Secretary of Labor on behalf of Mindy S. Pepin v. Empire Iron Mining Partnership

Read the official release (fmshrc.gov)

Plain-English summary

Mindy Pepin made an anonymous MSHA safety complaint after questioning whether her mine improperly cleared a lightning alert. Her supervisor later accused her of using safety complaints to bottleneck production, identified her as a ringleader, and said management was watching her. Judge David F. Barbour held that the statements and delivery of MSHA's negative findings tended to chill protected rights and were motivated by Pepin's complaint, with no legitimate justification outweighing the harm. He ordered Empire Iron to cease and desist, post a notice of miners' independent and confidential complaint rights for one year, and pay $8,000. He denied emotional-distress damages and declined to require management to read the notice aloud.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 813(g)(1), 815(c)(1), 820(a)(1), and 820(i)
• Outcome: Unlawful interference was found; cease-and-desist and one-year notice-posting relief were ordered; an $8,000 penalty was assessed.
• Key point: Supervisor statements that implicitly threaten reprisal for an anonymous MSHA complaint can unlawfully interfere with protected rights even if the miner is not actually deterred.

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:
202-434-9950 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA),

on
behalf of MINDY S. PEPIN,

Complainant,

v.

EMPIRE
IRON MINING PARTNERSHIP,

Respondent.

DISCRIMINATION
PROCEEDING:

Docket
No. LAKE 2015-386-DM

MSHA Case No. NC-MD 15-02

Mine: Empire Mine

Mine
ID: 20-01012

DECISION

Appearances:               Suzanne
F. Dunne, Esq., U.S. Department of Labor, Office of the Solicitor, Chicago,
Illinois, on behalf of Complainant

R. Henry Moore,
Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, on behalf of Respondent

Before:                        Judge
Barbour

This
case is before me upon a complaint filed by the Secretary of Labor (“the
Secretary”) on behalf of Mindy Pepin pursuant to the interference provision of
Section 105(c) of the Federal Mine Safety and Health Act of 1977 (“Mine Act” or
“the Act”), 30 U.S.C. § 815(c),
and on an amended complaint seeking the assessment of a civil penalty filed by
the Secretary against Empire Iron Mining Partnership (“Empire Iron”) pursuant to
Sections 105 and 110 of the Act, 30 U.S.C. §§ 815 and 820.[1]
On December 2, 2014, Pepin filed a complaint with the Mine Safety and Health
Administration (“MSHA”) alleging that her shift supervisor, Tim Hooper,
confronted her about a safety concern she raised and accused her of using
safety to bottleneck production. On April 6, 2015, the Secretary filed this
action on behalf of Pepin alleging that “Pepin was illegally interfered with by
[Empire Iron] when she was confronted and intimidated by a management official
for engaging in activities protected by [the Act].” Sec’y Complaint at 2.

The
Secretary proposes a civil penalty of $20,000 for Empire Iron’s alleged
violation of section 105(c)(1) and an order granting Pepin unspecified monetary
compensation for pain, suffering, and emotional distress. Additionally, the
Secretary requests a finding that Empire Iron unlawfully interfered with
protected activity, an order that the company cease and desist from the
unlawful interference, an order that the company’s mine superintendent read a
notice to all miners informing them of their 105(c) rights and of the company’s
105(c) violation, and an order that the company post a written copy of that
notice to the mine bulletin board for a period of one year.

The
case was assigned by the Chief Judge to the court, and the parties presented
testimony and documentary evidence at a hearing on January 20, 2016, in
Marquette, Michigan. For the reasons that follow, the court concludes that
Empire Iron interfered with the rights of Pepin under the Mine Act in violation
of section 105(c).

I.                  
STIPULATIONS

1.      At
all times relevant to this proceeding, [Empire Iron] did business and operated
the Empire Mine . . . and associated processing plants and is . . . an "operator"
as defined in Section 3(d) of the Act. . . .

2.      The
subject Empire Mine wherein [Empire Iron] operates the surface mine . . . is a
"mine" as defined in Sections 3(b) and 4 of the Act. . . .

3.      At
all times relevant herein, Mindy S. Pepin . . . worked at . . . Empire Mine and
was a "miner" as defined in Section 3(g) of the Act. . . .

4.      Empire
Mine is subject to the jurisdiction of the [Act]. . . .

5.      Empire
[Mine] is a large open pit mine near Ishpeming, Michigan. Empire [Iron] produces
iron ore pellets for use in the steelmaking industry.

6.      Pursuant
to Section 113 of the Act . . ., the Federal Mine Safety and Health Review
Commission has jurisdiction over the subject matter of this case.

7.      The
presiding Administrative Law Judge has jurisdiction over these proceedings, pursuant
to Section 105 of the Act.

8.      The
parties stipulate to the authenticity of their exhibits, but not to the
relevance or truth of the matters asserted therein.

9.      [Empire
Iron's] operations affect interstate commerce.

10.  On
the morning of October 31, 2014, an alert generated by the ThorGuard lightning
detection system was "cleared" and the mine returned to full
operating mode.

11.  On
November 2 and 3, Ms. Pepin had recorded the clearing of a lightning red alert
on what [are] known as "Take 5" cards.[[2]]
These cards were signed by Mike Gauthier who made Tim Hooper aware of the
notations. Copies of such cards are identified as Exhibit G-1 and may be
admitted into evidence.

12.  A
section 103(g) complaint was filed concerning the issue.[[3]]
On November 3-4, MSHA Inspector Ernie Letson investigated the Section 103(g) complaint
concerning the clearing of the lightning red alert. A copy of such complaint as
presented to the mine is identified as Exhibit G-2 and may be admitted into
evidence.

13.  On
November 4, 2014, after extensive interviews of hourly and management
personnel, Mr. Letson issued a notice of negative findings[[4]]
to Steve Baril, who forwarded it to Tyson Murphy, who forwarded it to the Mine
Operations Supervisory team, including Tim Hooper, Ms. Pepin's direct supervisor.
A copy of the negative findings [is] marked as Exhibit G-3 and may be admitted
into evidence.

14.  The
Secretary has no independent knowledge of whether or when Ms. Pepin was informed
of the outcome of the Section 103(g) complaint she filed related to the
ThorGuard lightning detection system. Pursuant to MSHA requirements, MSHA investigators
routinely inform company management and union officials of results of hazard
complaints. MSHA does not routinely inform complainants of results of hazard
complaints.

15.  Mr.
Hooper gave a copy of the findings to Ms. Pepin on the evening of November 4,
2014 before the start of her shift.

16.  Ms.
Pepin and Chad Filizetti then went to Mr. Hooper's office for a discussion. The
nature and content of such discussion is at issue in this case.

17.  On
December 2, 2014, Ms. Pepin filed a complaint with the Secretary of Labor charging
discrimination pursuant to Section 105(c)(l) of the Act.

18.  The
total proposed penalty for the citations at issue ($20,000) will not affect Respondent's
ability to continue in business.[[5]]

J-Ex. 1.

II.               
THE
TESTIMONY

1.      Background and
the 103(g) Complaint

Empire
Iron owns and operates two adjacent open pit iron ore surface mines, the Empire
Mine and the Tilden Mine, both of which are located in Marquette County,
Michigan. Tr. 17, 93. At the Empire Mine, iron ore is extracted, crushed, and
concentrated. Tr. 93. Mindy Pepin is a crusher operator at the Tilden Mine. Tr.

24. She has approximately six years of experience in her current position, and
    nearly eleven years of experience at the mines. Tr. 24.

In
the early morning of October 31, 2014, at the end of a midnight shift, Pepin walked
into the dispatch office at the mine and noticed a “red alert” on a computer
screen for two different ThorGuard systems, which she believed indicated a
“great potential for lightning.” Tr. 24-25. The ThorGuard system monitors electrical
activity in the atmosphere in order to assess the potential for a lightning
strike at the mine. Tr. 94. Witnesses for both the Secretary and the company
testified that it was snowing that day. Tr. 25, 96. However, Pepin also
testified to seeing thunder and lightning around the start of her shift. Tr.
25, 96.

Pepin
maintains that up until that night “the ThorGuard system was used as … the holy
grail,” meaning if there was a red alert, the company evacuated the areas that
could be affected by lightning. Tr. 27. However, in this instance, the company
“disregarded the red alert” and informed employees at the mine that they could
continue working in the affected area. Tr. 26-27. Pepin was concerned about employees
working on the ground, especially near a blast pattern, or in areas where they
might be handling energized cables, because the ThorGuard system was still
indicting the potential for a lightning strike, and lightning could cause
explosives to detonate. Tr. 79.

When
she entered the dispatch room, Pepin asked her supervisor Tyson Murphy, the
section manager for mine production, why Empire Iron chose to disregard the red
alert. Tr. 26, 92. Murphy testified that he provided Pepin with a 30 second
explanation for why he did not believe there was a hazard. Tr. 98. Part of this
explanation was that the ThorGuard system is prone to show false positives,
especially when it is snowing, and all of the other evidence that the company
looks to in these circumstances suggested that there was no lightning hazard.[6] Tr. 98.

