<DOC>
[DOCID: f:lk2000150.wais]

 
LAKEHEAD CONSTRUCTORS
May 18, 2001
LAKE 2000-150-DM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          May 18, 2001

COMPLAINANTS:                 : DISCRIMINATION PROCEEDINGS
                              :
JOHN SASSE,                   : Docket No. LAKE 2000-150-DM
                              : NC MD 00-07
ERNEST SHIMPA,                : Docket No. LAKE 2000-151-DM
                              : NC MD 00-08
JOEL LAWRENCE,                : Docket No. LAKE 2000-152-DM
                              : NC MD 00-09
KERRY GERSICH,                : Docket No. LAKE 2000-153-DM
                              : NC MD 00-10
NOLAN POITRA,                 : Docket No. LAKE 2000-154-DM
                              : NC MD 00-11
ALAN POITRA,                  : Docket No. LAKE 2000-155-DM
                              : NC MD 00-12
DEAN BREKKE,                  : Docket No. LAKE 2000-156-DM
                              : NC MD 00-13
KEVIN FIDELDY,                : Docket No. LAKE 2000-157-DM
                              : NC MD 00-14
DONALD RAGSTED,               : Docket No. LAKE 2000-158-DM
                              : NC MD 00-15
PAUL HAFF,                    : Docket No. LAKE 2000-159-DM
                              : NC MD 00-17
JEFF GOVI,                    : Docket No. LAKE 2000-160-DM
                              : NC MD 00-18
RANDY HUSETH,                 : Docket No. LAKE 2000-161-DM
                              : NC MD 00-19
RANDY GREEN,                  : Docket No. LAKE 2000-162-DM
                              : NC MD 00-20
LANCE OMERSA,                 : Docket No. LAKE 2000-163-DM
                              : NC MD 00-21
JEFF GRAVES,                  : Docket No. LAKE 2000-164-DM
                              : NC MD 00-22
DOUG HOFFET,                  : Docket No. LAKE 2000-165-DM
                              : NC MD 00-27
SHAWN MORGAN,                 : Docket No. LAKE 2000-168-DM
                              : NC MD 00-30
FRED MILLER,                  : Docket No. LAKE 2000-169-DM
                              : NC MD 00-31
RHYS G. LAYTON,               : Docket No. LAKE 2000-170-DM
                              : NC MD 00-39
          v.                  :
                              :
LAKEHEAD CONSTRUCTORS,        : Minntac Plant
          Respondent          : Mine ID 21-00820 AQF

                            DECISION

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

Before Judge Zielinski

     These  cases  are  before me on complaints of discrimination
under Section 105(c) of the Federal Mine Safety and Health Act of
1977 (the "Act"). 30 U.S.C.  �  815(c).   A  hearing  was held on
March 15, 2001, in Duluth, Minnesota.  Following receipt  of  the
hearing  transcript,  the  parties  submitted  briefs.   For  the
reasons   set   forth   below,  I  find  that  Lakehead  did  not
discriminate against the Complainants and dismiss the complaints.

The Controversy

     The Complainants were  referred  by  their union, Plumbers &
Pipefitters  Local Union #589 (Local 589), to  perform  work  for
Lakehead Constructors.   The  job  was  at a mine site and was to
begin  on  January  4,  2000.  In order to satisfy  the  training
requirements of the Act they  attended  a  Mine Safety and Health
Administration  (MSHA) certified training course  on  January  3,
2000, which lasted  four hours.[1]  They contend that 30 U.S.C. �
825(b) [2] requires that they be paid by Lakehead at their regular
hourly rate for attending the training.


**FOOTNOTES**

     [1]: Complainant  Layton  attended  a  three  hour  training
session on February 25, 2000.

     [2]: 30 U.S.C. � 825(b) provides:

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

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

                         Findings of Fact

     Lakehead  Constructors is a heavy industrial contractor that
performs construction and maintenance work for various companies,
some of which operate  mines.   When  the  work is performed at a
mine site, Lakehead is an independent contractor  subject  to the
Act. 30 U.S.C. � 802(d).  Any of its employees working at a mine 
site are miners who  must be trained, as required by the Act.  
Many of Lakehead's jobs are of short duration, e.g., two to three 
weeks, and it does not maintain  a  large  permanent work force. 
In order to obtain tradesmen,  it  contracts  with  local unions,
including  Local 589.[3]   The contracts contain exclusive hiring 
clauses  that require Lakehead to contact the union for tradesmen 
that it will need for a particular  job.[4]  The union then 
identifies members who are available and meet  the qualifications 
of workers needed and refers the applicants to Lakehead. Lakehead 
may  reject  a  referred  applicant  for  any  non-discriminatory 
reason.[5]

