Secretary of Labor obo Thomas McGary and Ron Bowersox and United Mine Workers of America International Union v. The Marshall County Coal Co., et al.
Secretary of Labor obo Thomas McGary and Ron Bowersox, et al. v. The Marshall County Coal Co., et al. (FMSHRC WEVA 2015-583 D, et al.): Mandatory reporting rule unlawfully chilled confidential MSHA complaints
Apply this precedent to your situation
This is citable Commission precedent from 2016, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
After Murray Energy acquired five West Virginia coal mines, CEO Robert Murray held mandatory meetings that told miners they were required to report to management the same safety concerns they submitted confidentially to MSHA under section 103(g). The presentations also criticized complaints that did not produce citations and linked their use to the survival of miners' jobs. The Commission affirmed five interference violations because a reasonable miner would view the policy and job warnings as chilling the right to make confidential MSHA complaints. It held that management's legitimate interest in learning about hazards did not outweigh the harm because the rule covered all compliance complaints, was not narrowly tailored, and provided no way to preserve anonymity. The Commission also affirmed dismissal of a second Marshall County count as duplicative. It vacated five $30,000 penalties because the Judge had insufficiently supported her finding that a related federal lawsuit showed no good-faith abatement, and it remanded penalty reassessment and clarification of the statement Murray was required to read to miners. Chairman Jordan and Commissioner Cohen would have affirmed the penalties.
Decision snapshot
- Governing provisions: 30 U.S.C. §§ 813(g)(1) and 815(c)
- Outcome: Five interference violations were affirmed, a duplicative sixth count remained dismissed, and the penalties and corrective-reading details were remanded.
- Key point: An operator may seek prompt notice of hazards, but it cannot require miners to surrender the confidentiality Congress made essential to section 103(g) complaints.
Full text (FMSHRC public release)
FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION
1331
PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON,
DC 20004-1710
SECRETARY
OF LABOR,
MINE
SAFETY AND HEALTH
ADMINISTRATION
(MSHA), on behalf
of
THOMAS McGARY and RON
BOWERSOX
and
UNITED
MINE WORKERS OF
AMERICA
INTERNATIONAL UNION,
Intervenor
:
:
:
:
:
:
:
:
:
:
:
:
Docket
No. WEVA 2015-583-D
v.
:
:
THE
MARSHALL COUNTY COAL CO., :
McELROY
COAL CO., MURRAY :
AMERICAN
ENERGY, INC., and :
MURRAY
ENERGY CORPORATION[1]
:
BEFORE:
Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY:
Young, Nakamura, and Althen, Commissioners
These
proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act” or “Act”), and involve complaints
of interference brought by the Secretary of Labor on behalf of six miners pursuant
to section 105(c) of the Act, 30 U.S.C. § 815(c).[2]
The Respondents are five underground coal mines in West Virginia and associated
corporate entities, including the owner and operator of the five mines, Murray
Energy Corporation.[3]
The interference complaints all involve a largely common fact pattern concerning
meetings Respondents held with their miners at each of the five mines. One of
the subjects addressed by Respondents at the meetings was miners contacting the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) pursuant
to section 103(g) of the Act, 30 U.S.C. § 813(g),[4] to
alert the agency to perceived safety and health issues at the mines.
In her decision on the
complaints, the Judge largely ruled in favor of the Secretary and the
complainants, finding that interference with miners’ section 103(g) rights had
been established. 37
FMSHRC at 2608-10. However, she also dismissed one count of the Secretary’s
complaint. Id. at 2609. The Commission granted the cross petitions for
discretionary review filed by the Respondents and the Secretary, and later
granted the UMWA’s motion to intervene.
I.
Factual and
Procedural Background
In December 2013, a
subsidiary of Murray Energy acquired the five mines from CONSOL Energy, Inc. Shortly
thereafter, MSHA received a number of complaints from miners alleging safety
hazards and violations at the mines, which MSHA investigated. At all of the
mines, hourly production and maintenance workers are represented by the UMWA
through local unions. 37 FMSHRC at 2600.
On April 10, 2014, Robert Murray,
the Chief Executive Office of Murray Energy Corporation, wrote to UMWA President
Cecil Roberts about that “rash” of complaints from “disgruntled employees” and
union officials, which he believed were being made not for safety reasons, but
rather to strike back at the mining companies. Mr. Murray took the position
that this was a misuse of the section 103(g) process that was wasting the
inspection resources of both MSHA and the mines. He stated that while the
company would “never interfere with a miner’s right to file 103(g) complaints,”
he went on to request that management “be given the opportunity to also
simultaneously be informed [of] safety issues in place of the 103(g)
complaints, or afterwards.” Gov’t Ex. 18.[5]
Two weeks later, Respondents
began a series of what they refer to as “Awareness Meetings” at their mines. Miner
and management attendance is mandatory at such meetings for each shift at each
mine. The five mines employed approximately 3500 workers in total during the
time in question. 37 FMSHRC at 2600.
At each of the meetings held
at those mines between April and July 2014, CEO Murray would speak while giving
a PowerPoint presentation. Id. at 2600-01. There were between 69 and 77 PowerPoint
slides, including three slides which further addressed the section 103(g)
issues Murray had previously raised in his letters. Gov’t Ex. 4-7. CEO Murray
also sent a copy of the PowerPoint presentation to Cecil Roberts prior to the
first meeting. Gov’t Ex. 20.
At one of the Marshall
County Mine Awareness Meetings, a miner made a recording of CEO Murray’s
remarks given in conjunction with the PowerPoint presentation, including his
remarks regarding the section 103(g) issue slides. Recordings of Murray’s
statements were not made at the other Awareness Meetings. 37 FMSHRC at 2601-02.
