Scott D. McGlothlin v. Dominion Coal Corporation

Plain-English summary

Scott McGlothlin was a continuous-miner operator who began the medical evaluation process for Part 90 protection after being diagnosed with pneumoconiosis. While that evaluation was pending, Dominion permanently reassigned him to less-dusty scoop work and reduced his hourly pay from $35 to $25.67 before he could complete the Part 90 election process. Judge Jerold Feldman held that pay protection covers the medical-evaluation period and a reasonable time to exercise the transfer option, because allowing a preemptive pay cut would defeat the statutory protection. Even under Dominion's preferred dates, the reduction occurred during that protected period. The Judge granted McGlothlin summary decision on liability and directed the parties to address back pay, interest, attorney fees, and other relief.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(1); 30 C.F.R. §§ 90.1 and 90.103(a)
• Outcome: McGlothlin's summary-decision motion and discrimination complaint were granted on liability, with relief reserved for later proceedings.
• Subsequent review: The later relief decision was reviewed in va-2014-233-d-commission.
• Key point: An operator may not avoid Part 90 safe-pay protection by cutting a miner's pay while the miner is undergoing the required medical evaluation and completing the election process.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue NW, Suite 520N

Washington, D.C. 20004

June 11, 2015

SCOTT D. MCGLOTHLIN,

Complainant,

v.

DOMINION COAL CORPORATION,

Respondent.

DISCRIMINATION PROCEEDING

Docket No. VA 2014-233-D

NORT-CD-2013-04

Mine: Dominion No. 7

Mine ID: 44-06499

DECISION
GRANTING COMPLAINANT’S

MOTION FOR
SUMMARY DECISION

AND

DECISION ON
LIABILITY

Before:            Judge Feldman

This matter is before me based on a Complaint of
Discrimination brought by       Scott D. McGlothlin against Dominion Coal
Corporation (“Dominion”), pursuant to section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(3) (2006) (“Mine
Act” or “the Act”).[1]
Under 30 C.F.R Part 90, a miner determined by the Secretary of Health and Human
Services to have evidence of the development of pneumoconiosis is given the
opportunity to work without a loss of pay in an area of the mine where the
average concentration of respirable dust in the mine atmosphere during each
shift to which that miner is exposed is continuously maintained at or below 1.0
milligrams per cubic meter of air (“mg/m3”). 30 C.F.R. §§ 90.1,
90.3; Goff v. Youghiogheny & Ohio Coal Co.,      8 FMSHRC 1860 (Dec.
1986). The issue in this proceeding is whether Dominion violated section
105(c)(1) by preempting McGlothlin’s statutory right to Part 90 protection.  

Section 105(c)(1) provides, in relevant part:

No person shall . . . in any manner
discriminate . . . or cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any miner . . . [who] is
the subject of medical evaluations and potential transfer under a standard
published pursuant to section 101 . . . .

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

McGlothlin, who remains employed at Dominion’s
No. 7 mine, was permanently reassigned on June 3, 2013, from his position as a
continuous miner operator at a rate of pay of $35.00 per hour to a position as a
scoop operator in less-dusty outby areas of the mine at a pay rate of $25.67
per hour. McGlothlin’s complaint alleges that Dominion violated section
105(c)(1) of the Act by interfering with the safe pay protection afforded to
him under 30 C.F.R. Part 90 of the Secretary’s regulations as a miner afflicted
with pneumoconiosis pursuing Part 90 protection. Dominion denied McGlothlin the
opportunity to work in a less-dusty area of the mine without suffering a loss
in pay. Dominion, in effect, asserts that it unwittingly, but permissibly,
circumvented McGlothlin’s Part 90 safe pay protection rights when it
transferred him to work as a scoop operator at a lower rate of pay before
McGlothlin could exercise his Part 90 option because a determination of his
eligibility under Part 90 was still pending.

