Michael Wilson v. Jarrod Farris, David Taylor, & Ross Glazer

Plain-English summary

Michael Wilson, a nonemployee miners' representative, alleged that three ram-car drivers asked an MSHA inspector how they could remove him as a representative and keep him off mine property. He sought training and cease-and-desist relief against the miners individually, not their employer. Judge William B. Moran accepted Wilson's factual allegations as true and recognized that he was engaged in protected activity, but found no adverse action because the miners only asked about a process and Wilson was not removed, threatened, or otherwise harmed. The Judge also declined discovery because it could not change the complaint's core facts and would impose unnecessary expense. Summary decision was granted to the respondents, and the discrimination complaint was dismissed.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(3)
• Outcome: The respondents received summary decision, and Wilson's complaint was dismissed.
• Key point: Protected status alone does not establish Mine Act discrimination or interference when the challenged inquiry causes no adverse action or coercive harm.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9933 / FAX: 202-434-9949

February 3, 2016

MICHAEL WILSON,

Complainant,

v.

JARROD FARRIS, DAVID
TAYLOR,

& ROSS GLAZER,

Respondents.

DISCRIMINATION PROCEEDING

Docket No. KENT 2015-672-D

MSHA Case No.
MADI-CD-2015-13

Mine: Parkway Mine

Mine ID: 15-19358

ORDER GRANTING
RESPONDENTS’ MOTION FOR SUMMARY DECISION

Before:                        Judge Moran

Summary of Order

In
this Section 105(c)(3) action brought under the Mine Safety and Health Act, 30
U.S.C. § 801 et seq. (2006) (“Mine Act”), the Respondents have filed a
Motion for Summary Decision regarding Michael Wilson’s complaint of
discrimination. Although discussed more fully infra, Wilson’s Complaint
can be fairly described in a nutshell.

On May 12, 2015, Wilson, a non-employee
representative of miners at Armstrong Coal’s Parkway Mine, while traveling
underground with an MSHA inspector, asserts that three miners, whom he later
determined to be employed as ram car drivers at the mine, approached an MSHA
inspector and asked the inspector how they could get rid of him as a miners’
representative and keep him off of mine property. Wilson contends that, by
asking the MSHA inspector how to remove him as a miners’ rep, the miners violated
section 105(c) of the Mine Act. For this, Wilson seeks to have those miners
take training in “miners’ rights,” including the rights of representatives of
miners, and to be ordered to cease and desist from further interference with
his rights as a miners’ representative. Wilson stated that his complaint is
against those three miners, adding expressly that it is not made against
Armstrong Coal.

Because Wilson suffered no adverse action,
an essential and required element of a section 105(c) complaint, his complaint,
fully accepted for the purposes of this Order as factually accurate, fails to
make out a prima facie case and therefore the Motion for Summary Decision must
be granted and Wilson’s Complaint must be dismissed.

Wilson’s Complaint of
Discrimination

To avoid any suspense or concerns that the
preceding summary of Complainant Wilson’s claim has been misconstrued, the full
text of his June 18, 2015, complaint provides:

I
am a non-employee ‘representative of miners’ at Armstrong Coal Company’s
Parkway underground mine. I worked for Armstrong at the Parkway mine from
August 2009 until May 6, 2015. Since my employment with Armstrong Coal ended, I
have continued to act as a ‘representative of miners’ at the mine.

On
or about May 12, 2015, I traveled underground with a MSHA inspector. That same
day, three ram car drivers from the unit approached MSHA Inspector Jeremy
Walker and asked Walker how they could get rid of me as a miners’ rep and keep
me off of mine property.

These
actions constitute interference with my rights as a ‘representative of miners’
under the Mine Act, and violate section105(c) of the Act.

I
will provide MSHA with the names of the ram car drivers on the unit and ask
that the MSHA Special Investigator interview each of them. When it is
determined which miners asked the MSHA inspector how to remove me as a miners’
rep, I will amend my discrimination complaint to include their names.

