.
NEVADA GOLDFIELDS INC.
January 13, 1997
WEST 96-291-DM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 13, 1997
KENNETH L. DRIESSEN, : DISCRIMINATION PROCEEDING
Complainant :
:
v. : Docket No. WEST 96-291-DM
:
:
NEVADA GOLDFIELDS INC., : WE MD 96-08
Respondent : Nixon Fork Mine
DECISION
Appearances: Patrick J. Blackburn,
Esq., Anchorage, Alaska, for Complainant;
Parry Grover, Esq., Davis Wright Tremaine LLP,
Anchorage, Alaska, for Respondent.
Before: Judge Hodgdon
This case is before me on a Complaint of Discrimination
brought by Kenneth L. Driessen against Nevada Goldfields, Inc.,
under section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. � 815(c). For the reasons set forth below, I
find that while the Complainant may have engaged in activities
protected under the Act, he was not discharged by Nevada Gold
Fields for engaging in those activities.
Driessen filed a discrimination complaint with the Secretary
of Labor's Mine Safety and Health Administration (MSHA) pursuant
to section 105(c)(2) of the Act, 30 U.S.C. � 815(c)(2),[1] on
March 4, 1996. On June 4, 1996, MSHA informed both the company
and the Complainant that on the basis of its investigation it had
determined that "the complainant was not discriminated against in
**FOOTNOTES**
[1]: Section 105(c)(2) provides, in pertinent part, that:
"Any miner . . . who believes that he has been discharged,
interfered with, or otherwise discriminated against by any person
in violation of this subsection may, within 60 days after such
violation occurs, file a complaint with the Secretary alleging
such discrimination."
violation of Section 105(c)." (Resp. Ex. C.) Driessen then
instituted this proceeding before the Commission, on July 2,
1996, under section 105(c)(3), 30 U.S.C. � 815(c)(3).[2]
A hearing on the complaint was held on November 13, 1996, in
Anchorage, Alaska.[3]
Background
The Nixon Fork Mine, in the central interior of Alaska,
began mining operations in October 1995. It has 50 employees and
produces gold and some silver and copper. The only access to the
mine is by air; everything brought in or shipped out is by
airplane. The ore comes out of the mine in rocks which are then
conveyed through crushers, ball mills and other processors until
it is shipped out as bagged concentrate or dore ingots.
The miners work 12-hour shifts, seven days a week. The
shifts begin at 7:00 a.m. and 7:00 p.m. The miners work either
two weeks on, one week off, or four weeks on, two weeks off.
Kenneth Driessen began working at the mine on October 23,
1995, as a mechanic. On December 8, 1995, he was promoted to
Senior Mechanic. He was fired on February 7, 1996.
Findings of Fact and Conclusions of Law
In order to establish a prima facie case of discrimination
under Section 105(c) of the Act,[4] a complaining miner bears the
burden of establishing (1) that he engaged in protected activity
and (2) that the adverse action complained of was motivated in
any part by that activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on
other grounds sub nom. Consolidation Coal Co. v. Marshall, 663
F.2d 1211 (3rd Cir. 1981); Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803 (April 1981); Secretary on
behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (August
1984); Secretary on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508 (1981), rev'd on other grounds sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).
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.
Pasula, 2 FMSHRC at 2799-800. If the operator cannot rebut the
prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it was also motivated by the
miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone. Id. at 2800;
Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
Const. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically
approving the Commission's Pasula-Robinette test).
In his complaint with MSHA as well as in his complaint
before the Commission, Driessen claims to have twice engaged in
protected activities. The first occurred on January 24, 1996,
when he advised the mill superintendent that it would be
dangerous to start up the No. 1 ball mill. The second transpired
on the morning of February 7, 1996, when he informed company vice
president Joe Kercher what problems he believed still existed
with the No. 1 Ball Mill. The Complainant maintains that, as a
result of bringing to the company's attention what he considered
to be dangerous situations, he was fired shortly after talking
with Kercher.
Not surprisingly, the company views the matter differently.
It is the company's position that Driessen was assigned three
specific tasks on the night of February 6 and the morning of
February 7 and that he failed to complete any of them. In fact,
the Respondent asserts that not only did the Complainant fail to
do what he was assigned, but he spent his time working on matters
on which he was told not to work. Consequently, the company
contends that Driessen was terminated for insubordination and
that his safety complaints were not considered at all.
I find that the Complainant engaged in protected activity,
but that he has not established that he was fired because he
engaged in that activity. I find that the Respondent's
explanation of events is the more believable one. Therefore, I
conclude that Driessen was not terminated in violation of section
105(c).