The parties have filed cross-motions for summary
decision. For the reasons that follow, construing the facts in a light most
favorable to Dominion, McGlothlin’s motion for summary decision and
discrimination complaint shall be granted.

I.                  
Background

a.       Statutory
and Regulatory Framework

Section 203(b)(1) of the Act provides:

[A]ny miner
who, in the judgment of the Secretary of Health and Human Services based upon
such reading or other medical examinations, shows evidence of the development
of pneumoconiosis shall be afforded the option of transferring from his
position to another position in any area of the mine, for such period or
periods as may be necessary to prevent further development of such
disease, where the concentration of respirable dust in the mine atmosphere is
not more than 2.0 milligrams of dust per cubic meter of air.

30 U.S.C. § 843(b)(1). Section 203(b)(3) provides that a
miner transferred based upon his development of pneumoconiosis shall be paid
his regular rate of pay immediately received by him prior to his transfer. 30
U.S.C. § 843(b)(1).

Section
101(a) of the Act, 30 U.S.C. § 811(a), delegates the Secretary with the
authority to promulgate regulations implementing the protections afforded to
miners afflicted with pneumoconiosis under section 203(b) of the Act. In this
regard, section 101(a) provides, in pertinent part:

The Secretary shall by rule in accordance with
procedures set forth in [the Administrative Procedure Act] develop, promulgate,
and revise as may be appropriate, improved mandatory health or safety standards
for the protection of life and prevention of injuries in coal or other mines.

30 U.S.C. §
811(a).

Consistent with this statutory authority, the
Secretary promulgated Part 90 of his regulations to supersede section 203(b) of
the Act to provide miners suffering with pneumoconiosis the opportunity to
transfer to a less-dusty occupation without a loss in pay.   30 C.F.R. § 90.1. As
such, the Secretary promulgated section 90.103(a), essentially repeating the
statutory language in section 203(b)(3) of the Act. Section 90.103(a) states:

The operator shall compensate each Part
90 miner at not less than the regular rate of pay received by that miner immediately
before exercising [his rights under Part 90].

30 C.F.R. § 90.103(a) (emphasis added).

b.      Part
90 Application Procedure

Eligibility for Part 90 pay protection rights
requires the National Institute for Occupational Safety and Health (“NIOSH”), a
component of the Department of Health and Human Services (“HHS”), to determine
that an applicant miner has pneumoconiosis. According to HHS regulations, a
qualifying diagnosis of pneumoconiosis must be made by at least two physicians
certified by NIOSH based on objective clinical x-ray findings. 42 C.F.R. §§
37.52, 37.53, 37.102. If the first two physicians disagree about the presence
or classification of pneumoconiosis, NIOSH will obtain a third opinion. 42
C.F.R. § 37.53. If two of the three physicians agree on a pneumoconiosis
diagnosis, their agreement constitutes a “final determination” for the purposes
of Part 90 eligibility. Id.

After obtaining a “final determination,” NIOSH
will notify the applicant miner of his eligibility to exercise his Part 90
transfer and safe pay protection rights. A miner electing Part 90 protection
exercises his option “by signing and dating the Exercise of Option Form and
mailing the form to [MSHA].” 30 C.F.R. § 90.3(d). A miner does not have to
immediately exercise his Part 90 option after being informed of his
eligibility. See Rochester & Pittsburgh Coal Co., 10 FMSHRC 1313
(Sept. 1988) (ALJ), (affirming a delay in a miner’s exercise of his Part 90
rights that occurred March 1988, although the miner was initially notified of
his Part 90 eligibility in August 1979), aff’d 12 FMSHRC 189 (Feb.
1990). Rather, a miner qualified for Part 90 eligibility retains the option to
exercise his rights under Part 90 unless he waives his right to Part 90
protection.[2]

II.               
Findings of Fact

McGlothlin began working for Dominion on August
16, 2001, as a continuous miner operator in Dominion’s No. 36 mine. Complainant’s
Mot. for Summ. Dec., at 2 (“Comp. Mot.”). While employed at the No.
36 mine, on January 21, 2013, McGlothlin sought treatment from Dr. Christopher
Morris for a persistent cough. Id., Ex. A. On January 22, 2013, Dr.
Perry D. Jerrigan interpreted a chest x-ray taken by Dr. Morris as consistent
with pneumoconiosis. Comp. Mot. at 2.