Murphy
described Pepin’s demeanor during this conversation as “agitated” and “upset,”
and he believed that at the end of the discussion Pepin “still wanted to argue
the point.” Tr. 100. Murphy testified that Pepin turned around with a “humpf”
and “stormed down the hallway” saying something he could not make out. Tr. 100.
According to Jeffrey Delmont, a blasting supervisor at the mine who walked by
her while she was leaving the office, Pepin said, “Fucking red is red.” Tr.

116. Witnesses for the company admitted that as of October 31, there was
     nothing explicit in the electrical storm notification procedures available to
     employees at the mine dealing with ThorGuard system false positives. Tr. 109-10,
     118-19, 130-31.

On
the 2nd and 3rd of November, Pepin filled out a Take 5 card, a workplace
inspection form on which employees may raise safety concerns with the company.
Tr. 27-28, 100-01. On both dates, Pepin documented on the cards that management
permitted employees to reenter the area affected by a potential lightning
strike on October 31, even though the ThorGuard system was still displaying a
red alert. Tr. 28; Sec’y Ex. 1. At the end of each shift, Pepin placed the
cards in a box, where they would be picked up and reviewed by the shift
supervisor. Tr. 29. Pepin testified that prior to this incident she had only written
a safety concern on a Take 5 card three or four times over the course of
approximately five years. Tr. 29.

Daniel
Keranen, the area manager of mining operations, testified that it is the
company’s expectation that when employees raise safety issues on Take 5 cards,
they will receive a response from management. Tr. 171. When asked whether
management responds to these complaints, Keranen responded affirmatively, and
clarified that the employee’s supervisor may be the one to respond. Tr. 171-72.
However, Keranen conceded that the company does not have any way of ensuring
that supervisors respond, and therefore he could not say for sure how Take 5
complaints are addressed in practice. Tr. 172-73. Pepin testified that in the
three or four prior instances in which she raised a safety concern on her Take
5 cards, she never received a response from management, nor had she received a
response to the one additional concern she raised following her ThorGuard
complaints. Tr. 58-59. She stated it was typical not to get an answer from the
company. Tr. 58-59.

On
the morning of November 3, shortly after turning in her Take 5 card at the end
of her shift, Pepin contacted MSHA and made a complaint pursuant to section 103(g)
of the Act raising the same concerns about the company sending miners back to
work even though the ThorGuard system displayed a red alert. Tr. 29; Sec’y Ex.

2. Pepin testified that this was the first time she had ever made a safety
   complaint to MSHA. Tr. 36. On November 3 and 4, MSHA investigated the
   complaint, interviewing hourly and management personnel in the process. Tr.
   112; Stip. 12. On November 4, MSHA issued a notice of negative findings for the
   allegations in Pepin’s 103(g) complaint. Stip. 13; Sec’y Ex. 3. MSHA did not
   interview Pepin as a part of the investigation or inform her of its findings.
   Tr. 30. The inspector who investigated the incident personally delivered the
   findings to Steve Baril, a safety representative for the company. Tr. 122-23.
   Baril scanned the document and emailed the findings to supervisors Dan Keranen,
   Tyson Murphy, Dan Wegleitner, and Richard Carlson. Tr. 123. Baril claims he expected
   them to communicate the findings to the employees at the company through
   intermediate supervisors in toolbox meetings. Tr. 123-24. He also testified that
   supervisors often communicate the findings from an MSHA complaint inspection
   this way. Tr. 124.

2.      The Ready Room
Incident

On
the evening of November 4, Mindy Pepin was seated in the employee’s ready room
in a building at the mine waiting to start her shift. Tr. 64. With her, at the
time, was Chad Filizetti, a fellow miner and her then-fiancé. Tr. 64. At least
two or three other miners were also in the room. Tr. 32, 64. Tim Hooper, her
shift supervisor for the night, entered the ready room at approximately 10:10
p.m., walked up to Pepin, and gave her a piece of paper containing MSHA’s
negative findings on her 103(g) complaint. Tr. 31, 65, 137-38. According to
Pepin, Hooper “shoved” the paper in her face and said, “Here, I thought you’d
like to see this.” Tr. 31. He then left the room and went back to his desk. Tr.
139; see also Tr. 65.

Hooper
testified that he merely “handed” the paper to Pepin by “set[ting] it on the
counter right in front of” her and Filizetti. Tr. 137, 139. Then, in Hooper’s
account, he stated “Here[,] . . . I thought you’d be interested in seeing this.
This is the findings from MSHA on the ThorGuard.” Tr. 139. According to him, he
did not stick around to have a discussion “because [he] knew it would probably
escalate into an argument” which he wished to avoid. Tr. 139-40.

Pepin
testified that she was taken aback by Hooper’s decision to give her the
complaint because it was not a normal practice. Tr. 33. She interpreted
Hooper’s actions as “giving [her] a message that he knew it was [Pepin] that
called MSHA.” Tr. 33. Filizetti testified that he interpreted Hooper’s actions
similarly. Tr. 74, 84.

Hooper
insisted that he merely intended to address the concerns Pepin raised in her
Take 5 cards, and that he did not even know she filed the section 103(g)
complaint.[7]
Tr. 136-37, 140. Hooper testified that he arrived at the decision to present
Pepin with the negative findings in consultation with his supervisor Joe
Garnsey, because “obviously by filling her Take 5 card out two days in a row,
[Pepin] was very concerned” about the October 31 incident. Tr. 135-36. Garnsey
stated in a deposition that he thought Hooper should show Pepin the findings
because they would relieve her anxiety, and that the decision had nothing to do
with proving Pepin wrong. Resp’t Ex. 19 at 10. Garnsey did not know whether
Pepin filed the MSHA complaint, but he assumed she had. Resp’t Ex. 19 at 11,
16.

Additionally,
Hooper testified that he planned to discuss the MSHA negative findings with the
rest of the shift crew during their standard toolbox meeting at 10:45 p.m. on
November 4, which he subsequently did. Tr. 137-38, 145. However, Pepin started
her shift early, normally at 10:20 p.m., before the rest of the crew. Tr. 137.
Therefore, Hooper informed Pepin of the findings individually apart from the
rest of the crew. Tr. 137.

3.      The Confrontation
in Tim Hooper’s Office

After
Hooper left the ready room, Pepin followed him into his office because,
according to her, she “was curious to see why he felt the need to give [her]
the MSHA findings.” Tr. 33. She denied that she had any intent to provoke
Hooper, although she was “aware that Mr. Hooper has a temper.” Tr. 47, 53. At
Pepin’s request, Filizetti accompanied Pepin. Tr. 33.

Pepin
testified that she calmly asked Hooper why he gave her the findings. Tr. 33-34.
According to Pepin, Hooper responded, “Because we all knew it was you that
called MSHA.” Tr. 34. Pepin said she was shocked by that statement and told
Hooper, “Just because you know it’s me doesn’t mean you’re supposed to be
telling me it’s me.” Tr. 34. According to Pepin’s testimony, when asked how he
knew it was Pepin who had called MSHA, Hooper answered that it was because she
wrote the same complaint on her Take 5 cards. Tr. 34.

At
some point during this interaction, Pepin claims that Hooper “came flying out
of his chair at his desk” and that the conversation “got pretty heated really
fast.” Tr. 34-35. Pepin recalled that Hooper asked, “Do you know how many
people I had to pull off of equipment to go in for your interview?” Tr. 35. She
interpreted this question to mean that the MSHA investigation was a major
inconvenience for the company. Tr. 35. Pepin also alleged that Hooper told her
she used “safety [complaints] to bottleneck production” and that Pepin and
Filizetti were the “ringleaders of the bottlenecking” operation.[8] Tr. 35, 37.
When asked by Pepin for further elaboration, Hooper allegedly replied,
“[E]verybody in the back office knows what [you are] up to and they’re watching
[you].” Tr. 37. As far as Pepin was aware, the back office would have included
Dan Keranen, Tyson Murphy, and all upper salary management personnel. Tr. 38.

Pepin
testified that Hooper next threatened to send her home for insubordination. Tr.

38. When Filizetti asked how Pepin was being insubordinate, Hooper allegedly
    answered, “Because she’s scolding me for the way I’m talking to her,” and “I’m
    just telling her everything that everyone else wants to say but is afraid to.”
    Tr. 38. Pepin testified that she was angry and shocked at the turn the
    conversation had taken, and that she told Hooper the conversation was over and
    left. Pepin recalled that at the end of the conversation she realized she had
    backed out into the hallway after Hooper got up from his chair, even though she
    had started the conversation at his desk. Tr. 47.

Although
Filizetti’s recollection of the meeting was much hazier than Pepin’s and
omitted a few statements that Pepin alleged Hooper made, Filizetti corroborated
Pepin’s testimony that Hooper accused her of filing the MSHA safety complaint
and of using safety complaints to bottleneck production. Tr. 66-68. Filizetti
also recalled Hooper getting out of his chair at some point during the
conversation, although in his telling Hooper “slowly came [their] way” instead
of “flying at” them. Tr. 70.

