Secretary of Labor on behalf of Tara Otten v. Continental Cement Company, LLC

Read the official release (fmshrc.gov)

Plain-English summary

Tara Otten was a laborer and miners' representative at Continental Cement's Hannibal Underground Mine. While she accompanied MSHA inspectors, the company paid her regular laborer rate instead of the higher mobile-equipment rate she would have received under its seniority practices if she had remained in the yard. Judge William B. Moran held that the Mine Act's walkaround provision required full compensation and overrode the company's interpretation of its collective bargaining agreement. He found unlawful discrimination because Otten lost pay as a result of exercising her protected walkaround rights. Continental was ordered to pay $388.39 in lost wages and employer contributions plus interest, remove references to the incident from Otten's personnel file, post a miners' rights notice, and pay a $17,500 civil penalty. The Commission later affirmed the loss-of-pay and discrimination findings, relief, and penalty.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 813(f), 815(c), and 820(i)
• Outcome: Continental was ordered to pay $388.39 plus interest to Otten, provide corrective relief, and pay a $17,500 civil penalty.
• Subsequent review: The Commission affirmed this decision in cent-2021-0013-commission.
• Key point: A miners' representative must receive the pay she would have earned but for inspection duties, even when a collective bargaining agreement points to a lower rate.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA  AVENUE N. W., SUITE 520N

WASHINGTON, D.C. 20004-1710

Telephone No.: 202-434-9933

Telecopier No.: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA), obo TARA OTTEN

Complainant

v.

CONTINENTAL
CEMENT COMPANY, LLC,

Respondent

DISCRIMINATION
PROCEEDING

Docket
No. CENT 2021-0013

Mine:
Hannibal Underground

Mine
ID: 23-02434   

DECISION
AND ORDER

Appearances: Megan J. McGinnis, Esq., for the
Secretary of Labor, R. Lance Witcher, Esq., and Thomas R. Chibnall, Esq., for
the Respondent

Before: Judge William B. Moran

In this
discrimination matter brought under Section 105(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §801 et seq., (“Mine Act” or “Act”), the
issue is whether a miner walkaround representative, when accompanying an MSHA
inspector during an inspection, is entitled only to the miner’s regular rate of
pay or to the upgraded pay that miner would have received, per the mine’s
employment agreement, but for the miner’s participation in the walkaround.

The
walkaround provision is set forth at 30 U.S.C. 813(f). Titled “Participation of
representatives of operators and miners in inspections,” in relevant part, it provides
“Subject to regulations issued by the Secretary, a representative of the
operator and a representative authorized by his miners shall be given an
opportunity to accompany the Secretary or his authorized representative during
the physical inspection of any coal or other mine made pursuant to the
provisions of subsection (a), for the purpose of aiding such inspection and to
participate in pre- or post-inspection conferences held at the mine. Where
there is no authorized miner representative, the Secretary or his authorized
representative shall consult with a reasonable number of miners concerning
matters of health and safety in such mine. Such representative of miners who is
also an employee of the operator shall suffer no loss of pay during the
period of his participation in the inspection made under this subsection.” (emphasis
added).

For
the reasons which follow, the Court finds that when Congress provided in 30
U.S.C. 813(f) that such representative of miners who is also an employee of the
operator shall suffer no loss of pay during
the period of his participation in the inspection made under this subsection, it
meant what it said: the representative shall suffer no loss of pay. As
Complainant Ms. Tara Otten did suffer such a loss of pay, Continental Cement
Co. LLC, violated the Act’s discrimination provision, 30 U.S.C.§815(c) .

FINDINGS OF FACT

Although
the Court here includes its findings of fact from the hearing testimony, it
does so only for the sake of completeness. [1]
It makes this point at the outset because, in its estimation, the record does
not reflect conflicting facts. There being no genuine facts in dispute for the
Court to resolve, this case devolves into a legal interpretation of the no loss
in pay provision for miners’ accompanying an inspector during an inspection. Though
not apparent to the parties, and not realized by the Court until the hearing
testimony was well underway, this matter could’ve been resolved through
cross-motions for summary judgment. With that observation noted, the findings
of are now presented.

The Secretary’s
presentation began by calling MSHA Special Investigator Charles Lee Jones. Tr.
54-55. (Hereinafter, “Investigator Jones,” “Investigator” or “Jones”). He works
out of the MSHA Madisonville, Kentucky District Office. In 2020 he conducted
such an investigation regarding a discrimination complaint made by Ms. Tara
Otten. MSHA received the complaint from Ms. Otten, Complainant, on April 28,
2020. The essence of her claim, as related by the Investigator, was that Ms.
Otten “informed [him] that she was the most senior laborer in the pool and that
she would have been entitled to operate the equipment, to be upgraded. But
because she chose to participate in the MSHA inspection, she was -- that pay
was removed from her.” Tr. 58. Joint Ex 1, J-1. , Ms. Otten’s Complaint. [2] The Complaint
named Terry Powell, Stacy Fujarski and Heather Ames as the persons who
discriminated against her. Complainant alleged that she was entitled to the
upgraded rate of pay as a mobile equipment operator during “the weeks of 3/21,
3/28, and 3/29, 4/4.” Tr. 60.

The Court would note that
there is no dispute that Ms. Otten is a miner and that acting as a miners’
representative is protected activity. Only the third element is in dispute: did
she suffer “some sort of discriminatory act, … in this case, loss of pay?” Tr.

61. Thus, Complainant seeks her backpay and direction that the Respondent will
    not so reduce her pay in the future when so acting as the miners’
    representative.

As part of his
investigation, Investigator Jones sought statements from the individuals named
in Ms. Otten’s complaint. [3]
However, he only received one response, that from the mine operator. Tr. 62. Ex.
J 3 is the Respondent Operator’s position statement, which was prepared by Ms.
Heather Ames. Tr. 64. Jones particularly pointed out from that position
statement the Respondent’s contention that “Miss Otten was correctly paid the
upgraded hourly wage while performing work using mobile equipment as outlined
in the Hannibal hourly CBA, but she did not receive an upgrade hourly wage for
acting as a miners' rep as per the current CBA.” J 3 and Tr. 65.

From that statement,
Jones deduced that the Respondent was acknowledging that Ms. Otten would have
been “entitled to that upgraded pay if the MSHA inspector was not there.    In
other words, if the MSHA inspector did not show up, or she did not participate
in the inspection, there was no question she was entitled to it. They would
have paid it without question, the upgraded pay. But because that she
participated with MSHA, in the inspection, that was the sole reason for
retracting the pay.” Tr. 65-66.

Investigator Jones did
interview the Complainant, Ms. Otten, on May 7, 2020. Tr.68, Ex. J 2. This was
done over the telephone. Jones informed that, during that interview, the Complainant
provided additional information, consisting of “e-mail exchanges between
Heather Ames and LaRay Mundell, [4]
or Stacy Fujarski was on some of them.” Id. Ex. J3, at pages 5-6.

Ms. Otten provided
additional information to Investigator Jones during the interview, beyond the
walkaround pay issue. [5]
Tr. 70-71. J 2 at page 3. Jones related that Otten informed that in connection
with that “particular inspection cycle, … the Company had received several
citations. And she made the statement that she felt like that there was a
target on her back because that she participated in these inspections.” [6] Tr. 71.

On cross-examination,
Jones stated that he did send individual letters to Mr. Powell, Miss Fujarski,
and Miss Ames, but those were general letters, which did not request position
statements. He also sent an inquiry to Mr. Gutierrez, the plant manager at
Continental Cement. Tr. 79-81. [7]

Respondent’s Counsel
remarked that the Complainant did not reference any other, earlier, dates of
alleged discrimination beyond those stated in her complaint. Tr.88. In
connection with that observation, Counsel noted that there is a time limit
within which a complaint is to be filed; namely 60 days. Tr. 89. Pointing to
Exhibit J 1, the Investigator agreed that April 25, 2020 is the date on that
exhibit and further noting that 60 days before that would be February 28 th .
From that, Respondent’s Counsel asserted that alleged acts of discrimination
before February 28 th would be too late to assert as acts of
discrimination. Jones did not agree however, maintaining that dates earlier
than February 28 th “go to show history of activity that [Ms. Otten]
was subjected to.” Tr. 89-90. Jones did concede that Ms. Otten’s claim is over
loss of pay, but countered with his view that the earlier events may be used to
show “that she was being harassed, discriminated against, because of her
involvement in these MSHA inspections.” Tr. 91.

This decision rests upon
the specific issue of the rate of pay Ms. Otten was entitled to during specific
dates when she was accompanying an MSHA inspector during an inspection.   As
such, Ms. Otten’s background allegations are not determinative of the issue in
this case. However, those alleged preceding even ts provide useful context in
making the penalty determination. [8]

Still referring to Ms.
Otten’s remarks about prior workplace harassment, Respondent’s Counsel, called
attention to Ex. J 2 at page 3, wherein it reflects the Complainant’s remark
that “[d]uring that time [she] called in on the MSHA hotline about November 5th
or 6th, because [she] felt [she] was being harassed, not to the point any money
was being withheld from me, but it seemed like they were trying to push me out
of the miners' rep position and to get me not to walk around with the
inspectors.” Tr. 93. Respondent’s Counsel noted that the Complainant makes no
claim that she was losing money as a result of those actions nor does she claim
she was disciplined because of them, and Investigator Jones agreed. Id. As
best as the Inspector could recall, when Otten made her hotline call to MSHA on
November 5, 2019, she made no mention or claim that “she had accompanied MSHA
all day that day and was only paid her laborer rate.” Tr. 94. However, regarding
the time when she made the complaint in this matter , Jones stated that
Otten did complain that she had accompanied MSHA all day but was only paid a
laborer's rate while other laborers were performing mobile equipment
operations. Jones remarked that was the essence of her complaint – that “on days
that she would have been entitled to that upgraded pay, a laborer with less
senior time would run that piece of equipment, but then she was not paid that
pay.” Tr. 95. The investigator added that, at first, Otten was paid the
upgraded pay but that it was later retracted. [9]
Id.  

Also referring to page 3
of that exhibit, Respondent’s Counsel directed Investigator Jones to the
Complainant’s remark that in February 2020, at which time she was part of the
safety focus group, she stated that Mr. Powell, “had to go to what [Powell]
called MSHA court on February 5th and 6th. When he got back, he put me on a
crappy shift.” Tr.96. Concerning that remark, Respondent’s Counsel asked Inspector
Jones whether Otten explained why she considered that to be harassment? Jones
answered that Otten “talked [to him] about the inspection where she
participated with the MSHA inspector and [the mine] received … several D
orders, or a couple of D orders.” Tr. 96. Jones reaffirmed that Otten’s
complaints relating to those D orders were made to him at a point in time
beyond the 60-day period for her to file a complaint of discrimination. Tr. 98.
The Court notes that, aside from providing useful contextual information, this
issue is not relevant to the core issue in this case.

This is an appropriate
point to highlight the core issue in this case. The Court believes that it may
be simply stated:

The Respondent believes that the
Collective Bargaining Agreement (“CBA”) carries the day. As applied here, that
stance means that because the CBA does not provide that an employee is entitled
to an upgrade or any higher pay classification if that employee does not
actually perform that work , that employee is not entitled to such a pay
increase. Period. Full stop.

That the Respondent may
ardently believe this to be the case, does not make its position stronger. Accordingly,
the Respondent’s approach to present several witnesses affirming their belief
that the CBA controls this matter does not make it so. In short, repetition of
the viewpoint does not bolster the Respondent’s position. [10]  

Respondent’s Counsel then
turned to Ex J 4, which contains the collective bargaining agreement, and
specifically to pages 37-49, the wage rate schedule. Tr. 107-108. Jones agreed
he reviewed this to compare Otten’s labor pay rate with the mobile equipment
rate and he conceded that, within the mobile equipment operator rates and the
wage rate schedule overall, there is no mention of a wage rate for miners’
representatives. [11]
Tr. 108-109. Nor, the Court would observe, is there
a need to have such a provision, as the Mine Act speaks to the issue.

Investigator Jones also agreed
that in the CBA there is “a defined provision in the contract that governed
when an employee would receive an upgraded wage rate for performing higher
classification work.” Id. Ex. J 4, Section 9 of Article 6 in that
exhibit, page 16 of 49. Tr. 110. That section is titled, “Rate of pay for
temporary transfers.” Id.

Accepting that the
provision was “negotiated and mutually agreed upon by the Union and the
Company,” Jones agreed that there is nothing in that document providing that
“employees [are] entitled to a higher classification wage simply because
another employee who's junior gets that upgrade.” Id. All of this
continues the Respondent’s theme that the CBA addresses the issue of upgrades
in pay and therefor that it controls the rate of.pay when a miner is engaged in
a walkaround. This theme is repeated over and over in the Respondent’s case.

Jones agreed that the CBA
provides “[w]hen work of a higher paid classification is required of any
employee, he/she shall receive the higher rate of pay for a minimum of four
hours,” and that this means “if an employee works less than four -- a minimum
of four hours at a higher wage classification that they're going to get an
upgrade for at least those four hours.” Tr. 110-111. And so too, if an employee
works more than four hours, that employee’s pay will be upgraded for the whole
day. Tr. 111.

Respondent’s counsel,
building on those admissions from Investigator Jones, then noted that the
provision speaks to “[w]hen work … of a higher paid classification it
required an employee,” emphasizing that the term “work” is used. Tr. 111. However,
the Court considers this to be a fatuous argument. Jones was asked if Otten is
performing miners’ representative duties by accompanying MSHA on an inspection,
if she was required to operate mobile equipment at that time. Tr. 111-112. Naturally,
the investigator responded that Otten was not required to operate mobile
equipment at those times, explaining that she was exercising her rights as the
designated miners’ rep to travel with the inspector. Tr. 112.

Thus, the argument made
by Respondent’s Counsel is that “in order to get that paid a higher pay
classification upgrade, work had to be performed at that higher paid
classification upgrade.”  Tr. 113. (emphasis added). Ex. J 3 was raised to make
the same argument: that “a laborer [is] [ ] eligible for upgraded hourly wage when
running a piece of equipment classified as mobile equipment.” Tr. 123. (emphasis
added). With actually running the equipment being a prerequisite in the
Respondent’s eyes, that would be impossible when Ms. Ottten was acting as a
miners' rep during MSHA inspections. Tr. 123-124.

Investigator Jones did
not agree with the Respondent’s assertion that that the issue in this case is
simply a matter of contract interpretation, restricted to how each side sees
the CBA. Tr. 142. The Court agrees with the investigator’s perspective.

