Northshore Mining Company

Plain-English summary

Paul Landreville alleged that Northshore Mining terminated him because he raised electrical and other safety concerns at its Minnesota taconite mine. Northshore said it terminated him for a serious lockout failure, dishonesty, unsafe work, and other performance problems. Judge Irwin Schroeder found that Landreville established an initial case based on his safety activity and the timing of the termination, but Northshore showed a documented, independent business justification after investigating the incident and giving him an opportunity to respond. The petition was dismissed because the evidence did not show that the stated reasons were a pretext for discrimination.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(3)
• Outcome: The discrimination petition was dismissed.
• Key point: Protected safety complaints and close timing did not overcome a credible, independently sufficient business justification for termination.

Full text (FMSHRC public release)

NORTHSHORE MINING COMPANY -- December 3, 2003

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001

December 3, 2003

PAUL LANDREVILLE, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. LAKE 2003-55-DM
v. : NC MD 02-07
:
NORTHSHORE MINING COMPANY, : North Shore Mine
Respondent : Mine ID 21-00209

DECISION

Appearances:  Henry Moore, Esq., Buchanan Ingersoll, P.C., Pittsburgh, Pennsylvania, for the Respondent.
Paul Landreville, Virginia, Minnesota, pro se.

Before:  Judge Schroeder

This case is before me on a Petition under Section 105(c)(3) of the Mine Safety Act by a
mine former employee alleging discrimination as a result of his exercise of rights under the Mine
Safety Act. A hearing was held in Duluth, Minnesota on June 4-5, and continued on July 14-15,
2003.1

INTRODUCTION

While a claim of discrimination under the Mine Safety Act is usually driven by the
particular facts of the case, the legal pattern through which those facts are evaluated is important.
In a case involving a claim of discrimination under the Mine Safety Act, the complainant bears
the initial burden of showing (1) that he was employed as a miner, (2) that he exercised rights
protected by the Mine Safety Act, and (3) that he suffered adverse action from his employer in
circumstances in which it is reasonable to infer that the exercise of rights under the Mine Safety
Act motivated in some substantial part the adverse action. When these three elements have been
shown by competent evidence, the burden shifts to the respondent to show (1) that the
complainant's evidence is defective, and/or (2) that any adverse action suffered by the
complainant could reasonably have been motivated at least in part by reasons unrelated to the
exercise of rights under the Mine Safety Act. When these two elements have been shown by
competent evidence, the burden shifts back to the complainant to show that the motivation for
the adverse action other than the exercise of rights protected by the Mine Safety Act was merely
pretext. Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (1981);
Sorenson v. Intermountain Mine Services, 17 FMSHRC 145 (Feb. 1995).

In this case, many of the necessary factual elements are not in dispute. What is in dispute
is the reason for the adverse action taken against Mr. Landreville by NorthShore Mining;
Mr. Landreville contending his termination was triggered by his pattern of complaints on safety
issues, while NorthShore contends he committed serious work-rule infractions and generally
performed as an inadequate employee. I note at the outset that my consideration of
Mr. Landreville's contentions represent the fourth opportunity he has had to argue these points.
He has unsuccessfully appealed to an arbitrator under his union contract, to the Minnesota
Unemployment Compensation Board, and to the Mine Safety and Health Administration.

Following the hearing, the parties were given an opportunity for oral and written argument.
After careful study of the record and consideration of the arguments made concerning that record,
I make the following findings and conclusions:

FINDINGS OF FACT

Paul Landreville was employed by Northshore Mining Company for the period June 1998
to June 2002. For much of that period he was an electrician that worked with a crew of
electricians to construct and maintain electrical infrastructure to an open pit taconite mine. On
June 5, 2002, his employment by Northshore Mining Company was terminated. During the
course of his employment as a miner he raised safety issues ( involving electrical and other
crafts) with his immediate supervisors, with mine management and with personnel at the Mine
Safety and Health Administration. He asserts his termination was the result of hostility toward
him created by his attempts to raise safety issues.

Mr. Landreville was hired in June 1998 at the Silver Bay Processing Plant as a
maintenance technician (Tr. 86; N-12, p.31). He had worked for United States Steel Company at
its Minntac facility for two years as a millwright and electrician (Tr. 86: N-12, pp.4, 32). Minntac
is a large taconite mine with an associated pellet processing facility similar to Northshore
(Tr. 86). While at Minntac, he had experience with high voltage and high voltage switch gear
(Tr. 87). While at Silver Bay, Mr. Landreville sought to transfer to the Babbitt facility (Tr. 64,
564). This required an interview with a group of hourly and management employees from
Babbitt's electrical group (Tr. 782-3). At that time, the electrical group was supervised by
Richard Judnick and the interviewers included hourly electricians Bob Toumela, Scott Eckman
and Terry Sunsdahl (Tr. 784). Mr. Landreville did not receive the position at Babbitt because
these hourly employees did not feel that Mr. Landreville was qualified to perform the job and had
not been truthful in his interview (Tr. 782-3).