After
Pepin left, Filizetti remained with Hooper in his office. Tr. 39. Although
Filizetti had trouble recalling most of the ensuing conversation, he testified
that Hooper explained, regarding his interaction with Pepin, that he does not
have “people skills.” Tr. 75. According to Filizetti, Hooper also stated that
“everybody in the back hallway knew what [Pepin] was up to,” which Filizetti
interpreted to mean that his superiors were watching Pepin. Tr. 75-76. Filizetti
agreed that the tension eased in the room after Pepin left. Tr. 86.

Hooper’s
account of the meeting differed slightly from Pepin’s. According to Hooper,
Pepin started asking questions right away and the interaction became
increasingly hostile. Tr. 140. Pepin was allegedly loud, agitated, and full of
attitude. Tr. 142. Hooper also testified that he made sure he was seated the entire
time, because he did not want to look intimidating, whereas Pepin was “moving
around.” Tr. 142, 145. Hooper admitted that he did become slightly angry during
the conversation. Tr. 145-46. He stated that “it’s hard not to be [angry] when
stressful situations are thrown at you like that.” Tr. 146.

Hooper
claimed that he did not know Pepin had called MSHA until she brought up the
subject. Tr. 140-41. Hooper stated that once the conversation started to get
hostile, he announced that the conversation was over and told Pepin and
Filizetti to leave. Tr. 141. However, they did not leave, and Pepin continued
to ask questions. Tr. 141. It was at this point that Hooper claims he threatened
Pepin with insubordination because she would not leave the room when told to do
so. Tr. 141. Hooper then told Filizetti, “She cannot . . . come in here and
quiz me on anything she feels is relevant at the time.” Tr. 142.

Hooper
next described his conversation with Filizetti after Pepin left the room. After
complaining about Pepin’s attitude, Hooper told Filizetti, “I don’t know what’s
happened to this crew. That crew . . . used to be one of the top crews, and now
it seems like there are a few people on the crew that are using safety as a
crutch to not do their work.” Tr. 143. Hooper clarified that he was referring
to “minor equipment issues” where employees would shut down equipment that was
actually safe to run. Tr. 143-44. Hooper also believed that there had been
frivolous complaints filed with MSHA, including one where an employee had
contacted MSHA because a toilet was plugged without notifying management. Tr.

144. Hooper generally did not view MSHA as an ideal first option for raising
     safety issues.[9]
     Tr. 151.

Hooper
testified that he then continued, “You know, have you seen the price our stock
is trading at? . . . [W]e need to work through some of these safety issues
together to take care of them, not in this manner.” Tr. 144. As noted, Hooper
believed that the majority of safety issues could be taken care of if they were
brought to management’s attention. Tr. 144-45. That said, he maintained he did
not intend to prohibit or discourage Pepin or Filizetti from filing complaints
with MSHA. Tr. 145.

4.      The Toolbox
Meeting

At
around 10:45 p.m. on November 4, Hooper subsequently discussed the MSHA
negative findings with his crew in a toolbox meeting in the ready room. Tr. 77.
Pepin was not a part of this meeting. Tr. 77. According to Filizetti, Hooper
made mention during that meeting that the company’s stock had been dropping and
that the company was not in good shape financially. Tr. 77. Filizetti took this
comment, immediately following discussion of the MSHA negative finding, to mean
that unsubstantiated safety complaints were costing the company money. Tr. 78.
Hooper denied discussing the company’s stock prices with the crew, and instead
claims that he only mentioned that to Filizetti in private due to Filizetti’s
own personal interest in the matter. Tr. 153.

Hooper
claimed that he had provided MSHA negative findings in a toolbox meeting prior
to this, but later admitted that he could not remember if he had. Tr. 148-49. Daniel
Keranen, the area manager of mining operations, testified that the company
communicates MSHA negative findings with the crew during toolbox meetings and
that he had told Tyson Murphy to disseminate information regarding the negative
findings at issue in this case to all of the crews at the mine. Tr. 171

5.      Relevant History
Between Mindy Pepin and Tim Hooper

Pepin
testified that while she and Hooper did have a “couple of small run-ins” prior
to the events of this case, she considered her relationship with Hooper to be
friendly and professional up until this point. Tr. 40. The “run-ins” to which
Pepin referred included an incident where Hooper informed Pepin that she needed
to start scanning in and out of the mine at the end of her shift and an
incident where he allegedly berated her for using the wrong door to exit a
changing room at the mine. Tr. 41, 53-54. Hooper clarified that there were
several other employees who were reprimanded for not scanning in and out of the
mine at the time, but that the changing room reprimand was specific to her. Tr.

146. These incidents were documented by the company in a record of verbal
     redirections, although Pepin claims that she was not aware that such a record
     existed until this proceeding. Tr. 40; Sec’y Ex. 4, 5. Pepin also recalled an
     incident in the fall of 2011 where Hooper reprimanded her for questioning a
     management decision on the company radio. Tr. 42. According to Pepin, Hooper
     angrily slammed open the door where Pepin was working and told her, “Don’t ever
     say something like that again on the radio.” Tr. 42.

Filizetti
testified that Pepin and Hooper have similar personalities, in the sense that
it is very difficult to change their minds when they think they are right. Tr.

81. Multiple witnesses also testified about the fiery attitudes of both
    individuals. Keranen stated that although he and Pepin had been childhood
    friends and neighbors, she had been aggressive and abrasive toward him at work
    in the past, Tr. 169-70, while Garnsey claimed that Pepin is easily agitated.
    Resp’t Ex. 19 at 7-9. Both Pepin and Filizetti testified that everyone who
    knows Hooper is aware that he has a temper. Tr. 53, 86.

6.      Damages and
Aftermath

Pepin
testified that following her encounter with Hooper, she cried during her shift
and felt very frustrated. Tr. 39. Because of allegedly being told that everyone
in the back office is watching her, she claims that she now feels there is a
target on her back and worries that the company is looking for a reason to fire
her. Tr. 45. Filizetti confirmed that Pepin has expressed feeling this way. Tr.
78-79. Keranen testified that Pepin later told him that she felt threatened by
Hooper and did not want to work with him. Tr. 174. Pepin stated that the stress
of having to interact with Hooper has affected her personal life. Tr. 45-46.
According to her, the situation was a contributing cause to the dissolution of
her relationship with her then-fiancée and co-worker Filizetti. Tr. 46, 55-56.
However, at the time of the hearing, Pepin and Filizetti were once again
engaged. Tr. 33, 87. Pepin has also not sought treatment or medication for her
stress. Tr. 58.

Other
employees at the mine have learned about Pepin and Hooper’s confrontation from
Pepin and Filizetti. Tr. 60. Pepin testified that those employees have said
that they are “floored” by this situation, and have told her sympathetically,
“That’s what you get for filing safety complaints.” Tr. 60. Pepin claims that
she will have significant reservations about raising safety issues in the
future. Tr. 46.

Pepin
has become a member of the union safety committee since the alleged
interference. Tr. 53. She has raised a safety issue within the company and made
a safety complaint during a crew meeting since then as well. Tr. 158, 170. Since
the alleged interference there has not been a decline in the number of section
103(g) complaints filed by mine employees at the company. Resp’t Ex. 17.

III.            
SECTION
105(C) INTERFERENCE CLAIMS

1.     
The
Law

The
Secretary alleges that Empire Iron interfered with the exercise of Pepin’s
statutory rights in violation of Section 105(c)(1) of the Mine Act. Section
105(c)(1) states in pertinent part:

No person shall
discharge or in any manner discriminate against . . . or otherwise interfere
with the exercise of the statutory rights of any miner   . . . because such
miner . . . has filed or made a complaint under or related to this Act . . . or
because of the exercise by such miner . . . of any statutory right afforded by
this Act.

30
U.S.C. § 815(c)(1) (emphasis added). This section establishes a cause of action
for unlawful discrimination, which the Commission normally analyzes under the Pasula-Robinette
framework laid out below. However, in plurality and concurring opinions in a
recent case, a majority of Commissioners recognized that this section also “establishes
a cause of action for unjustified interference with the exercise of protected
rights which is separate from the more usual intentional discrimination claims
evaluated under the Pasula-Robinette framework.” UMWA on behalf of
Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2103 n.22 (Aug. 2014)
(Young & Cohen, Comm’rs), vacated, 620 Fed. Appx. 127 (3d Circ. 2015); id.
at 2105-07 (Jordan & Nakamura, Comm’rs).

Under
the traditional Pasula-Robinette framework, a complainant alleging
discrimination must prove, by a preponderance of the evidence, (1) that he or she
engaged in protected activity; (2) that he or she suffered an adverse action;
and (3) that the adverse action taken against him or her by the mine operator
was motivated in any part by the protected activity. The operator may rebut a
prima facie case by showing that no protected activity occurred or that the
adverse action was in no part motivated by the miner's protected activity. Sec'y
of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct.
1980) (rev'd on other grounds); Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3rd Cir. 1981); Sec'y of Labor on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981). If the operator is unable
to rebut the miner's prima facie case, it may nevertheless defend itself
affirmatively by proving (1) that it was also motivated by the miner's
unprotected activity and (2) that it would have taken the adverse action in any
event for the unprotected activity alone. Haro v. Magma Copper Co., 4
FMSHRC 1935 (Nov. 1982).