The Secretary then
called, Norris Laray Mundell who has been employed at the Continental Cement
Plant at Hannibal, Missouri for 28 years. Presently, his job title is “laborer”
in the yard department. During those many years of employment he held other
positions in the yard; advising that “for seven years [he] was acting foreman
of the yard department,” and for many years before that, he was a ‘knockout’
foreman, meaning if the foreman was absent, he would assume those duties.  In
short, Mundell had many years working in the capacity as a supervisor at the
mine. As noted, Mr. Mundell is the father of the Complainant, Ms. Otten.

Speaking to the events in
issue, Mundell explained the job assignment process at the mine. That process
takes into account seniority.  The yard department, he informed, is a big
cleanup crew for the entire plant. Thus, he stated, “Any place on the plant
that spills stuff onto the ground, or makes messes, piles, shuts down stuff,
the yard department is called in to clean up all this mess so that they can
keep operating.” Tr. 154-155. The yard department has its own physical
location, that is to say, its own building, from which everyone in the yard
works out of.” Tr. 155. Miners in the yard report in the morning and are given
the day’s assignments.

At the time in issue here,
Mundell had four mobile equipment operators, with everyone else in the position
of laborer. Id. A key factor in this matter, it is the practice that when
there are insufficient mobile equipment operators, laborers are assigned to
operate those pieces of equipment. Tr. 156.

The Court here takes note
that the mine’s seniority process is not in dispute in this case. In his
role as yard supervisor, Mundell gives out work assignments each day. Critical
to this matter, Mundell explained that “if there was more work to be done on
mobile equipment, than they had mobile equipment operators, he would assign
laborers to run such equipment by seniority . Tr. 155, 167.

Several types of mobile
equipment are listed in the CBA and many are pieces of equipment that laborers
may be needed to operate. Tr. 160-167 and Ex. J 4 at page 39. When there are
insufficient operators, laborers are upgraded to run such equipment. If there
is a need for a mobile equipment operator, Mundell stated “when a job comes up
for bid, it's always the senior person that gets it if they're qualified.” Tr.
167.

Referring to Ex. J 7,
that exhibit lists the names of the laborers Mundell supervised in the yard for
the week of March 22, 2020. Tr. 170. Speaking to March 24 through March 26 of
that week, Mundell agreed Ms. Otten participated in an MSHA inspection on March
24 th .

It is worth noting again,
because it is important, that there is no dispute between the parties as to the
days during this week that Ms. Otten participated in MSHA inspections. [12]

The case, very simply,
devolves down to whether Ms. Otten was entitled to a pay upgrade as a mobile
equipment operator during those times she was accompanying the MSHA inspector
as the walkaround representative. In fact, there are no significant factual
disputes between the parties on these issues. Accordingly, in retrospect, the
Court believes that the parties could have stipulated to all of these facts,
leaving only a motion for summary judgment, as important as that issue is, for
the Court to resolve.  

The Court also takes note
that there is no dispute regarding Otten’s seniority status    vis-à-vis the other
laborers. She had the most seniority on the dates in issue. Tr. 181 and Ex. J

5. This again highlights that the only genuine dispute in this case is whether,
   when acting as the miners’ walkaround representative during an inspection Ms.
   Otten was entitled to the upgraded pay of a mobile equipment operator during
   the days identified in her complaint.

Upon cross-examination, Respondent’s
Counsel again raised the carpentry work theme, a contention the Court has noted
to be non-starter because it is not involved in this dispute and is otherwise
inapplicable, as set forth in the following footnote. [13]

Mundell agreed that under
the CBA there is no provision “that sets a wage rate or offers a pay upgrade
for miners' rep duties.” Tr. 212. Apart from past practices at the mine and the
gentleman’s agreement in the past, it was Mundell’s position that Ms. Otten
should not be penalized because she was with an MSHA inspection as the miners’
rep and that view was apart from those prior arrangements. Tr. 218-219. Respondent’s
Counsel noted that Mundell could not point to a provision within the CBA
that miners are entitled to a pay upgrade when they voluntarily choose to serve
as a miners’ representative. Tr. 220-221. Along the same theme – that the CBA
controls the issue in this case, Respondent asserts that its position is
enhanced because the CBA’s “zipper clause” eliminated past practices. [14] Tr. 222. However,
whatever Mr. Mundell’s position happens to be on that issue, it is necessary to
point out that it is a matter for the Court decide as a legal question under
the facts as determined by the Court.

Respectfully, the Court finds that
Respondent’s Counsel continued to pursue hypotheticals which were off the mark
and, as such, they are mentioned only in footnotes. [15]

For purposes of
clarification, the Court then asked of Mundell if it correctly understood the
types of work performed in the yard, inquiring if those categories consisted of
laborers, operators of mobile equipment, and carpentry. He agreed that was, for
the most part,

accurate. [16]
Tr. 246-247. Mundell also confirmed that a laborer
who is bumped up from that work to operate mobile equipment is paid at a higher
rate. Tr. 247-248. There is no dispute about this. He further confirmed that a
laborer who is given a carpentry assignment used to be paid at a higher rate,
but that this is no longer the case, as there is no longer any carpentry classification
under the current CBA. Tr. 248.

This last point, that
there is no carpentry classification now , pursuant to the CBA, is part
of the Respondent’s contention, as the CBA was in effect at the time of the
events Ms. Otten cites in her complaint. Thus, Respondent’s Counsel asserts
that is the effect of the ‘zipper clause,’ which refers to the elimination of
past practices including things like upgrades for carpentry work. From that
change, through the CBA, Respondent contends that clause dictates the same
result, controlling the issue of walkaround pay. Whatever might have been the
past practice for walkaround pay, the zipper clause of the CBA put it to an end,
so says the Respondent.

The Secretary then called
Terry G. Powell. He is the quarry and auto garage supervisor at the Hannibal
plant and Hannibal Mine and from April of 2016 to February 2020, he was the
yard supervisor. Tr. 271. His testimony was consistent with the witnesses who
preceded him.

He confirmed that if he
did not have sufficient mobile equipment operators to do jobs, he “would assign
laborers to run mobile equipment.” Tr. 272. The yard supervisor determines if
it’s necessary to assign a laborer to operate mobile equipment. If needed
mobile equipment work was needed there would be an upgrade in pay and the work
would be assigned based on seniority. Tr. 277. If that was not followed, and
the work was assigned to a miner with lesser seniority, the more senior laborer
employee would still be paid the upgrade rate, though he did not operate the
mobile equipment. This was in line with the contract, meaning the Collective
Bargaining Agreement. Tr. 280-281. The provision, he admitted, keeps one from
giving the money to a junior person because maybe he didn’t like the senior
person, or whatever. It's a provision in there to guarantee equality in pay and
opportunity.” [17]
Tr. 278.

As noted in footnote 16,
the Court finds that Mr. Powell was not exactly a fan of Ms. Otten. It is also
of concern to the Court that his testimony was equivocal at times and that he
had an unusual definition of an “emergency.” Adding to these concerns, the
Court notes that when Powell was asked if he spoke with Heather Ames about,
…[his] experience in supervising Tara Otten while she was on MSHA inspections,
he could not recall but added that he was “not going to say it didn't happen,
but we're talking quite some time ago, so no. I -- I don't think we had any
particular conversation about that, but I can't be certain.” Tr. 287. When then
asked about Exhibit J-7, an email from Ms. Ames to Mr. Robert Pickering, the HR
Manager, on April 9, 2020, Powell changed his previous answer stating, it
appeared that he did have such a conversation. Tr. 288.

Powell also adopted the
Respondent’s perspective about the controlling effect of the CBA. Thus, he did
not take issue with the accuracy of Ms. Ames’s email including his remark to her
that “[i]f Tara is unavailable for a job, she is not available.” To him, it was
“[ n ] o different than if she was on vacation, or in the storehouse
filling in .” Tr. 289 (emphasis added). When asked if Ms. Otten is ‘unavailable’
while working with MSHA, whether that it is no different than if she was on
vacation, Powell reaffirmed that is his view, stating “It's -- it's no
different. If she's unavailable to do the physical work, she's unavailable to
do the physical work.” Id.

Very simply, Powell’s
position on the issue of the pay upgrade was that employees “have to be able to
work the job. You can't run mobile equipment if you're not available to do it. If
you can't sit in the seat and operate it, then by the Collective Bargaining
Unit Agreement, you -- you don't get the pay. I mean, that's pretty much the
way it is with every job at Continental. If you cannot do the job, y ou do not
get the pay.” Tr. 295-296.

Powell’s testimony for
the day concluded with a reference to Joint Ex 4, the CBA, at page 28 of 49, wherein
that document provides “[a]ll hours worked in connection with the work of the
committee by a Union representative, including all time spent in pre or post
inspection conferences and walk-around time spent in relation to Federal MSHA
inspections and investigations as provided above, shall be compensated
according to the provisions of this agreement.” Tr. 317. The Court notes that,
though asserted in different ways, the Respondent’s position still boils down
to whether the CBA controls the walkaround pay due a miner when accompanying an
inspector during an inspection.

At the outset of the second day of
testimony, the Court notified the parties that “[f]or the
dates that are mentioned in the complaint, and just those dates,” they were
directed “to present their proposed findings of fact as to whether the
Complainant, Tara Otten, would have worked on those days in question, and what
that job would have been, and the hours that that would have been. It would
either be a mobile equipment operator, or none of the above, or potentially
carpentry, if that was the only thing available. … [and that more was required
than simply asserting them as findings of fact because for each proposed
finding they were to supply]     the record support, through testimony or
exhibits, … for those assertions.” Vol II Tr. 7.

With Powell’s testimony resuming on the
second day of the hearing, Respondent’s Counsel tried to create a distinction,
namely that when an employee is acting as the miners’ representative during a
walk-around, that person is then with the safety department, not with the yard.
Powell concurred, expressing, “[i]f [Ms. Otten’s] called out by the safety
department to walk with MSHA, she's with the safety department until she
is released to come back to yard. Then when she would come back to the yard,
she would be assigned her duties that day, whether it be laborer work or an
upgrade to mobile equipment once she returned to the yard department.” Vol II, Tr.
23-24. Powell thus claimed that during the time Ms. Otten was with MSHA, “she’s
not working for the yard department at that time because she's unavailable to
do the duties. Yes, she is working basically for the safety department.” Vol
II, Tr. 24.

While creative, the Court
holds that these attempts to create new administrative labels do not change the
analysis. This is because if Ms. Otten accompanied an MSHA inspector on a given
day and on that day, but for that walkaround role, she would have been in the
yard and assuming there was a need for a mobile equipment operator on that day,
she would be entitled to the pay upgrade, regardless of the purely semantic
attempt to claim that she was then in the employ of the safety department when
accompanying the inspector. To the Court, this argument amounts to an admission
that the CBA theory may not carry the day, and for that reason the pretense
that she became part of the safety department was nothing more than an
invention.  

Further, as Powell then
conceded, while claiming that Ms. Otten was working “basically for the safety
department, [ s ] he’s actually working on behalf -- she's representing
miners .” Vol II Tr. 24. Yet, Powell believed that the Mine Act provision
providing that a representative of miners shall suffer no loss in pay, means no
loss in pay but that doesn’t mean they would be upgraded in pay. Id. at
Tr. 25.

The flaw in the analysis,
as the Court sees it, is that Ms. Otten’s pay is to be measured by the pay she
would have received during the time she was serving as a miners’ rep. If she
would’ve been working as a laborer during those times, she would receive the
laborer pay rate, but if she would’ve been working as a mobile equipment
operator during those times, that is the pay rate she would’ve received and to
pay her the labor rate under those circumstances would certainly be a loss of
pay by any definition.  

Still another angle presented by the
Respondent arose from Ex. J-4, at page 11, wherein it states that “[p]lant
seniority shall be in effect at this location.” Powell agreed that the
provision says nothing else about seniority. From that, Respondent’s Counsel
asked if the provision provides that “just because someone's seniority they get
an upgrade for a particular day.” Vol II Tr. 41. Unsurprisingly, Powell
answered it does not so provide. This led Counsel to ask how seniority works,
which fed into Powell’s, repeated response that seniority “is for bidding
processes. It is for upgrading in pay, as long as they're available for that .
And it's also for if two people put in for the same vacation, then the senior
person would get first choice.” Id. But the Court notes that this
amounts to yet another run at the Respondent’s claim that one must be available
to perform the work and, if the person is engaged in a walk-around role, they
are perforce not available. Vol II, Tr. 44-45 and Ex. J-4 at page 16.

Thus, the Respondent tried “Six ways from
Sunday” [18]
in its attempt to show that Ms. Otten was not entitled to the pay upgrade when
acting as the miners’ walkaround representative. Tr. 50-52  Accordingly, all of
their attempted analogies, for example, bereavement leave, work in the
storehouse, jury duty, etc., and their contention that one must in fact actually
performing the higher classification work, fail, because the Mine Act
specifically addresses the issue and provides that there is to be no loss of
pay.

The Secretary then called Miss Heather
Ames. She is presently the human resource and labor relations manager, but at
the times in issue in this litigation she was the HR labor relations
specialist, a position she held during March and April of 2020. Vol II, Tr. 56.
In that role, she was involved in the decision to retract the Complainant’s pay
upgrade for the days named in the complaint. Id . at Tr. 58. Ames was
aware that Ms. Otten had participated in an MSHA inspection during the week of
March 23 rd . Id. at Tr. 60. She also admitted that the
Complainant Otten was the most senior laborer on duty at the times in issue in
this matter. Vol II, Tr. 65-66.      In retracting Ms. Otten’s pay upgrade,
that decision was based on one factor only, namely she determined that Ms.
Otten was “unavailable.” Id . at Tr. 63. She determined that Ms. Otten
“was unavailable to perform the mobile equipment upgrade.” Id. at Tr.

66. By using that term, Ames meant Otten “was not present … [meaning] [n]ot
    physically present in the department to be able to get on to that piece of
    mobile equipment.” Id. However, Ames was fully aware of the reason Ms.
    Otten was not “available,” stating “[b]ecause she was accompanying the MSHA
    [inspector] during an inspection.” Id . at Tr. 67. And Ames stated that
    was the only reason she found Ms. Otten to be unavailable. Id. at Tr.
    67-68. In making that decision, Ames instructed Miss Fujarski that Ms. Otten
    was not available to receive the upgrade in pay because she “was not eligible
    according to the contract,” by which she meant the collective bargaining
    agreement. Vol II at Tr.68-69. Ames discussed the issue with several other
    personnel at the plant including Scott Allen, Terry Powell, Jose Gutierrez and
    Bob Pickering. Tr. 70-71. In retracting the pay rate, removing the upgrade,
    Otten’s pay was reduced from $28.21 per hour to $25.05 per hour. Tr. 75.