On June 23, 2014, Bowersox filed a discrimination
complaint with MSHA with regard to the Awareness Meetings and the letters sent
to local union officials, alleging that management at the five mines was trying
to intimidate miners and interfere with the miners’ right to file section
103(g) complaints with MSHA while keeping their identities confidential. Gov’t
Ex. 1. On July 21, 2014, the five other complaints were filed with MSHA based
upon the same allegations. Gov’t Ex. 2.
On March 24, 2015, the
Secretary filed with the Commission the five actions on behalf of the six
complainants, and on July 14, 2015, amended the actions. The Secretary alleged
that Respondents interfered with the exercise of miners’ rights at each of the
mines by coercively imposing a requirement that miners who make section 103(g)
complaints report the same complaint to management. The Secretary argued that
this undermined a miner’s right to make a section 103(g) complaint to MSHA on a
confidential basis. The Secretary further identified the threat of reprisal
against the Marshall County miners and the threat to close the Marshall County
Mine as a separate count of interference. Discovery subsequently ensued,
including Respondents’ deposition of each of the six complainants. 37 FMSHRC at
2602.
The witness list which the
Secretary submitted for the hearing included three of the six complainants: Bowersox,
Michael Payton, and Ann Martin. On the Friday prior to the hearing scheduled
for Tuesday, September 22, 2015, Respondents and related mining companies filed
a complaint in the United States District Court for the Northern District of
West Virginia against the UMWA, its District 31, and Bowersox. The complaint
alleged a breach of the National Bituminous Coal Wage Agreement of 2011, the
collective bargaining agreement between the UMWA and coal mine operators,
including Respondents (hereinafter “CBA”). The court complaint contended that
the CBA and past practice under it were being continually breached by miners
making section 103(g) complaints to MSHA without first raising the issues with
mine management. The complaint included quotes from the depositions of
Bowersox, Payton, and Martin taken in this case. Gov’t Ex. 31.
Shortly before the hearing,
the Secretary moved to cancel the hearing and submit the case for summary
decision, on the ground that the three complaining witnesses were intimidated
by the federal court complaint. The Secretary stated, and reiterated at
hearing, that the three were not aware at the time of their depositions that
their testimony would be used in a separate law suit filed against the union,
and subsequently did not wish to testify further. Tr. 16-18.[6] Consequently, at the hearing no
witnesses were called by either the Secretary or the Respondents, and Joint
Stipulations of Fact and 28 agreed-to exhibits were admitted into the record by
the Judge, along with four exhibits admitted over Respondents’ objections.
In
her decision, the Judge found that miners had a protected right under section
103(g) to make anonymous complaints to MSHA regarding health and safety
violations at the five mines, and that under section 105(c), CEO Murray’s
presentations at the Awareness Meetings constituted unlawful interference with
the miners’ exercise of that right. She further concluded that in this case the
harm to the miners’ protected rights was not outweighed by the mine operators’
asserted interests. 37 FMSHRC at 2603-08. As relief, the Judge ordered that a
number of remedial measures be taken, some of which are at issue on review. See
id. at 2609.
II.
Disposition
A. Whether
Interference Was Established
Section
105(c) of the Mine Act contains multiple references to the prohibition against
interference with miners’ protected rights. Section 105(c)(1) states that “[n]o
person shall discharge or in any manner discriminate against . . . or
otherwise interfere with the exercise of the statutory rights of any
miner.” 30 U.S.C. § 815(c)(1) (emphasis added). Section 105(c)(2) permits the
filing of a discrimination complaint by a miner, applicant, or representative
of miners “who believes that he has been discharged, interfered with, or
otherwise discriminated against,” and states that the Secretary’s complaint to
the Commission may allege “discrimination or interference.” 30 U.S.C. §
815(c)(2) (emphasis added). Section 105(c)(3) also permits an individual to
file a complaint charging “discrimination or interference” in violation of
section 105(c)(1). 30 U.S.C. § 815(c)(3).[7]
The
statutorily protected right at issue in this case is the right of a miner, under
section 103(g)(1) of the Mine Act, to
contact MSHA in writing with concerns about the safety of his or her working
conditions and to have MSHA investigate those concerns without the mine
operator learning the miner’s identity.[8]
The legislative history of the Mine Act makes clear that section 103(g) was
adopted as a means of protecting miners who make safety-related complaints, in
addition to the protection provided by section 105(c). S. Rep. 95-191, at 29, Leg.
Hist. at 617 (“While other provisions of the bill carefully protect miners who
are discriminated against because they exercise their rights under the Act, the
Committee feels that strict confidentiality of complainants under Section
[103(g)(1)] is absolutely essential.”).
1. The Appropriate Test for Interference
In evaluating whether the miners here
had established interference with their statutory rights, the Judge applied the
two-step test articulated by Chairman Jordan and Commissioner Nakamura in their
opinion in UMWA on behalf of Franks and Hoy v. Emerald Coal Resources, LP,
36 FMSHRC 2088, 2104-19 (Aug. 2014) (hereinafter “Franks interference
opinion”).[9]
See 37 FMSHRC at 2603-08. The test, suggested by the Secretary
in his amicus brief in that case and drawn from National Labor Relations Board
precedent, provides that interference is established when
(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.
36
FMSHRC at 2108.[10]
Here the Secretary reiterates his support for the test, and the UMWA endorses it.
Respondents
argue that the Franks interference opinion two-step test is not binding
upon the Commission, because it has not been approved by a Commission majority.
They contend that until it is, the Commission only has its prior interference
cases on which to rely. R. Reply Br. at 2-3 (citing Sec’y on behalf of Gray
v. North Star Mining, Inc., 27 FMSHRC 1, 8 (Jan. 2005); Moses v. Whitley
Dev. Corp., 4 FMSHRC 1475, 1478-79 (Aug. 1982), aff’d, 770 F.2d 168
(6th Cir. 1985)). We conclude that the Franks two-step test is consonant
with the Commission’s decisions in Gray and Moses and thus it was
not error for the Judge to apply it in this instance.
