<DOC>
[DOCID: f:se200039.wais]

 
U.S. STEEL MINING COMPANY, LLC
November 22, 2000
SE 2000-39-DM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                        November 22, 2000


SECRETARY OF LABOR,                :  DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA), on behalf :  Docket No. SE 2000-39-DM
  of Terry McGill,                 :  BIRM CD 99-04
               Complainant         :
                                   :
          v.                       :
                                   :  Oak Grove Mine
U.S. STEEL MINING COMPANY, LLC.,   :  Mine ID 01-00851
               Respondent           :

                            DECISION

Appearances:  William Lawson, Esq., U.S. Department of Labor,
              Office of the Solicitor, Birmingham, AL, for the
              Complainant;
              Anthony Jeselnik, Esq., U.S. Steel Mining Company,
              Pittsburgh, PA, for the Respondent.

Before:  Judge Weisberger

     This case is before me based on a Complaint filed by the
Secretary of Labor ("Secretary") alleging that U.S. Steel Mining
Company ("U.S. Steel") discriminated against Terry McGill in
violation of Section 105 of the Federal Mine Safety and Health
Act of 1977 ("the Act").  A hearing on this matter was held in
Hoover, Alabama, on August 23, 2000.  On October 31, 2000, the
Secretary filed findings of fact and a post trial brief.  On
November 1, 2000, U.S. Steel filed proposed findings of fact and
post hearing legal argument.[1]  On November 15, 2000, U.S. Steel
filed a reply brief.

      I.  The Secretary's Case

     Terry McGill, who is presently a retired miner, previously
worked as a roofbolter for U.S. Steel.  According to McGill, his
first contact with Carl Harless, a foreman employed by U.S.
Steel, occurred in April 1999 when Harless, who was not McGill's
foreman at that time,  noted that an underground miner had taken
his hat off, and had turned his light off.  According to McGill,
Harless fired that miner.  McGill confronted Harless and told him
that if he would fire every miner at the mine who would be found
with his hat or light off, he (Harless) would be busy, as this
practice is widespread.

     Subsequent to April 1999, McGill injured his knee at the
mine and was off work for 13 weeks.  When McGill returned on June
21, 1999, Harless had become his foreman.  Sometime thereafter,
Harless told McGill and Jerry Norris, McGill's co-bolter on the
section, that since he now had two committeemen on the section,
he was outnumbered, and should probably "start wearing a tape
recorder".  (Tr. 45.)  According to McGill, Harless "... kept
trying to goad me into something or get me to act".  (Tr. 45.)

     According to McGill, on July 13, 1999, the section's
continuous miner was cutting a crosscut from the No. 3 entry to
the No. 2 entry.  McGill testified that on his way to lunch he
passed the No. 2 entry, and saw that it had not been pinned all
the way to the face.  He indicated that this entry was 20 feet
wide, and that at the face along the right side of the entry, the
last row of bolts was approximately seven feet from the face.  In
contrast, on the left side of the entry the last row of bolts was
approximately ten feet from the face.[2]

     McGill went to see Luther C. Self, the miner operator, and
asked him if he was going to cut all the way through to entry No.
2, and Self indicated in the affirmative.  McGill told Self that
if he were to cut into the No. 2 entry, he would then be cutting
into an area that was not completely pinned.  Self told him that
Harless had told him (Self) to cut the crosscut through to the
No. 2 entry.  McGill then went to see Harless and asked him if he
was going to cut through to the No. 2 entry, and the latter
indicated in the affirmative.  McGill then testified that he told
Harless as follows: "... you know you will be cutting into a
place that is not completely pinned".  (Tr. 55.)  According to
McGill, Harless said that "it was his f...ing section and he
would run it like he wanted to and for us to get our g-d damn
butts out there and eat."  (Tr. 55.)

     At approximately 10:30 a.m., 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 would be taken "... and it [was] not bolted up all the way".
(Tr. 59.)  According to McGill, the inspector asked if such a cut
had already been taken, and McGill indicated that it had not.
The inspector did not say anything further to McGill on this
subject.

