FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

1331 Pennsylvania Ave. NW, Ste. 520N

WASHINGTON, D.C. 20004-1720

(202) 434-9950/ Fax: (202) 434-9949

March 1, 2013

DECISION

Appearances:  Travis W. Gosselin, Office of the Solicitor, Chicago, Illinois, on behalf of the Secretary of Labor; Gregory P. Seibold, Seibold Law Firm, Iron Mountain, Michigan, on behalf of Douglas A. Pilon;Brent I. Clark and Meagan Noel Newman, Seyfarth Shaw LLP, Chicago, Illinois, on behalf of Respondent;Thomas A. McKinney, Castronovo & McKinney, LLC, Morristown, New Jersey, on behalf of International Specialty Products and ISP Minerals, Inc.

Before:            Judge Rae

            This case is before me on a Complaint of Discrimination brought by the Secretary of Labor, on behalf of Douglas A. Pilon, against ISP Minerals, Inc., pursuant to section 105(c) of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c) (the “Mine Act”). The parties presented testimony and documentary evidence at a hearing in Green Bay, Wisconsin. The parties filed post-hearing briefs. For the reasons set forth below, I conclude that Douglas A. Pilon engaged in activity protected by the Mine Act, and that his protected activity motivated ISP Minerals, Inc. to terminate his employment.

I.         BACKGROUND, SUMMARY OF THE EVIDENCE, AND

FINDINGS OF FACT

                                    A. Background

            Respondent ISP Minerals, Inc. (“ISP”) operates the Kremlin Plant in Pembine, Wisconsin. ISP hired Douglas A. Pilon, as a kiln operator in 2004. Mr. Pilon worked at the mine until his termination from the company on March 15, 2010, following a suspension on March 2, 2010. Mr. Pilon filed a complaint of discrimination with MSHA on May 10, 2010, which was the subject of a temporary reinstatement request. Ex. S-1. On July 2, 2010, I ordered that Pilon be temporarily reinstated to his position as a kiln operator at the Kremlin Plant, in Docket LAKE 2010-766-D. By settlement agreement between the parties, Pilon is currently economically reinstated at ISP.

The Secretary of Labor (“Secretary”) filed the discrimination complaint in this matter on November 9, 2011. In addition to a finding that ISP unlawfully discriminated against Pilon for engaging in protected actions under the Mine Act, the Secretary also seeks orders requiring permanent reinstatement, full compensation for lost wages plus interest, full compensation for additional medical coverage expenses incurred, compensation for pain, suffering and emotional distress, that Pilon’s personnel file be purged of any disciplinary action taken against him, that ISP post a notice stating that it will not violate Section 105(c) of the Mine Act and any and all additional relief to which the Secretary and Pilon may be entitled. The Secretary further seeks an order assessing a civil penalty against ISP for violating Section 105(c)(1) of the Mine Act, with the penalty proposal based upon the six criteria contained in Section 110(i) of the Mine Act.

            The parties have agreed to the following stipulations:

1.   Respondent is an operator as defined in Section 3(d) of the Mine Act, 30 U.S.C. §§ 801 et seq.

2.   Operations of ISP Minerals at the Kremlin Plant mine in Pembine, Wisconsin, are subject to the jurisdiction of the Mine Act.

3.   This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and its designated Administrative Law Judge, pursuant to Sections 105 and 133 of the Mine Act.

4.   Prior to his termination by Respondent ISP Minerals, Complainant Douglas A. Pilon, was a “miner” as defined in Section 3(g) of the Mine Act.

5.   Douglas A. Pilon reported that on February 25, 2010, he had been exposed to aluminum chloride vapor and signed an ISP accident/incident report dated February 26, 2010, regarding this alleged exposure.

6.   On March 2, 2010, ISP Minerals suspended Douglas A. Pilon from work.

7.   On March 15, 2010, ISP Minerals terminated Douglas A. Pilon’s employment.

8.   ISP issued a Warning Notice to Douglas A. Pilon regarding performing walk around inspections on September 26, 2008.

9.   ISP retrained Douglas A. Pilon on the walkbehind machine on April 1, 2006.

10. ISP retrained Douglas A. Pilon regarding workplace inspections on September 26, 2008.

11. ISP retrained Douglas A. Pilon regarding cleaning baghouse number 4 on January 28, 2009.

12. ISP issued a Disciplinary Document to Douglas A. Pilon on January 28, 2009.

13. ISP issued a 5-day suspension to Douglas A. Pilon on August 28, 2009.

14. ISP issued an Employee Retraining Document to Douglas A. Pilon on August 31, 2009.

(Court Ex. A).

B. Findings of Fact

ISP terminated Pilon on March 15, 2010, following a suspension on March 2, 2010. The basis for his termination is set forth in a letter signed by Mark Coombs, Site Manager. The letter appears in the record as Ex. S-17 and states:

On March 2, 2010 you were suspended from work without pay pending the Company’s investigation of your unacceptable job performance and conduct during your scheduled shift on March 2, 2010.

The following is a summary of the company’s findings during its investigation:

·   Previously you received a 5 day disciplinary suspension for plant rules violations on 8/29/09 for violation of:

o Loafing, leaving the department where assigned without permission or visiting with other employees during work hours. Sleeping on the job. Inefficiency or negligence in performance of duties. Willful insubordination, including refusal or failure to perform work assigned or to follow instructions.

o In the Company’s Disciplinary Suspension letter to you dated August 28, 2009, you were given notice that you would be subject to termination for future violation of work rules 16, 18, 19, and 20.

·   On March 2, 2010 when directed by your supervisor to perform your required job task of cleaning out the 2^nd coat cooler system, you were dishonest in replying “they were already done”, and after being directed a second time you failed to follow your supervisor’s directions and perform your assigned tasks. (Plant Rule 17. Willful damage or neglect of machinery, tools, equipment, materials, or any other ISP property. 19. Inefficiency or negligence in performance of duties. 20. Willful insubordination, including refusal to follow lawful instruction from your supervisor.)

·   During the investigation it also came to light that you failed to properly perform a clean out on 2/22/10 causing excessive waste. (Plant Rule 17. Willful damage or neglect of machinery, tools, equipment, materials, or any other ISP property. 19. Inefficiency or negligence in performance of duties.).

·   On 3/2/10, you were also observed loafing in the panel room while not on a scheduled break time. (Plant Rule 16. Loafing, leaving the department where assigned without permission or visiting with other employees during working hours. 19. Inefficiency or negligence in performance of duties.)

This combination and continuing pattern of behaviors and actions are totally inappropriate and unacceptable. Regretfully, your employment relationship with ISP Minerals, Inc., Pembine, WI is terminated effective today 3/15/10.

Ex. S-17.

             Douglas A. Pilon began working for ISP, at the Kremlin Plant, in 2004. Tr. 30. ISP is a mine that manufactures roofing granules for asphalt shingles, by crushing rock into granules and then baking paint onto the rock granules. Temp. Rein. Tr. 12-13; Tr. 31. Pilon was employed as a kiln operator on the second shift, work which entails greasing and maintaining machinery, “rapping out” coolers and aerators, and monitoring and maintaining the kiln temperatures. Temp. Rein. Tr. 12; Tr. 31. He worked approximately 48 hours per week, with eight of those hours being overtime. Tr. 33. The work process begins with lighting and pre-heating the kilns and aerators. Once the kilns are lit, spray paint is applied to the rock granules in the mixer. It then goes down a chute into the aerator then up the belts into the kilns, the temperature of which is controlled by the kiln operator from a remote location. From the kilns the rock travels down an elevator into the coolers where the chief operator adds water, aluminum chloride and other chemicals depending upon the color run. The rock then goes to the oiler who coats the rock with oil for color consistency; and finally, it is processed for loading and shipment. Tr. 60-63. As the color is changed, the mixers and coolers are “rapped out” or banged with a ball-peen hammer to remove old color remaining on the walls of the cooler. The kiln operator is responsible for rapping out the aerators and coolers and for ensuring that the kiln temperatures are properly maintained throughout the coloring process. Tr. 68.

            Members of management at the time the events discussed herein were Mark Coombs , Site Supervisor; Tyler Hill , Coloring and Shipping Supervisor; Clarence Schlais, Treatment Plant Foreman; Dan Gadzalinski, Fill-in Supervisor; and, Mark Hammill, Milling and Crushing Supervisor/Foreman.

            The events at issue leading up to Pilon’s termination took place between February 3, 2009 and March 15, 2010. The protected activity upon which Pilon filed his discrimination complaint stems from an event that took place on February 25, 2010 which he claims was the last of several safety and accident complaints that had earned him the reputation as a complainer.

             On February 25, 2010, Pilon was walking on a catwalk to obtain kiln and cooler samples and as he passed the #6 cooler he inhaled a small breath of aluminum chloride, a chemical that is commonly used at the mine as a drying agent. Tr. 40-41; Ex. S-2. As he had been exposed to aluminum chloride in the past, Pilon recognized the vapor from the smell and taste and a feeling of a lack of oxygen. Tr. 41-42. In 2006 or 2007, Pilon inhaled aluminum chloride, which resulted in vomiting, fever, difficulty breathing and three months’ time off of work on workmen’s compensation, until he was medically cleared to return. Tr. 43. Following his February 25, 2010 exposure, Pilon reported the incident to his foreman, Lee Schlais. Tr. 44, 184. The next day, Schlais completed an “Accident/Incident Investigation Report,” without Pilon’s input. He was only instructed to sign it on Friday, February 26, 2010. Tr. 44; Ex. S-2; Ex. R- 29. The accident report form indicates that the cause of the escaped gas was that a slide had been lowered to keep the fan from pulling too much amperage. As a corrective action, Pilon was instructed not to go near the discharge end of the cooler when in operation, especially while chloride products are running, and to wear a respirator. Ex. S-2. Pilon testified that he was upset by this directive because the miners had been told the collection process did not expose them to unsafe conditions and the use of respirators was not necessary. Tr. 44. He was concerned, he said, for the safety of other employees who were not given this information or the same directive. Tr. 45.

            Schlais testified that when Pilon reported the inhalation to him, he asked Pilon if he felt any ill effects. Pilon said he did not but Schlais said it should be written up for their protection. Tr. 523. Schlais recalled adjusting some of the gates that changed the draft from the coolers as a result of this incident. Tr. 524. He then sent the report to the office where it was reviewed by management. He did not recall speaking with Hill or Coombs about the incident. Tr. 527. He confirmed that Tyler Hill’s signature appears on the report. Tr. 530; Ex. R-29. Schlais testified that Pilon was a whiner and a complainer who raised safety issues more than others but they were legitimate concerns that he raised. Tr. 550-51.

            The Secretary’s position is that Pilon was known to management as a complainer who made repeated safety reports and was the subject of several accident reports. As a result of this last safety report in February 2010, Pilon was wrongfully discharged. Sec’y Brief.

            The Respondent alleges that Pilon was terminated based upon a series of documented violations of company policy and rules including insubordination, sleeping on the job, loafing and neglect or damage of machinery or other ISP property (waste). His misdeeds were reduced to writing in a discharge memorandum, dated March 15, 2010, which was presented to him following a five-day suspension by Coombs and Hill. ISP Brief.

            Following his termination, the Secretary of Labor filed a wrongful discrimination action on Pilon’s behalf whilst Pilon filed a discrimination complaint with MSHA dated May 10, 2010. The complaint was investigated by MSHA investigator Field until he became too ill to proceed at which time the investigation was turned over to MSHA investigator James Hautamaki.

A.  February 3, 2009 Events –Back Injury Accident Report/Drug Test

            The Secretary’s Case 

            Pilon testified that on this day there was a safety meeting at the company that day, which required the workers to “bump up a job,” in order to fill the roles of employees attending the meeting. Tr. 49. This required him to work as the screen operator. Id. Pilon explained that this involves climbing up on a catwalk to clean shaker screens that become plugged up. Id. He testified that because he is rather short he was standing on his tiptoes scraping the screens when he felt a twinge in his back. Tr. 49-50. He told his co-worker, Kyle Anderson, that he thought he sprained his back scraping the screens. Tr. 50-51. Pilon testified that during the remainder of the shift he was able to bend, work, and lift. Id. He explained that because he didn’t feel as though he was injured, he didn’t report it as a work injury while on shift. Id.