I
want each of these miners to be fined for violating section 105(c) of the Mine
Act, and I want each of them to be required to take training – taught by MSHA
personnel – in miners’ rights under the Act, including the rights of
‘representatives of miners’. I also want each of the miners to be ordered to
cease and desist from interfering with my rights as a ‘representative of
miners’.

I
am not filing this complaint against Armstrong Coal. I am filing it against the
three ram car drivers individually.

Compl.
of Discrimination Ex. A, at 2.

Respondents’
Contentions in Support of Its Motion for Summary Decision

Respondents
first contend that, in the context of discrimination claims, there is a
significant distinction between words and actions, and that the words ascribed
to the Respondents “cannot serve as the underpinnings of a claim of
discrimination or interference.” Resp’ts’ Mem. Supp. Summ. Decision 5. Thus,
Respondents argue that the “words,” that is to say, the “speech,” as “alleged
in the complaint cannot constitute action as the term adverse action is used in
§ 105(c).” Id. at 7. That is the case because the exercise of speech in
this instance was “‘communication’ and not ‘action’ in the § 105(c) context.” Id.

Beyond that, Complainant cannot show that
any adverse action occurred against him from those words. In fact, Respondents
note that Wilson did not even plead that there was any adverse action against
him.[1] Id.
As Respondents point out,

Complainant
has totally failed to identify any adverse action that has befallen him as a
result of that question. . . . Mr. Wilson does not claim that he was laid off,
terminated, sanctioned, reassigned, demoted, removed from the mine, hampered in
his movements throughout the mine, physically or economically threatened, or
otherwise impacted in any way by the alleged question. He claims no lost wages.

Id.
at 6.   

Respondents urge that “even if the speech at
issue in the instant matter could be deemed ‘action’ under the law, the
legitimate and substantial reasons for Respondents’ alleged question to an MSHA
representative far outweigh any harm[2]
that Mr. Wilson perceives.” Id. at 7.

The Constitutional
Dimension

Respondents
note that restrictions on free speech have been consistently circumscribed as
limited to the categories of “obscenity, defamation, fraud, incitement, and
speech integral to criminal conduct,” with the inverse being that the
“Constitution demands that content-based restrictions on speech be presumed
invalid.” Id. at 7-8 (quoting United States v. Stevens, 559 U.S.
460, 468 (2010); Ashcroft v. ACLU, 542 U.S. 656, 660 (2004). Respondents’
central point is that “[w]hether the alleged question at issue in the case at
bar be deemed an assertion (i.e., overt speech) or an attempt to receive
information from MSHA . . . , the United States Supreme Court is steadfast –
that question may not be regulated.” Id. at 8. In this instance, the
speech attempted to be silenced is the right of a miner to “question . . . an
MSHA inspector about his rights under the Mine Act” and, as that is not within
the limited categories of speech which can be restricted, such speech “must
likewise be protected.” Id. at 8.

Respondents
also cite to UMWA, Local Union 9800 v. Secretary of Labor, MSHA or Thomas
Dupree, 3 FMSHRC 958 (Apr. 1981) (ALJ) (“Dupree ”). Mem. Supp. 9-10. Involved there was a section
105(c) complaint alleging “that the Mine Safety and Health Administration
(MSHA) or Thomas Dupree violated [that section] of the Mine Act by threatening
a lawsuit against [the local UMWA union] in retaliation for the local notifying
MSHA of alleged irregularities in inspections at Peabody Coal Company’s
Riverview Mine.”[3]
Id. at 958.

As pertinent to this case, the judge, having
found that Dupree, an MSHA inspector, was not speaking on behalf of MSHA when
he threatened a lawsuit, then examined Dupree’s remarks to determine if they
constituted a violation of section 105(c), and concluded that those remarks did
not constitute interference with the exercise of the statutory rights of any
miner, representative of miners.

Of significance to this proceeding, the
judge also spoke of First Amendment implications, holding that “[g]rave
questions involving the [F]irst [A]mendment protection of the right of free
speech would be presented if [he were to] conclude[] that the Mine Safety Act
authorized the Commission to punish . . . speech of the kind shown in this
record.” Id. at 962. The judge noted, “It is firmly established that a
significant impairment of First Amendment rights must survive exacting scrutiny.”
Id. (quoting Elrod v. Burns, 427 U.S. 347, 362 (1975)).