On February 11, 2013, following the closure of
the No. 36 mine, McGlothlin was transferred to Dominion’s No. 7 mine in
Buchanan County, Virginia, at which time McGlothlin continued to work as a
continuous miner operator earning $35.00 per hour. Id.; Dominion’s
Resp. and Cross-Mot. for Summ. Dec., at 3 (“Dom. Resp.”). On March 7,
2013, during his continued tenure as a continuous miner operator at the No. 7
mine, McGlothlin underwent a follow-up CT scan, which confirmed that McGlothlin
had interstitial lung disease, as evidenced by progressive massive fibrosis, a
serious form of pneumoconiosis. Comp. Mot. at 2, Ex. B.

Following his pneumoconiosis diagnosis, beginning
on May 1, 2013, McGlothlin began pursuing his Part 90 eligibility by seeking a
NIOSH determination of his respiratory condition based on an evaluation of his
chest x-ray findings. Id. at 3-4, Exs. C, D, E. During the pendency of
McGlothlin’s NIOSH evaluation process, beginning June 3, 2013, McGlothlin was
reassigned to an outby scoop operator position at a rate of pay of $25.67 per
hour, a reduction from the $35.00 hourly pay rate he had been receiving as a
continuous miner operator.[3]
Dom. Resp. at 4. Dominion agrees that June 3, 2013, is the first date
that Dominion’s employment records reflect McGlothlin’s reduction in pay. Dominion’s
Reply, at 6-7 (“Dom. Reply”).

NIOSH’s evaluation of McGlothlin culminated on
June 6, 2013, three days after McGlothlin’s formal pay reduction, when NIOSH
made a “final determination” that McGlothlin’s condition constituted category
one pneumoconiosis. Comp. Mot. at 6, Ex. E. On June 12, 2013, NIOSH sent
McGlothlin a blank Exercise of Option to Transfer Form (“Exercise Form”) with
instructions that McGlothlin was to “sign and date the enclosed form … [and
m]ail the signed form in the enclosed postage-paid envelope” to MSHA to
exercise his Part 90 rights. Comp. Mot. at 5, Ex. H; see 30
C.F.R. § 90.3(d). McGlothlin received the Exercise Form in the mail on June 14,
2013. Comp. Mot. at 5. McGlothlin alleges that an executed Exercise Form
was mailed to MSHA on the same day, on June 14, 2013.[4]
Id., Ex. I.

On June 19, 2013, McGlothlin’s wife accessed
McGlothlin’s online pay stub for the pay period from June 2 to June 15, 2013. Id.
at 5-6. This pay stub reflected an hourly rate of $25.67 for the entire pay
period. Id., Ex. J. Apparently concerned about the reduction in pay for
work performed during the pay period ending June 15, 2013, upon learning of the
reduction, Mrs. McGlothlin’s emailed MSHA on June 19, 2013, to inquire about
the Exercise Form that was allegedly mailed to MSHA on June 14, 2013. Id.
at 6, Ex. K. The following day, on June 20, 2013, an MSHA representative,
responding to Mrs. McGlothlin’s email, informed her that the Exercise Form she allegedly
mailed to MSHA on June 14, 2013, had not been received. Id. The MSHA
representative suggested that McGlothlin could email MSHA a signed form to
expedite the process of notifying Dominion of McGlothlin’s exercise of his Part
90 rights. Comp. Mot. at 6, Ex. K. She did so and an Exercise
Form executed by McGlothlin was, in effect, received by MSHA on June 21, 2013.[5]
Id. at 7, Ex. K. Dominion asserts that June 21, 2013, is the earliest controlling
date of record of McGlothlin’s exercise of his Part 90 rights. Dom. Resp.
at 10.

