Michael K. McNary v. Alcoa World Alumina, LLC

Plain-English summary

Michael McNary, a miners' representative at an alumina plant, raised concerns while employees were responding to a leak of extremely hot slurry. He alleged that a supervisor then threatened to remove him as a miners' representative, from the department, and from the plant. An ALJ dismissed the interference complaint on summary decision, finding no adverse action that would deter a reasonable miner. The Commission held that the judge improperly viewed disputed facts and inferences in Alcoa's favor and that threats of reprisal can violate section 105(c) even without a completed firing, transfer, or suspension. It vacated the dismissal and remanded for an evidentiary hearing.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c); 29 C.F.R. § 2700.67(b)
• Outcome: Summary dismissal was vacated and the interference case was remanded for a hearing.
• Key point: Public threats against a miners' representative can unlawfully chill protected activity even when no tangible employment action follows.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

MICHAEL
K. McNARY                                :

:

v.
                                               :        Docket No. CENT 2015-279-DM 

:                         

ALCOA WORLD
ALUMINA, LLC                           :

BEFORE:
Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners

DECISION

BY THE
COMMISSION:

This
proceeding, arising under the Federal Mine Safety and Health Act of 1977,

30
U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), involves a complaint filed
by Michael McNary alleging that Alcoa World Alumina, LLC had interfered with his
statutory rights in violation of section 105(c)(1) of the Act, 30 U.S.C. §
815(c)(1). [1]
A Commission Administrative Law Judge granted the motion for summary decision
filed by Alcoa and dismissed the proceeding on the grounds that McNary had
failed to present evidence of any adverse action supporting his interference
claim. 37 FMSHRC 2205, 2212-14 (Sept. 2015) (ALJ).

McNary
filed a petition for discretionary review challenging the Judge’s entry of
summary decision on the basis that the Judge applied an incorrect standard in
evaluating the interference claim and failed to view the record in a light most
favorable to McNary, the non-moving party. We granted the petition and heard
oral argument. For the reasons discussed below, we hold that the Judge erred in
entering summary decision. Accordingly, we vacate the Judge’s decision and
remand for further proceedings.

I.

Factual and Procedural Background

Alcoa operates the Bayer
Alumina Plant in Point Comfort, Texas. Alumina is produced by grinding bauxite
and mixing it with sodium hydroxide to form a slurry. The slurry is combined
with steam under high heat and pressure to produce sodium aluminate. The sodium
aluminate then undergoes clarification, precipitation, and calcination to
produce alumina.

In 2013, McNary
was a miners’ representative [2]
and managed pumps in the Digestion Department at the plant. Steve Emig, the Department
supervisor, had been one of McNary’s managers since March 2013. [3]

On January 8,
2014, McNary was walking through his work route when he observed a valve on the
5L5 pump blowing out hot slurry, which can reach a temperature of 480 degrees
Fahrenheit. Emig arrived and helped some of the miners in the area to put on
special suits to protect them from the slurry so that they could close the
pump. Emig approached McNary, who was standing next to another miners’
representative, Delton Luhn, and asked McNary to get tape from the tool room. The
tape was to be used to prevent slurry from getting under the miners’ gloves. Id.
at 2206.

McNary was not
able to find tape in the tool room. As he was returning to the 5L5 pump, he
asked another miner to request that Kelly Grones, the health and safety
manager, go to the 5L5 pump. Before he was able to return to the 5L5 pump,
another supervisor, Miguel Gonzales, asked McNary to check on another pump to
see if it was blowing out. McNary checked the other pump, which was not blowing
out, and returned to the 5L5 pump. Id.

When he returned
to the pump, McNary observed that two miners had attempted to close the pump. McNary
gestured for Emig to come to the side. McNary informed Emig that Kelly Grones
was on her way. McNary described the following reaction by Emig and the subsequent
confrontation:

[W]hen I told him that Kelly was
on her way over there and he said, “You shouldn’t have . . . called anyone,
because this is my department and I direct the workforce,” and I asked Steve
[Emig], “Well, why did you direct . . . the operators into the hot slurry?” And
Steve says, “I didn’t direct them in there.” I say[], “Well, you watched them
go in there and you didn’t stop them.” And I asked him, “How did they get in
there?” And Steve said, “They volunteered.”

. . . .

When . . . Steve said they
volunteered to go in there . . . I basically told Steve, “You watched them go
in there. You didn’t stop them.”

And Steve . . . said, “You
shouldn’t be involved in these matters.” And I told him, “I’m an MSHA rep and
I’m concerned for the safety of these operators. I should be. I should be
concerned with these matters.”

