Lakehead Constructors

Plain-English summary

Nineteen workers referred by a plumbers and pipefitters union attended MSHA safety training before beginning short-term construction and maintenance work at a mine site. They claimed Lakehead Constructors discriminated against them by refusing to pay their regular wages for the training. Judge Michael E. Zielinski held that the workers were applicants for employment, not “miners,” when they attended the training, and that Lakehead was not performing work at a mine site on the training date. The judge dismissed the discrimination complaints, while noting that the Mine Act does not resolve private wage disputes.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 802(d), 802(g), 815(c), 815(c)(2), and 825(b)
• Outcome: The consolidated discrimination complaints were dismissed.
• Key point: Mine Act training-pay protections apply to miners, and applicants who attend qualifying training before employment and before work at a mine site are not miners for that purpose.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

              OFFICE OF ADMINISTRATIVE LAW JUDGES
                       2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA 22041

                         May 18, 2001

COMPLAINANTS: : DISCRIMINATION PROCEEDINGS
:
JOHN SASSE, : Docket No. LAKE 2000-150-DM
: NC MD 00-07
ERNEST SHIMPA, : Docket No. LAKE 2000-151-DM
: NC MD 00-08
JOEL LAWRENCE, : Docket No. LAKE 2000-152-DM
: NC MD 00-09
KERRY GERSICH, : Docket No. LAKE 2000-153-DM
: NC MD 00-10
NOLAN POITRA, : Docket No. LAKE 2000-154-DM
: NC MD 00-11
ALAN POITRA, : Docket No. LAKE 2000-155-DM
: NC MD 00-12
DEAN BREKKE, : Docket No. LAKE 2000-156-DM
: NC MD 00-13
KEVIN FIDELDY, : Docket No. LAKE 2000-157-DM
: NC MD 00-14
DONALD RAGSTED, : Docket No. LAKE 2000-158-DM
: NC MD 00-15
PAUL HAFF, : Docket No. LAKE 2000-159-DM
: NC MD 00-17
JEFF GOVI, : Docket No. LAKE 2000-160-DM
: NC MD 00-18
RANDY HUSETH, : Docket No. LAKE 2000-161-DM
: NC MD 00-19
RANDY GREEN, : Docket No. LAKE 2000-162-DM
: NC MD 00-20
LANCE OMERSA, : Docket No. LAKE 2000-163-DM
: NC MD 00-21
JEFF GRAVES, : Docket No. LAKE 2000-164-DM
: NC MD 00-22
DOUG HOFFET, : Docket No. LAKE 2000-165-DM
: NC MD 00-27
SHAWN MORGAN, : Docket No. LAKE 2000-168-DM
: NC MD 00-30
FRED MILLER, : Docket No. LAKE 2000-169-DM
: NC MD 00-31

                                525

Page 2

RHYS G. LAYTON, : Docket No. LAKE 2000-170-DM
: NC MD 00-39
v. :
:
LAKEHEAD CONSTRUCTORS, : Minntac Plant
Respondent : Mine ID 21-00820 AQF

                                        DECISION

Appearances: Thomas F. Andrew, Esq., Brown, Andrew & Signorelli, P.A., Duluth,
Minnesota, for Complainants,
Joseph J. Mihalek, Esq., Fryberger, Buchanan, Smith & Frederick, P.A.,
Duluth, Minnesota, for Respondent.

Before Judge Zielinski

    These cases are before me on complaints of discrimination under Section 105(c) of the

Federal Mine Safety and Health Act of 1977 (the “Act”). 30 U.S.C. § 815(c). A hearing was
held on March 15, 2001, in Duluth, Minnesota. Following receipt of the hearing transcript, the
parties submitted briefs. For the reasons set forth below, I find that Lakehead did not
discriminate against the Complainants and dismiss the complaints.

The Controversy

   The Complainants were referred by their union, Plumbers & Pipefitters Local Union

589 (Local 589), to perform work for Lakehead Constructors. The job was at a mine site and

was to begin on January 4, 2000. In order to satisfy the training requirements of the Act they
attended a Mine Safety and Health Administration (MSHA) certified training course on January
3, 2000, which lasted four hours.1 They contend that 30 U.S.C. § 825(b)2 requires that they be
paid by Lakehead at their regular hourly rate for attending the training.

     1
            Complainant Layton attended a three hour training session on February 25, 2000.
     2
            30 U.S.C. § 825(b) provides:

             Any health and safety training provided under subsection (a) of this
     section shall be provided during normal working hours. Miners shall be paid at
     their normal rate of compensation while they take such training, and new miners
     shall be paid at their starting wage rate when they take the new miner training. If
     such training shall be given at a location other than the normal place of work,
     miners shall also be compensated for the additional costs they may incur in
     attending such training sessions.

