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

Plain-English summary

This is the original release of the Commission's decision affirming Tara Otten's walkaround-pay claim against Continental Cement. Otten received her regular laborer rate instead of the higher mobile-equipment rate she would otherwise have earned while accompanying MSHA inspectors. The Commission affirmed $388.39 in backpay plus interest and a $17,500 civil penalty, holding that section 103(f) required full compensation despite the collective bargaining agreement. Commissioner Althen agreed that Otten lost pay but dissented from the discrimination finding and penalty. FMSHRC later corrected the word “inclusive” to “inconclusive” in footnote 7; the corrected release should be used for reliance.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 813(f), 815(c)(1), and 820(i)
• Outcome: The loss-of-pay and discrimination findings, backpay award, and $17,500 penalty were affirmed.
• Key point: This original release was superseded by a corrected FMSHRC release fixing one word in footnote 7.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

SECRETARY
OF LABOR,                             :        

MINE
SAFETY AND HEALTH                   :        

ADMINISTRATION
(MSHA),                     :

on
behalf of TARA OTTEN                          :        

:        

v.                                              
:         Docket No. CENT 2021-0013

:                                                        

CONTINENTAL
CEMENT COMPANY,       :

LLC                                                                
:

BEFORE:
Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

DECISION

BY: Jordan,
Chair; Rajkovich and Baker, Commissioners

This case, which arises under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018)
(“Mine Act” or “Act”), concerns a complaint filed by the Secretary of Labor on
behalf of Tara Otten, pursuant to section 105(c) of the Act, 30 U.S.C. §
815(c). [1]
The Secretary alleges that Continental Cement Company (“Continental”) violated
section 105(c)(1) when it withheld pay from Otten because she exercised her
statutory rights as a designated representative of miners pursuant to section
103(f) of the Mine Act, 30 U.S.C. § 813(f) (miners’ representatives shall have
the “opportunity to accompany [an inspector] during the physical inspection [of
the mine]” while “suffer[ing] no loss of pay during the period of [her]
participation.”) (emphasis added).   

After a hearing, a Commission
Judge issued a decision holding that Continental violated sections 103(f) and
105(c)(1) of the Mine Act when it refused to pay Otten the wage-rate she would
have otherwise earned on certain shifts, had she not served as a miners’
representative. 44 FMSHRC 121, 149 (Feb. 2022) (ALJ). The Judge awarded Otten
backpay of $388.39 plus pre-judgment interest and assessed a civil penalty of
$17,500 against Continental. Id . at 159. Thereafter, Continental filed a
petition for discretionary review of the Judge’s decision, which the Commission
granted. For the reasons herein, we affirm the Judge’s decision.         

I.

Factual and Procedural Background

At the time of the events at
issue, Tara Otten worked as a “Laborer” in the Yard department at Continental’s
underground limestone mine in Hannibal, Missouri. Otten also served as a
designated representative of miners pursuant to section 103(f) of the Mine Act.  

The United Steelworkers
represents Continental’s employees; a collective bargaining agreement (“CBA”)
governs the terms and conditions of their employment. According to the CBA, if
there are an insufficient number of “Mobile Equipment Operators” on a shift,
the most senior qualified “Laborer” is given the opportunity to perform mobile
equipment work and is paid at the higher Mobile Equipment Operator hourly rate. [2]
Therefore, in instances when Otten was the most senior qualified Laborer in the
Yard department, she would receive the first opportunity for an available
mobile equipment assignment.

On certain shifts that
occurred between March 2020 and January 2021, Otten accompanied an inspector
from the Department of Labor’s Mine Safety and Health Administration (“MSHA”) as
the designated miners’ representative on inspections of the mine. [3]
 During these shifts, a Laborer operated mobile equipment and received the
corresponding pay upgrade. It is undisputed that as the senior Laborer, Otten
would have had the first opportunity to operate the mobile equipment on these
shifts, had she not acted as a miners’ representative.

Otten testified that she previously
received Mobile Equipment Operator pay when she served as a miner’s
representative during shifts on which she would have otherwise operated mobile
equipment. Vol II, Tr. 253-55. Otten further testified that she was assigned to
operate mobile equipment “generally every day.” Vol. II, Tr. 268.

A dispute arose when Heather
Ames, a Continental human resources manager, instructed the payroll specialist
to retract the Mobile Equipment Operator pay upgrades that Otten’s

supervisor
had coded on her timecard for shifts on which Otten worked as a miners’
representative (March 24-26, 31 and April 1-2, 2020). Ames testified that she
believed that according to the new CBA, a miner must actually operate mobile
equipment to receive the corresponding wage rate. Vol. II, Tr. 179, 182,
214-15. Ames relied upon the CBA’s “zipper clause” which she understood to
cancel past-practices concerning wage upgrades. Jt. Stip. at 24 (“This
Agreement supersedes and cancels prior practices and agreements . . . .”). Accordingly,
Ames believed that Otten should instead be paid as a Laborer for these specific
shifts. [4]

Otten filed a grievance
alleging that Continental wrongfully withheld pay, which Continental denied. On
April 28, 2020, Otten filed the subject discrimination complaint with MSHA. The
Secretary filed a complaint on behalf of Otten with the Commission. [5]  

The Judge concluded that
section 103(f) requires that a miners’ representative receive the same compensation
she would have otherwise received had the inspection not occurred. The Judge held
that Continental structured its pay practices in a manner that may dissuade a
miners’ representative from exercising her statutory rights in violation of
sections 103(f) and 105(c)(1). The Judge conducted two discrete analyses in
support of his conclusion. In his primary analysis the Judge stated that the
Secretary establishes a violation of section 105(c)(1) by demonstrating, by a
preponderance of the evidence, that the miners’ representative suffered a loss of
pay in violation of section 103(f). 44 FMSHRC at 149. As an alternative
analysis, the Judge utilized the traditional Pasula-Robinette test for
discrimination, finding that the loss of pay was motivated by Otten’s exercise
of protected rights. Id . at 150.