The
language of the first prong of the Franks interference opinion test is
entirely consistent with Moses and Gray. In Moses, the Commission
concluded that the operator’s conduct constituted interference because it would
“chill the exercise” of miners’ protected rights. 4 FMSHRC at 1478-79. Consequently
in Gray, the Commission analyzed “whether the employer engaged in
conduct which, it may reasonably be said, tends to interfere with the free exercise
of [protected] rights.” 27 FMSHRC at 9 (citation omitted).
The
second prong of the Franks interference opinion two-step test is
similarly grounded in Commission precedent. In Moses, the Commissioner
recognized that an operator may have legitimate and substantial reason for its
conduct in question. See 4 FMSHRC at 1479 n.8 (“This is not to say that
an operator may never question or comment upon a miner’s exercise of a
protected right. Such question or comment may be innocuous or even necessary to
address a safety or health problem . . . .”).[11]
2. A
Reasonable Miner Would View the Operator as Having Interfered with His Rights
in This Instance.
a. Miners’
Rights Under Section 103(g)
In her decision, the Judge ably
summarized the rights that section 103(g) provides miners and their
representatives, and the policy reasons behind those rights. See 37 FMSHRC
at 2604-05. Beginning with the Federal Coal Mine Health and Safety Act
of 1969, a miners’ representative has had the right, by providing written
notice to a representative of the enforcer of that Act (then the Secretary of
the Interior), to request an immediate inspection of a coal mine when that
miners’ representative had reasonable grounds to believe there was a violation
of a mandatory health or safety standard, or an imminent danger. Pub. L. No.
91-173 § 103(g); 83 Stat. 742, 750.
With the subsequent enactment of the
Mine Act, this right was extended to miners lacking representatives, and to
include alleged violations of the Mine Act itself. The legislative history of
the Mine Act emphasized that the right to request an agency inspection was based
on the firm belief “that mine safety and health will generally improve to the
extent that miners themselves are aware of mining hazards and play an integral
part in the enforcement of the mine safety and health standards.” S. Rep. No.
95-181, at 30 (1977), reprinted in Legis. Hist. at 618.
The Coal Act also provided that a
miners’ representative could request that his name, as well as the names of any
miners referred to in the notice, not be included in the copy of the request to
be provided to the mine operator. The Mine Act strengthened this right to
expressly state that “[t]he name of the person giving such notice and the names
of individual miners referred to therein shall not appear in such copy or
notification.” 30 U.S.C. § 813(g)(1). The legislative history of the Mine Act
stressed the importance of maintaining confidentiality:
The Committee is aware of the need to
protect miners against possible discrimination because they file complaints,
and accordingly, the Section requires that the name of the person filing the
complaint and the names of any miners referred to in the compliant not appear
on the copy of the complaint which is served on the mine operator. While other
provisions of the bill carefully protect miners who are discriminated against because
they exercise their rights under the Act, the Committee feels that strict
confidentiality of complainants under Section [103(g)(1)] is absolutely
essential.
S.
Rep. No. 95-181, at 29, reprinted in Legis. Hist. at 617; see also III
MSHA, U.S. Dep’t of Labor, Program Policy Manual, Part 43, at 8 (2003), available
at http://arlweb.msha.gov/REGS/
COMPLIAN/PPM/PMVOL3A.HTM#3
(“Information received about violations or hazardous conditions should be
brought to the attention of the mine operator without disclosing the identity
of the person(s) providing the information.”).
The
reasoning behind this right to confidentiality is considered so persuasive that
the Commission adopted a version of the right for Commission proceedings, recognizing
that witnesses who qualify for it should generally be protected by the
informant’s privilege. See Sec’y on behalf of Logan v. Bright Coal
Co., 6 FMSHRC 2520, 2524-25 (Nov. 1984); see also Commission
Procedural Rule 61, 29 C.F.R. § 2700.61 (“A Judge shall not, except in
extraordinary circumstances, disclose or order a person to disclose to an
operator or his agent the name of an informant who is a miner.”).
The court in Dole v. Local 1942,
Int’l Bhd. of Elec. Workers, 870 F.2d 368 (7th Cir. 1989), explained the
informant’s privilege in a way that is in many respects applicable to miners
cooperating in mine safety investigations:
The doctrine of the informer’s privilege
is not a recent phenomenon, having its roots in the English common law. . . .
The underlying concern of the doctrine is the common-sense notion that
individuals who offer their assistance to a government investigation may later
be targeted for reprisal from those upset by the investigation. . . . The
privilege recognizes the responsibility of citizens to cooperate with law
enforcement officials and, by providing anonymity, encourages them to assume
this responsibility. With the threat of reprisal real and unprotected against,
well-intentioned citizens may hesitate or decline to assist the government in
tracking down wrongdoers. The threatened reprisal may be physical, but the
privilege also recognizes the subtler forms of retaliation such as
blacklisting, economic duress and social ostracism. . . . The most effective
means of protection, and by derivation the most effective means of fostering
citizen cooperation, is bestowing anonymity on the informant, thus maintaining
the status of the informant’s strategic position and also encouraging others
similarly situated who have not yet offered their assistance.
Id. at 372
(citations omitted).
