<DOC>
[DOCID: f:ct2000182.wais]

 
ALCOA ALUMINA & CHEMICAL, L.L.C.
CENT 2000-182-DM
March 28, 2001


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                         March 28, 2001

SECRETARY OF LABOR,               : DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA),          : Docket No. CENT 2000-182-DM
  on behalf of DILLARD PETTUS,    : SC MD 99-14
               Complainant        :
          v.                      :
                                  :
ALCOA ALUMINA & CHEMICAL, L.L.C., : Bauxite Facility
               Respondent         : Mine ID No. 03-00257

                             DECISION

Appearances: Richard  M. Mu�oz, Esq., Janice H. Mountford, Esq.,
             Office of the Solicitor, U.S. Department of Labor,
             Dallas, Texas, on behalf of the Secretary of Labor;
             Lee Garrett, United Mine Workers of America, 
             Benton, Arkansas, on behalf of Dillard Pettus;
             Harold J. Engel, Esq., Arent, Fox, Kintner, Plotkin 
             & Kahn, P.L.L.C., Washington, D.C., on behalf of 
             the Respondent.

Before: Judge Melick

     This case is before  me  upon the complaint by the Secretary
of Labor, on behalf of Dillard Pettus, under Section 105(c)(2) of
the Federal Mine Safety and Health  Act  of 1977, 30 U.S.C. � 801
(1994)   et  seq.,  the  "Act."   The Secretary  alleges  in  her
complaint  that  Alcoa  Alumina  and  Chemical,   L.L.C.  (Alcoa)
violated  Section  105(c)(1)  of  the Act, when it suspended  Mr.
Pettus on June 15, 1999, for three  days for his participation in
unspecified protected activity.[1]

     In his initial complaint to the  Department  of Labor's Mine
Safety and Health Administration (MSHA) filed July  2,  1999, Mr.
Pettus alleged that "I was discriminated by Alcoa management  for
stating  safety  concers[sic]  while performing my job at Alcoa."
In an amended discrimination complaint filed August 16, 2000, the
Secretary seeks a civil penalty of $5,000.00, for Alcoa's alleged
discriminatory conduct in suspending Pettus.

Background

     The tabular operator job at Alcoa's Benton Arkansas facility
includes  the  functions  of  crusher   operator,   screener  and
converter operator.  In 1998 Alcoa's management decided to cross-
train  employees  designated  as  tabular operators in all  three
functions to reduce the amount of overtime  worked.   The tabular
operators had been frequently working overtime because  most  had
not been trained to perform all of the job functions.

     Complainant  Pettus  had been employed by Alcoa for 30 years
and  had  worked as a tabular  operator  performing  the  crusher
function from  1989  through  June  2000.   As a crusher operator
Pettus worked in a ten-story building that contained  a  computer
control room, and various other equipment including a gyro  disc,
transfer  devices  and  large  bins.   Pettus'  job  as a crusher
operator  required him to operate the computer equipment  in  the
control  room,  walk around the building several times each shift
to visually examine  the operations and take samples  for quality
control testing.  Pettus  testified  that  his  job  as a crusher
operator was "very complex."

     Pettus  had also trained several other employees to  perform
the crusher job.   The  trainees  were  taken  to the top (tenth)
floor of the crusher and examined the equipment  while walking to
the  ground  level.  During the walk-around examinations  of  the
crusher, Pettus  showed  the trainees the location of the crusher
components, the operation  of  the  components  and  the  testing
methodology.   During  the  examinations, the trainees questioned
Pettus about the operation of  the  crusher and they would engage
in  running  dialogues  about  the  crusher   operation.   Pettus
acknowledged  that  the  walk-around  examinations   and  related
questioning by the trainees were important parts of the  training
process.  Indeed, Pettus acknowledged that the trainees could not
learn  the  crusher  operator's job without participating in  the
walk-around examinations.   None of the persons Pettus trained to
operate the crusher ever refused  to participate in a walk-around
examination.

     On  January  7,  1999,  Alcoa  supervisor   Mike  Swinderman
informed  Pettus  that  he  was  to  be  trained  as  a converter
operator.[2]  Pettus admitted that he did not want to be  trained
as a converter operator and told Swinderman that he did not  want
to  participate.   Pettus  also told some of his fellow employees
that  he  did not want to be trained  as  a  converter  operator.
Pettus initially argued that, pursuant to the union contract with
Alcoa, he was not required to take the converter training because
of his seniority  as a crusher operator.  He asserted that he was
exempt from training  by  a  "grandfather  clause"  in  the union
contract.  He also argued that he was not required to accept  the
training  because  he  never  signed  a notice indicating that he
wanted to be trained as a converter operator.  After notification
that he was to be trained as a converter operator, Pettus decided
that he would take any measures to avoid such training.