At a later date, Mr. Landreville was able to transfer to Babbitt as a production truck driver
(Tr. 65, 87). In approximately the fall of 2001, Mr. Landreville was able to transfer into a
position in the electrical group in the maintenance department (Tr. 65). Initially, he was
supervised by Brad Dahl because Mr. Judnick had been assigned to a special project (Tr. 750; see
also Tr. 84). Mr. Judnick returned to his supervisory duties over the electrical group in October
and November 2001 (Tr. 690).

In the beginning, Mr. Landreville's duties involved essentially "shadowing" another
member of the electrical group (Tr. 248-9, 337). Those miners would perform their day-to-day
tasks and show Mr. Landreville the procedures for performing the jobs safely and ask him if he
had any questions (Tr. 248-9, 364-5, 477). He was not considered generally receptive to the
training and he frequently commented that he had worked on more sophisticated systems at
Silver Bay or that he "knew everything about that" (Tr. 184, 293, 334, 364-5, 478, 684; PL-1;
N-7A, B, E). He also frequently commented that the procedures at Silver Bay and Minntac were
different and better (Tr. 186, 364, 709-10; N 7 A through E).

In early October 2001, there was an incident that resulted in a counseling session for
Mr. Landreville with Mr. Dahl (Tr. 683; N-13). Two hourly employees in the crusher brought it
to Mr. Dahl's attention that Mr. Landreville had been unable to repair a problem another
electrician was able to fix (Tr. 683, 686). During the incident, Mr. Landreville indicated an
unwillingness to solve the problem. During the incident he had taken the time to eat his lunch
and had, at one point, simply sat down without trying to solve the problem (Tr. 302; PL-1; N-13,
pp.1-5). To a supervisor who observed him sitting down, leaning against a piece of equipment, he
appeared to be sleeping, although Mr. Olson, who was the electrician involved, thought he was
just sitting down (Tr. 302, 344; N-13, pp.1, 3). When Mr. Dahl met with Mr. Landreville, he
indicated that he did not need training and said he was training Mr. Olson (Tr. 684: PL-1).
Mr. Olson had, in fact, been the one who corrected the problems that Mr. Landreville did not
(PL-1; N-13, pp.1-5). Mr. Dahl concluded that Mr. Landreville needed more training and he
was assigned again to accompany other electricians for training (Tr. 336, 687; PL-13). He was
not disciplined for these actions.

Mr. Landreville was also counseled by Mr. Judnick at various times about his excessive
use of the telephone (Tr. 767-8; N-13, p.7). Other mine personnel observed this (Tr. 374; N-7E,
p.3), and some complained to Mr. Judnick about Mr. Landreville's use of the telephone (Tr.
768). They also complained about difficulty in reaching him when he was on pit patrol and
complained that he was slow in responding (Tr. 768, 827). He was also reported to tend to leave
jobs for the next shift of electricians (Tr. 294, 372; N-7 A through E). He was not disciplined
for these actions.

A safety work order system has been established by Northshore to permit employees to
submit work orders related to safety issues (Tr. 99, 531). Mr. Landreville submitted two such
orders between October 2001 and the end of May 2002 (Tr. 735-6; N-30). He was told on a
number of occasions to use the system (Tr. 678, 725). Other employees used it far more
frequently (Tr. 735-6; 30). The computer system automatically reminds management
concerning outstanding safety work orders to ensure the work is done (Tr. 531-2, 690).

The program also involves the use of hourly safety coordinators to make safety
inspections and report unsafe conditions to management (Tr. 529-30, 578-9). A portion of the
Northshore Employee Handbook requires that "(e)ach employee must report to his/her
immediate supervisor any unsafe condition, accident, injury, or property damage prior to the end
of their working shift" (N-3A, p.5-1). The safety program also involves regular safety meetings
and training (Tr. 528). It is portrayed as intended to instill in the workforce an attitude or culture
that unsafe conditions are to be reported and corrected (Tr. 535-6). This goal is set out in its
General Safety Rulebook on the first page:

NO JOB IS SO IMPORTANT OR CRITICAL THAT IT CANNOT BE DONE
SAFELY. IF SAFETY WILL BE COMPROMISED, IT IS THE
RESPONSIBILITY OF EACH EMPLOYEE TO STOP THE WORK UNTIL
THE SITUATION CAN BE REMEDIED, i.e., SAFE PRODUCTION. (N-4B,
p.1; see also Tr. 577)

Northshore's approach has achieved substantial results. The Babbitt Mine had not had a
lost time injury for almost three years at the time of the hearing (Tr. 573). It had received
recognition over the last several years by MSHA for its injury free record (Tr. 573-5).

