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[DOCID: f:l96139dm.wais]

 
MINNESOTA ORE OPERATIONS, USX CORPORATION
July 26, 1996
LAKE 96-139-DM

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041

                            July 26, 1996

SECRETARY OF LABOR,               :  TEMPORARY REINSTATEMENT
  MINE SAFETY AND HEALTH          :  PROCEEDING
  ADMINISTRATION (MSHA),          :
      On behalf of                :  Docket No. LAKE 96-139-DM
       RONALD A. MARKOVICH,       :
                 Complainant      :  NC-MD 96-02
                                  :
            v.                    :
                                  :
MINNESOTA ORE OPERATIONS,         :  Minntac Plant
  USX CORPORATION,                :
                 Respondent       :

        ORDER DENYING COMPLAINANT'S APPLICATION FOR TEMPORARY
                            REINSTATEMENT

Appearances:  Patrick L. DePace, Esq., Office of the Solicitor, U. S.
              Department of Labor, Cleveland, Ohio, for Complainant;
              Gary R. Kelly, Esq., U. S. Steel Law Department,
              Pittsburgh, Pennsylvania, for Respondent.

Before: Judge Amchan

Uncontroverted Facts

     Complainant, Ronald Markovich, worked for Respondent's
Minnesota Ore Operations from 1969 until September 26, 1995.  At about
1:30 p.m. on September 26, 1995, Complainant was summoned to the office
of Thomas Hakala, the Area Manager for the Concentrator where he worked.
He was given a discipline notice informing him that he was being
suspended for five days subject to discharge and was escorted off company
property (Exh. R-17, Markovich affidavit filed with the National Labor
Relations Board).  The notice stated that he was being suspended for
"Removal or destruction of Company property (including notices)
(Exh. G-6)."

     The next morning a hearing was conducted pursuant to section
12(b) of Respondent's Collective Bargaining Agreement with the
United Steelworkers of America.  On September 28, Respondent
informed Complainant that it had decided to convert the
suspension into a discharge (Exh. R-11, R-17).

     A week prior to the suspension/discharge Respondent installed
a surveillance camera in the Concentrator Step I passenger elevator
in order to secretly monitor employee activity.  Respondent contends
that it did so to address complaints of violations of its no
smoking rules, the prevalence of obscene personalized graffiti
and harassment of some employees by other employees (Tr. 25).

     In addition to installing the video camera, USX affixed No
Smoking stickers on three walls of this elevator.  These stickers
were repeatedly removed or damaged by employees on the elevator
and replaced by management.  On Monday, September 18 and 19, the
signs in the elevator were white stickers saying simply "No
Smoking" (Exh. G-1).  During the day on Tuesday, September 19,
management began affixing a yellow sign which read as follows:

                Removal or Destruction of any Company
             Property (Including Notices) is a Violation
                  of USS General Rules & Regulations
                        NO SMOKING IN ELEVATOR

     These signs were also repeatedly removed and damaged. On
Thursday, September 21, management began affixing a red sticker
with the same message (Tr. 30-33).

     The camera recorded employees in the elevator continuously
between the morning of Monday, September 18, 1995 and Monday,
September 25, 1995.  When the tapes from the camera were reviewed
by USX management they identified seven employees out of the 250
who worked in the concentrator, as having removed or damaged No
Smoking stickers placed in the elevator.

     One of the seven employees was a supervisor named Kenneth
Koski, who was discharged for destroying three No Smoking stickers
(Tr. 75-76).  With regard to the six bargaining unit (non-
supervisory) employees, Respondent concluded as follows:

          Complainant Ronald Markovich removed or tampered with
     28 No Smoking stickers on 16 separate occasions;

     William Barfknect removed or tampered with one sticker
on one occasion;

     Anthony Leoni removed 3 stickers on one occasion;

     Roger Manninen removed or tampered with one sticker on
one occasion;

     Steven Lindborg removed or tampered with 3 stickers on
3 separate occasions;

     Ronald Johnson removed or tampered with 2 stickers on 2
occasions.

    (Tr. 90).

     William Smith, Respondent's manager of Employee Relations,
contends that in deciding whether to suspend or
terminate these employees he made a distinction between
those who only tampered or removed stickers once and
those who did it more than once.  Those who removed or
damaged No Smoking stickers more than once were
discharged.  Those who were recorded doing so only once
were suspended (Tr. 54-55).