     Harless was located one to two crosscuts away from the
dinner hole during the conversation between McGill and the
inspector.   According to McGill, Harless observed him talking to
the inspector. McGill indicated that Harless then entered the
dinner hole, and asked the inspector what he was inspecting, and
the inspector said he was inspecting a belt.  Harless then left,
and McGill continued talking to the inspector.

     According to McGill, at approximately 11:00 a.m., after he
had left the dinner hole, he met the miner crew going into the
dinner hole, and asked them if they had cut through to the No. 2
entry.  Self told McGill that Harless told them to get the miner
out of the entry, and to stop cutting in that area.

     Thereafter, McGill went to the No. 3 entry with Norris to
resume bolting, at which point Harless told him to get some
curtains from the tail track area, and to bring them back to the
section.  The curtains were located approximately 180 feet from
the section.  McGill indicated that the curtains which weigh
approximately three pounds each, but were "bulky" (Tr. 68), are
usually transported by a miner via a scoop.  He indicated that
the floor of the walkway, from the tail track to the section,
sloped downhill and contained mud that was more than ankle deep
and generally consisted of "rough terrain".  (Tr. 66.)  McGill
testified that he asked Harless if he could use a scoop, and
Harless responded as follows:  "Look, I told you to walk out
there and get it.  Are you violating a direct work order"?  (Tr.
67.)  McGill indicated that he told Harless that he would get the
curtains,[3] but that "... it may take me some time ... ."  (Tr.
67.)  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.  Harless approached him and told him to put
the curtain down and for him and Norris to bolt the No. 3
crosscut.  Harless then offered to carry the rest of the
curtains.  McGill testified that he told Harless that if he would
carry the curtains, then he (McGill) would file a grievance, as
Harless would be performing "classified" work.  According to
McGill, Harless then said to him as follows:   "... you little
son of a b---h, I'm going to show you something about what's
right and what's wrong."  (Tr. 73.)  According to McGill, Harless
was "really cussing".  (Tr. 73.)  McGill told Harless that if he
would continue cursing that he (McGill) would get Hank Keaton,
the mine committee chairman, to be a witness.  Harless then told
him that he (McGill) did not need Keaton to be a witness because
he (McGill) "was a f---ing committeeman."  (Tr. 74.)  McGill said
that Harless then began to run at him with his fist drawn, and
said that "you not going nowhere."  (Tr. 74.)  McGill told
Harless that he was getting Keaton and started to walk away, at
which point Harless said that he was insubordinate and "you're a
fired son of a b---h".  (Tr. 75.)  Harless further told him that
"the time is 11:46 ... [y]our time stops now."  (Tr. 75.)  In
response, McGill told him that he was calling Mike Sumpter, a
management official, and started to go to get him.  Harless then
called him (McGill) insubordinate, told him that he was fired,
and that he (Harless) would get Sumpter.  Harless then got
Sumpter, who arrived at the scene and asked what was going on.
McGill said that he did nothing, and he went outside accompanied
by Harless and Sumpter.

     Self testified that on July 13, he was told by Harless to
cut the crosscut between the No. 2 and No. 3 entries.  (Tr. 92.)
After Self took only a 35 foot cut, Harless told him to back the
miner out, and shut it down.[4]  According to Self, in normal
operations the miner takes a 40 foot cut, and that it is not the
normal practice to stop a miner after only a 35 foot cut in order
to fix a suction hose. Self indicated that when he was told by
Harless to remove the miner and shut it down, he had not
experienced any difficulty operating the miner, that it had been
operating properly, and that there was no indication that it was
losing oil.  Self conceded that a hose on the miner that is used
to siphon oil to the miner was broken.  However, he opined that
as the hose was not pressurized, it did not have any effect on
the operation of the miner.

     After stopping the miner, Self left the area to go to the
dinner hole.

