<DOC>
[DOCID: f:se200039.wais]
 
U.S. STEEL MINING COMPANY, LLC
September 24, 2001
SE 2000-39-DM
        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                   1730 K STREET NW, 6TH FLOOR
                     WASHINGTON, D.C.  20006
                       September 24, 2001
SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
  on behalf of TERRY MCGILL      :
                                 :
                       v.        : Docket No. SE 2000-39-DM
                                 :
U.S. STEEL MINING COMPANY, LLC   :
BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty,
        Commissioners
                             DECISION
BY THE COMMISSION:
     In this discrimination proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C.  801 et seq.
(1994) ("Mine Act" or "Act"), the Commission granted the
Secretary of Labor's petition to review Administrative Law Judge
Avram Weisberger's dismissal of a complaint charging U.S. Steel
Mining Company, LLC ("U.S. Steel") with having discharged miner
Terry McGill in violation of section 105(c) of the Mine Act, 30
U.S.C.  815(c).  22 FMSHRC 1327 (ALJ) (Nov. 2000).  For the
reasons that follow, we vacate and remand the judge's decision.
                                I.
                Factual and Procedural Background
     McGill worked as a miner for U.S. Steel for approximately 
27 years, mostly as a roofbolter. 22 FMSHRC at 1328; Tr. 20. In
1999, he worked at its Oak Grove Mine, an underground mine in
Alabama.  22 FMSHRC at 1328; Tr. 20.  At the mine, McGill was a
member of the United Mine Workers of America local committee
("mine committee"), which handles labor contract issues.  22
FMSHRC at 1328; Tr. 20-22.  McGill injured his knee at the mine
in the spring of 1999, and was off work for 13 weeks.  22 FMSHRC
at 1328.
     McGill returned to work around June 21, 1999, and learned
that Carl Harless had become his section foreman.  22 FMSHRC at
1328; Tr. 44.  Thereafter, Harless told McGill and his partner on
the roofbolter, Jerry Norris, also a mine committeeman, that,
because he was outnumbered by mine committeemen on the section,
he "probably needed to start wearing a tape recorder."  22 FMSHRC
at 1328, 1330; Tr. 44-45,139-40.  Both McGill and Jerry Norris
testified that they believed Harless was serious about the tape
recorder.  Tr. 45, 139.  McGill stated that he felt that Harless
"kept trying to goad me into something or get me to say something
or get me to act."  Tr. 45.
     In July 1999, Harless' crew was working in the 6 East Main
section of the mine.  Resp't Ex. A, B.  On July 11 or 12, McGill
and Norris bolted the roof of the No. 2 entry as far as they
could, but not all the way to the face, as rocks on the floor
prevented the roofbolter from advancing further inby along the
right side of the entry.  22 FMSHRC at 1328 n.2, 1330-31; Tr.
178-83.  When McGill asked Harless why the continuous miner had
not "squared up" its cut before departing the entry, which would
have allowed the roof of the entry to be bolted up to the face,
Harless said that it was "his f___ing section, he'd run it like
he wanted to."  22 FMSHRC at 1328 n.2; Tr. 216, 218-19.
     According to McGill, on July 13, 1999, he passed the No. 2
entry and saw that it had still not been bolted as far as he
thought it should, the last row of bolts being approximately 7 to
8 feet from the face along the right side of the entry, while on
the left side the last row of bolts was approximately 10 to 12
feet from the face.  22 FMSHRC at 1328; Tr. 53, 56-57.  When
McGill learned from Luther Self, the continuous miner operator on
the crew, that Self planned to crosscut all the way through from
the No. 3 entry to the No. 2 entry, McGill told Self that would
result in cutting into an area that was not completely bolted.
22 FMSHRC at 1328.  Self responded that Harless had told him to
crosscut through to the No. 2 entry.  Id.
     Shortly thereafter McGill and Jerry Norris saw Harless while
they were on their way to the section dinner hole for lunch;
McGill asked Harless if he intended to cut through to the No. 2
entry, and was told that he did.  Id.; Tr. 54.  When McGill told
Harless that "you know you will be cutting into a place that is
not completely pinned," Harless responded "that it was his
f___ing section and he would run it like he wanted to and for us
to get our . . . butts out there and eat."  22 FMSHRC at 1328;
Tr. 55-56.  Jerry Norris told Harless that the cut would be
illegal under federal law, and essentially confirmed McGill's
account of the conversation.  22 FMSHRC at 1330; Tr. 141, 186-87.