Thereafter, on June 24, 2013, MSHA sent a letter
to Dominion, informing it that McGlothlin had executed his Part 90 rights. Comp.
Mot. at 8, Ex. N. The letter stated:

Among other specified requirements,
Part 90 requires that each Part 90 miner be compensated at not less than the
regular rate of pay received by that miner immediately before exercising his or
her option, or when transferred, at not less than the regular rate of pay
before the transfer.

Id. On June 26, 2013, Dominion received MSHA’s letter
notifying it that McGlothlin had executed his Part 90 rights. Id. Dominion
alleges it did not have knowledge of McGlothlin’s medical status or Part 90
application prior to June 26, 2013. Dom. Resp. at 21. Therefore,
Dominion relies on its assertion that it transferred and reduced McGlothlin’s
pay on June 3, 2013, before McGlothlin exercised his Part 90 option by email on
June 21, 2013.

III.            
Operative Dates

As a preliminary matter, there are three dates
that are dispositive of the outcome of this case: (1) The period during
which McGlothlin was “the subject of medical evaluations       [by NIOSH] and
potential transfer under [Part 90]” (30 U.S.C. § 815(c)(1)); (2) the effective
date that McGlothlin’s pay was reduced from $35.00 to $25.67 per hour; and (3)
the date McGlothlin exercised his Part 90 option.

1. The
period during which McGlothlin was the subject of medical evaluations   by NIOSH
and potential transfer under Part 90

The undisputed documentary evidence demonstrates
that McGlothlin’s chest x-rays were undergoing NIOSH evaluation during the
period April 30 to June 6, 2013. See Comp. Mot., Exs. C, D, E.

2.      Operative
pay reduction date

McGlothlin asserts that his hourly rate of pay
was reduced from $35.00 to $25.67 per hour effective June 16, 2013, after he
received an equitable retroactive pay adjustment for the pay period June 2 to
June 15, 2013. Id. at 15-18. Despite the retroactive equitable pay
adjustment, Dominion asserts that the effective date that McGlothlin’s hourly
pay was reduced was June 3, 2013, when Dominion’s payroll records reflect that
McGlothlin was permanently reassigned to a scoop operator position. Dom.
Reply at 6-7.

Here, the dispositive issue is the effective
date of the reduction of McGlothlin’s hourly rate of pay. Dominion contends
that the equitable adjustment was not paid to McGlothlin for services rendered
or as a “regular rate of pay,” but rather as an equitable concession for its
failure to timely notify McGlothlin of his reassignment and reduction in pay. Dom.
Resp. at 15-16. “Regular rate of pay,” as contemplated by Part 90, “is the
dollar rate—the rate at which the miner was actually remunerated for the work
he did—irrespective of his job classification.” Mullins v. Andrus, 664
F.2d 297, 299 (D.C. Cir. 1980). Thus, the term “regular rate of pay” in Part 90
contemplates payment for services rendered, not equitable compensation.

Dominion’s payroll records reflect that he was
formally assigned to a scoop operator position and would thereafter be paid at
the scoop operator rate effective June 3, 2013. Dom. Resp. at 4, Ex. J. The
equitable adjustment to McGlothlin’s paycheck for the period June 2 to June 15,
2013, does not govern because it was neither a “regular” rate of pay, nor
remuneration for work performed. In any event, whether the pay reduction was
effective June 3, 2013, or June 15, 2013, is not material because in either
case it was made during McGlothlin’s Part 90 application process.[6]

3.      Operative
Part 90 Exercise Date

Although McGlothlin alleges that an Exercise
Form was initially mailed to MSHA on June 14, 2013, the first documented
evidence of McGlothlin’s election having been received by MSHA is June 21,
2013, when McGlothlin emailed his Exercise Form to MSHA.[7]
Comp. Mot. at 7, Ex. K. Consequently, the record supports June 21, 2013,
as the effective date of McGlothlin’s exercise of his Part 90 rights. In this
regard, Dominion also asserts that the record reflects that June 21, 2013, is
the date that McGlothlin exercised his Part 90 rights. Dom. Resp. at 10.