                                               526

Page 3

    Lakehead contends that Complainants were not “miners” as defined by the Act at the

time of the training and, consequently, are not entitled to compensation. When Lakehead did not
pay Complainants for attending the training, they filed complaints of discrimination with MSHA,
pursuant to 30 U.S.C. § 815(c)(2). MSHA investigated the complaints, determined that
Lakehead had not violated the Act and notified Complainants of their right to file an action on
their own behalf before the Commission. These complaints followed.

                                      Findings of Fact

    Lakehead Constructors is a heavy industrial contractor that performs construction and

maintenance work for various companies, some of which operate mines. When the work is
performed at a mine site, Lakehead is an independent contractor subject to the Act. 30 U.S.C.
§ 802(d). Any of its employees working at a mine site are miners who must be trained, as
required by the Act. Many of Lakehead’s jobs are of short duration, e.g., two to three weeks,
and it does not maintain a large permanent work force. In order to obtain tradesmen, it contracts
with local unions, including Local 589.3 The contracts contain exclusive hiring clauses that
require Lakehead to contact the union for tradesmen that it will need for a particular job.4 The
union then identifies members who are available and meet the qualifications of workers needed
and refers the applicants to Lakehead. Lakehead may reject a referred applicant for any non-
discriminatory reason.5

     Prior to January 2000, Lakehead had provided MSHA training to tradesmen when

required and paid them at their regular hourly rate for the time spent in training sessions. It
passed the cost of these payments through to the mining companies it had contracted to perform
work for. By early 1999, however, some companies were beginning to object to paying for the
cost of training. Specifically, U.S. Steel Group, a Unit of USX Corporation (USX), advised
Lakehead, by letter dated March 18, 1999, that it expected “that all employees working at our
plant site have previously received all necessary MSHA certification prior to entering our
facility,” the import being that USX would no longer pay for training costs. USX’s position was
based on cost containment considerations and its belief that unions were being compensated
separately for training expenses through contributions to various fringe benefit funds. Lakehead
advised USX that changes to the existing training compensation practice could not be
implemented prior to expiration of its union contracts in June of 1999.

   Lakehead’s president and chief executive officer, Dennis Hallberg, informed the

tradesmen unions of USX’s position and warned them, prior to expiration of the contracts, that it

   3
          Lakehead is a party to a collective bargaining agreement entitled National

Maintenance Agreement (NMA), which incorporates the provisions of Local 589's contract with
the Iron Range Plumbing Contractors Association.
4
Article V, Section 1 of the contract with Local 589, provides that the union “shall
be the exclusive source of referrals of applicants for employment.” Resp. Ex. 13, at p. 5.
5
Article V, Section 6 of the contract provides, inter alia, that the “Employer retains
the right to reject any job applicant referred by the Union.” Id. at p. 6

                                             527

Page 4

would soon come to pass that Lakehead would no longer be reimbursed for payments made to
tradesmen attending MSHA training and that it would not assume that cost. Rather, it would
insist that tradesmen referred by the unions have all necessary MSHA training as a condition of
eligibility for employment with Lakehead for any work on mine properties. Lakehead attempted
to negotiate provisions in new contracts covering the post-June, 1999, period that addressed the
issues raised by USX. It was successful in securing agreement with several local unions.6
However, Lakehead was unable to reach an agreement with Local 589 on the training issue and
the current contract provides only that the parties will attempt to negotiate a supplemental
contractual provision regarding training. In many discussions between Hallberg and John
Grahek, Local 589's business manager, Lakehead consistently took the position that it would
insist that tradesmen referred by Local 589 for work at a mine site have current MSHA training
certificates as a condition of employment and Local 589 insisted that miners be paid for time
spent in training.

    The present controversy had its origin on December 28, 1999, when Lakehead’s director

of human resources, Brian Johnson, called Grahek and informed him that union members were
needed to perform work during a 2-3 week shutdown at USX’s Minntac plant beginning on
January 4, 2000. Because the plant was a mine site, he advised Grahek that the workers referred
would have to have current MSHA training certificates. Grahek was unable to locate enough
certified workers, so arrangements were made to conduct training sessions. Local 589 did not
have a certified MSHA trainer. Lakehead agreed to provide one of its certified trainers to
conduct the sessions. Grahek offered use of the Local 589 union hall, because it was more
convenient for the prospective trainees. Local 589 handled all of the administrative tasks
associated with the training. It determined who to invite to the training sessions and notified
those members of the time and location. Lakehead did not know who had been invited to, or
who would attend, the training sessions until they appeared for training. While Local 589
instructed the Complainants to attend the sessions in order to qualify to work at USX’s mine site,
they were not obligated to attend the training sessions. Likewise, those who attended were not
obligated to work for Lakehead and could use their MSHA certification to work at any mine site.