Mr. Landreville has also shown difficulties in following instructions. On May 7, 2002, he
asked for overtime and Mr. Judnick specifically assigned him the job of blowing out the control
cabinets in the crusher building (Tr. 763-4; N-13, p.11). This was a job that needed to be done for
reasons of safety (Tr. 764-5). Instead of performing the job he was assigned, he "air gapped" the
30" motors at the crusher (Tr. 764). He did this job despite the fact that other electricians told
him it was unnecessary (Tr. 430-1,459, 764). He was not disciplined for this infraction.

On May 22, 2002, there was an incident that brought issues with respect to
Mr. Landreville to a head. In the course of normal mine operations, an explosive blast had
occurred that day. The blast damaged some power lines coming out of the west pit feeder in the
pit (Tr. 54, 116, 268, 270; N-16). To enable mining operations to continue with powered
equipment, it was necessary to reconfigure the power in the pit (Tr. 276-7). Prior to the blast, the
power had been supplied from the west pit feeder substation located near the crusher building
(Tr. 53-4; N-16).

Once the damage was discovered, Mr. Landreville locked out&2 the substation as part of
his pit patrol duties; it had already been deenergized before the blast (Tr. 54, 273). In order to
develop a plan of action concerning getting power to the pit equipment, two pit supervisors,
Bernie Barich and Byran Rusco, came to the electricians' room to discuss what would be done
(Tr. 277, 350-1, 462; PL-1). This kind of informal gathering of co-workers appears to be a
regular part of how the electricians at Babbit did their work. Mr. Landreville was familiar with
the practice.

A number of the electricians, including Mr. Landreville, participated in the discussion
(Tr. 278, 350-1, 418). The weight of the evidence is that Mr. Landreville offered a suggestion
that would have resulted in power going to one of the pieces of mining equipment that was
affected (Tr. 118, 184, 513; N-5). Instead, it was decided to bring the power from the south mine
substation so that both a drill and a shovel could be energized (Tr. 280, 350-1, 513-14). This
would involve changing jumpers at the location where the lines for the west pit substation and
the south mine substation met in order to permit power to flow from the south substation
(Tr. 280, 351-2; N-16, pt. C). Mr. Landreville was present in the room as this option was
discussed and the decision made (Tr. 277, 353, 390-1,462, 513-15, 517; -5). Mr. Landreville at
one point denied being present and at another point contended he had been in and out of the room
as the discussion proceeded. It appeared to others that he was present at the critical decision
stage of the discussion and that he understood the discussion as it related to his work
responsibilities as pit patrol. He had a work responsibility to understand the outcome of the
discussion in order to be a safe and responsible member of the electrical team. After the
discussion, the electricians left the room at the same time (Tr. 752).

Following the discussions, Todd Pontinen and Scott Eckman performed the pole
work to accomplish the power rerouting task (Tr. 354). Two sets of cables ran from a three pole
structure midway between the west pit feeder and a switch house for the Number 127 shovel
(Tr. 351; N-16) Jumpers were moved, permitting power to flow from the south mine substation
line to two taps, including the switch house for the 127 shovel and a second nearby switch house
to which a drill cable were connected (Tr. 351,355; N-16). Mr. Pontinen locked out the west pit
substation and the south mine substation before the work was performed (Tr. 354-5, 418). When
Mr. Pontinen and Mr. Eckman switched the cables, they used a bucket truck to lift Mr. Pontinen
up to the power cables (Tr. 354). While they were using it, it was parked jutting out into the
mine road (Tr. 357, 419). It was a distinctive orange color and they put cones around it (Tr. 357).
While they were performing the work, Mr. Landreville passed them in the pit patrol truck
(Tr. 358, 414, 420). He could not help seeing the work in progress and was under a duty to
inquire as to the significance of the work if he did not already understand the significance of the
work.

Before the lock was taken off the south mine substation, Mr. Eckman contacted the
electricians in the pit, including Mr. Landreville, to establish that they were clear of any danger
before power was restored (Tr. 358-9, 402, 420-1). Mr. Landreville acknowledged the call and
gave a response that he was in the clear (Tr. 359, 420-1, 438, 458). The call, at the very least,
should have alerted Mr. Landreville that changes were occurring in the power distribution
network. If he did not understand the significance of the changes, he was under some duty to
inquire. He made no inquiry following the radio call.