As with this case, the complainant in Dupree
sought disciplinary action for Dupree’s speech, which the judge characterized
as communication, not action. Dupree’s speech, he determined, “was not
physically or economically coercive, nor did it threaten such coercion,” and as
such it was “‘communication’ and not ‘action’ and [therefore] entitled to
rigorous [F]irst [A]mendment protection.” Id. at 962-63.[4] Accordingly, in
dismissing the case, the judge rejected construing “the Mine Safety Act in such
a way that it would direct punishing the speech found herein to have taken
place, even if possible under norms of statutory construction, [as it] would
bring it in conflict with a most basic constitutional right.” Id. at
963.

Respondents contend that “[m]aking pure
speech such as that alleged by Complainant Wilson actionable under the Mine Act
would undermine the very purpose of the Act, itself.” Mem. Supp. 10. Pointing
to section 2(a) of the Mine Act, which identifies that “the first priority and
concern of all in the coal or other mining industry must be the health and
safety of its most precious resource – the miner,” Respondents assert that
Wilson’s claim

runs
counter to this first priority of the Mine Act to suggest that a miner working
in a dangerous, intensively regulated workplace could somehow be prohibited
from asking an MSHA inspector – a lawful representative of the United States
Department of Labor and a regulator of the workplace – about his rights in and
affecting that workplace.

Id.

Making matters worse, the effect of
attempting to silence Respondents’ speech is the adverse impact it will have on
all miners because any

miner
who [becomes] aware of the instant suit [will] think[] twice about speaking to
MSHA about workplace concerns. If asking a simple question about one’s rights
under the Mine Act is found to be enough to put a hardworking miner through the
embarrassment, anxiety, expense, and risk of a Federal Mine Safety and Health
Review Commission suit, then miners nationwide would be fools to ever speak up
to MSHA.  

Id.

Thus,
Respondents contend that miners who have developed concerns about a miners’
representative at their mine will be intimidated from voicing those concerns. Such
a chilling effect, Respondents maintain, runs counter to “the very purpose of
the Mine Act.” Id. at 11.

Last,
citing provisions such as section 103(g), the miner informant/witness secrecy
provisions of 29 C.F.R. §§ 2700.61 and 2700.62, and section 105(c) itself, Respondents
assert that the “Mine Act not only contemplates, not only permits, but
encourages miners like Respondents to communicate with MSHA representatives,
particularly inspectors.”[5]
Mem. Supp. 11-12. Thus, Respondents here “exercised their protected rights
under the Mine Act to communicate with an MSHA representative.” Id. at
12.

Complainant’s Response

The
Complainant begins by repeating his objection to the Court’s January 12, 2016,
Order denying its motion for leave to take discovery:

Because
discovery has not been allowed in this case, the Complainant does not have
access to any statements taken by MSHA of the Respondents. Complainant is also
not aware if a statement of the MSHA inspector in this case was taken or if a
memorandum of interview was prepared. Without any discovery, Wilson only has
access to his own statement in this case and to the statement of Brandon
Shemwell, and thus, cannot fully and properly respond to Respondents’ instant
motion.

Compl’t’s
Resp. Opp’n Mot. Summ. Decision 2 (“Response”). As this issue has been decided,
the Court proceeds to Complainant’s other contentions.

Protected
Activity

Complainant alleges that he was engaged in
protected activity at the time of the event in issue. The Court agrees that Wilson,
simply by being a miners’ representative and acting as such at the time of the
miners’ statements, was engaged in protected activity.[6]

Adverse
Action

Complainant
contends that:

Respondents
were attempting to have Wilson removed from the mine property and as a
representative of miners in this case. Although the Respondents’ attempt to
have Wilson removed as a representative of miners and from the mine property
was not successful, it nonetheless could be found to have tended to interfere
with Wilson’s rights as a miners’ representative. The report of the Senate
Committee provides that ‘[i]t is the Committee’s intention to protect miners
against not only the common forms of discrimination, such as discharge,
suspension, demotion …, but also against the more subtle forms of
interference, such as promises of benefits or threats of reprisal.”
S. Rep. No. 95-181 at 36, reprinted in Leg. Hist. at 624 (emphasis added).