            Pilon testified that later that evening, about five hours after he got home from work, his back began tightening up and he couldn’t get out of bed. Tr. 50. He called ISP at 1am and told them that he injured his back at work and it was getting worse. Id. He was told to call back in the morning and report this to his foreman. Id. Pilon stated that he called back the next morning and reported the back injury to Mike Hammill, his on-shift supervisor, and believed that Hammill completed an accident report based on his phone call. Tr. 50-51. He testified that he did not report the back strain to Hammill when it happened because he did not see him. Tr. 51. He stated that his signature is not on the Accident/Incident Investigation Report because he couldn’t get out of bed the day that it was completed. Tr. 51; Ex. S-4. He testified that he was never given the report when he returned to work. Tr. 52. On cross-examination, Pilon explained that he told Kyle Anderson that he pulled his back muscle because his foreman and chief operator were not around and he wanted to let someone know. Tr. 206. He testified that he was taught that company policy was to report injuries and near-misses for injuries to management. Tr. 207. He stated that he does not recall whether he ran into Hammill before the end of his shift that day and that he didn’t report the pulled muscle to any supervisor before he left work. Tr. 209.

            Pilon testified that Sue Courter in Human Resources phoned him at home the day after the incident and asked him if he wanted them to bring him to the hospital, and that he replied in the affirmative. Tr. 52. She advised him that she would try to get him an appointment with the company doctor but never came to get him, even though he told her the condition he was in. Id. He testified that he returned to work about two weeks after the back strain. Id. Upon returning from work, he was informed that he had to take a mandatory drug test. On the day Courter was taking him to the doctor to get a drug test, he was brushing snow off of the company car and twisted his back again. Tr. 53. He stated that he told her about this right as it happened and that she told him not to worry and that they would write that up after returning from the doctor. Id. He stated that they did write up this injury incident. Tr. 53; Ex. S- 3.

            Pilon testified that he was aware that reporting an accident at work would require him to take a drug test. Tr. 269. He failed this drug test because it detected a prescription painkiller in his blood. Tr. 212. His girlfriend had given him some pills for his back that he assumed were non-prescription pills and he took them. Id. He said that he took the painkillers that his girlfriend gave him at about 7:30 am. Id. He explained that he recalled the pills she gave him were red pills and thought that they were Advil because he does not have any prescription medication in the house. Tr. 270. He testified that he never took an illicit drug prior to work and had no idea that he took the prescription drug until he was told that he didn’t pass the drug test. Tr. 278-279. He was disciplined for this incident. Id. The disciplinary report is dated February 18, 2009 and appears in the record at Ex. R- 22. The report advised him that he must submit to another drug screen and have a negative result before he can return to work and that a future violation will result in severe disciplinary action up to and including discharge. Ex. R-22.

            On re-direct, Pilon testified that if Sue Courter had taken him to the hospital, he never would have taken the prescription drug because he would have been at the hospital and not at home for his girlfriend to have given him the drug. Tr. 279. When he signed the disciplinary report, he did not intend to indicate that he agreed with the assertions made in the document. Tr. 280.

            The Operator’s Case

            Mike Hammill, the milling and crushing foreman at ISP, filled out the February 3, 2009 incident report as Pilon’s supervisor. Tr. 673. He testified that Pilon was working under him as screen man and he filled out the report without speaking to Pilon. Tr. 676. He testified that Pilon did not report a back injury to him that day. Tr. 678. He testified that employees are required to let their supervisor know about an injury or near miss and that the supervisor completes the accident/incident report with them. Tr. 678. Hammill stated that no one at ISP management discouraged him from completing a report. Tr. 679. He testified that Hill took the rules very seriously and was a black and white thinker. Tr. 680. He said that he himself received a five-day suspension for not wearing fall protection and that no one contacted him during the investigation. Tr. 681. Hammill testified that Pilon was an average worker and he never had to discipline him. Tr. 687. He said that when Pilon was his screen man, he was doing what he asked him to do and that he doesn’t have a negative opinion of Pilon. Id. Hammill testified that Pilon’s back injury could have occurred after he spoke with him during the shift on February 3rd. Tr. 692.

            The accident report has a notation on the bottom that it “was not timely reported & will be denied worker’s comp.” Ex. S-4.

            Coombs testified that he met with Pilon and union committee members about the failure to timely report the back injury, positive drug test results, and discipline and that they had occurred before he (Coombs) was employed with ISP. Tr. 560. They requested that the report be pulled from Pilon’s record. Coombs stated that after he investigated the matter, he found that the worker’s compensation insurance company made the determination that the injury did not occur at work. Tr. 561. Coombs admitted that he was informed the claim was not denied because it did not occur at work, but because it was due to a pre-existing condition. Tr. 641. Because the injury was determined to be non-work related, Coombs was willing to pull the record from Pilon’s file, hold it in a separate file for one year, and then permanently remove it from his personnel record as long as Pilon did not untimely file an accident report or fail a drug test for one year. Tr. 562. He testified that he removed the report and could not explain why the document was submitted as evidence of discipline for the March 2, 2010 events when it wasn’t supposed to be in the file. Tr. 631.

B.   August 21, 2009 Events – Loafing and Sleeping on the Job

            On August 24, 2009, Pilon received a five day suspension for failing to follow the company’s standards for duration and location of break periods, for failing to follow supervisor’s instructions to resume work following an extended break, sleeping in the panel room, and failing to perform all work assigned. Ex. R- 27. In addition, the disciplinary suspension letter informed Pilon that he was suspended on August 17, 2009 for violations during his shift on August 21, 2009. The suspension letter dated August 21, 2009 further states that Pilon violated the following plant rules:

            16) Loafing, leaving the department where assigned without permission or

                   visiting other employees during working hours.

            18) Sleeping on the job.

            19) Inefficiency or negligence in performance of duties.

            20) Willful insubordination, including refusal or failure to perform work assigned

                    or to follow instructions.

Ex. R-27.

            The Secretary’s Case

            In relation to the August 21, 2009 events, Pilon testified that on that evening, he was in the mixer/paint shack and that they were having bead problems, which causes the paint charts to drop. Tr. 94. He explained that alarms were going off every three to five minutes and when they go off for more than 30 seconds to a minute, he has to see how far the paint chart drops. Tr. 94-95, 227. Pilon stated that Tyler Hill walked into the mixer room and asked him what was going on. Pilon replied “nothing” and Hill asked if he was sleeping because he looked startled when he entered the room. Pilon denied that he was sleeping and Hill said he really could not tell if Pilon was sleeping or not because he could not see through the glass. Tr. 95, 228. Pilon explained that because people clean the glass with rock dust it is difficult to see through it. Id.

            Pilon testified that he wasn’t loafing and that he understood “loafing” to mean not doing one’s job and being in a different part of the plant. Tr. 98. He stated that he would usually tell his foreman where he was going if he had to be somewhere else, such as taking bags out, which was also part of his job. Id. Pilon testified that he was not disciplined for being in another part of the plant or visiting other employees during working hours. Tr. 99. He said that he did not understand what the letter meant by “negligence in performing duties” or “willful insubordination” and that he was not accused of those things in August 2009. Tr. 99-100.

            Pilon testified that Hill was “riding his case for years.” He would tell Pilon to go out to the baghouse or sweep an area when his foreman wanted him to remain in the panel room so they could locate him. Hill did not want him in the panel room and it would put Pilon at odds with his foreman’s directions. Tr. 120. Pilon was disciplined because Hill walked into the lunchroom one day when Pilon was five minutes into a 20-minute lunch break. Hill told him to clean an area when he was done with his break. He said he would. Hill came back a few minutes later and asked Pilon why he was not back at his job and Pilon told him he had just started his break when Hill came in the first time. Tr. 121, 230-31. He was still only 15 minutes into his break when Hill came in the second time. When he was asked the second time to go clean, he did not protest. Tr. 230-32. He stated that he was not loafing or sleeping on the job as he had been accused by Hill. Tr. 122. Kiln operators have to take breaks when they can because they are moving around on a regular basis throughout the shift, monitoring things. Tr. 270-271.

            Pilon testified that he was called into the plant for a meeting to discuss the results of the investigation. Tr. 222. Also present at the meeting were the union representative, Coombs and Hill. Id. Pilon stated that he was given the opportunity to present his side of the events but there were some things that were not addressed. Id. Pilon explained that he wanted to bring the paint chart from the mixer area into the meeting to prove his version of the events and that “nobody is sleeping up there.” Tr. 225. He said that he asked the union to get the chart, that the union representative asked the company for it, and it had mysteriously disappeared and was not present at the meeting. Id. He was not aware that he could have filed a grievance with the union about these events and blames the union for not advising him that he could have done so. Tr. 234. Pilon testified that he received retraining on starting his shift on time, taking one ten minute break and one thirty minute lunch, not leaving the department without supervisor approval, working diligently throughout the shift, monitoring the equipment and other areas, housekeeping, and following all ISP work rules, safety rules, and lawful instructions from supervisors. Tr. 235-236; Ex. R-28. Pilon testified that no one from the company contacted him for his side of the story between August 17^th and August 28^th when he received the suspension letter. Tr. 281.

            The Operator’s Case

            Mark Coombs testified that Hill called him at home on August 21, 2009 and was told that Pilon was caught sleeping in a control room and took an extended break after ISP had conducted training about the appropriate place to take breaks. Tr. 563; Ex. R-23. He stated that this was truly unacceptable behavior. Id. Coombs asked Hill to investigate and document these events. Hill emailed him this information the next day. Tr. 564; Ex. R-23. He testified that there had recently been a training session about not to taking breaks in the panel room. Tr. 566. Coombs also stated that Pilon was in the lunchroom with Dan Moyer, that after the ten-minute break, Hill told them to get back to work. Tr. 569; Ex. R-23. He said that Moyer went back to work but Pilon asked why he had to go back and resisted Hill’s instructions. Id. He testified that Hill found Pilon in the mixer operator’s booth, which was not his functional area, watched him through the window for 15-20 seconds, and startled Pilon upright when he came into the room, which indicated to Hill that Pilon was asleep. Tr. 570. He stated that Hill saw Pilon with his feet kicked out. Id. Coombs testified that Hill complained that there was always a lot of clean-up to do. Tr. 571.

            Coombs testified that he found the behavior unacceptable, particularly the sleeping in the panel room, from a safety point of view. Tr. 573. Coombs stated that the safety concerns might be materials overflowing with people in the plant or a gas explosion or emergency where they might not be able to locate Pilon because he wasn’t in a location he was expected to be. Tr. 573. Coombs testified that after reviewing his notes he believed they should proceed with termination. Tr. 575. He stated that he based this recommendation on a safety point of view, customer quality, plant housekeeping, and the morale of other employees. Tr. 576. Coombs stated that sleeping during his shift after the rules had been reviewed the prior week in training was insubordination in his view. Tr. 576-577. Coombs forwarded an email sent to him by Hill addressed to Justin Dunlap and Richard McNew, HR manager and corporate HR manager for ISP on August 22, 2009. Tr. 575; Ex. R-24. He advised them that Pilon had exhibited a blatant disregard for meeting expectations and that “suspension in [his] view may only put [them] at risk for retaliation by way of another WC claim of which he has a history.” Ex. R-23.

            With his email proposing termination of Pilon for poor work performance, Hill included his incident report which stated that on August 21, he saw Pilon and two others eating lunch in the break room and told them they should check in after lunch. Later he saw Pilon taking another break and about ten minutes into the break, he told Pilon “we should probably get moving, there is a lot of work to do.” He spoke with him again a few minutes later and told him it was “probably time to get going.” Hill told him there was cleanup work to do and he sent Pilon to vacuum. With regard to the sleeping in the mixer booth, Hill stated that he saw Pilon for a few seconds and thought his eyes were closed. When he entered the room, Pilon acted startled but denied he had been sleeping. He stated that he was cooling off. Hill told him cooling off was “ok.” Hill stated that it was his “impression” Pilon was sleeping from what he observed. Ex. S-23.

            Coombs testified that after Pilon was suspended, they set up a meeting with him and the union committee to give Pilon a chance to respond. Tr. 580. He testified that before this meeting occurred, they had reached a consensus to give Pilon a fair and final letter and a disciplinary suspension versus termination. He testified that at the meeting, they presented the results of their investigation and recommended course of action and then Pilon and the union provided information. Tr. 584; Ex. R-26. Coombs said that Pilon never denied anything at the meeting. Tr. 584. Coombs testified that the August 28, 2009 disciplinary letter to Pilon was finalized following the meeting with Pilon and the union. Tr. 588. He testified that after he completed the letter and he and Hill signed it, they returned to the meeting and read the document to Pilon. Tr. 589. The document, entitled “Disciplinary Suspension- Plant Rules Violations,” given to Pilon stated that if he engaged in the same activities again, he would be subject to termination. Ex. R-27. Coombs stated that he believed that Pilon was subject to termination if he did not comply with the rules set forth in the August 28 letter. Tr. 591.