In light of the foregoing, we agree with
the Judge in this case that “[i]f confidentiality is not guaranteed, a miner is
forced to weigh . . . competing interests when deciding whether to report a
dangerous condition to MSHA. For a miner to be truly free to exercise his
statutory rights under section 103(g), then, confidentiality is essential.” 37
FMSHRC at 2605; see also Moses, 4 FMSHRC at 1479 (concluding operator interfered
with miner’s exercise of section 103(g) rights when it repeatedly and
accusatorily questioned him as to whether he was the source of complaint to
MSHA); Franks, 38 FMSHRC at 2095 (opinion of Comm’rs Young and Cohen) (stressing
that substance of the section 103(g) confidential reporting right must be
preserved, lest it be rendered illusory).
b. Respondents’
Interference with Miners’ Section 103(g) Rights
In her decision, the Judge applied the
first prong of the Franks interference opinion test — whether Respondents
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. Citing the PowerPoint
slides from the Awareness Meetings that miners at the Marshall County Mine were
required to attend, the Judge was persuaded that a reasonable miner would have left
a presentation thinking that mine management was hostile to the section 103(g)
complaint process, particularly with regard to how miners were exercising their
section 103(g) right at the mine at that time. The Judge found that a
reasonable miner would have also concluded that the Marshall County Mine had
established a rule requiring that any section 103(g) complaint be reported to
mine management as well, thereby vitiating that miner’s right to make such
complaints without exposing his or her identity to the mine operator. 37 FMSHRC
at 2605-07. Her conclusions applied to the other four mines as well. See id.
at 2600 n.1 (slides presented at other mines were largely the same, and the
ones addressing miners’ exercise of section 103(g) rights were identical).
Respondents contend that the
Judge failed to properly apply the “totality of the circumstances” test, and
thus her finding on the first prong of the Franks interference opinion is
not supported by substantial evidence.[12] They
argue that the overall tenor of the Awareness Meetings reflected the need for
mutual trust between miners and mine management, so that the two sides could
cooperate to keep the mine safe and economically competitive. According to Respondents,
fostering such cooperation in the area of mine safety is consistent with the
Mine Act, which calls for involvement of miners and their representatives in
the process.
While certain of the slides at
the Marshall County Coal Awareness Meetings stressed the subject of
miner-management cooperation (Gov’t Ex. 4 at slides 3, 6, 48-52, 71-75), the
common subject matter of the slides presented there involved the issues that Respondents
believed were preventing that mine and other unionized mines from being
competitive in the present energy markets, including with non-union mines. The slides
outlined Respondents’ belief that if such impediments continued, Marshall
County miners would eventually lose their jobs in an area in which there is no
alternative employment paying nearly as much. Id. at slides 14-18. In
addition to discussing political, regulatory, and outside economic forces, the
slides addressed labor-related topics, such as the inefficiency and lack of
productivity of the mine’s continuous miner sections, downtime with belts and
their slow moves within the mine, poor relations with the UMWA, miner drug and
alcohol abuse, and excessive employee absences. Id. at slides 34-51,
53-60.
This led into the three
slides addressing section 103(g). The first slide stated, in a large font, that
“You Must Report Unsafe Situations and Compliance Issues
to Management so that they Can Be Addressed By Management.” The next
slide then stated, in bullet point format, that miners had the right to make
103(g) complaints to MSHA, and that the company “will never interfere with this
in any way,” but that miners are “Required to
Make the Same Report to Management.” The final of the
three slides alleged that a high percentage of the section 103(g) complaints
were resulting in MSHA finding no violations. This supposedly indicated that
miners were using the section 103(g) process to get back at management for
issues other than safety, which diluted mine and MSHA resources, hurt the
company, and threatened the survival of miners’ jobs. Many of the underlined
terms were highlighted in red or yellow. Id. at slides 61-63.
Respondents attack on
several fronts the Judge’s conclusion that the presentation of the three slides
constituted interference with their miners’ section 103(g) rights. Primarily they
question how the Judge could have found that “requiring miners to also inform
management of complaints” made to MSHA pursuant to section 103(g) “removes
th[e] guarantee of confidentiality.” See 37 FMSHRC at 2606.
The answer to that is
simple. Absent Respondents having a reliable system by which a miner could,
without revealing his identity, inform mine management of the conditions that
led the miner to make a section 103(g) complaint to MSHA — evidence of which is
entirely missing from this record — basic common sense dictates that management
can “put two and two together.” Respondents could readily learn the identity of
a miner making a section 103(g) complaint when that miner “make[s] th[at] same
report to management” under Respondent’s announced “requirement.” Gov’t Ex. 4
at slide 62.
Respondents point to the
slide that included the statement that they would not interfere with section
103(g) rights (No. 62). That slide, however, was bookended by information from
which miners could easily conclude that their right to make confidential section
103(g) complaints was being substantially undercut, and that Respondents viewed
the issue of miner section 103(g) complaints to MSHA as one that could have
severe consequences for miners’ continued employment. Where an interference
claim is made, examining in isolation the literal meaning of the language used
is contrary to the totality of the circumstances test. See Gray,
27 FMSHRC at 8 (“Whether
an operator’s . . . comments concerning a miner’s exercise of a protected right
constitute coercive . . . harassment proscribed by the Mine Act ‘must be
determined by what is said and done, and by the circumstances surrounding the
words and actions.’”) (quoting Moses, 4 FMSHRC at 1479 n.8); see also
Gray, 27 FMSHRC at 10.
Respondents also argue that what
was discussed at the Awareness Meetings did not rise to the level of a company “policy”
with respect to section 103(g) complaints made to MSHA. Under the totality
of the circumstances test, however, we cannot ignore that all of the Awareness Meetings
in question were personally conducted by CEO Murray. Jt. Stips. 20-29. In Gray,
the Commission stated that one of the most important circumstances in any
interference analysis is the position within the company that the communicator
of the statements alleged to constitute interference holds relative to the
recipients of the communications. 27 FMSHRC at 10.
That consideration takes on even greater
significance in a case where the operators’ CEO is traveling to the various
mines and in essence putting on a PowerPoint-backed “roadshow” that all miners
at each mine are required to attend. Presumably, a CEO who takes the time to hold
10 to 20 meetings, each lasting two or more hours, is serious about the points
he makes during those meetings. Cf. Gray, 27 FMSHRC at 11 n.10
(locus of statements can be important contextual factor).