Thus, Ames agreed with
Powell that upgrading Otten for MSHA work is no different than her being on
vacation or in the storehouse. Tr. 78. Ames also agreed that she told Mr.
Pickering that Ms. Otten “chooses to work with MSHA.” Id. She then added
“I mean, she doesn't have to be a miners' rep. That's an elected position by
the Union, but she -- she's not forced to be miners' rep, is what I mean.” Id.
Ames agreed that Ms. Otten was with MSHA all day on March 25, 2020. Tr. 80,
Ex. J-7 (p). The same was true for March 26 th . Tr. 81. Ames informed
that she was relying upon the CBA , Article 6, Section 9, right of pay for temporary
transfer and Article 14, Section 3, under health and safety. Tr. 82. Ames was
the person who wrote the mine’s position statement regarding Otten’s complaint. [19] Id.

Ms. Ames did not acquit
herself well in her remark regarding pay for miners accompanying an MSHA
inspector, when she commented that “[n]o employees have been upgraded to higher
hourly rate for being a miners' rep under the current CBA.” Tr. 87-88 and Ex.
J-3 at page 5. She affirmed that by that remark she “meant that none of those
employees listed as miners’ reps received upgrades or special rate for acting
as a miners' rep under this current Collective Bargaining Agreement.” Tr. 88. But
a closer look at her remark reveals, in the Court’s estimation, that it was
disingenuous. This is because among the list of six miners who were miners’
reps, which number included Ms. Otten, not one of the other five miners
were yard personnel. Id. Further, she conceded that not one of the other
five employees would even have been eligible for a mobile equipment upgrade. Id.
As if that were not bad enough, Ames conceded that it was true that those
“other five employees, a welder, an electrician, a maintenance electrical
welding, and a crush operator, they are paid a higher rate than the laborer
throughout the time that they were with MSHA. They were always paid a higher
rate on the wage scale than a laborer.” Tr. 88-89 and Ex P-7.

The Court may be naïve
but considers it possible that some mine operators, rather than having an
implicitly negative view towards miners’ representatives, could embrace the
practice, as such informed personnel might observe hazards to miners that might
otherwise be overlooked and thereby make their operations safer, to their
benefit and to the miners.

As with other employees called
by the Respondent, Ames’ position was in line with those management employees
of the Respondent, that if Ms. Otten is with MSHA as a walkaround
representative, she is deemed “not available.” Vol II Tr. 92. Turning to Ex.
J-4 at page 5, under Article 2, general, Section 1, the non-discrimination
provision, Counsel for the Secretary noted that it provides that: “[a]ll
provisions of this agreement shall be applied to all employees without regard
to race, color, sex, religious creed, ancestry, disability, age or national
origin, or other status protected by applicable law .” Tr. 94. (emphasis
added). Ames agreed that the designated miners' representative is a status
protected by the Mine Act. Id.

The Secretary’s questioning then turned to
an investigation made by Mr. Pickering regarding potential harassment against
Ms. Otten. Vol II Tr. 100 and Ex. P-9(a) through (i).   In November 2019,
Pickering was the HR manager and the exhibit just noted above reflects his
notes regarding a meeting he held with Miss Otten, Mr. Clayton, the Union representative
and  a plant manager, Matt Helms. Vol II Tr. 99. Ames was present at the
meeting too. The Court, employing a landscape and trees analogy, commented that
the exhibit would not be outcome determinative to the core issue, but that it
could have relevance to the broader picture. Vol II, Tr. 103.

Continuing with the theme of the defense, Counsel
for the Respondent asked if Ames had ever reinstated any upgrades after they
had been retracted. Ames answered that she had done that and that such changes
were all based on the terms of the CBA. [20]
Tr. 107. In what the reader will recognize as more of the same contention, Ames
affirmed her view that seniority does not mean that a senior employee is
entitled to a wage upgrade that a junior employee receives if that senior
employee is not available to do the work of that higher classification.
Tr. 118. Ames believed that paying Otten the upgrades while acting as the
walkaround representative violated the CBA and that such an upgrade was no
different than the inappropriate upgrades paid to Matson and Lucas when they
were replacing ceiling tiles, which was considered to be carpentry work. Vol II
Tr. 129-141. She maintained that the decision to retract the upgrades for all
three was based solely on the Collective Bargaining Agreement. Vol II Tr.140.

Again, the Court must
note its view that the Respondent’s many revisitations of the same contention
does not advance the persuasiveness of that contention. Numerosity, at least in
terms of counting the number of times witnesses affirmed that the provisions of
the CBA control the issue of the pay due, does not translate into prevailing on
the issue. This is because of two fundamental things – the facts attendant to
the work Ms. Otten would have performed on the days in issue in her complaint
are not in dispute and the question, given those undisputed facts, is a legal
determination of the no loss in pay provision when a miner is engaged in a
walkaround with an MSHA inspector. Attempted analogies such as entitlement to
pay upgrades when a miner is on jury duty, required MSHA training, bereavement
and the like are off the mark, because the walkaround right is in a class by
itself.            

And though it could not
be clearer from all the foregoing testimony from the Respondent, Ames affirmed
that her response to the MSHA special investigator Jones, was made on behalf of
the mine operator and it was “based on the language of the Collective
Bargaining Agreement.” Tr. 177. Amplifying its view, Ames expressed that Ms.
Otten’s pay upgrades were retracted not because she was with MSHA for
inspections, but rather because the upgrades “didn’t comply with the Collective
Bargaining Agreement.” [21]
Tr. 179.

The Court then made a few comments about
the conduct of the hearing through that point of the proceeding. First it noted
that the procedural rules allow it to control unduly repetitious and cumulative
evidence. It remarked that it had not invoked that authority up to that point,
but that it had heard much repetitious testimony. Tr. 189. The Court then noted
that, as there was testimony of pay being retracted from Ms. Otten which pay
was then reinstated, those specific times would then be moot. In those
instances, the parties’ briefs should take note of these corrections. Tr. 190.

The Court also expressed that certain
issues were, effectively, dead-ends. These included items such as Mr. Mundell’s
coding errors regarding pay, talk of jury duty, MSHA required training and
bereavement leave, with the Court advising the parties that none of those were
material to the issues in this case. The Court expressed that the labor
grievance process is of the same non-material ilk. Vol II, Tr.191-192. Instead,
the Court expressed that, at that point in the hearing, the critical issue is
whether the CBA “reign[s] supreme vis-à-vis the Mine Act walk-around provision.
Vol. II, Tr. 192.

Following
the Court’s remarks, testimony resumed. In an attempt to repair the adverse
inferences raised earlier in the testimony, regarding whether she harbored a
negative view of Ms. Otten, Ames agreed that in connection with her email
references to Ms. Otten having so many issues with Terry Powell, she then conceded
that Ms. Otten, as the Union steward, would be expected to have such issues
because she represented fellow employees in such matters. Vol II Tr. 196-197. Further,
Ames acknowledged that when she contacted Powell on the pay upgrade issue in
this case, she knew that Powell did not get along with Ms. Otten. Vol II, Tr.

197. The Court, reflecting on this additional testimony, reconsidered its
     earlier view, and advised that further testimony on the matter could be of
     value. During this revisitation of the issue, Ames acknowledged that there was
     “turmoil” within the labor department and this was a factor in Powell’s decision
     to leave that department. Vol II Tr. 210-211. Ames then admitted that the Powell’s
     decision to leave that department was based mostly on his interactions with Ms.
     Otten. Tr. 211.

Ms.
Stacy Fujarski then testified. [22]
She is a payroll specialist at Continental Cement Company. Vol II Tr.219. Part
of her job involves entering the proper coding for payroll processing. In
performing that task, she endeavors to have the timecards correspond with the
contract. Tr. 221. If she sees a possible error, she contacts a member of
management to resolve such questions. Tr. 222. Though Ms. Fujarski was a
pleasant person, who explained her role in ensuring that timecards are correct,
the Court finds that none of her testimony is of any value to the issues before
this Court. [23]
Tr. 224-233.

The Secretary, then
called the Complainant, Ms. Tara Lynn Otten. Tr. 246. At the time of the events
in issue, March and April 2020, Otten was a laborer at the mine, but around
February 2021 she became a mobile equipment operator. [24] Id.
She has been a miners’ representative since May 2018. Tr. 247.  Otten
capsulized the essence of her complaint: “The discriminatory action was that my
money was retracted. I suffered a loss of wages, loss of pay, for performing my
protected act of walking with MSHA.” Tr. 253. As she expressed in her
complaint, she “would like to have the backpay and continue to receive the
upgrade as I always have when acting as a miners' rep.” By the term “backpay,”
Otten meant the difference between labor rate and the mobile equipment upgrade
that was retracted. Tr. 254-255. It was also Otten’s belief that “this entire
thing is an attempt to get [her] to step down as a miners' rep.” [25] Tr. 256.

At the time of her complaint,
when Ms. Otten worked as a laborer in the yard, she informed that generally she
operated mobile equipment nearly every day, most often running a Bobcat or skid
steer. Tr. 268. Otten identified Ex. P 11 as the document “representing the
times and the hours, the dates that [she] walked with MSHA, and where [she] was
not given the mobile upgrade, that a junior laborer was on a piece of mobile
equipment.” Tr. 269. Working with Counsel for the Secretary, Otten prepared the
document, which is a summary of dates and times she was denied the mobile
equipment operator pay level because she was accompanying an MSHA inspector as
the miners’ rep. For example, per that exhibit, Otten stated that for March 24,
2020, she contends that $44.24 was due her that day but was instead paid at the
labor rate. Tr. 270-277. It should be noted that there is no genuine dispute
about the mobile equipment operator pay rates on the days in issue, nor that
Ms. Otten was accompanying an MSHA inspector during the days and times
identified in Ex P 11.

Again, the only genuine
dispute in this matter is whether Ms. Otten should’ve been paid at the mobile
equipment operator rate or the laborer rate. [26]
In response to the Court’s inquiry, Otten stated that Ex. P 11 reflects the
entirety of her monetary damages. Tr. 278. To be clear, Otten is not and has
not contended that she was entitled to the mobile equipment operator pay rate every
time she accompanied an MSHA inspector. Rather, her claimed damages were
limited to “entitle[ment] to the upgrades when [she] walked with MSHA if a
junior laborer was on a piece of mobile equipment. It was not every time. It
wasn't every time I got called out. It was only if a junior employee was on a
piece of mobile equipment, then I was entitled.” [27] Vol II, Tr.
279-280.

The third day of
testimony began with the Respondent calling Darin Douglas. He is employed by
Continental Cement and is presently the yard supervisor, a position he has been
in for the previous nine months. Vol III, Tr. 15. He then stated how upgrades
work for temporary work performed by laborers, including as in this dispute,
the pay a laborer receives when assigned to operate mobile equipment. With no disrespect
by the Court, Douglas’ testimony was cumulative, an attempt at reinforcing the
Respondent’s position as to the procedure for laborer pay upgrades when such
individuals operate mobile equipment. [28]
Vol III, Tr. 16-18.

Analysis

Case law regarding the
Mine Act’s Walkaround Provision

The
Court endeavored to research relevant cases construing the walkaround
provisions under the Mine Act. Those holdings are referenced here.

In
Magma Copper, 1 FMSHRC 1948, (Dec. 1979) ,
aff’d 645 F.2d 694 (9th Cir., May 18, 1981), the Commission held
that “one miners’ representative in each inspection party must be paid
for time spent accompanying an inspector who is engaged in an inspection of the
mine ‘in its entirety’ under 103(a) of the Federal Mine Safety and Health Act
of 1977.” Id. The language employed by the Commission is instructive, as
it remarked that “[w]alkaround pay was designed to
improve the thoroughness of mine inspections and the level of miner safety
consciousness.   The first sentence of section 103(f) expressly states that the
purpose of the right to accompany inspectors is to aid the inspection. The
Senate committee report on S. 717, 95th Cong., 1st Sess. (1977), the bill from
which section 103(f) is derived, explained that the purpose of the right to
accompany an inspector is to assist him in performing a ‘full’ inspection, and ‘enable
miners to understand the safety and health requirements of the Act and
[thereby] enhance miner safety and health awareness.” S. Rep. No. 95-181, 95th
Cong., 1st Sess., at 28-29 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977 , at 616-617 (1978) [“1977
Legis. Hist.”]. The purpose of the right to walkaround pay granted by section
103(f) is also clear: to encourage miners to exercise their right to
accompany inspectors .” Id. at 1951-1952, (emphasis added).

It was Congress’ judgment
that a failure to pay miners’ representatives to accompany inspectors would
discourage miners from exercising their walkaround rights, and that the
resulting lessening of participation would detract from the thoroughness of the
inspection and impair the safety and health consciousness of miners. If
only one of the inspectors would be assured of receiving the assistance of a
miners’ representative when conducting a 103(a) inspection of the mine, only a
part of the mine would be likely to receive the kind of inspection that
Congress expected the walkaround pay right to help assure. Id. at 1952.
(emphasis added).

The Court considers the
language, as italicized above, to be useful in this matter, because if the
Respondent’s view were adopted, reducing the pay of the walkaround
representative from the amount of pay that representative would have received
during that time accompanying the inspector “ would discourage miners from
exercising their walkaround rights, and that the resulting lessening of
participation would detract from the thoroughness of the inspection and impair
the safety and health consciousness of miners .”

In Quarto Mining ,
12 FMSHRC 932 (May 1990), the Commission upheld the right to walkaround pay
where a mine operator’s employee accompanied an inspector, even though the
focus of the inspection arose as a result of safety hazards associated with
activity of an independent contractor at the site. As instructive here, the
Commission noted the 9 th Circuit’s decision affirming its holding in
Magma Copper Co. v. Secretary of Labor , 645 F.2d 694 (9th Cir. 1981),
referencing that Court’s remark that “[t]he walkaround pay provision and the
participation right are both aimed at the protection of the health and safety
of miners - the single overriding purpose of the legislation.” Id. at
698.

The Commission then continued “[a]s the
Senate Committee that by-and-large drafted the Mine Act stated, paid
participation in inspections by the miners’ representative ‘will enable miners
to understand the safety and health requirements of the Act and will enhance
mine safety and health awareness.’ Senate Committee on Labor, Committee on
Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977 at 616-17 (1978). In addition, Congress
recognized that paid participation by representatives of miners would, because
of the representatives’ particular knowledge of the conditions at the mine,
make the inspection ‘much more thorough.’ Thus, the right of paid participation
by the miners’ representative provides MSHA’s inspectors needed familiarity
with the specific working conditions in a particular mine.” Quarto Mining at
937 .