On review, Continental raises
numerous arguments as to why the Judge erred in his analysis and why his findings
lack evidentiary support. For the reasons which follow, we reject those arguments,
and we affirm the Judge.   

II.

Disposition

Section 103(f), 30 U.S.C. §
813(f), establishes walkaround rights for miners who accompany MSHA inspectors
on mine safety inspections. It provides that:

. . . 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 . . . for the purpose of aiding such inspection and to participate
in pre- or post-inspection conferences held at the 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.

T he Act’s legislative history states that
section 103(f) was included in the Mine Act to:

enable miners to understand the safety and health
requirements of the Act and [thereby] enhance miner safety and health
awareness. To encourage such miner participation, it is the Committee's
intention that the miner who 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.

S. Rep. No. 95-181, 95th Cong., 1st Sess, at 28-29
(1977) , reprinted in Senate Subcomm.
on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977 , at 616-17 (1978)
(emphasis added).

With respect to section
105(c) of the Mine Act, its legislative history has led the Commission and
courts to conclude that the section is to be construed “expansively to assure
that miners will not be inhibited in any way in exercising any rights afforded
by the [Act].” S. Rep. at 36, Legis. Hist. at 624 (quoted in Moses v.
Whitley Development Corp ., 4 FMSHRC 1475, 1480 (Aug. 1982)); see also
Sec’y of Labor v. Cannelton Industries, 867 F.2d 1432, 1437 (D.C. Cir.
1989). In Moses , the
Commission held that section 105(c)(1) was intended to encourage miner
participation in enforcement of the Mine Act by protecting them against “‘not
only the common forms of discrimination, such as discharge, suspension,
demotion . . . but also against the more subtle forms of interference . . . .”’
Id . at 1478 (quoting S. Rep. No. 95-191, at 36, Leg. Hist. at 624).

A.    
Continental Violated Sections
103(f) and 105(c)(1) of the Mine Act.  

Section 103(f) of the Mine
Act plainly requires an operator to compensate a miners’ representative with
the pay she would have received had she not exercised her statutory rights. 30 U.S.C. § 813(f) (“[s]uch representative of miners
who is also an employee of the operator shall suffer no loss of pay during
the period of his participation.). Our plain reading of the section is fully
consistent with Congress’ stated intention “to encourage [ ] miner
participation” by providing “full compensation.” S. Rep. No. 95-181, 95th
Cong., 1st Sess, at 28-29 (1977); see also Magma Copper Co., 1 FMSHRC 1948, 1951-52 (Dec. 1979) ( “[t]he purpose of
the right to walkaround pay granted by section 103(f) is [] clear: to encourage
miners to exercise their right to accompany inspectors.”).

We affirm the Judge’s primary
analysis and his holding that Continental interfered with miner representative Otten’s
statutory rights in violation of section 105(c)(1) when it paid her at a lower
hourly rate than she would have otherwise earned. 44 FMSHRC at 149.

The Judge’s decision is supported
by Roger L. Stillion v. Quarto Mining Co., 12 FMSHRC 932 (May 1990), in
which the Commission concluded that the failure to compensate a miners’
representative as required by section 103(f) demonstrates that the operator
discriminated against the miners’ representative. The Commission considered
whether the miner was entitled to compensation pursuant to section 103(f) and
whether the right was violated. Id . at 937-39. Notably, the Commission
did not find it necessary to consider whether the operator was motivated by
discriminatory animus. [6]  

We also find the Judge’s
analysis to be fully consistent with Sec’y obo Richard Truex v.
Consolidation Coal C o., 8 FMSHRC 1293, 1299 (Sept. 1986). In Truex ,
the Commission found that the operator interfered with the miners’
representative’s section 103(f) rights in violation of section 105(c)(l). As in
Stillion , the Commission in Truex did not base its liability
findings on whether the operator was motivated by discriminatory animus. The Commission
therefore ordered backpay, finding “Consol's attempt to use the Contract as a
defense [to be] irrelevant.” Id .

The record in this case is
clear. Continental does not dispute that Otten would have earned a higher wage-rate on the shifts at issue if she
had not exercised her walkaround rights and instead accepted the available
mobile equipment assignment. In fact, Heather Ames testified that she
instructed the payroll specialist to retract the pay upgrades “[b]ecause
[Otten] was accompanying the MSHA [inspector] during an inspection.” Vol. II,
Tr. 58-62, 67-68, 72. She further testified Otten “could say she didn’t want to
go on the inspection. There are other miners’ reps.” Vol II, Tr. 79-80. Furthermore,
in an email to her colleague Ames wrote “ if Tara [Otten] is unavailable for a job, she is not available –
no different than if she was on vacation or in the store house filling in, she
would not get the upgrade because junior people below her received the upgrade.
She chooses to work with MSHA.” J Ex. 7-j. Ames confirmed, in a written
statement to MSHA, that Continental would not pay wage upgrades to miners’
representatives when a less senior employee receives the upgrade. J Ex. 3. [7]
Because Otten exercised her statutory walkaround rights, she suffered an
adverse action (loss of pay in violation of section 103(f)). [8]

The operator argues that it
complied with the Mine Act’s requirements when it paid Otten her Laborer rate
of pay for time served as a miners’ representative. We disagree. Otten suffered
a prohibited “loss of pay during the period of [her] participation in the
inspection” when she was paid less for the shifts than she would have otherwise
earned. 30 U.S.C. § 813(f). Continental “unfairly penalize[d] the miner for
assisting the inspector” contradicting the legislative purpose of the section. [9]
 S. Rep. No. 95-181 at 28-29, Legis. Hist. at 616-17.  

Additionally, Continental
argues that according to the CBA, Otten was only entitled to the wage upgrade
provided that she actually operated the mobile equipment.  In the event of a
conflict between the terms of the parties’ agreement and the requirements of a
federal statute, the statutory requirements take precedence. See Barrentine
v. Arkansas-Best Freight System, Inc ., 450 U.S. 728, 740-41 (1981) (“[W]e
have held that congressionally granted FLSA rights take precedence over
conflicting provisions in a collectively bargained compensation arrangement.”);
see also W.R. Grace and Co. v. Local Union 759 , 461 U.S. 757, 766
(1983) ( citing Hurd v. Hodge , 334 U.S. 24, 34-35 (1948) (“As with any
contract, however, a court may not enforce a collective bargaining agreement
that is contrary to public policy.”)).