Additionally,
certain business policies that on their face plainly and explicitly
discriminate against protected activity may be “so ‘inherently destructive of
employee interests' that [they] may be deemed proscribed without need for proof
of an underlying improper motive.” See Swift v. Consolidation Coal
Co., 16 FMSHRC 201, 206 (Feb. 1994) (quoting NLRB v. Great Dane Trailers,
388 U.S. 26, 33 (1967). This is because “some conduct carries with it
unavoidable consequences which the employer not only foresaw but which he must
have intended and thus bears ‘its own indicia of intent.’” Great
Dane Trailers, 388 U.S. at 33 (emphasis added).

In
contrast to the detailed analysis that the Commission has provided for
discrimination claims, there is relatively little Commission case law on the
appropriate framework for analyzing interference claims. The most significant
Commission cases dealing with interference are Moses v Whitley Dev. Corp.,
4 FMSHRC 1475 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985) and Sec’y
of Labor on behalf of Gray v. N. Star Mining, Inc., 27 FMSHRC 1
(Jan. 2005). Additionally, the Secretary and two Commissioners have recently
proposed a framework for interference claims, discussed more fully below, that
the Commission as a whole has yet to adopt. Franks, 36 FMSHRC at 2108
(Jordan & Nakamura, Comm’rs). The Secretary urges the court to adopt the Franks
framework, in part because he argues it is consistent with Commission
precedent, specifically Moses and Gray. Sec’y Br. 11. Therefore,
the court will discuss these two cases in depth below.

In
Moses v Whitley Dev. Corp., the Commission held that persistent and
accusatory interrogation directed toward a miner in response to that miner’s
filing of a 103(g)(1) complaint constituted prohibited interference under the
Act. Moses, 4 FMSHRC at 1480. In reaching that result, the Commission first
cited to Mine Act legislative history indicating that section 105(c)(1) was
directed against “not only the common forms of discrimination, such as discharge,
suspension, [and] demotion . . ., but also against the more subtle forms of interference,
such as promises of benefit or threats of reprisal” and then found that
“coercive interrogation and harassment over the exercise of protected rights”
were among the “more subtle forms of interference” that the drafters of the Act
had in mind. Id. at 1479 (citing S. Rep. 95-191, 95th Cong., 1st Sess. 36 (1977) [“S.
Rep.”], reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative History
of the Federal Mine Safety and Health Act of 1977, at 624 (1978) [“Legis.
Hist.”]). The Commission was especially concerned about the tendency of an
employer’s actions or statements to instill a fear of reprisal in the minds of
its employees and chill the exercise of protected rights. Moses, 4 FMSHRC
at 1479. In a footnote, the Commission attempted to distinguish
between comments or questions regarding a miner's exercise of a protected right
that are “innocuous or even necessary to address a safety or health problem” and
those that constitute unlawful interference: “Whether an operator’s actions are
proscribed by the Mine Act must be determined by what is said and done, and by
the circumstances surrounding the words and actions.” Id. at 1479 n.8.

In
a separate part of the Moses decision, dealing primarily with discharge,
and secondarily with interference, under the Pasula-Robinette framework,
the Commission also held that an operator may be held liable for adverse
actions motivated by the suspicion of protected activity, even if the complainant
had not actually engaged in such protected activity. Moses, 4 FMSHRC at
1480. The Commission acknowledged that a literal interpretation of section
105(c)(1) might require the actual or attempted exercise of protected activity,
but reasoned that such a narrow interpretation would frustrate Congressional
intent. Id. Instead, the Commission adopted a broad interpretation of
the statutory language, “No person shall discharge . . . any miner . . .
because of the exercise by such miner . . . of any statutory right afforded by
this Act.” The Commission’s interpretation turned on the motives and beliefs of
the “person” discharging the miner, rather than the activities of the miner. Id.

The
Commission subsequently distinguished interference from discrimination claims
and raised new questions about the intent requirement in section 105(c)
interference cases in the matter of Sec’y of Labor on behalf of Gray
v. N. Star Mining, Inc. In Gray, a mine’s superintendent repeatedly asked
an employee about his grand jury testimony stemming from an MSHA investigation
and sought assurances from the miner that he did not testify against the
superintendent, joking that if he had, the superintendent would kill him. Gray,
27 FMSHRC at 2-3. A Commission ALJ evaluated the interference allegations under
the Pasula-Robinette framework and found that the alleged interference
did not qualify as adverse actions under the Act because, in part, the
superintendent did not literally intend to harm the employee. Id. at 4-5;
Sec’y of Labor on behalf of Gray v. N, Star Mining, Inc., 25 FMSHRC 198,
202 (Apr. 2003) (ALJ). The ALJ found it unnecessary to reach the issue of
discriminatory motivation, having already found no adverse action. Gray,
25 FMSHRC at 216. The Commission vacated the ALJ’s interference finding and
remanded the matter for “further consideration of the facts and circumstances
surrounding the statements to determine if they were coercive under section
105(c)(1) of the Mine Act.” Gray, 27 FMSHRC at 12.

After
first announcing that coercive operator statements are not to be analyzed under
the normal Pasula-Robinette framework, the Commission identified several
other errors in the ALJ’s decision that hinted at how the Commission would
prefer interference claims to be analyzed. Gray, 27 FMSHRC at 7 n.6. In
particular, the Commission noted “that the judge examined [the
superintendent’s] statements too narrowly by considering largely, if not
exclusively, [his] intent or motive in making the statement.” Id. at 10.
The Commission found error in the ALJ’s belief that “the presence or absence of
a violation of section 105(c) of the Mine Act turned on whether [the
supervisor] literally intended by his words to cause physical harm to [the
employee] or any other miner who testified against him during the grand jury investigation.”
Id.. Instead, citing Moses and case law on section 8(a)(1) of the
NLRA, the Commission held that the ALJ should have analyzed the “totality of
circumstances surrounding [the supervisor’s] statements to determine whether
they were coercive and violative of section 105(c)” because they carried
implicit “threats of reprisals or of employment discrimination,” which the
Commission had already recognized in Moses as capable of giving rise to
claims of prohibited interference. Id.

2.     
The
Secretary’s Proposed Test

The
Secretary of Labor has proposed a test for evaluating interference claims.
Sec’y Br. 9-12. The Secretary originally proposed this test before the
Commission, and two Commissioners chose to adopt it. Franks, 36 FMSHRC
at 2108 (Jordan & Nakamura, Comm’rs). Under the Franks test, an
interference violation occurs if:

(1)   a person’s
action can be reasonably viewed, from the perspective of members of the
protected class and under the totality of the circumstances, as tending to
interfere with the exercise of protected rights, and

(2)    the person
fails to justify the action with a legitimate and substantial reason whose
importance outweighs the harm caused to the exercise of protected rights.

Franks, 36 FMSHRC at
2108.

Under
the first prong of the test, in order to establish that conduct tends to
interfere with the exercise of protected rights “it is not necessary [for the
Secretary] to show that a miner has been actually prevented or deterred from
exercising rights” or “that the operator acted with discriminatory motivation
or unlawful intent.” Franks, 36, FMSHRC at 2107; Sec’y Br. 12. The
second prong of the test “ask[s] whether the operator’s actions were narrowly
tailored enough to promote its business justification without undue
interference to the rights of the miners.” Franks, 36 FMSHRC at 2118
n.14; Sec’y Br. 10-11.

Empire
Iron asks the court to reject the Secretary’s proposed test, particularly
because the company believes that discriminatory motive must be a required
element of a section 105(c) violation. Resp’t Br. 12. The Secretary in turn
claims that his proposed test is entitled to Chevron deference, and
provides two rationales for why the court should adopt this test. Sec’y Br. 10;
see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 843-44 (1984). First, the Secretary argues that section 105(c)(1)’s
prohibition on “interference” reflects parallel language in section 8(a)(1) of
the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(1), and that
section 8(a)(1) has been interpreted by courts and the National Labor Relations
Board (“NLRB”) not to require a showing of intent. Second, the Secretary claims
that his proposed test is “firmly grounded in both Commission and NLRA
precedent.” Sec’y Br. 11.

Even
assuming that the Secretary’s entire test is deserving of Chevron
deference if it is found to be a reasonable interpretation of an ambiguous
provision,[10]
the court finds the Secretary’s interpretation of section 105(c)(1) to be
unreasonable as to the question of whether the Secretary is required to prove
unlawful intent in interference proceedings but reasonable as to the question
of whether it is necessary to show that a miner has actually been deterred from
exercising rights.

3.     
The
Plain Language of the Act and NLRA Guidance

The
court first acknowledges that certain elements of section 105(c)(1) of the Act are
ambiguous. For instance, the types of actions that may qualify as
“interference” under the section are open to interpretation. However, the court
cannot envision any permissible interpretation of section 105(c)(1) that
entirely reads out the word “because” and all subsequent language from the phrase:
“No person shall . . . interfere with the exercise of the statutory rights of
any miner . . . because such miner . . . has filed or made a complaint
under or related to this Act . . . or because of the exercise by such
miner . . . of any statutory right afforded by this chapter.” 30 U.S.C. § 815(c)(1).