     Pettus nevertheless started training on January 7, 1999.  He
stopped however after a few hours on January  8,  after  becoming
ill,  and  his  training remained on hold until February 3 as  he
sought his union's  support for his claim that he did not have to
accept the training.   The  union ultimately told Pettus that his
claim regarding the contract  was  wrong and that he was required
to take the converter training.  Neither  Pettus  nor  the  union
filed  a grievance regarding this issue.  Pettus remained unhappy
about  the   required   training  and  was  admittedly  angry  at
Swinderman,

     On February 3, 1999,  Pettus  and two union representatives,
including union president Dan Henry,  met  with Alcoa supervisors
Eddie  Black  and  Travis  Porter  to  discuss Pettus'  converter
training.   During  the  meeting  the management  representatives
reiterated that Pettus would have to  be  trained  as a converter
operator  and Porter asked Pettus if he would give a  good  faith
effort to learn  the  converter  job.   In response Pettus stated
only that he wanted to talk to his union  representatives  before
he  responded.   Pettus  in fact never responded to Porter or any
other Alcoa supervisor that  he would make a good faith effort to
learn the converter job.  While  Pettus  subsequently resumed his
converter training, Porter opined that Pettus  never  gave a good
faith effort to learn the job.

     Pettus  admitted  that  there  were  many  times during  his
converter training that he did not walk around with  his trainer,
Jimmy Chism as Chism conducted inspection tours of the converter.
He  also  admitted  that  it  was important to do so as often  as
possible to see Chism   perform  his  tasks.  During the training
Pettus also refused to answer supervisor  Swinderman's  questions
and appeared to avoid contact with Swinderman.  Swinderman  found
Pettus' conduct during training to have been insubordinate so  on
February  16,  1999, Swinderman began documenting Pettus' actions
(Resp. Exh. 11-16).

     After more  than  two months' training Pettus first operated
the converter by himself  on  April  30,  1999.   He continued to
operate  the  converter  by  himself  until  May  21,  1999.   He
acknowledged  that  he was able to perform the converter job  and
did not tell any supervisor  that  he  felt unsafe performing the
job during this period.  When a fire started  in  one area of the
converter  on  May  7,  1999,  Pettus took appropriate action  to
identify the location of the fire  and to bring it under control.
He did not contribute to the cause of the fire.

     On June 12, 1999, Swinderman informed  Pettus  that he would
be operating the converter on the "C" shift and for the remainder
of  the  week because the regular operator, Jimmy Chism,  was  on
vacation.   Pettus  admitted that he was not happy with this news
because he did not want  to run the converter and told Swinderman
that Swinderman could not  assign  him  to  work on the converter
because of his seniority within the department.  Pettus admitted,
however, that he then knew that seniority in  the  department was
not  a  basis  for job assignments and that he raised this  claim
only in another attempt to avoid operating the converter.  Pettus
nevertheless began operating the converter on June 12.

     Two days later,  on  June  14,  during the regular pre-shift
meeting Swinderman asked Pettus  how the  converters were running
and if there were any problems.  Pettus responded  "I  don't know
why  don't you tell me."  Pettus admitted that when he made  that
comment he was not  sincere.  Swinderman documented these and the
other  events that occurred on June 14 and 15, 1999.  (Resp. Exh.
20).

The Alleged Protected Activity

     Pettus began working as a converter operator on the June 14,
1999, "C" shift.  During the same shift, around 2:15 a.m. on June
15, 1999, Swinderman began checking the converter settings on the
computer  in  the  control room by scrolling through the computer
screens.[3]   While standing  outside  the  control  room  Pettus
observed  Swinderman   scrolling  through  the  screens.   Pettus
admitted that he was "probably  angry"  and  decided  to confront
Swinderman.