To the extent that the CBA
may conflict with section 103(f), the requirements of section 103(f) control. See
also R. Mullins v. Beth-Elkhorn Coal Corporation , 9 FMSHRC 891, 899
(May 1987) (citations omitted) (“we do not decide cases in a manner which
permits parties’ private agreements to overcome mandatory safety requirements
or miners’ protected rights; nor

do we
unnecessarily thrust ourselves into resolution of labor or collective
bargaining disputes.”).

Any
agreement between mine operators and unions must meet or exceed the statutory
floor. [10]

Continental
maintains that it did not discriminate against Otten or otherwise interfere
with her rights, noting that during the same payroll processing period it also
retracted the wage upgrades for Laborers that had performed carpentry work. Continental
maintains it interpreted the CBA’s zipper clause as canceling all informal prior
pay practices, including its informal practice of providing pay upgrades for working
as a miners’ representative or as a carpenter. The analogy Continental draws
between miner’s representatives and carpenters is inapposite, performing
carpentry work, in and of itself, is not a protected activity. Again, section
103(f) protects the pay of miners performing the statutory role of a “miners’ representative”
and is not superseded by any private agreement.

B.    
A Showing of Discriminatory
Animus is Not Required to Establish a Violation of Section 103(f).

Continental argues that it
did not interfere with Otten’s section 103(f) rights in violation of section
105(c)(1) because it was not motivated by a discriminatory animus. Continental
argues that the Secretary must demonstrate that Otten’s loss of pay was
motivated by the exercise of protected activity in accordance with the Pasula-Robinette
test for discrimination, in order for Continental to be liable for the alleged
violations of the Mine Act. [11]

The Secretary likewise argues
that a finding of discriminatory animus is a necessary element of a claim. However,
the Secretary maintains that the Judge’s alternative analysis – finding that
Continental was motivated by Otten’s exercise of protected rights when it
retracted the pay upgrades – is supported by substantial evidence. The
Secretary relies upon Sec’y of Labor on behalf of Glover v. Consolidation
Coal Co ., 19 FMSHRC 1529 (Sept. 1997), in which the Commission applied the Pasula-Robinette
test for discrimination and found that the operator violated section 105(c)(1)
when it transferred the positions of two miners’ representatives in retaliation
for the exercise of their rights.

We disagree with
Continental’s and the Secretary’s contentions. As established supra , the
Commission has not required that a miners’ representative demonstrate that a
loss of pay was motivated by discriminatory animus to prove unlawful
interference with section 103(f) rights. In fact, permitting the operator to
provide an affirmative defense – as Continental seeks to do – would be
inconsistent with the operator’s duty to comply with the explicit “no loss of
pay” requirement in section 103(f) of the Mine Act. See Sec’y on behalf of Truex ,
8 FMSHRC at 1299 (finding the operator’s affirmative defense “irrelevant”).

We also find Glove r to
be readily distinguishable. Transfers of positions are not generally prohibited
under the Mine Act. A transfer is unlawful, however, when motivated by
discriminatory animus in violation of section 105(c)(1). In contrast, the “loss
of pay” while exercising rights as a miners’ representative is always expressly
prohibited by section 103(f) of the Mine Act, regardless of intent. 30 U.S.C. §
820(a) (“The operator of a coal or other mine in which a violation occurs of a
mandatory health or safety standard or who violates any other provision of this
chapter, shall be assessed a civil penalty by the Secretary . . . .”) ; see also
Nally & Hamilton Enterprises , 38 FMSHRC 1644, 1650 (July 2016)
(citations omitted) (“Because the Mine Act is a strict liability statute, an
operator is liable if a violation of a mandatory safety standard occurs,
regardless of the level of fault.”).

Accordingly, consistent with Commission
precedent, we find that a showing of animus is not required to establish a
violation of section 103(f) and that Pasula-Robinette is not the
appropriate test for evaluating a miners’ representative’s claim of an unlawful
loss of pay in that regard. [12]

C.    
We Affirm the Judge’s
Penalty Assessment.

Continental additionally
argues that the Judge erred in assessing a $17,500 civil penalty. Section
110(i) of the Mine Act, 30 U.S.C. § 820(i), provides that the Commission is
authorized to assess all penalties under the Mine Act and that such penalties
must reflect consideration of six statutory factors. [13]
The Commission’s review of a Judge’s discretionary penalty assessment is a
two-step process. First, the Commission reviews the Judge’s findings on the
penalty factors for the support of substantial evidence and, second, the
Commission reviews the Judge’s overall assessment for an abuse of discretion. Solar
Sources I , 42 FMSHRC 181, 208 (Mar. 2020).

Here, the Judge found that
the operator’s previous violation history, size of the mine and the size of the
controlling entity were all moderate. 44 FMSHRC at 159. However, the Judge
concluded that the negligence and gravity factors were significant. Id . at
158.

Continental asserts that the
Judge erred in his assessment of the mine’s violation history, failing to
account for its lack of a prior history of section 105(c) violations. Continental
is incorrect. It is well established that the Commission considers the
operator’s general violation history, not just its history of similar
violations, when assessing a penalty. See Solar Sources Mining , LLC,
43 FMSHRC 367, 373 (Aug. 2021) (citations omitted).

Continental also argues that
the Judge erred in his gravity finding. The operator wrongly maintains that the
Judge should have considered its reliance on the CBA as a mitigating factor.