     Mr. Smith concedes that Respondent was not entirely
consistent in making these distinctions.   Thus, it
decided to suspend rather than discharge Mr. Lindborg.
Smith's rationale was that it was hard to distinguish
Lindborg, who tampered with 3 stickers on 3 occasions,
from Leoni, who tampered with 3 stickers on one
occasion.  Moreover, Smith believed that Lindborg
should be given a break for telling the truth at the
12(b) hearing (Tr. 61-2, 65, 72, 91-93).  Thus, the end
result was that Markovich and Johnson were discharged
while the other four miners received suspensions.
Johnson apparently won his job back in arbitration.
Thus, Complainant is the only rank-and-file miner who
was discharged for removing and tampering with No
Smoking stickers.

 Complainant's Activities Protected Under the Federal Mine Safety
and Health Act

     Ronald Markovich had been a miners' representative under the
Federal Mine Safety and Health Act for 19 years.  At about 7:15 a.m.
on the morning of September 26, 1995, another miner handed
Markovich a written safety complaint (Exh. R-2, p. 93).
Markovich took the complaint to safety director's office where
Timothy Kangas, an assistant to the director, was waiting for
MSHA Inspector Allen Brandt.  Brandt was already on site to
inspect another area of Respondent's plant.

     After Complainant presented the written safety complaint, he
accompanied Inspector Brandt and Mr. Kangas to the Second floor
of the concentrator, where Brandt investigated the complaint.
Before the inspection started, Markovich told Brandt, apparently
within earshot of Kangas, that if they saw any MSHA violations
and Brandt didn't issue a citation, the union would "conference"
these conditions (Exh R-17).  This "conference" is essentially
an appeal to Brandt's supervisors.

     During the inspection Brandt issued Respondent 22 citations,
12 of which were "significant and substantial (S & S)" (Exh. R-2,
p. 95).  Kangas' reaction to the inspection was recounted by
Complainant at his arbitration hearing and in an affidavit filed
with the National Labor Relations Board.  At page 2 of the
affidavit he relates that:

          The inspection went for half a day until noon
     and I would guess that the MSHA inspector and myself both
     pointed out about the same number of violations.  During
     the inspection Tim Kangas said that this really pisses him
     off.
          Although this is the only comment he made I think he was
     mad about the fact that we were pointing out such a large number
     of citations.

(Exhibit R-17, page 2 of Markovich affidavit).

     At his arbitration hearing in December 1995, Markovich
testified:

          Tim Kangas during the inspection said, "This
     really pisses me off."  I said, "It pisses me off,
     too, Timmy."  I says, "If we are talking about the
     same thing here that nothing is done and here we are
     on another inspection."...

(Exhibit R-2, p. 95).

Procedural History

     Complainant filed a grievance concerning his suspension/
discharge which was heard by an arbitrator in December, 1995
and denied in March, 1996 (Exhibit R-1 and R-2).  In October,
1995, he filed a charge with the National Labor Relations Board
(Exhibit R-15).  The Board's Regional Director declined to issue
a complaint on his behalf (Exhibit R-16).

     On October 11, 1995, Markovich filed a discrimination
complaint with MSHA.  He asserted that he believed he was
discharged because of "enthusiastic performance" of his duties as
a Union Safety Representative.   He also asserted that other
employees committed the same and/or similar violations (of
company rules) and were not discharged.   This referred to the
fact that Respondent fired only two of the six union members
identified as tampering or destroying No Smoking stickers in the
company's video.

     On June 24, 1996, the Secretary of Labor filed an
Application for the Temporary Reinstatement of Mr. Markovich with
the Review Commission.  An affidavit attached to that application
alleges that Respondent's articulated reason for the discharge of
Complainant (removing and tampering with No Smoking stickers) is
pretextual.  On July 3, 1996, Respondent requested a hearing on
the application.  Pursuant to an agreement with the parties the
hearing was held in Duluth, Minnesota on July 18, 1996.

The Issue Presented

     Section 105(c)(1) of the Federal Mine Safety and Health Act
provides that:

          No person shall discharge or in any manner
          discriminate against or cause to be discharged
          or cause discrimination against or otherwise
          interfere with the exercise of the statutory
          rights of any ... miner 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
          or because such miner ... has instituted
          or caused to be instituted any proceeding
          under or related to this Act ... or because of
          the exercise by such miner ... of any statutory
          right afforded by this Act.