    While there are some minor disagreements over the language used during the discussions

about the training sessions, the lines of this controversy were clearly drawn prior to the
January 3, 2000, session. As Grahek acknowledged on cross-examination, prior to the training
session, he knew that Lakehead was not going to pay the union members for attending the
training session. He informed union members attending that if Lakehead did not pay them, that a
grievance would be filed. Lakehead, conversely, knew that Local 589 would file a grievance and

   6
            Under the typical agreement, the unions would establish MSHA training

programs and provide training to their members and Lakehead would make payments based
upon the number of hours union members worked for it. For the first year of the five year
contracts Lakehead would contribute $0.05 per hour worked by a union member to a union
training fund. The payments would increase by $0.05 per hour each year, reaching $0.25 per
hour worked in the fifth year of the contract. The payments could be used at the union’s
discretion to cover training costs and/or compensate members for time spent in training.

                                           528

Page 5

take every step it could to secure payment of its members.7

    Union members who responded affirmatively to Local 589's solicitation of workers for

the Lakehead/USX job, reported to the union hall prior to the 7:00 am start of the January 3,
2000 training session. There they received from Grahek a referral slip for the Lakehead job and
turned it over to a union steward for that job. Steven Jones, Lakehead’s safety manger, who
conducted the training session distributed certain forms required of prospective Lakehead
employees.8 Complainants filled out and executed the forms and returned them to Jones.9 He
was the only representative of Lakehead at the training session and was not authorized to hire
Lakehead employees. At the end of the session, Jones issued training certificates to
Complainants. The following morning they reported to USX’s Minntac plant and began working
on Lakehead’s project.

                                  Conclusions of Law

    Judicial and Commission precedent frame the ultimate issue in these cases as being

whether Complainants were miners at the time they attended the MSHA training sessions. In
Emery Mining Corp. v. Secretary of Labor, 783 F.2d 155 (10th Cir. 1986), the court reversed a
Commission decision requiring payment of persons who voluntarily obtained MSHA training
prior to becoming employed as miners by Emery Mining Corporation. The claimants in that
case had contacted Emery directly or a job placement service and had been advised to secure
MSHA training to enhance their chances of employment. They obtained the training at their
own expense, were subsequently hired by Emery and sought compensation for time spent in
training and other expenses. The court held that the clear wording of the Act restricted
entitlement to compensation to “miners” and, since it was undisputed that the complainants there

   7
            Complainants filed a grievance under the NMA that eventually resulted in a

decision that they were entitled to be paid for the hours spent in MSHA training. Lakehead has
not sought judicial review of the decision and Complainants have not taken any steps to enforce
it. Lakehead later unilaterally decided to give each of the complainants two hours of pay. As a
result of those payments the present claims are reduced to two hours’ pay (one hour for
Complainant Layton). Lakehead had asserted in its answer to the petition that the payments were
in settlement of the NMA grievances and these claims. However, its president and chief
executive officer testified that the decision to make the payment was voluntary and was not part
of an agreement to settle any claims.

   8
          The forms were a Dept. of the Treasury Form W-4, a U.S. Dept. of Justice

Immigration and Naturalization Service Employment Eligibility Verification, Lakehead’s New
Employee Registration form, Lakehead’s Alcohol/Drug Testing Program Acknowledgment
Form, and, Lakehead’s Disciplinary Policy & Procedure Acknowledgment Form.

   9
            Section 3 provided that required forms were to be completed “prior to being

hired.” Resp. Ex. 13, at p 5.

                                          529

Page 6

were not “miners”10 or employed by Emery at the time they obtained the training, Emery had no
obligation under the Act to compensate them.

    Subsequently, in Westmoreland Coal Co., 11 FMSHRC 960 (June 1989), the

Commission held that individuals who had been laid off by Westmoreland Coal Company and
who Westmoreland advised would enhance their chances of being recalled if they obtained
MSHA training were not entitled to compensation for time spent in training prior to being
recalled. The Commission concluded that its prior precedent to the effect that individuals were
entitled to such compensation if the operator relied upon the training they had obtained to hire or
recall them had been overruled by Emery. It rejected the Secretary’s argument in that case that
the complainants’ “established relationship with the operator”, i.e., their prior employment and
their recall rights under a union contract, distinguished their case from Emery. Rather, the
Commission found “no persuasive basis upon which to distinguish this case from the Tenth
Circuit’s decision in Emery and in the absence of contrary judicial precedent we will follow that
decision.” Id. At 964.

    Complainants attempt to distinguish their cases from Emery and Westmoreland by

arguing that they had been hired by Lakehead prior to commencement of the training sessions.
Complainant Haff testified that he felt that he was hired by Lakehead when Grahek gave him a
referral slip. Complainant Fideldy testified that he felt that he was hired by Lakehead when he
gave his introduction slip to his union steward. Complainants’ attempt to distinguish themselves
from the complainants in Emery and Westmoreland fails, both factually and legally.