Resp.
7.  

These
contentions mischaracterize what transpired. Respondents were not literally attempting
to have Wilson removed. Rather, they were inquiring about the process to
achieve that end. This is an important distinction. Complainant also glides
over the fact that Wilson was not removed as the miners’ representative. While
Complainant alludes to the more subtle forms of interference,
this ignores that the examples he cites — discharge, suspension, or demotion —
did not occur, and no analogous subtle form of interference form is
identified.

Complainant then posits that “[i]f the statutory
rights of a representative of miners’ are to be construed expansively under the
Mine Act, then it follows that an action that interferes with a protected
safety right is prohibited, whether the attempted action is successful or not.”
Resp. 8.

While the Court agrees that the statutory
rights of a miners’ representative are to be construed expansively, those
rights are not limitless. Further, while it follows that an action that
interferes with a protected safety right is prohibited, there was no interfering
action here — the Respondents only inquired how they could get rid of
Wilson as a miners’ representative and keep him off of mine property.

Complainant
next argues that in the context of Respondents’ conversation with the MSHA
inspector, “not all speech is accorded blanket First Amend[]ment protection
[and that] [t]he Commission has repeatedly held that a person’s speech can
unlawfully interfere with a miner’s or representative of miner’s protected
rights under the Mine Act,” citing, among other cases, Moses v. Whitley
Development Corp., 4 FMSHRC 1475 (Aug. 1982). Resp. at 8.  

To
be generous, Moses v. Whitley is of no value to the analysis of this
case. In that case, the Commission addressed “whether an operator violates
section 105(c)(1) by interfering with a miner’s exercise of a protected right
through coercive interrogation and harassment, and whether an operator violates
that section by discharging a miner on the suspicion or belief that he has
exercised a protected right.” Moses, 4 FMSHRC at 1475. No coercive
interrogation, harassment, or firing occurred here, nor could the inquiry by
Respondents “logically result in a fear of reprisal [or] a reluctance to
exercise the right in the future.” Id. at 1479. Thus, the facts in Moses
v. Whitley simply are not translatable, nor otherwise at all instructive,
to the matter at hand.

Complainant
then addresses Respondents’ First Amendment arguments, pointing to Pendley
v. Highland Mining Co., 37 FMSHRC 301 (Feb. 2015) (ALJ),[7] where an “Administrative
Law Judge found that an hourly employee’s comments to a non-employee
representative of miners constituted unlawful interference under the Mine Act.”
Resp. 9. As with Moses v. Whitley, Pendley is not at all
analogous. In Pendley, the judge found that the miners’ representative
“faced interference with his walk-around rights, his right to examine books,
and his right to make safety complaints.” 37 FMSHRC at 311. In contrast
to the right to make an inquiry, as in this case, in Pendley the miners’
representative had his walk-around rights repeatedly interfered with by an
individual who conducted himself in an intimidating manner. That individual had
a multi-year feud with the miners’ representative. Id. at 312.

Complainant creates a straw man with his
mischaracterization that the “Respondents’ ‘question’ wasn’t just about a
theoretical right of the miners; it was specifically about how to interfere
with Wilson’s rights under the Mine Act by having him removed as a miners’ rep
and removed from mine property.” Resp. 8 n.4. In short, Complainant’s position
is that no questions at all may ever be asked about the process for
removal of a miners’ representative.  As discussed further, below,
Complainant’s contention would place miners’ representatives in an exalted,
inviolable position.[8]

Complainant also points to Secretary of
Labor on behalf of Mark Gray v. North Star Mining, Inc., 27 FMSHRC 1 (Jan.
2005), and the Commission’s comment that “[w]hether an operator’s question or
comments concerning a miner’s exercise of a protected right constitute coercive
interrogation or harassment proscribed by the Mine Act ‘must be determined by
what is said and done, and by the circumstances surrounding the words and
actions.’” Resp. 11 (quoting Gray, 27 FMSHRC at 8).