It
is a general principle of legal interpretation that every word and phrase in a
statutory provision must be given effect. And a statutory provision that prohibits
a person from acting “because of” a protected status or activity is generally
given the effect of requiring that the protected status or activity “was the
‘reason’ that the [person] decided to act,” Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167 (2009), or at least a motivating factor. See E.E.O.C. v.
Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028, 2032 (2013).[11] The court concludes that within section
105(c), the phrase beginning with the word “because” clearly denotes a
requirement that a miner’s protected activity motivated an operator’s interference
with his or her exercise of protected rights.

The
Secretary instead relies primarily on the similarities in both language and
purpose between section 105(c)(1) of the Mine Act and section 8(a)(1) of the
NLRA and argues that the interference language in each statute does not carry
with it an intent requirement. Sec’y Br. 11. Section 8(a)(1), in full, states,
“It shall be an unfair labor practice for an employer to interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed in section 157 of
this title.” 29 U.S.C. § 158(a)(1). While there are some similarities between
the two sections that justify the inference that section 8(a)(1) informed the
drafting of section 105(c), the court nevertheless cannot ignore the obvious
difference between the statutory provisions: section 8(a)(1) does not use the
word “because” or include any intent requirement, while section 105(c)(1) unambiguously
does. The additional language must serve some distinct purpose.

Of
further relevance, section 8(a)(4) – a clearly separated sub-section within the
same section of the NLRA – provides that, “It shall be an unfair labor practice
for an employer to discharge or otherwise discriminate against an employee because
he has filed charges or given testimony under this subchapter.” 29 U.S.C. § 158(a)(4) (emphasis added). If
the drafters of the Mine Act had indeed sought guidance from section 8(a) of
the NLRA, they would have found a straightforward template for separating
discharge and discrimination from interference and for ensuring that the intent
requirement for the first two causes of action did not apply to the third. Instead,
the Mine Act clearly groups “discharge,” “discriminate,” and “interfere”
together and applies the same intent requirement to all three.

The
Secretary also notes that the Commission has previously identified an identical
purpose between section 8(a)(1) of the NLRA and section 105(c) of the Mine Act,
namely “to provide legal protection against adverse action to employees who
exercise rights afforded by law.” Sec’y Br. 11 (citing Sec’y of Labor on
behalf of Johnson v. Jim Walters Resources, Inc., 18 FMSHRC 552, 558 (Apr.
1996) (finding subjective and objective evidence of an adverse action’s
chilling effect on the exercise of rights is relevant to the gravity criterion
for a civil penalty assessment in discrimination proceedings)). The court
agrees that the two provisions share an identical purpose when framed in that
broad level of generality. However, the different language in the two statutes
indicates that section 105(c) is aimed in a more targeted fashion at providing
legal protection against adverse actions motivated by the exercise of
rights afforded by law.

One
possible explanation for this difference is that section 8(a)(1) of the NLRA
deals with labor organizing and negotiation over terms of employment and
assumes a naturally adversarial relationship between employers and employees in
that process. Cf. Franks, 36 FMSHRC at 2120 (Althen, Comm’r,
dissenting). Therefore, intent may be inferred in employer actions that
interfere with the right to organize or collectively bargain. In contrast, the
Mine Act deals with miner health and safety and does not automatically assume
that employers and employees always have adverse interests in the goal of
promoting safety.

The
Secretary, finding support in NLRA case law, also takes the position that he need
not prove that a complainant “has been actually prevented or deterred from
exercising rights” in order to “show that [the alleged] conduct tends to
[unlawfully] interfere with the exercise of protected rights.” Sec’y Br. 12 (citing
Flagstaff Med. Cir., Inc. v. NLRB, 715 F.3d. 928, 930 (D.C. Cir. 2012); NLRB
v. Air Contact Transp., Inc., 403 F.3d 206, 212 (4th Circ.
2005); NLRB v. Okun Bros. Shoe Store, 825 F.2d 102, 107 (6th
Cir. 1987)). This issue is relevant in this matter because the company claims
that Hooper’s alleged interference has not in fact affected Pepin’s exercise of
her protected rights. Resp’t Br. 30-31.

In
this limited context, the court agrees with the Secretary’s use of applicable NLRA
principles. The Secretary’s position is not contradicted by the plain language
of the statute, and the court recognizes that a complainant’s perseverance in
the face of efforts to deter his or her exercise of protected rights should not
defeat any potential interference claims. Therefore, the court finds the Secretary’s
position regarding the lack of a need to prove that the exercise of protected
rights was actually restricted to be reasonable and persuasive, under both a Chevron
and Skidmore analysis. See Skidmore v Swift & Co.,
323 U.S. 134, 139 (1944) (deferring to an agency’s interpretation of an
ambiguous provision due to its power to persuade).

4.     
Commission
Precedent

The
Secretary argues that his proposed test is consistent with Commission precedent
regarding interference, specifically in Moses and Gray.
Regardless of whether or not this assertion is correct, the court does not find
that Commission precedent compels the Secretary’s interpretation.

Reading
the statute broadly in Moses, the Commission articulated a totality of
the circumstances test to assess whether certain statements or actions rise to
the level of unlawful interference and affirmed an ALJ’s finding of
discrimination even when an operator was motivated by suspicion of a miner’s
protected activity rather than actual knowledge. Moses, 4 FMSHRC at 1479
n.8, 1480. It did not, however, suggest that such a test would be sufficient to
establish a violation of section 105(c)(1) absent any showing of intent.[12]

Gray provides
stronger support for the Secretary’s claim that intent is not a necessary
element of an interference claim. See discussion supra p. 13.
However, it is important to keep in mind that the ALJ had analyzed the case
under the Pasula-Robinette framework and had only addressed the issue of
the operator’s intent in the context of finding that the Secretary had failed
to prove any adverse action. It was this finding alone that the Commission
found to be in error, as the ALJ did not reach the issue of discriminatory
motivation.

It
is therefore unclear to this court whether the Commission in Gray found
the ALJ to be in error for requiring the Secretary to prove any intent
whatsoever (which is one possible interpretation of the opinion given the
Commission’s extended discussion of section 8(a)(1) of the NLRA), or whether it
concluded the ALJ erred by finding that the alleged statements could not qualify
as adverse actions unless the superintendent in the matter intended his
statement as a literal threat on the complainant’s life, rather than as a
threat of reprisal more generally. The lack of a clearly articulated standard
or holding from the decision regarding the role or relevance of intent in
interference proceedings, and the extent to which a broad holding would have
represented a significant development in the law, cautions against drawing too broad
a conclusion from the language therein. Instead, the court reads the opinion to
reaffirm the importance, first articulated in Moses, of looking at the totality
of circumstances in interference allegations and focusing on the tendency of an
employer’s actions or statements to instill a fear of reprisal in the minds of
its employees and chill the exercise of protected rights.

5.     
Additional
Considerations

The
court is troubled by the possible implications of the Secretary’s proposed test
in interference cases going forward. The test may even introduce uncertainty
into the relatively settled area of discrimination law under the Mine Act.

Normally
a discharge or suspension, or similar acts of serious discipline, would trigger
the Pasula-Robinette analysis, whereby the Secretary would need to prove
all of the elements mentioned previously: protected activity, adverse action,
and discriminatory motivation. Then, not only may an operator rebut the Secretary’s
prima facie case and prevail by establishing non-discriminatory motives for its
actions, but it may even avoid liability in spite of discriminatory motives
through an affirmative defense. Additionally, other acts of discipline or
reprisal can also trigger the Pasula-Robinette analysis, provided that
they satisfy the Burlington Northern standard, which asks whether such
actions are “harmful to the point that they could well dissuade a reasonable
worker from [engaging in protected activity],” “depend[ing] upon the particular
circumstances” surrounding the actions. Sec’y on behalf of Pendley v.
Highland Mining Co., 34 FMSHRC 1919, 1930-31 (Aug. 2012) (quoting Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). This language
closely resembles the Secretary’s proposed test for interference claims.[13] However,
the Burlington Northern test still fits within the Pasula-Robinette
framework, and therefore still requires proof of discriminatory motivation (along
with protected activity) once an adverse action is established.

In
contrast, under the Secretary’s theory of section 105(c), alleging subtler acts
of interference would trigger a far less demanding test, where the Secretary
would no longer be required to prove any protected activity, adverse
consequences for the complainant in his or her employment relationship, or
improper motivation on the company’s part. Further, even if the operator
established a motive unrelated to the exercise of protected rights, the company
would then need to prove that its justification for its action was substantial,
business-related, and that its importance outweighed the harm caused to the
exercise of protected rights—additional hurdles not present in the Pasula-Robinette
analysis. The lack of a substantial business justification whose importance
outweighs the interests of the protected activity may provide circumstantial
evidence that an operator’s proffered justification is merely pretextual.
However, this is not the only factor or evidence that the court considers in
evaluating an operator’s true motivation. The court cannot see how any allegation
that satisfied the traditional discrimination requirements would not likewise
satisfy all of the elements of the Secretary’s proposed interference test,
whereas the reverse would not hold true in many instances.