The Commission’s decision in Secretary of Labor on
behalf of Greathouse v. Monongalia Coal Co . , 40
FMSHRC 679 (June 2018), is also believed to be of value. Though it involved
bonus plans at the mine, there was testimony from miners’ representatives
describing “how the bonus plans negatively affected miners’ willingness to
exercise their protected rights (such as the right to report injuries to
management, to report safety hazards to management and MSHA, and to exercise
their walkaround rights ).” Id . at 703. (emphasis added). The point
being that actions by a mine operator, in Monongalia , a bonus plan, and
by comparison in this instance, denial of the pay that a miner would have
received on a particular day, can impact participation in protected rights,
here the walkaround right.

Consolidation Coal, 19
FMSHRC 1529, (Sept. 1997), was a discrimination
proceeding under the Mine Act, wherein the issue was whether the administrative
law judge properly found that the mine operator violated section 105(c)(1) of
the Mine Act when it transferred two mine representatives from their positions
as “scooter barn” mechanics to positions as underground mechanics. Both miners
were told that their transfer, ostensibly brought about because of inadequate
transportation and mantrip availability and the decision to have the repair
barn operating on a 24-hour basis, could be avoided if they stopped their
walkaround activities. The Commission affirmed the violation, noting that a
link had been established between the miners’ exercise of their walkaround
rights and the decision to transfer them, and rejecting the claim that their
absences from the repair barn was the motivating reason for the action. The
Commission also took note that, in another case, it had recognized a link
between walkaround rights and absenteeism, expressing that “in enacting the
walkaround right, Congress recognized ‘that an operator would be required to
make modifications in work assignments to permit miner representatives to
exercise section 103(f) rights.’” Id . at 1536, citing Secretary obo
of Labor on behalf of Truex v. Consolidation Coal ., 8 FMSHRC 1293
(September 1986).  

An earlier Consolidation Coal case,
16 FMSHRC 713 (April 1994), held that, even where an
operator has a good faith, reasonable belief that the area to be inspected is
too dangerous to permit a miner from accompanying the inspector during a
walkaround, the operator may not restrict the walkaround right. As enlightening
here, the Commission, in recounting the history of the walkaround right, noted
“that the walkaround right provided in section 103(f) existed under the Federal
Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976)
(amended 1977) (“Coal Act”). That provision stated: At the commencement of any
inspection of a coal mine by an authorized representative of the Secretary, the
authorized representative of the miners at the mine at the time of such
inspection shall be given an opportunity to accompany the authorized
representative of the Secretary on such inspection. 30 U.S.C. § 813(h) (1976) (amended 1977) Id .
at 717, (underscoring in original).

The Commission went on to
state that “[i]n enacting the Mine Act, Congress continued the Coal Act’s broad
application of the walkaround right and expanded rights incident to it. The
Conference Report on S.717, the Senate’s version of the bill, explained: The
conference substitute expands the concept of miners’ participation in
inspections by authorizing miners’ representatives to participate not only in
the actual inspection of a mine, but also in any pre- or post-inspection
conferences held at that mine. H.R. Conf. Rep.
on S. 717, 95th Cong., 1st Sess. (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977 , at 1361 (1978). In addition to adding a
right of the miners’ representative to participate in inspection conferences,
the Mine Act added a compensation provision in section 103(f). The Mine Act did
not restrict the types of inspections to which the walkaround right applies.

The only qualification to the
walkaround right in section 103(f) is that it is subject to regulations issued
by the Secretary. The Secretary’s regulations have not limited the walkaround
right in the manner urged by Consol. Moreover,
although Congress recognized that a walkaround representative could be exposed
to danger, (the inspections enumerated in section 103(a) include inspections to
determine whether an imminent danger
exists as well as inspections of especially hazardous conditions), it did not curtail
the walkaround right in dangerous situations.
Thus, upon ‘employing traditional tools of statutory construction, including
text, structure and legislative history,’ Coal
Employment Project v. Dole , 889 F.2d 1127,
1131 (D.C. Cir. 1989) ; Chevron at 842-43, we conclude that Congressional intent
is clear on this issue. Accordingly, we hold that section 103(f) precludes
denying the walkaround right on the basis of an operator’s good faith,
reasonable belief that the area to be inspected is too dangerous to be entered.

The right of a miners’
representative to accompany the inspector on all section 103 inspections has
been consistently recognized by the Commission and the courts. It has been
uniformly held that the walkaround right includes the right to accompany the
inspector during section 103(i) “spot inspections” which, significantly, occur
in mines that liberate excessive quantities of explosive gases or that present
some other especially hazardous condition. …” 16 FMSHRC 713, 717-719.

The question for the
Commission in Magma Copper Co , 1 FMSHRC 1948 (1979), was “whether
a mine operator [was] required to pay only one representative of miners for
time spent accompanying an inspector when the inspection is divided into two or
more parties to simultaneously inspect different parts of a mine,” with the
Commission reversing the administrative law judge’s determination that only one
representative could be paid, holding instead that “one miners’ representative in
each inspection party must be paid for time spent accompanying an inspector who
is engaged in an inspection of the mine “in its entirety” under 103(a) of the
Federal Mine Safety and Health Act of 1977.” Id .

Employing words that this
Court considers to be of value in this proceeding, the Commission informed
“[w]e do not think it is enough to rely, as the administrative law judge did,
only upon the literal language of section 103(f). The literal words of a
statute may not be the best guide to the legislative purpose when they appear
to conflict with the congressional purpose for creating a right or produce a
result that is illogical.” Id. at 1950.

Expounding on the
importance of this, the Commission continued, “[i]t was Congress’ judgment
that a failure to pay miners’ representatives to accompany inspectors would
discourage miners from exercising their walkaround rights, and that the
resulting lessening of participation would detract from the thoroughness of the
inspection and impair the safety and health consciousness of miners. If
only one of the inspectors would be assured of receiving the assistance of a
miners’ representative when conducting a 103(a) inspection of the mine, only a
part of the mine would be likely to receive the kind of inspection that
Congress expected the walkaround pay right to help assure.” Id. at 1952.
(emphasis added).

Utilizing those words, in
this Court’s judgment, given that the Mine Act is a remedial statute, and
taking into account the Commission’s remarks, as italicized above, it would
make sense that, as a matter of construction, the Commission’s remarks be read
as “it was Congress’ judgment that a failure to fully pay miners’
representatives to accompany inspectors would discourage miners from exercising
their walkaround rights.” The logic of this interpretation, at least to this
Court, is inescapable, as paying less than the miner would have received would
discourage miners from exercising their walkaround rights.

Perhaps the most instructive
words regarding the ‘no loss in pay’ provision appears in Monterey Coal Co. ,
743 F.2d 589 (Seventh Cir. Sept. 1984). There, the Court of Appeals for the
Seventh Circuit remarked that “[i]n describing the changes of the new
Act, the Senate and conference reports on the 1977 Act pointed out the new
walkaround pay provisions and stressed the importance of those pay provisions
in ensuring miner participation in safety matters. S. Rep. No. 181, 95th Cong.,
1st Sess. 28–29, 1977 U.S. Code Cong. & Admin. News 3401, reprinted in
Subcommittee on Labor of the Senate Committee on Human Resources, 95th Cong.,
2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977
at 616–17 (Comm. Print 1978) [hereinafter “Legislative History”]; S. Conf. Rep.
No. 461, 95th Cong., 1st Sess. 45 (1977), reprinted in Legislative
History at 1323.” Id. at 593. And “[t]he floor debate in the Senate on a
proposed floor amendment to eliminate the walkaround pay provisions also
emphasized the need for walkaround pay to provide for effective miner
participation in inspections. 123 Cong. Rec. 20019–20 (1977) (remarks of Senators
Javits and Helms), reprinted in Legislative History at 1053–56. Id. Thus,
the mine operator sought to “bifurcate the participation rights and the
walkaround pay rights granted by section 103(f).” Id. at 594.

The Seventh Circuit noted that
the conference committee expressed that “the intention of the conference
committee is to assure that a representative of the miners shall be entitled to
accompany the Federal inspector, including pre- and post-conferences, at no
loss of pay only during the four regular inspections of each underground
mine and two regular inspections of each surface mine in its entirety,
including pre- and post-inspection conferences.” Id. ( italics in
original, bold added). Id.

Of significance in the Seventh
Circuit’s analysis, it pointed to “[t]he Senate committee report [which]
stressed the importance of involving miners in the inspection process in order
both to improve the quality of inspections and to enhance miners’ safety and
health awareness. S.Rep. No. 181, 95th Cong., 1st Sess. 28–29 (1977), reprinted
in Legislative History at 616–17. The committee said the bill provided for
walkaround pay to encourage miner participation. “[t]o provide for other
than full compensation would be inconsistent with the purpose of the Act
and would unfairly penalize the miner for assisting the inspector in performing
his duties.’” Id. at 596-597 . (emphasis added).

Finally, it is noted that an
administrative law judge faced with a similar issue regarding the compensation
due during a walkaround, observed “[i]n commenting on the provisions of section
103(f), the Senate Human Resources Committee in its report on Senate Bill 717,
the bill which was the basis for the 1977 Act, stated that: “to encourage such
miner participation, [in walkaround activities] it is the committee’s intention
that the miner that participates in such inspection and conferences be fully
compensated by the operator for time thus spent. To provide for other than full
compensation would be inconsistent with the purpose of the Act and would
unfairly penalize the miner for assisting the inspector in performing his
duties.” Senate Report No. 181, 95th Congress, 1st Session reprinted in U.S.
Code Congressional and Administrative News 3428-3429 (1977). Within this
framework it is clear that if [the Complainant] suffered a loss of pay as a
result of his statutorily protected walkaround activities then he suffered
discrimination under section 105(c)(1).”   Sec. obo Scott v. Consolidation
Coal, 2 FMSHRC 1056, 1057 (May 5, 1980).

There, as in this case, the
mine operator was contending that, per a wage agreement, the walkaround
representative was due less than the pay grade one would receive for performing
overburden removal work.

The judge held that “[i]n
order to assure that [the miners’ representative] is not unfairly penalized for
having performed his duties as a representative of miners, I find that he must
be compensated in an amount equivalent to the grade 5 rate for the maximum time
worked in that mine by any other single employee in the capacity of a grade 5
scraper operator during the time [the Complainant] was engaged in his
walkaround activities. To provide him anything less would discourage his
participation in these important functions, contrary to law and the clear
intent of Congress. Since the evidence indicates that at least one other
scraper operator employed at this mine performed the grade 5 work during the
entire 21-1/4-hour period at issue, [the miners’ representative] is entitled to
the grade 5 pay differential for the entire period.” Id. at 1058.

Thus, at least to this Court,
given the many broad interpretations by the Commission and the federal courts
of the 103(f) walkaround provision, it would be inconsistent to find that a
miners’ representative could be, literally, shortchanged by being paid less
than the representative would have received but for being engaged in the
walkaround.

Must a 103(f) walkaround, ‘no loss of pay,’ violation only be
established through application of the Pasula-Robinette framework ?

The Court believes that while a 103(f) walkaround, no
loss of pay, violation may often be established through application of the Pasula-Robinette framework, it is
not the only avenue for such relief, especially where a slavish application of
that framework would work an illogical result, at odds with the statute. Thus,
because Pasula-Robinette is not a one-size-fits-all formula, it should
not be viewed as the sole means for achieving relief from discrimination. In
this instance, the Court applies an alternative analysis approach to this
discrimination action, with the view that both are appropriate to employ.

It is true that the
argument section of the Secretary’s Post-hearing brief, after first noting the
text of Section 105(c), begins with a discussion of the Pasula-Robinette
framework, wherein it is noted that the Secretary establishes a prima facie
case of discrimination when he proves by a preponderance of the evidence that
the miner (1) engaged in protected activity, (2) suffered an adverse action,
and (3) the adverse action was motivated in any part by that protected
activity.

Insisting on this 3 rd
element in all discrimination claims would ignore the broader statutory
language of Section 105(c) addressing discrimination, which language permits an
action upon showing the first two elements.

Nevertheless, if the
analysis of an alleged section 103(f) no loss of pay violation must be wedded
to Pasula-Robinette , the Court still finds that the Secretary
established such a case. And this remains true upon application of both the
rebuttal and affirmative defense features of Pasula-Robinette .

An alternative avenue to provide relief
from discrimination where a statutory right is involved

However, the Court
believes that making Pasula-Robinette the
only avenue for redress against discrimination results in a cramped reading of
discrimination claims, insisting as it were that a square peg must be inserted
into a round hole, and ignores a significant and distinct part of Section
105(c) of the Mine Act. Read, without distorting the words in that section, but
focusing on a separate feature within that provision, the Court believes such a
reading demonstrates that Pasula-Robinette
need
not be the exclusive analysis for discrimination claims.

The following, bold
text added , text of Section 105(c) shows this to
be true.

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 …
in any coal or other mine subject to this chapter … because of the exercise
by such miner , representative of miners … on behalf of himself or others of
any statutory right afforded by this chapter .

30 U.S.C. §815 (c)

Another,
perhaps clearer, way to express this, as particularly apt to the discrimination
claim here would thus be expressed as:

No person shall in
any manner discriminate against or otherwise interfere with the exercise
of the statutory rights of any miner because of the exercise by such
miner of any statutory right afforded by this chapter .

This
focus on particular words within the provision does not work any distortion of
it. And, so read, the Court finds that the Respondent violated Ms. Otten’s statutory
right to accompany the MSHA inspector as the miners’ representative by interfering
with the exercise of that right by imposing a loss of pay upon her.

And while it is true that
the Commission has applied the Pasula-Robinette framework in Section
103(f) walkaround cases, it has not invoked it each time. For example, in Quarto
Mining , 12 FMSHRC 932 (May 1990), referred to above, the judge, in finding
that the operator denied the miners’ rep the opportunity to participate in an
inspection of the mine without a loss of pay, made no reference to Pasula
in his decision, 11 FMSHRC 523 (April 6, 1989), nor did the Commission’s in
affirming it.

When
this focus on language within Section 105(c) is applied to the walkaround
right, per Section 103(f), the applicable language within that provision,
establishing the statutory right, plainly provides that the right is to be
exercised so that the walkaround representative does not suffer any loss of
pay . Undeniably, Ms. Otten suffered a loss of pay per the dates identified
in her Complaint.