Hugo Schulz, the mine's most experienced electrician, was also working in the pit that
day (Tr. 461). He went to the switch house for the 127 shovel to change the rotation on the
motors (Tr. 464). In order to do so, he had to "lock out" the switch house and remove what is
known as a "Kirk key" from the front of the switch house to open the back to check the rotation
(Tr. 465). He performed this operation on both the drill and 127 shovel (Tr. 466). He restored
the switch houses to the condition he found them, i.e., in a condition to provide power to the drill
and shovel (Tr. 466). He then went to the 127 shovel to check the rotation on the electrical
motor there once the power was restored (Tr. 466). When he was there, he noticed that the
shovel did not appear to be energized, while the drill nearby appeared to be, because its lights
were on (Tr. 467). Mr. Schulz inquired of one of the bull gang members who was nearby who
told him Mr. Landreville had been working on the shovel (Tr. 468).3

Mr. Schulz investigated and discovered the cable for the shovel had been disconnected
from the junction box near the shovel (Tr. 468). Mr. Schulz then called Mr. Landreville on the
radio and Mr. Landreville apparently told him that he had the Kirk key for the switch house
(Tr. 470). Mr. Schulz heard a response that was broken but sounded like "got key" (Tr. 470).
At the time of this radio conversation, Mr. Olson, who was working in the crusher that day,
observed Mr. Landreville driving near the crusher and saw him turn around and head in the
direction of the switch house (Tr. 284-5; see also Tr. 471-2). Mr. Schulz drove from the shovel
to the switch house (Tr. 470; N-16). As he passed the crusher, he saw Mr. Landreville come from
the direction of the switch house (Tr. 471). Mr. Schulz would have had a longer drive to the
switch house than Mr. Landreville (Tr. 470 - 75).4 When Mr. Schulz got to the switch house, it
had been locked out (Tr. 471). This was the condition of the switch house that Mr. Landreville
apparently described in the radio call with Mr. Scholtz.

Mr. Scholtz later learned from Mr. Olson about Mr. Landreville's reversal of direction at
the time of the radio call and concluded that Mr. Landreville had lied about having the key and
also concluded that the cable from the switch house to shovel was energized after it had been
disconnected from the junction box (Tr. 472). He further concluded that Mr. Landreville did not
tell the truth when he responded on the radio that he had the key (Tr. 473-4). Mr. Scholtz
believed that the energized high voltage cable laying on the ground presented a significant safety
hazard and was concerned about the nearby presence of the bull gang 100 feet away and the fact
that a crew would be moving the shovel (Tr. 472).

It is standard operating procedure before working on a cable to lock power out at the
source closest to it to minimize the risk of the cable being reenergized from any source
(Tr. 285-6, 288, 375, 377, 425, 474). It is a procedure that Mr. Landreville had been trained on
by the other electricians when he had accompanied them and it was a procedure he had
performed (Tr. 288, 377, 425, 475, 502). Mr. Scholtz was concerned about the incident because
of the hazard involved and discussed it with Mr. Judnick, his supervisor (Tr. 475). Mr. Judnick
discussed the matter with Mr. Landreville that day, along with a number of other issues about
Mr. Landreville's work performance (Tr. 756-61). Mr. Landreville admitted that he did not lock
out the switch house (Tr. 758). Although Mr. Judnick did not direct Mr. Landreville to report
the incident in the log book before he left for the day and did not tell him what to write
(Tr. 758), Mr. Landreville made an entry in the logbook (PL-6). Mr. Landreville wrote:

Hookup to unit (I dropped power @ crusher west feeder put my safety
lock on & opened up a box behind shovel with the switch house still in. This was
wrong. I should have not relied only on the feeder being locked out but should
have opened up switch house too.) The feeder can be energized from other
sources by moving jumpers (PL-6).

On the morning of May 23, Mr. Dahl was contacted by several of the electricians who
requested a meeting to discuss their concern with regard to the incident (Tr. 290, 360-1, 424-5,
672). Mr. Dahl contacted Carl Kerschen, Senior Area Manger for Human Resources, at his
office in Silver Bay (Tr. 155, 673). Mr. Kerschen met with the electricians on the afternoon on
May 23. Mr. Landreville was not working that day and did not attend the meeting (Tr. 159). He
was not scheduled to return to work until May 28 (Tr. 159). In Mr. Kerschen's years of
experience in human relations, for employees to request such a meeting was highly unusual
(Tr. 157).