     While at the dinner hole, McGill asked MSHA Inspector Bud
Norris, who was present that day conducting an inspection,
whether the law would be violated if a cut was taken "and it
[was] not bolted up all the way."  22 FMSHRC at 1328.  According
to McGill, Inspector Norris stated that it would be a violation,
and then asked if such a cut had already been taken, to which
McGill replied it had not.  Id. at 1328-29.  After seeing McGill
speaking to Inspector Norris, Harless entered the dinner hole and
asked Norris what he was inspecting that day.  Id. at 1329.
According to both McGill and Harless, Norris replied he was
inspecting a belt, upon which Harless then left McGill to
continue talking to the inspector.  Id.; Tr. 61, 376.
     After lunch, McGill started to return to the No. 3 crosscut
with Jerry Norris to bolt the roof, but Harless instructed the
two instead to build run-through curtain drops for ventilation.
Tr. 63-64, 142-43.  McGill was directed to retrieve the
approximately 10 to 12 curtains that had been left in the tail
track area, which was eight to ten crosscuts away.[1]  22 FMSHRC
at 1329; Tr. 64-65.  McGill testified that while the curtains
only weighed 3 pounds each, they were bulky, and the walkway from
the tail track to the section sloped downhill and was covered
with mud that was more than ankle-deep.  22 FMSHRC at 1329.
McGill stated that the scoop normally used to bring materials
such distances was right beside him, but when he reminded Harless
of the condition of his knees and asked if he could use a scoop
to transport them, Harless responded: "Look, I told you to walk
out there and get it. Are you violating a direct work order?"
Id.; Tr. 64-68.  McGill then told Harless that it would take him
some time to get the curtains.  22 FMSHRC at 1329.  According to
Jerry Norris, when he subsequently asked Harless where the
material to build the curtain drops was coming from, Harless
responded that "McGill would bring me the curtain if he wasn't
too f___ing crippled."  Tr. 143.
     McGill took one curtain to the section, returned to the
tail, and put another curtain on his shoulder, intending to take
it to the section.  22 FMSHRC at 1329.  At that point Harless
again met up with him and, admittedly upset that McGill was only
carrying one curtain at a time, told him to put the curtain down,
saying that he would carry the rest of the curtains, and assigned
him another task.  Id. at 1329, 1332.  McGill responded that if
Harless carried the curtains, then he (McGill) would file a
grievance, as Harless would be performing "classified" work in
violation of the union contract.  Id. at 1329; Tr. 71-73, 409-10.
     At this point the testimony of McGill and Harless sharply
diverge.  According to McGill, Harless, as soon as McGill
threatened to file a grievance, told him to put down the curtain
and said "you little son of a bitch, I'm going to show you
something about what's right and what's wrong."  22 FMSHRC at
1329; Tr. 73.  In response to what he described as Harless'
"cussing," McGill told him that he would leave to go and return
with Hank Keaton, a section repairman and the mine committee
chairman, to be a witness.  22 FMSHRC at 1329; Tr. 73-74, 77,
194-95, 205.
      Harless responded that McGill did not need Keaton to be a
witness because McGill "was a f___ing committeeman."  22 FMSHRC
at 1329; Tr. 74, 205-06.  McGill said that Harless then began to
run at him with a fist drawn, telling him that "`[y]ou're not
going nowhere," and ordering him to stop.  22 FMSHRC at 1329; Tr.
74, 77, 205.  McGill again told Harless that he was getting
Keaton and started to walk away, at which point Harless said that
McGill was insubordinate and "you're a fired son of a bitch," and
stated that his time was stopped at that point.  22 FMSHRC at
1329; Tr. 74-75, 206.  In response, McGill told him that he was
calling Mike Sumpter, a management official, and when informed by
Harless that Sumpter was on the section, McGill started to leave
to get him.  22 FMSHRC at 1329; Tr. 75-76.  Harless then again
called McGill insubordinate, again told him that he was fired,
and told him that he would get Sumpter.  22 FMSHRC at 1329; Tr.