      Timothy Lynn Bynum, Self's helper, testified that Harless 
did not  tell him the reason for having to back the miner out on
July 13.  He  confirmed that he had not observed any problems 
with the hydraulic  tramming of the miner, nor did he experience 
difficulty raising or  lowering the cutting head.  He also con-
firmed that the offset had not  been bolted.  He did not recall 
Harless saying that the suction hose  had to be fixed.  On cross
examination, he indicated,  in essence, that he was not sure 
who had informed Harless that they  were cutting into an un-
pinned area, but that, in response, Harless was  not angry nor 
did he issue any threats.

     Jerry A. Norris, a roofbolter, was McGill's partner on the
bolter during the dates in issue.  He confirmed that Harless said
that since he had two committeemen "... and an a--hole" (Tr. 139)
he needed to carry a tape recorder.

     According to Norris, on July 13, McGill asked Harless if he
was going to cut a crosscut between the No. 2 and No. 3 entries,
and Harless indicated, in the affirmative.  Norris testified that
he told Harless that cutting into an unpinned area is illegal.
According to Norris, Harless said "it was his f---ing section;
he'd run it any f---ing way he wanted to." (Tr. 141) and Harless
then told Norris and McGill "to eat [their] goddamn lunch" (Tr.
141).

     Later on in the day, Norris was assigned to build curtain
drops. He asked Harless where the curtains were coming from, and
the latter told him that McGill would bring them "if he wasn't
too f---ing crippled."  (Tr. 143) Norris testified that later on,
when Harless told him to get the curtains, he used a scoop to get
the curtains with Harless' knowledge.

     On cross examination, Norris indicated that on July 12, the
No. 2 entry had not been completely bolted.  He explained that
rocks on the floor of the entry had prevented the roofbolter from
advancing further inby along the right side of the entry.  As a
result, the inby right side of the entry was more than 5 feet
from the last row of bolts.  Norris indicated that the unbolted
area was the area that would be cut from the No. 3 entry.
According to Norris, at the end of the shift, on July 12, he
informed Harless that they would not be able to pin all the way
to the face due to uncut bottom.

     Rex Tanner, the president of the local union, and a member
of the mine committee, was with the inspector in the dinner hole
on July 13.  According to Tanner, after Harless arrived at the
dinner hole he introduced himself to the inspector, and asked him
what the problem was, and the inspector explained that if a cut
would be taken through to an unpinned area there would be a
violation.  At that point, Harless turned and went to the face
where the subject cutting was being done.

     II.  U.S. Steel's Case

     Rick Nogosky, the superintendent at the site, testified that
he made the decision to fire McGill, and that he was solely
responsible for the firing.  He indicated that he made that
decision after the 24-48 union hearing related to the stopping of
McGill's's time by Harless.  He explained that his decision was
to "uphold" (Tr. 239) the discharge of McGill.[5]


     Nogosky indicated that on two separate occasions he had
heard McGill say f--k you to two supervisors.

     Nogosky opined that an oil leak in a miner could occur
suddenly, and would result in a  malfunction in the miner's
capacity to lower or raise the cutting head.

     Harless testified that on July 13, at approximately 10:00
a.m., McGill wanted to know if he would cut from the No. 3
crosscut to the No. 2 entry, and he (Harless) indicated in the
affirmative.  McGill responded by stating that this could not be
done, as the area was unsupported.  Harless testified that, in
response, he told McGill that it was supported and invited him to
observe it.  McGill did not go, but instead went to the crosscut
between the No. 2 and No. 3 entries, where the miner was located.
Harless said that the unbolted area was in the offset inby the
end of the No 2 entry perpendicular to the crosscut between the
No. 2 and No. 3 entries.  He indicated that the appropriate plan
required bolting to be performed within five feet of the face.
In contrast, in the offset, the distance from the last row of
bolts to the face was seven feet.  He indicated that the height
from the ceiling to the floor was four feet in that area, whereas
the normal distance was six feet.  He explained that in cutting
through the crosscut from the No. 3 entry to the No. 2 entry, the
miner would not have entered this offset area, as it was
perpendicular to the cut.  He indicated that on July 15, when the
cut was taken from the crosscut into the No. 2 entry, Inspector
Norris was present, but he did not criticize this action, nor was
it cited.