We conclude that the Judge’s
findings are supported by the record and that the Judge did not otherwise abuse
his discretion in assessing a civil penalty. See American Coal Co. v. FMSHRC ,
933 F.3d 723, 726 (D.C. Cir. 2019), aff’g 40 FMSHRC 1011 (Aug. 2018)
(“we review the ALJ’s penalty calculation for an abuse of discretion.”); see
also Donovan ex rel. Chacon v. Phelps Dodge Corp ., 709 F.2d 86, 92 (D.C.
Cir. 1983) (Commission may not “substitute a competing view of the facts for
the view [an] ALJ reasonably reached.”); Island Creek Coal Co ., 15
FMSHRC 339, 347 (Mar. 1993) (“[i]t would be inappropriate for the Commission to
reweigh the evidence … or to enter de novo findings based on an independent
evaluation of the record.”).  

Accordingly, we affirm the
penalty assessed by the Judge.

III.

Conclusion

For the foregoing reasons, we
affirm the Judge’s decision in all respects.  

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Commissioner Althen,
concurring in part and dissenting in
part:

I.

The record supports a loss of pay in violation of
section 103(f).

I concur that the Complainant, Tara Otten, suffered a
loss of pay due to not receiving an upgrade in pay to the status of a Mobile
Equipment Operator (“MEO”) on the days in question. I emphasize that nothing is
illegal or improper in paying a miner for the work the miner performs on a
given day. There is no legal deficiency with Article VI Section 9 of Continental
Cement Company, LLC’s (“Continental”) contract with the United Steel Workers of
America.

Here, however, the record permits no conclusion other
than that Otten would have worked as an MEO on the days in question and,
therefore, would have received upgraded MEO pay for those days. She was
entitled to MEO pay for her time as a walkaround representative on those days.

II.

The Commission should overrule the
discredited Pasula/Robinette standard and apply the “because” standard
used in federal discrimination statutes.

Section 103(f) does not provide a private
right of action for a miner to recoup a loss of wages. The miner must rely upon
the Mine Safety and Health Administration (“MSHA”) to recover lost pay.

Two routes are available to MSHA. It may cite the
operator for a violation under section 104(a), 30 U.S.C § 814(a), for causing a loss of pay. For
103(f) citations issued under section 104(a), a strict liability section, MSHA
must only prove a loss of pay from the miners’ representative’s participation
in the inspection. A section 104(a) citation is straightforward and does not
require proof of action motivated by protected activity. See Magma Copper
Co. v. Sec’y of Labor , 645 F.2d 694 (9th Cir. 1981).

Alternatively, MSHA or a miner may file a
discrimination complaint under section 105(c). 30 U.S.C. § 815(c). Section 105(c) requires proof of
motivation “because of” protected activities. As relevant, Section 105(c)(1) of
the Mine Act provides:

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 . . . [1]  because
such miner  . . . has filed or made a complaint under or related to
this Act . . . or [2] because such miner  . . . is the subject
of medical evaluations and potential transfer under a standard published
pursuant to section 101 or [3]  because such miner  . . .
has instituted or caused to be instituted any proceeding under or related to
this Act or has testified or is about to testify in any such proceeding, or
[4]  because of the exercise by such miner  … on behalf
of himself or others of any statutory right afforded by this Act .

30
U.S.C. § 815(c)(1) (emphasis added).

The Secretary asserted a section 105(c) violation in
this matter. By doing so, the Secretary accepted an obligation to prove its
claim under the statute’s requirements. [14]

The Commission’s traditional standard of proof for a
section 105(c) discrimination violation has been the Pasula-Robinette
test. S ec’y of Labor on behalf of Pasula v.
Consolidation Coal Co. , 2 FMSHRC 2786
(Oct. 1980), rev’d on other grounds , 663 F.2d 1211
(3d Cir. 1981 ); Sec’y of Labor on behalf of Robinette v. United
Castle Coal Co. , 3 FMSHRC 803 (Apr.
1981). Under that test, the complainant or Secretary establishes a prima facie
case of discrimination by proving (1) that the
miner engaged in a protected activity and (2) that the adverse action was
motivated in any part by the protected activity. The operator may raise an
affirmative defense by claiming it would have taken the same action for a
reason other than protected activity. Despite
its years as the Commission standard, it is now clear the Pasula-Robinette
test is invalid.

In 2021, the United States Court of
Appeals for the Ninth Circuit invalidated the Pasula-Robinette test,
holding: “ Section 105(c)’s unambiguous text
requires a miner asserting a discrimination claim under Section 105(c) to prove
but-for causation.” Thomas
v. CalPortland Co. , 993
F.3d 1204, 1211 (9th Cir.
2021). The CalPortland case focused squarely upon section
105(c). The Commission must now apply that standard in cases within the Ninth
Circuit. However, more compelling is that the circuit court’s holding is
correct. Indeed irrefutable. In CalPortland , the circuit court cited
numerous Supreme Court decisions. Id. at 1209-10, citing Univ. of Tex.
Sw. Med. Ctr. v. Nassar , 570 U.S. 338 (2013) ; Gross v. FBL Fin. Servs. , 557 U.S. 167 (2009). Those cases and
CalPortland compel the application of the but-for standard to section 105(c)
cases.

As the inevitable result of CalPortland , Judges now hedge their decisions by
referring to Pasula-Robinette and CalPortland . Continued citation to Pasula-Robinette will
inevitably result in parties and Commission Judges trying, arguing, and
deciding cases under two standards. In this case, the Judge added a tagline in
the decision that he would have reached the same result under the but-for
standard. Such pro forma references to but-for causation may result, as in this
case, in a minimized finding of but-for causation without meaningful
discussion. The Commission should forego whistling Pasula-Robinette in
the wind and formally adopt the proper standard. The correct issue on this
appeal is whether Continental's insufficient payment was “because” of animosity
toward the exercise of walkaround rights. In other words, we should apply the
but-for standard and decide the issue based on whether the preponderance of the
evidence shows protected activity-motivated discrimination.

However, application of Pasula-Robinette , in
this case, would not change the result because that test requires proof of
causation based upon protected activity. Here, the majority fails to apply any
causation standard without explaining why an explicit element of section 105(c)
does not apply to section 103(f) cases.