And that’s when Steve told me, “I
will remove you as MSHA rep. I will remove you . . . from this department, and
I will remove you from the plant.”

Id. (quoting McNary Dep. at 62-63).

Carlos Delgado, the chief
miners’ representative at the plant, and MSHA Inspector Brett Barrett then
walked up to the area. Id. at 2214; McNary Dep. at 63-64. According to
McNary, McNary informed them that Emig had just threatened him, and Delgado
replied, “Yeah, I heard it.” McNary Dep. at 64. McNary described the exchange
that followed:

Steve [Emig] started . . . explaining something to .
. . Carlos and Brett that actually didn’t happen that way. And, yes, I butted
in.

. . . .

Well, actually, he was telling Carlos and Brett that
he didn’t threaten me, which I know he did threaten me. And I said, you know,
“it didn’t happen that way.” And Steve says, “I’m done with you.”

. . . .

And I asked Steve . . . , “Are you done with me? Are
you done with me for good?” Because the threat was still there. He had
threatened me prior. And when I asked him, “Are you done for good,” I’m asking
him, are you carrying out your threat? And he says, “No, I’m not done for
good.”

37 FMSHRC at 2214, quoting McNary
Dep. at 64.

McNary
subsequently filed a complaint with MSHA, and was later informed that MSHA
would not be pursuing his case. McNary then filed a complaint with the
Commission pursuant to section 105(c)(3) of the Act, 30 U.S.C. § 815(c)(3). [4] The
operator subsequently filed a motion for summary decision, to which McNary
responded pro se .

The Judge
granted Alcoa’s motion for summary decision, concluding that, making all
inferences in favor of the non-moving party, McNary had not presented evidence
of any adverse action that would dissuade a reasonable miner from engaging in protected
activity. 37 FMSHRC at 2215. McNary subsequently retained counsel and filed a
petition for discretionary review challenging the Judge’s determination, which
we granted.

II.

Disposition

Summary decisions are
governed by Commission Procedural Rule 67, which provides that:

A motion for summary decision shall be granted only
if the entire record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows: (1) That there is no
genuine issue as to any material fact; and (2) That the moving party is
entitled to summary decision as a matter of law.

29 C.F.R. § 2700.67(b).

The Commission reviews
a Judge’s summary decision de novo . See Lakeview Rock Prods.
Inc. , 33 FMSHRC 2985, 2988 (Dec. 2011). Summary decision is appropriate
only if there are no material facts in dispute and the movant’s position is
entitled to judgment as a matter of law. West Ala. Sand & Gravel, Inc. ,
37 FMSHRC 1884, 1886-87 (Sep. 2015). The Commission has recognized that the
record and the inferences drawn from the underlying facts on summary decision
must be viewed in the light most favorable to the party opposing the motion. KenAmerican ,
38 FMSHRC at 1946 (citations omitted). When the Commission reviews a summary
decision and determines that the record before the Judge contains disputed
material facts, the proper course is to vacate the grant of summary decision
and remand the matter for an evidentiary hearing. See Energy West Mining Co. ,
17 FMSHRC 1313, 1316-17 (Aug. 1995).

Alcoa moved for
summary decision on the basis that McNary had failed to establish an adverse
action by Alcoa in response to McNary’s protected activity. [5] 37 FMSHRC
at 2205. In considering whether Alcoa’s position is entitled to judgment as a
matter of law, we preliminarily examine the standard applied by the Judge to
determine whether Alcoa had impermissibly interfered with McNary’s statutory
rights in violation of section 105(c) of the Mine Act.

Section
105(c)(1) states in relevant part that “[n]o person shall discharge or in any
manner discriminate against . . . or otherwise interfere with the
exercise of the statutory rights of any miner. . . .” 30 U.S.C. § 815(c)(1)
(emphasis added). Section 105(c)(3) permits an individual to file a complaint
charging “discrimination or interference” in violation of section 105(c)(1). 30
U.S.C. § 815(c)(3).

The Judge set
forth a legal framework that has been applied by the Commission to establish a
discrimination violation under section 105(c), which has been commonly referred
to as the “ Pasula-Robinette test.” [6]
37 FMSHRC at 2210 (citing Sec’y of Labor on behalf of Pasula v.
Consolidation Coal Co. , 2 FMSHRC 2786 (Oct. 1980), rev’d on other
grounds sub nom. Consolidation Coal Co. v. Marshall , 663 F.2d 1211 (3d Cir.
1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co. ,
3 FMSHRC 803 (Apr. 1981)). Under that test, a complainant establishes a prima
facie violation of discrimination by showing that he engaged in protected activity,
and thereafter, suffered an adverse employment action that was motivated at
least in part by the protected activity. [7]