     Harless testified that the area in the No. 2 entry, in a
direct line inby of where the miner was cutting in the crosscut
between the No. 2 and No. 3 entries, was bolted by 10:00 a.m. on
July 13, as McGill and Norris had bolted that area on July 12.
There was a conflict in Harless's testimony regarding the time
during the morning of July 13, when Self backed the miner out
from the crosscut in which he was cutting, trammed it to the No.
3 entry, and yelled at him (Harless) that the miner had busted a
hose and needed oil.  Initially, Harless said that this
conversation occurred at approximately 12:00 p.m..  However,
later on in his testimony, he indicated that the time of 12:00
p.m. was not correct, but that he was sure of the following
sequence of events: that (1) after he had this conversation with
Self, and after Self had backed the miner outby from the crosscut
between the No. 2 and No. 3 entries, he saw the inspector in the
dinner hole on a bench with Norris and McGill, and (2) that 30
minutes after he had the conversation with Self, he observed and
lifted eight empty cans of oil that were in close proximity to
the miner.

     Harless testified that at approximately 11:30 a.m., on July
13, after he told McGill to get some curtains from the tail area,
he approached the tail and saw McGill carrying only one curtain
under his arm.  Harless said to him "... let me get some of these
for you and help you carry them up there".  (Tr. 408.)  McGill
responded by telling Harless that if he touched one piece he
(McGill) would file a grievance.  Harless indicated that he was
upset because McGill had been carrying only one curtain.  Harless
told McGill, who had continued walking inby, to stop as he wanted
to tell him what to do for the rest of the shift.  According to
Harless, McGill said, f--k you, and that he was doing what I had
told him.  Harless again told McGill to stop, and told him that
he needed for him to know what to do for the rest of the shift.
According to Harless, he told McGill to stop two more times and
both times McGill said, in response, f--k you.  Harless told
McGill that he was bordering on insubordination and McGill said
get f---ed.  Harless then told McGill to stop, and intending to
fire him, told him "I'm stopping your time".  (Tr. 413.)  Harless
next told McGill to sit down, and then he went to get Sumpter.
Harless said that he reported this incident to Nogosky, and
recommended that McGill be fired.

     Harless indicated that he had not been concerned when he saw
McGill and Norris with the inspector , as people speak to
inspectors all the time.  In essence, he said that the only time
that he got angry was when he saw McGill carrying only one
curtain.

     III. Discussion

          A.  Case Law

     The Commission, in Braithwaite v. Tri-Star Mining, 15 FMSHRC
2460 (December 1993), reiterated the legal standards to be
applied in a case where a miner has alleged that he was subject
to acts of discrimination.  The Commission, Tri-Star, at 2463-
2464, stated as follows:

          The principles governing analysis of a
     discrimination case under the Mine Act are well
     settled.  A miner establishes a prima facie case of
     prohibited discrimination by proving that he engaged in
     protected activity and that the adverse action
     complained of was motivated in any part by that
     activity.  Secretary on behalf of Pasula v.
     Consolidation Coal Co., 2 FMSHRC 2786, 2797-800
     (October 1980), rev'd on other grounds, sub nom.
     Consolidation Coal Co., v. Marshall, 663 F.2d 1211 (3rd
     Cir.  1981); Secretary on behalf of Robinette v. United
     Castle Coal Co., 3 FMSHRC 803, 817-18 (April 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.  Pasula, 2 FMSHRC at 2799-800.  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 in any event for the unprotected activity alone.
     Pasula, 2 FMSHRC at 2800; Robinette, 3 FMSHRC at 817-
     18; see also Eastern Assoc. Coal Corporation, v. United
     Castle Coal Co., 813 F.2d 639, 642 (4th Cir.  1987).

      B.  The Secretary's Prima Facie Case.

          1.   Protected activities

     It is not contested that on the morning of July 13, the most
inby portion of the No. 2 entry had not been cut to an equal
depth across the entire width of the entry, due to a low ceiling
resulting from rock build-up on the floor.  As a result, the
right side of the entry was not bolted within five feet of the
face.  Similarly, U.S. Steel did not rebutt or contradict
McGill's testimony that on July 13 he had communicated both to
Harless, his immediate supervisor, and MSHA Inspector Norris, his
concern that if Self would complete the crosscut between the No.
3 and No. 2 entries and continue into the No. 2 entry, he would
then be cutting into an unbolted area.

