cases involving alleged
discriminatory conduct under section 105(c) of the Act.  In
a prior ruling, the Commission recognized the problems
associated with establishing a motivational nexus between
the complainant's protected activity and adverse action
taken by the operator.  Secretary of Labor on behalf of
Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (Nov. 1981),
rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983).
"Direct evidence of motivation is rarely encountered; more
typically, the only available evidence is indirect. . . .
`Intent is subjective and in many cases the discrimination
can be proven only by the use of circumstantial evidence.'"
Id. at 2510 (quoting NLRB v. Melrose Processing Co., 351
F.2d 693, 698 (8th Cir. 1965)).  In Chacon, the Commission
held that discriminatory intent can be established by
circumstantial evidence of:  (1) knowledge of the protected
activity; (2) hostility or animus towards the protected
activity; (3) coincidence in time between the protected
activity and the adverse action; and (4) disparate treatment
of the complainant.  Id.  A review of the record evidence in
this case shows support for each of the elements set forth
in Chacon.

     With respect to the first factor, the record indicates that
on January 25, 1996, Driessen initially raised concerns
about the condition of the ball mill.  19 FMSHRC at 160.
Additionally, on the morning of his discharge, February 7,
1996, Driessen presented Nevada Goldfields management with a
report outlining his continuing concerns about the safety of
the ball mill.  Id. at 159.  Two safety complaints
communicated directly to management within a two week period
is more than sufficient to establish the operator's
knowledge of the employee's protected activity.
The record also indicates that Nevada Goldfields had
previously demonstrated hostility to the protected conduct
of Driessen in raising concerns about the safety of
operating the ball mill.  On the morning of January 25,
after Driessen had initially raised concerns the night
before about the condition of the ball mill, and the danger
of restarting it, he was reproached by maintenance
supervisor Botnan and mine manager Swanson.  Id. at 160.
The record shows that Driessen was rebuked for failing to
follow procedures set forth in Nevada Goldfields' employee
handbook by reporting the problem to mill superintendent
Mike Rusesky rather than Botnan, his immediate supervisor.
Id. at 160-61.[20]  Botnan criticized Driessen for making
"million dollar decisions," such as shutting down the ball
mill, without going through "the standard procedures" by
informing Botnan or Swanson.  Tr. 140.  The record
indicates, however, that it was mill superintendent Rusesky,
not Driessen, who made the decision in the early morning
hours of January 25 not to restart the ball mill, without
consulting Botnan or Swanson, who were both asleep at the
time.[21]  19 FMSHRC at 160.  Therefore, if anyone was to
blame for deciding not to restart the ball mill without
consulting with other management officials, it was Rusesky,
and not Driessen.  There is no evidence, however, indicating
that Rusesky was disciplined for failing to follow company
policies.[22]  This hostility demonstrated by Nevada
Goldfields officials to Driessen for raising a safety
concern about the possible danger of restarting the ball
mill, even though it was Rusesky who ultimately made the
decision not to restart the mill, strongly suggests that the
operator harbored a strong animus in connection with
Driessen's protected conduct in initially questioning the
safety of operating the ball mill.  This hostility was
further reflected in Botnan's remark to Driessen, at the
time of his February 7 discharge, that, "I've had enough of
your disasters."  Tr. 104.

     Apart from the aforementioned, it is evidence supporting the
third factor of the Chacon analysis that, standing alone,
warrants a remand of this case.  The record establishes that
Driessen was discharged on the morning of February 7, 1996,
moments after he presented Nevada Goldfields' vice-president
Joe Kercher with a report he had prepared that reflected his
continuing concerns about the safety of the mill.  Tr. 27.
Kercher immediately consulted with maintenance supervisor
Ted Botnan and mine manager Mel Swanson, who made a
collective decision to fire Driessen.  19 FMSHRC at 164.
The stated reason for the discharge was Driessen's
insubordination in failing to perform three tasks assigned
to him the night before and working on another matter on
which he had not been told to work.[23]  Botnan then told
Driessen:  "Pack your stuff.  You're out of here."  Tr. 104-
05.  Driessen was not afforded an opportunity to discuss his
safety concerns, nor was he considered by the Nevada
Goldfields officials to be a candidate for any progressive
discipline mandated by the same employee handbook that he
allegedly violated a week earlier.

     In determining whether the timing between the reporting of
safety concerns and a discharge implies a discriminatory
intent, we again find guidance in Chacon.  In that case, the
Commission held that complaints ranging from four days to
one and one-half months before the discharge were
sufficiently coincidental in time to indicate an illegal
motive.  3 FMSHRC at 2511.  In Donovan on behalf of Anderson
v. Stafford Constr. Co., 732 F.2d 954 (D.C. Cir. 1984), the
D.C. Circuit Court of Appeals, noting that two weeks had
elapsed between the alleged protected activity and the
miner's dismissal, held that "[t]he fact that the Company's
adverse action against [the miner] so closely followed the
protected activity is itself evidence of an illicit motive."
Id. at 960; see also Hicks v. Cobra Mining, Inc., 13 FMSHRC
523, 530-31 (Apr. 1991), and cases cited.  A discharge which
occurs moments after reporting a safety complaint would
certainly fall into the time frames established in Chacon.