The Judge further
recognized that the Commission applies the adverse action test articulated in Burlington
Northern & Santa Fe Railway Co. v. White , 548 U.S. 53, 68 (2006).  37
FMSHRC at 2212-13 (“‘[A] plaintiff must show that a reasonable employee would
have found the challenged action materially adverse, which . . . means it well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.’”) (quoting Burlington , 548 U.S. at 68) (other citations
omitted). Applying this test, the Judge reasoned that “Alcoa’s actions will be
found to be adverse actions if they would dissuade a reasonable miner from
engaging in protected activity.” 37 FMSHRC at 2213. Quoting Moses v. Whitley
Development Corp. , 4 FMSHRC 1475, 1479 (Aug. 1982), aff’d , 770 F.2d
168 (6th Cir. 1985), the Judge stated that “harassment over the exercise of
protected rights is prohibited by section 105(c)(1) of the Mine Act.” 37 FMSHRC
at 2213.

The Judge
ultimately concluded, however, that “[m]aking all inferences in favor of the
nonmoving party, Complainant has not presented evidence of any adverse action
properly before the Court that would dissuade a reasonable miner from engaging
in protected activity.” Id. at 2215.

We conclude that
while the Judge correctly set forth the standard for summary decision, he erred
in its application. We therefore vacate the Judge’s grant of summary decision
and remand for an evidentiary hearing.

First, the Judge
erred in entering summary decision in favor of Alcoa because he viewed some of
the underlying facts in a light favorable to Alcoa, rather than to the opposing
party, McNary. The Judge characterized Emig’s threats to McNary that he would
remove McNary as an MSHA representative, remove him from the department, and
remove him from the plant as “vague,” “not clearly directed at protected
activity,” and having “occurred during an emergency situation.” 37 FMSHRC at
2214.

The Judge clearly
viewed Emig’s statement in a light most favorable to Alcoa by focusing on the
surrounding circumstances of the emergency rather than by focusing on the
language which could be viewed as a threat to terminate McNary’s employment. At
least two of the three threats were not vague. It may be said that “removal
from the plant” is susceptible to different meanings depending upon the length
of time of the removal. However, the threats to remove McNary as a miners’
representative and to remove him “from the department” were quite specific.

Second, the
Judge erred in drawing inferences from the underlying facts that favored Alcoa
rather than McNary. At least two different meanings may be inferred from Emig’s
statement that he “was not done for good”: (1) that Emig was done arguing with
McNary and was backing off, and that McNary was in no danger of removal; or (2)
that Emig was done talking with McNary now, but would deal with McNary later,
and the removal threat was continuing. The first inference is favorable to
Alcoa, while the second inference is favorable to McNary. The Judge drew an
inference most favorable to Alcoa, the first meaning above, stating that Emig’s
statement was an assurance that Emig would not be carrying out his threat of
removal. Id. [8]
Confronted with these competing inferences, the Judge ruled in favor of the
moving party, Alcoa, even though he acknowledged in his opinion that McNary had
interpreted Emig’s statement as a continuing threat of removal. Id.

The Judge also rejected
McNary’s interpretation because he found that there were no subsequent events
that constituted retaliation or adverse employment actions. Id. This was
error.

Even if there
was no adverse employment action in the tangible sense of a firing, suspension,
transfer or other action which directly impacts a miner’s job status, the
threats themselves may constitute interference within the meaning of section
105(c)(1) of the Mine Act. In this case, the evidence indicates that the statements
which Emig made to McNary threatening to remove him as an MSHA representative,
remove him from the department and remove him from the plant were very public. See
Emig. Dep. at 19. Other miners in the area heard Emig’s statements. See,
e.g. , Delgado Aff. ¶ 3; Luhn Aff. ¶ 3. If miners understood those
statements as threats directed at their representative for MSHA matters after
the miners’ representative raised a very serious safety concern, [9] the threats
could broadly chill miners’ willingness to raise safety concerns in the future.

Therefore,
McNary does not have a burden of demonstrating that a threat of reprisal had actually
been carried out in a tangible way. In Moses , the Commission concluded
that “coercive interrogation and harassment over the exercise of protected
rights” was prohibited under section 105(c). 4 FMSHRC at 1478. In so holding,
the Commission noted Congress’ direct and express concern about the chilling
effect of such threats on miners in the legislative history for section 105(c) explaining
that “it is clear that section 105(c)(1) was intended to encourage miner
participation in enforcement of the Mine Act by protecting them against ‘not
only the common forms of discrimination, such as discharge, suspension,
demotion . . . , but also against the more subtle forms of interference, such
as promises of benefit or threats of reprisal .’” Id. (quoting  S.
Rep. 95-181 at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm.
on Human Res., 95th Cong., Legislative History of the Federal Mine Safety
and Health Act of 1977 , at 624 (1978) (emphasis added). Thus, under
established Commission precedent, section 105(c) does not protect only against
tangible acts of reprisal. Rather, it also protects miners against “ threats
of reprisal” that chill the exercise of protected rights.