Thus,
the Court finds as fact, that “Otten was entitled to the mobile equipment
hourly wage upgrade while she performed walkaround duties on March 24-26 and
March 31, 2020, because she would have operated mobile equipment if not for the
MSHA inspection.” Sec. Brief at 26. Accordingly, the Court also finds that “to
be fully compensated on March 24, 25, 26 and 31, Otten needed to receive the
mobile equipment hourly rate of $28.21, not the laborer hourly rate of $25.05.”
Id at 27. Further, as set forth below, Ms. Otten is also entitled to reimbursement
for the other dates, as established by the Secretary and through the joint
stipulations, when she incurred additional losses of pay. Equally important,
and speaking to Congress’ clearly expressed intention in establishing the Section
103(f) right, the Court finds that “Continental discouraged [Ms. Otten’s]
participation in MSHA inspections and unfairly penalized her for protected
activity, contrary to Congressional intent.” Id.

The
Court also finds that “[b]y refusing to pay Otten the mobile equipment
upgrades, Continental took an action that could dissuade a reasonable employee
from participating in an MSHA inspection [and that] [w]hen faced with the
choice of accompanying MSHA on an inspection of unpredictable duration or
receiving $3.16 more per hour (the difference between the laborer and mobile
equipment rates), a reasonable miners’ representative could be dissuaded from
exercising the[] statutory walk-around rights. The Act does not require a
miners’ representative to have to make this choice.” Id . at 28.

Given
the above analysis, the Court does not believe that the Secretary must
show, per the Pasula-Robinette framework,
that Continental’s refusal to pay Otten the wage upgrades was motivated by
Otten’s walkaround activities. That is to say, Pasula-Robinette
is not the exclusive means to establish discrimination because Section
105(c) is not so restricted. Simply stated, showing an unjustified loss of pay,
and thereby violating the statutory command of Section 103(f) is sufficient
under the plain language of Section 105(c) to establish discrimination.

Application of the
Pasula-Robinette framework

Under
the Pasula-Robinette framework the Court has
found direct evidence, through the testimony of Respondent’s witnesses, Ames,
and Powell, that the adverse action, loss of pay, was motivated by Ms. Otten’s
protected activity as miners’ representative, to the end of having her forego
her salutary participation, providing keen eyes when accompanying MSHA
inspectors, and making her choose between such participation or suffer a loss
of pay. Clearly, the record establishes that the adverse action was motivated
by safety-advocate Otten’s protected activity.

In
terms of any claimed affirmative defense, the Respondent presented no
unprotected activity to justify that the loss of pay was motivated by
unprotected activity. This is because the Court has determined that the CBA
does not override Congress’ walkaround no loss of pay provision. [29]
Relying upon the CBA could conceivably amount to unprotected activity, but not
when paired with a deprivation of the walkaround no loss of pay provision, as
happened here. Since there was no cognizable unprotected activity, one does not
proceed to the second step of the affirmative defense – that the operator would
have taken the adverse action against the miner based on the unprotected
activity alone. [30]

Comments Regarding the
Parties’ Post-Hearing Briefs [31]

The Respondent contends
that no adverse action was established. This argument lacks merit. If this were
merely a pay dispute involving only the CBA, then arguably the Respondent could
be correct. However it is not such a matter; Ms. Otten’s pay was inextricably
tied to the exercise of the walkaround provision. As the designated walkaround
representative, the Court has determined that, as a matter of law, she was
entitled to perform that valuable safety related function with no loss of
pay. This is what the statutory provision expressly provides. Such a
deprivation of pay constitutes an adverse action. Whether the Respondent was
motivated to take the adverse action because Ms. Otten was acting as the
miners’ representative, does not matter in a case such as this because she was
exercising the statutory right to perform such assistance and she suffered a
loss of pay by the Respondent’s actions.

To be clear, in
addition to and separate from the previous remark, the Court also finds
that in fact the Respondent was motivated in part by Ms. Otten’s exercise of
that right, because she was a safety nuisance in the eyes of the Respondent. Because
the walkaround right is in a class by itself, the claim that the CBA negates
that clear right and with it the provision that the right applies with no loss
of pay attendant to it, the idea that the CBA can, Zombie fashion, be
resurrected as an affirmative defense is likewise a non-starter. [32]

The Secretary’s Reply
Brief

The
Court takes note of and agrees with the Secretary’s remark that “Continental
concedes, in its Proposed Findings of Fact 1, that Otten would have been
presented the opportunity to operate mobile equipment for 8 hours on the[ ]
days [in issue]” and that “[i]t was established at trial [that] Otten would
have performed mobile equipment operator work if she had not spent time on
walkaround activities.” [33]
Sec. Reply at 2.

As expressed by the Court in this decision,
the Pasula-Robinette framework [34] need
not be applied slavishly in every discrimination case. The walkaround provision
of Section 103(f) is such an instance because demanding its use could lead to
irrational results. [35]
Thus, the Court agrees with the Secretary’s observation that “direct evidence
of discrimination [was established] by Continental’s failure to pay Otten the
wage she would have received on the days of the walkaround because she
participated in the walkaround.” Sec. Reply at 5. As the Secretary concisely
expressed it, “[w]hat this boils down to is, the only reason Continental deemed
Otten ineligible was because she accompanied MSHA instead of operating mobile
equipment; this was a plainly impermissible and discriminatory reason to deny
wage upgrades.” [36]
Id.  

The Court agrees that concepts like “mixed
motives” are also inapt in this instance. [37]
Thus, the Court subscribes to the view that Continental violated section 103(f)
because it allowed its interpretation of the CBA to govern whether Otten should
be paid the upgraded wage. When the CBA contradicts the Mine Act’s statutory
walkaround provision, the Mine Act must prevail.

The Respondent’s Reply Brief

As
discussed above, the Court does not buy into the Respondent’s argument that,
beyond the Pasula-Robinette test applied in many discrimination claims,
the Ninth Circuit’s “but-for” test should be used. Respondent’s Reply at 1-2. The
jurisdiction of the Ninth Circuit does not apply to actions arising in
Missouri, the location of the Respondent’s mine. End of argument. Full stop. That
said, the Court finds that the loss of pay to Ms. Otten would not have occurred
but for her engaging as a miners’ representative during a walkaround
inspection.

The Respondent’s contention that Ms. Ames
acted neutrally, free of any discriminatory animus, and that Ames' statements
reflect “only that performing walkaround duties did not independently qualify
Otten for a mobile equipment operator upgrade under the terms of the CBA,” is
rejected for several reasons. Id. at 4. First,
it reaffirms the Respondent’s core challenge that the CBA takes precedence over
the statutory walkaround “no loss of pay” provision. Second, such
discriminatory animus need not be shown to establish a violation of that
provision – it is sufficient to show that the miner suffered a loss of pay. Third,
assuming for the sake of argument that such animus must be shown, Ames, through
her actions and testimony, clearly showed such animus, as demonstrated supra.

As to the Respondent’s contention that it
rebutted the Secretary’s prima facie case by “establish[ing] [that] it
relied on the terms of the CBA in making its decision to retract [Ms. Otten’s]
pay,” that only reinforces the Court’s point – the terms of the CBA do not
control the determination of whether Ms. Otten incurred a loss of pay. Id. at

5. And, as to the idea that the Secretary must establish that the Respondent’s
   pay determination was pretextual, if one assumes for the moment that there was
   no pretext whatsoever, the outcome would be the same. Under the facts of this
   case, Ms. Otten suffered a loss of pay within the meaning of section 103(f). And
   this is not simply a matter of math. Congress made it clear that the purpose
   served by the walkaround provision is to aid the inspection. Miners’
   representatives who incur a loss of pay would have the effect of
   “discourag[ing] miners from exercising their walkaround rights, and that the
   resulting lessening of participation would detract from the thoroughness of the
   inspection and impair the safety and health consciousness of miners.” Magma
   Copper, 1 FMSHRC 1948, 152 (Dec. 1979), supra . Accordingly, pretext
   is not an essential element in 103(f) matters. Imposing a loss of pay, for
   whatever reason, is essential and has been established.

Similarly, the Respondent’s contention
that it proved its affirmative defense by showing that Heather Ames relied upon
the terms of the CBA has no merit, as it is founded upon the premise that the
CBA may override Congress’s expressed intent of the no loss of pay provision.

Further Discussion: Relief due Ms. Otten and the Appropriate Civil Penalty

Relief due Ms. Otten

As
forewarned at the start of this decision, the Court determined during the
course of the hearing that this dispute could have been submitted via
cross-motions for summary judgment. This is because it has concluded that there
are no genuine issues of material fact to be resolved. That being the case, the
matter strictly involves a legal determination. The Court, recognizing that
there were no genuine factual disputes, directed by email to Counsels that they:

confer with one
another and advise me, either through a joint email or in a statement in the
post-hearing briefs, or both, regarding the pay dates in issue. Per Exhibit P
11, there does not seem to be a genuine dispute about the figures
identified in that exhibit. This includes the 401 K contributions, and a pay
raise affecting all miners, all as identified in that exhibit and through
testimony from Ms. Otten about these issues, including Ms. Otten’s remark that
she was mistaken about a date when she believed she was underpaid, but then
realized she had not been short-changed. See Tr. pages 270-283.

Rather, the
dispute is over the pay rate due to miners’ representatives under the
circumstances identified in Otten’s Complaint – pay at the laborers’ rate or
the mobile equipment operator rate.  Therefore, absent a genuine
dispute , I am directing that the parties stipulate as to the amounts Ms.
Otten would have received on each of the days identified in her
complaint. These figures are obviously apart from and distinct from the
controlling issue I must decide – whether Ms. Otten was entitled to the mobile
equipment operator rate or the laborer rate.

E-mail
from the Court, December 27, 2021. (emphasis in original)

Shortly
thereafter the parties responded, providing the following:

Counsel for Respondent and Counsel for the Secretary
met and conferred regarding your emails, particularly your email concerning
Exhibit P-11 and the figures identified in that exhibit. You asked for the
parties to stipulate to the amounts Ms. Otten would have received on the days
identified in her complaint. As Ms. Otten is not contesting her pay on April 1 st
and April 2 nd , the only days identified in the complaint are March
24-26, and 31 st .

Without admitting Ms. Otten was entitled to such
amounts, the parties can stipulate that Ms. Otten would have received a total
of $116.67 for the days identified in her complaint.

For a more specific breakdown, the parties stipulate
to the following figures by day:

·        March 24, 2020 – the parties
stipulate that Ms. Otten would have received $44.24 more if she had operated
mobile equipment for the entire 8 hour shift;

·        March 25, 2020 – the parties
stipulate that Ms. Otten would have received $25.28 more if she had operated
mobile equipment for the entire 8 hour shift

·        March 26, 2020 - the parties
stipulate that Ms. Otten would have received $27.65 more if she had operated
mobile equipment for the entire 8 hour shift

·        March 31, 2020 - the parties
stipulate that Ms. Otten would have received $15.01 more if she had operated
mobile equipment for the entire 8 hour shift

·        Wage Total = $112.18

·        401K contribution (4%) = $4.49

·        Combined Total = $116.67

Email from Counsels to
the Court, December 29, 2021.

The stipulation
does not encompass all the compensation due Ms. Otten because the Court notes
that the Secretary also asserts that:

[a]dditionally, in the interests of
justice, Otten should receive the full compensation she would have earned but
for continuing discriminatory action on eight more days: June 9, 2020; July 8,
2020; July 14, 2020; July 15, 2020; July 21, 2020; July 22, 2020; January 28,
2021; and January 29, 2021. … Continental had notice of the continuing
violations. Potential future losses of pay were alleged in Otten’s
discrimination complaint filed with MSHA in April 2020. See, for example,
Otten’s discrimination complaint asserting, “many hours, by me, will be spent
acting as a miner’s rep and this action by my Company has the potential to cost
me a lot of money through the years.” Ex. J-1 at 2. Otten also requested in her
complaint that she continue to receive the upgrade. Joint Stip. ¶ 72; 11/10/21
Tr. 255; Ex. J-1 at 2. Similarly, in the complaint filed with the Commission,
the Secretary alleged Continental was continuing to refuse to pay Otten the
wage rate she was entitled to and would have received if she had not been
performing duties as a miners’ representative. Compl. at 2 ¶ 8. Finally, there
is a clear basis for awarding further relief because of the continuing
violations. Evidence shows that on these eight additional days, Otten engaged
in walkaround activities with MSHA and received the laborer wage rate, there
was a need to operate mobile equipment and junior laborers operated mobile
equipment for wage upgrades, and when Otten would have operated mobile
equipment had it not been for her walkaround duties. Joint Stip. ¶¶ 30, 59, 60,
66; 11/10/21 Tr. 276-77; Ex. J-13 at 24-25, 31-32; Ex. J-14 at 5; Ex. J-15 at
19, 25; Ex. J-19 at 3-4; Ex. J-20 at 78, 83-84, 110; Ex. J-27. Therefore, the Court should also award Otten $261.27 in lost wages and
$10.45 in lost employer contributions for the period from June 9, 2020, to
January 29, 2021; for a total monetary award of $388.39. Ex. P-11.
Continental should pay pre-judgment interest on this amount.

Sec.Br. at 41-42 ( bold
text added).

The
Court, examining Ms. Otten’s complaint again, notes that the dates identified
in it are “4/9/2020 and 4/16/2020” and in the accompanying “Discrimination
Report,” the dates are identified as “3/21/- 3/28/20 and 3/29/20 – 4/4/20.” Joint
Ex. 1. The Secretary’s Complaint does not identify additional specific dates
for the alleged discrimination involving loss of pay, nor was the Complaint
amended. Joint Stipulation 30, while mentioning dates in June and July in 2020
and in January 2021, does not tie those dates with loss of pay. However, Joint
Stipulations 59 and 60 do mention those dates and that, per those stipulations,
she “performed her role as the designated miner’s [sic] representative by
accompanying MSHA on an inspection for the entirety of her shift and did not
operate mobile equipment. Further, for those same dates, June 9, July 8, July
14,   July 15, July 21, and January 28 and 29, 2021, “Otten received her
regular rate of pay as a laborer .” Joint Stipulations 59 and 60, italics
added. The other documents cited by the Secretary, as listed above, confirm
that, by virtue of those Joint Exhibits, that the Secretary is correct and that
the Court should also award Ms. Otten $261.27 in lost wages and $10.45 in lost
employer contributions for the period from June 9, 2020, to January 29, 2021;
for a total monetary award of $388.39, plus pre-judgment
interest on this amount .