76.  Harless left and returned with Sumpter, who asked what was
going on.  22 FMSHRC at 1329; Tr. 77.  McGill said that he did
nothing, and he went outside accompanied by Harless and Sumpter.
22 FMSHRC at 1329-30; Tr. 77-79.
     According to Harless, when McGill responded to Harless'
offer to help carry curtain material with the threat to file a
grievance, he began walking away, refusing to stop walking so
that Harless could give him instructions for the remainder of the
shift.  22 FMSHRC at 1332; Tr. 409-10.  Harless testified that
four times McGill responded by saying "f___ you," or a like
phrase, to Harless' order for him to stop and listen.  22 FMSHRC
at 1332; Tr. 411-12.  According to Harless, it was only then that
he fired McGill, at which point McGill requested the presence of
Keaton.  22 FMSHRC at 1332; Tr. 413-14.  Because McGill was a
committeeman himself, Harless responded by leaving and returning
with Sumpter.  22 FMSHRC at 1332; Tr. 414.
     Harless recommended that McGill be fired.  22 FMSHRC at
1332.  U.S. Steel suspended McGill with the intent to discharge
him for failing to comply with Harless' direction and using
profane and abusive language towards Harless in violation of Mine
and Shop Conduct Rule No. 4.  Gov't Ex. 4 at 5-6, Gov't Ex. 8.
At the conclusion of the meeting held July 14, 1999, regarding
Harless' recommendation, McGill was informed that the company
intended to discharge him.  22 FMSHRC at 1331; Gov't Ex. 4 at 6.
U.S. Steel then discharged McGill effective July 18, 1999. Gov't
Ex. 4 at 6.  By decision issued August 19, 1999, however, an
arbitrator ruled that the company had failed to carry its burden
of showing that McGill had engaged in the conduct that Harless
alleged.  Id. at 11-13.  The arbitrator ordered U.S. Steel to
reinstate McGill with full backpay.  Id. at 15.
     Thereafter, the Secretary filed a discrimination complaint
on McGill's behalf pursuant to Mine Act section 105(c).
Subsequently, McGill retired on January 3, 2000.  Tr. 19.  The
Secretary seeks reimbursement of McGill's case-related mileage
expenses, and a civil penalty of $5,000.  S. Post-Trial Br. at
24; Tr. 85-87.
     Following a hearing, the judge determined that McGill
engaged in protected activity when he communicated to both
Harless and Inspector Norris his concern that, because the right
side of the No. 2 entry had not been bolted to within 5 feet of
the face, completing the crosscut between the No. 3 and No. 2
entries and continuing into the No. 2 entry would be unsafe and
in violation of MSHA regulations.  22 FMSHRC at 1333.  In
addition, based on the coincidence in time between those
communications and Harless' statement that McGill was fired, as
well as the animus Harless displayed in responding to McGill's
concern about the crosscut, the judge concluded that the
Secretary had established that the adverse action taken against
McGill was at least in part motivated by McGill's protected
activities.  Id. at 1333-34.
     Under the heading "U.S. Steel's Defense," the judge found it
significant that Harless exhibited animus and took adverse action
against McGill, but not against any of the three other members of
the crew.  Id. at 1335.  The judge found it even more significant
that Harless stopped McGill's time immediately upon McGill's
threat to file a grievance if Harless were to carry curtain
material, and that Harless' cursing of McGill and firing him
immediately followed McGill's statement that he was going to get
mine committee chairman Keaton.  Id.  The judge also took into
account the testimony of Norris and McGill concerning Harless'
prior statements to them expressing displeasure with having union
members on his section, and the unrebutted testimony of Harless
(which the judge found credible on this point) that McGill
refused to stop walking away when ordered to do so by Harless.
Id.  The judge concluded that Harless would have taken the
adverse action against McGill for these actions.  Id.  The judge,
after noting that the activities for which McGill was actually
discharged may be protected by the National Labor Relations Act,
concluded that they are not protected under the Mine Act,
determined that U.S. Steel had thus "prevailed in its affirmative
defense," and dismissed the complaint.  Id. at 1335-36.
                               II.