     Section 105(c) sets forth the following language regarding
activities that are protected under the Act: "[making] a
complaint notifying ... the operator's agent ... of an alleged
danger or safety violation in a coal ... mine ... ."  The
Legislative History of the Act manifests Congress' intent that
Section 105(c) be given a broad construction.  S. Rep. No. 95-
181, 95th Cong., 1st Sess., at 35 & 36 (1977) ["S. Rep."],
reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 623 (1978) ["Leg.
Hist."] cited with approval in Pasula, supra at 2791 -2792)
Thus, broadly construing Section 105(c), I find that McGill's
communications of safety concerns to Inspector Norris and to
Harless are protected under the Act.  Accordingly, I find that it
has been established that on July 13, McGill did engage in
protected activities.

          2.  Adverse action.

     The record unequivocally establishes that on July 13
Harless, after a confrontation with McGill, stopped his
(McGill's) time, and intended to fire him permanently.  Harless'
action in stopping McGill's time led directly to a 24-48 hearing,
which was a union mandated first step in the grievance
disciplinary process.  Further, according to McGill, and not
subsequently contradicted by Harless, the latter had told him, at
the confrontation on July 13, that he was "fired".[6]  Thus I
find that it has been established that U.S. Steel took action
adverse to McGill.

           3.  The Adverse Action Was Motivated "in Any Part" by
               McGill's Protected Activities.

     Harless, who took the action adverse to McGill on July 13,
testified, in essence, that he had not gotten angry when McGill
told him, on the morning of July 13, not to cut into the No. 2
entry because it was unsupported, and he was not concerned when
he saw McGill sitting on a bench with the inspector in the dinner
hole, because people speak to inspectors all the time.  He
explained, in essence, that, in intending to fire McGill and in
stopping his time, he was motivated by McGill's
"insubordination", i.e., refusing to stop when ordered by him
(Harless), and cursing at him (Harless).  Also, in essence,
Harless indicated that on July 13, he got angry only when he saw
McGill carrying one curtain.

     However, I take cognizance of the following uncontested
facts: that at approximately 10:30 a.m., on July 13, McGill told
Harless that if he would cut from the entry No. 3 through to
entry, No. 2 entry, he would be cutting into a place that was not
completely bolted; that shortly thereafter McGill asked Inspector
Norris, at the dinner hole, whether there would be a violation if
a miner would cut into a place that had not been completely
bolted; that Harless observed McGill sitting next to the
inspector on a bench in the dinner hole; and that at 11:26 a.m.
that same day, Harless, intending to fire McGill, permanently
stopped his time.  Also, I note that Harless did not specifically
rebut McGill's testimony that on July 13, when he told him that
he would be cutting into a place not completely bolted, Harless
said it was his f---ing section and he would run it like he
wanted to.  Thus, primarily based upon the coincidence in time
between (1) McGill's' protected verbal communication to Harless,
which was accompanied by some evidence of animus on the part of
Harless, followed shortly thereafter by Harless observing McGill
talking to the inspector; and (2) Harless' firing of McGill less
than an hour later, I find that the Secretary has established
that Harless' adverse action taken against McGill was motivated
"in any part" by McGill's protected activities.

     IV.  U.S. Steel's Defense

     I take cognizance, as discussed above, of the existence of
some evidence of some degree of animus by Harless towards McGill
regarding the latter's protected activities under the Act.
However, it is significant to note that Bynum, Self's helper on
the miner, testified that when it was brought to Harless'
attention that they would be cutting into an unpinned area,
Harless was not angry and did not issue any threats.  Indeed, the
record does not contain any evidence of any animus by Harless, or
adverse action taken by him directed against either Bynum or
Self, the miner operator.  In the same fashion Norris, who was
McGill's partner on the bolter, testified that he told Harless
that "... you're cutting into an unpinned place, such as Terry
also said.  And this is illegal," and Harless stated that "... it
was his f---ing section; he'd run it any f---ing way he wanted
to."  (Tr. 141.)  Later, Harless observed both McGill and Norris
sitting with the inspector in the dinner hole.  However,
significantly, there is no evidence in the record that Harless
directed any animus toward Norris or took any adverse action
against him as a consequence of his having heard Norris express
safety concerns, and having observed him talking to the
inspector.