Borrowing dicta from Gray is not
useful. Gray involved a section 105(c)(2) action and whether Gray was
threatened by a supervisor and constructively discharged. The events also
occurred in the context of federal grand jury investigation. As it relates to
the Commission’s analysis, its focus involved “[w]hether an operator’s question
or comments concerning a miner’s exercise of a protected right constitute
coercive interrogation or harassment proscribed by the Mine Act [with the
Commission concluding that the question] must be determined by what is said and
done, and by the circumstances surrounding the words and actions.” Gray,
27 FMSHRC at 8. While Complainant asserts that it is necessary to have
discovery concerning, among other lines of inquiry, the circumstances under
which the miners made their inquiry, the four corners of Wilson’s
discrimination report demonstrate that is completely unnecessary.[9] Resp. 11-12. Wilson’s
discrimination report provides the information necessary to answer the
Commission’s question.

Discussion

As pertinent here, the Commission’s
Procedural Rules, at 29 C.F.R. §2700.67(b), provides:

A
motion for summary decision shall be granted only if the entire record,
including the pleadings, depositions, answers to interrogatories, admissions,
and affidavits, shows:

(1)
That there is no genuine issue as to any material fact; and

(2)
That the moving party is entitled to summary decision as a matter of law.

29
C.F.R. § 2700.67(b).

As the Court noted in its recent Order Denying
Complainant’s Motion for Leave to Take Discovery, Complainant has asserted that
“without taking depositions of the three respondents and the inspectors, th[e]
case [would not be] ripe for summary decision because it will rest on speculative
facts.” Wilson v. Farris, No. KENT 2015-672-D, 2016 WL 197491, at *1
(FMSHRC Jan. 12, 2016). Respondents’ opposition countered that Rule 67(b)
merely provides examples of what may “typically be in a record ripe for summary
decision, but those are not required if . . . the Court cognizes legal grounds
from which to independently resolve the matter.” Resp. to Mot. for Leave to
Take Discovery 1. Respondents added that discovery may not be used as an
“ever-expansive fishing expedition” and, a related concern, they assert that
allowing depositions under these circumstances would put them to inordinate
expense. Id. at 2. Finally, Respondents made the point that “a
complainant who initiates his own proceeding before the Commission is confined
to the four corners of his complaint as it was presented to and investigated by
MSHA.” Id. (citing Hatfield v. Colquest Energy, Inc., 13 FMSHRC
544, 546 (Apr. 1991)).

In its order
denying discovery, the Court stated:

Although [Rule 67(b)] speaks to summary
decision, it does not grant to parties an unequivocal right to take discovery
prior to the Court ruling on a motion for summary decision. Instead, the ruling
on discovery is connected to the nature of the complaint. In section 105(c)(3)
discrimination complaints in particular, per the Commission’s decision in Hatfield,
such matters are confined to the miner’s complaint to MSHA.

Id. The Court concluded
that “where such discovery will not alter the core facts nor materially change
the basis of the discrimination claim, [it] would not only be an undue expense
on the party burdened by it, but also a waste of time, [and under such circumstances]
it should be denied.” Id. at 3.

In ruling upon Respondents’ Motion for Summary
Decision, the Court works from the proposition that each of Wilson’s
allegations in his complaint is taken to be true. Thus, the Court is left “only with the question of whether, as a matter
of law, Complainant has alleged a cognizable claim of discrimination under
section 105(c) of the Mine Act.” Id. at 4.

The analysis of any section 105(c)(3)
complaint of discrimination must begin by taking into account both the
Commission’s long-established grounds for establishing a prima facie
case in such matters, per its decisions in Pasula
and Robinette,[10] and
also by the measure of what issues may be considered in evaluating such
complaints, per the Commission’s decision in Hatfield.[11]

Given that this is a section 105(c)(3)
matter, it makes sense to begin with the complaint itself and apply Hatfield
before applying Pasula and Robinette. The full text of the
complaint has already been reproduced, above. To refresh the reader’s
recollection, reduced to its core, Complainant, a non-employee representative
of miners at Armstrong Coal’s Parkway Mine, has asserted that while he was
traveling underground with an MSHA inspector, three miners, later determined to
be employed as ram car drivers at the mine, approached an MSHA inspector and
asked the inspector how they could get rid of him as a miners’ representative
and keep him off of mine property. Wilson contends that, by the words of those
miners, asking the MSHA inspector how to remove him as a miners’ rep, they
violated section 105(c) of the Mine Act.