When Mr. Kerschen met with the electricians and heard their concerns for their safety and
experiences with Mr. Landreville's work performance, he decided to have a complete
investigation of the incident done by Kimball Alvey, Northshore's Area Manager for Safety and
Loss Control (Tr. 158). Mr. Alvey had many years of experience working with MSHA and had
been a special investigator for MSHA for several years and had conducted accident, Section
105(c), and Section 110 ) investigations (Tr. 158, 561). As part of the investigation,
Mr. Alvey interviewed the electricians and Mr. Landreville. In addition, Mr. Kerschen reviewed
Mr. Landreville's personnel file, which contained references to some of the previous incidents
such as the one in the crusher in October 2001 (Tr. 162; N-12, p.166). He also asked for any
other notes that Mr. Dahl and Mr. Judnick might have so he could get an accurate picture of
Mr. Landreville as an employee (Tr. 168-9). Among other things, this indicated that on at least
five separate occasions, going back to when Mr. Landreville was at Silver Bay, he had been
counseled about his work performance (N-1; N-12, pp.14, 15, 23, 24, 25; N-13, p.7; PL-1 ).

Mr. Kerschen asked Mr. Judnick to contact Mr. Landreville to schedule a meeting on
Tuesday, May 28, the day Mr. Landreville was scheduled to return to work in order to hear his
side of the story (Tr. 159). Mr. Judnick advised him that he was suspended from work pending
completion of Northshore's investigation (Tr. 160). Mr. Landreville had two telephone
conversations with Mr. Judnick before and after his meeting with Mr. Kerschen (Tr. 775-6; N-8).
Mr. Judnick regarded some of Mr. Landreville's comments in their conversations as threats
because Mr. Landreville said if he was fired he would not be the only one (Tr. 777). Mr. Judnick
construed this as a threat because he thought Mr. Landreville might fabricate accusations against
himself and others (Tr. 777). Mr. Judnick reported the conversations to Mr. Kerschen and to
Mike Johnson, Mine Manager of Babbitt Mine (Tr. 161).

During various meetings during this time, with Mr. Judnick and Mr. Kerschen,
Mr. Landreville raised safety concerns (Tr. 161). Although they were unrelated to the incident
on May 22, Northshore tried to ascertain the nature of his concerns and correct them (Tr. 161).
To that end, they met with him on June 3 and developed a list of safety issues in discussion with
Mr. Landreville (Tr. 161, 568, 603, 606,675). They included the following:

1. Overfusing on a heater.

2. Wiring on a crane in the crusher.

3. Practice of holding the undervoltage relay in on the
   shovels and drills when they were started using a
   portable power unit.

4. A light switch in the women's dry.

5. Sodium lights on the shovels.

6. Panels for heaters in the truck shop with wrong color
   wire.

7. Jib crane at top of loading bins-wiring too small.

(Tr. 675; N-26, 27)

This list was given to Bryan Baird, Northshore's safety representative, and an electrician,
Mr. Toumela, to investigate (Tr. 192-3, 568, 675). There had to be follow-up on the item related
to the shovels (Tr. 569; PL-5). Two items did not need corrections; the others were determined
to not be problems or could be remedied by simple corrective measures which could have been
taken by Mr. Landreville in the course of his work, such as by the addition of a piece of colored
tape (Tr. 194-5; PL-5).

After the meeting to gather information on the safety issues, there was a second meeting
with Mr. Johnson, the Mine Manager (Tr. 221). Mr. Landreville's suspension was continued at
that time to investigate the telephone conversations and to complete Mr. Alvey's investigation
(Tr. 221-2).

Mr. Alvey reported his conclusions to Mr. Kerschen following his investigation of the
May 22 incident by memorandum dated June 5, 2002 (Tr. 565; N-2). Mr. Alvey concluded that
failing to lock out the switch house "is a serious safety infraction not only of company rule and
procedures, which cannot be tolerated" (Tr. 568; N-2). Mr. Alvey also reported his conclusions
verbally to Mr. Kerschen before the report was finalized (Tr. 565).

The decision was made to terminate Mr. Landreville's employment (Tr. 162).
Mr. Landreville was advised of this on June 5, 2002, by Mr. Kerschen (Tr. 164).
The decision to discharge Mr. Landreville was based upon a review of Mr. Alvey's investigation,
Mr. Landreville's personnel file, the documentation of Mr. Dahl, the notes concerning the
incidents in the fall of 2001, the statements of the electricians, and the notes of Mr. Judnick
concerning his conversations with Mr. Landreville (Tr. 164-79).

Mr. Kerschen based the decision to discharge Mr. Landreville on the seriousness of the
incident on May 22, upon input from his co-workers relative to his work performance, the fact
that Mr. Landreville had falsely told his supervisors that he had not been trained on the switch
house lock-out procedure, that he had harassed his supervisor creating a hostile workplace in
violation of Company policy, that he had been counseled several times since October 2001, and
had not improved his work performance, and that he had failed to correct unsafe work conditions
(Tr. 180-90; N-1). Mr. Kerschen felt Mr. Landreville was going to continue to be a safety risk
(Tr. 180).