C.  Events of February 22, 2010 –Waste of Materials

            The termination letter references a single incident of causing excessive waste and violation of plant rule 17—willful damage or neglect of machinery, tools, equipment, material, or any other ISP property and plant rule 19—inefficiency and negligence in performance of duties. This incident arose as a result of Gadzalinski telling Hill on the night of March 2^nd that he should look into waste on this date that could be attributed to Pilon. Tr.714.

            The Secretary’s Case

            Pilon testified that he does not know what incident this refers to, as he didn’t recall performing a clean out on that date. Tr. 105. No one had ever mentioned an issue of waste with him on that date. He testified that it could be referring to an excessive clean out and it was a day that he changed shifts with someone else named Lisa Riley. Id. He testified that he was not on that shift. Tr. 105-106. The Oiler Daily Waste Report reveals that 36 tons of waste was generated on this date and the reason given was “no paint raw.” Ex. S-12. Pilon testified that he is not involved in the paint process. Tr. 125. Pilon testified that, to his knowledge, tonnage loss on start-up was never blamed on a miner before. Tr. 285.

            On cross-examination, Pilon testified that when he got to work, he looked for Lisa Riley and could not find her. Tr. 262. He stated that Hill then told him to get down to his work area and start cleaning but he was not even supposed to be punched in for another half hour and that he was just there to relieve his partner early. Id.

            The Operator’s Case

            As set forth in greater detail below, Gadzalinski testified that on the night of March 2, 2010, while testing rock samples in the lab, Tyler Hill entered the lab. Gadzalinski told Hill about the events of the 2^nd and told Hill to check on the waste reported on February 22, 2010 because he felt Pilon was to blame for it. Tr. 714. When confronted with the Oiler Daily Waste Report for that day, Gadzalinski confirmed that the cause of the waste was recorded by the oiler as “raw paint” and not a bad startup. Tr. 749-50; Ex. R-12.

            Coombs testified that he would not have fired Pilon for this alone. Tr. 604.

D.  Events of March 2, 2010 –Failure to Rap Out, Loafing and Waste of Materials

            On Tuesday, March 2, 2010, Pilon was suspended without pay pending an investigation for “unacceptable job performance and conduct during [his] scheduled shift” (insubordination, loafing and neglect of duties and neglect or destruction of ISP property). The events of March 2 coupled with the other incidents set forth above led to his termination on March 15, 2010, when he was presented with the termination letter set forth above. Ex. S-17.

            The Secretary’s Case

            Pilon worked the second shift. When he arrived at work on March 2, 2010, the earlier shift had already begun the color-change process, which is unusual. Tr. 60. New colors are not normally started up in the middle of a shift; about 98% of the time they are started at the beginning of a new shift. It is rare that two people on different shifts perform the startup process. Tr. 60, 64. Before beginning his shift, Pilon met with Ann Davis, the kiln operator he was relieving, for a status update. Tr. 60. She told him that it had been the worst day she had in 17 years at the plant, that they had problems all day with wet product and plugged chutes. Tr. 60, 282. When Pilon began his shift, he was of the understanding from speaking with Davis that she had already rapped out the mixers and aerator and thrown in the rock for the second coat. He did not know how much product Davis had put in the kilns on the second coat which was problematical because he did not know when it would come out of the kiln. It usually takes about 15 minutes for the rock to go through the kilns. Tr. 60-61, 66-67.

            Pilon had been in the panel room for what he estimated to be about five minutes when Dan Gadzalinski, the fill-in supervisor, asked him to rap out. Because the rock takes about 15 minutes to come out of the kiln, Pilon thought the rock was just going into the kilns. He thought Gadzalinski had been talking about the aerator when he told Pilon to rap out which Davis had said she already rapped out. He told Gadzalinski that Davis had done it already. Tr. 66-67, 100. Mastie, the chief operator, then informed him that the product was just starting to come out of the kiln at which time he left the panel room and rapped out the coolers. Tr. 67. He explained that after rapping out the coolers, he went to the panel room to ensure the kiln temperatures were coming up. Tr. 68. Pilon testified that when he left the panel room to adjust the kiln temperature, he was told by the oiler, Eric Forstrom, that there was contamination and to rap out a second time with a sledgehammer, which he did. He then turned up the kiln temperature and returned to the panel room to monitor the temperature increase. There are no gauges or numbers to check the temperature which is adjusted by inserting a screw driver into the main gas valve and turning it. It may require a quarter of a turn or several depending upon how much gas is needed to heat the product. Depending upon the color, the temperature may need to be adjusted by as little as three degrees. Tr. 69-70. Pilon stated that normally he only needs to rap out once but on this day the color was bad; there were chunks coming out of the coolers so he rapped the second time. He was of the understanding that they were also rapped once by Gadzalinski. Tr. 70-71. He said that Forstrom told him that they had had a bad startup that day. There are times when they will shut the process down and re-start but they didn’t choose to do that on this day. Tr. 71- 72. Pilon stated that he did not refuse to rap out that day and actually rapped out twice. The bad start up that Davis had complained about was what caused the problem which was out of his control. Tr. 72, 102.

              Pilon testified that when Tyler Hill suspended him that day he did not tell him the duration of his suspension but Hill told him he would get back to him the next day. Tr. 75. He said that he never heard from Hill until he was called in for his March 15, 2010 termination. Tr. 76. Pilon said that he was not told how many tons of waste ISP attributed to him but that he did not know of anyone that was suspended, disciplined, or terminated for waste created during a start-up. Tr. 83-91. He estimated that average waste during a start-up would be about 12 to 15 tons. Tr. 76. The Oiler’s Daily Waste Report, which appears in the record at Ex. S-5, reveals that on March 2, the waste attributed to the start-up was 15 tons and the waste attributed to the coolers being insufficiently cleaned was 24 tons. Pilon surmised that the part of the letter referring to “willful damage or neglect of machinery, tools, equipment, materials, or any other ISP property” is referring to the rock they threw out and that there was no damage to any machinery or tools and there was no equipment damage. Tr. 103.

Pilon testified that the reference to loafing must mean when he was in the panel room after raising the kiln temperature. After Forstrom told him to rap out with the hammer, he adjusted the number one kiln and went to the panel room to watch his temperatures come up. Once the gas valve is adjusted, it takes about 15 minutes for the change to register in the panel room. Tr. 106. He stated that he had been in the panel room approximately three minutes before Hill came in and asked what he was doing. Tr. 108. He told Hill that the temperatures on the two, three and four kilns were perfect but he had to wait for the one kiln to come up by 30 degrees. Tr. 107. Pilon testified that one cannot read the kiln gauges from the chair in the panel room where he was sitting but he had checked them just before Hill entered. Tr. 255-58.

            Hautamaki testified that Field’s statement, based on his interview with Hill, revealed that Hill and Coombs made the decision to terminate Pilon, that the basis for the termination was for excessive waste and Pilon’s insubordinate refusal to rap out the kilns on March 2. Tr. 302. He stated that the refusal to rap out the kilns was conveyed to Hill by Dan Gadzalinski, the fill-in foreman. Hill said that he caught Pilon loafing. Tr. 303-304. Hill told Hautamaki that he went to the control room and saw Pilon in there with his head down and legs kicked out. Tr. 304.

            Hautakmaki testified that Coombs informed him that he made the final decision to terminate Pilon. Tr. 305. He testified that Coombs also told Field that there was excessive waste during the start-up on March 2nd and mentioned the sleeping and loafing incidents. Tr. 306.

            Hautamaki interviewed Gadzalinski who stated that the chief operator told Pilon to rap out the kilns, that Pilon said that it had already been done by the previous shift kiln operator, and that when Gadzalinski told Pilon to rap out he did not know if Pilon did it or not. Tr. 309. He testified that Gadzalinski rapped out himself a second time and that the color was still bad, and that when Pilon rapped out a third time, the color became good. Tr. 309-310. Hautamaki testified that Gadzalinski said that he did not have problems with Pilon that Pilon did what he was supposed to do and came to work on time. Tr. 310. He said that Gadzalinski told him that Pilon complained about safety issues more than others. Id. He testified that Gadzalinski told him that there were several employees disciplined for loafing; one was fired for sleeping on the job. Tr. 378; Ex. R-37. Hautimaki testified that Gadzalinski gave him the name of an employee that was disciplined for insubordination and one for sleeping but he did not speak to those persons. Tr. 379-80.

            The Operator’s Case

            Coombs testified that on March 2, 2010, he was told by Hill that Gadzalinski, the supervisor working with Pilon, was frustrated because he asked him a couple of times to rap out the coolers. Tr. 592. He said that Gadzalinski was upset because Pilon indicated that he had done it and Gadzalinski knew he had not and had done it himself. Id. He testified that Hill also told him that he found Pilon loafing in the panel room later that night. Tr. 593. Coombs testified that Pilon violated Plant Rule #17- neglecting machinery - by not properly performing his clean-up. Tr. 615. He stated that he did not speak with Gadzalinski or Mastie about the insubordination incident but that he obtained all of the information regarding the events that night from Hill. Tr. 625. He then stated that he spoke to Dan Gadzalinski but not during the investigation into the events; it was after he had already decided to terminate Pilon. Tr. 664. He also obtained Ann Davis’ statement that it was the worst start-up in a long time after he decided to terminate Pilon. Tr. 666; Ex. R-5.

            Coombs considered Pilon’s actions to be a clear violation of the rules and Pilon was then sent home pending an investigation. Tr. 594. He then instructed Hill to conduct a thorough investigation. He admitted that Hill did not speak with Pilon again after the 2^nd until he was fired on the 15^th.

            Gadzalinski testified that he began his shift on March 2, 2010 at 2:40 p.m., twenty minutes before the start of the second shift. He was briefed by the outgoing supervisor who informed him that the mixers had just been started up and nothing was coming out of the kilns. Tr. 702-704. Gadzalinski was in the panel room during this pre-shift period as was Pilon, who he recalls seeing there about twenty minutes before 3pm. Tr. 752, 758. Upon further questioning, Gadzalinski could not recall close to the top of the hour it was when this event took place. It may have been ten minutes before three. Tr. 705. He stated that it takes about 20 minutes for the rock to go through the kilns. Tr. 752. Sometime before 3:00 p.m., he heard “Bubba” Mastie announce that the rock was coming out of the kiln but he could have said it was in the kiln instead. Tr. 705, 739. Mastie then said “the rock is coming out of the kiln” and told Pilon to rap out. Pilon responded by saying “Ann did it” at which time Gadzalinski told Pilon to rap out and Pilon responded again by saying Ann did it. Gadzalinski told Pilon a second time to go rap out and Pilon left the panel room and went down to rap out. Tr. 706-707. At the same time, Gadzalinski left the panel room and went to adjust the temperature. Tr. 707-708. This exchange took place during the pre-shift period and happened in about sixty seconds. Tr. 758, 725-26.

            After adjusting the temperature, Gadzalinski stated that he then returned to the panel room and spoke with Eric Forstrom, the oiler, who informed him the product was bad and Gadzalinski then took a sledgehammer and rapped out. He stated that Forstrom told him that Pilon may not have rapped out. Gadzalinski testified that he personally rapped out twice. Tr. 708-709. He believes at this time he stated out loud, “Pilon lied to me.” Tr. 710. Gadzalinski then took a sample of the rock out of the aerator and took it to the lab to test its moisture content. Hill walked in while he was doing this and Gadzalinski testified to his conversation with Hill:

            I told him I needed to talk to him about waste, because my waste was quite high. I             told Tyler Hill that I don’t believe Doug rapped out, that I had excessive waste, and I also told Tyler at that time I believe he lied to me. I told him I didn’t believe             he rapped out and that’s the reason we had as much waste as we did. I also told him that it would be good to possibly check up on the run on February 22^nd,             because I also had a large waste at that time. I believe it was like 36 or 37 tons waste. [I] believed it was Doug’s fault…[He] needed to look into it. Because I --             Mr. Hill has been--was breathing down on all of us supervisors for the waste. We needed to reduce our waste. And that’s one of the main reasons why I reported to             him.

Tr. 713-714.