     Further, most significantly, although Harless' action
adverse to McGill shortly followed McGill's protected activities,
i.e., voicing safety concerns to Harless and the inspector, it
was McGill's actions that were not protected under the Act, i.e.,
threatening to file a union grievance, that were immediately
followed by Harless' stopping his time.   Additionally, according
to McGill, Harless' cursing him and telling him that "you're a
fired son of a b---h, ... your time stops now", immediately
followed McGill's statement to Harless that he was going to get
the mine committee chairman, Hank Keaton.  It is not for this
forum to decide whether, in the light of this sequence of events
and actions, McGill has any redress under the National Labor
Relations Act.  However, considering (1) this scenario and
sequence of events; (2) testimony of Norris and McGill regarding
Harless' previous statements to them expressing displeasure with
having union members on his section and; (3) the unrebutted
testimony of Harless, whose demeanor I observed and found to be
truthful in his testimony on this point, that McGill refused to
stop walking away when ordered to do so by Harless, I find that
although Harless' adverse action taken against McGill on July 13
was motivated in any part by McGill's protected activities,
Harless would have taken the adverse action against McGill, based
on McGill's actions that are not within the perview of those
protected by the Act.  Accordingly, I find that U.S. Steel has
prevailed in its affirmative defense.  Within the above framework
of evidence, I conclude that the Secretary has not established
that U.S. Steel discriminated against McGill in violation of
Section 105(c) of the Act.

**FOOTNOTES**

     [1]:  On  October  16,  2000,  the  Secretary  filed  a Motion
Seeking  Reconsideration of numerous evidentiary rulings made  at
the hearing of this matter.

      At the  hearing  U.S.  Steel  had objected to introduction, by the
 Secretary, of various exhibits and the  objections were sustained.  The
 basis  for each of the rulings was set forth  in  the  record  of  this
 matter,  and need not be reiterated.  I have evaluated the motion filed
 by the Secretary,  but  find there is no need to reconsider the initial
 rulings set forth in the record.  Accordingly, the motion to reconsider
 is denied.

      [2]:  On June 11 or June 12 when McGill bolted the face of the No. 2
 entry, he asked Harless why he had not had the area "squar[ed] up" (Tr.
 218) so it could be pinned  properly,  and  Harless responded by saying
 that it was his "f---ing section ... and he'll  run  it  like he wanted
 to".  (Tr. 219.)

      [3]:  According  to  McGill  there  was  about  a dozen curtains  to
 transport.

      [4]:  The following day, July 14, Self cut into the No. 2 entry.

      [5]:  Nogosky testified that in deciding to fire  McGill,  he relied
 on  the  stories  presented by Harless and McGill at the 24-48 hearing,
 and also his review  of  their  personnel  files.   In contrast, in his
 deposition  he  testified  that  he  relied on Harless' testimony,  the
 nature of the events, and nothing else.

      [6]:  Subsequently, Rick Nogosky, the  superintendent  at  the  mine
 made  a  decision  after  the  24-48  union  hearing  to uphold Harless
 discharge of McGill.



                              ORDER

     It is ORDERED that the Complaint filed in this case be DISMISSED,
and that this case be DISMISSED.


                              Avram Weisberger
                              Administrative Law Judge


Distribution: (Certified Mail)

William Lawson, Esq., U.S. Department of Labor, Office of the
Solicitor, 150 Chambers Bldg., 100 Centerview Drive, Birmingham,
AL 35216

Anthony Jeselnik, Esq., U.S. Steel Mining Company, Law Department,
600 Grant Street, Pittsburgh, PA 15219-2749


/sct