In Hatfield, which also involved a
section 105(c)(3) complaint of discrimination, the Commission clearly set the
bounds for such actions:

The
statutory scheme devised by Congress for addressing a miner’s complaint of
discrimination provides, pursuant to section 105(c)(2) of the Mine Act, that
upon receipt of such a complaint the Secretary “shall cause such investigation
to be made as he deems appropriate,” and that “[i]f upon such investigation,
the Secretary determines that the provisions of this subsection have been
violated, he shall immediately file a complaint with the Commission. . . . ” 30
U.S.C. § 815(c)(2). Section 105(c)(3) of the Mine Act provides that, if the
Secretary determines that no discriminatory violation has occurred, “the
complainant shall have the right, within 30 days of notice of the Secretary’s
determination, to file an action in his own behalf before the Commission,
charging discrimination or interference in violation of [section 105(c)(1)].” 30
U.S.C. § 815(c)(3). Thus, the statutory scheme provides to miners a full
administrative investigation and evaluation of an allegation of discrimination,
as well as the right to private action in the event that the administrative
evaluation results in a determination that no discrimination has occurred. See
Gilbert v. Sandy Fork Mining Co., Inc.,
9 FMSHRC 1327 (August 1987), rev’d on other grounds, Gilbert v.
FMSHRC, 866 F.2d 1433 (D.C. Cir. 1989). 

The
written discrimination complaint filed by Hatfield with MSHA is general in
nature and alleges no specific protected activities. The present record
contains no indication that the matters alleged in the amended complaint were
part of the case reported to and investigated by MSHA. Nor is there evidence in
the record that the Secretary’s determination that the Act had not been
violated was based on matters contained in the amended complaint. If the
Secretary’s determination was based upon an investigation that did not include
consideration of the matters contained in the amended complaint, the statutory
prerequisites for a complaint pursuant to § 105(c)(3) have not been met. 

Accordingly,
we vacate the judge’s Order of December 18, 1990, and remand this matter to the
judge for a determination of this issue. The complainant should be afforded an
opportunity to demonstrate that the protected activities alleged in the amended
complaint were part of the matter that was investigated by the Secretary in
connection with Hatfield’s initial discrimination complaint to MSHA.

Hatfield,
13 FMSHRC at 545-46.

While that decision was clear enough, Secretary
of Labor on behalf of Gray v. North Fork Coal Corp., 33 FMSHRC 27 (Jan.
2011), left no doubt about attempts to reach beyond the claims of
discrimination made when a complaint is first filed before MSHA, as the
Commission there observed that:

[t]he
reference to “complainant” is an acknowledgment that the proceeding under
section 105(c)(3) involves the same alleged discriminatory conduct that
prompted the miner’s complaint to the Secretary under section 105(c)(2).
The statute does not direct the miner to file a complaint under section
105(c)(3) because the miner has already filed a complaint.

Gray,
33 FMSHRC at 37 (emphasis added).            

Armed
with the understanding of the clear limitations for consideration in a section
105(c)(3) action, the Court moves to the application of the criteria applied to
establish a prima facie case in all discrimination complaints.

A miner
alleging discrimination under the Mine Act establishes a prima
facie case of prohibited discrimination by presenting evidence sufficient to support a
conclusion that he engaged in protected activity and suffered adverse action
motivated in any part by that activity. Pasula, 2 FMSHRC at 2797-800; Robinette,
3 FMSHRC at 817-18; Driessen v. Nev. Goldfields, Inc., 20 FMSHRC
324, 328 (Apr. 1998). The mine operator may rebut
the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by the protected
activity. Pasula, 2 FMSHRC at 2799-800. If the mine operator cannot
rebut the prima facie case in this manner, it nevertheless may
defend 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. Pasula at 2800; Robinette, 3 FMSHRC at
817-18; see also E. Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir.
1987).