     The final inquiry in evaluating the possibility of
discriminatory intent in the context of a section 105(c) case
is disparate treatment of the complainant.  Disparate
treatment of Driessen is evident in this case because, as
noted, his discharge was also inconsistent with the
progressive disciplinary policy provided for in the employee
handbook distributed by Nevada Goldfields, which provides:

     DISCIPLINARY ACTIONS

     Disciplinary actions are obviously a last
     resort that we hope to avoid through sound
     work habits, a good working knowledge of
     rules, regulations and good communications at
     all levels.  Every reasonable effort will be
     made to use progressive discipline in dealing
     with violations, administered as fairly as
     possible.  Steps of progressive discipline at
     [Nevada Goldfields] include:

          (a)  verbal warning or correction

          (b)  written reprimand with a copy placed in the
		  offender's personnel file

          (c)  written reprimand and suspension with pay; and

          (d)  dismissal.

Ex. H at 6 (emphasis added).

     In this case, there is no evidence that Driessen had
ever previously received any form of discipline (verbal
warning, written reprimand, or suspension) during
his period of employment with Nevada Goldfields.
This is particularly noteworthy in view of
testimony from Botnan that several incidents
occurred involving Driessen, prior to the incidents
which lead to his discharge, where he had refused
to work on jobs as requested.  Tr. 130-34.  In
those instances, there was no evidence that
Driessen received any type of discipline from
Nevada Goldfields.  This selective application of
discipline for alleged insubordinate conduct is
indicative of discriminatory intent. Moreover,
until the time that he first reported safety
concerns about the ball mill in January 1996,
Driessen was regarded by Nevada Goldfields
management as a capable and valued employee.[24]
This sudden and marked change in the attitude of
management regarding Driessen's capabilities as an
employee, and the operator's failure to adhere to
its own progressive disciplinary policy in
discharging him, provide additional evidence that
Driessen was discharged in retaliation for his
protected conduct.[25]

     Despite this demonstrated failure to adhere to the
progressive disciplinary system set forth in Nevada
Goldfields' employee handbook, our colleagues in
the majority inexplicably conclude that "Driessen's
termination was not inconsistent with the company's
employee handbook,"  relying on provisions dealing
with the willingness of employees to take
directions and listed examples of employee
misconduct, and finding that the handbook
explicitly gives the company discretion to dismiss
an employee for serious violations without first
instituting progressive disciplinary measures.
Slip op. at 7 n.10.  This latter reference is
presumably to language in the "Disciplinary
Actions" section that provides:  "Any or all of the
first three [progressive disciplinary] steps may be
omitted, depending upon the seriousness of the
violation."  Ex. H at 6 (emphasis added).  The mere
existence of this provision, however, begs the
question of whether Driessen's purported failure to
complete the three tasks assigned to him on the
night of February 6-7 was a serious enough
infraction to warrant immediate discharge, in
contravention of the progressive disciplinary
system that Nevada Goldfields has committed to make
"[e]very reasonable effort" to follow.[26]  Id.
The available evidence strongly suggests that this
was not the case.  For instance, referring to the
three tasks purportedly assigned to Driessen on the
night shift of February 6-7, maintenance supervisor
Botnan testified that he "never minded if a guy
didn't do any of [the assigned tasks,] but at least
some attempt to try to do them is good enough for
me."  Tr. 151.  This testimony hardly suggests an
attitude on the part of  Nevada Goldfields
management that the failure to perform assigned
work tasks was considered a serious form of
employee misconduct that warranted immediate
discharge.  This is particularly true given
Botnan's earlier testimony that Driessen had failed
to perform work on other occasions, none of which
he was disciplined for according to the record.

     In our view, the coincidence in timing between Driessen's
protected activities and his subsequent discharge,
which was not addressed by the judge, is alone
sufficient to establish a prima facie case that his
discharge was motivated at least in part by his
protected conduct.  It is also evident from the
record, however, that this case supplies evidence
sufficient to meet all elements of the Chacon test
for determining discriminatory animus in section
105(c) cases.  We therefore conclude that the judge
erred in failing to consider the foregoing evidence
and in concluding that Driessen failed to establish
a prima facie case that his discharge was motivated
at least in part by his protected conduct.