                           Disposition
     The Secretary urges the Commission to vacate the judge's
decision because the affirmative defense which he found was
established was not the affirmative defense the operator
attempted to establish at trial, is not supported by the record,
and should not be allowed as a matter of public policy.  S. Br.
at 9-13.  The Secretary argues that the record compels the
conclusion that the operator did not establish the affirmative
defense on which it relied at trial (that McGill was discharged
for cursing and insubordination).  Id. at 14-21.  The Secretary
submits that, if the Commission does not find a violation of
section 105(c), it should remand the case to the judge with
instructions to correct errors the Secretary believes he made,
including failing to admit certain evidence, and to properly
reevaluate the record.  Id. at 21-34.
     U.S. Steel contends that the judge was mistaken in finding
that the Secretary established the elements of a prima facie case
of discrimination under the Mine Act.  USS Br. at 7-8, 11-12, 14-
15.  U.S. Steel also argues that the judge did not raise an
affirmative defense sua sponte, but rather relied on evidence
showing that McGill was insubordinate and disrespectful to
Harless, thus essentially finding that U.S. Steel had established
its affirmative defense.  Id. at 8-9, 12-15, 17-18.  U.S. Steel
also urges the Commission to uphold the judge's credibility and
evidentiary rulings.  Id. at 20-27.
     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.
See Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Sec'y 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); Sec'y of Labor on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).  The operator may
rebut the prima facie case by showing either that no protected
activity occurred or that the adverse action was in no part
motivated by protected activity.  See Robinette, 3 FMSHRC at 818
n.20.  If the operator cannot rebut the miner's prima facie case
by showing either that no protected activity occurred or that the
adverse action was in no part motivated by protected activity, it
nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action for the unprotected activity alone. See
id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also E. Assoc.
Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987)
(applying Pasula-Robinette test).
     A.   Prima Facie Case
     We are not persuaded by U.S. Steel's challenges to the
judge's finding that McGill engaged in protected activity.  It is
undisputed that McGill complained about roof conditions he
considered to be unsafe.  Whether the conditions were objectively
unsafe is not determinative of the protected status of the
complaints.  Section 105(c) defines protected activities as
including any "complaint notifying the operator or the operator's
agent . . . of an alleged danger or safety violation" at the
mine.  30 U.S.C.  815(c)(1) (emphasis added).  See Sec'y of
Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508,
2510 (Nov. 1981) ("section 105(c)(1) broadly protects" miners'
complaints to management about alleged dangers), rev'd on other
grounds, 709 F.2d 86 (D.C. Cir. 1983).
     We also reject U.S. Steel's contention that the coincidence
in time between the adverse action taken against McGill by
Harless and McGill's safety complaint is insufficient to support
an inference of discriminatory motive.  The Commission has held
that "the substantial evidence standard may be met by reasonable
inferences drawn from indirect evidence."[2]  Mid-Continent Res.,
Inc., 6 FMSHRC 1132, 1138 (May 1984).  The Commission has
emphasized that inferences drawn by the judge are "permissible
provided they are inherently reasonable and there is a logical
and rational connection between the evidentiary facts and the
ultimate fact inferred."  Id.  With regard to the coincidence in
time between protected activity and adverse action, in Donovan v.
Stafford Construction Co., 732 F.2d 954, 960 (D.C. Cir. 1984),
the court observed that adverse action taken against a miner two
weeks after his protected activity qualifies as "evidence of an
illicit motive."  Consequently, the judge was well within his
authority when he inferred discriminatory motive from adverse
action taken by Harless less than 2 hours after McGill's safety
complaints to him and the inspector.
     Also unconvincing is U.S. Steel's challenge to the judge's
finding that Harless exhibited animus towards McGill and his
concerns about the insufficiency of the roof bolting.  While
Harless testified that he gave a calm, measured response to
McGill's concern about unsupported roof (Tr. 343-44), both McGill
and Jerry Norris reported that Harless reacted in a profane and
dismissive fashion to McGill's advice not to make the crosscut.
Tr. 55-56, 141.  The judge credited McGill and Norris.  22 FMSHRC
at 1334.  A judge's credibility determinations are entitled to
great weight and may not be overturned lightly.  Farmer v. Island
Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh
Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981).  We see no reason here
to overturn the judge's credibility determination in favor of
McGill.  Accordingly, we conclude that substantial evidence
supports the judge's determination that the Secretary established
a prima facie case of discrimination.