Appropriate Civil Penalty

Under section 110(i) of
the Act, the Commission has independent authority to assess civil penalties for
violations. 30 U.S.C. § 820(i); Sec’y v. Lehigh Anthracite Coal , 40
FMSHRC 273, 278 (Apr. 2018). Per that provision, the Commission is to consider
six statutory factors in its penalty assessment: (1) the operator’s history of
previous violations; (2) the appropriateness of such penalty to the size of the
business of the operator charged; (3) whether the operator was negligent; (4)
the effect on the operator’s ability to continue in business; (5) the gravity
of the violation; and (6) the demonstrated good faith of the operator charged
in attempting to achieve rapid compliance after notification of a violation. 30
U.S.C. § 820(i).

The Parties’ views on the appropriate
civil penalty

Secretary of Labor’s position

The
Secretary states that “[b]ased on the six statutory factors and the evidence
presented in this case, a penalty of $17,500 is appropriate. First, the
violation was serious considering Otten played a critical role in ensuring
miner participation safety and health inspections and Continental’s actions
unfairly penalized her for serving in that role. See
Highland Mining Co ., 37 FMSHRC 2436, 2438 (Oct. 2015) (ALJ)
(finding mine operator’s interference with a miners’ representative’s rights
was serious considering the important function that miners’ reps serve in
ensuring a safe and healthy environment for miners). Second, Continental
exhibited negligence in violating Otten’s rights. When considering the
negligence factor, the proper inquiry is whether the operator engaged in
intentional conduct in committing the violation, rather than whether it
intended to discriminate. See Sec’y obo Poddey v. Tanglewood
Energy, Inc ., 18 FMSHRC 1315, 1319 (Aug. 1996)
(Commissioners Marks and Riley). On April 2, 2020, when Ames directed the
payroll specialist Fujarski to remove the wage upgrades and let the miners
“fight it later,” she clearly intended to not pay Otten at the mobile equipment
rate for time spent with MSHA on the April 9, and subsequently the April 16,
paycheck. 11/10/21 Tr. 75; Ex. J-7f at 1.

Third, Continental did
not demonstrate any good faith attempt to achieve compliance. In April 2020,
Temporary Supervisor Mundell warned Continental’s actions would unfairly
penalize Otten for traveling with MSHA, but Ames remained obstinate in her
decision to retract Otten’s wage upgrades and, consequently, Otten suffered a
loss in pay. 11/09/21 Tr. 205; 11/10/21 Tr. 269-70; Ex. J-7k at 1; Ex. P-11.
Between April 2020 and January 2021, Continental continued to take the position
that Otten was ineligible for an upgrade when she exercised her statutory
walkaround rights, resulting in more lost pay for Otten. 11/10/21 Tr. 95,
276-77; Ex. P-11. The violations would have continued if Otten had not bid for
and received a job as a mobile equipment operator in February 2021, considering
Ames testified that she would make the same decision if another laborer were to
fill the miners’ representative role today. Joint Stip. ¶¶ 8-9; 11/10/21 Tr.
206-07, 277-78.

Fourth, although
Continental has no previous discrimination violations, it does have a history
of safety and health violations and these past violations must be considered as
part of the penalty assessment. Ex. P-5, P-6. As to the final two statutory
factors, the record establishes Continental is a medium-sized operator that
could remain in business if a civil penalty of $17,500 were imposed. Ex. P-6
(Continental had 255,694 hours worked in 2019); Joint Stip. ¶ 82. Therefore,
the Court should assess a civil penalty of $17,500 against Continental. A
penalty of this amount would encourage future compliance with section 103(f)
and section 105(c).” Sec. Br. at 42-44.

Respondent’s view of the
appropriate civil penalty

Regarding
any civil penalty, in its post-hearing brief, the Respondent asserts that no
civil penalty should be imposed, expressing the following:

“Without conceding that a
civil penalty is warranted or justified, assuming arguendo
that a penalty should be assessed, the Secretary has failed to establish the
six statutorily-required penalty criteria to establish the proposed civil
monetary penalty amount …[reciting the criteria] Sherwin
Aluminum Company, LLC v. MSHA , 37 FMSHRC 2153, 2186
(Sept. 25, 2015) (citing Douglas R. Rushford Trucking ,
22 FMSHRC 598, 600 (May 2000)). “The Commission is not required to give equal
weight to each of the criteria …” Id .
(citing Spartan Mining Co ., 30 FMSHRC 699,
723 (Aug. 2008)).

Respondent has no history
of any discrimination findings or 105(c) violations. (Exhibit P-5; Exhibit
P-6). Respondent’s proposed negligence in this case is non-existent, as its
actions show it was not negligent in any way as it thoroughly and painstakingly
evaluated and vetted its reasons for retracting improper mobile equipment
operator upgrades not just from Otten, but also from two laborers who did not
engage in any protected activity. The gravity of the alleged violation is low,
as evidenced by the uniqueness of this situation and the fact that it is not
capable of occurring again as there are no designated miners’ representatives
who would be eligible for upgraded work. Lastly, all actions taken by
Respondent in this matter were done with the sole intention and purpose of
complying with the terms of the CBA, to which Respondent is contractually
bound.” Respondent’s Brief at 25-26.

The Court’s Penalty
Determination

Having
considered both arguments on the civil penalty issue, the Court cannot abide by
the Respondent’s assertions. From the Court’s perspective the gravity of the
violation and the Respondent’s negligence associated with it were significant. The
negligence and gravity evaluations, while distinct evaluations, go hand in
hand.

In
the face of the explicit language in Section 103(f) directing that the miners’
representative suffer no loss of pay, it was not reasonable for the Respondent
to conclude otherwise. No fair reading of the statute supports the Respondent’s
view and the Respondent was seriously in error by concluding that the CBA would
trump Congress’ express command to the contrary that there be no loss of pay.

And
this conclusion makes sense when considering gravity as well, because Congress
wanted miner participation in the inspection process, bringing their personal
knowledge of the mine to bear in that process. This determination was coupled
with the Court’s finding that in fact Continental wanted to discourage Ms.
Otten, who was very proactive in safety matters at the mine. Miss Ames’
testimony made the Respondent’s intent clear. As the Respondent put it, Ms.
Otten didn’t have to participate in
the inspections; she could’ve opted to run the mobile equipment instead on
those days.

When
considering the history of violations, that term is not limited to violations
of section 103(f). As noted in Jim Walters ,
18 FMSHRC 552, (April 1996), “Section 110(i) provides in part that, in
assessing civil penalties, “the Commission shall consider the operator’s
history of previous violations ....” 30 U.S.C. § 820(i). Thus, the language of
section 110(i) does not limit the scope of history of previous violations to
similar cases. The Commission has explained that “section 110(i) requires the
judge to consider the operator’s general history of previous violations as a
separate component when assessing a civil penalty. Past violations of all
safety and health standards are considered for his component.” Peabody
Coal Co ., 14 FMSHRC 1258, 1264 (August 1992) (emphasis
added). The appropriate weight, if any, to be attached by the judge to older
violations should be based on relevancy.” Id. at

557. See
     also, Cantera Green , 22 FMSHRC 616, 623, (May 2000).

Accordingly,
the Court considered the Respondent’s violation history, per Ex. P-5, P-6. With
115 violations over a 15-month period, and the violations per inspection at
0.97, the mine falls within the mid-range for that category. Similarly, the
size of the mine falls within the mid-range, and the controlling entity is
likewise in the moderate range. Taking the penalty criteria into consideration
as applied to this matter, the Court concludes that the appropriate civil
penalty is $17,500.00.

ORDER

WHEREFORE ,
Respondent is ORDERED to pay Ms. Tara Otten the amounts, as identified
above, constituting the loss of pay she incurred, in the total amount of $388.39,
plus pre-judgment interest on this amount. The loss of pay amounts are to
be calculated to include the interest accrued on those amounts for each date,
per Sec'y of Labor on behalf of Bailey v. Ark-Carbona Co ., 5 FMSHRC
2042, (Dec. 1983). Such payment shall be made within 30 days of the date of
this decision.

Upon consideration of the
six statutory criteria, as discussed above, Respondent is ORDERED to pay
the Secretary a civil penalty of $17,500.00, (seventeen thousand five
hundred dollars) . All payments shall be made within 30 days of the date of
this decision, following the exhaustion of its appeal rights in this case.

FURTHER ,
the mine is ORDERED to remove from Tara Otten’s personnel file any mention of
this incident unless the Respondent wishes to admit in that file that it
improperly denied Ms. Otten the pay she was entitled to receive during the
walkaround events identified in the Complaint. Further, for a period of 30
(thirty) days, Continental Cement Company, LLC shall post a notice at the
office of the Hannibal Underground Mine and, if different, also post the notice
in a conspicuous location where employees of the mine can readily see it, with
both notices on hard stock paper of at least 8 x 14 size, in at least 14 point
font, setting forth the rights of miners protected by 105(c) of the Mine Act.

SO
ORDERED.

/s/
William B. Moran

William B. Moran

Administrative
Law Judge

Distribution:

Megan
J. McGinnis, Esq. Trial Attorney, U.S. Department of Labor,
2300 Main St., Suite 1020, Kansas City, MO 64108 [email protected]

R.
Lance Witcher, Esq. and Thomas R. Chibnall, Esq., OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C., 7700 Bonhomme Ave., Suite 650, St. Louis, MO 63105

[email protected] ,
[email protected]

Ms.
Tara Otten, 813 Country Club Dr., Hannibal, Missouri 63401, [email protected]

[1] This approach
also spares the Commission from scouring the transcript record to locate
testimony.

[2] Per the parties’
agreement, all the Joint Exhibits were admitted. Tr. 59.

[3] Due to the COVID
19 pandemic, Jones did not do in person interviews. Tr.62.

[4] Jones learned
during his investigation that LaRay Mundell was Ms. Otten’s supervisor at the
time of her complaint. Tr. 69. Though unimportant to the outcome of this case,
it is noted as an aside, that Mr. Mundelll also happens to be Ms. Otten’s
father. Tr. 95. Similarly, Jones learned that Ms. Fujarksi was the payroll
specialist and Ms. Ames was the HR person. Tr. 69-70.

[5] The Court
commented with regard to these other matters raised by Ms. Otten, that such
other matters are not essential to her establishing her 105(c) complaint. Tr.
76-77. The Court stands by that observation. While those other issues may
provide background to this case, they are not essential at all to this matter’s
determination.

[6] Jones added a
comment to his remark, to which the Court sustained an objection, and the
comment was stricken.

[7] The Court
considers the following to be inconsequential but again for the sake of
completeness it is included here. It is noted that were it not for COVID, Jones
would have done in-person interviews with Respondent’s personnel. Tr. 83. Jones
admitted that though Otten listed three individuals as responsible for the discrimination,
he did not interview any of them. Tr. 85. Even though Ms. Ames submitted the
company’s position statement, Jones did not follow-up with her about that
statement. Tr. 86-87.

[8] It is also worth
noting that had the other, preceding, events, that Ms. Otten alluded to, been
part of the core allegations, the 60 day time limitation for filing a complaint
is not jurisdictional in any event. As noted in Hollis v. Consolidation
Coal, 6 FMSHRC 21, 24 (Jan. 1984), “ the purpose
of the 60 day time limit is to avoid stale claims, but that a miner’s late
filing may be excused on the basis of “justifiable circumstances.” Joseph W.
Herman v. IMCO Services , 4 FMSHRC 2135 (December 1982). The Mine Act’s
legislative history relevant to the 60-day time limit states:

While
this time-limit is necessary to avoid stale claims being brought, it should not
be construed strictly where the filing of a complaint is delayed under
justifiable circumstances. Circumstances which could warrant the extension of
the time-limit would include a case where the miner within the 60–day period
brings the complaint to the attention of another agency or to his employer, or
the miner fails to meet the time limit because he is misled as to or
misunderstands his rights under the Act. S.Rep. No. 181, 95th Cong., 1st Sess.
36 (1977), reprinted in Senate Sub-committee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 624 (1978) (emphasis added). Timeliness questions
must be resolved on a case-by-case basis, taking into account the unique
circumstances of each situation.

[9] As mentioned
earlier, a quirk in this case is that before the upgraded pay was retracted,
originally it was paid by her supervisor, Mr. Mundell, who is her father. Tr.

95. This quirk, while interesting, has no bearing on this case.

[10] In a record
replete with information that is immaterial to the core issue, another example
from the Respondent involved, Investigator Jones, who upon being referred to Ex
J 2 at pages 5 and 6, agreed that he received some emails from Ms. Otten in
connection with his investigation and that her name was not on those emails as
a sender or recipient. Tr. 102. Jones did not know how Otten acquired those
emails. Id . Apart from suggesting that Otten inappropriately acquired
the emails, the point attempted to be made by Respondent’s counsel was that
Miss Ames was responding to Mr. Mundell regarding employees Otten, Matson and
Lucas and that they were ineligible for pay upgrades. However, it should not be
lost that the latter two were not miners’ representatives. Counsel’s is
pointing out that Ames was responding that, per the CBA , none of them
were entitled to pay upgrades and that her response was consistent with the
company’s position regarding pay upgrades. Jones agreed that, to his
recollection, the mobile equipment upgrade is defined in the contract as is the
zipper clause. Tr. 103-104. Jones also agreed that the zipper clause eliminates
all past practices. Tr. 104. This information does nothing to resolve the core
issue. It is only part of the repeated assertions that Respondent’s witnesses
believed the CBA answers the issue as to the pay Ms. Otten was entitled to
receive.

[11] Another example
of matters that are distractions, as they do not help resolve the issue in this
case, the Respondent tried to wrap into the discussion that the CBA has no rate
schedule for carpenters. Raising this is an attempt to bootstrap the dispute by
pointing to wage rates for carpenters. Carpenters’ pay is not a relevant
part of this case. Tr. 108-109.

[12] Though
unnecessary to recount these details, because there is no dispute about them,
for the sake of completeness regarding the days in issue, Mundell stated,
without contradiction, that laborer William “Enoch,” Matson was operating a
Bobcat on March 2020. Tr.172-173. Charles, “Bub,” Lucas, another laborer also
ran a different Bobcat, also referred to as the ‘baby’ Bobcat and a skid steer,
on that day. Reid Pullman, another laborer, also ran the ‘baby’ Bobcat on that
day, after Lucas moved to another task. Tr. 173-174. Jason Stewart’s name is
also listed for that date. He too operated a Bobcat on part of that day. Tr.175.
Mundell confirmed that for March 24th, when considering employees Matson,
Lucas, Pulliam and Stewart, Ms. Otten had seniority over all of them. Id.

In response to an
inquiry from the Court to Mundell, and referring to Ex. J 7, he confirmed that
“on these days, there were insufficient numbers of mobile equipment operators
and that's why th[o]se individuals[,] Otten, Matson, Lucas, Pulliam, Stewart,
were called in to operate mobile equipment because the number of people you
have to operate the mobile equipment were insufficient on those days, and
therefore, these people had to take over these mobile equipment tasks.” Id.
All four of them operated mobile equipment on that day. Tr. 176.