     According to Pettus, sometime during the previous  "C" shift
an incident occurred in which a converter operator had pushed the
wrong  button  in  the  control  room  causing  alumina  balls to
overflow  onto the floor.  When Pettus started his shift on  June
14th  he was  helping  to  clean  up  the  these  balls.   Pettus
testified that he did not feel safe working on the converter with
Swinderman  at  the  controls  because  he  purportedly  believed
Swinderman  could  change  the settings on the converters and  he
believed  that  Swinderman  was   not   trained  to  operate  the
converter.   Rather  than  explain  these  specific  concerns  to
Swinderman however, Pettus confronted Swinderman  and  told  him,
"If  you  want  to  operate the job then I'll do something else."
According to Pettus, Swinderman responded, "I can scroll anything
I want to."  Pettus testified  that  he  then  explained "I don't
feel safe . . . with me being outside and you inside doing that."
According to Pettus, Swinderman then told him that  if he did not
feel safe he could go home.  Pettus claims that he responded that
he was not going home and that he was going to do his  job,  then
walked out of the control room and continued working.

     Pettus'  co-worker,  Lewis Grant, was in the control room at
the time eating breakfast with  another co-worker Michael Halpin.
According to Grant, Swinderman was  at the control panel bringing
up graphs for about six or seven minutes  before  Pettus  entered
the  room.   Grant explained at hearing what happened when Pettus
entered the room:

     Q.   Would you please, tell the Judge what happened when Mr.
          Pettus entered the room?

     A.   Mr.  Pettus  entered  the room, he asked Mr. Swinderman
          did he want him to run  the  job  or  want  him  to run
          another  job.   Mr.  Swinderman  said, all I'm doing is
          pulling up graphs.  Pettus said, I don't feel safe with
          you  pulling  up  graphs and me outside  working.   Mr.
          Swinderman says, I  can  do  anything I want to do.  So
          Pettus  said,  well,  I  don't feel  safe  because  I'm
          outside  and you're in here  pulling  up  graphs.   And
          Pettus said  that  he  knew  that Mr. Swinderman didn't
          know how to run the job, because  he  couldn't help the
          night before or some night.  Mr. Swinderman said, well,
          I know that you don't know how to run the  job, but you
          should  with  all  the hours that you've had to  train.
          And Pettus said, well, I still don't feel safe with you
          here.  And Mr. Swinderman said, well, if you don't like
          it, you can go home.  Mr. Pettus said, no, I don't want
          to go home, I want to  run my job, but I don't want you
          here mashing buttons with  me  outside working, I don't
          feel safe.   Mr. Pettus left the  room.  Mr. Swinderman
          sat back down, he started drawing up graphs for four or
          five minutes, and then he left.

By Mr. Mu�oz

     Q.   Okay.   Do you recall where Mr. --  Mr.  Pettus  first
          entered the room, where he was standing?

     A.   He   was   standing   behind   Mr.   Swinderman.    Mr.
          Swinderman's  chair would rotate around, and he rotated
          around and they was talking face to face.

     Q.   Do you recall how  long  Mr.  Pettus  stood  behind Mr.
          Swinderman before Mr. Swinderman turned around?
     A.   It was almost automatic.

     Q.   Do you recall --

     The Court: When you say "automatic," that doesn't reflect the
               time  sequence.   What  time period are we talking
               about?

     The Witness: Well, as soon as Pettus  started talking to him,
               he turned around.

     The  Court: How  long  was Pettus standing  there  before  he
               started talking to him?

     The Witness: Maybe he was  standing  there  a  little bit.  I
               don't  know  the exact time, but it was  a  little
               bit.

     By Mr. Mu�oz

     Q.   How would you define "a little bit?"

     A.   Maybe a minute, minute or two.  I think he was standing
          there a minute or two.

     The Court: A minute or two did you say?

     The Witness: I'm not sure .  It's been a year ago, you know.

     By Mr. Mu�oz

     Q.   I understand.  Do you  recall  how close Mr. Pettus was
          standing to Mr. Swinderman before he started talking to
          Mr. Swinderman?

     A.   Foot, two feet.

                                             (Tr.   I   222-224).

     According  to  Grant  the  conversation lasted three to five
minutes  and  both Pettus and Swinderman  were  speaking  loudly.
Grant had seen  Swinderman  as well as the other supervisors over
the previous 14 years scrolling  through the computer screens and
testified that it was not unsafe for them to do so.  He confirmed
that scrolling through the screens has no effect on the converter
settings.  Grant uses the same computer for his work.