IV.            
Analysis

a.       Extension
of Safe Pay Protection During Part 90 Application Process

As a threshold matter,
the parties’ focus on section 90.103(a) is misplaced. As previously noted,
section 90.103(a) provides:

The operator shall compensate each Part
90 miner at not less than the regular rate of pay received by that miner
immediately before exercising [his rights under Part 90].

30 C.F.R. § 90.103(a) (emphasis added).

Thus, section 90.103(a) applies only to
transfers and reductions in pay of miners who have both been qualified by
NIOSH for Part 90 protection and who have exercised their Part 90
rights, neither of which applies in this case. The record reflects, as Dominion
asserts, that McGlothlin’s transfer to a scoop operator and resultant reduction
in his hourly rate of pay from $35.00 to $25.67 was effective June 3, 2013. NIOSH
determined that McGlothlin was eligible for Part 90 status on June 6, 2013, and
McGlothlin received notice of his eligibility on June 14, 2013. The documented
evidence also reflects, as Dominion asserts, that McGlothlin exercised his Part
90 option on June 21, 2013. Thus, this case concerns McGlothlin’s transfer and
reduction in pay before he was approved by NIOSH and, most importantly, before
he exercised his Part 90 option.

It is section 105(c)(1) of the Act, the basis
for this discrimination proceeding, that addresses the propriety of a transfer
and reduction in pay made between the time a miner initiates the NIOSH approval
process for his Part 90 eligibility and his timely exercise of his Part 90
option thereafter. The anti-interference provisions of section 105(c)(1) provide,
in relevant part:

No person shall . . . in any manner
discriminate . . . or cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any miner . . . [who] is
the subject of medical evaluations and potential transfer under a standard published
pursuant to section 101 . . . .

30 U.S.C. § 815(c)(1) (emphasis added).[8]

The plain language of section 105(c)(1) protects
the rights of prospective Part 90 miners whose x-ray findings are subject to
medical evaluation by NIOSH during the period required to determine whether
such miners are eligible for Part 90 status. To protect a miner’s statutory
right to the safe pay provisions of section 90.103, Part 90 miners must be
protected from pay reductions during the application process provided in
section 90.3 to avoid rendering Part 90 pay protection meaningless. When
Congress drafted section 105(c)(1) to include protections for miners who are “the
subject of medical evaluations and potential transfer,” surely they intended to
provide rights for miners—like McGlothlin—who were in the process of seeking
Part 90 eligibility. Concluding otherwise would permit mine operators to evade
their Part 90 obligations with impunity by circumventing Part 90 through
transfers and pay reductions during a prospective Part 90 miner’s application
process, preempting a meaningful exercise of a miner’s Part 90 option.

Thus, in the present case, the operable time
period during which time NIOSH was evaluating McGlothlin’s x-rays is between April
30 and June 6, 2013. McGlothlin’s Part 90 protection extends until June 21,
2013, when McGlothlin exercised his Part 90 option shortly after NIOSH notified
him of his eligibility for Part 90 benefits on June 14, 2013.[9]
During this period, Dominion was precluded by section 105(c)(1) from any
preemptory transfer of McGlothlin that circumvented its obligation to provide
McGlothlin with Part 90 protection. Having transferred McGlothlin with a
reduction in his hourly rate of pay during this period, effective June 3, 2013,
Dominion violated section 105(c)(1).

b.      Section
105(c)(1) Interference

The evidence reflects that McGlothlin was an
experienced continuous miner operator, having previously been employed as such
beginning in August 2001 at Dominion’s No. 36 mine. Comp. Mot. at 2. McGlothlin
continued to work as a continuous miner operator when he was transferred to
Dominion’s No. 7 mine in February 2013, until March 31, 2013, when McGlothlin’s
continuous miner duties were assigned to Josh Robinette. Id.; Dom.
Resp. at 3. At that time, McGlothlin was reassigned to outby duties in
areas of the mine where there was less concentration of coal dust, although
McGlothlin continued to retain the job title and pay rate of a continuous miner
operator. Dom. Resp. at 3-4. Dominion contends that Robinette was a
superior continuous miner operator in that he was capable of achieving greater
coal production. Dom. Reply at 15-16.