     Prior  to  January 2000, Lakehead had provided MSHA training
to tradesmen when  required and paid them at their regular hourly
rate for the time spent in training sessions.  It passed the cost
of  these  payments  through  to  the  mining  companies  it  had
contracted to perform  work  for.   By  early 1999, however, some
companies  were beginning to object to paying  for  the  cost  of
training.   Specifically,   U.S.  Steel  Group,  a  Unit  of  USX
Corporation (USX), advised Lakehead,  by  letter  dated March 18,
1999, that it expected "that all employees working  at  our plant
site  have  previously  received all necessary MSHA certification
prior to entering our facility,"  the import being that USX would
no longer pay for training costs.   USX's  position  was based on
cost  containment considerations and its belief that unions  were
being  compensated   separately  for  training  expenses  through
contributions to various  fringe benefit funds.  Lakehead advised
USX that changes to the existing  training  compensation practice
could  not  be  implemented  prior  to expiration  of  its  union
contracts in June of 1999.

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

     The present controversy had its origin on December 28, 1999,
when  Lakehead's  director of  human  resources,  Brian  Johnson,
called Grahek and informed  him that union members were needed to
perform work during a 2-3 week  shutdown  at  USX's Minntac plant
beginning on January 4, 2000.  Because the plant was a mine site,
he advised Grahek that the workers referred would  have  to  have
current  MSHA training certificates.  Grahek was unable to locate
enough certified  workers,  so  arrangements were made to conduct
training  sessions.  Local 589 did  not  have  a  certified  MSHA
trainer.   Lakehead  agreed  to  provide  one  of  its  certified
trainers to  conduct  the  sessions.   Grahek  offered use of the
Local  589  union  hall, because it was more convenient  for  the
prospective   trainees.    Local   589   handled   all   of   the
administrative tasks associated with the training.  It determined
who to invite to the training sessions and notified those members
of the time and  location.   Lakehead  did  not know who had been
invited to, or who would attend, the training sessions until they
appeared   for   training.    While  Local  589  instructed   the
Complainants to attend the sessions  in  order to qualify to work
at  USX's  mine  site,  they  were not obligated  to  attend  the
training  sessions.   Likewise,  those   who  attended  were  not
obligated  to  work  for  Lakehead  and  could  use   their  MSHA
certification to work at any mine site.

     While  there are some minor disagreements over the  language
used during the  discussions  about  the  training  sessions, the
lines of this controversy were clearly drawn prior to the
January  3,  2000,  session.   As  Grahek acknowledged on  cross-
examination, prior to the training session, he knew that Lakehead
was not going to pay the union members for attending the training
session.  He informed union members  attending  that  if Lakehead
did  not  pay  them,  that a grievance would be filed.  Lakehead,
conversely, knew that Local  589  would file a grievance and take
every step it could to secure payment of its members.[7]

     Union  members who responded affirmatively  to  Local  589's
solicitation of workers for the Lakehead/USX job, reported to the
union hall prior  to  the  7:00  am  start of the January 3, 2000
training session.  There they received  from  Grahek  a  referral
slip  for  the Lakehead job and turned it over to a union steward
for  that job.   Steven  Jones,  Lakehead's  safety  manger,  who
conducted the training session distributed certain forms required
of prospective  Lakehead  employees.[8]   Complainants filled out
and executed the forms and returned them to Jones.[9]  He was the
only representative of Lakehead at the training  session  and was
not  authorized  to  hire  Lakehead employees.  At the end of the
session, Jones issued training certificates to Complainants.  The
following morning they reported  to USX's Minntac plant and began
working on Lakehead's project.

                        Conclusions of Law

     Judicial and Commission precedent  frame  the ultimate issue
in these cases as being whether Complainants were  miners  at the
time  they  attended the MSHA training sessions.  In Emery Mining
Corp. v. Secretary  of  Labor, 783 F.2d 155 (10th Cir. 1986), the
court reversed a Commission decision requiring payment of persons
who voluntarily obtained MSHA training prior to becoming employed
as miners by Emery Mining  Corporation.   The  claimants  in that
case had contacted Emery directly or a job placement service  and
had been advised to secure MSHA training to enhance their chances
of  employment.  They obtained the training at their own expense,
were subsequently hired by Emery and sought compensation for time
spent  in  training  and other expenses.  The court held that the
clear wording of the Act  restricted  entitlement to compensation
to "miners" and, since it was undisputed  that  the  complainants
there were not "miners"[10] or employed by Emery at the time they
obtained the training, Emery had no obligation under the  Act  to
compensate them.