     Co-worker Michael Halpin was  also  in the converter control
room at the time of the confrontation.  He  also  uses one of the
computer  screens  to  check  temperatures and fill out  reports.
According to Halpin, in order to start or stop equipment you must
push a minimum of

six buttons in a proper sequence.   Halpin  described  the events
following  Pettus'  arrival  at the control room in the following
colloquy:

By Mr. Mu�oz

     Q.   Okay.  What was Mr.  Pettus  doing  when  you first saw
          him?

     A.   He  walked into the shack, into the control  room,  and
          walked over to the supervisor.

     Q.   Okay.  And who was the supervisor he walked over to?

     A.   Michael Swinderman.

     Q.   Where was
Mr. Swinderman at this time?

     A.   He was  sitting  at  the far north control panel in the
          control room.

     Q.   Okay.  Which direction was he facing now?

     A.   Mr. Swinderman would have been facing east.

     Q.   Could you see where Dillard Pettus' hands were?

     A.   No, sir.

     Q.   Did you see any gestures that Mr. Pettus made?

     A.   No, sir.

     Q.   Do you recall what Mr.  -- do you recall whether there
          was  a  conversation  between   Mr.   Pettus   and  Mr.
          Swinderman?

     A.   Do I recall the conversation?

     Q.   Do you recall whether there was one?

     A.   Yes.

     Q.   Okay.   Do  you recall what Mr. Pettus said or --  I'm
          sorry.

     A.   Yes.

     Q.   Would you tell this Court what you heard?

     A.   What I had heard was Dillard Pettus had walked into the
          control room  and  asked  Mike  Swinderman  what he was
          doing.  Mr. Swinderman said that he was pulling  graphs
          up, charts on the graph.

     Q.   Okay.

     A.   Mr.  Pettus then said that he felt unsafe with him  not
          being  in  the  control room with him when he's pushing
          buttons because of a mess-up that had been earlier that
          night  in a piece  of  equipment  that  had  functioned
          improperly.

     Q.   Would you  explain  what  you mean by "mess-up" earlier
          that night?

     A.   Okay.  An operator on the previous shift had pushed the
          wrong button and it caused  a  piece  of  equipment  to
          overflow into the floor.

     Q.   Okay.  What did Mr. Swinderman say in response?

     A.   Mr. Swinderman said that he was only pulling up graphs,
          he wasn't operating any machinery.  Dillard asked him -
          -  Dillard  Pettus  asked  him, well -- wanted to know
          whether he was doing the job or was Mr. Pettus going to
          be doing the operation of the job.

     Q.   What did Mr. Swinderman say in reply?

     A.   He said, no, all that he was going -- he was doing was
          pulling up graphs, and that  if Mr. Pettus did not like
          that, then he could go home.

     Q.   Did Mr. Swinderman say anything  about  his  ability to
          pull graphs.

     A.   No.

     Q.   Did Mr. Swinderman say he could --

The  Court:I  don't think you should lead the witness here.   You
          can ask  him  what he heard him say, but don't lead the
          witness.

By Mr. Mu�oz:

     Q.   Was anything else said by Mr. Pettus at this time?

     A.   He kept emphasizing  that he felt unsafe with him doing
          this  and he would rather  he  be  in  there  with  Mr.
          Swinderman when he was pulling the graphs.

     Q.   Okay.  Was anything else said by Mr. Swinderman at this
          time?

     A.   No.

     Q.   Okay.   How  long  did  this  conversation  between Mr.
          Swinderman and Mr. Pettus last?

     A.   Five to 10 minutes.

     Q.   What happened next?

     A.   Okay.  After Mr. Swinderman said that, if you  did  not
          like this, that you could go home, Mr. Dillard said --
          Mr.  Pettus  said  that,  no,  sir, I'm not going to go
          home, I'm going to do my job, I  just  feel unsafe with
          you  pushing buttons in here without me in  here.   And
          then at  that  time,  Mr. Pettus turned and walked back
          out.

     Swinderman testified that he,  as  well  as all of the other
supervisors,  were required to use the computer  in  the  control
room to scroll  through  the  screens  and  examine  graphs which
provide   data   for   the  basic  operating  parameters  of  the
converters.  Each day the  process engineer prepares instructions
regarding   gas   settings,   dryer    temperatures,   combustion
information,  the  air-gas  ratio, etc., and  Swinderman  has  to
verify, sometimes as many as eight times a shift, that the actual
performance  of  the  converters   is   within   the   parameters
established by the process engineer.  If a change in settings has
to  be  made  Swinderman discusses it with the converter operator
who  makes  the  actual  changes.   These  were  the  established
procedures understood by Pettus and the rest of his crew.  It was
indeed  customary for  all  the  tabular  supervisors  to  scroll
through the  computer screens several times during a shift.