Respondents nevertheless contend that
its miners, being union members, could have confidently ignored the import of
CEO Murray’s presentation, because the terms of the CBA require
that Respondents negotiate with the local union any new work rule, such as a
reporting requirement for section 103(g) complaints outlined in the Awareness Meetings.
The Judge rejected this argument below on the ground that “[t]he relevant
perspective on the issue is that of the reasonable miner, and I find that a
reasonable miner would have thought that a statement made by the CEO of the
company at an all-staff mandatory meeting constituted binding company policy.” 37
FMSHRC at 2607.[13]
Respondents continue to maintain
that their miners would have ignored any new reporting policy, but we find the
Judge’s reasoning persuasive. Apart from the clear contradiction this position
poses to that taken by the Respondents when they instituted their related federal
court suit,[14]
to accept Respondents’ argument would be to assume that an average miner at the
mines in question would be so confident in his or her understanding of the
applicable CBA that the miner would ignore the clear statements made in the
slide presentation given by the company’s CEO. Under a “totality of the
circumstances” approach, it is simply unreasonable to assume that degree of
confidence on the part of a miner.
Moreover, the new reporting
policy would only be declared a new work rule under the CBA after the dispute
over it had been resolved through the grievance procedure of the CBA. As can be
seen from the arbitration decisions appended to the UMWA’s brief, under this
procedure a miner seeking to vindicate his section 103(g) right by ignoring the
reporting requirement would have to wait weeks, if not months, for a decision upholding
his position. During that time, miners choosing to ignore Respondents’
requirement that they report to management those conditions that prompt them to
make section 103(g) complaints to MSHA would be faced with uncertainty. Further,
miners would be risking discipline, including loss of pay they may never
recover, for failing to comply with Respondents’ reporting policy. Expecting
miners to take such a risk is patently unreasonable on the part of the
Respondents.
In this instance, the chilling effect of
the Respondents’ reporting requirement was amplified by the PowerPoint slide
unequivocally communicating that if the miners did not change their use of
section 103(g), the consequence could be loss of the miners’ jobs. This slide
was not an outlier in the presentation. Many of the slides question whether,
without changes, the five mines can continue to employ their present miners. Gov’t
Ex. 4, at slides 4, 6, 14-18, 21-22, 30, 34-35, 39-42, 54, 59. With regard to
the miners’ exercise of section 103(g) rights, it was stated that, when a section
103(g) complaint was made but MSHA did not issue a citation, “[i]t Hurts
your Company and Job Survival.” Id. at slide 63.
It would have been quite reasonable for
Respondents’ miners to conclude that management was linking use of section
103(g) by miners to the future of employment at the mine. Such “threats of
reprisal” were specifically identified in the legislative history of section
105(c) as a form of unlawful interference. S. Rep. 95-191, at 36, reprinted
in Leg. Hist. at 624. Thus, in Gray, the
Commission quoted the Supreme Court’s holding that, in the context of an
interference case under the NLRA, the analysis “must ‘take into account the
economic dependence of the employees on their employers, and the necessary
tendency of the former, because of that relationship, to pick up intended
implications of the latter that might be more readily dismissed by a more
disinterested ear.’” 27 FMSHRC at 10 (quoting NLRB v. Gissel Packaging Co.,
395 U.S. 575, 617 (1969)). Tying the survival of employment opportunities at
the mine to use of the section 103(g) process only when it is vindicated by the
issue of a citation by MSHA would tend to discourage a reasonable miner from
making a section 103(g) complaint in the first instance.
Consequently, we conclude
that three section 103(g) PowerPoint slides shown to the Respondents’ miners,
in the context of the many other slides included in the Awareness Meeting
presentations, provide ample evidence to establish Respondents’ interference
with their miners’ rights under section 103(g) to make confidential safety
complaints to MSHA. Nothing in the presentations to miners explained how the confidentiality
of their section 103(g) complaints could be preserved when miners were expected
to make the same report to mine management. Without the guarantee of
confidentiality, the protection section 103(g) provides miners becomes little
more than a fiction. The Judge was thus correct in concluding that Respondents’
PowerPoint presentations would tend to chill the exercise of section 103(g) rights
by miners.
In light of our affirmance
of the Judge on these grounds, we need not consider the further evidence the
Judge considered in this case.[15]
Specifically, she found additional evidence of interference from the recording made
of CEO Murray. She characterized the tone of his remarks as “serious and at
times threatening,” and found that he had stated that if miners did not stop
disagreeing over issues at the mine and using the section 103(g) process as a
way of indicating displeasure, the mine would be closed. 37 FMSHRC at 2606.
By that point in the
presentation, however, the slides had made it abundantly clear that closure of
the Marshall County Mine could result if certain matters at the mine did not
change. Gov’t
Ex. 4, at slides 4, 6, 14-18, 21-22, 30, 34-35, 39-42, 54, 59; see also
37 FMSHRC at 2606 (“Throughout the two-hour presentation, miners were repeatedly
reminded that their jobs, futures, and family livelihoods were at risk.”). The
frequency of the miners’ use of section 103(g) was just one of those matters. Gov’t Ex. 4, at
slide 63. Because the slides alone constitute substantial evidence
supporting the Judge’s decision that the first prong of the Franks interference
opinion test had been met, we need not address Respondents’ evidentiary
arguments regarding the recording.
3. Respondents’
Justification for the Reporting Policy Does Not Outweigh the Resulting
Interference with Miners’ Rights.
Under the second prong of
the Franks interference opinion, an operator may defend against an otherwise
valid interference claim if it offers a “legitimate and substantial reason
whose importance outweighs the harm caused to the exercise of protected rights.”