In
effect, under the Secretary’s suggested test, the less severe of a disciplinary
action that a complainant alleges, the lower the burden will be for
establishing a section 105(c) violation. This could create a perverse incentive
for a petitioner to recast every act of overt discrimination as one of the
subtler forms of interference in order to obtain that lower burden, especially
since many subtle acts that subject an employee to a detriment in his
employment relationship may qualify as either acts of interference or adverse
actions under the Burlington Northern standard.

Additionally
many overt acts of discipline alleged to be discriminatory are often preceded
or accompanied by acts or statements that may otherwise tend to interfere with
the exercise of protected rights. For example, in Franks, three out of
five Commissioners disagreed with the ALJ’s finding that a company’s suspension
of its miners constituted unlawful discrimination under section 105(c) of the
Act, but the Commission nonetheless affirmed the ALJ’s ruling based in part on two
Commissioners finding that the suspension and the company’s interviews with its
miners leading up to the suspension interfered with their protected rights. Franks,
36 FMSHRC 2088. The court is unclear as to whether the complainants could have
alleged interference, and therefore could have prevailed as they ultimately
did, absent the allegation of “subtler acts” of coercive interrogation preceding
the suspension. If the answer is no, this creates a problematic incentive to
allege coercive operator statements or other subtler acts of interference
alongside every allegation of traditional discrimination.[14] If the
answer is yes, the court does not see why a complainant would ever again allege
a suspension to be an act of discrimination, rather than an act of
interference.    

6.     
The
Court’s Interference Test

Based
on the foregoing, the court holds that to prove an allegation of illegal
interference under section 105(c)(1), the Secretary must show that (1) the
Respondent’s actions can be reasonably viewed, from the perspective of members
of the protected class and under the totality of the circumstances, as tending
to interfere with the exercise of protected rights,[15] and that
(2) such actions were motivated by the exercise of protected rights.[16]

The
respondent may rebut the Secretary’s prima facie case by showing that its
actions did not tend to interfere with the exercise of protected rights or that
the actions were in no part motivated by the miner's protected activity.

If
the operator is unable to rebut the miner's prima facie case, it may
nevertheless defend itself affirmatively by demonstrating a legitimate and
substantial reason whose importance outweighs the harm caused to the exercise
of protected rights.

IV.            
APPLICATION
OF THE COURT’S INTERFERENCE TEST

1.     
Actions
Tended to Interfere with the Exercise of Protected Rights

Section
103(g) protects the anonymity of miners in making safety complaints and
encourages complaints when miners have “reasonable grounds to believe” that a
violation exists. 30 U.S.C. 813(g)(1). The court finds that Mindy Pepin engaged
in protected activity when she filed an anonymous section 103(g) safety
complaint with MSHA under a reasonable belief that a violation existed. The
fact that the company’s procedures did not deal with the possibility of a false
positive on the ThorGuard system, and that Pepin did not receive a response
when she filed multiple Take 5 complaints within the company raising the issue,
supports the reasonableness of Pepin’s belief. Tr. 58, 109-10, 118-19, 130-31.

The
court further finds that Hooper’s response to Pepin’s protected activity tended
to interfere with the exercise of protected rights. The court finds Pepin’s
account of the substance of her conversation with Tim Hooper in his office to
be credible, and the statements Hooper made in that account would tend to instill
within the mind of a reasonable person a fear of reprisal for exercising protected
activity.

Unlike
acts that the Commission has previously found to constitute interference, this
matter does not involve persistent questioning over the course of multiple
interactions, explicit threats, or attempts to isolate the complainant in an
inherently coercive one on one setting. However, this matter does involve
implicit threats of reprisal and intimidating behavior by a supervisor, which
the Commission has noted takes on special significance given the supervisor’s
“ability to impact the employment relationship of [the complainant].” Gray,
27 FMSHRC at 8. Hooper’s accusations that Pepin was using safety complaints to
bottleneck production and that Pepin and Chad Filizetti were the ringleaders of
a bottlenecking operation are examples of intimidating language directed against
the exercise of protected rights. Tr. 35, 37, 66-68. His statement that his
superiors in the back office were watching Pepin can also be reasonably viewed
as a threat of reprisal or of employment discrimination. Tr. 37, 75-76.

In
regard to the ready room incident, the court first notes that Hooper’s decision
to hand Pepin the results of the MSHA investigation might not be reasonably
viewed as tending to interfere with the exercise of protected rights when taken
in isolation. Rather, the decision could be viewed as a reasonable response to
the concerns on Pepin’s Take 5 cards. However, under the totality of the circumstances,
given Hooper’s subsequent statements in his office (“We all knew it was you
that called MSHA,” and “Do you know how many people I had to pull off of
equipment to go in for your interview?”), the court’s finding that Hooper’s
actions tended to interfere with protected rights encompasses the events in the
ready room as well.[17]
Tr. 34-35.

The
company argues that Hooper’s alleged acts of interference within his office
would have never occurred had Pepin not followed him in there and instigated a confrontation.
Resp’t Br. 28, 31. The court agrees with this assessment. The company also argues
that Pepin’s behavior during the meeting was likely much more “agitated” and
“challenging” than how she portrayed it in her testimony, given other
witnesses’ descriptions of her normal behavior, while Hooper’s demeanor was
likely less “threatening.” Resp’t Br. 29-30. Be that as it may, Hooper’s
statements were sufficiently threatening in context that Hooper’s and Pepin’s
respective demeanors and the alleged provocation for the statements are not
decisive factors in the court’s analysis of their tendency to interfere with
protected rights.

The
Secretary alleges that Hooper’s statements to Filizetti, privately, and to Hooper’s
crew during a toolbox meeting with Pepin out of the room also affected other
miners. Sec’y Br. 15. Whether actions directed wholly toward miners other than
the complainant are relevant to that complainant’s interference claim need not
be decided at this juncture, as the court does not find that those statements
or activities tended to interfere with protected rights regardless.

There
is some discrepancy between Hooper and Filizetti about whether Hooper discussed
the company’s falling stock prices and financial condition in the toolbox
meeting with the entire crew or only in the private conversation between the
two of them after Pepin left Hooper’s office. Tr. 77, 144, 153. Although both
witnesses had difficulties with their recollection in their testimony, the
court credits Hooper’s testimony that he only discussed falling stock prices
with Filizetti in his office, and only because Filizetti had expressed interest
in the subject previously. Tr. 153. Given this context that Filizetti would
have understood, the court does not find that this statement would tend to
interfere with Filizetti’s protected activity, or Pepin’s protected activity indirectly.

Similarly,
the court does not find that the presentation of MSHA’s negative findings in
Hooper’s toolbox meeting constituted interference. The court credits Keranen’s and
Baril’s testimony that the company often communicated MSHA negative findings
with the crew during toolbox meetings. Tr. 124, 171. While Hooper himself may
not have presented negative findings in a toolbox meeting prior to this
incident, a reasonable person at the mine listening to the presentation would
not necessarily draw an inference that Hooper was motivated by animus toward
Pepin, since Hooper did not mention Pepin at the time nor use the findings to
discourage safety complaints. Tr. 148-49.

In
summary, the court finds that Hooper’s statements to Pepin in his office and
his decision to hand Pepin MSHA’s negative findings from her 103(g) complaint
tended to interfere with her exercise of protected rights, because they carried
with them implicit threats of reprisal. However, the court does not find that Hooper’s
statements to Filizetti in private or to the crew during his toolbox meeting
violated section 105(c) of the Act, because under the totality of circumstances
a reasonable person in the miners’ positions would not interpret them as
threats or hostile gestures.

2.     
 Actions
Were Motivated by the Exercise of Protected Rights

With
traditional discrimination claims, a complainant will often have to rely on
circumstantial evidence in
order to prove that an adverse action was motivated by protected activity,
since “direct evidence of motivation is rarely encountered.” Sec'y of Labor
on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981),
rev. on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d
86 (D.C. Cir. 1983). The Commission has clarified that circumstantial evidence
may include: (1) knowledge of protected activity, (2) hostility or animus
toward the protected activity, (3) coincidence in time between the protected
activity and the adverse actions and (4) disparate treatment. Chacon, 3
FMSHRC at 2510. The court finds such evidence to be equally useful in analyzing
whether the actions that give rise to an interference claim were intended to
interfere with protected activity.

The
court first finds that Hooper had at least a strong suspicion that Pepin had
filed a 103(g) MSHA complaint based on his knowledge that she had filed nearly
identical Take 5 safety complaints within the company. Tr. 147. While Hooper
could not be sure that the MSHA complaint came from Pepin (rather than a United
Steelworkers safety committee member), he admitted that the thought crossed his
mind, and his supervisor Joe Garnsey admitted that he assumed she had. Tr. 150;
Resp’t Ex. 19 at 11-16.

Hooper
also expressed hostility and animus toward the protected activity both in his
statements to Pepin in his office and at the hearing during cross-examination. Several
of Hooper’s statements that form the basis of Pepin’s interference claim also
provide evidence of Hooper’s hostility toward protected activity. These include
accusing Pepin of using safety complaints to bottleneck production and
expressing significant frustration at having to pull miners away from
production to participate in the MSHA investigation. Tr. 34-5, 37, 66-68. At
hearing, Hooper also complained about frivolous complaints to MSHA, and
suggested that all complaints should go through the company or safety committee
first in order to determine whether or not they are frivolous. Tr. 151. The
court finds these statements also indicate animus and hostility toward 103(g)
complaints and those who make them, in this case Pepin.