The NorthShore Employee Handbook includes a number of grounds for immediate
termination including violation of commonly accepted safe working practices, falsifying
testimony in an investigation, and sleeping on the job (N-3, p.3-4). A violation of a known safety
practice is sufficient, in and of itself, for termination (Tr. 182). Such misconduct has resulted in
discharges of other employees (Tr. 199). In addition, there was a pattern with Mr. Landreville of
ongoing problems with no improvement (Tr. 188-9).

The Employee Handbook provides a number of remedies for employees when they are
disciplined or terminated (N-3A, pp 2-8 to 2-12,3-3). Mr. Landreville had three options: he could
appeal to the General Manager, to a Peer Review panel or to an arbitrator (N-3A, pp.2-10, 3-3).
He selected arbitration (Tr. 128).

The arbitration was conducted under the national rules of the American Arbitration
Association for the resolution of employment disputes (Tr. 200; N-19). An experienced
arbitrator conducted the arbitration hearing, which lasted three days (Tr. 204; N-17, p.1; N-24).
During the arbitration, Mr. Landreville was entitled to counsel, which Northshore should have
partially paid for (Tr. 128: N-3A, p.3-3). He did not retain counsel (Tr. 128).

The arbitrator's decision was issued on April 4, 2003 (N-17). The arbitrator upheld the
discharge and found there was just cause to terminate Mr. Landreville's employment (N-17, p.7).
The arbitrator further held that there was "no basis to conclude that Respondent's action
represented retaliation for Mr. Landreville's reporting of safety concerns at the mine or for any
other reason" (N-17, p.7). The arbitrator found that Mr. Landreville testified inconsistently and
attempted to divert attention from the facts of the case by raising other issues (N-17, p.8). She
also held that he had lied (N-17, p.8). She held that work in the mine required a high level of
trust and good communication and that the absence of such trust and communication created a
"clear and present danger of future safety concerns." (N-17, p.8). Finally she held that the
incident which supported termination reflects Mr. Landreville's "blatant disregard for standard
operating procedures which, clear to even a novice, could result in a fatality." (N-17, p.8).

By letter dated June 7, 2002, Mr. Landreville made a complaint to MSHA. That letter
raised the following issues:

1. Practice of holding the undervoltage relay in when starting the shovel from a portable
   power unit

2. Cable splicing and the splice kit used for cable splices

3. An insulator on the cable testing machine. (PL-3).

Most of the issues were different from what was raised on June 3 by Mr. Landreville
(PL-3: N-26, 27). An investigation was conducted by MSHA and included personnel from its
technical support group as well as an electrical inspector (Tr. 568-71; PL-2). No citations were
issued although a recommendation, which Northshore followed, was made concerning the
undervoltage relay (Tr. 572; PL-2). In addition, the cable tester which is referenced in the
complaint had been voluntarily red-tagged and taken out of service pending completion of repairs
(Tr. 572; PL-2).

CONCLUSIONS

A complainant in a discrimination case has the burden of showing two essential facts; (1)
that the complainant engaged in activity protected under the Mine Safety Act, and (2) that an
adverse action against the complainant was motivated in some part by the protected activity. The
showing of motivation can be inferential or circumstantial. There is no requirement for a
showing of a "smoking gun." Secretary on behalf of Robinette v. United Castle Coal Co.,
3 FMSHRC 803 (April 1981). Once the miner has made an initial showing of the elements of a
claim of discrimination, the respondent mine operator has the burden of showing either (1) that
no actual protected activity occurred, or (2) that the protected activity did no in any way motivate
the adverse action taken, or (3) that some unprotected action by the complainant was sufficient to
justify the adverse action taken. Haro v. Magma Copper Co. 4 FMSHRC 1935
(November 1982). Unprotected activities which can be used as a defense to a claim of
discrimination are activities such as insubordination, dishonesty, absenteeism, poor or unsafe
work performance, and similar offenses. It is well settled that if an operator's business
justification is reasonable it will be sufficient to sustain the defense. It is not my responsibility to
determine whether I would have reached a different conclusion than that reached by the mine
operator under the same circumstances. Unless the complainant is able to show that the mine
operator's purported reasons are mere pretext, the merits, fairness, or wisdom of the adverse
action taken is beyond my authority. To show that the mine operator's reasons are pretextual, a
complainant must demonstrate that the reasons are implausible or incredible. Secretary on behalf
of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516 ( November 1981). The mine
operator is not required to be right but only to have been reasonable on the record before me.
One of the primary indications that the mine operator acted appropriately under the
circumstances is a properly documented investigation into the facts prior to taking the contested
adverse action.