Dominion seeks to escape liability by asserting
that it had no knowledge that McGlothlin was undergoing NIOSH evaluation when
it selected Robinette as its permanent continuous miner operator and ultimately
reduced McGlothlin’s pay, effective June 3, 2013. As noted, Dominion claims
that the first time it received notice of McGlothlin’s Part 90 application was
June 26, 2013, when MSHA notified it of McGlothlin’s Part 90 status. Dom.
Resp. at 21.

The Commission has noted that direct evidence of
a discriminatory motive is rare. Sec’y of Labor on behalf of Chacon v.
Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981) (quoting NLRB v.
Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 1965)), rev’d on
other grounds, 709 F.2d 86 (D.C. Cir. 1983). Consequently, Dominion’s
asserted lack of knowledge of McGlothlin’s Part 90 application, particularly in
view of the coincidence in time and preemptory nature of Dominion’s reduction
in McGlothlin’s pay during the application process, is entitled to little
weight. However, irrespective of Dominion’s self-serving characterization of
its lack of knowledge of McGlothlin’s Part 90 application, a miner may
demonstrate interference under section 105(c)(1) without the need to
demonstrate proof of a discriminatory motive. UMWA ex rel. Franks v. Emerald
Coal Res. LP, 36 FMSHRC 2088, 2107, 2113 (Aug. 2014) (separate opinion) (citing
Sec’y of Labor ex rel. Gray v. North Star Mining, Inc., 27 FMSHRC 1
(2005)).[10]
Therefore, whether Dominion had knowledge of McGlothlin’s Part 90 application
is immaterial.

In distinguishing the interference analysis from
the routine discrimination analysis in Pasula-Robinette and its progeny,
the Commission has adopted a two-prong test for section 105(c)(1) interference
cases:

(1)   Whether a mine
operator’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)   Whether 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.

See Emerald Coal, 36 FMSHRC
at 2108 (separate opinion) (emphasis added).

Obviously, with respect to the first criteria, McGlothlin
is a member of the protected class of prospective Part 90 miners that section 105(c)(1)
seeks to protect. To give effect to Dominion’s pay reduction during the period
when McGlothlin was undergoing medical evaluation to determine his eligibility
for Part 90 would eviscerate, contrary to legislative intent, the protections
afforded to miners with pneumoconiosis under Part 90.

With respect to the second criteria, absent a
discriminatory motive, a mine operator is always free to exercise its business judgment
with respect to the reassignment of miners to different occupations within any
area of the mine. However, when the reassigned miner is entitled to Part 90 pay
protection, a mine operator is absolutely liable to compensate that miner at no
less than the regular rate of pay received by that miner immediately before his
Part 90 pay protection rights vested. In this case, McGlothlin’s Part 90 pay
protection became effective as of April 30, 2013, when NIOSH began its x-ray
evaluation to determine the extent of McGlothlin’s respiratory condition.

Commission Rule 67(b) provides that a motion for
summary decision shall be granted if there is no genuine issue as to any
material fact, and the moving party is entitled to summary decision as a matter
of law. 29 C.F.R. § 2700.67(b); see also Hanson Aggregates New York, Inc.,
29 FMSHRC 4, 8-9 (Jan. 2007) (citations omitted). Moreover, in determining if a
motion for summary decision should be granted, the court must construe the
undisputed material facts in a light most favorable to the opposing party. Hanson,
29 FMSRHC at 9.