In short, the
Judge erred in entering summary decision because he failed to view the record
and to draw inferences in a light most favorable to McNary, and because Alcoa
was not entitled to summary decision as a matter of law. Accordingly, we vacate
the Judge’s decision and remand for further proceedings, including an
evidentiary hearing.

III.

Conclusion

For
the foregoing reasons, we vacate the Judge’s decision granting summary
decision, and remand for further proceedings consistent with this opinion.

/s/ William I.
Althen

William I
Althen, Acting Chairman

/s/ Mary Lu
Jordan

Mary Lu Jordan,
Commissioner

/s/ Michael G.
Young

Michael G.
Young, Commissioner

/s/ Robert F.
Cohen, Jr.

Robert F. Cohen,
Jr., Commissioner

[1] Section
105(c)(1) of the Mine Act provides in relevant part:

No person shall discharge or in any
manner discriminate

against . . . or otherwise interfere
with the exercise of statutory rights of any miner . . . because such miner . .
. has filed or made a complaint under or related to this Act . . . or because
of the exercise by such miner . . . of any statutory right afforded by this
Act.

30
U.S.C. § 815(c)(1).

[2] A miners’
representative has various rights and responsibilities under the Mine Act. These
include the right to accompany an inspector from the Department of Labor’s Mine
Safety and Health Administration (“MSHA”) during inspections of a mine, to be
involved in pre- or post- inspection conferences (30 U.S.C. § 813(f)), and to
request an immediate inspection of a mine (30 U.S.C. § 813(g)).

[3] Because this
proceeding was decided on summary decision, there was no evidentiary hearing. McNary
and Emig were deposed on July 8, 2015, and each provided different accounts of the
events which are the basis of this proceeding. The Judge relied upon McNary’s
deposition testimony in his decision. 37 FMSHRC at 2205-06. It was proper for
the Judge to rely on McNary’s version of the facts in that McNary was the party
opposing the motion for summary decision. KenAmerican Res., Inc. , 38
FMSHRC 1943, 1946 (Aug. 2016) (“‘[w]e look at the record on summary judgment in
the light most favorable to . . . the party opposing the motion.’”) (citations
omitted).

[4]
Under
section 105(c)(2) of the Act, a miner may file a complaint with the Secretary
of Labor alleging discrimination or interference in violation of section
105(c)(1), and the Secretary is required to investigate the complaint. If, upon
such investigation, the Secretary determines that a violation has occurred, the
Secretary is required to file a complaint on behalf of the miner with the
Commission. 30 U.S.C. § 815(c)(2). If, however, the Secretary determines that
no violation has occurred, “the complainant shall have the right . . . to file
an action in his own behalf before the Commission, charging discrimination or
interference in violation of [section 105(c)(1)].” 30 U.S.C. § 815(c)(3).

[5] The other basis
for Alcoa’s motion for summary decision was that McNary did not timely file his
complaint with the Commission. A. Mem. Supporting Summ. Dec. at 9. The Judge
excused the late filing of McNary’s complaint (37 FMSHRC at 2212), and Alcoa
did not file a cross-petition for discretionary review challenging that
finding.

[6] The Commission
has not explicitly held whether the Pasula-Robinette framework is the
only framework applicable to claims brought under section 105(c). Given the
Judge’s errors in granting summary decision discussed supra , we need not
reach that question at this preliminary stage of this proceeding.

[7] The operator
conceded only for purposes of summary decision that McNary had engaged in
protected activity by calling Grones and expressing concerns about safety. A.
Resp. Br. at 11.

[8] Acting Chairman
Althen takes the position that, when all material facts are uncontested in a
bench trial with a judge as the ultimate trier of fact, the trial judge may
draw necessary ultimate inferences of fact. See KenAmerican Res. , 38
FMSHRC at 1954-71 (Young and Althen, dissenting).

[9] McNary’s
concern about workers being burned by the hot slurry arose in the context of
employees suffering serious burns at the Alcoa plant. Four months prior to this
incident, on September 9, 2013, an operator was “badly burned” in an accident
at the plant. Emig Video Dep. In December 2011, McNary himself suffered second
and third-degree burns on his face, torso, back, and buttocks. See
McNary Add. Resp. to Def’s Proposed Findings of Fact and Mot. for Summ. Dec.