36 FMSHRC at 2108. The Judge correctly identified Respondents’ proffered reason
as their right to be informed of unsafe conditions at their mines. 37 FMSHRC at
2607. The Franks opinion quoted Moses, where the Commission
stated that an operator may comment upon a miners’ exercise of a protected
right when it is “necessary to address a safety or health problem.” 36 FMSHRC
at 2106 (quoting 4 FMSHRC 1479 n.8). Concern for mine safety or health problems
clearly can provide a legitimate motivation for an operator’s actions. However,
our review of the record does not reveal any evidence that demonstrates that
the policy at issue here served the purported goal.
Moreover, Respondents’ argument
that their justification for this program is supported by Commission case law
is unavailing. They maintain that any reporting requirement established at the
Awareness Meetings is consistent with the situation in the Commission’s
decision in Secretary on behalf of Pack v. Maynard Branch Dredging Co.,
11 FMSHRC 168 (Feb. 1989), aff’d, 896 F.2d 599 (D.C. Cir. 1990). In
Pack, the Commission found that a mine operator did not discriminate
against a mine security guard in violation of section 105(c) of the Act when, in
terminating him, the operator took into account that the guard had not notified
it of the dangerous mine condition posed by improperly stored explosives. The
guard had instead waited more than eight hours after discovering the explosives
and then brought the circumstances of their storage to the attention of MSHA,
which cited the operator. Id. at 169, 171-73.
Pack is
distinguishable from the present case because it relied heavily on the fact
that Pack was a security guard and that one of his primary duties was to report
security breaches to his employer. Id. at 171. Moreover, the Commission
observed that “[t]he company policy only required employees to report dangerous
conditions to the company, and contained no instructions or prohibitions as to
employees’ actions vis-à-vis MSHA[,] and the Secretary’s position fail[ed] to
take into account an operator’s right to require the reporting of dangerous
conditions.” Id. at 173.
That right of an operator clearly
remains legitimate for purposes of an interference analysis under section
105(c), and consequently was affirmed in the Franks interference
opinion. See 36
FMSHRC at 2116 (discussing operators’ right under Pack to require that
miners report “dangerous conditions”). Indeed, it appears from the
record that a version of the right is reflected in the CBA governing the
relationship between Respondents and their miners. See Gov’t Ex. 31, at
6 (quoting CBA, an excerpt of which was appended as Exhibit 2 thereto, to require
any miner to “immediately notify his supervisor” when he “in good faith
believes that he is being required to work under” conditions that are
“abnormally . . . dangerous to himself . . . which could reasonably be expected
to cause death or serious physical harm before such condition . . . can be
abated”).
At the same time, however,
the Commission in Pack was careful to articulate that the right must be
accommodated with miners’ rights under section 103(g):
It is important to point out
what . . . did not happen here. Maynard Branch did not have a policy that
prohibited miners from reporting dangerous conditions to MSHA, a policy that
clearly would have been prohibited by the Mine Act. Nor did Maynard Branch have
a policy that required miners to notify the company prior to contacting MSHA. .
. . . [Thus, t]he specter raised by the Secretary of miners being intimidated
from exercising their rights under sections 103(g) or 105(c) of the Mine Act
simply is not presented by this case.
11 FMSHRC at 172-73.
In contrast, this case
plainly presents an instance in which miners may be “intimidated from
exercising their rights under section 103(g).” That is due to both the
parameters of Respondents’ reporting policy and the circumstances in which it
was established. The reporting requirement was not in any way limited to just “dangerous
conditions.” According to the slide presentation, it extended to “Compliance
Issues” and “103(g) Complaints.” Gov’t Ex. 4 at
slides 61-62. Section 103(g) complaints can be brought not just when a miner
perceives a dangerous situation, but when he reasonably believes that any violation
of the Act or a mandatory health or safety standard exists. 30 U.S.C. § 813(g)(1). Thus,
the Judge here correctly observed that unlike in Pack, the Respondents’
policy placed special emphasis on conditions that miners chose to report to
MSHA. 37 FMSHRC at 2608.
Even when an employer establishes a
justification under the second step, the operator’s actions must be “narrowly
tailored” to promote that justification as part of the balancing of the
operator’s interests with the protected rights of employees. Franks, 36
FMSHRC at 2118 n.14 (citing Guardsmark, LLC v. NLRB, 475 F.3d 369,
376-376 (D.C. Cir. 2007). The evidence establishes that Respondents did not
narrowly tailor their reporting policy to avoid undue interference with the
rights of miners. Nothing was presented that indicated that the Respondents
were prepared, for instance, to institute a reporting system that preserved a
miner’s anonymity from the mine operator, as section 103(g) provides with
respect to complaints made to MSHA. Indeed, based on the method in which the
policy was communicated, it appeared that preserving miner anonymity was not a concern
of Respondents at all. The
reporting policy as communicated to miners made no mention that it included
measures designed to preserve the miners’ anonymity guaranteed by section
103(g). In fact, the Awareness Meetings left the opposite impression, when
it was stated that, with regard to section 103(g) complaints, miners are “Required
To Make the Same Report to Management.” Gov’t Ex. 4, at slide 62.
By requiring miners to make the “same” report to Respondents as miners to do to
MSHA, Respondents would entirely eliminate the critical anonymity component in
section 103(g).
In addition, the Respondents justified the reporting
policy to miners on the ground that “High Percentages” of section
103(g) complaints were not resulting in citations to the Respondents, which
indicated to Respondents that miners were using their section 103(g) rights as
a way of addressing matters other than mine safety. Id. at slide 63. Without
more in the way of evidence supporting this claim, we can only conclude that
Respondents were motivated more by the effect that Respondents’ reporting
policy would have on miners than in actually objectively justifying the policy.
If any question remained at that point in the
Awareness Meetings as to whether Respondents were trying to intimidate miners
from using section 103(g), it was answered by Respondents’ statement to them
that, as the right was being used presently, it threatened those miners’ “Job
Survival.” Id. We thus agree with the Judge that the foregoing
statements “went beyond what was necessary to establish a safe
environment at the mine. Rather, they were calculated to discourage miners from
using the MSHA complaint process.” 37 FMSHRC at 2608.