     B.   Affirmative Defense
          1.   Affirmative Defense Found by Judge
     Under Pasula-Robinette, if an operator cannot rebut the
prima facie case, it may affirmatively defend by alleging that
unprotected activity also motivated the adverse action, and that
it would have taken the adverse action against the miner for that
activity alone.  See Robinette, 3 FMSHRC at 817-18.  The operator
bears the burden of proving the affirmative defense.  Sec'y of
Labor on behalf of Knotts v. Tanglewood Energy, Inc., 19 FMSHRC
833, 838 (May 1997); Meek v. Essroc Corp., 15 FMSHRC 606, 613
(Apr. 1993).
     Here, U.S. Steel sought to affirmatively defend its
discharge of McGill.  However, it is necessary to first determine
what the affirmative defense was in this case, as the judge found
one affirmative defense - that McGill was discharged for
threatening to file a grievance and other labor contract related
issues - while the operator attempted to establish at trial, and
continues to argue (USS Br. at 13-19), another affirmative
defense - that McGill was discharged for insubordination and
profanity.
     These alternative rationales first surfaced during the
hearing in this case.[3]  At the close of the Secretary's case,
counsel for U.S. Steel moved to dismiss on several grounds,
including that McGill's testimony established that his discharge
was due to his threat to file a grievance against Harless.  Tr.
173-74.  The judge denied the motion.  Tr. 174-77.  The grievance
threat was not subsequently cited by U.S. Steel's witnesses as a
reason for McGill's discharge, and no other evidence was
presented by the operator that U.S. Steel fired McGill for these
reasons.  Instead, the evidence introduced by U.S. Steel in
support of its affirmative defense was limited to the reasons
given at the time McGill was discharged - his alleged
insubordination and use of profanity towards Harless during their
July 13 confrontation - as well as his past work record.[4]
     Nevertheless, in his decision, the judge cited the grievance
threat, along with McGill's  failure to stop walking away and his
union status, as activity that would have resulted in McGill's
discharge regardless of his protected activities, and concluded
that an affirmative defense was therefore established.  22 FMSHRC
at 1335.  In his decision, the judge made no mention that the
affirmative defense differed from the one on which U.S. Steel
primarily relied.[5]
     We are thus faced with a situation in which the operator
sought to establish at trial one reason for the discharge as an
affirmative defense, but the judge found another reason for the
discharge, which was only mentioned in passing, as the basis for
an affirmative defense.  For the following reasons, we believe
the judge erred.
     In examining whether the operator has successfully
established its affirmative defense, the Commission has based its
review on the reasons given by the operator for taking the
adverse action in evaluating whether the adverse action would
still have occurred absent the protected activity.  See, e.g.,
Pasula, 2 FMSHRC at 2801; Robinette, 3 FMSHRC at 819-20.  For
example, in Pasula, the Commission upheld the judge's
determination that the operator had failed to show that the
reasons it gave for the miner's discharge - his alleged
insubordination, interference with mine management, role in
causing an unnecessary interruption in production, and past
disciplinary record - would have resulted in his discharge
regardless of the miner's protected activities.  2 FMSHRC at
2788, 2801.  Similarly, in Robinette, the Commission remanded to
the judge the factual determination of whether the adverse action
would have taken place regardless of the protected activity, and
in so doing instructed the judge to analyze the evidence
presented regarding the specific reasons given by the operator
for the miner's discharge.  3 FMSHRC at 819-20; see also E.
Assoc., 813 F.2d at 643 (affirming judge's rejection of
operator's affirmative defense that it fired miner for act of
sabotage on ground that operator failed to show good-faith basis
in blaming miner for act); Chacon, 709 F.2d at 92-94; Haro v.
Magma Copper Co., 4 FMSHRC 1935, 1939-45 (Nov. 1982); Moses v.
Whitley Dev. Corp., 4 FMSHRC 1475, 1481-82 (Aug. 1982); Bradley
v. Belva Coal Co., 4 FMSHRC 982, 993-94 (June 1982).