            Gadzalinski went on to say had it not been for the waste, he would not have even reported Pilon’s conduct to Hill. He only did so because it was an issue of waste and he had been talked to by Hill before about reducing waste. Tr. 716. Gadzalinski stated that Hill did not seem agitated when he was told about the waste incident. Tr. 746. Gadzalinski confirmed that he had disciplinary authority over the employees while acting as a fill-in supervisor but stated that he felt uneasy using it. Tr. 718-19. He testified that he never spoke with Coombs about the events on March 2, only Tyler Hill. Tr. 736.

            Gadzalinski testified that he was unaware of Pilon’s accident report for inhalation of aluminum chloride on February 26, 2010. Tr. 720. He further stated the he believed employees under Coombs’ management were encouraged to raise accident and safety complaints. Tr. 717. He was disciplined himself at one time but neither Hill nor Coombs were involved. It was handled at the supervisor- employee level. Tr.760.

            On cross-examination, Gadzalinski confirmed that he spoke with Investigator Hautakmaki about the March 2 incident and the investigator took notes. However, Gadzalinski could not recall having actually been shown the report of interview although it indicates he refused to sign it. He claimed this lack of memory was because it had occurred one and one half years earlier. Tr. 720-722. He did admit that it was possible he was shown the statement. Tr. 722; Ex. R-37. Gadzalinski also testified that he did not recall making the statement on page three of the report of his interview that says “I do not know anything about the February 22, 2010 incident.” He did confirm that he spoke to Hill prior to his interview with Hautamaki. Tr. 723; Ex. R-37. He then said he did recall that he told Hill to look into it. Tr. 742. He testified that his recollection of events would have been clearer when he spoke to the investigator than it was a trial. Tr. 743. He confirmed the statement says that he thought Pilon was caught sleeping on that date and he did recall making that statement to Hautamaki. Tr. 743.

            Gadzalinski denied that the prior shift supervisor told him of any problems from the first shift on March 2. He assumed that Davis and Pilon did do a turn-over briefing as part of their normal procedure. Tr. 724-25. He confirmed, looking at Coombs’ notes that it stated that Ann Davis had said it had been a bad day. Tr. 737; Ex. R-5. He testified that Pilon could not have thought Davis had rapped out the mixer or the aerator because the mixer does that job, not the kiln operator. Tr. 730. Although, he admitted there were several breaks in procedure that day including starting the new color at the end of the off-going shift. Tr. 730-32. Gadzalinski confirmed that there are times when the color goes into the kiln more wet than desired which makes it more difficult to dry in the kiln. Tr. 761-62. The material that gets rapped out of the cooler by the kiln operator is a mixture of water and rock that has been reduced to the size of dust which sticks to the sides of the equipment. The chief operator is the one responsible for adding the water. If he has added too much water, the rock is still wet as it comes out of the cooler and it will stick and remain in the cooler. Tr. 765. It also gets mixed with chloride for certain colors which also sticks with the water and dust to the sides of the cooler. Tr. 768. When the dust mixture sticks, it can stick enough to require a sledgehammer to get it off. Tr. 765-66.

            He testified that Mastie told Pilon twice that the rock was coming out of the kilns. Pilon said Ann has rapped out and then Gadzalinski told Pilon to rap out once and Pilon left. This exchange among the three of them took about “a minute.” Tr. 725-26. Later Gadzalinski admitted that his statement to MSHA says he told Pilon to rap out three times but that he meant between he and Mastie Pilon was told three times. Tr. 733. Gadzalinski testified that sometime after Pilon left the panel room after being told to rap out, Gadzalinski saw the color was still bad and he took a sledge hammer and rapped out again. This did not correct the color so he did it a second time. Pilon was not with him on either occasion and he stated that Pilon did not rap out again after he did. He affirmed, however, in his statement, he said he did not know if Pilon rapped out again after he did. Tr. 727-728; Ex. R-37. He then testified that because it has been a year and one half ago, he could not recall if he actually rapped out twice or if he rapped out three times or Forstrom rapped out as well. He could not be sure. Tr. 729. Later he testified that his statement to MSHA said he was not sure if Pilon rapped out after he told him to do so. He would not know if Pilon did or not because he left the panel room to adjust the preheat temperatures in another area of the plant. Tr. 733-34. He then confirmed that his statement says after he went down to rap out once, Pilon went down and rapped out again for a third time, twice in all that Pilon rapped out. Tr. 734; Ex. R-37. Again, he said he must have told the investigator this but he does not recall doing so. Tr. 735.

            When cross-examined about the waste on February 22, 2010, Gadzalinski testified that he recalled the color run that day was either 720 or 760, a very light color. He confirmed that the Oiler Daily Waste Report for that day indicates that the color was 760 and the waste was 36 tons. The reason for the waste was documented as “no paint raw” not a bad startup. Gadzalinski stated he recalled the paint problem but did not recall that was the reason. Tr. 749; Ex. R-12. He did confirm the report is made simultaneously with the color run by the oiler. Tr. 749-50.

E.  March 15 Termination

            Coombs testified that the four bullet points in the termination letter were the bases for terminating Pilon. Tr. 623. He testified that he did not speak with Gadzalinski or Mastie about the alleged March 2 insubordination incident and that he got the information from Tyler Hill. Tr. 625. Coombs testified that Pilon was not involved in the termination investigation, other than he believed Hill talked to him while he was still at the plant on March 2. Tr. 657. He did not speak to Gadzalinski until after he made the decision to fire Pilon. Tr. 664. He also did not obtain Ann Davis’ statement about the bad startup until after he made his decision. Tr. 666; Ex. R-5.

             As a result of the March 2, 2010 incident, Coombs testified that Hill sent an email to Richard McNew in Human Resources, copied to him, on March 9, 2010. Tr. 658. This email contained information that stated the cost of waste attributable to Pilon for colors numbered 801 at 24 tons and 720 at 37 tons. Ex. R-32. In reviewing the oiler’s waste reports for March 2, 2010, there was no run of color number 720, he admitted. Tr. 660-61; Ex. S-6. The email also contained an attachment of an example of another employee’s Last Chance Agreement. Ex. S-32. Coombs confirmed that the attachment was to serve as an example of such an agreement but he could not say what it was for. He stated that Pilon’s disciplinary letter in February 2009 was such an agreement although it was not signed by Pilon and was called a fair and final letter. Id.

             Coombs testified that accident and incident reports are generated from employee verbal reports. Tr. 633. Coombs stated that he recalled that Pilon’s worker’s compensation claim was denied not because it was not work-related but because it was a result of degenerative disc disease. Tr. 641. Coombs explained that what he meant in the email in August to McNew about the worker’s compensation claim is that Pilon had indicated that he was injured at work and he was not and he was afraid a similar situation could resurface. Tr. 608. Coombs denied that when he wrote, “A suspension in my view may only put us at risk for retaliation by way of another WC claim of which he has a history” in his August 22nd email that he was concerned that Pilon would file another worker’s compensation claim. Tr. 642-650. Coombs admitted that a reasonable person reading his email could conclude that he was concerned that not firing Pilon could open ISP up to a worker’s compensation claim by Pilon and, because accident/incident reports are filled out for worker’s compensation claims, not firing Pilon raises the possibility that he would file another accident/incident report in the future. Tr. 652-54. He testified that when he terminated Pilon on March 15, he was aware of the February 26 accident/incident aluminum chloride report. Tr. 655.

             Coombs said as soon as he received Hill’s investigative notes, he immediately concluded that Pilon should be terminated for the same type of conduct that Pilon had engaged in back in February 2009. The fair and final letter to Pilon had outlined what ISP’s expectations were of him. Coombs testified that he followed proper procedure in notifying the union when he called the meeting on March 15, thirteen days after he decided to terminate Pilon. Tr. 595-97. He stated that the delay in meeting with Pilon for termination was to make sure senior management was going to be available. When he met with Pilon and the union on March 15 he reviewed the information and findings with them. Tr. 598. He then conferred with Hill and senior management regarding Pilon’s response to the charges and found no extenuating circumstances to stop the termination. He then finalized the letter, reconvened the meeting, reviewed the letter with Pilon, and terminated him. Tr. 602-03.

             Coombs testified he would not have fired Pilon for the excessive waste on February 22 alone. Tr. 604. Coombs stated that in his opinion, workplace safety was important to Tyler Hill and he shared the belief in holding people accountable for their actions. Tr. 605. He testified that Hill had high integrity and was willing to hold people accountable for their actions. Tr. 606. Coombs said that Pilon was the only kiln operator subject to a fair and final chance letter. Tr. 610. Coombs testified that he signed the accident investigation report pertaining to the inhalation of aluminum chloride on the February 25 on March 8 and he did not take it into consideration in firing Pilon because he had already made up his mind to fire him based on Hill’s investigation. Tr. 612.

             Hill testified at the temporary reinstatement hearing that as a result of his investigation into the events of March 2, 2010, he concluded that Pilon lied to his supervisor and had not rapped out the coolers. He was also loafing in the panel room on an extra break while one of the kilns was out of specification. When he and Pilon checked the temperature gauge, it appeared to Hill that an additional adjustment was needed and he told Pilon to go do it which he did. Based upon the severity of Pilon’s disciplinary “history,” Hill determined that Pilon should be sent home pending an investigation. Temp. Rein. Tr. 64-66. During the investigation Hill learned of the February 22 alleged waste which together with the events of March 2 became the sole basis for his determination that Pilon should be terminated. Temp. Rein. Tr. 68.

VI.        ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

A.    The Prima Facie Case

            Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any protected right under the Mine Act. The purpose of the protection is to encourage miners “to play an active part in the enforcement of the [Mine] Act” by recognizing that, “if miners are to be encouraged to be active in matters of safety and health, they must be protected against any possible discrimination [that] they might suffer as a result of their participation.” S. Rep. No. 95-181 at 35 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Resources, 95^th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977 at 623 (1978).

            In order to establish a prima facie case of discrimination under section 105(c)(1) of the Mine Act, a miner alleging discrimination must show: 1) that he engaged in protected activity; and 2) that the adverse action he complains of was motivated at least partially by that activity. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds, 663 F.2d 1211 (3^rd Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981); Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). In determining whether a mine operator’s adverse action was motivated by protected activity, a judge must bear in mind that “direct evidence of motivation is rarely encountered; more typically, the only available evidence is indirect.” Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). Factors to be considered in assessing whether a prima facie case exists include: 1) the operator’s knowledge of the protected activity; 2) hostility or “animus” towards the protected activity; 3) coincidence in time between the protected activity and adverse action; and 4) disparate treatment of the complainant. Chacon, 3 FMSHRC 2508 (Nov. 1981).

            A mine operator may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine operator cannot rebut the prima facie case in this manner, it nevertheless may defend affirmatively by proving that it was also motivated by the miner’s unprotected activity and would have taken the adverse action for the unprotected activity alone. Pasula at 2800; Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4^th Cir. 1987). The Commission has also held that judges may conclude that [such] justification is so weak, so implausible, or so out of line with normal practice that it was a mere pretext seized upon to cloak discriminatory motive. Chacon, 3 FMSHRC at 2516.

1.   Protected Activity

             A miner engages in protected activity when making a complaint under or relating to the Act. 30 U.S.C. §815(c). The Act provides that no miner shall be discriminated against when making a complaint of a danger or safety or health violation. The Secretary’s position is that Pilon made repeated reports of safety issues at ISP which earned him the reputation as a whiner and complainer. He filled out numerous written complaints on “blue cards” which he submitted to his supervisors. Tr. 36, 55, 58-59. In addition, he filed several accident reports as a result of inhalation of aluminum chloride in 2006 or 2007, a back injury from standing on a catwalk to clean overhead screens, a back injury clearing snow and another inhalation of aluminum chloride in February 2010, shortly before his termination. Tr. 49-50, 53 and 40-42. All of these reports of safety issues and injuries are protected activity, the February 2010 incident being the one that sealed his fate at ISP.

             While ISP acknowledges that Pilon’s complaint of inhalation of aluminum chloride in 2006 or 2007 would be protected activity it asserts that Pilon’s report of exposure on February 25, 2010 is not because Pilon’s belief that the exposure posed a safety concern was not objectively reasonable. ISP asserts that because Pilon did not suffer any ill effects from the February 25, 2010 inhalation and that the box checked on the Accident/Incident Report next to “potential consequences” is marked “none,” it was not reasonable for him to conclude that this incident constituted an actual safety hazard. ISP also submits that Pilon’s belief is not reasonable because after the earlier incident, he accompanied Tyler Hill on an investigation and air monitoring process and was aware that the vapor posed no hazard according the laboratory results. ISP Brief at 18.