In 2016, the Commission rejected a challenge to Pasula-Robinette .
Sec’y
of Labor on behalf of Riordan v. Knox Creek Coal Corp. , 38 FMSHRC 1914, 1919-21
(Aug. 2016). However, times change, and Commission Judges now plot a course between
two tests. It is time for the Commission to recognize the inevitability of the
proper test for discrimination and adjust its test to the correct “but for”
standard.

III.

The record does not contain
substantial evidence that Otten received her regular pay “because” she acted as
a miners’ representative. Continental’s human resource manager decided the
appropriate pay “because” of Continental’s collective bargaining agreement with
Otten’s union.

A.  Relevant facts

Continental operates the Hannibal Underground
Mine in Missouri. The United Steel Workers of America represents the hourly
employees at the plant. The Union negotiated a collective bargaining agreement
(“CBA”) with Continental for union-represented employees, including Otten. As
with most union contracts, the CBA created classified employee positions and
established pay rates for each classification.

Two classifications were Laborer and
Mobile Equipment Operator. Laborers are hourly-rate employees who perform primarily general
clean-up work throughout the
plant, lawn work, labor work
involved in refractory replacement in kiln and
cooler, snow removal from roadways and sidewalks, and painting. A Laborer is expected to be capable of operating various types of mobile equipment as needed. Of course, the work of an MEO is
to exclusively operate mobile equipment.

The CBA pay rates provide slightly more
than $3.00 per hour additional pay for employees classified as MEO workers. The
CBA, however, also provides that management could require a Laborer to perform
MEO work. When a Laborer does so, the CBA requires Continental to pay the MEO
classification wage rate, stating, “[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.” J. Ex. 4, at 14. Under the
CBA, this upgraded pay depended upon the performance of MEO work. If a Laborer
performed MEO work for less than four hours, the Laborer received the higher
rate for four hours. If the employee performed MEO work for more than four
hours, the employee received MEO pay for the entire day. [15]

Otten’s default classification was
Laborer. She also was a miners’ representative. All agree that she frequently
performed MEO work and received the upgraded pay according to the CBA when she
performed such work. Continental paid her according to her classification as a
Laborer when not performing such work.

On the dates in question, Otten had or would have had
the opportunity to perform MEO work at the MEO pay rate. On those dates,
however, an MSHA inspector was present at the mine, and Otten chose to exercise
her walkaround rights with the MSHA inspector. It is undisputed that based upon
experience, Otten would have taken that opportunity for MEO work had she not
chosen to exercise the right of a miners’ representative.

Initially, Otten received pay at the rate
of an MEO for the days in question. Subsequently, a Continental Human Resources
specialist, Heather Ames, reviewed Continental’s pay records including those of
Otten and two other union-represented workers. According to Ames, she alone
decided to apply the terms of the CBA. Ames found that Otten did not perform
MEO work on certain days and, therefore, was not entitled to upgraded MEO pay
under the CBA. On the same day, Ames reversed the paid upgrade for the two
other employees because the upgrade pay provision did not apply to them. Ames
testified that she later found that she had made a mistake for certain days and
then partially reinstated the upgrades for Otten.

The evidence establishes that Ames made
these pay decisions based on the terms of the CBA. Ames testified that she, and
she alone, decided to reduce the pay and then partially upgrade the pay of Otten
and other workers. No witness or evidence impeached Ames’ testimony that she
made these decisions.

B.  The Judge’s Decision

The Judge’s decision initially recognized that Pasula-Robinette
is the Commission’s test for discrimination. He correctly
found that under that test, a miner proves discrimination “ when [she]
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.” 44 FMSHRC 121, 148 (Feb.
2022) (ALJ).

The Judge
acknowledged that “ it is true that the
Commission has applied the Pasula-Robinette framework in [s]ection
103(f) walkaround cases.” Id. at 149. Immediately
after that, however, the Judge asserted that he did not need to apply the third
factor ( adverse action motivated in any part by that protected activity)
of Pasula-Robinette to find a violation of section 103(f).

The Judge concluded, “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.” Id. [16] Incredibly, the majority now accepts the Judge’s deeply flawed
reasoning and states violations of section 105(c) need not contain any element
of expressly required causation.

Finally, after a brief
discussion of the penalty factors, the Judge imposed a penalty of $17,500.

C.  To
Prevail on a Section 105(c) accusation, the Secretary Must Prove Three Factors:

Protected
Activity, Adverse Action, and Adverse Action Because of the Protected

Activity.
The Majority Errs by Disregarding the Necessity for Finding Causation

by
Protected Activity.

The majority correctly, albeit implicitly,
decides that the Secretary did not prove the violation of section 103(f) was
“because of protected activity.” The Secretary introduced inconclusive evidence
to suggest that certain supervisory employees of Continental may have harbored
ill feelings toward Otten due to other safety activities. However, the record
clearly demonstrates that Ames, and Ames alone, decided to pay Otten Laborer
wages per the CBA.

As the Judge fleetingly acknowledged but then
abandoned, motivation is critical for finding a violation of section 105(c). Indeed,
all three elements—protected activity, adverse action, and motivation by the
protected activity—are expressly articulated in the statute and are necessary
to establish discrimination. Indeed, one might conclude that motivation is the
lynchpin of section 105(c) violations. Each day miners raise issues related to safety,
thereby engaging in protected activity. Each day operators take adverse actions
regarding miners. Section 105(c) crucially mandates that discrimination occurs
only when the protected activity motivates the adverse action.

It is in this respect that the majority departed from
the law. The majority declares by fiat that a clearly expressed requirement for
a section 105(c) violation does not apply if the case involves section 103(f). The
majority does not provide any support or explanation for arbitrarily dismissing
an explicit factor for a violation. Nowhere does the majority explain why the
express language of section 105(c) unambiguously requiring motivation does not
apply in a section 103(f) context.