Construing the evidence in a light most
favorable to Dominion by adopting Dominion’s assertion that June 3, 2013, is
the date of McGlothlin’s pay reduction, and that June 21, 2013, is the date of
McGlothlin’s exercise of his Part 90 rights, does not alter the inescapable
conclusion that McGlothlin’s pay was reduced during the period between NIOSH’s
evaluation of his respiratory condition and McGlothlin’s exercise of Part 90
status shortly thereafter. Consequently, McGlothlin’s motion for summary
decision, seeking the grant of his 105(c) discrimination complaint based on
Dominion’s interference with the rights afforded to him under Part 90,
shall be granted.

ORDER

In view of the above IT IS
ORDERED that Scott D. McGlothlin’s motion for summary decision and discrimination
complaint ARE GRANTED.

This Decision on Liability is an interim
decision. It does not become final until a Decision on Relief is issued. Accordingly, IT
IS FURTHER ORDERED that the parties should confer in an attempt to
reach an agreement on the specific relief to be awarded. Consideration should
be given to the difference in the compensation paid to McGlothlin and the
compensation that he is entitled to as a Part 90 miner, plus interest,
reasonable attorney’s fees, and reimbursement for any other relevant incidental
expenditures. If the parties agree to stipulate to the appropriate relief to be
awarded they shall file a Joint Stipulation on Relief on or before July
29, 2015. An agreement concerning the scope and amount of relief to be
awarded shall not preclude either party from appealing this decision.

If the parties cannot agree on the relief to be
awarded, the parties ARE FURTHER ORDERED to file, on
or before August 19, 2015, Proposals for Relief specifying the appropriate
relief to be awarded. If the parties cannot reach a joint stipulation, the
parties should furnish documentation, such as payroll records, pay stubs or tax
returns, to support their relief calculation. After Petitions for Relief are
filed, I will confer with the parties to determine if there are disputed
factual issues that require an evidentiary hearing.

Finally, Commission Rule 44(b), 29 C.F.R. §
2700.44(b), provides that the Judge shall notify the Secretary in writing
immediately after sustaining a discrimination complaint brought by a miner
pursuant to section 105(c)(3) of the Act. Consequently, the Secretary shall be
provided with a copy of this decision so that he may file a petition for
assessment of civil penalty with this Commission.

/s/
Jerold Feldman

Jerold
Feldman

Administrative
Law Judge    

Distribution:

Evan B. Smith, Esq., Wes Addington, Esq., Appalachian
Citizens Law Center, Inc., 317 Main Street, Whiteburg, KY 41858

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

David Hardy, Esq., Scott Wickline, Esq., Hardy Pence PLLC,
500 Lee Street East, Suite 701, P.O. Box 2548, Charleston, WV 25329

Jason
Grover, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th
Street South, Arlington, VA 22202

/acp     

[1] McGlothlin’s complaint, which serves as the
jurisdictional basis for this matter, was filed with the Secretary of Labor
(the “Secretary”) on August 5, 2013, in accordance with section 105(c)(2) of
the Act, 30 U.S.C. § 815(c)(2). McGlothlin’s complaint was investigated by the
Mine Safety and Health Administration (“MSHA”). On November 14, 2013, MSHA
advised McGlothlin that it did not believe that there was sufficient evidence
to establish, by a preponderance of the evidence, that a violation of section
105(c) had occurred. On April 2, 2014, McGlothlin filed his discrimination
complaint with this Commission, which is the subject of this proceeding.

[2] A miner can waive his Part 90 protection: by filing a
written waiver with MSHA; by accepting a position that exposes him to higher
dust concentrations; or by rejecting an offer to transfer to work in a less
dusty environment. 30 C.F.R. §90.104(a).