    As noted above, Local 589's contract clearly          gives it the exclusive right to refer

“applicants for employment,” not the right to determine who will be employed by Lakehead,
which retained the contractual “right to reject any job applicant referred by the Union.” Neither
Haff, nor Fideldy, had spoken to anyone associated with Lakehead up to the time they claim to
have been hired. At that time, Lakehead knew nothing about them and did not know that they
had been referred as applicants for employment. Lakehead’s only representative at the training
sessions had no hiring authority.11 While complainants filled out employment forms, the forms
are required prior to commencement of employment with Lakehead and Local 589's contract
clearly states that required forms must be completed “prior to being hired.” Complainants were
applicants for employment at the time they attended the training sessions and were fulfilling a
qualification for employment with Lakehead to work at USX’s mine site. Like the applicants in
Emery, they were not miners at the time and are not entitled to compensation for the time spent

   10
          The Act defines a “miner” as “any individual working in a coal or other mine.”

30 U.S.C. § 802(g).
11
Complainants argue that Jones should be found to have had hiring authority
because the training process was virtually the same as it was prior to January 2000 and union
members had been paid for attending training in the past. That history, however, does not
evidence that Jones had hiring authority at any time. The unrebutted testimony of Lakehead’s
president and chief executive officer, its director of human resources and Jones himself,
established that he had no authority to hire Lakehead employees.

                                            530

Page 7

in training.

    Even if they had become employees of Lakehead at the beginning of the training

sessions, that would not bring them within the definition of miners. Lakehead is not a mining
company. It is an independent contractor subject to the Act only when it performs work at a
mine site. There is no evidence that Lakehead was performing any work at a mine site on
January 3, 2000, the date of the first training session. As the Commission reiterated in
Westmoreland, “the Mine Act is a health and safety statute, not an employment statute.”
11 FMSHRC at 964 (citing, Peabody Coal Co., 7 FMSHRC 1357 (Sept. 1985) and Jim Walter
Resources, 7 FMSHRC 1348 (Sept. 1985), aff’d sub nom, Brock v. Peabody Coal Co., 822 F.2d
1134 (D.C.Cir. 1987)). Rights bestowed and obligations mandated by the Act are not to be
determined through interpretation of private contractual agreements, such as employment or
collective bargaining contracts. Id.12 As in Peabody, the question of whether complainants have
a claim for wages based upon their claimed status as employees, is essentially “of a private,
contractual nature . . . [and is] appropriately resolved by the grievance-arbitration process.”
Peabody, 7 FMSHRC at 1364. The instant dispute was, indeed, resolved in complainants’ favor
through the grievance process under the National Maintenance Agreement. See n. 7, supra.

    I find no reason to distinguish the claims here from those in Emery and Westmoreland

and, in the continued absence of contrary judicial opinions and the failure by Congress or the
Secretary to address the issue, hold that the Complainants were not “miners” at the time they
attended the training and are not entitled to compensation under the Act.

    12
           See also, Brock v. Peabody Coal Co., 822 F.2d at 1149, n. 54 (“We have no

reason to disagree with the statement by the court in National Indus. Sand Ass’n [v. Marshall,
601 F.2d 689 (3rd Cir. 1979)] that ‘the statute looks to whether one works in a mine, not whether
one is an employee or nonemployee or whether one is involved in extraction or nonextraction
operations.’ 601 F.2d at 704 (emphasis in original).”).

                                           531

Page 8

                                           Order

   Based upon the foregoing, Complainants’ claims of discrimination are dismissed.13


                                          Michael E. Zielinski
                                          Administrative Law Judge

Distribution:

Thomas F. Andrew, Esq., Brown, Andrew & Signorelli, P.A., 300 Alworth Bldg., Duluth, MN
55802 (Certified Mail)

Joseph J. Mihalek, Esq., Teresa O’Toole, Esq., 700 Lonsdale Building, 302 West Superior
Street, Duluth, MN 55802 (Certified Mail)

/mh

   13
             Resp. Ex. 3 purports to be a copy of a letter, dated November 22, 1999, from an

attorney to an official of another local union, Painters Local 106. It discusses Lakehead’s
position of requiring current MSHA certifications for workers referred for employment.
Complainants objected to introduction of the letter on grounds of relevance and attorney-client
privilege. Respondent claims the letter is relevant and that the privilege has not been properly
asserted and/or has been waived. There is no need to resolve the privilege issues because the
letter is not probative of any factual issue in these cases. While it discusses the ultimate issue
presented here, there is no evidence connecting it to any party in these cases. It has not been
considered in reaching this decision.

                                            532