     According  to  Swinderman,  Pettus  had  seen  him scrolling
through  the  screens  on  a number of occasions before June  14.
Pettus  had never before asked  him  to  refrain  from  scrolling
through the  screens.   Swinderman  testified  that it is obvious
when  one  is  just  scrolling  through  the screens because  the
screens then show only the graphs and the operating status of the
converters.

     Swinderman described the confrontation  with  Pettus  in the
following colloquy at hearing:

     Q.   Now,  let's go to the night of June 14th, C shift,
          1999.  Were you working that evening?

     A.   Yes, I was.

     Q.   And what time does the C shift run from and to?

     A.   C shift runs from 11:00 p.m. to 7:00 a.m.

     Q.   So it would  have  started at 11:00 p.m. June 14th
          and ended 7:00, June 15th.

     A.   That's correct.

     Q.   Did you hold one of  your  pre-shift meetings June
          14th?

     A.   Yes, I did.

     Q.   Did you have a discussion with  Mr.  Pettus during
          that meeting?

     A.   Yes.  Basically we lined out assignments  and  his
          assignment  was  to  run the converters and at one
          point I asked him how  they  were  running  and he
          snapped  back at me and said, "I don't know.   Why
          don't you  tell  me?"  I sort of sloughed that off
          and continued lining out my crew.

     Q.   Did you respond to his snapping back at you?

     A.   Not at that time,  no.   Basically the C shift --
          everybody -- everybody can  be irritable here and
          there and I sort of let that go.

     Q.   Then did there come a time later  in  the  C shift
          around  2:00  in  the  a.m.  that  you had another
          conversation with Mr. Pettus?

     A.   Yes.

     Q.   First of all, can you tell us where that occurred?

     A.   That occurred in the 6th floor control room.

     Q.   And before that conversation began,  what were you
          doing?

     A.   I  was scrolling through the screens checking  the
          different  settings  on  the  converters and dryer
          levels and things of that nature.

     Q.   Who else was, if anybody, present  in  the control
          room as you were doing that?

     A.   I  believe  Lou  Grant and Mike Helman [sic]  were
          present.

     Q.   And where were they sitting in relationship to the
          control panel?

     A.   I was sitting facing  the  control  panel and they
          were to my right.

     Q.   Do you know what they were doing?

     A.   They were on break.  The were eating.

     Q.   Did  there come a time while you were  sitting  at
          the control  panel  that  Mr.  Pettus  entered the
          room?

     A.   Yes.

     Q.   Can you please tell us what happened after he came
          into the room.

     A.   Basically  he came up real close to the chair  and
          put his finger  in  my face and said, "You have no
          right to scroll through  my  screens or look in my
          screens for operation."

     Q.   What did you say at this time?

     A.   I basically said I had every right  to look at the
          operation of the converters at that time.

     Q.   Did you indicate to him what you were doing?

     A.   Yes.

     Q.   What did you tell him you were doing?

     A.   I  told him I was basically checking the  settings
          on the  converters  and  seeing  where  the dryers
          levels were -- doing my normal routine.

     Q.   How close was Mr. Pettus to you?

     A.   He was actually leaning up against the arm  of the
          chair that I was sitting in?

     Q.   You were sitting in.

     A.   Yes.

     Q.   Was he sitting or standing?

     A.   He was standing.

     Q.   And  you  said he spoke in a loud voice.  Does  he
          normally speak  in  a  loud  voice  or have a loud
          voice?

     A.   Yes.   Dillard normally has a loud voice,  but  in
          working  with  him  for over a year -- year and a
          half at this point, I  know the difference between
          his normal conversation  and when he's raising his
          voice.

     Q.   And how would you characterize what he did at 2:00
          a.m. on the C-shift?

     A.   Very threatening at that time.

     Q.   Did you feel intimidated in any way?

     A.   Yes, I did.

     Q.   I want to show you what has  been marked -- well,
          let's back up.  After you told Mr. Pettus what you
          were doing, then what happened?

     A.   Basically  I told him what I was  doing.   He  was
          upset and basically accused me of changing numbers
          on  the screen  without  his  knowledge,  which  I
          denied.   Which  I  would  never  do.  And then he
          basically left the room.

     Q.   When  you  say something you would never  do,  you
          mean you would  never do, you mean you would never
          change numbers on the settings on the screen?