     The Federal Mine Safety and Health Review Commission has
enunciated the general principles for analyzing discrimination
cases under the Mine Act in Sec. ex rel. Pasula v. Consolidation
Coal Co., 2 FMSHRC  2786 (October 1980), rev'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3d Cir. 1981), and Sec. ex rel. Robinette v. United Castle Coal
Co., 3 FMSHRC 803 (April 1981).  In these cases, the Commission
held that a complainant establishes a prima facie case of
discrimination by showing 1) that he engaged in protected
activity and 2) that an adverse action was motivated in part
by the protected activity.

     The operator may rebut the prima facie case by showing either
that no protected activity occurred, or that the adverse action
was in no part motivated by the protected activity.  If the
operator cannot thus rebut the prima facie case, it may still
defend itself by proving that it was motivated in part by the
miner's unprotected activities, and that it would have taken
the adverse action for the unprotected activities alone.

     In a temporary reinstatement proceeding, the Secretary need
not establish that it will, or is even likely to, prevail in
the discrimination proceeding.  Pursuant to the procedural
rules of the Commission, 29 C.F.R. 2700.45(d), the issue in
a temporary reinstatement hearing is limited to whether the
miner's complaint was frivolously brought.  The Secretary of
Labor has the burden of proving that the complaint was not
frivolous.

     The legislative history of the Act provides that the
Secretary shall seek temporary reinstatement, "[u]pon
determining that the complaint appears to have merit."  The
Eleventh Circuit, in Jim Walter Resources, Inc. v. FMSHRC,
920 F.2d 738, 747 (11th Cir. 1990), concluded that "not
frivolously brought" is indistinguishable from the "reasonable
cause to believe" standard under the whistleblower provisions
of the Surface Transportation Assistance Act.  Further, that
court equates "reasonable cause to believe" with a criteria
of "not insubstantial or frivolous" and "not clearly without
merit" 920 F.2d 738, at 747 and n. 9.

     The Secretary has not met his burden of proving that Mr.
Markovich's complaint was "not frivolous" or that his decision
to seek temporary reinstatement was "not frivolous".

     It is uncontroverted that Complainant engaged in protected
activity over a period of 19 years as miners' representative.
It is also uncontroverted that he engaged in protected activity
the morning of his suspension when he transmitted another miner's
complaint to Respondent and accompanied the MSHA inspector and
management representative.  For purposes of this proceeding, I
take it as given that he pointed out to the inspector many of the
conditions for which citations were issued.  Nevertheless, I
conclude that the Secretary has not established a nexus between
Complainant's protected activity and his discharge.  Moreover,
the Secretary has not established that it is reasonable or "not
frivolous" to contend that such a nexus exists.

     As the Commission and Federal Courts have repeatedly noted,
it is rare that a link between an adverse action and
protected activity will be supplied exclusively by direct
evidence.  Usually discrimination can be proven only by
circumstantial evidence upon which the trier of fact draws
an inference regarding the employer's motivation, Secretary
of Labor on behalf of Chacon v. Phelps Dodge Corporation, 3
FMSHRC 2508, 2510 (November 1981).

     The most common circumstances upon which such an inference
may be based are the employer's knowledge of the protected
activity, hostility towards the protected activity (animus),
coincidence in time between the protected activity and the
discharge or other adverse action, and disparate treatment
of the complainant and similarly situated employees, Ibid.,
at 2510.

     With regard to these factors, I assume for purposes of this
proceeding that Respondent was aware of Markovich's role in
the September 26 MSHA inspection when it decided to
discharge him[1].  While the timing of a discharge may be
evidence of a nexus with the protected activity, or evidence
of animus towards the protected activity, that is not always
the case.  Where, as in the instant case, an employer at the
same time becomes aware of a legitimate unprotected reason
to discharge an employee, an inference linking the protected
activity and the adverse action may not necessarily be
drawn.

     The evidence in this record is overwhelming in indicating
that Respondent's stated reason for the discharge,
Markovich's removal and tampering with No Smoking signs, was
not pretextual.  It is clear that Respondent considered
destruction of these notices to be a very serious matter.
This is established to my satisfaction by the discharge of
foreman Koski.

     It is not unheard of for an employer to discharge other
employees to cover up its motives for discharging a union or
safety activist.  However, I place very great weight on the
fact that Respondent fired one of its foreman for the same
reasons that it fired Markovich. It is not reasonable to
contend that it would have done so simply to conceal its
motives in discharging Complainant.