Circuit court cases uniformly recognize that “because”
in section 105(c) means “because” and, therefore, a complainant must establish
a motivational nexus between the protected activity and adverse action. See
generally CalPortland Co. , 993 F.3d at 1208-1211; Harrison County
Coal Co. v. FMSHRC , 790 Fed. Appx. 210, 213 (D.C. Cir. 2019); Con-Ag,
Inc. v. Sec’y of Labor , 897 F.3d 693, 700-02 (6th Cir. 2018); Cumberland River Coal Co. v. FMSHRC , 712 F.3d 311, 318 (6th Cir. 2013); Donovan ex
rel. Chacon v. Phelps Dodge Corp. , 709 F.2d 86, 88 (D.C. Cir. 1983).

The importance of section 103(f) neither requires nor
suggests tarring Continental with a discrimination tag based upon Ames’ belief
that, per the CBA, Otten was only entitled to Laborer’s wages. The majority
finds discrimination by removing the necessary element of motivation from a
section 105(c) violation, even though the Secretary concedes it is necessary.

In disclaiming the express requirement of the Mine
Act, the majority does not cite the words of the Act, legislative history, or
any policy requisite. Without meaningful analysis, the majority would establish
that a violation of section 103(f) is a per se violation of section 105(c). In
doing so, it primarily relies on one case. Stillion v. Quarto Mining Co. ,
11 FMSHRC 523 (Apr. 1989) (ALJ), aff’d 12 FMSHRC 932 (May 1990). [17]

Quarto does
not support the majority “per se” concept. At best, the ALJ and Commission
decisions are cursory. To the extent the decisions recite facts, it is clear
the failure to pay arose from the operator’s animus to the walkaround. The
operator refused to pay a miner any money “because” he did the walkaround with
an MSHA inspector. Moreover, the Commission did not even discuss the standards
for finding a section 105(c) violation or any issue of motive or causation.

In Quarto , a miner alleged violations of
sections 103(f) and 105(c). The ALJ decision does not discuss Pasula-Robinette
or any elements of section 105(c). Having not discussed section 105(c) in his
decision, the ALJ did not discuss any requirements for finding a section 105(c)
violation. The entirety of the ALJ’s finding is: “ Respondent
violated § 103(f) of the Act by refusing to pay Complainant his regular rate of
pay for his time spent accompanying a federal mine inspector on October 6, 7,
and 8, 1987.” 11 FMSHRC at 527. The Judge did not make any finding
concerning section 105(c) or its necessary elements. Had the Judge considered
motivation, he would have found it in the case. Further, the Judge did not
impose any penalty upon the operator nor invite MSHA to do so. See Stillion
v. Quarto Mining Co. , 11 FMSHRC 875 (May 1989) (supplemental decision on
damages).

Upon review, the Commission mistakenly stated at the
outset of its decision that the Judge had found discrimination. However, the
Commission’s conclusion of law did not find a section 105(c) violation. The
Commission’s concluded “ that in the circumstances
of the present case Stillion had a right to walkaround pay under section
103(f).” 12 FMSHRC at 939. As with the ALJ’s decision, the Commission’s
decision did not discuss the essential elements of discrimination, Pasula-Robinette ,
or motive or causation, let alone dispense with motivation as an element of
section 105(c). Further, the Commission also did not impose a penalty.

Therefore, Quarto supports a section 103(f)
violation. However, Quarto does not reach a legal conclusion that a
section 105(c) violation occurred, does not discuss the requirements for a
section 105(c) violation, would have found motivation under the facts of the
case, and does not support a claim of per se violations.

The majority expressly recognizes that the Secretary
argues that a finding of discriminatory animus is a necessary element of a
claim. Slip Op. at 7. The Secretary does not contend that violations of section
103(f) are per se violations of section 105(c). The Secretary’s failure to make
such an argument is an appropriate recognition that section 105(c) requires
motivation (causation) arising from protected activity. The Secretary’s
position is correct.

IV.

The Facts Suggest Only a Small Penalty.

The Mine Act sets forth six factors in setting
penalties: (1) effect on the operator’s ability to continue in business; (2) an
appropriate reduction for demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation; (3)
the appropriateness of such penalty to the size of the business of the operator
charged; (4) the operator’s history of previous violations; (5) whether the
operator was negligent; and (6) the gravity of the violation. 30 U.S.C. §
820(i).

Factors one and two play no role in this case. The
proposed penalty would not affect the ability of the operator to continue in
business. The statute allows mitigation of penalties when an operator acts
rapidly to achieve compliance. In this case, believing in the legality of its
use of the CBA, Continental continued to make payments in the same fashion
after the Secretary filed the complaint. The failure to capitulate immediately to
the Secretary’s legal position with which an operator in good faith disagrees
is not a reason to increase the penalty. Regarding size, the Hannibal mine is a
mid-size operation, so size does not weigh heavily for or against a particular
penalty.

Despite a long operational history, Continental has no
history of a prior finding of a violation of section 103(f). The present case
is a one-off in which the operator incorrectly thought it should use the CBA. Of
course, even in discrimination cases, the Commission also considers the
operator’s history of safety violations. However, strict liability violations
of operational safety rules have little to do with a tendency of an operator to
be motivated to retaliate against a miner based on protected activity. Certainly,
the absence of even one prior violation weighs heavily in favor of a low
penalty.

It is difficult to know what to make of the ALJ’s
brief discussion of negligence. The ALJ cites a Commission decision to propose
that the negligence issue is whether the operator engaged in intentional
conduct in committing the violation rather than whether it intended to
discriminate. 44 FMSHRC at 157, citing Sec’y on behalf of Poddey v.
Tanglewood Energy, Inc ., 18 FMSHRC 1315, 1319 (Aug. 1996) (Commissioners
Marks and Riley). [18] Continental’s actions were intentional to the extent
Ames’ decision to apply the CBA was intentional. In Tanglewood Energy ,
the Commission found that, although the conduct was intentional, the actions
constituted low negligence. Id. at 1319-20. Continental, through Ames,
had an objective, albeit mistaken, belief that it should apply the CBA to
Otten’s work. Continental’s legal position was untenable. However, there is no
evidence that Continental took the position in bad faith or, in taking an
incorrect position, it failed to exercise reasonable care. Thus, substantial
evidence supports that negligence is a minor factor in the penalty
consideration.