Driessen testified that on January 24, while working on the
night shift, he was assigned to "clean [the No. 1 Ball Mill] and
grease it, and put it back together as it was." (Tr. 20.) He
stated that while he was performing this task he observed defects
in parts of the ball mill which lead him to conclude that it
would be dangerous to restart the machine. The Complainant
related that in the early morning hours of January 25 he told
this to Mike Rusesky, the mill superintendent, who decided,
without consulting anyone else, not to restart the ball mill.[5]
Driessen claimed that Ted Botnan, the maintenance supervisor
and his direct supervisor, reproached him the next day for
shutting down the mill. He testified:
And he said some - something. This is paraphrased
because I can't get his exact words, but part of it is
his exact words. He had said by making this decision
to call it unsafe was a million dollar call, and that I
should have not made that decision or made that
statement on my own. And he also said that if there
was any other problems of this type that were either
dangerous or - or severe, you know, equipment problems,
that I would talk only to him about these problems.
(Tr. 22.)
In fact, both Botnan and Mel Swanson, the Mine Manager, were
upset that they had not been informed that the ball mill was
going to be shut down. Rusesky testified that Swanson got mad at
him for not informing him right away. Botnan testified with
regard to his discussion with Driessen:
I told him that if you're going to make these
million dollar decisions, please get me involved in it,
you know, we'd like to go through the standard
procedures. If you're going to shut down the mill, you
know, I'd like to know about it. I don't want to find
out about it when I wake up in the morning, you know, I
am part of this, and Mel has to authorize any of these
things. If you're going to make these big decisions,
please go through the normal channels.
(Tr. 140.)
As can be seen, both Botnan's and Driessen's versions of the
incident are essentially the same. Viewing the matter
objectively, it is apparent that what Botnan and Swanson were mad
about was not being awakened and consulted before a decision to
shut the mill down was made, not that Driessen had raised safety
matters. Thus, I find that Driessen's subsequent conclusion that
he was being admonished because he had a safety concern about the
ball mill was mistaken. His claim, first articulated at the
hearing, that Botnan threatened to fire him if he talked to
anyone but Botnan about such problems is not corroborated by any
other evidence and certainly cannot be inferred from what
Driessen maintains that Botnan said to him.[6]
Turning to February 6, it was Driessen's testimony that he
was assigned to troubleshoot the ball mill and not given any
other assignments. His testimony, however, was so filled with
inabilities to recall, irrelevancies, blanks, inconsistencies and
lack of corroboration that it lacks credibility. The following
are some examples of his testimony.
On direct examination, he was questioned about what he was
told to do and the following colloquy took place:
Q. Were you given any specific orders for that night
other than to troubleshoot the piece of equipment which
you had already testified to?
A. There is - it's not up for exhibit, but there was a
shop log which also contained work projects to do, and
there was a big loader tire that was, you know, it was
mentioned that we had to keep filling it up with air,
and . . . .
Q. Did you . . .
A. . . . I think it was . . .
Q. . . . in fact do that?
A. . . . in fact flat. I - I did not. There was also
another mechanic on duty, and - there was at least
another mechanic on duty. I did not - I do not believe
I worked on that loader tire.
Q. But had you been given instructions to work on that
loader tire?
A. The loader tire was on our list of things to do,
and there was also other things on the list such as the
water. We were having problems with the water freezing
up and - and running out of water. And so I - as I
remember, I be- - I worked on the mill and on the
water. And there was sometimes other little chores,
like if a miner needed some piece of equipment or
whatever looked at, there might have been a few other
things that I did.
(Tr. 31-32.) Later on he claimed that he did help work on the
loader tire.
With regard to cutting the intake spout, or flange, to the
ball mill, Driessen seemed to have trouble recalling what
occurred. Thus, he testified: "I do not think that I cut the
flange. I said that it should be cut or moved, but at that night
I do not recall cutting any flange." (Tr. 32.) Later on the
following discussions took place:
Judge: Was [the flange] cut?
A. I don't think that the - that I cut that . . .
Judge: I'm not asking . . .
A. . . . flange that night.
Judge: . . . if you cut it. Was it cut?
A. I don't - I don't know. I don't think - I don't
think so be- - because I didn't even want it to be cut.
I wanted the flan- - the - the fill pipe to be moved or
it to be aligned so that if could be tight.
Q. (By Mr. Grover.) You don't remember whether it was
cut or not. Is that what you're saying?
A. Yeah. I don't think I cut it because that rubber
was awful darn thick.
. . . .
Q. Mr. Driessen, Mr. Swanson and Mr. Botnan are going
to testify the next morning when they got up they found
that the flange had been cut. They found a half-moon
piece of rubber cut laying [sic] on the ground
underneath the mill. Do you have any idea how that
happened?
A. I'm - I'm trying to think, you know, I was doing my
best to try and get that thing going, and . . .
Q. So you don't recall. You just can't say how that
happened?
A. I can't say. I - I don't know.
(Tr. 62-63, 65-66.) Finally, he testified, "I'm like in
lack of memory on it, and I - I really don't think I cut it.
And if I did, it was maybe a - I don't think I cut it. I
really don't think I cut it that night." (Tr. 97.)