Thus, whether in the context of establishing
a prima facie case, as well as in rebutting such a case, showing adverse
action is a sine qua non for all discrimination claims. As explained
above, Complainant has not established any adverse action.

Drastically, Complainant’s stance is that not
even an inquiry about how such a process could be initiated would be barred
and sanctions must be applied.[12]
The Court would also note that virtually every elected and appointed position
in the United States, at the local, state, and federal levels, allows for the
removal of anyone occupying such a position. If Complainant had his way, his
position, as a miners’ representative, would be unique, exempt even from
inquiry.

As noted, if the Court were to allow
discovery, in addition to being unwarranted, it would effectively allow
Complainant to conduct his own private special investigation. Having failed to
establish any adverse action, it would be entirely inappropriate to saddle
Respondents with the expense and time attendant to such discovery in
Complainant’s attempt to see if he can manufacture a claim, when the four
corners of Wilson’s complaint utterly fall short.

Accordingly, Respondents’ Motion for Summary
Decision is hereby GRANTED and Wilson’s section 105(c)(3) Complaint is
DISMISSED.

SO ORDERED.

/s/ William B.
Moran

William
B. Moran

Administrative
Law Judge

Distribution:

Brandon W. Marshall, Esq.,
Patrick F. Nash, Esq., Nash Marshall, PLLC, 129 West Short Street, Lexington,
KY 40507

Wes Addington, Esq., Appalachian
Citizens Law Center, 317 Main Street, Whitesburg, KY 41858

Tony Oppegard, Esq., P.O. Box
22446, Lexington, KY 40522

[1] Respondents assert that the
Complainant has failed to plead an essential element of his discrimination and
interference claims — namely protected activity. Citing Wilson’s Complaint at page
3, paragraph 11, they contend that “[a] close reading of Mr. Wilson’s complaint
shows that, at best, he claims he was “underground with a [sic] MSHA
inspector.”  Mem. Supp. 6. From this, Respondents assert that Wilson never: “(a)
articulates that he was engaged in protected activity at the time of the
alleged utterance; (b) identifies what sort of activity he was then conducting;
or (c) proffers a causal link or motivation between the alleged utterance, the
protected activity, and any purported interference or discrimination.” Id. The
Court rejects this argument. Wilson was engaged in protected activity per se
by functioning as a miners’ representative on the day in question.

[2] In the Court’s view,
Respondents also correctly point out, Wilson has not identified any articulated
harm visited upon him from the question posed by the three miners to the MSHA
inspector, and they take special note that his complaint fails to plead or
identify any such harm. Mem. Supp. 7.

[3] As in this case, with
this Court’s finding that Wilson was engaged in protected activity since he was
acting as a miners’ representative at the time the miners inquired how they
could get rid of Wilson as a miners’ representative, the judge in Dupree
similarly found that the union’s notifying activities “were related to safety
in the mine and therefore were protected under the Act.” Dupree, 3
FMSHRC at 961.

[4] The judge also cited Thomas
I. Emerson, The System of Freedom of Expression, 423-25 (1970), and
quoted from Laurence H. Tribe, American Constitutional Law 582 (1978):

[G]overnment
regulation *** aimed at the [communication] *** is unconstitutional unless
government shows that the message being suppressed poses a “clear and present
danger” constitutes defamatory falsehood, or otherwise falls on the unprotected
side of one of the lines the court has drawn to distinguish those expressive
acts privileged by the [F]irst [A]mendment from those open to government
regulation with only minimal due process scrutiny.

Dupree, 3 FMSHRC at 963 (first line alterations
in original).

[5] Respondents, observing
that “[t]he Mine Act sets forth the circumstances under which a miner may be
designated as a representative of miners with the assent of at least two of
his/her miner peers,” argue that “just as it provides for the designation of
representatives of miners, the Mine Act also recognizes that there are
circumstances under which they may be removed.” Mem. Supp. at 11 (citing 30
C.F.R. § 40.1-.5).