For the foregoing reasons,
we hold that Respondents
have failed to justify their actions here with a legitimate and substantial
reason whose importance outweighs the harm caused to the exercise of miners’ protected
rights.
B. The
Judge’s Decision to Dismiss the Second Marshall County Count
The Secretary’s complaint in
these cases charged Respondents with one count of interference for promulgating
their coercive reporting requirement at each of the five mines. It included an
additional count for threatening reprisal and mine closure at the Marshall
County Mine. Upon her finding that the additional count “involves the same
facts and analysis” as the Marshall County Mine reporting requirement count, the
Judge held that the additional count merged into the reporting requirement
count and dismissed the additional count. 37 FMSHRC at 2609. The Commission
granted the Secretary’s petition challenging the Judge’s dismissal of the
second charge of interference against the Marshall County Mine.
The Secretary contends that threats of closure
and other forms of reprisal are qualitatively different from an unlawfully
imposed rule and thus in this case merits a separate charge of interference
against the Marshall County Mine. The Secretary argues that in dismissing the
separate threat count, the Judge in essence held for the Respondents on an
affirmative defense they did not raise. Respondents counter that the Judge’s
dismissal was well within her authority to manage the docket before her.
The Secretary’s parsing of the evidence does
not support overturning the Judge’s merging of the second count of interference
with respect to the Marshall County Mine into the first. As the Awareness
Meeting slides indicate, miners at all five of the mines were threatened with
reprisal for exercising their section 103(g) rights. Gov’t Ex. 4, at slide 63;
5, at slide 58; 6, at slide 59; 7, at slide 58; 8, at slide 58. In addition,
each of the presentations contained numerous statements threatening job losses
should miners not cooperate on various issues. See, e.g., Gov’t Ex. 4,
at slides 4, 6, 14-18, 21-22, 30, 34-35, 39-42, 54, 59. Such threats were also
made with respect to the miners exercising section 103(g) rights at each of the
mines. Gov’t Ex. 4, at slide 63; 5, at slide 58; 6, at slide 59; 7, at slide
58; 8, at slide 58.[16]
Of course, broaching the subject of mine closure is another way of threatening
miners’ jobs.
Accordingly, we find that the evidence submitted
regarding Respondents’ actions at the Marshall County Mine was not that different
from the evidence submitted regarding their actions at the other four mines. In
these circumstances, we conclude that the Judge, having considered that
evidence, did not err in finding that a separate second count with respect to
the Marshall County Mine was unjustified.[17]
C. The
Monetary Penalty Issues
The Secretary proposed a
civil penalty of $20,000 for each alleged violation. After addressing all six
section 110(i) penalty criteria,[18]
the Judge held that “a high penalty is appropriate and I assess a penalty of
$30,000.00 for each of the five violations” found to have been established. 37
FMSHRC at 2609-10. The Judge found that Respondents are large operators with no
history of interference violations, and cited to the stipulations, where the
parties agreed that neither the Secretary’s proposed penalty of $20,000 for
each of six violations, nor an increase in each penalty to the maximum of
$70,000, would affect Respondents’ ability to continue in business. Id.
at 2609; Jt. Stips. 34, 35. In finding that interference with a miner’s right
to make confidential complaints pursuant to section 103(g) to be “a very
serious matter that undermines the safety of the mine,” the Judge addressed the
gravity criterion, and further found that Respondents’ negligence was high in
this instance. 36 FMSHRC
at 2609-10.
“Penalties
assessed by Commission Judges can be greater than, less than, or the same as
those proposed by the Secretary. . . . When it is determined, based on further
information developed in an adjudicative proceeding, that penalties should be
assessed which substantially diverge from those originally proposed, Judges
must sufficiently explain the bases underlying the penalties assessed.” Hidden
Splendor Res., Inc., 36 FMSHRC 3099, 3104 (Dec. 2014) (citing Sellersburg
Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 1147, 1151-
52 (7th Cir. 1984); Cantera Green, 22 FMSHRC 616, 622-23 (May 2000)).
The
Judge’s increase in the penalties for the individual mines by 50 percent is
best explained by her conclusion that
Respondents did not
demonstrate good faith in abating any violation. Instead, they exacerbated the
situation by filing a complaint in federal court that named the three
individuals the Secretary had named as witnesses in this case. The timing of
the filing of the complaint, along with the fact that the deposition testimony
taken in this case was attached, tends to indicate that the mine attempted to
intimidate the witnesses. The filing of a legal action is an extension of the
intimidation at Murray’s awareness meetings and shows that Respondents did not
wish to make any good faith effort to eliminate the interference.
37
FMSHRC at 2609-10.
Over Respondents’
objections, the Judge had accepted into the record the federal court complaint,
of which the Judge took judicial notice (Gov’t Ex. 31), along with a press
release announcing the filing of the suit, put out by Murray American Energy
(Gov’t Ex. 32). Tr. 27-29.
Respondents
continue to challenge here the admissibility of that evidence.
Commission Procedural Rule 63(a) governs
the admissibility of evidence in Commission proceedings, stating that “relevant
evidence, including hearsay evidence, that is not unduly repetitious or
cumulative is admissible.” 29 C.F.R. § 2700.63(a). A Judge’s evidentiary
rulings are reviewed under an abuse of discretion standard. Shamokin Filler
Co., 34 FMSHRC 1897, 1907 (Aug. 2012), aff’d, 772 F.3d 330 (3d Cir.
2014), cert. denied, 135 S.Ct. 1549 (2015); Dynamic Energy, Inc.,
32 FMSHRC 1168, 1174 (Sept. 2010). “Abuse of discretion may be found when ‘there
is no evidence to support the decision or if the decision is based on an
improper understanding of the law.’” Pero v. Cyprus Plateau Mining Corp.,
22 FMSHRC at 1366 (citing Mingo Logan Coal Co., 19 FMSHRC 246, 249-50
n.5 (Feb. 1997)).