     A.   No.

     Q.   Did Mr. Pettus say that you were lying to him when
          you denied changing the settings?

     A.   Not at that point, no.

     Q.   Did he ever accuse you of lying about changing the
          settings?

     A.   No . . . .

     Q.   And what actions do you consider insubordinate?

     A.   Threatening gestures  with  the  finger  and  loud
          voice  and  the  accusations  and  just down right
          disrespect.

     Q.   When we talked about threatening -- was the place
          where he was standing part of what you considered?

     A.   Yes.

     Q.   About how far from you was he?

     A.   He was leaning right up against me in the chair.

     Q.   The chair that you was sitting in?

     A.   That I was sitting in?

     Q.   Okay . . . .

By Mr. Engel:

     Q.   So you have a clear recollection that  Mr.  Pettus
          was touching your chair?

     A.   Yes.   . . .

     Q.   After  you left Mr. Pettus up in the control room,
          what did you do?

     A.   That's  when  I  decided  to  send  him  home  for
          insubordination  and  I  made  my  way through the
          building to contact Paula Higgs, who was our Human
          Resources person.

     Q.   About what time was this?

     A.   Approximately 2:00 or 2:15.

     Q.   And what did you tell Paula Higgs?   Where did you
          get her?

     A.   I  got  her  at home and I talked to her  and  she
          thought  I  had  grounds  to  send  him  home  for
          insubordination.

     Q.   What did you tell her?

     A.   I told her about  the threatening gestures and the
          loud  voice  and  just   insubordination   of  the
          incident.

     Q.   Did you at all mention Mr. Pettus' comments  about
          safety at all?

     A.   No, I did not.

     Q.   Did  Mr.  Pettus's  comment about safety play even
          the smallest --

     Hearing Officer Melick: What  comment  are  you talking
     about?

By Mr. Engel:

     Q.   What  did  Mr.  Pettus  say  that  was related  to
          safety?  That you understood related to safety?

     A.   It  was  in  the Exhibit.  He said he felt  unsafe
          operating the converter. . . .

     Hearing Officer Melick:  What else happened during this
     meeting?

     Witness:  During this time  he  claimed that he was --
               felt unsafe running the converters.

     Hearing Officer Melick: These are  his  words.  "I feel
                             unsafe running the converter"?

     Witness:  That's correct.

     Hearing Officer Melick:  Were   you  running   the
                              converters?

     Witness:  No.  Himself.

     Hearing Officer Melick: And is this after he pointed the
                         finger at you and a loud voice told
                         you that you had no right to scroll
                         through the screen?

     Witness:  This was before he approached me in the --

     Hearing Officer Melick: Well, let's start  it  from  the
                             top.  He  first  came  into  the
                             control room and what did he say?

     Witness"  The  first  thing  he  talked   about  is  me
               scrolling through the screen.

     Hearing Officer Melick: What exactly was his first --
                             what  were his words to the best 
                             of your recollection?

     Witness:  His words were, "I  don't"  -- "What are you
               doing  scrolling through my screen?"   And  I
               said, "Well,  I'm  checking,  you  know,  the
               settings  on the converter and whatever."  He
               said,  "I don't  feel  comfortable  with  you
               changing the settings on my screen."  I said,
               "Well, I'm  not changing the settings on your
               screen.  I'm  reviewing what the operation of
               the converters  are  at  right  now."  And he
               said,   "Well,  I  don't  feel  safe  running
               converters  and  I  don't  feel  safe running
               converters and I don't feel comfortable  with
               you  scrolling  through the screen."  I said,
               "If you feel uncomfortable, you can go home."

               At that point -- I gave him the option if he
               didn't feel comfortable at that point running
               the converter safely  then  he could go home.
               And basically it's in Article 19 contract.

     Hearing Officer Melick: Now, what point in  time did he
                             use a loud voice?

     Witness:  That was after that.

     Hearing Officer Melick: After what?

     Witness:  After he said he wasn't refusing to  run  the
               converters.   He stepped up and -- you know,
               it was during that  time period when all that
               discussion was taking place.

     Hearing Officer Melick: But his  voice  didn't  get loud
                             until --

     Witness:  Well, it was --

     Hearing Officer Melick: What was the conversation?

     Witness:  It was loud right from the get go -- right
               from the start.

     Hearing Officer Melick:When did he point his finger  at
                         you?