In this case, the complainant was successful in presenting a prima facie case. It was not
seriously disputed that Mr. Landreville engaged in activity arguably protected under the Mine
Safety Act. Over an extended period, and with greater frequency near the time of his
employment termination, Mr. Landreville pointed out to his supervisors and to his coworkers
what he believed were safety concerns in the work place. He took advantage of the computerized
safety work order system used by Northshore. He pointed out safety concerns, not only in areas
in which he had work responsibilities, but also on other subjects he happened upon in the course
of his work.

Further, the closeness in time between his increased number of safety complaints
and his termination is a reasonable basis upon which it can be inferred that the complaints were
related in some degree to his termination. He did not present anything remotely resembling a
"smoking gun" on improper motivation of Northshore management in taking action against
Mr. Landreville. But for the limited purpose of finding a prima facie case to shift the burden of
proof to the mine operator, the time element would be sufficient. I should note here that the
Northshore management officials that testified were completely credible in both style and content
of their testimony.

The Respondent submitted evidence on the reasons given for the termination of
Mr. Landreville. Northshore contended the termination was based on the following grounds
that are not protected activity under the Mine Safety Act:

1. He committed a serious safety infraction on May 22, 2002, by failing to lock
   out power to the 127 shovel at the nearest power source, the switch house;

2. He engaged in a pattern of behavior in conflict with his employment
   responsibilities that he failed to correct even though counseled repeatedly;

3. He lost the trust of his fellow employees in the electrical team in circumstances
   in which trust is vital to the safe and effective completion of the work;

4. He lied about his training and experience;

5. He made hostile and threatening telephone calls about his immediate
   supervisor.

For two basic reasons, I conclude that Northshore has met its burden of showing that the
termination of Mr. Landreville was not motivated by activity protected under the Mine Safety
Act; first, because of process of termination used by Northshore included a fair and reasonable
investigation of the facts relied upon by Northshore, including an opportunity for Mr. Landreville
to present evidence and question the evidence presented against him, and second, the record
created in this case indicates to me that it is more probable than not that Mr. Landreville
committed a serious safety infraction on May 22, 2002, that would by itself be sufficient to
justify the termination of Mr. Landreville. Each of these reasons needs to be explained in some
greater detail.

Business Justification

In asserting the affirmative defense of independent justification (i.e., showing business
reasons independent of actions protected by the Mine Safety Act) the employer has the burden of
demonstrating that its actions were motivated by information and analysis of facts which
establish independent grounds for the action taken. A reasoned and documented business
judgment, which is beyond the power of this Commission to second guess, forms the basis for a
conclusion that the reasons for the adverse action were beyond the protection of the Mine Safety
Act.5

In this case, the process of making a reasoned and documented business judgment began
with the conversations of Mr. Landreville's coworkers, Hugo Scholtz and Carl Olson, concerning
the cable Mr. Scholtz found on the ground. Rather than take those preliminary conclusions to
immediate action against Mr. Landreville, the coworkers began taking with others about those
conclusions. They accumulated evidence and issues to present to Human Resources. From
Human Resources the conversation went to a trained investigator, Mr. Alvey, who gathered more
information and opinions. This level of information was delivered to management, who went on
to afford Mr. Landreville an opportunity to respond. Actions against Mr. Landreville were
measured and proportionate to the seriousness of the charges. Written statements were taken
within a short time after the events of concern and were preserved for future review. Even after a
termination decision was made, well-established procedures afforded Mr. Landreville further
opportunities for review.

In this instance, the arbitration decision is entitled to significant weight. First, the
arbitration was conducted under the national rules of the American Arbitration Association
resolution for employment disputes (Tr. 200, 219). The arbitrator was an experienced
employment arbitrator. Mr. Landreville was entitled to counsel but did not exercise that right
(Tr. 128). The hearing lasted three days and Mr. Landreville called a number of witnesses and
was able to cross examine Northshore's witnesses (Tr. 217). The testimony was under oath
(Tr. 205). The factual issues were very much the same ( 17). Mr. Landreville has not
presented any evidence to suggest the arbitration proceeding was anything but a fair and honest
review of the facts of his case.

Substantial Evidence

The evidentiary burden that rests on Mr. Landreville for him to succeed in this case is for
him to show it is more probable than not that Northshore terminated his employment in
substantial part because of his efforts to invoke his health and safety efforts protected by the
Mine Safety Act. Rather than attempt to show that motivation directly from Northshore
witnesses, Mr. Landreville attempted to show that the motivations articulated by Northshore in
its termination action were incorrect and hence a pretext. I should note at this point that I do not
consider it my responsibility or even within my jurisdiction to determine to a legal certainty
whether Mr. Landreville either did or did not commit the work rule violations that he was
accused of in the termination proceedings. My responsibility is to use the evidence concerning
those alleged work rule violations to determine whether the respective burdens of proof have
been met in this case, i.e., whether Mr. Landreville has shown by substantial evidence that
Northshore was actually motivated to terminate him by reasons prohibited by the Mine Safety
Act.