     Subsequently,  in Westmoreland Coal Co., 11 FMSHRC 960 (June
1989), the Commission held that individuals who had been laid off
by Westmoreland Coal  Company  and who Westmoreland advised would
enhance their chances of being recalled  if  they  obtained  MSHA
training  were  not  entitled  to  compensation for time spent in
training prior to being recalled.  The  Commission concluded that
its prior precedent to the effect that individuals  were entitled
to  such  compensation  if the operator relied upon the  training
they had obtained to hire  or  recall  them had been overruled by
Emery.  It rejected the Secretary's argument  in  that  case that
the  complainants'  "established relationship with the operator",
i.e., their prior employment  and  their  recall  rights  under a
union contract, distinguished their case from Emery.  Rather, the
Commission  found  "no persuasive basis upon which to distinguish
this case from the Tenth  Circuit's  decision in Emery and in the
absence  of  contrary  judicial precedent  we  will  follow  that
decision." Id. At 964.

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

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

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

     I find no reason to distinguish  the  claims here from those
in  Emery  and  Westmoreland  and,  in the continued  absence  of
contrary judicial opinions and the failure  by  Congress  or  the
Secretary  to  address the issue, hold that the Complainants were
not "miners" at  the  time they attended the training and are not
entitled to compensation under the Act.


**FOOTNOTES**

     [3]: Lakehead  is  a   party   to  a  collective  bargaining
agreement entitled National Maintenance  Agreement  (NMA),  which
incorporates the provisions of Local 589's contract with the Iron
Range Plumbing Contractors Association.

     [4]: Article  V,  Section  1 of the contract with Local 589,
provides  that  the  union  "shall be  the  exclusive  source  of
referrals of applicants for employment."   Resp. Ex. 13, at p. 5.

     [5]: Article V, Section  6  of  the contract provides, inter
alia,  that the "Employer retains the right  to  reject  any  job
applicant referred by the Union."  Id. at p. 6

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

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

     [8]: The forms were a Dept. of the Treasury Form W-4, a U.S.
Dept.   of  Justice  Immigration   and   Naturalization   Service
Employment  Eligibility  Verification,  Lakehead's  New  Employee
Registration   form,   Lakehead's  Alcohol/Drug  Testing  Program
Acknowledgment  Form,  and,   Lakehead's  Disciplinary  Policy  &
Procedure Acknowledgment Form.

     [9]:   Section 3 provided  that  required  forms  were to be
completed "prior to being hired." Resp. Ex. 13, at p 5.

     [10]:  The Act defines a "miner" as "any individual  working
in a coal or other mine."  30 U.S.C. � 802(g).

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

     [12]: See also, Brock v. Peabody Coal Co., 822 F.2d at 1149,
n. 54 ("We have no reason to disagree  with  the statement by the
court in National Indus. Sand Ass'n [v. Marshall,  601  F.2d  689
(3rd  Cir. 1979)] that `the statute looks to whether one works in
a mine,  not whether one is an employee or nonemployee or whether
one is involved  in  extraction or nonextraction operations.' 601
F.2d at 704 (emphasis in original).").


                              Order

     Based   upon   the  foregoing,   Complainants'   claims   of
discrimination are dismissed.[13]


                              Michael E. Zielinski
                              Administrative Law Judge



Distribution:

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

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

/mh


**FOOTNOTES**

     [13]: Resp. Ex. 3 purports to be a copy of  a  letter, dated
November  22,  1999,  from an attorney to an official of  another
local  union,  Painters  Local   106.   It  discusses  Lakehead's
position  of requiring current MSHA  certifications  for  workers
referred for  employment.   Complainants objected to introduction
of  the  letter  on  grounds  of  relevance  and  attorney-client
privilege.  Respondent claims the letter is relevant and that the
privilege has not been properly asserted  and/or has been waived.
There  is  no  need to resolve the privilege issues  because  the
letter is not probative  of  any  factual  issue  in these cases.
While it discusses the ultimate issue presented here, there is no
evidence connecting it to any party in these cases.   It  has not
been considered in reaching this decision.