     We are aware of no case in which an affirmative defense to
discriminatory conduct was found to have been established based
not on the evidence supporting the reasons the employer asserted
for taking the adverse action against the employee, but rather on
the basis of evidence the judge considered sufficient to
establish that the employer took the action for a different
reason.  Simply put, under Pasula-Robinette, once a prima facie
case has been established, the affirmative defense determination
is not an open-ended search for the "one true reason" for the
adverse action taken against the employee alleging
discrimination.  See Robinette, 3 FMSHRC at 819 (rejecting as
irrelevant to determination of affirmative defense under Pasula
judge's conclusion on the "primary" and "effective" cause of
adverse action).  Rather, the judge's inquiry is limited to an
examination of the reasons given by the operator for the adverse
action.  The Commission, in setting out the operator's burden in
Pasula, used the phrase "the unprotected activity" to refer not
to just any unprotected activity, but rather to the unprotected
activity the operator alleges would have resulted in the adverse
action regardless of any protected activity.  See Moses, 4 FMSHRC
at 1481 (Commission's role in determining whether affirmative
defense has been established is to "examine whether [the
operator] nevertheless would have discharged [the miner] for
certain unprotected activities alone that it asserts were the
cause of his departure"); Bradley, 4 FMSHRC at 993 (Commission's
function in deciding whether affirmative defense has been
established is limited to determining whether business
justifications asserted for adverse action "are credible and, if
so, whether they would have motivated the particular operator as
claimed").
     The judge's approach of relying on an affirmative defense
which the operator has not consistently raised nor attempted to
prove also presents due process problems.  The Secretary and the
miner must have adequate notice of the affirmative defense in
order to effectively rebut it at trial, just as any party must
have adequate notice of the issues being litigated.  See
Consolidation Coal Co., 20 FMSHRC 227, 236-37 (Mar. 1998) (party
must understand during trial that issue is being litigated).  By
ignoring the justification proffered at trial for McGill's
discharge - insubordination and profanity - and finding the
operator to have instead been motivated by other conduct which
was also not protected by the Mine Act, the judge misapplied the
concept of an affirmative defense.  We therefore vacate his
determination that U.S. Steel established an affirmative defense,
and remand the case to him to determine under Commission law
whether U.S. Steel established that it would have fired McGill in
any event for his conduct during his confrontation with Harless.
          2.   Remand
     Remand is necessary because U.S. Steel's affirmative defense
is entirely dependent upon Harless' testimony that McGill was
insubordinate and profane during their confrontation, and that
McGill only requested the presence of mine committee chairman
Keaton after being fired.[6]  McGill's version of events is that
he was neither insubordinate nor profane, and that Harless
aggressively and profanely responded to McGill's threat to file a
grievance, firing him when he attempted to leave to get Keaton as
a witness to Harless' conduct.  We cannot discern from the
judge's decision whose version of events he credited.[7]  After
examining all of the evidence,[8] the judge needs to resolve
these widely disparate accounts of what occurred between Harless
and McGill without contradicting any of the factual findings and
credibility resolutions included in his original decision.
     Because U.S. Steel bears the burden of proving any
affirmative defense, if the judge does not credit Harless'
version of events, he cannot find that U.S. Steel has established
its defense that McGill was profane and insubordinate, as there
is no other record support for that assertion.  If the judge does
credit Harless, he must then decide whether U.S. Steel has shown
that, absent McGill's protected activities, it would have
discharged him for what Harless alleges he did and said during
their confrontation.  See Pasula, 2 FMSHRC at 2801.  The judge
must evaluate the reasons given for McGill's discharge - use of
profanity and insubordination - pursuant to the principles set
forth in Bradley, where the Commission stated:
          [T]he operator must prove that it would have
          disciplined the miner anyway for the
          unprotected activity alone.  Ordinarily, an
          operator can attempt to demonstrate this by
          showing, for example, past discipline
          consistent with that meted out to the alleged
          discriminatee, the miner's unsatisfactory
          past work record, prior warnings to the
          miner, or personnel rules or practices
          forbidding the conduct in question.  Our
          function is not to pass on the wisdom or
          fairness of such asserted business
          justifications, but rather only to determine
          whether they are credible and, if so, whether
          they would have motivated the particular
          operator as claimed.
4 FMSHRC at 993.  The reasons supporting an operator's business
justification defense must not be "examined superficially or be
approved automatically once offered."  Haro, 4 FMSHRC at 1938.