            I disagree. Following his previous exposure in 2006 or 2007, Pilon experienced breathing difficulties and missed three months of work. The fact that Pilon did not introduce medical testimony that this earlier exposure actually caused his breathing difficulties, as ISP suggests, is irrelevant because Pilon had a reasonable belief that it did cause his breathing problems. He was awarded worker’s compensation and not allowed to return to work until the physician cleared him. Having already suffered the ill effects from his prior exposure, Pilon was more likely to not only recognize the vapor but to be concerned about it. Acknowledging that he did not suffer ill effects from the February 25, 2010 exposure is not sufficient evidence that Pilon did not reasonably believe that the aluminum chloride exposure was a safety hazard. Pilon did not fill out the incident report form nor did he have any input as to how it was filled out. Schlais testified he told Pilon he would fill one out to protect both of them. The only notations on the form that were Pilon’s were his signature and the date. Tr. 44. Therefore ISP’s argument that Pilon did not have a reasonable belief that the event was a safety issue based upon the information appearing on the incident report is misguided. As Pilon testified, he was extremely disturbed by Schlais’ comments that he should stay away from the discharge end of the kilns while it was in operation and to wear a respirator. He stated the miners were told the air was perfectly safe to breathe and to work in without respirators and he was concerned that other miners would not be given the same restrictions and information that a health and safety issue existed while working near the kilns. Tr. 44-45.

The argument that Hill had tested the air and found it to be safe is also not supported by the evidence. Although Pilon was with Hill at one point when he tested for gas leaks with a monitor, Pilon testified that he was not aware that the resultant aluminum chloride testing was within acceptable limits. Tr. 191. As Pilon stated, “I don’t know that the company did any testing. I was out of work for three months. I don’t know what they did after I had left.” Tr. 191. In addition, even if I were to assume that Pilon knew that the test results posed no hazard, it still does not demonstrate that Pilon’s belief was unreasonable. When presented with the test results during redirect, Pilon stated that the negative monitor results taken around the time of his earlier exposure could have been negative because the mine might have been “running a different type of rock” the day of the testing, resulting in a process that doesn’t generate aluminum chloride. As Schlais indicated on the incident report form, a respirator should be worn when a color is being run that uses aluminum chloride. Schlais also testified that the vents on the kiln had been changed to reduce the amperage being drawn. As a result of Pilon’s complaint, Schlais redirected the vents to draw the escaping vapor way from the discharge end of the kiln. Obviously, these adjustments directly affected the gas being discharged from the kilns and could have been made at any time before or after Hill’s testing. Therefore, what Hill found on one day of testing is irrelevant to what occurred on February 25, 2010 or in 2006/2007. Tr. 276.

Finally, ISP argues that because Lee Schlais did not consider the incident to be serious and that Dan Gadzalinski testified that he had never heard of anyone other than Pilon raise concerns about aluminum chloride, it was not objectively reasonable for Pilon to believe the incident posed a safety hazard. This argument is erroneous. Neither Schlais nor Gadzalinski experienced the after-effects of aluminum chloride exposure. Pilon did and was made seriously ill by it. The fact that he was out on compensation for three months as a result leads to the conclusion that it was determined to be a work related incident. The Respondent offered no evidence to rebut this assertion. In fact, ISP’s witness Matt Wimmer, Pilon’s supervisor at the time of the incident, testified that he recalled certain details about the resultant accident report. Tr. 456, 469, 473. It appears that the accident was documented, the injury was found to be serious and work-related and it in fact occurred. There can be no doubt Pilon’s belief that his inhalation of aluminum chloride on February 25, 2010 posed a safety hazard was reasonable both subjectively and objectively.

Given the above, I find that Pilon’s February 26, 2010 accident/incident report is protected activity under the Mine Act. I further find that his reported 2006/2007 inhalation of aluminum chloride and his reported back injuries in February 2009 were protected activity as well. I find credible Schlais’ and Gadzalinski’s testimony that he made many other safety and health complaints and that they were usually legitimate claims but became known as a whiner to management. Tr.545-56, 551,310; Ex. S-37.

2.   Adverse Action

Having found that Pilon engaged in protected activity, I must next determine

whether Pilon was subjected to adverse action that was motivated at least partially by that activity. In so doing, I look to evidence of motive – knowledge, animus, coincidence in time and disparate treatment. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds, 663 F.2d 1211 (3^rd Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981); Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998).

            Knowledge

             In Pilon’s case, there is direct evidence that ISP had knowledge of his protected activity. Coombs testified that although he was not with the company when Pilon reported his back injuries and took the drug test in February 2009, he became involved when he met with Pilon and the union representatives following his suspension and reinstatement when he was asked to remove the document from his personnel file. Tr. 560-62. Coombs was well aware of the accident report and safety complaint made by Pilon on February 25, 2010 as well, although he stated that it had nothing to do with his decision to fire Pilon. Tr. 655. Consequently, it is clear that ISP management was aware of Pilon’s protected activity before he was suspended and terminated.

            Hill was directly involved in the suspension of Pilon in 2009 and 2010 and his termination as a result of alleged performance issues. Hill’s signature appears on the accident report from the February 25, 2010 filed by Pilon. Tr. 530.

            Testimony from several witnesses established that when an employee filled out a blue card reporting a safety or health concern, the company procedure was for these reports to be sent to management. Management was aware of the numerous ones Pilon filed to the point he was known to “hourly and salary (management) as a whiner and complainer” and someone to watch out for. Tr. 545-47, 550, 310.

Hostility

The record contains evidence of animus or hostility towards safety concerns in general as well as towards Pilon in particular, notwithstanding ISP’s repeated claims and witness testimony that it took safety seriously. ISP presented evidence through Coombs that it took safety seriously in several ways, for example by requiring employees to submit safety concerns on special “blue card’ forms, reporting not just accidents but “near-misses,” and holding “tool box talks.” In addition, the testimony and statements given to MSHA are consistent that Hill was serious in requiring miners to report safety concerns. Indeed, there was repeated testimony from ISP witnesses that miners were required to report safety issues, and that they would also be disciplined by Hill for not doing so. At first blush, all of these things suggest that ISP was open to safety concerns from employees. However, there is also strong evidence that ISP simultaneously adopted a “kill the messenger” approach to safety reports and focused on Pilon in particular.

Ernest Vivio, Jr. was the vice president and chief steward for the union until 2009. His job was to process grievances filed by the miners. Tr. 784. He filed 10 to 15 grievances against Tyler Hill for discipline issued by him. Tr. 785. Vivio and the rest of the grievance committee thought that the severity of the punishment issued by Hill was in excess. Hill was black and white in his thinking. Tr. 796. Hill was aggressive. Tr. 797. In response to my question, “Was there any sort of atmosphere that you feel he created among the workforce with his attitude” Vivio responded, “Oh, yes. He – a lot of people were on edge. A lot of people were unsure as to what was right and what was wrong in a safety situation.” Tr. 798.

Ann Davis was interviewed by MSHA during the investigation of Pilon’s complaint. Davis told Hautamaki, “People [employees] at the mine are afraid to report accident [sic] and near misses. If a person reported some near misses or accidents, management would go to this person and tell them that they were a high risk for an accident and put their name on a list of persons that were high risk employees.” She went on to say that, “Doug was a whiner because if there was a safety problem or something didn’t get fixed, he would constantly bring it to management’s attention. That is why management didn’t like him.” She went on to say, “Several times there would be 5 or 6 employees sitting in the control panel room and the supervisor would come in and walk by all of us to Doug and tell just him to go to work somewhere…It was easy to see Tyler Hill had it in for Doug. Doug was told to shovel an elevator that had such a large leak that no one person could keep up with the spillage.” Ex. R-40.

Eric Forstrom, the oiler on Pilon’s shift, made a statement to Hautamaki in which he stated he never knew Doug to refuse to do any work. He did not take longer breaks than anyone else. He would tell management at morning startup meetings or during the shift about things that needed repair. “Tyler Hill rode Doug pretty hard. Worse than any other employee. [Sic] Tyler Hill was constantly riding Doug about clean up [sic] work and the length of his breaks. Doug was not taking longer breaks than anyone else.” Ex. R-41.

             Although Lee Schlais told Hautamaki that he knew of no one that was afraid to report safety concerns, I give his statement less credence than that of Davis, Vivio and Forstrom because Schlais is a supervisor and Davis and Vivio are not management employees. I also take into consideration his statement that Pilon did raise far more complaints than any other employee and heard several people including salary (management) referred to him as a whiner. He did not think of Pilon as a whiner just someone who was concerned about safety. Ex. R-36.

            Roger Faucett, union president, told Hautamaki that he didn’t know if Hill had it in for Pilon but between his back injury and his complaints, it was too much. Doug complained about safety and he had heard people refer to Doug as a complainer but that may have been started so that “they would not look bad and to make someone else look bad.” Ex. R-39.

            It is clear to me from these statements that Hill and Coombs created an atmosphere where the fear and intimidation of reporting safety issues was palpable. Miners were aware they would be known as “high risk” employees for making a report. People were on edge and didn’t know what the right thing to do was in a safety situation. Had Coombs’ and Hill’s assertions that they encouraged miners to bring up safety issues been sincere, “bad” would hardly be a word a miner would use in describing how they would be perceived by doing so. A person such as Pilon who did report more safety issues than others would not have been described in pejorative terms such as “whiner” or “complainer” but would be appreciated for his concern. Instead, as is clear from the evidence that Pilon did gain the reputation of being a whiner and complainer even though his complaints were legitimate in the words of his supervisor Schlais. It was obvious to his co-workers that he was not liked and treated differently by Hill as a result.

Gadzalinski did not consider the alleged infractions by Pilon on March 2, 2010 serious enough to warrant involvement of upper management except for the fact that Hill had been breathing down on him for waste. He further stated that Hill did not seem agitated by Gadzalinski’s report. Tr. 716. Coombs immediately sought termination of Pilon, however, without speaking to Gadzalinski, Mastie or Davis first. Tr. 625, 664, 666. Gadzalinski testified that he told Hill about the excess waste created on February 22 the night of March 2. However, Hill testified at the temporary reinstatement that he learned of it during his investigation after the events of March 2. Temp. Rein. Tr. 68. Hill sent an email to HR on March 9 stating Pilon was responsible for $4,502 worth of waste for 37 tons of color 720 on March 2. Ex. R-32. The oiler reports for March 2, however, document that color 720 was not run on March 2. Ex. R-30. Both Hill and Coombs worked in concert for 13 days to arrange Pilon’s termination before giving him the opportunity to respond or involve the union. Tr. 595-97. I find the haste with which they generated inaccurate information, neglected to verify any of the information provided by Hill to Coombs from the persons who were involved with the events of March 2 and immediately determined firing Pilon was the appropriate course of action is indicative of the animus they felt towards him. It does not appear that the alleged misconduct by Pilon was at the heart of their decision to terminate him on the spot for events his supervisor did not find particularly serious.

It is also evident that management was hostile towards worker’s compensation claims from Pilon. In the August 22, 2009 email from Hill via Coombs to ISP’s HR managers Coombs expressed concern that Pilon would file another claim should they not terminate him as “he has a history” of doing so. Ex. R- 23. While this email is related to Pilon’s August 2009 suspension and was drafted prior to his February 26th safety report, it demonstrates that mine management was already concentrating on Pilon and actively seeking to terminate him.

I find sufficient evidence of record to establish hostility towards Pilon for his vocal nature in reporting safety issues and accidents over the course of his employment at ISP which came to a head in the February 2009 to March 2010 time frame.

             Coincidence in Time

            There is close temporal proximity between Pilon’s protected activity and his suspension and termination. Pilon reported the aluminum chloride inhalation to his immediate supervisor, Lee Schlais, on February 25, 2010 and Schlais completed the accident/incident report the next day. Tr. 44; Ex. R- 29. February 26, 2010 was a Friday. On Tuesday, March 2, 2010, two business days after submitting the report, Pilon was suspended without pay. Clearly, these events occurred in very close proximity of time to one another.

            ISP submits that Pilon’s prior report of aluminum chloride exposure negates any inference of motivation for termination based on temporal proximity. ISP Brief at 25. In support, ISP cites a Seventh Circuit case, in which the court found that because other similar complaints had occurred previously, suspicious timing alone was insufficient to prove discrimination. Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668 (Jan. 13, 2011). This case, however, is not analogous.