The
coincidence in time between Pepin’s protected activity and the alleged
interference is a less relevant factor in this analysis, since the company
contends that the alleged interference was a response to Pepin’s Take 5 complaints,
which were filed contemporaneously with her 103(g) MSHA complaint. Tr. 136-37. Additionally,
there may have been disparate treatment in the way the company responded to
Pepin’s Take 5 complaints by using MSHA negative findings, as there is
sufficient evidence to suggest that the company did not normally respond to
employees about their Take 5 complaints at all. Tr. 58-59. However, this disparate
treatment can be explained by the persistence with which Pepin raised concerns
about the ThorGuard issue. Tr. 135-36.

There
are two additional considerations for the court in this matter. First, the heart
of Pepin’s interference claims is contained in her confrontation with Hooper in
his office. That confrontation never would have happened if she had not followed
him into his office. Second, Hooper’s temper, Pepin’s adamant questioning, and
past disciplinary “run-ins” between the two likely contributed to Hooper’s outbursts
during the meeting.

Taken
together, these findings lead to the conclusion that the proven acts of
interference in the proceeding were not premeditated. However, the court
concludes that they were motivated by Hooper’s animus toward Pepin’s exercise
of protected rights, which boiled to the surface during a heated exchange, and
they were intended in that moment to deter Pepin from filing safety complaints
with MSHA in the future. The court finds this sufficient to establish intent to
interfere with protected activity.

3.     
Actions
Had No Legitimate and Substantial Business Justification

The court finds that Hooper could not
have had any legitimate business justification for the statements he made to
Pepin in his office and that his proffered rationale for presenting Pepin with
the MSHA negative findings was not narrowly tailored to achieve the company’s
interests of adequately responding to Pepin’s Take 5 complaints without doing
undue harm to her right to make anonymous safety complaints with MSHA. Empire Iron
could have achieved the same purpose by simply explaining the findings of its
own investigation to Pepin after she filed her Take 5 cards. Alternatively,
the company could have posted the MSHA negative findings in the ready room as
it normally did. Tr. 57. This approach would have protected Pepin’s anonymity
and would not have created the perception that she was being singled out for
reprisal because she exercised her 103(g) rights.

V.               
REMEDIES

1.     
Civil
Penalty

The
court has found a violation and it must assess a civil penalty taking into
account the statutory civil penalty criteria, including the size of the
operator, its history of previous violations, the effect of the penalty on the
operator’s ability to continue in business, the operator’s negligence, the
gravity of the violation, and the demonstrated good faith of the operator in
attempting to achieve rapid compliance after notification of a violation. 30
U.S.C. § 820(i).

The
Secretary has proposed a $20,000.00 civil penalty. The Secretary relies
primarily on the “high negligence” and “substantial” gravity of Hooper’s
conduct in justifying the penalty. Sec’y Br. 18. Empire Iron argues that the
Secretary’s assessment lacks evidentiary foundation and that the company
evidenced no animus toward protected activity. Resp’t Br. 33, 35.

The
court first notes that the parties stipulated to the fact that Empire Mine is
large and that the assessed penalty would not impact the mine’s ability to
continue in business. Stip. 5, 18. Additionally, the mine’s history of assessed
violations admitted into evidence showed no history of 105(c) violations. Sec’y
Ex. 7.

In
regard to the company’s negligence, the court has found that Hooper
intentionally interfered with Pepin’s protected rights. This intent establishes
an elevated level of negligence, and that intent is imputed to the company. However,
the court has also found that Hooper’s interference was not premeditated. Additionally,
there was scant evidence at hearing, outside of Hooper’s own comments during
his confrontation with Pepin, that other officials at the company displayed
animus toward Pepin’s protected activity or that backroom management officials
were actually watching Pepin and plotting reprisal as Hooper claimed. Hooper’s
interference did not reflect a concerted effort by multiple agents of Empire
Iron to interfere with Pepin’s protected rights.[18] Indeed,
one of those backroom officials Hooper referenced was Keranen, a childhood
friend of Pepin’s, who gave serious attention to her complaints regarding
Hooper and offered to formally investigate her allegations against him – which
the court also considers a good faith effort to remedy the violation. Tr.
169-70, 174; Resp’t Ex. 5. These factors mitigate Empire Iron’s level of
negligence.

The
court finds that the gravity of the violation was serious. The right to make
anonymous safety complaints to MSHA is an important and necessary one. Therefore,
the expression of animus toward those rights and efforts to chill their
exercise must not be tolerated. However, different actions have varying degrees
of chilling effect on the exercise of rights. An oral confrontation where a
supervisor expresses animus regarding a miner’s exercise of protected rights may
not have the same effect as a discharge or suspension or even an overt threat of
dismissal. As indicated earlier, the Secretary did not allege persistent
questioning over multiple interactions, explicit threats, or attempts to
isolate the complainant in an inherently coercive one on one setting. The
record also does not indicate that Hooper’s actions have had any effect on the
filing of MSHA safety complaints, which the court finds slightly relevant for
its gravity determination. Resp’t Ex. 17. Furthermore, the court has found that
Hooper did not widely publicize his hostility regarding Pepin’s protected
activity, which limited the number of persons affected by his act of
interference. Consequently, the court finds the gravity of the violation to be
lower than alleged.

Given
these findings, the court assesses a civil penalty of $8,000.00 for the
violation.

2.     
Other
Relief Requested

As
Pepin was not terminated, suspended, or officially disciplined, there is no
back pay owed. Pepin instead seeks unspecified compensation for pain,
suffering, and emotional distress caused by the company’s interference. The
Secretary acknowledges that the “Commission has never specifically decided
whether emotional distress damages may be awarded under the Act.” Sec’y Br. 16.
And, the complainant acknowledged that she did not seek or incur expenses for
treatment or medication related to her distress. Tr. 58. However, the Secretary
argues that emotional distress damages are nonetheless necessary to fulfill the
Act’s remedial purpose of making the complaining party whole. Sec’y Br. 16.

The
court expresses no opinion as to whether emotional distress damages may ever be
awarded under the Act, absent any concrete injury or financial loss, but finds
that this case does not present the sort of exceptional circumstances that
might merit such an award. Pepin may have been justifiably upset by her
encounter with Hooper, but being upset by workplace disputes is part and parcel
of the workplace experience, and there is nothing in the record to indicate her
encounter with Hooper caused her to seek medical and/or psychological assistance,
or that it interfered with her normal daily activities. Pepin also alleged that
the violation had strained her relationship with her fiancé, Chad Filizetti,
and caused them to break their engagement. However, Pepin and Filizetti were again
engaged at the time of the hearing. Tr. 33, 46, 55-56, 87. Given these facts,
the court denies the request for emotional distress damages.

In
regard to the Secretary’s request for Empire Iron to have its Mine
Superintendent (a position that the company alleges does not exist at its mine)
read a notice to all miners at Empire Mine acknowledging the violation and
reiterating miners’ rights, the court deems it sufficient for deterrence
purposes to order the company to post a notice to that effect to the mine
bulletin board, for a period of one year.

ORDER

Based
on the above, the court finds that Respondent violated section 105(c) of the
Act by unlawfully interfering with the protected activity of Pepin. It is
hereby ORDERED that Empire Iron cease and desist from the unlawful
interference that forms the basis of the interference violation. It is further ORDERED
that within 30 days of the date of this decision Empire Iron post on the mine
bulletin board, for a period of one year, a written notice stating that: (1) a section
105(c) complaint was filed against Empire Iron based on the above-described
conduct; (2) Empire Iron has been found to violate section 105(c); (3) miners
have a protected right to communicate safety and health concerns to Empire Iron
management; (4) miners have the protected right to confidentially and
independently communicate safety and health concerns to MSHA; and (5) mine
management will not interfere with or engage in discrimination based on the
exercise of those protected rights. Finally, within 30 days of the date of this
decision, Respondent is hereby ORDERED to pay a civil penalty of
$8,000.00.[19]

/s/
David F. Barbour

David
F. Barbour

Administrative
Law Judge

Distribution:

Suzanne
F. Dunne, Esq., U.S. Department of Labor, Office of the Solicitor, 230 S.
Dearborn Street, 8th Flr., Chicago, Illinois 60604

R.
Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, 401 Liberty Ave.,
Suite 1500, Pittsburgh, Pennsylvania 15222

Mindy
S. Pepin, 1545 South Westwood Circle, Ishpeming, MI 49849

/rd

[1] Section
105(c)(1) states, in part:

No 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 . . . because such miner . . . has filed or made a
complaint under or related to this Act, including a complaint notifying the
operator or the operator’s agent . . . of an alleged danger or safety or health
violation in a coal or other mine . . . or because of the exercise by such
miner . . . of any statutory right afforded by this Act.