The Commission decision in Secretary of Labor on behalf of Chacon v. Phelps Dodge
Corporation, 3 FMSHRC 2508, 2517 (November 1981) makes it clear that the burden
Mr. Landreville faces is a heavy one. In interpreting a prior Commission decision, the
Commission in Chacon, supra, said the following:

Once it appears that a proffered business justification is not plainly incredible or
implausible, a finding of pretext is inappropriate. We and our judges should not
substitute for the operator's business judgment our views on "good" business practice or
on whether a particular adverse action was "just" or "wise." [Citations omitted] The
proper focus, pursuant to Pasula, is on whether a credible justification figured into
motivation and, if it did, whether it would have led to the adverse action apart from the
miner's protected activities. If a proffered justification survives pretext analysis and
meets the first part of the Pasula affirmative defense test, then a limited examination of its
substantiality becomes appropriate. The question, however, is not whether such a
justification comports with a judge's or our sense of fairness or enlightened business
practice. Rather, the narrow statutory question is whether the reason was enough to have
legitimately moved that operator to have disciplined the miner.

3 FMSHRC 2516

Accepting Mr. Landreville's testimony at face value, he makes at most a plausible
argument for error by Northshore management in evaluating the statements by co-workers on the
hazards he created. I do not find in his allegations of error any evidence to support a conclusion
that Northshore asserted the reasons for Mr. Landreville's discharge as a pretext for taking action
against him that would otherwise be prohibited under the Mine Safety Act. However, there are a
number of reasons to not accept Mr. Landreville's testimony at face value. Significant conflicts
and contradictions are found on important points.

A typical example of this problem is the testimony concerning the delivery of a
Northshore safety handbook to Mr. Landreville early in his employment. He first denied ever
receiving a copy of the handbook. When confronted with a copy bearing his signature he was
reluctant to agree that he had in fact received the document (Tr 106 - 111). Further,
Mr. Landreville often claimed to be a very safe worker but admitted that on May 22, 2002, he
violated a fundamental safety rule that required disconnection of electrical equipment at the
disconnect point closest to the equipment. He admitted the violation but attempted to justify the
lapse by other steps he had taken. Finally, he claimed to be not aware of the power rerouting
plan developed at the electricians meeting on May 22, 2002. He conceded, however, that he was
aware of the purpose of the meeting and that he planned to do other electrical work the rest of the
day. Any safety conscious employee, particularly one with the assignment of "pit boss" would
make it his business to learn the outcome of the meeting. Mr. Landreville's disclaimers of
knowledge of the meeting and the outcome simply do not ring true.

ORDER

For all of the foregoing reason, the Petition filed by Mr. Landreville is DISMISSED.

Irwin Schroeder

Administrative Law Judge

Distribution:

Mr. Paul Landreville, 803 North 8th Street, Virginia, MN 55792 (Certified Mail)

Henry Moore, Esq., Buchannan Ingersoll, P.C., One Oxford Centre, 301 Grant Street, 20th Floor,
Pittsburgh, PA 15219-1410 (Certified Mail)

FOOTNOTES:

1 References to the Transcript of the Hearing will be indicated by "Tr" and a page number. References to record exhibits offered by the Complainant will be indicated by "PL" and a page number. References to record exhibits offered by the Respondent will be indicated by "N" and a page number.

2 A "lock out" is a process whereby a switch is rendered inoperable by placing a padlock on the switch arm. This process insures the system segment on the outbound side of the switch is not re-energized without the knowledge of the person placing the lock. It is possible to have multiple "lock outs" on the same switch at the same time.

3 In testimony, Mr. Landreville admitted he did not follow standard procedure in working on the shovel in that he did not, according to him, lock out the switch house connection to the shovel until after he had finished his work on the shovel, apparently relying for his own safety on the remote lock out at the crusher placed earlier in connection with the blast damage.

4 Mr. Landreville spent the vast bulk of his post-hearing memorandum on the issue of time periods necessary for Mr. Scholtz and Mr. Landreville to make their respective trips after the radio call. Data on time and distance for these trips is not sufficiently precise in the record to make the kinds of comparisons attempted by Mr. Landreville. The actual issue is the credibility of the two witnesses. I find Mr. Scholtz to be a more consistent and credible witness.

5 A careful reading of the decision in Secretary of Labor on behalf of Chacon v. Phelps Dodge Corporation, 3 FMSHRC 2508, 2517 (November 1981) supports this position. The Commission in Chacon reverses on a substantial evidence basis the trial judges rejection of an affirmative defense by Phelps Dodge built on a careful documentation of a business case for termination.