Conversely, Botnan and Swanson testified that after letting
Driessen try various remedies to get the mill running again,
none of which worked, they became convinced that the problem
was electrical.[7] Accordingly, sometime around 10:30 or
11:00 p.m. on February 6, they told Driessen to stop working
on the ball mill. Swanson testified:
He - he was instructed to tighten up the feed
chute tube, put that back as it was, put the coupling
back together, put the guard back on it, and that was
it. That would make the mill operative when we
determined what the other problem was. And he was
given specific instructions to get that loader tire
fixed because it is our prime mover on the site.
During the discussion and throughout the evening,
we fixated on this rubber seal, and he pointed out that
it was out of alignment and yeah, that was - we knew
that, but it had never been a problem other than it
does wear and it leaks, and so we replace those things
every four to six weeks. And we had just - day shift
had just spent about four hours fabricating a new one
and installing it. And he and I had a bit of a
discussion. He pointed out that the mill foundation
was sinking, and - and I said no, it if was sinking
then the floor must be sinking with it because I don't
see any differential sinking here.
And some other, you know, strange discussions that
- I had already made up my mind that it was an
electrical problem. I want to wait for the
electrician. And he wanted to make - he suggested
cutting this flap to release that binding, and we
determined though that that was not the problem. The
thing failed to function when we had it relieved. And
instructions were specifically given, "Do not touch
that seal. Do not cut that seal."
(Tr. 182-83.)
Botnan and Swanson testified that when they arrived at the
mill on the morning of February 7, Driessen was working on some
drawings of the ball mill. On going to the mill, they found that
the chute had not been tightened up to the mill, the flange had
been cut, the coupling had not been put back together, and
nothing had been done on the loader tire since Botnan had blocked
it and taken off some of the lug nuts the night before. After
discussing the matter between themselves and with Joe Kercher,
they decided to fire Driessen because "we had given him three
specific instructions on what to do and he failed to do them, and
he had done a project that he was, you know, he was not
instructed to do." (Tr. 186.)
Driessen bears the burden of proving that he was fired for
engaging in protected activities. While in is own mind he may
have convinced himself that this was why he was fired, his
rambling, contradictory, inconsistent and somewhat illogical
testimony has not convinced me. Furthermore, his story is not
supported by any corroborating witnesses or evidence. I find
that the Complainant's conclusions that it would be dangerous to
operate the ball mill on January 24 and February 6 - 7 had no
bearing on his being terminated. I conclude that he was fired,
as claimed by the Respondent, because he was insubordinate.
Consequently, he was not discriminated against because he engaged
in protected activity.
ORDER
Accordingly, since the Complainant has failed to show that
he was terminated for engaging in activity protected under the
Act, it is ORDERED that the complaint of Kenneth L. Driessen
against Nevada Goldfields, Inc., under section 105(c) of the Act,
is DISMISSED.
T. Todd Hodgdon
Administrative Law Judge
Distribution:
Patrick J. Blackburn, Esq., 700 W. 41st Ave., #203, Anchorage,
AK 99503 (Certified Mail)
Parry Grover, Esq., Davis Wright Tremaine LLP, 550 W. 7th Ave.,
Suite 1450, Anchorage, AK 99501 (Certified Mail)
/lt
**FOOTNOTES**
[2]: Section 105(c)(3) provides, in pertinent part, that:
"If the Secretary, upon investigation, determines that the
provisions of this subsection have not been violated, the
complainant shall have the right, within 30 days of notice of the
Secretary's determination, to file an action in his own behalf
before the Commission . . . ."
[3]: At the hearing the parties elected to make final
arguments and waive the filing of proposed findings of fact and
conclusions of law. (Tr. 200.) On December 17, 1996, Driessen
"faxed" to my office a letter which he characterized on the cover
sheet as "a few afterthoughts." As the parties decided not to
file briefs and the record was not kept open to receive
additional evidence, I have neither read nor considered this
letter.
[4]: Section 105(c)(1), 30 U.S.C. � 815(c)(1), of the Act
provides that a miner cannot be discharged, discriminated against
fn. 4 (continued)
or interfered with in the exercise of his statutory rights
because: (1) he "has filed or made a complaint under or related
to this Act, including a complaint . . . of an alleged danger or
safety or health violation;" (2) he "is the subject of medical
evaluations and potential transfer under a standard published
pursuant to section 101;" (3) he "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, (4)
he has exercised "on behalf of himself or others . . . any
statutory right afforded by this Act."
[5]: Driessen testified that the ball mill was not restarted
because he had advised that it was a dangerous situation "and it
was not totally put back together and ready to go at that time."
(Tr. 21.)
[6]: It is not clear from the evidence when Driessen arrived
at the conclusion that Botnan was threatening him for raising a
safety issue. There is no evidence that the incident was
mentioned again, or that Driessen took any actions because of the
incident, until Driessen was fired and filed his discrimination
complaint.
[7]: They were correct. The electrical problem was
corrected by the electrician the next day and the ball mill had
run without incident up through the date of the trial.