Interestingly, Tanglewood has greater relevance
to the gravity consideration than negligence. In Tanglewood , the
Commission rejected the Secretary’s argument that every section 105(c)
violation must be presumed to have a chilling effect. Id. at 1320. As
with any violation, the gravity of section 105(c) violation must be based on the
evidence.

Objective and subjective evidence determine gravity. Id.
at 1321. The subjective element is the chilling effect upon miners that
rests upon “the testimony of the complainant or
other miners.” Id ., citing Sec’y on behalf of Johnson v. Jim Walter
Res., Inc. , 18 FMSHRC 552, 558 (Apr. 1996). From an objective
standpoint, the question is whether there is evidence that the incident
“reasonably tended to discourage miners from engaging in protected activities.”
Id .

In this case, the Secretary presented no
evidence of any subjective or objective discouragement of such activity. The
Secretary did not present any objective data or measurement showing any adverse
effect upon Continental’s miners. Otten was the only hourly miner who
testified, and her continued performance of walkaround activities demonstrates
that she was not discouraged. Thus, there is no evidence of a subjective chill
upon miners. In sum, there is no evidence that this one-time occurrence had any
subjective or objective adverse effect on Continental’s miners’ willingness to
exercise their statutory rights. As with all factors of a penalty
consideration, we must base the decision regarding gravity on evidence and not
a Judge’s desire to punish an operator. The gravity factor is low without any
subjective or objective evidence of a chilling effect.

In summary, the effect on the ability to stay in
business and mitigation through abatement are irrelevant here. Continental’s
size is moderate. The absence of any prior violation cuts in favor of a low
penalty. Ames’ actions were intentional in that she intended to do what she did
but unintentional in any sense of a knowing violation of section 105(c). Finally,
there is no subjective or objective evidence of a chilling effect. So, the
gravity is low.

V.

Conclusion.

Here, the majority’s unwarranted decision to delete a
fundamental element from section 105(c) is more than a wrong result. The
decision muddies proof of section 105(c) violations when the disparity between Pasula-Robinette
and CalPortland already troubles the water. It creates uncertainty
regarding whether there are other situations in which a majority might
substitute its own wishes over that of Congress and decide by fiat to alter the
statute’s requirements. For the first time, it creates a per se violation of
section 105(c). It fails to explain why a section 103(f) violation
automatically violates section 105(c), even though finding a section 103(f)
violation vindicates the miner’s rights.

The Commission should find a violation of section
103(f). The evidence does not show Continental’s actions were because of
protected activity. Continental did not violate section 105(c). The violation
of section 103(f) warrants no or only a minor penalty.

I concur with the violation of section 103(f) and
respectfully dissent from the finding of a violation of section 105(c) and the
assessed penalty.

/s/ William I. Althen

William I. Althen, Commissioner

Emily O. Roberts, Esq.

Senior Trial Attorney

Office of the Solicitor

U.S. Department of Labor,

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Thomas. R. Chibnall, Esq.

Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.

7700 Bonhomme Ave., Suite 650

St. Louis, MO 63105

[email protected]

R. Lance Witcher, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart,
P.C.

7700 Bonhomme Ave., Suite 650

St. Louis, MO 63105

[email protected]

Melanie Garris

Civil Penalty Compliance Division Chief

U.S. Department of Labor

Office of Assessments

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Chief Administrative Law Judge Glynn F.
Voisin

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, NW, Suite 520 N

Washington, DC 20004-1710

[email protected]

Administrative Law Judge William B. Moran

Federal Mine Safety & Health Review Commission,

1331 Pennsylvania Avenue, NW, Suite 520 N

Washington, DC 20004-1710

[email protected]

[1]
Section 105(c)(1), 30 U.S.C. § 815(c)(1), provides
that:

[n]o person shall discharge or in any manner discriminate
against . . . or cause discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, representative of miners . . . because
of the exercise by such miner, representative of miners . . . on behalf of
himself or others of any statutory right afforded by this Act.

[2]
 According to the CBA’s Wage Rate Schedule,
effective May 5, 2019, the Laborer rate was $25.05 an hour and the Mobile
Equipment Operator hourly rate was $28.21. Effective May 3, 2020, the Laborer
hourly rate was $25.68, and the Mobile Equipment Operator hourly rate was
$28.92. Jt. Stip. at 21.

[3]
Specifically, Otten participated in MSHA
inspections that took place on March 24, 2020; March 25, 2020; March 26, 2020;
March 31, 2020; April 1, 2020; April 2, 2020; 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. Jt. Stip. 30.

[4]
Continental later reinstated partial pay
upgrades for March 31 and full upgrades for April 1-2 because Otten performed
mobile equipment work during those shifts. Jt. Stip. 57, 77. Otten operated
mobile equipment after finishing her duties as a miner’s representative.

[5]
On January 29, 2021, Otten became a full-time
Mobile Equipment Operator.

[6]
The parties’ arguments addressing animus and the
Pasula-Robinette test are addressed infra in subsection B.

[7]
Our dissenting colleague claims that the
Secretary submitted only “inclusive” evidence regarding animus to support a
finding that the violation was motivated by protected activity. Slip op. at 14.
While our analysis as set forth herein does not turn on an evaluation of
Continental’s motivation, we note the record evidence described above.

[8] Also, our dissenting colleague claims the majority
has arbitrarily dismissed a statutorily required element of section 105(c) by
ignoring the operator’s motivation. Slip op. at 14-15.  However, what the
statute explicitly requires is causality . 30 U.S.C. § 815(c)(1) (no
person shall discriminate against a miner “because of” the exercise of a
statutory right). None of the cases cited by our colleague support his
proposition that the definition of “because” must inherently require a showing
of motivation. Slip op. at 14. Of course, in standard discrimination cases motivation
has traditionally played a critical role in establishing causality. However, as
discussed further below, we find that discriminatory motivation is not required
to establish causality under the conditions of this case. The record clearly
shows that this miner suffered a loss expressly prohibited by the Act because
of her exercise of an expressly protected right. A finding of
discrimination is consistent with the statutory requirements of section 105(c).