            In Leitgen, the plaintiff physician had complained for years to hospital management that the hospital’s compensation scheme unlawfully underpaid physicians based on gender. Id. The court found that relevant decision makers knew of her belief that the compensation system was discriminatory long before they terminated her. Leitgen at 676. Pilon’s prior reported exposure was a single event that occurred three years earlier and a second time in February 2010. Unlike the plaintiff in Leiken, he was not continually reporting aluminum chloride exposure or even raising concerns about aluminum chloride exposure between 2006/2007 and 2010.

            ISP also argues that because Pilon’s prior gradual discipline began before the protected activity, an inference of causation drawn exclusively from the timing of the protected activity cannot stand. ISP Brief at 26. This argument has no merit. First, I’ve previously found that both the knowledge and hostility elements of circumstantial indicia are met; therefore, an inference of motive will not be drawn exclusively from the timing alone.

            In addition, while Pilon may have been disciplined in the past at ISP, the infractions were minor and he was never put on notice that his job was in jeopardy when they occurred. Indeed, the only time that Pilon was put on notice that his job was in jeopardy was in August of 2009, when he was suspended for five days. He was told that if he failed another drug test or made an untimely accident report he could lose his job. Tr. 591, Ex. R-27. However, the record reveals that between August of 2009 and March of 2010, Pilon worked in excess of six months without any discipline, and did not file any untimely accident or incident reports. During that interval, the only incident that ISP attempted to attribute to Pilon was on February 22, which involved excess waste. ISP never addressed the February 22 incident with Pilon at the time it occurred and it is clear that this incident was not the fault of Pilon’s but due to no paint being applied to the rock which cannot be attributed to him. Consequently, I find a coincidence in time between the protected activity and the adverse action to be indicative of ISP’s improper motive to fire Pilon.

Disparate Treatment

Hautamaki testified that he reviewed the plant rules during the investigation. Tr. 374. He also tried to establish whether other employees had been disciplined for the same conduct. Tr. 377. However, he had difficulty getting information from the company and he felt he had been stonewalled in his efforts. Tr. 398. He asked for discipline records that had to deal with waste material and was not provided with any. Tr. 405. Hautamaki testified that he reviewed ISP’s oiler waste reports and found waste amounts ranging from 19-67 tons and testified that his investigation revealed that no one but Pilon was ever disciplined for waste during a start-up. Tr. 311-317; Ex. S-6-16.

In addition to revealing the 36 tons of waste, Gadzalinski and Hill attempted to blame Pilon for February 22, 2010, the Oiler’s Waste reports show large amounts of waste on other occasions. Ex. S-6-16. The reports reflect that color 801 in particular created waste in the double digits on all but one occasion when it was run; the amount blamed on Pilon on March 2 was not the highest. The reports also reflect that on March 20, 2010, five days after Pilon was fired, 67 tons of rock was wasted. Similarly, on May 17, 2010, 62 tons was thrown out. On all of the reports, “startup” appears to be the predominant reason for waste. It is apparent that a fairly large amount of waste is part and parcel of the changing and starting up of the coloring process. As Gadzalinski testified, it only takes a few minutes to make 20 tons of waste. Tr. 758. If the Chief Operator has put too much water on the rock, it gets mixed with the color and rock particles that stick to the sides of the coolers and causes waste. Tr. 765.

Hautamaki interviewed Roger Faucett, the union president for 20 years at ISP. The interview was reduced to a written statement signed by Faucett. Ex. R-39. He stated that approximately a week after Pilon was terminated the kiln operator had to waste 90 or 94 tons on startup. There was no disciplinary action as a result. He also said that Hill and Gadzalinksi worked together one weekend and ran bad color all day and had to throw away an entire day’s production. Neither of them received any disciplinary action for that. He had never heard of anyone being disciplined for wasting material during startup. Ex. R-39.

During the investigation, Hautamaki also interviewed Eric Forstrom the results of which were reduced to a signed written statement. Ex. R-41. Forstrom is an oiler who worked with Pilon. As the oiler, he would be the person to see if the color was good or bad and if it was bad, to throw the valve and waste it. On the day Pilon was sent home, Forstrom said they had to rap out three times and waste 30 tons of material. The following week approximately 90 tons was wasted. He did not receive any disciplinary action as a result nor was he talked to about it. He worked with Pilon about half the time and never knew Pilon to refuse to do any work. He never saw Pilon take more breaks than anyone else or longer ones. He had heard Pilon make safety complaints to management at morning meetings. Hill constantly rode him harder than anyone else about the length of his breaks and cleaning. Ex. R-41.

            Ann Davis also signed a written statement after her interview with Hautamaki. Ex. R-40. She was the day shift kiln operator who worked on the opposite shift as Pilon on March 2, 2010. She described that day as very bad; she cleaned plugged chutes all day. Davis said that Pilon made a lot of safety complaints and management did not like him as a result. There were times when she and her coworkers would be sitting in the panel room on break and Hill would direct Pilon back to work while he said nothing to the others. She never saw Pilon take more breaks or longer ones than anyone else. She felt “it was easy to see that the company especially Tyler Hill had it in for Doug.” He was the only person she has known to be disciplined for wasting material at startup. Ex. R-40.  

            Hautamaki interviewed Richard Vivio, an oiler on another shift. He testified that Vivio told him that no one had ever been disciplined for bad startups, and that people did not want to report accidents because they were afraid that they would be put on a list. Tr. 323-324.

Hautamaki also interviewed Ernest Vivio, a former union steward at the plant. Tr. 324. He stated that Ernest Vivio told him that Pilon made a lot of complaints and was a complainer and a whiner. Id. Vivio testified that he was disciplined as well by Tyler Hill. He was attempting to fix an electrical cord that was located on a bumper where a truck backed in. He was sitting on the bumper with one leg hanging off and he had not locked out or tagged out the electrical hopper. He was given a three day suspension. Tr. 793.

Richard Heigl, a machinist at ISP and a union safety committee member, testified that he can’t remember anyone that Hill suspended for a safety violation or loafing. He recalled one employee, Dave Mason, being sent home for insubordination for being “way out of bounds as far as yelling and screaming.” Tr. 495. He recalled that Mason was screaming at either Tyler Hill or Matt Wimmer and there were several incidents like that but he couldn’t recall how long his suspension was. Tr. 502. Heigl stated that someone besides Pilon received discipline for sleeping on the job but he could not recall who it was but it resulted in time off. Tr. 476-78; 495-96. He was not aware of anyone being treated differently for raising safety concerns. Tr. 497. He testified that a Jim Holgrin and a Randy Wallis received a three-day suspension for putting a pry bar through a guard and for not having a lock on a piece of energized equipment. The violation could have resulted in a broken nose. Tr. 498.

Pilon testified that he only knows of one other miner, Bill Counter, who had received a second chance agreement. Tr. 265. He knew of no one who had been disciplined for waste.

            Schlais testified that he was suspended without pay for five days for opening an energized electrical panel box. As he stated, he could have been killed by doing so. Tr. 533. He also stated that Pilon received more violations in one day on August 17, 2009 than anyone else ever had. Tr. 544, Ex. S-36. Pilon worked for him during this time frame but Schlais was not involved in the disciplinary action against Pilon. Tr. 544. He also told the investigator that Pilon reported more safety violations than anyone else and he heard salary (management) and hourly refer to him as a whiner. Tr. 545-46. Ex. R-36.

            Gadzalinski did not know of any employees disciplined for visiting other employees or inefficiency or negligence; however, he did know of several employees disciplined for loafing and knew of two employees disciplined for sleeping. Ex. R-37. Gadzalinksi also knew of one employee who was disciplined for insubordination. Ex. R- 37. When Gadzalinski was disciplined, it was handled at the supervisory level which Gadzalinski said is where he would have handled Pilon’s actions on March 2, 2010 had it not been for Hill breathing down his neck to blame him for waste. Tr. 716-19.

            Ryan Milligan, was an oiler at ISP in 2009-2010. Tr. 770. Although he testified that Pilon worked at his own pace, was not quick and may have taken longer breaks, he clarified his position and testified that he could not say Pilon did anything any other miners did not do. Tr. 777. Milligan testified that he was suspended for five days but it was only after a three day suspension and two written warnings according to written policy for being late on ten occasions. Tr. 779-82.

            Mike Hammill, a rock lab technician, testified that he was disciplined for climbing to the top shelf to inventory items located there. Hill walked in and discovered Hammill “in the air on a shelf without fall protection on.” Tr. 681. He was not terminated for this violation of the rules but received a five day suspension. Id. He could not recall anyone disciplined for neglect of machinery but had a vague recollection of someone disciplined for sleeping on the job. Tr. 685. He never had any disciplinary problems with Pilon. Tr. 688. 

Assuming I was to find the evidence Pilon has committed the infractions alleged by ISP, I find the record is replete with evidence of disparate treatment. First, there is no evidence in the record that any employee was ever disciplined for waste of product, neglect of equipment, or visiting other employees or taking longer breaks (loafing). Secondly, although some other employees received a disciplinary suspension, their infractions were for opening live electrical boxes or repairing live electrical equipment, working at elevation without fall protection and inserting a pry bar bypassing a guard without locking/tagging out equipment. Each of these infractions could have led to very serious bodily injury as well as a reportable injury in violation of a mandatory standard subject to imposition of penalties on ISP. Notably, however, not one of the employees who committed these infractions was terminated despite Coombs’ and Hill’s assertions of zero tolerance for any violations and like treatment for all. Milligan received a five day suspension for tardiness on ten occasions according to a written graduated disciplinary protocol. There is evidence of only unsubstantiated rumors and unidentified employees who had been termination for sleeping on the job or insubordination. No evidence was presented that named such an individual, stated a date or year it occurred, presented the surrounding facts or produced proof of the discipline taken against the individual for such infractions. Hautamaki testified that he was stonewalled by ISP when he requested the disciplinary records from ISP to investigate the issue.

The Commission has indicated that knowledge of the miner’s protected activity is “probably the single most important aspect of the circumstantial case.” Chacon, 3 FMSHRC at 2510. I previously found that ISP management knew of Pilon’s protected activity when it suspended and terminated him. In addition, I further found evidence of hostility. I found a substantial coincidence in time between Pilon’s protected activity and the adverse action and, finally, that Pilon experienced disparate treatment prior to his suspension and termination.

            An operator may rebut a prima facie case of prohibited discrimination by showing either that no protected activity occurred, or that the adverse action was in no part motivated by the protected activity. See Robinette, 3 FMSHRC at 818 n. 20. In evaluating the evidence, I found that Pilon engaged in protected activity when he reported the aluminum chloride incident and I found ISP’s arguments to the contrary unpersuasive. In addition, I find that the evidence strongly indicates the adverse action was motivated, at the very least in part, by the protected activity.

            In light of the findings I have made above, specifically, that Pilon engaged in protected activity, that ISP took adverse action against him, and that the adverse action was motivated at least in part by Pilon’s protected activities, I conclude that the Secretary has met her burden of establishing a prima facie case of unlawful discrimination under the Mine Act and the Respondent has failed to rebut it.

III.      ISP’S AFFIRMATIVE DEFENSE

            If the mine operator cannot rebut the prima facie case, it nevertheless may defend affirmatively by proving that it was also motivated by the miner’s unprotected activity and would have taken the adverse action for the unprotected activity alone. Pasula 2 FMSHRC at 2800; Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4^th Cir. 1987).

The Commission has explained that an affirmative defense should not be “examined superficially or be approved automatically once offered.” Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982).  In reviewing affirmative defenses, the judge must “determine whether they are credible and, if so, whether they would have motivated the particular operator as claimed.” Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982).  The Commission has held that “pretext may be found . . .where the asserted justification is weak, implausible, or out of line with the operator's normal business practices.” Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990).  However, the Commission has also held that “our judges should not substitute for the operator’s business judgment our views of “good” business practice.” Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981)

 In Jayson Turner v. National Cement Co. of California, 33 FMSHRC 1059 (May 2011), the Commission listed ways in which the complainant may show that the operator’s affirmative defense is not credible.  First, the complainant may establish that the operator’s proffered reasons have no basis in fact, i.e. are factually false.  Second, the complainant may show that the proffered reasons did not actually motivate the discharge, i.e. the complainant admits the factual basis underlying the employer’s proffered reasons, and that such conduct could motivate dismissal, but attacks the credibility of the proffered reasons indirectly by showing circumstance which tend to prove that an illegal motivation was more likely than the legitimate business reasons proffered by the employer.  Third, the complainant may show that the employer’s proffered reasons were insufficient to motivate termination i.e. other employees were not terminated even though they engaged in substantially similar conduct which was the basis of the complainant’s termination.  The first and third approaches directly attack the credibility of the employer’s proffered motivation, while the second approach indirectly attacks the credibility of the employer’s proffered motivation. Id.