Turning
to March 25, 2020, Mundell confirmed his email notes “MSHA all day” meaning
that Ms. Otten was called to walk around with the MSHA inspector all that day.
Tr. 176. He believed that each of the other four laborers operated mobile
equipment on that day, March 25th. Id. Mundell’s notes for March 26 reflect
that Ms. Otten was with MSHA all that day too and that Matson was assigned to
operate mobile equipment that day. Tr. 177. Lucas too on that date operated
mobile equipment and Pulliam as well as Stewart did also. Tr. 178. So too, in
his recounting of Ms. Otten’s work during the week of March 23 – March 27,
Mundell informed that Otten was operating a skid steer all day on March 23 and
March 27th. For the remaining days of that week, she was acting as the miners’
rep with MSHA. Tr. 183. Turning to the following week, March 30th, that email
reflects the work the laborers performed that week. Tr. 184. Ex. J 7, M.

Speaking
to the work performed by the yard laborers during the week of March 30, 2020. Mundell
stated that Ms. Otten was with MSHA during a walkaround on March 31st, April
1st and 2nd. Referring to the other laborers, Mr. Matson, Mr. Lucas, Mr.
Pulliam, and Mr. Stewart, he reaffirmed that each of those men were junior
laborers to Ms. Otten, and that Enoch, Lucas and Reid were on mobile equipment
all that day. None of this is in dispute . For April 2nd, Lucas and
Matson were on mobile equipment. Tr. 198. Ms. Otten operated mobile equipment
on March 30th and on March 31 she spent 2 ½ hours on a skid steer. On April 1st
she was on a forklift after 10:00 in the morning and on the next day, the 2nd,
she was on a loader after 9:00 a.m. On the 3rd Ms. Otten was on vacation. Tr.199.
Though unsure if he marked upgraded pay for Ms. Otten on the 3rd, he stated
that, if he had done that, it was in error, as she would not be entitled to a
pay upgrade on a vacation day. Tr. 199-200. Mundell affirmed that Ms. Otten
would’ve been entitled to operate the Bobcat on March 24th, but for the fact
she was accompanying an MSHA inspector as a walkaround rep on that day. Tr.

201. The same applied to March 25 th ; Ms. Otten would’ve been offered
     the mobile equipment job that day too. Tr. 201. In fact, she would have been
     the first one offered that job. Id.  

Addressing
March 26 th , the same applied, with several other laborers operating
mobile equipment that day, but for her walkaround duty, Ms. Otten would’ve been
offered the mobile equipment operator job, as Matson, Lucas, Pulliam and
Stewart all operated such equipment on that day. Id. Mundell confirmed
that, other than Ms. Otten being with MSHA on that day, she would’ve been
operating a Bobcat. He also confirmed that she is well qualified to operate a
Bobcat and had done so on many prior occasions. Tr. 202. Last, referring to Ex.
J-7 (n), at page 2, Mundell agreed that he spoke to personnel upon learning
that Ms. Otten’s pay upgrade had been retracted. Tr. 204.

[13] In an attempt to
support the Respondent’s position, Counsel for the Respondent asked, and
Mundell agreed, that per a gentleman’s agreement it had been the case that when
a laborer performed carpentry work, the individual would be upgraded to
mobile equipment operator pay. Tr. 207. Mundell agreed that for March 24th, one
of the days in issue in Ms. Otten’s Complaint, Enoch Matson received such an
upgrade on that day and on that day he operated a skid steer loader for a time
and then in the afternoon, Matson did office remodeling work. Tr. 207-208. Ex.
J 7, tab p. The Court would comment that the obvious point by Respondent’s
Counsel is that if Ms. Otten were given carpentry work on a day when she was
accompanying an MSHA inspector, she would not be given a pay upgrade to mobile
equipment pay. But this is a classic straw man argument because the CBA
impacted the pay rate for carpentry work. Whereas before that agreement, per a
longstanding gentleman’s agreement, carpentry work was considered upgrade pay
work, the CBA changed that so that the pay increase no longer applied. What the
hypothetical, and the question behind it, miss is that carpentry work was no
longer eligible for a pay upgrade. As a consequence, after the CBA, no employee
performing carpentry work was thereafter ever eligible for a pay upgrade. Accordingly,
if the only work beyond laborer, on a given day, was carpentry work, that pay
would be at the same rate as the laborer position. Thus, the question misses
the mark because on the days in issue in Ms. Otten’s complaint, she was
eligible to perform mobile equipment operator work, which work does
provide for a pay upgrade under the CBA .

[14] Other tangential
issues ensued, such as whether “ new ” past practices , (an
interesting turn of phrase), can be created post the CBA. Subjects such as
these are all connected with the Respondent’s theme that the CBA controls the
outcome of the issue in this case. There were several permutations of these
theme advanced by the Respondent during the hearing, such as whether another
supervisor, other than Mundell, had ever given a pay upgrade to a miners’ rep
on a shift when they never actually operated a piece of equipment during that
shift. Tr. 224-225.

[15]
These include the uncontested points that a miner would not be able to claim an
upgrade to mobile equipment operator if he was not trained for the type of
mobile equipment to be used. Tr. 241-242. Unfortunately, other off the mark
observations continued. They included remarks that a senior laborer with a
broken leg, who can't operate the equipment, would not be entitled to an
upgrade just because a junior laborer operated the mobile equipment. Tr. 243. Other
arguments of the same ilk were presented, with Respondent’s Counsel asking
Mundell, “[i]f a senior laborer is attending annual refresher training, they're
at the mine, they're there to work, but they're attending annual refresher
training, they wouldn't be entitled to an upgrade just because a junior laborer
gets a mobile equipment upgrade while they're unavailable?” Tr. 244. Mundell
agreed no upgrade would be due. Id. In the same vein, when then asked if
things like “vacation, FMLA, jury duty, parent-teacher conference, voting,
bereavement leave,” were involved, if he agreed that such miners “wouldn't be
available to operate mobile equipment … even if they were the senior laborer,”
and that “they wouldn't get the upgrade just because a junior laborer was
operating the equipment,” Mundell noted that under such circumstances those
miners would not even be at work and therefore they would not be getting such
pay. Tr. 245.

The Court recognizes that
the many examples presented by the Respondent’s Counsel simply represent
energetic advocacy, that is, trying to make the best case one can. The problem,
as the Court sees it, is that none of these analogies advance the Respondent’s
case.

[16] Mundell explained
that there are infrequent occasions when miners from the yard perform other
duties, but most of the work involves those three categories. Tr. 246-247.

[17]
As an aside, it is noteworthy that Mr. Powell had an instance when he assigned
a less senior laborer to run mobile equipment and this resulted in his having
to pay the more senior laborer the upgraded pay, even though that more senior
laborer never operated mobile equipment on that day. This result was brought
about under the terms of the CBA. Powell violated the terms of the CBA by
assigning the mobile equipment operator job to a less senior laborer. And
who was that more senior employee that Powell bypassed, you may ask? None other
than Ms. Otten. The circumstances when this occurred involved Powell
assigning mobile equipment work to Mr. Matson, bypassing Ms. Otten, though she
had seniority over Matson. Tr. 279. Powell’s excuse for bypassing Ms. Otten was
not persuasive to the Court. He stated: “for whatever reason, Tara wasn't -- I
-- I didn't either go across the plant, or Enoch [Matson] was handy, he was
right there, I just assigned him to do it because it was -- I don't know that
it was an emergency, but it was something that needed to be done right away, so
I had Enoch do it and -- and just paid 'em both. I mean, that's -- that's -- do
I – I don't remember the reason why I didn't go get Tara [Otten], but -- so I
just paid 'em both.” Tr. 279. Powell later added that the decision to bypass Otten
“wasn't a mistake. It was a decision I made 'cause -- because Enoch was
available, okay? And although Tara may have been available, at the time, I had
to have somebody on it right now. So rather than run her down, or go look for
her, I made the decision to put him on it. So therefore, by contract, I have to
pay her.” Tr. 281-282.

Thus, Powell knew he was bypassing the terms of the
CBA; his decision was, as he put it. “was done right -- right out the gate.
That was done right as soon as I paid him [Matson], I would have to pay her.
Then there is no dispute on pay or anything. Tr. 282.  Powell then attempted to
justify his action, describing that “[i]t was an emergency call , so
that's how -- that's just how I have to handle it, how I had to handle it.” Tr.
283 (emphasis added). When the subject was revisited, in which he gave a job to
a less senior miner, bypassing Ms. Otten, he reiterated that “the circumstances
around that, whether she was available, it was an emergency, you know .”
Tr. 296 (emphasis added). On cross-examination by Counsel for the Respondent,
and pertaining to the event when he assigned mobile equipment work to a junior
employee, sidestepping the Complainant, Powell again affirmed that it was an
emergency that prompted that action, although he edged back from that
description when asked again, stating “[t]hat I remember, yes.” Tr. 306. Though
unsure, he believed the event was “sometime in 2019.” Id. When Counsel
for the Respondent asked the question yet again, asking if Powell’s “concern
was that some activity needed to be performed on [the manlift, which was called
the], JLG in an emergency fashion,” he modified his response further, answering
this time “[ i ] n a timely fashion, yes .” Tr. 307. Uncertain what
Powell meant, Counsel for Respondent noted that “timely fashion” could be in a
week, or in a day, or in a matter of hours.” Powell then answered “Well, I --
then I guess I should say, yes, it was an emergency, if you look at timely and
that. Timely, to me, means right now. So it's a difference in -- in description
of what timely means. So timely, to me, means it has to be done right now.” Id.
His definition of an emergency included “if somebody had an appointment or
something that I wasn't made aware of, whether it be USDA to deal with birds,
we have vultures, or Reliable Pests to deal with pigeons or whatever, nuisance
things, and they were scheduled there at a certain time to be taken to do their
thing at a certain time, then we can't just – you can't just turn them away and
say no, come back an hour later, or tomorrow, or whatever. They've scheduled
that time.” Tr. 308.

The Secretary’s Attorney
later returned to the subject of Powell paying two employees the upgraded pay,
which event, as noted, involved Ms. Otten. Powell reiterated that the incident
“was an emergency, but she's not available.” Vol II, Tr. 12-13. He then
confirmed again that it was an emergency situation. Vol. II, Tr. 13. This time,
Powell offered the reason he had Matson operate the JLG instead of Ms. Otten,
stating “I didn’t want to go down that rabbit hole, but I will. So there was an
incident involving a JLG with her father. He had injured hisself previous to
that. There was quite some time that had went by, but Tara had made numerous
complaints about the equipment, that it was unsafe. We had had numerous
mechanics in to work on that. And every time she operated that, we would have
to call a mechanic in to look at it. That the safety equipment wasn't working,
that -- that there was a problem with it. She would leave the piece of
equipment set somewhere, we would have to retrieve it. We do not work on this
equipment. United Rentals does. They bring in their mechanic to work on it.
They would come in and they think would find nothing wrong with it. So it was
easier to, rather than deal with that, was to put someone else on it that had
no issue operating it, found no safety issues with it. So that's what the issue
was. I tried to be tender when speaking about that, but that -- that's how it
is.” Vol. II, Tr. 13-14. Powell stated that Ms. Otten had made numerous prior
complaints about the piece of equipment, again referring to the JLG, and to
avoid having her complain again about it, he assigned the task of running the
equipment to Matson. Vol. II, Tr. 16-18. To be plain, in the Court’s view,
Powell’s claim that the incident was an “emergency” was false. As the Court
alluded to earlier in this decision, while this event does not impact the legal
question, it is, in the Court’s view, reflective that at least some in
management were not big fans of Ms. Otten and her active stance on safety
matters. It therefore can be taken into account in determining an appropriate
penalty applying a Pasula-Robinette analysis, or under a straight violation
of section 103(f) analysis.

[18] The idiom “six
ways from Sunday” means in every way possible, having done something
completely, having addressed every alternative. Six ways from Sunday seems to
have its origins in the middle eighteenth century as the phrases both ways from
Sunday and two ways from Sunday. These earlier phrases referred to the eye
condition known as strabismus, where someone’s eyes do not focus in unison,
giving the appearance of looking in two different directions. From there, the
terms both ways from Sunday and two ways from Sunday gained the figurative
meaning of looking at something askew. … the idiom carries the same meaning,
which is in all ways possible.” https://grammarist.com/idiom/six-ways-from-sunday/

[19] A side note,
ultimately of no consequence, Ames agreed that, initially, and when speaking
with Darin Douglas, the Union President in April 2020, about the pay issue with
Ms. Otten in this case, she admitted that she found no provision in the CBA
that spoke to the situation where a miner, acting as a walk-around with an MSHA
inspector, was not entitled to an upgrade. Tr. 85-87.

[20] It should be
noted that the Court finds that many issues raised by the parties were immaterial
to the resolution of this case. One example involves whether Mr. Mundell
improperly coded payroll matters. Tr. 109-110,129. This is a distraction from
the issue before the Court. If the CBA and provisions within it, such as the
zipper clause, rule the day, then Mundell, or anyone who coded a pay upgrade
when the CBA did not allow such an upgrade would have made a coding error. However,
if as the Court finds in this case, the walkaround, no loss in pay ,
provision encompasses pay one would have received but for that person
accompanying an inspector during a walkaround, then the CBA takes a back seat
to the statutory provision.

[21] In support of its
position, Respondent pointed to Ms. Otten’s filing of a grievance in connection
with her pay upgrade issue. Tr. 181. Ex. R 4. The complainant filed her
grievance on April 20, 2020. This was at a time before she made her complaint
to MSHA. In her grievance, Otten asserted that removing her mobile equipment
upgrades violated the CBA on the basis that the upgrades were a past practice. Tr.

182. It is recognized by the Court that past practices were eliminated under
     the CBA by virtue of the zipper clause. Tr. 183. Following a “second step”
     denial of the grievance, there was no third step or arbitration requested by
     the union. Tr. 187-188. The Court commented that, while Ex R 4 was admitted,
     that action did not imply that the Court was suggesting that it would be
     material to this decision. For the reasons within this decision, the Court
     finds that, like the CBA, the outcome of the grievance action also has no
     bearing on this decision.  

[22] Though out of the
anticipated order of testimony, an accommodation was made between the parties
so that the Respondent could call Ms. Stacy Fujarski to testify. Vol II Tr.
218.