     Witness:  Right  when  he came in and was talking about
               me going through the screens.

     Hearing Officer Melick: And  he  continued  to point his
                             finger   at   you   the  entire
                             conversation?

     Witness:  Through  a majority of it and then  he  would
               back   off   and   talk   about   him   being
               uncomfortable running the converters.

                                        (Tr. II, 159-174).

     At the end of the June 15  "C"  shift,  Swinderman and Paula
Higgs, Alcoa's human resources expert, met with  supervisors Dave
Balok  and Travis Porter to discuss Pettus' conduct.   Higgs  and
Balok  decided   that   Pettus   should   be  given  a  three-day
disciplinary lay-off because of his comments during the pre-shift
meeting at 11:00 p.m. on June 14, his insubordinate conduct later
that shift during his confrontation with Swinderman,  his conduct
throughout  his training during which he did not show willingness
to learn how to operate the converter; and his prior disciplinary
history of insubordination.   The  latter  incident  occurred  on
August  29, 1997, when Pettus threatened Swinderman and slapped a
placard on  Swinderman's  chest.  Swinderman had issued a written
warning to Pettus on that date for insubordination.

Legal Analysis

     It is the well established  law  that  a  miner  seeking  to
establish  a  prima  facie  case  of discrimination under Section
105(c) of the Act bears the burden  of persuasion that he engaged
in protected activity and that the adverse  action  complained of
was motivated in any part by that activity.  Secretary  on behalf
of  Pasula  v.  Consolidated  Coal  Co., 2 FMSHRC 2786, 2797-2800
(October 1980), rev'd on grounds, sub nom.  Consolidated Coal Co.
v.  Marshall, 663 F.2d 1211 (3rd Cir.  1981);  and  Secretary  on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-
18 (April  1981).  The operator may rebut the prima facie case by
showing either  that  no  protected activity occurred or that the
adverse  action  was  in  no  part  motivated  by  the  protected
activity.  If an operator cannot  rebut  the  prima facie case in
this manner, it may nevertheless defend affirmatively  by proving
that it would have taken the adverse action in any event  on  the
basis  of the miner's unprotected activity alone.  Pasula, supra;
Robinette, supra.  See also Eastern Assoc., Coal Corp. v. FMSHRC,
813  F.2d   639,   642  (4th  Cir.  1987);  Donovan  v.  Stafford
Construction  Co.,  732   F.2d   194,  195-196  (6th  Cir.  1983)
(specifically approving the Commission's  Pasula-Robinette test).
Cf. NLRB v. Transportation Management Corp.,  462  U.S. 393, 397-
413 (1983) (approving nearly identical test under National  Labor
Relations Act.)

     Respondent  first argues that because Pettus' complaints  to
Swinderman about scrolling  through  the computer screens and his
declaration that he did not feel safe  with Swinderman working at
the  computer  consol,  were  not reasonable  good  faith  safety
complaints, they were not protected  under  the Act.  While there
is  indeed significant credible evidence that  Pettus  knew  that
scrolling through the computer screens, the procedure he observed
Swinderman  performing, was not an unsafe procedure, and that his
confrontation  with  Swinderman, that is the basis for his claims
herein, was made not to  promote safety but was a continuation of
a  patten  of disrespectful  and  insubordinate  behavior  toward
Swinderman,  the  law is not at all clear that safety complaints,
not incorporating a  work  refusal, must be reasonable or be made
in good faith in order to be protected under the Act.

     In  any  event,  even  assuming,   arguendo,   that  Pettus'
complaints  were  protected  activities  I  find,  based  on  the
credible evidence, that Alcoa would have rebutted any prima facie
case   by   showing   that  the  adverse  action  (the  three-day
suspension) was in no part motivated by the protected activities.
In this regard I find for  the  reasons  stated  below  that  the
adverse  action  was  clearly  based  on  Pettus' opprobrious and
insubordinate  conduct  and  not  on any safety  content  of  his
speech.   Opprobrious conduct is not  protected  under  the  Act.
Secretary on  behalf  of Cooley v. Ottawa Silica Co., 6 FMSHRC at
521 (March 1984).