Pilon and ISP’s witnesses testified at length regarding the events leading up to Pilon’s termination. In addition, Hill, Pilon’s immediate supervisor, testified at the temporary reinstatement hearing that the termination letter accurately and truthfully reflects all of the reasons why Pilon was terminated. Temp. Rein. Tr. 72-7. In addition, Coombs, author of the termination letter, testified at the temporary reinstatement hearing that he considered only Pilon’s failure to timely report an accident and subsequent failure of a drug screening on February 3, 2009 and the events of August 2009 and March 2, 2010, in his termination decision. Temp. Rein. Tr. 72-73. However, at the hearing on the merits of the case, ISP introduced evidence of several other incidents that took place prior to the February 3, 2009 accident report and drug-screening incident. The prior events raised by ISP concerned Pilon failing a written driving test in 2006, not completing adequate inspections in April 2005 and 2006, not properly cleaning a cone in January 2009, and a few instances of retraining during the years prior to February 2009.

            These events are remote in time and were not sufficiently important for management to put Pilon on notice that his job was in jeopardy when they occurred. More significantly, both Hill and Coombs confirmed that these events were not part of their decision to terminate Pilon in March 2010. I do not find they were part of a graduated disciplinary program at ISP. I confine my consideration of Pilon’s termination and ISP’s allegations of non-discriminatory justification to those incidents set forth in Secretary’s Exhibit 17 and the February 3, 2010 failure to timely report an accident and drug screening incident that Coombs testified that he also considered. Temp. Rein. Tr. 72.

Coombs testified that the reported back injury was deemed by the workmen’s compensation insurance company to be non-work related. At a meeting with Pilon and the union concerning these events, he agreed to remove the records from Pilon’s file for one year and if Pilon did not make an untimely accident report or fail a drug screen, he would remove them from Pilon’s file permanently. Tr. 561. Pilon was not cited for either again. Coombs testified that the documents were not in Pilon’s file. Tr. 628, 631. Coombs was unable to explain why these documents were submitted to him by Tyler Hill as evidence of a discipline in connection with the March 2 investigation. Tr. 631; Ex. R-31. Given that Coombs testified that he removed these records from Pilon’s personnel file, they should not have been submitted to him by Hill or considered by Coombs in his termination decision. Consequently, I find that there is no basis for Pilon’s termination based upon this incident.

            Cooms’ March 2010 termination letter advises Pilon that when he was directed by his supervisor to clean out the second coat cooler system, he was dishonest in replying it had already been done and after being directed a second time he failed to follow his supervisor’s instructions and perform his assigned tasks. Ex. S-17. The letter states that these events violated Plant Rules 17, 19, and 20; specifically, “willful damage or neglect of machinery, tools, equipment, materials, or any other ISP property; inefficiency or negligence in performance of duties; and willful insubordination, including refusal to follow lawful instruction from your supervisor.”

            Coombs confirmed at hearing that his only knowledge of the events came from what Hill reported to him. Although he testified that he believed he spoke to Gadzalinski at some point in time after he made the decision to fire Pilon, Gadzalinski testified that he never spoke with Coombs about the events. Likewise, Coombs did not obtain Davis’ statement corroborating Pilon’s account of the problems encountered during the startup and that she had told Pilon she rapped out until he had finalized his decision. He did not speak with Mastie who could give a direct account of the events. Nor did he speak to Forstrom, the oiler, who was also present on March 2, who told Hautamaki that they had to rap out three times that night and that he had never heard Pilon refuse to do any work. Ex. R-41.

            I find Coombs did as little to confirm the accuracy of the events of March 2 as possible. His reliance on Hill’s report of second hand information was unfair at best and more likely deliberate. The allegations raised by Hill were used as a pretext to effectuate the termination they had been seeking to achieve since February 2009. Coombs is an unreliable witness.

            There are several versions of the sequence of events on the evening of March 2 2010 given by Gadzalinski. He made several conflicting statements at hearing from those he made when interviewed by Hautamaki. In his statement to Hautamaki, he said he heard Mastie tell Pilon to rap out the chutes and coolers. Pilon responded that it had been done. Gadzalinski then told him to do it and Pilon left the room to do so. The color was still bad so Gadzalinski rapped out. When it was still bad, he told Pilon to do it a second time which he apparently did. He said “we” had to rap out three times. He then told Hill that Pilon refused to rap out. He also told Hautamaki that he knew nothing of the waste report on February 22, 2010. Based upon a question asked by Respondent’s counsel at this interview, he stated that he would have reported Pilon’s actions regardless of the waste issue because it was insubordinate behavior. Ex. R-37.

            In stark contrast to his statement to Hautamaki, Gadzalinski testified at trial that he met with the off-going foreman who did not inform him of any problems encountered on the day shift. Tr. 724. He testified that Mastie told Pilon twice that the rock was coming out of the kiln and to rap out the cooler. Then he said Mastie could have said the rock was going into the kiln the first time and coming out of the kiln the second time. Tr. 705, 739. He then said, for the first time, that he (Gadzalinski) told Pilon to rap out twice rather than once and the first time Pilon again responded by saying that Ann Davis had done it already. The second time, Pilon went to rap out. Tr. 706-707. Later he stated that he told Pilon once to rap out and Pilon left the room to do so. He then testified the he didn’t think Pilon did rap out because he didn’t hear it. Tr. 725-26, 728, 733. Gadzalinski then said that he rapped out twice and Pilon did so once, not twice, before Gadzalinski rapped out. Tr.708-09, 727-28. Gadzalinski testified that he could not recall telling Hautamaki that he knew nothing about the February 22 incident. Despite Gadzalinski’s claims that Pilon lied to him and refused to do his job, Gadzalinski testified that he would not have reported Pilon’s actions to management except for the fact that Hill had been “breathing down” on him for the amount of waste although he told Hautamaki based upon counsel’s question that he would have reported Pilon regardless of the waste issue. Tr. 716. Gadzalinski confirmed that he had disciplinary authority over the employees at the time. Tr. 718-19.

            I find Gadzalinski is not a credible witness. As the supervisor on the second shift, I find it unlikely that Gadzalinski was not briefed on the difficulties experienced on the earlier shift, especially as it was unusual that the first shift performed the startup. Moreover, given Gadzalinski’s concern about waste, it is surprising that he would not have recalled the wet product and plugged chutes that plagued the earlier shift, since these things can also cause waste, which he also testified to at the hearing. Tr. 763-764. More importantly, however, is the readily apparent motive Gadzalinski had in shifting the blame for the waste on March 2, 2010 and February 22, 2010 to someone else. In an atmosphere created by Hill where people were afraid to report their concerns and with Hill breathing down on the supervisors specifically for the amount of waste being created, it stands to reason he would blame someone else for the 23 tons created on the 2^nd. Pilon testified that when the start-up is very bad, the foreman will often stop the process and start over. Gadzalinski apparently did not make the decision to do that and had a large amount of waste on his shift as a result. Tr. 71-72. Giving it a moment’s thought, it made sense to tell Hill while he was reporting the waste that night to look into the February 22 waste reports as well where 36 tons of waste was created on his shift which he told Hill was Pilon’s fault. Unfortunately, Gadzalinski did not recall the oiler’s report listed the cause of waste on the 22^nd as raw paint which could not be attributed to Pilon or any kiln operator. I also take into consideration the many versions of the events of March 2 given by Gadzalinski and his feeble explanation for them as a lapse in memory and the events having taken place a long time ago as evidence of his lack of credibility.

            According to Gadzalinski, Hill’s information regarding what occurred in the control room came from one conversation with him in the lab on the night of March 2. It was also during this conversation that Gadzalinski told Hill to look into the waste on February 22, 2010. Hill testified that he obtained this information from Gadzalinski during his “investigation” into the events of that evening. He stated that during his “investigation” he found Pilon taking a break in the panel room and found one kiln to be out of specification. Tr. 64-65. He testified that he further “investigated” the matter after he sent Pilon home. Tr. 67. Gadzalinski and Pilon both testified that Hill did not contact them from during this subsequent “investigation.” Schlais, Pilon’s usual foreman was also not involved in the discipline process against Pilon for this incident. There is likewise no evidence that Hill spoke with Mastie, Forstrom, Davis or anyone else.

             It appears Hill’s “investigation” between March 2 and 15 consisted of sending emails to HR containing inaccurate information regarding the cost of waste attributable to Pilon and working in concert with Coombs to effectuate their plan to rid themselves of a complainer.

            At the hearing, Pilon explained that when he arrived at work that day, the earlier shift had already begun the startup process. Tr. 60. He met with Ann Davis, the kiln operator on the prior shift, who informed him that they’d had numerous problems with wet product that day and that the chutes had been plugged repeatedly. Tr. 60-61. Pilon said that when his supervisor, Dan Gadzalinski asked him to “rap out”, he believed that Gadzalinki was referring to the mixers and aerators, which Davis had already done, so he told Gadzalinski that she had already rapped out. Tr. 67. During this time, the chief operator, John Mastie informed him that the rock was just starting to come out of the kiln so he went and rapped out the coolers. Id. Pilon said that he was subsequently told by Forstrom that there was contamination and to rap out with a sledgehammer this time, which he did so. Tr. 67. Forstrom’s statement does not contradict this. Ex. R-41.

            I find Pilon had reason to be confused as to where the product was in the process based upon the unusual startup as well as from what Davis had told him. Gadzalinksi admitted that it was possible that the first time Mastie made a statement about the   rock, he could have said it was going into the kilns and the second time he said it was coming out. In any event, it appeared that Pilon had a genuine misunderstanding as to what was meant when he was told to rap out. He understood Ann Davis to have told him she already rapped out which Pilon reasonably thought meant the coolers. He did not, by anyone’s account, except in one of Gadzalinski’s many versions of the facts, refuse to rap out. Once he understood that the rock was coming out of the kilns, he responded and left the control room and went to rap out. In fact, because the color was wet, which was caused by the chief operator, Pilon rapped out twice.

            Consequently, I find that ISP’s justifications for termination based on Pilon’s violation of Plant Rules 17, 19, and 20 in relation to the startup and rapping out process on March 2, 2010, have no basis in fact.

            In addition to suspending and terminating Pilon for the above, ISP claims that it also cited Pilon for loafing in the panel room while not on a scheduled break, which was a violation of Plant Rules 16 and 19. Ex.S-17. According to Pilon, he was in the panel room waiting for his temperatures to come up after re-rapping the coolers with the sledgehammer. Tr. 106. He explained that he had been in the panel room anywhere from three to five minutes when Hill walked in and asked what he was doing. Tr. 255, 257. He explained that he had just adjusted the number one kiln and that it needed to come up 30 degrees. He explained that the number one kiln does not have a temperature gauge, that it must be adjusted with a screwdriver, and that it can take up to 15 minutes for the temperature to regulate. Tr. 107-108.

            At the temporary reinstatement hearing and in his statement to Hautamaki, Hill maintained that his impression when he entered the panel room was that Pilon was loafing because he was 20 feet from the kiln-monitoring read out, which is very small and impossible to monitor from where he was seated, and that Pilon was in a relaxed position with his hard hat off. Hill said that the readout indicated to him that it needed adjustment and he told to Pilon go do it. Temp. Rein. Tr. 65-66; Ex. R-35.

            The fact that, as Pilon testified, he was sitting in a chair away from the gauges in a relaxed position does not necessarily, by itself, mean that he was loafing. He had just adjusted the temperatures which take approximately 15 minutes for the adjustment to register. In addition, given that the kiln must be adjusted with a screwdriver and does not have a temperature gauge, it is plausible that Pilon would have to adjust it by past knowledge of the length of time that it takes for the temperature to respond and at times requires more than one adjustment. Tr. 69-70. I find that it is reasonable that a person would sit down to wait for the temperature change rather than stand up, given that there was a chair in that room and presumably for that purpose. Pilon also testified that he recited the temperatures for the other kilns to Hill and that Hill “went down and looked. He knew exactly that I was telling the truth.” Tr. 107.