On or about
February 27, 2014, Complainant Michael Wilson ostensibly employed those
provisions to have at least two of his fellow miners designate him as a
representative of miners. But just as it provides for the designation of
representatives of miners, the Mine Act also recognizes that there are
circumstances under which they may be removed. 30 C.F.R. 40.5. Respondents’
alleged query about how they might go about exercising their rights to remove a
representative of miners was no more a moment of discrimination and
interference than were the conversations Complainant Wilson doubtlessly had
with the miners who designated him as a representative or the communications he
was required to have with MSHA administrators and mine operators to formalize
his designation as a representative of miners. See, e.g., 30 C.F.R. 40.2
and 40.3 (setting out various notifications a representative of miners must
give to MSHA and operators upon designation). Whether they involve installing
or removing a representative of miners, all such communications are simply the
lawful operational outgrowths of the Mine Act. As such, they can never be
actionable.

Mem. Supp. at 11. The Court would observe that, while
it is easy to note now, in hindsight, at the time Part 40 was promulgated, no
one apparently had the foresight to provide any procedure for those who wished
to challenge the appropriateness of a miners’ representative continuing to
serve in that role. In the Court’s view, this was a significant omission.

[6] The Court was imprecise
in its December 17, 2015, email response, cited by Complainant, when it
remarked that “even assuming arguendo that everything in Wilson’s Summary of
Discriminatory Action is true, it cannot constitute protected activity, for the
purposes of a discrimination claim, under the Mine Act.” Response at 3. As this
Order, the only order addressing the motion for summary decision, makes clear,
Wilson was engaged in protected activity. It is the adverse action element that
the Court finds wanting.

[7] It goes without saying
that decisions by administrative law judges are not precedential. See Tilden
Mining Co., 36 FMSHRC 1965 (Aug. 2014);
Campbell Cty. Highway Dept., 36 FMSHRC 2579 (Sept. 2014) (ALJ); 29 C.F.R. § 2700.69(d).

[8] At least the Complainant
makes his position clear. He cites to the ALJ’s decision in Pendley in
which the respondent “demanded the removal of Pendley as a miners’
representative, which is a remedy beyond MSHA’s authority.” Resp. 9 n.5 (quoting
Pendley, 37 FMSHRC at 314) (emphasis added). Thus, Complainant asserts that
“Respondents were likewise seeking an action for which there is no authority” —
that is to say, according to Complainant, a miners’ representative occupies an
unassailable position and even asking questions about it constitutes
discrimination.

[9] From Respondents’ very
basic and legitimate inquiry about their own rights vis-à-vis those who act as
miners’ representatives, the fishing expedition would be on, as Complainant
would delve into matters such as if the Respondents knew

anything about
what Wilson did as a miners’ rep or if they had seen him acting as a miners’
rep. Wilson would also inquire if any of the Respondents had any concrete
reason – other than being sympathetic towards Armstrong Coal – as to why they
wanted him removed as a miners’ rep and removed from the mine property. Wilson
would also want to know whether Respondents first talked to any members of
management at Armstrong Coal about having Wilson removed as a miners’ rep
and/or removed from the mine property.

Resp. 11-12. Effectively, if permitted, Complainant
would be engaging in his own private sector investigation under the guise of
discovery.

[10] Sec’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).

[11] Complainant contends
that the Court’s statement that Wilson is limited to the grounds he brought
before MSHA when he made his complaint is “baffling,” asserting that it “is
totally immaterial to this case, particularly in light of the fact that the
Court and Wilson have no idea at this point what any witness (other than Wilson
and Brandon Shemwell) told MSHA during its investigation.” Resp. 14. As noted,
the Court has already determined that Wilson, by virtue of his presence at the
mine as a miners’ representative, was engaged in protected activity. However,
the Court does not buy into the claim that there was any adverse action flowing
from the miners’ entirely legitimate inquiry.

[12] The complaint lodged
against the three miners makes one thinks of George Orwell’s novel 1984,
with the ram car drivers here guilty of a “thoughtcrime” and with the
remedy sought here akin to the “re-education” room in the book’s “Ministry of
Love.”