     First,  I find credible  Swinderman's  testimony  evidencing
Pettus' disrespectful  and  insubordinate  behavior.  At the pre-
shift  meeting on June 14, when Swinderman asked  Pettus  in  the
presence of the work crew how the converters were running, Pettus
"snapped  back"  with  the response "I don't know.  Why don't you
tell me?"  Then, later on  the  shift while Swinderman was in the
control  room  performing  the  routine  procedure  of  scrolling
through  the  computer screens checking  the  converter  settings
Pettus, in a threatening  and  intimidating  manner "came up real
close to" Swinderman, leaned up against the arm of his chair, put
his finger in Swinderman's face and in an abnormally  loud  voice
told  Swinderman  his  supervisor  "you  have  no right to scroll
through my screens or look in my screens for operation."

     Second,  since  the  alleged  safety complaint  required  no
action  to resolve, i.e., since no  repairs  or  interruption  of
production   was   required  to  remedy  any  safety  hazard,  no
retaliatory motive based  on safety would reasonably be expected.
Third,  Pettus  had a documented  history  of  insubordinate  and
disrespectful behavior.   Fourth,  the  testimony of Paula Higgs,
one of the two persons who decided to suspend  Pettus, provided a
credible non-protected business justification for the suspension.
Fifth,   the  temperate  and  relatively  moderate  response   of
management  to Pettus' behavior, i.e., to impose only a three-day
suspension, suggests  an  absence  of  hostility  to  any safety-
related aspects of his complaint.[4]

     Under  all  the  circumstances this discrimination complaint
must be dismissed.

                              ORDER

     Discrimination Proceeding  Docket  No. CENT 2000-182-DM, is
hereby dismissed.


                                    Gary Melick
                                    Administrative Law Judge


**FOOTNOTES**

     [1]: Section 105(c)(1) of the Act provides as follows:

          No person shall discharge or in any manner discriminate
against  or  cause  to  be  discharged  or  cause  discrimination
against or otherwise interfere with the exercise of the statutory
rights  of  any miner, representative of miners or applicant  for
employment in  any coal or other mine subject to this Act because
such miner, representative  of miners or applicant for employment
has  filed or made a complaint  under  or  related  to  this Act,
including  a  complaint  notifying the operator or the operator's
agent, or the representative  of  the miners at the coal or other
mine of an alleged danger or safety or health violation in a coal
or other mine, or because such miner, representative of miners or
applicant for employment is the subject  of  medical  evaluations
and  potential  transfer  under a standard published pursuant  to
section 101 or because such  miner, representative  of  miners or
applicant   for   employment   has instituted  or  caused  to  be
instituted any proceeding under  or related  to  this  Act or has
testified  or  is  about  to  testify in any such proceeding,  or
because of the exercise by such  miner, representative  of miners
or applicant for employment on behalf of himself or others of any
statutory right afforded by the Act.

     [2]: Mike  Swinderman  has  a  college degree and additional
experience in the industry  as a production  foreman, maintenance
mechanic and lab technician.  As a tabular shift  supervisor  his
job  was  to  ensure the proper operation of the tabular building
and maintain production schedules while directing an eight to ten
man  crew.  As a  certified  MSHA  training  instructor  he  also
provided  required  safety training to his employees.  Swinderman
had been trained by the  process engineer in the operation of the
converter and had on-the-job  training  in  converter operations.
He  was  also  trained  to  operate  the computer consol  in  the
converter control room by both the process  engineer  and several
supervisors.   Through  this  training  he  learned  to  use  the
computer screens and the various buttons associated with them."

     [3]: Scrolling  through  the  screens"  is  the procedure of
viewing data (settings) on the different pages that appear on the
computer monitor.  It does not have any effect on  the  converter
settings.   This  is  a  routine  procedure  performed by all the
supervisors  up  to  eight times a shift to make  sure  they  are
operating in compliance  with  the  settings  established  by the
process engineer.

     [4]: It  is  noted  that  the  analysis  set  forth  in  the
preceding paragraphs would also provide an affirmative defense by
Alcoa that it would have taken the adverse action in any event on
the basis of Pettus' unprotected activity alone.


Distribution:

Richard  Munoz,  Esq.,  Office  of  the  Solicitor, U.S. Dept. of
Labor, 525 South Griffin St.,
Suite 501, Dallas, TX 75202 (Certified Mail)

Lee  E.  Garrett,  United Steel Workers of America,  5424  Pawnee
Drive, Benton, AR 72015
(Certified Mail)

Harold J. Engel, Esq.,  Arent,  Fox,  Kintner,  Plotkin  &  Kahn,
P.L.L.C.,  1050 Connecticut Avenue, N.W., Washington, D.C. 20036-
5339 (Certified Mail)

/mca