            Hill’s testimony does not invalidate Pilon’s. I also find that it is possible that when Hill checked the gauge, the temperature for Kiln #1 was low. The temperature of the kilns drops when the rock comes out of it. They require periodic adjustment to bring it into specification with some colors requiring less than three degrees variance. Tr. 69-70. It can take up to 15 minutes for an adjustment to register on the gauges. Because the kiln did not have a temperature gauge and was set by feel and experience, it could easily require more than one adjustment to achieve the desired result. There were four kilns in operation. Pilon testified that the other kilns were already at the correct temperature and informed Hill what the reading was for each of them. In his testimony and statement, Hill did not address the other kiln temperatures.

            Pilon’s testimony was straightforward, earnest, and sincere. In addition, Pilon’s account contained specificity pertaining to the temperatures on the other coolers and in his recount of the conversation with Hill, lending to his credibility. By contrast, Hill’s account was very general. Given his contentious working relationship with Pilon, I find that Hill was either more than willing to jump to the conclusion that Pilon was loafing, notwithstanding Pilon’s reasonable explanations to him, or more likely he adjusted his version of the facts to support his preconceived plan to terminate Pilon. I also consider the email from Hill on March 9, 2010 to the Human Resources department in which he cited the cost for 37 tons of waste created by Pilon on March 2 for color number 720 which was not run on that date in support of my finding Hill created “facts” to support an agenda and that he is not credible. Exs. R-32 and S-5.

Taken as a whole, I find that ISP’s justifications for suspending and terminating Pilon based on the March 2, 2010 incidents are not credible. The facts are conflicting and appear to have been manipulated and raised as a pretext to justify a discriminatory motive to terminate him. There is insufficient evidence to find that he refused to rap out or was loafing causing waste, neglect of equipment, inefficiency or negligence in performance of duties or insubordination. The allegations have no basis in fact.

ISP’s second justification for terminating Pilon was for causing excessive waste on February 22, 2010 by failing to perform a proper clean out. I previously found that the record reflects that no other employees at ISP have ever been disciplined for waste. In addition, Pilon himself was not notified of this incident until he received the termination letter the following month because it did not come to light until ISP conducted their investigation into the March 2, 2010 suspension and termination. Moreover, Mark Coombs testified that the events of February 22 came to light by another employee and when Hill investigated, he found that there was some excessive waste. Tr. 598. Coombs also testified that he spoke to Gadzalinski after he had decided to terminate Pilon. Tr. 664. Gadzalinksi testified that he told Hill about the February 22 waste issue on March 2. Tr. 712. Gadzalinski testified that he never spoke to Coombs at all. Tr. 737. In addition, Gadzalinski told Hautamaki during the investigation that he didn’t know anything about the February 22^nd incident. Ex. R-37.

The testimony demonstrates serious inconsistencies between Coombs’ and Gadzalinski’s testimony. These discrepancies demonstrate faulty memories at best, or deliberate cover-up at worst. Consequently, I find that neither witness is credible. In addition to the inconsistent and conflicting testimony, the Oiler Waste Report for February 22, 2010 reveals that the basis for the waste that day was due to “no paint, raw”, not to a bad startup. Ex. S-12. This would not be attributable to Pilon.

I find that ISP’s proffered reason has no basis in fact. It is clear that ISP has never disciplined an employee for waste. It could not have been Pilon’s fault on this occasion and Coombs testified that he would not have terminated Pilon for waste alone, yet it appears in the termination letter as a basis for his termination. This duplicity can only be explained by the desire to use the incident as a pretext to terminate Pilon. I find it has no basis in fact. I also find that employer’s reasons were insufficient to motivate termination.

ISP’s cites the August 2009 suspension letter and the events leading to its issuance as another basis for Pilon’s termination. There are several important discrepancies in the sequence of events as set forth by Coombs. Pilon was issued what Coombs referred to as the “fair and final letter” on August 28, which states that he was suspended on the 17^th for infractions he committed on the 21^st. (Emphasis added.) Ex. S-27. August 17, 2009 was a Monday. The notes from the meeting which took place on August 28^th indicated his infractions occurred on Friday, August 21^st. Ex. R-26. The suspension letter of March 28 states that the infractions will result in a five-day suspension. (Emphasis added.) According to Coombs, he had already been suspended on Friday, August 21. ^.Tr. 579. Therefore, his suspension should have been completed by Friday, March 28^th, the day the meeting with the union occurred; however, the March 28^th suspension letter indicates that the suspension had not yet taken place. Coombs’ email to Human Resources dated Saturday, August 22, 2009 indicates that Hill recommended sending Pilon home on suspension as of Monday morning August 24^th with the goal being termination. Ex. S-23. On Monday, Hill sent another email confirming that Pilon was suspended that morning. Ex. R-25. The return email from human resources advised to confer before meeting with the union “as required.” Id. According to Coombs, the point of the meeting with the union on the 28^th was to make sure Pilon had an opportunity to explain his side before they imposed the punishment they had already decided upon on Saturday morning, August 22. Tr. 580-584. Had Pilon been suspended on August 24 as Hill stated in his email, he would have reported back to work on August 31. Had he been suspended on Friday, August 28 after the union meeting as the suspension letter indicates, he would have reported back to work on Monday, September 7. However, he was presented with a retraining letter upon his return to work on August 31 which proves that he was suspended on Monday, August 24, 2009. Ex. R-28.

Piecing these events together, Pilon was suspended on August 24-four days before he was given an opportunity to present his side of the story and meet with the union representatives. The careless manner in which these documents were prepared indicates how little the rights of a miner mean to this corporation and how badly they wanted to be rid of Pilon. The haste in which Pilon was disciplined before he had an opportunity to defend against the allegations or consult with his union representative, exemplifies the animosity harbored against Pilon by management. While he was told on August 17^th not to report to work pending an investigation, there clearly was no investigation made. The meeting with the union to provide Pilon an opportunity to defend himself was a sham. Moreover, the fact that Coombs’s email to the ISP HR managers stated that only termination would deprive Pilon of the opportunity to file another worker’s compensation claim “of which he has a history” makes clear the motivation behind the attempt to terminate him was his workmen’s compensation claim predicated upon a report of unsafe conditions, and not the alleged performance issues. Ex. R-23.

Given that Pilon had already been disciplined for the August 2009 conduct and that I previously found that ISP’s other justifications fail, it is not necessary for me to determine the credibility of the August 2009 events. There is ample evidence as to Pilon’s alleged sleeping in the mixer shack that Hill could not see through the window as it was covered with rock dust although Hill stated that he watched Pilon through the window for several seconds. Tr. 95, 228, 570. Hill could only say in his incident report that he had the impression Pilon was sleeping. However, when Pilon said he was hot, Hill responded by saying it was okay to cool off there. Ex S-23. With regard to his taking a longer break and not returning to work, Hill’s incident report states that he told Pilon to check in after his break was over and he should “probably get moving” because there was work to do. Ex. S-23. Pilon, on the other hand credibly testified that he had just begun his break when Hill first addressed him. Hill returned just a few minutes later while still on break and told him to go clean up. He did so. Tr. 121, 230-32. Pilon’s statement that this was an example of how Hill was unfairly riding him and assigning more clean-up to him was supported by Davis’ statement to Hautamaki as well as Forstrom’s. Both said Pilon was ridden harder by Hill, told to do more cleaning up and singled out for taking breaks. Exs. R-40, 41. It was echoed by the testimony of Respondent’s witness Milligan who admitted on cross-examination that he had no basis to think Pilon took longer breaks than anyone else. Tr. 777.

                                          In summary, I find that the Respondent has not established its affirmative defense of showing termination was not motivated by Pilon’s protected activity.

What has been established is that Pilon was someone who did his work as ordered. He was also someone who raised more safety and health complaints than anyone else and gained a bad reputation as a result although his complaints were viewed by others as legitimate. This in turn led to his being treated disparately and ultimately terminated to eliminate the likelihood of his filing another worker’s compensation and an accident report stemming from health and safety issues in the workplace.

I find that Pilon has successfully made out a prima facie case of discrimination under § 105(c)(3) of the Mine Act. I also find that ISP has failed to either rebut Pilon’s prima facie case, or establish any affirmative defense to his discrimination claim. Therefore, Pilon is entitled to relief.

IV.      ORDER

            I hereby order that Pilon’s Complaint of Discrimination under section 105(c) of the Mine Act is GRANTED.

            The Secretary has requested a civil penalty against ISP. Accordingly, the Secretary is ORDERED to address the civil penalty criteria set forth in section 110(i) of the Mine Act within 15 days of this ORDER. The Respondent shall provide its response thereto 30 days from the date of this ORDER.

                        I shall retain jurisdiction over this matter for purpose of assessing the amount of the civil penalty.

DAMAGES

             Pursuant to the statutory relief provided at 30 C.F.R. § 815(c), Pilon is entitled to “rehiring or reinstatement” to his former position of kiln operator at ISP’s Kremlin Plant.

OTHER DAMAGES

            § 105 (c)(3) provides that when a discrimination complainant’s claim is granted, the Administrative Law Judge may grant “such relief as it deems appropriate.”

             Given the above findings that Pilon was discharged for unlawful discriminatory reasons, ISP is ordered to expunge and/or purge any negative personnel file references regarding Pilon’s discrimination complaint. ISP is further ordered to post a notice at the Kremlin Plant Mine that it will not violate § 105(c)(1) of the Act.

 BACK PAY AND INTEREST

             Pursuant to § 105(c)(3), I find that as further relief Pilon is entitled to “back pay and interest” including overtime pay, since his suspension on March 2, 2010 and discharge on March 15, 2010. I further find that ISP is entitled to deduct Pilon’s interim net wages received during his period of temporary reinstatement from the gross pay that Pilon would have otherwise received from ISP.

            The parties did not reach the issue of the actual gross amount that ISP would have received from ISP since March 2, 2010. While an Administrative Law Judge has broad discretion in fashioning an appropriate remedy so as to make the discriminatee “whole,” the record is insufficient as to the issue of Pilon’s outstanding gross pay since March 2, 2010. I will maintain jurisdiction of this matter for the purpose of establishing the actual amount of monetary damages, including back pay and interest, for which ISP is now liable. With reference to back pay and interest, ISP is entitled to deduct the actual net interim earnings received by ISP from other employers, if any, since March 2, 2010. With reference to other specific relief, Pilon is also entitled to all costs and expenses (including attorney’s fees) that he has reasonably incurred. He shall also be fully compensated for medical coverage expenses, if any, that would otherwise have been covered through his employment at ISP had he not been terminated.

            If the parties cannot reach an agreement as to such, I shall hold further proceedings, including an evidentiary hearing, if necessary, to determine an appropriate remedial amount.

            Counsels are ORDERED to confer and submit within 30 days of the date of this decision a proposed settlement order containing the specific actions and monetary amounts that ISP will undertake to carry out the remedies and relief set out above. If an agreement cannot be reached, the parties are FURTHER ORDERED to submit their respective positions, concerning those issues on which they cannot agree, with supporting arguments, case citations and references to the record, within 30 days of the date of this decision. For those areas involving monetary damages and relief on which the parties disagree, they shall submit specific proposed dollar amounts for each category of relief. If a further hearing is required on the remedial aspects of this case the parties should so state.

             I will retain jurisdiction in this matter until the specific remedies Mr. Pilon is entitled to are resolved and finalized. Accordingly, this decision will not become final until an order granting specific relief and awarding monetary damages and a civil penalty has been entered.

                                                                         /s/ Priscilla M. Rae

                                                                       Priscilla M. Rae

                                                                       Administrative Law Judge

Distribution (Certified Mail):

Travis W. Gosselin, Esq., U.S. Department of Labor, Office of the Solicitor, 230 South Dearborn Street, Room 844, Chicago, IL 60604

Gregory P. Seibold, Esq., Seibold Law Firm, LLC, 1112 Carpenter Avenue, Iron Mountain, MI 49801

Brent I. Clark, Esq., Seyfarth Shaw, LLP, 131 South Dearborn Street, Suite 2400, Chicago, IL 60604

Megan N. Newman, Esq., Seyfarth Shaw, LLP, 131 South Dearborn Street, Suite 2400, Chicago, IL 60604

Thomas A. McKinney, Esq., Castronovo & McKinney, LLC, 18 MacCulloch Avenue, Morristown, NJ 07960.

Douglas A. Pilon, 496 A. Peterson Memorial Drive, Niagara, WI 54151

Darcy Powell, Union Steward, c/o ISP Minerals, Inc., P.O. Box 248, Pembine, WI 54156