     Since, in our view, there was ample evidence to establish a
prima facie case that the discharge of Driessen was
motivated at least in part by his protected
conduct, [27] the burden shifted to Nevada
Goldfields to either rebut this prima facie case by
showing that the discharge was in no part motivated
by his protected activity, or to establish as an
affirmative defense that it was motivated by
unprotected activity on the part of Driessen and
would have discharged him for that unprotected
activity alone.  Robinette, 3 FMSHRC at 817-18;
Pasula, 2 FMSHRC at 2799-800; see also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d at 642.  In
order to prevail on an affirmative defense based
upon the purported insubordination of Driessen in
failing to perform the three tasks that it claims
were assigned to him on the night shift of February
6-7, Nevada Goldfields was required to demonstrate
that it would have discharged Driessen for this
conduct alone, irrespective of his protected
conduct.  To meet this burden, Nevada Goldfields
was required to show that it considered an
employee's failure to perform assigned tasks to be
a particularly serious form of insubordination that
warranted immediate discharge.  We believe that the
self-serving testimony of maintenance supervisor
Botnan (Tr. 130) and mine manager Swanson (Tr. 186)
that Driessen was discharged solely because of his
failure to perform the three tasks allegedly
assigned to him, and that Driessen's safety
complaints did not influence that decision, was
hardly sufficient in itself to overcome the
persuasive amount of evidence in this case
supporting a prima facie case of discriminatory
intent on the part of Nevada Goldfields, or support
its position that Driessen would have been
discharged solely for his unprotected conduct.
Moreover, this testimony is directly inconsistent
with other testimony of Botnan indicating that
Nevada Goldfields did not have a steadfast policy
of requiring that all tasks assigned during a
particular shift were entirely completed, and thus
did not regard the failure to complete work
assignments as a particularly egregious form of
misconduct warranting immediate discharge.[28]

     For the foregoing reasons, we would reverse the judge's order
dismissing Driessen's complaint, conclude that Driessen has
established a prima facie case that his discharge was
motivated at least in part by his protected conduct, and
further conclude that the record compels a conclusion that
Driessen was discharged for his protected conduct in
violation of section 105(c) of the Mine Act in light of the
failure of Nevada Goldfields to either rebut the prima facie
case or establish as an affirmative defense that it was also
motivated by Driessen's unprotected activity and would have
discharged him for the unprotected activity alone.


                              Marc Lincoln Marks, Commissioner
                              
                              Robert H. Beatty, Jr., Commissioner
                              

Distribution


Kenneth Driessen
Rt. 1, Box 374
Baraga, MI 49908

Parry Grover, Esq.
Davis, Wright, Tremaine, LLP
550 W. 7th Avenue, Suite 1450
Anchorage, AK 99501

Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041


**FOOTNOTES**

     [19]: Section  105(c)(1) prohibits an operator from
discharging or  discriminating  against  a  miner  because he "has
filed or made a complaint under or related to this Act,  including
a complaint notifying the operator or the operator's agent  .  . .
of  an  alleged  danger or safety or health violation in a coal or
other mine . . . ."  30 U.S.C.  815(c).

     [20]: The employee handbook provides, in pertinent part:
"If you have a problem or concern, you should discuss it with your
supervisor first."  Ex. H at 5.  Maintenance supervisor Botnan was
the  direct supervisor of the mechanics, including Driessen.   Tr.
127, 130.   Botnan testified that, according to company procedure,
either he or  mine  manager  Swanson  should  have  been consulted
before  the  decision was made not to restart the ball  mill.   19
FMSHRC at 161;  Tr. 140, 152.  The record also indicates, however,
that  when Driessen  initially  notified  Rusesky  of  his  safety
concerns  relating to the ball mill, in the early morning hours of
January 25,  Botnan  and  Swanson  were  both  in  the mining camp
asleep.  Tr. 112-14, 119, 171.

     [21]: Rusesky testified that it was 3:30 a.m. on the morning
of  January 25 when he was notified of the problem with  the  ball
mill,  and  that he decided to wait until 6:30 a.m., when Swanson,
his boss, would be on the scene to make any further decision about
restarting the mill.  Tr. 114.

     [22]: Although Rusesky agreed that Mine Manager Swanson "got
mad" at Rusesky  for  not  informing Swanson immediately about the
shut down of the ball mill on the night of January 24-25 (Tr. 114,
119-20), contrary to the majority's  assertion  (slip.  op.  at  6
n.7),  there  is  no  evidence  that  Rusesky  received  a  verbal
reprimand or any other formal discipline as a result.

     [23]: The  latter  matter  involved  the flange on the ball
mill,  which  Driessen  had been specifically instructed  by  mine
manager Swanson not to cut.   19 FMSHRC at 164.  As our colleagues
acknowledge,  however,  the  judge  did  not  find  that  Driessen
disobeyed these instructions and  cut  the  flange on the night of
February 6-7.  Slip op. at 7 n.9.