     I also place very great weight of the lack of evidence
regarding animus towards Complainant's protected activity.
The only such evidence are the statements made by Mr. Kangas
which are quoted earlier in this decision.  I consider these
statements to be very ambiguous.  It is not at all clear
whether Kangas was angry at Mr. Markovich or considered him
to be responsible for the number of citations received.  I
also consider it important that Markovich was merely
transmitting the complaint that gave rise to the inspection.
There is virtually nothing to indicate that he caused
Respondent to get citations it would otherwise have not
received[2].

     It is possible that Respondent was irritated enough by the
September 26 citations that it decided to fire Markovich
rather than merely suspend him.  However, I deem the
evidence supporting this theory to be so speculative that it
falls short of establishing that Markovich's complaint and
the Secretary's decision to seek temporary reinstatement are
"non-frivolous."

     Complainant's claim of disparate treatment vis-a-vis other
rank and file employees is simply without merit.  Disparate
treatment which allows for an inference of retaliatory
discharge is different treatment of individuals who are
similarly situated, see, Hayes v. Invesco, Inc., 907 F. 2d
853 (8th Cir. 1990).  Mr. Markovich's offenses of
Respondent's rules were of a totally different order than
that of the other rank-and-file miners (including Mr.
Johnson, who Respondent also tried to fire)[3].  The
distinction Respondent drew between Complainant and other
employees is a rational one.

     The Secretary in cross-examining Mr. Smith raised legitimate
questions as to whether Markovich actually removed or
tampered with 28 signs on 16 occasions.   However, it is
absolutely clear that he tampered or tried to remove many
signs on a number of occasions--far more than any other
employee.  While, it may also be possible that some of these
signs were removed because they contained offensive graffiti
(Markovich's excuse for his actions), it is clear that many
of these signs had no graffiti on them.

     One may question the justice of discharging an employee with
26 years of service for tampering with No Smoking signs in
an elevator.  The Secretary may also be correct in arguing
that Respondent could have made its point with its employees
without discharging Markovich.  However, there is no reason
on the record before me to conclude that Respondent did not
discharge Mr. Markovich for reasons other than those it
articulated.  The Secretary's assertions to the contrary I
consider to be nothing more than speculative and without any
reasonable basis.  I therefore conclude that he has not
established the Application for Temporary Reinstatement to
be "not frivolous" and dismiss the application[4].

                                ORDER

     The Secretary of Labor's application for the temporary
reinstatement of Ronald Markovich is hereby DISMISSED.

                                 Arthur J. Amchan
                                 Administrative Law Judge

Distribution:

Patrick L. DePace, Esq., Office of the Solicitor, U.S.
Department of Labor, 881 Federal Building, 1240 East Ninth Street,
Cleveland, OH 44199 (Certified Mail)

Gary R. Kelly, Esq., U. S. Steel, Law Department, 600 Grant Street,
Suite 1580, Pittsburgh, PA 15219-2749(Certified Mail)

**FOOTNOTES**

     [1]:Respondent's employee relations manager, William Smith,
testified that he was unaware of the inspection when he reviewed
the video and decided to suspend Markovich and the other miners
observed tampering with the stickers.  However, the final
decision to discharge Markovich, which is what is really at issue
in this case, was made the next day and I assume Respondent's
management was aware of his participation in the inspection by
September 27.

     [2]:The Secretary argues that retaliation was taken for
Markovich's activities as miners' representative for the past 19
years.  There is nothing in this record to support such a
contention other than the assertions of Complainant and his wife.
To conclude that the Application is "not frivolous" on such a
theory would require the reinstatement of any miners'
representative regardless of his or her unprotected conduct.
Congress could not have intended such cavalier application of the
temporary reinstatement feature of the Act.

     [3]:I reject the Secretary's argument that Respondent's
reconsideration of its initial decision to fire Mr. Lindborg
raises a non-frivolous issue of disparate treatment.  Lindborg's
transgressions were not comparable to those of Complainant.

     [4]:Two other issues are raised by the Secretary.  One is
Respondent's refusal to hold a fact-finding meeting prior to the
12(b) hearing on September 27, 1995.  I see no significance in
this fact because none of the six employees had such a meeting
and Markovich had an equivalent opportunity to present facts on
his behalf at the 12(b) hearing.
     A second issue is whether the company may have been wrong in
concluding that Markovich fabricated evidence at the 12(b)
hearing when he produced two red stickers with obscene graffiti.
Even if some of the stickers he removed or tampered with had such
graffiti many of them did not.  If Respondent was wrong about the
two stickers I fail to see how this evidence would be material.