Moreover, we have recognized that "pretext may be found . . .
where the [operator's] asserted justification is weak,
implausible, or out of line with the operator's normal business
practices."  Price, 12 FMSHRC at 1534.[9]
**FOOTNOTES**
     [1]:   The  judge  stated the distance the curtain had to be
transported  was  180  feet,  but  that  is  the  average  length
estimated by McGill of each  crosscut,  so  the distance was much
greater than that.  22 FMSHRC at 1329; Tr. 65.  Moreover, Harless
testified that McGill was 500 feet away from  entry No. 3 when he
saw him carrying a curtain.  Tr. 406-08.
     [2]:  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).   "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 Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
     [3]:   The  pre-trial  pleadings are  of  no  assistance  in
discerning  the  substance of U.S.  Steel's  affirmative  defense
prior to trial.  The only mention of an affirmative defense is in
U.S. Steel's answer  to  the Secretary's initial complaint, where
it avers that McGill "was engaged in unprotected activity on July
13,  1999 that justified the  imposition  of  the  discipline  of
termination."  Resp't Answer to Compl. at 3.
     [4]:   In  an  isolated  reference in its initial post-trial
brief, U.S. Steel argued that, according to McGill's account, the
triggering event of his discharge  by Harless was McGill's threat
to file a grievance against Harless.   USS  Proposed  Findings of
Fact  and  Post-Hr'g  Legal Argument at 25.  However, that  brief
closes by stating that  U.S. Steel's reason for the discharge was
McGill's gross insubordination toward Harless.  Id. at 27.
     [5]:  Contrary to U.S. Steel's arguments, the judge entirely
ignored the allegations that  it was McGill's insubordination and
profanity that resulted in his discharge.
     [6]:  The judge apparently  rejected  the  notion  that  the
adverse  action  resulted  from  anything other than the Harless-
McGill   confrontation.   See  22  FMSHRC   at   1333-34.    Mine
Superintendent  Rick  Nogosky testified that he made the decision
to fire McGill based not  only  on  the  accounts  of the July 13
events provided by McGill and Harless, but also based  on  having
heard  McGill  say "f___ you" on two prior occasions to different
supervisors, and  on a review of McGill's personnel file.  Id. at
1331 & n.5.  However,  the  judge noted that Nogosky's deposition
testimony was that he relied solely upon the events of July 13 in
upholding Harless' discharge of McGill, and the judge limited his
analysis of whether an affirmative defense was established to the
Harless-McGill  confrontation.    Id.   at   1331  &  n.5,  1335.
Moreover, the documents notifying McGill of the  grounds  for his
discharge  only  mentioned the confrontation between Harless  and
McGill,   so   the  arbitration   that   resulted   in   McGill's
reinstatement was  similarly  limited.   Gov't Ex. 4.  U.S. Steel
does not take issue with the judge's approach,  and seems to drop
the issue on review, stating that it "never has sought to justify
Mr.  McGill's  discharge  on the basis of an unsatisfactory  work
record."  USS Br. at 18.
     [7]:    The  judge's  determination   to   credit   Harless'
"unrebutted" testimony  that  McGill refused to stop walking away
when he ordered him to stop (22  FMSHRC  at 1335) does nothing to
resolve the two very different accounts on why it was that McGill
walked away from Harless.  Unlike the Secretary,  we  do not read
the judge's decision to in any way credit Harless as to what else
occurred  during  his  confrontation  with  McGill, so we do  not
address  the  Secretary's arguments that we should  overturn  the
judge's credibility  "finding"  in  favor  of  Harless  and order
reopening  of the record for the admission of evidence the  judge
excluded.  See  S.  Br.  at 23-34.  The judge made no credibility
finding  in favor of Harless  or  against  McGill  on  the  facts
necessary to support U.S. Steel's affirmative defense that McGill
was fired for insubordination and use of profanity.
     [8]:    For   example,  the  judge  failed  to  discuss  the
arbitration award entirely  in  McGill's  favor.   Gov't  Ex.  4.
Having properly admitted the arbitration decision, the judge must
consider  it  and  determine  the  weight, if any, to which it is
entitled.  See Sec'y of Labor on behalf  of Hyles v. All American
Asphalt, 18 FMSHRC 2096, 2101 (Dec. 1996) (in determining whether
to give weight to an arbitrator's findings,  judge  must consider
congruence  of  contractual  and statutory provisions, degree  of
procedural fairness, adequacy  of  record, and special competence
of arbitrator).