[9]
Continental also alleges that previous decisions
of Commission Administrative Law Judges support its position. To the contrary,
we conclude that the Judge’s decision in this matter is consistent with
previous decisions of our Judges. In any event, Commission
Judge’s decisions are not precedential according to Commission Procedural Rule
69(d), 29 C.F.R. § 2700.69(d).

[10]
Furthermore, the evidence demonstrates that on
at least one occasion Otten was not assigned to operate mobile equipment, but
was provided with upgraded pay because a junior Laborer was assigned to operate
mobile equipment. The CBA provides Continental management with the discretion
to grant unilateral wage increases. Vol II, Tr. 93-94.

[11]
According to the Pasula-Robinette
framework, in order to establish a prima facie case under section 105(c)
the complainant must establish that the adverse action was motivated in any
part by the complaint’s exercise of protected activity. Sec’y on behalf of
Pasula v. Consolidation Coal Co., 2  FMSHRC 2786, 2799 (Oct.
1980),  rev'd on other grounds   663 F.2d 1211 (3rd Cir. 1981) ;  Sec'y
on behalf of Robinette  v.  United Castle Coal Co. , 3
FMSHRC 803, 817-18 (Apr. 1981). An operator may defend affirmatively against a
prima facie case by proving that it was also motivated by the miner's
unprotected activity and would have taken the adverse action for the
unprotected activity alone. See Robinette , 3 FMSHRC at 817-18;  Pasula,
2   FMSHRC at 2799-800;  see also  Eastern
Assoc. Coal Corp. v. FMSHRC , 813 F.2d 639, 642-43 (4th Cir. 1987)  (applying  Pasula-Robinette  test).

The Ninth Circuit has rejected the Pasula-Robinette
test in Thomas v. CalPortland Co ., 993 F.3d 1204, 1209-10 (9th Cir.
2021). Thomas has been remanded to the Commission and remains a pending
matter on our docket. Continental’s Hannibal mine is located in the Eighth
Circuit, and thus the Ninth Circuit ruling is not binding. Nevertheless, the Judge found that the
loss of pay to Ms. Otten would not have occurred “but for” her engaging as a
miners’ representative during a walkaround inspection . We conclude
that the Judge’s findings under his alternative analysis are supported by
substantial evidence, reasonable inferences drawn from the record, and proper
consideration of relevant testimony.

[12]
We make no other finding regarding the Pasula-Robinette
test in this proceeding.

[13]
[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).

[14] The majority finds the Administrative Law Judge
(“ALJ”) grounded his decision on the basis that it was unnecessary to prove the
statutorily required elements of discrimination. The majority errs in accepting
and endorsing the Judge’s error. It is startling to read the majority describe
section 105(c) as a strict liability section to which intent does not apply. The
concept of strict liability in the Mine Act is derived from the section 110(a)
of the Act (30 U.S.C. § 820(a)) which authorizes the imposition of civil
penalties for violations of mandatory health or safety standards. See Allied
Prod. Co. v. FMSHRC , 666 F.2d 890, 893 (5th Cir. 1982). I disagree with the
majority’s attempt to expand strict liability into section 105(c) proceedings,
beyond what Congress clearly intended. Moreover, if strict liability is to be
incorporated into section 105(c) proceedings, the majority’s decision must be
read to only do so in the limited context of a section 103(f) contest. To do
otherwise would present a major change in long-standing Commission precedent
and fly directly in the face of the plain letter of the law.

[15] Article VI, Section 9 of the CBA provides:

When 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. If the employee
exceeds four hours of work at
the higher classification, then he/she shall receive
the higher rate of pay for the
entire day. When work of a lower paid classification is temporarily required of any employee,
he/she shall receive
his/her regular straight time hourly
rate of pay .

J Ex. 4, at 14; Jt. Stip. 23.

[16] It may be that the Judge felt and Commission
mistakenly feels a need to find a violation of section 105(c) for Otten to
prevail on the section 103(f) claim or that prevailing on the section 103(f)
automatically required a finding of discrimination. That would be incorrect. MSHA’s
filing of the discrimination claim was sufficient to put both the right to pay
and the occurrence of discrimination before the Commission. A supported finding
of a failure to meet the requirements of section 103(f) may then be made
separately even when the Secretary does not prove discrimination under section
105(c).

[17] The majority mischaracterizes the facts and decision
in Sec’y on behalf of Truex v. Consolidation Coal C o., 8 FMSHRC 1293
(Sept. 1986). The Commission in Truex, expressly included “motivation”
as part of the proof for a section 105(c) violation. Further, it explained that
an operator could defend a 105(c) case by showing the action was not motivated
by protected activity. Id . at 1297. The facts were that the safety
supervisor knew Truex was a miner’s representative and that he intended to
attend a meeting with an MSHA inspector who would be arriving momentarily. Nonetheless,
the safety supervisor ordered Truex to report to work at a location that would
have prevented Truex from accompanying the inspector. Truex was forced to take
unpaid leave in the form of “union business” to attend the meeting and was then
barred from working for the rest of his shift. The operator claimed that,
pursuant to the union contract, a miner could not be paid for a partial shift
if he had claimed to be on “union business.” The Commission found that the
contract was irrelevant to the defense of the section 105(c) allegations, not
because a union contract could not be used to demonstrate the operator’s
motivation, but because the discrimination happened before the operator invoked
the contractual terms and was thus irrelevant. Id . at 1299. There is no
resemblance to this case in which the operator did not take any action to
prevent the miner’s exercise of walkaround rights and paid the miner for the
time spent on the walkaround.

[18]
In determining
negligence, the Commission considers whether an operator has met its duty of
care. The Commission considers the actions of a reasonably prudent person
familiar with the mining industry, the relevant facts, and the purpose of the regulation . Leeco,
Inc . , 38 FMSHRC 1634, 1637 (July 2016). In short, did the operator act with the prudence a reasonable operator would
have exercised under the same or similar circumstances.