[23] Worn
out, figuratively speaking, from witnesses uttering the same contention, the
Court inquired of Respondent’s Counsel: “So what's your point, counsel? And
you're going back to … adhering to the Respondent's view of what the CBA
required, and through this payroll process you are correcting it to reduce the
pay from what was originally incorrectly listed as an enhanced pay. Am I -- am
I correct about that? Vol. II, Tr. 233.

Counsel for Respondent, Attorney Chibnall, responded:
“ You're correct , Your Honor. This was mostly for … explanatory purposes,
… to explain how the process worked and what it looked like for Your Honor's
convenience, so that when you looked at these documents, or if you did, you'd
understand what they meant.” Vol II, Tr. 234. (emphasis added).

The Court then expressed about the lack of value to
this testimony, stating: “So isn't this surplusage? I mean, …no one is really
challenging that there were mistakes from the Company's perspective in terms of
Miss Otten being paid too much. And apparently some instances when there was a
correction made and pay was to be increased because she was available; that is,
she was not working for an MSHA inspector doing a walk-around. These records
just show how the Company corrected it one way or the other, right? But it
doesn't change the philosophy. The [Respondent’s] philosophy is you're not
available, you don't get the enhanced pay because you're not available to
operate mobile equipment at that time. Why? Because you were with an MSHA
inspector.” Vol II Tr. 235-236.

Attorney Chibnall responded: “And that's correct, Your
Honor. And the purpose of Miss Fujarski's testimony here was mostly explanatory
for the exhibit itself. It's already been admitted. But I also had questions
regarding the -- the technical piece of it and how to actually perform that
operation, which I think is somewhat relevant here.”

The Court responded that it will “be interested to
hear how it's relevant, but go ahead.” Tr. 236. However, upon review of
Transcript pages 236-244, with the last page being the end of Ms. Fujarski’s
testimony, the Court concludes that the testimony did not add anything of value
to the issues in this case.

[24]
This change in Ms. Otten’s job classification, from laborer to mobile equipment
operator, does not moot the issue of whether she was entitled to the upgraded
pay level for the dates identified in this case, as they were before her job
change. Further, the broader issue before the Court has not become moot as a
consequence of Ms. Otten’s new job classification, because the mine would still
take the same position regarding pay upgrades for any laborer who would find
himself in a similar situation. Thus, the Respondent, through Ames, stated that
it would still deny a pay upgrade to anyone else in a situation similar to
Otten’s in this litigation. Vol II Tr. 206-207.

[25] While not
critical to the Court’s determination of the walkaround issue in this matter,
there is some useful background which at least Ms. Otten believed precipitated
this dispute. According to her, before she filed the complaint in issue, “going
back to November of 2019, we had started an inspection that … actually started
in October. It was a terrible inspection. I mean, it was one of our worst. And
at that time, I had filed a complaint with MSHA, and it was against Crystal
Hudak at that time. And I had overheard her -- I had given focus notes, which
was our safety -- at joint safety committee in their Focus safety meetings. I
had given notes to the MSHA inspectors.” Vol. II, Tr. 256. The notes were made
by Otten whenever an employee would raise a safety issue to her, but other
miners in the focus group made notes when such issues were brought to them. Otten
informed that many of these issues involved things she had personally
witnessed. Tr. 266. All of these notes were given by Otten to MSHA. Tr. 265. They
had asked [her] for [the] notes. … [a]nd then [she] had found out that [Ms.
Crystal Hudak ] was going around having secret
meetings, or closed-door meetings with supervisors regarding the fact that
[she, Ms. Otten] gave these notes to MSHA.” Tr. 256-257. Otten knew about the
“secret” meetings because she overheard Hudak speaking with another supervisor,
Dean Welder. At that time Otten heard Hudak speaking, saying, “So Tara is
giving focus notes to MSHA.” Tr. 257. Having overheard that, Otten “immediately
felt as if [her] rights were being violated as a miners' rep.” Id. Though
she felt constrained not to open the door of the closed meeting, not knowing
what else to do, she did speak from outside the door, informing “Crystal
[Hudak], I can hear everything you're saying.” Tr. 257. Following that event,
Otten filed a complaint to MSHA about it. She did this by calling the MSHA
hotline. This complaint was made prior to the event in issue. This
event, occurring on November 4, 2019, was not in the distant past to the matter
in this case. Tr 258. Otten also brought the incident to the attention of her
Union representative, Wil Clayton and also to Heather Ames. Tr. 259. Ex. J 2. For
this earlier incident, Otten was also interviewed by Investigator Jones. During
that interview, Otten informed that she told the investigator of other
incidents, all preceding the event in this case. Tr. 262. Otten believed that
the operator was frustrated after the MSHA inspection, because, as one example,
Terry Powell kept mentioning the D orders that MSHA issued with his name on the
orders. Tr. 262-263. Powell also referenced having “to go to MSHA court” about
the D orders. Tr. 263. One of those orders emanated out of messes in the yard
department, the department where Otten then worked as a laborer. Tr. 264. Subsequently,
Otten left the safety focus group. This occurred on February 11, 2020 when she
was informed by Tim Schlosser, with corporate safety, that in the future all
such notes would have to be turned over to corporate. Tr. 267. As that didn’t
sit well with Otten, she left the focus group in March or April of that year. Id .
As Otten put it, upon being told about the requirement to turn over the notes,
at the end of the meeting she “thanked everyone for the opportunity, I folded
up my notebook, I handed it to Crystal Hudak. I told them that I did not think
that our safety program was working as they intended and I stepped down from
Focus. But I still remained a miners' rep.” Id.

Although,
the incidents recited above are not critical to, nor a necessary predicate to
Ms. Otten’s discrimination claim, the Court concludes that, contextually, they
are important to a fuller understanding of this matter. Clearly, based on Ms.
Otten’s credible testimony, Continental was not pleased with her proactive
approach to mine safety including her courage to inform MSHA of her safety
concerns. It is also noted that Ms. Hudak was disciplined as a result of Ms.
Otten’s complaint regarding that incident. Vol II, Tr. 300. Otten did not agree
with the suggestion by Counsel for the Respondent that the incident with Hudak
had no connection with the Complaint in this matter. It was her view that at the
time involving the Hudak matter she was unaware of “all of [Bob Pickering’s]
investigation” and therefore did not know at that time that Hudak had “talked
to all of these supervisors, had given them names, had insinuated [that Otten]
was throwing people under the bus.” Vol. II, Tr. 301.

[26] The amount
calculated by Ms. Otten, per Ex. P 11, also reflects her 401K match. Under that
when miners like her “contribute 4 percent into [the mine’s] 401K, the Company
will match 100 percent of that 4 precent. And [she does] contribute that
amount. And so that is the 4 percent of the total amount that [she] feels [she]
was owed. That $14.94 is 4 percent of all of that.” Tr. 277, and Ex. P 11.

[27] To avoid
potential confusion for those reviewing this record and Ex. P 11, the miners
received a pay raise and the difference between the two rates is also reflected
in that exhibit. Again, there is no genuine dispute about the figures in this
case; the dispute is over the pay rate due to miners’ representatives under the
circumstances identified in Otten’s Complaint.

[28] For example, referring
to the CBA, Douglas, who informed that he was involved in the negotiation of
that agreement, expressed his view that “[t]he miner that walks around for the
safety of the Union should be paid their normal wage rate. In this case, Miss
Otten was at JC1, which is [the] labor rate. I've been there 26 years and I
have never heard of anybody being upgraded when they walked around with MSHA.” Vol.
III, Tr. 21. Upon cross-examination, Douglas expressed that Ms. Otten had no
case. In support of his view, he pointed to page 26 of the contract, asserting
that it states “that there should not be an upgrade to walk around with MSHA.”
Vol III Tr. 27. Joint Exhibit 4 at page 28.

[29] Because the Court
has determined that the CBA does not override the statutory protection and
command that miners’ representatives are not to incur a loss of pay when
serving in that capacity, the Court will not engage with the claim that the CBA
prevents the Respondent from paying the mobile equipment operator rate in this
instance, nor, because it is unnecessary to do so, as it would elevate the
stature of the CBA, will it delve into the Secretary’s assertion that the
Respondent’s interpretation of the CBA conflicts with that agreement’s terms.

[30] Thus the Court
agrees with the Secretary that the “mixed motive defense does not apply because
Otten did not engage in any unprotected activity that would justify the adverse
action.” Sec. Br. at 36. Ames admitted that the denial of the pay upgrade was
based on the theory that Ms. Otten was ‘unavailable’ to run the mobile
equipment, but her ‘unavailability’ was solely attributable to her serving as
the miners’ representative and the foundation for all of that was that the CBA
dictated the loss of pay provision. In short, the Court agrees with the
Secretary’s remark that “Continental cannot use the CBA to take away a right
provided to miners under the Act.” Id . at 37 (italics omitted). As the
Secretary has noted, the Commission held in Sec’y v. Akzo Nobel Salt Inc. ,
19 FMSHRC 1254, (July 1997) (“ Akzo ”) that
“the judge should not have looked to the collective bargaining agreement in
fashioning his relief under section 105(c). The Commission has stated that it
does not ‘decide cases in a manner which permits parties’ private agreements to
overcome mandatory safety requirements or miners' protected rights.’ Mullins
v. Beth-Elkhorn Coal Corp ., 9 FMSHRC 891, 899 (May 1987) (citing Loc. U.
No. 781, Dist. 17, UMWA v. Eastern Assoc. Coal Corp ., 3 FMSHRC 1175, 1179
(May 1981)).” Akzo at 1259 and Sec’s Br. at 37-38.

[31] Although the
Court read and considered the entirety of the parties’ post-hearing briefs,
this section comments upon particular contentions raised in those briefs, with
the Court concluding that other contentions were implicitly addressed in the
findings of fact and/or in the case law discussion. As one example, the
Respondent’s assertion that any suggestion of animus towards Ms. Otten was
negated by Ms. Ames’ “independent investigation,” needs no further comment, as
the issue was addressed earlier by the Court. Respondent’s Reply at 9.

[32] Respondent cites St. Joe Zinc Company , 2 FMSHRC 3594, 3600
(Oct. 28, 1980) for the proposition that the “Mine Act only requires miners
receive their regular rate of pay.” R’s Br.  at 10. As a decision by an
administrative law judge, it has no precedential impact but, beyond that, the
case is inapt. Further, Respondent misreads that decision because, in fact, it
supports the Court’s determination in this matter. In St.
Joe Zinc, the miners’ representative, who was an oiler-tool nipper,
cleaned toilets as part of that job. When he accompanied an MSHA inspector as a
miners’ representative, the mine operator did not pay him for the toilet
cleaner part of his job because he did not clean toilets during that week. The
operator maintained that it would be unfair to require it to pay the miner for
housekeeping duties he not actually perform.

The
judge in St. Joe Zinc, explicitly stated that “[a]t issue in this
litigation is the proper construction of the requirement contained in section
103(f), 30 U.S.C. § 813(f), of the Act that a designated walkaround
representative “shall suffer no loss of pay during the period of his
participation in the inspection.” Id . at 3597. The operator in St.
Joe Zinc looked to another decision, Consolidation
Coal , 2 FMSHRC 1056 (May 5, 1980), which decision has been discussed
above, for the proposition that, per a wage agreement , the higher
rate need only be awarded when the specified work is actually performed . That
argument should sound familiar to the reader. The judge in Consolidation
Coal found that the miner was unfairly penalized for exercising his
walkaround rights, and that the failure to compensate him at the rate
applicable to the duties he would otherwise have performed was an act of
discrimination within the meaning of section 105(c) of the Act.

Because
the St. Joe Zinc decision referred to Consolidation
Coal , this could be confusing to the reader, and therefore it is
important to understand that the judge in St. Joe Zinc rejected the
operator’s claim, reasoning that the miner’s toilet cleaning duties “ were performed as part of that [miner’s] regular 40-hour
work week” and, construing the provision in issue, the judge in St.
Joe Zinc stated “[t] hat the requirement of
section 103(f) that miners exercising their walkaround rights ‘shall suffer no
loss of pay’ means they are to receive their customary and usual compensation
[as] made abundantly clear in the legislative history.” Id. at 3600. Thus,
the judge in St. Joe Zinc held that “[i]f
nonperformance of [the miner’s] maintenance duties is excused by the walkaround
provision, then nonperformance of his sanitation duties must likewise be
excused.” Id . 3599-3600. The Court applies the same logic. There is no
dispute that but for serving her fellow miners as the miners’ representative,
Ms. Otten would have been operating mobile equipment on the dates she
identified in this litigation and the parties have agreed to the amounts she would
have been entitled to receive on those dates, subject to this Court’s
determination of the proper construction of the no loss in pay provision for
walkaround representatives.

[33] Though a matter
of semantics, while it is undisputed that Ms. Otten would have been paid as a
mobile equipment operator on the days in issue, the Court is reluctant to
employ the phrase “regular rate of pay,” the key is that Otten suffered a “loss
of pay” on those dates.

[34] Sec'y of Labor
on behalf of Pasula v. Consolidation Coal Co ., 2 FMSHRC 2786, 2799 (Oct.
1980), rev'd on other grounds sub. nom Consolidation Coal Co. v.
Marshall , 663 F.2d 1211 (3rd Cir. 1981).

[35] “The Commission
has adhered to the principle that when interpreting the Mine Act and safety
standards, constructions that lead to absurd results must be avoided. [citing,
as one example] Central Sand and Gravel Co., 23 FMSHRC 250, 254 (Mar.
2001),” Secretary of Labor on behalf of Greathouse v. Monongalia
Coal Co. , 40 FMSHRC 679 , 689 (June
2018). Constructions which lead to absurd results are rejected. Consolidation
Coal , 15 FMSHRC 1555, 1557 (Aug. 1993)

[36] Although the
Secretary asserts that Ms. Ames acted intentionally in denying Ms.
Otten’s upgrades, the Court believes that, whatever her intent, misguided or
malevolent, it does not matter; the loss of pay Ms. Otten incurred in these
circumstances violated Section 103(f), constituting cognizable discrimination
under Section 105(c) of the Mine Act.

[37] The Court agrees
that many of the arguments advanced by the Respondent are simply not on point. As
one example, that Matson and Lucas had pay upgrades retracted is of no moment
because neither was acting as a miners’ representative. The Court views many of
the other arguments raised by the Respondent as distractions which do not
warrant individualized discussion. For example, the claim that Ms. Otten was not
required to perform work of a higher classification is of that ilk because
it diverts the analysis from the core, and undisputed, fact. On the days in
issue, Ms. Otten would have been first in line to operate mobile equipment and,
as the designated walkaround representative, she would have done so but for the
fact that she was accompanying the MSHA inspector at those times. Respondent’s
Reply at 17.