     [24]: Personnel  records  for  Driessen  indicate  that  on
December 8, 1995, less than two months after he began  working for
Nevada  Goldfields,  Driessen received a $1.00 an hour pay  raise,
from $16.00 to $17.00 an hour.  Ex. 2 at 11.  Mine manager Swanson
testified that a portion of this pay raise (50 cents per hour) was
intended to correct an  administrative  error  in  the hourly wage
originally paid to Driessen, but that the remainder  was  a  merit
raise  tied  to  the  fact that Driessen made the second rotation,
which Swanson described  as  "an  accomplishment."   Tr. 166.  The
comment section on the form, which was signed by both  Botnan  and
Swanson, states:  "Do not want him to leave - excellent all around
mech[anic.]"   Ex.  2  at  11.   Dan  Steely, a float operator for
Nevada Goldfields, testified that Driessen  "did  a  good  job for
us."   Tr.  122.  Indeed, even Nevada Goldfield's counsel conceded
at the hearing that Driessen was "a competent mechanic. . . .  And
in a place like  Nixon Fork Mine or any remote location in Alaska,
you don't expect perfection."  Tr. 204.

     [25]: While the majority claims that "Driessen introduced no
evidence of disparate  treatment"  (slip  op.  at  8 n.14), Nevada
Goldfields'  failure  to  adhere  to  its established disciplinary
policy in discharging Driessen is apparent  from  even  a  cursory
examination  of  the above-quoted section of the employee handbook
introduced into evidence  by  the operator.  Although Driessen was
represented by counsel at the hearing  in  this  case, his counsel
inexplicably  failed to argue or even note that Nevada  Goldfields
failed to adhere  to  the progressive disciplinary system provided
for in the employee handbook  in  discharging  Driessen.  As noted
above, however, this employee handbook is included  in  the record
in this case and Nevada Goldfields has relied upon other
provisions  of  that  handbook  to support its claim that Driessen
failed to follow company policy in  raising  his  initial concerns
about the safety of the ball mill.

     [26]: The majority concludes that Driessen's  conduct on the
night of February 6-7 "exhibited a clear disregard for  the orders
given by his supervisors," and thus amounted to a transgression of
sufficient   seriousness   to   warrant  an  exception  to  Nevada
Goldfields' progressive disciplinary  policy.  Slip op. at 7 n.10.
This   determination,   however,  violates  the   majority's   own
admonition against "invad[ing]  the  fact-finding  province of the
judge"  (slip  op. at 9 n.14), since the judge never analyzed  the
question  of  Nevada   Goldfields'   failure   to  adhere  to  its
progressive  disciplinary  policy  in  discharging  Driessen,   or
whether it was warranted in doing so.

     [27]: Although we believe that the existing record compels a
conclusion  that  Driessen was discharged because of his protected
conduct, we also believe  that the majority erred in not reopening
the record to consider the  letter  submitted  by  Driessen to the
judge  following  the hearing, and the affidavit attached  to  his
petition for discretionary  review,  in  which  he  alleges  that,
following  the  hearing, mill superintendent Rusesky told Driessen
that Driessen was  fired  for raising safety complaints concerning
the ball mill and that Rusesky had been threatened by mine manager
Swanson with discharge if he  brought  this  up  at  the  hearing.
Driessen  Aff. dated Jan. 29, 1997.  We believe that this evidence
is entitled  to  consideration  under Rule 60(b)(2) of the Federal
Rules of Civil Procedure, which allows the consideration of "newly
discovered evidence which by due  diligence  could  not  have been
discovered  in  time  to  move  for a new trial under Rule 59(b)."
Fed. R. Civ. P. 60(b)(2).  Contrary  to  the  Commission  majority
(slip  op.  at  9),  we  find  that  the  statements attributed to
Rusesky,  which  were not even allegedly made  to  Driessen  until
after the hearing,  clearly  qualify  as newly discovered evidence
that could not with due diligence have  been discovered previously
within  the  meaning  of  Rule  60(b)(2).   We  believe  that  the
statements attributed to Rusesky in the Driessen affidavit involve
serious  allegations  of witness bias, and if true  would  provide
additional evidence that  the discharge of Driessen was unlawfully
motivated.  We also note that  in a rebuttal affidavit attached to
Nevada Goldfields' response brief,  Rusesky  did not directly deny
having made the statements attributed to him by Driessen, but only
stated  that he could not "recall verbatim what  was  said"  at  a
meeting with  Driessen  and Dan Steely, another Nevada Goldfields'
employee, following the hearing.   Rusesky  Aff.  dated  April 30,
1997, at 2.

     [28]: As noted above, maintenance supervisor Botnan
testified that he "never minded  if  a  guy  didn't do any of [the
assigned tasks,] but at least some attempt to  try  to  do them is
good enough for me."  Tr. 151.