[3] Upon being transferred to the No. 7 mine, McGlothlin
worked as a continuous miner from February 11 until March 31, 2013, when he was
temporarily reassigned to outby duties in areas of the mine where there was
less concentration of coal dust. Dom. Resp. at 3. Despite his
reassignment, Dominion’s employment records reflect that McGlothlin maintained
the job title “miner operator” and continued to receive the continuous miner
operator hourly pay of $35.00 per hour until June 1, 2013. Id. at 4. On
June 7, 2013, McGlothlin’s received his regular $35.00 hourly pay rate for the
pay period from May 19 to June 1, 2013. Comp. Mot. at 4, Ex. F. However,
Dominion did not inform McGlothlin that he was permanently reassigned as a
scoop operator until a June 10, 2013, meeting between McGlothlin and Dominion
management. Id. at 4-5; Dom. Resp. at 4-5. Dominion asserts that McGlothlin
was advised that his rate of pay had been reduced from $35.00 to $25.67 per
hour at the June 10, 2013, meeting. Comp. Mot. at 5. On June 20, 2013,
McGlothlin again met with Dominion management to discuss his reduction in pay. Id.
at 6-7; Dom. Resp. at 5-6. As a concession for failing to inform McGlothlin
of his   (fn. 3 cont’d) reassignment until June 10, 2013, Dominion management agreed
to retroactively equitably adjust McGlothlin’s pay to $35.00 per hour for the
pay period from June 2 to June 15, 2013. Dom. Resp. at 5-6; Comp. Mot.,
Ex. L. Thereafter, beginning on June 16, 2013, McGlothlin was regularly
paid the lower scoop operator rate of $25.67 per hour. See Comp. Mot.,
Ex. Q.

[4]
The evidence of record does not support McGlothlin’s assertion that an executed
Exercise Form was mailed to MSHA on June 14, 2013. Rather, the evidence reflects
that McGlothlin’s executed Exercise Form was initially received by MSHA through
regular mail on August 14, 2013. Comp. Mot. at 9, Ex. I. Regardless,
as discussed infra, the operative date of McGlothlin’s Part 90 exercise
is June 21, 2013, the date McGlothlin’s wife emailed an executed Exercise Form
to MSHA. Id. at 7, Ex. K.

[5] The email containing McGlothlin’s Exercise Form was
not opened by MSHA until June 24, 2013. Comp. Mot. at 7, Ex. J. However,
Dominion concedes that the Exercise Form was effectively received by MSHA on
June 21, 2013. Dom. Resp. at 10.

[6] The Part 90 application process consists of the
period during which McGlothlin was subject to medical evaluation by NIOSH and a
reasonable period of time thereafter during which time McGlothlin can exercise
his Part 90 option.

[7] The parties disagree over whether Part 90 rights vest
when an eligible miner signs, dates, and mails his Exercise Form to MSHA, as
McGlothlin argues, or whether Part 90 rights vest when MSHA receives the
executed Exercise Form, as Dominion argues. For the purposes of this case, this
distinction is irrelevant, for McGlothlin’s pay protection rights vested on
April 30, 2013, when McGlothlin submitted his x-ray findings for NIOSH
evaluation, well before his exercise of his Part 90 option.

[8] Part 90 was promulgated pursuant to section 101 of
the Act. 30 C.F.R. § 90.1.

[9] As Part 90 protects miners during the period of time
they are subject to medical evaluation by NIOSH, the protection must be
extended for a reasonable period of time to enable a miner to exercise his Part
90 option after NIOSH’s notification of the miner’s Part 90 eligibility. Here,
McGlothlin exercised his Part 90 option on June 21, 2013, within reasonable
period of time after he received notification of his Part 90 eligibility on
June 14, 2013.

[10] Emerald Coal involved discrimination
complaints regarding miners’ rights to confidentiality. Four Commissioners affirmed
the complaints, two of which were expressed in a separate opinion. The separate
opinion held that a miner may prevail in a complaint of unjustified
interference with the exercise of a protected right, separate and apart from
intentional discrimination claims adjudicated under the traditional Pasula-Robinette
framework. Emerald Coal, 36 FMSRHC at 2105 (separate opinion).