30
U.S.C. § 815(c)(1) (emphasis added). Section 105(a) requires the Secretary to
advise the operator of the amount of the civil penalty proposed for an alleged
violation of section 105(c)(1), and section 110(a)(1) requires the Commission
to assess a penalty if a violation of section 105(c)(1) is found to have
occurred. 30 U.S.C. § 820(a)(1). Section 105 mandates the assessment of a
penalty for a violation of the Act, and Section 110(i) sets forth criteria the
Commission must consider in assessing any such penalty. 30 U.S.C. § 820(i).

[2] A red alert
indicates the potential for lightning in the area.

[3] Section
103(g)(1) of the Act states, in pertinent part:

Whenever a . . .
miner . . . has reasonable grounds to believe that a violation of this Act or a
mandatory health or safety standard exists, or an imminent danger exists, such
miner . . . shall have a right to obtain an immediate inspection by giving
notice to the Secretary or his authorized representative of such violation or
danger. Any such notice shall be reduced to writing, signed by the . . . miner,
and a copy shall be provided the operator or his agent no later than at the
time of inspection. . . . The name of the person giving such notice and the
names of individual miners referred to therein shall not appear in such copy or
notification. Upon receipt of such notification, a special inspection shall be
made as soon as possible to determine if such violation or danger exists in
accordance with the provisions of this title.

30
U.S.C. 813(g)(1).

[4] A notice of
negative findings informs an operator at the end of a 103(g) complaint
investigation that no violation of the Act or a mandatory health or safety
standard has been found.

[5] No citation or
citations were actually issued. Rather, the Secretary seeks the assessment of a
$20,000.00 penalty for the company’s violation of the Act in an amended
complaint. Sec’y Amended Complaint at 3.

[6] According to
Murphy, none of the supervisors or dispatchers to whom he spoke observed
lightning, nobody called in and reported seeing lightning, and an online
lightning strike map indicated that the nearest lightning was in Texas.
Additionally, Murphy and Jeffrey Delmont, a blasting supervisor at the mine,
testified that ThorGuard and Weather Channel radar maps did not indicate any
nearby thunderstorm activity. Tr. 97, 114-15.

[7] Hooper stated
that he found out about the complaint almost immediately after seeing Pepin’s
Take 5 card complaints, so the thought crossed his mind that it was Pepin who
called MSHA. Tr. 147, 150. However, Hooper agreed that Pepin could have raised
the issue with the safety committee of the United Steelworkers of America
(Pepin’s union), and a member of the union’s safety committee, rather than
Pepin, could have called MSHA. Tr. 154. Hooper maintained that he would have no
way of knowing who filed the 103(g) complaint in that scenario. Tr. 154-55.

[8] Pepin believed
that she did not make safety complaints very often and only regarding issues
that were “really concerning.” Tr. 35-36. She had never made a complaint to
MSHA prior to this incident, although she did recall bringing what she termed
“minor things” to the attention of a shift supervisor or salaried employee
verbally. Tr. 36-37. These included issues regarding a disintegrating walkway
grating and berms of insufficient height. Tr. 37.

[9] Hooper believed
miners should raise safety complaints with management before complaining to
MSHA. He expressed this belief during the following exchange with the solicitor
at the hearing:

Q: [Y]ou felt
that some people were making frivolous safety complaints?

A: Not frivolous
safety complaints. Frivolous complaints to MSHA.

Q: So you think
a complaint to MSHA is not a safety complaint?

A: Not if
it’s—if it’s not a real one.

Q: So who is to
judge what a real safety complaint is then?

A: Well, I guess
the safety committee and the supervisors.

Q: So then the
miners should take their complaints only to the supervisors and not call MSHA
if they feel that they have a complaint, to check to see if it’s a real safety
complaint?

*          *          *

A: Firstly, yes.

Q: So firstly
they should take a complaint to the supervisors instead of taking the complaint
to MSHA?

A: Yes.

Tr.
151.

[10] The court notes
that the Court of Appeals for the Sixth Circuit, wherein the mine that is the
subject of this proceeding is located, has previously refused to grant Chevron
deference to the Secretary’s interpretation of an ambiguous Mine Act provision.
See North Fork Coal Corp. v. FMSHRC, 691 F.3d 735 (6th
Circ. 2012).

[11] In exceptional
circumstances involving disparate impact language in antidiscrimination
statutes closely modeled after Title VII of the Civil Rights Act of 1964,
courts have occasionally declined to give such effect to the words “because
of,” however this court does not find that section 105(c)(1) of the Mine Act
fits into this exception. See, e.g., Griggs v Duke Power Co., 401
U.S. 424 (1971); Smith v. City of Jackson, 544 U.S. 228 (2005), Texas
Dept. of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc.,
135 S. Ct. 2507 (2015).

[12] The Commission
in Gray speculated that the totality of the circumstances test in Moses
may have been derived from section 8(a)(1) of the NLRA and subsequent case law.
Gray, 27 FMSHRC at 10. This finding is consistent with this court’s
approach in drawing from NLRA precedent in its interpretation of section
105(c)(1) where appropriate. Exactly how much of that case law should be imported
into the Mine Act, however, is open to question.

[13] The similarities
between the Commission’s adverse action test and interference test are not
coincidental. The “interference” analysis in Moses spawned two divergent
lines of cases and culminated in these two related tests. One line of cases (Moses-Gray-Franks)
treats “interference” as a separate cause of action, with a distinct framework
for analysis. See Franks , 36 FMSHRC 2088, 2103 n.22 (Young &
Cohen, Comm’rs); id. at 2105-07 (Jordan & Nakamura, Comm’rs) (citing
Gray, 27 FMSHRC at 8 n.6). Another line of cases (Moses-Hecla Day-Pendley)
treats the “interference” analysis in Moses as a guide for deciding when
actions other than “discharge” or “suspension” qualify as adverse actions for
traditional discrimination claims. See Sec’y of Labor on behalf of
Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-48, 1848 n.2 (Aug.
1984) (noting that when faced with actions outside of the “self-evident form[s]
of adverse action, like discharge or suspension, . . . [the Commission] must
examine closely the surrounding circumstances to determine the nature of this
action.”) (citing Moses, 4 FMSHRC at 1478); see also Pendley, 34
FMSHRC at 1930-31 (adopting the Burlington Northern adverse action test in
large part due to its consistency with Moses and Hecla-Day). This
has created, over time, no little confusion regarding exactly when the Gray-Franks
interference test is appropriate and when the Hecla Day-Pendley discrimination
test should be used instead. See, e.g., McNary v. Alcoa World
Alumina, Inc., 37 FMSHRC 2205 (Sept. 2015) (ALJ) (currently on appeal over
whether the ALJ erred in analyzing the interference claims under the Hecla Day-Pendley
adverse action test instead of the Gray-Franks interference
test.)

[14] The court
recognizes that the alleged acts of interference preceding the suspension in Franks
were serious and substantial. However, the plurality opinion finding
interference did not specify that acts of interference must be any more serious
and substantial than the acts that qualify as adverse actions under Burlington
Northern. Were the Commission to provide clarification along those lines, the
court would be less concerned about the potential for opportunistic pleading to
avoid the additional hurdles of the Pasula-Robinette test.

[15] By focusing on
the tendency to interfere with protected activity, the court adopts the
Secretary’s position that “it is not necessary to show that a miner has been
actually prevented or deterred from exercising rights.” Sec’y Br. 12. Further,
the court’s interference test does not focus on the type of employer decisions
that necessarily subject a miner to an actual detriment in his or her
employment relationship, such as discharge, suspension, or demotion. Thus,
statements that could reasonably chill the exercise of protected rights may
qualify as acts of interference even if the exercise of those rights has not
been chilled and the particular complainant in a proceeding has suffered no
detriment in his or her employment relationship.

[16] The court notes
that while the Pasula-Robinette test prohibits retaliation against the
complainant’s actual, attempted, or suspected exercise of protected rights, the
Secretary has urged the Commission to adopt an interference test that
encompasses attempts to chill the exercise of rights going forward without any
showing of protected activity. See, e.g., Sec’y of Labor, on behalf
of McGary v. The Marshall County Coal Co., 37 FMSHRC 2597 (Nov. 2015)
(ALJ). The court takes no position on this issue, as the instant matter involves
the actual exercise of protected activity.

[17] The court
however does not agree with the Secretary that Hooper’s actions interfered with
the rights of others seated in the ready room at the time. Sec’y Br. at 15. Hooper
did not publicize his message for Pepin to anyone else in the room, and there
is insufficient evidence in the record to find that anyone else in the room
knew or could have known what Hooper’s actions meant. Tr. 57.

[18] The court
observes that this factor may often distinguish interference from
discrimination claims. The adverse actions in a typical discrimination proceeding,
including discharge and suspension, often require multiple agents to sign off
on the decision giving rise to a cause of action and therefore tend to reflect
a level of deliberation and coordination (or at least a systemic failure of
oversight and supervision) that may not be present in an interference case
stemming from the words of a single supervisor in the heat of the moment. The
court believes that the civil penalties in these matters should reflect this
distinction.

[19] Payment should
be sent to: Mine Safety and Health Administration, U.S. Department of Labor,
Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.