     [9]:  In Secretary of Labor on  behalf  of  Cooley v. Ottawa
Silica  Co.,  6  FMSHRC  516,  521  (Mar.  1984),  the Commission
tailored   the  Bradley  principles  specifically  to  situations
involving the use of profanity by looking to whether the operator
had prior difficulties  with the complainant's profanity, whether
the  operator  had  a  policy   prohibiting   swearing,  and  the
operator's  treatment  of  other  miners who had cursed  or  used
threats.  See also Hicks v. Cobra Mining,  Inc.,  13  FMSHRC 523,
532-33  (Apr.  1991)  (applying the factors announced in Cooley).
The previously discussed  facts of this case constitute only some
of  the  evidence  the parties  supplied  on  these  issues.   In
addition, if the judge finds that McGill acted insubordinately in
refusing to stop and  listen  to Harless, the judge can look to a
number of our cases which applied  the  Bradley  principles to an
affirmative  defense  based  on a miner's insubordination.   See,
e.g., Sec'y of Labor on behalf  of  Baier  v.  Durango Gravel, 21
FMSHRC 953, 960-61 (Sept. 1999); Schulte v. Lizza Indus., Inc., 6
FMSHRC 8, 17-18 (Jan. 1984).
     It is U.S. Steel's burden to show that its asserted
justification would have moved it to take the adverse action
against McGill.  Price, 12 FMSHRC at 1534.  Therefore, on remand
the judge must closely scrutinize the merits of the operator's
evidence because:
          [i]t is not sufficient for the employer to
          show that the miner deserved to have been
          fired for engaging in the unprotected
          activity; if the unprotected conduct did not
          originally concern the employer enough to
          have resulted in the same adverse action, [it
          should] not [be] consider[ed].  The employer
          must show that he did in fact consider the
          employee deserving of discipline for engaging
          in the unprotected activity alone and that he
          would have disciplined him in any event."
Pasula, 2 FMSHRC at 2800 (emphasis in original).
     We also agree with the Secretary that, even if the judge
determines that U.S. Steel has established the elements of its
affirmative defense, as a matter of law he must address the
question of whether that defense might nevertheless fail because
the conduct for which McGill was discharged was provoked by the
operator.  See S. Br. at 17-19; S. Reply Br. at 1-2, 8-9; Sec'y
of Labor on behalf of Bernardyn v. Reading Anthracite Co., 22
FMSHRC 298, 305-06 (Mar. 2000) (Bernardyn I); Sec'y of Labor on
behalf of Bernardyn v. Reading Anthracite Co., 23 FMSHRC ____,
Slip op. at 12-16, Nos. PENN 99-129-D, etc. (Sep. 19, 2001)
(Bernardyn II).  We have recognized the inequity of permitting an
employer to discipline an employee for actions which the employer
provoked.  Bernardyn I, 22 FMSHRC at 306-07.  As we made clear in
Bernardyn I, in a case such as this, a judge is obligated to
determine whether the actions for which the miner was disciplined
were provoked by the operator's response to the miner's protected
activity, and if so, "whether the particular facts and
circumstances of this case, when viewed in their totality, place
[the miner's provoked actions] within the scope of the `leeway'
the courts grant employees whose `behavior takes place in
response to [an] employer's wrongful provocation.'"  Id. at 307-
08 (quoting Trustees of Boston Univ. v. NLRB, 548 F.2d 391, 393
(1st Cir. 1977)) (second alteration in original).
     In sum, on remand the judge should examine all of the facts
and circumstances leading up to McGill's alleged conduct in his
confrontation with Harless, making further findings of fact,
including credibility resolutions, necessary to decide disputed
issues.
                               III.
                            Conclusion
     For the foregoing reasons, we vacate the judge's decision
and remand for further proceedings consistent with our decision.
                              Theodore F. Verheggen, Chairman
                              Mary Lu Jordan, Commissioner
                              James C. Riley, Commissioner
                              Robert H. Beatty, Jr., Commissioner
Distribution
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA  22203
Anthony F. Jeselnik, Esq.
U.S. Steel Mining Co., LLC
600 Grant Street
Pittsburgh, PA 15219-2749
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041