The Judge in this instance plainly did
not abuse her discretion in admitting the two exhibits. The court complaint is
a publicly-filed document regarding a dispute over the reporting of mine safety
and health hazards at Respondents’ mines, an issue that is at the heart of this
case. It involves the CBA between Respondents and the UMWA, representing the
Respondents’ miners. As discussed earlier, Respondents raised the terms of the
CBA as relevant to this proceeding.
In addition, the Secretary submitted the
federal court complaint as evidence of animus on the part of Respondents. Tr.
- Respondents contend that operator animus towards the exercise of miner
rights is not a consideration in interference cases, citing Gray, 27
FMSHRC at 8 n.6. Gray, however, only stands for the proposition that
evidence of such animus is not necessary to establish interference with those
rights. Evidence of operator animus nevertheless remains relevant under the
“totality of the circumstances” approach to determining whether interference
with miners’ rights occurred.[19]
Respondents take issue with the
conclusion the Judge reached with regard to the good faith abatement penalty criterion,
in light of the filing of the federal court complaint. The criterion at issue
requires that the Commission consider “the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after notification of a
violation.” 30 U.S.C. § 820(i). In reviewing the Judge’s factual
findings supporting the consideration of the various penalty criteria, the
Commission applies the substantial evidence test. Hubb Corp., 22 FMSHRC
606, 609 (May 2000); Douglas R. Rushford Trucking, 22 FMSHRC 598, 601
(May 2000).
The Judge considered the filing to be nothing
more than an extension of the Respondents’ interference with miners’ protected
rights.[20] She drew an
inference that Respondents’ sole motivation for the filing of the complaint was
to intimidate the three witnesses scheduled to testify at the hearing in this
case. Inferences drawn by a Judge are “permissible provided they are inherently
reasonable and there is a logical and rational connection between the
evidentiary facts and the ultimate fact inferred.” Mid-Continent Res., Inc.,
6 FMSHRC 1132, 1138 (May 1984) (citations omitted).
The Judge raised the issue of
Respondents’ good-faith abatement sua sponte, yet never requested the parties
to develop the evidentiary record or even submit argument regarding the extent,
if any, of Respondents’ “attempt[s] to achieve rapid compliance after
notification” of the Secretary’s interference complaint against them. We note
that the Secretary’s complaint was filed in March 2015, and thus six months
prior to the filing of the federal court complaint.
Moreover, the Secretary stipulated that,
as of September 2015, he was unaware of any of Respondents’ miners having
been investigated or disciplined for violating the reporting policy in the
seventeen months since it was first announced at the Marshall County Mine
Awareness Meetings. Jt. Stips. 20, 36-37. This was pertinent to the issue of
Respondents’ good faith, and thus should have been considered by the Judge. See
Sec’y on behalf of Johnson v. Jim Walter Res., Inc., 18
FMSHRC 552, 555, 560 (Apr. 1996) (under substantial evidence standard, Judge
must consider all evidence relevant to good faith abatement of discrimination
violation prior to reaching conclusion on the criterion). Yet she made no
mention of it in her “good-faith abatement” analysis.
Given these circumstances, we cannot
conclude that the inference the Judge drew in this instance provides sufficient
evidence in support of her finding of a lack of good faith on Respondents’ part
in abating the violation of section 105(c). The Secretary suggests
remand to the Judge for further record development, particularly on the issue
of whether the federal court suit was baseless or otherwise a sham. He contends
that the federal suit may be one of those “objectively baseless retaliatory
lawsuits [that] fall outside of the protection of the First Amendment.” See
Sec’y on behalf of Shemwell v. Armstrong Coal Co., 36 FMSHRC 1097, 1106 n.3
(May 2014) (Comm’rs Young and Cohen, dissenting) (citing BE & K Constr.
Co. v. NLRB, 536 U.S. 516, 530-31 (2002)).
In light of the federal
court’s recent dismissal of the suit on jurisdictional grounds, in favor of
permitting the dispute to be decided by the CBA’s arbitration procedure, we do
not find the Secretary’s solution to be feasible at this time. Consequently, we
are vacating the Judge’s penalty assessments and remanding the case to her to
reassess penalties without considering Respondents’ filing of the federal court
suit. [21]
D. The
Details of the Statement to Be Read to Miners
As part of the
remedy in this case, the Secretary requested that the Judge order a Murray Energy
corporate officer to read a notice to all miners regarding section 105(c)
violations, and to order the company to mail that notice to all miners and post
it at the mine for one year.
The Judge, relying on
section 105(c)(2) of the Mine Act, which authorizes the Commission to require a
person who has violated section 105(c)(1) “to take such affirmative action to
abate the violation as the Commission deems appropriate,” 30 U.S.C. §
815(c)(2), granted the Secretary’s request in part. The Judge required
Respondents “to post for one year on a document that is at least 8 1/2 by 11
inches in a public and conspicuous place at each mine a notice to all miners
detailing the miners’ rights pursuant to section 103(g) of the Act and stating
that there is no requirement or expectation that miners will make the same
complaint to management.” She further required CEO Murray “to hold a meeting at
each mine in which he shall read a prepared and approved statement notifying
miners that they are not required to contact management when making a complaint
to MSHA.” 37 FMSHRC at 2609.
Respondents challenged the Judge’s remedial order on a
number of grounds, some of which have been resolved due to a partial stay
issued by the Commission. See Order dated Feb. 10, 2016. The sole
remaining issue involves the details of the “prepared and approved statement”
CEO Murray is required to read to miners. The Secretary agrees with Respondents
that the Judge’s decision with respect to this aspect of the remedy is not
clear as to who should prepare and approve the statement Murray is to read,. The
Secretary suggests that he prepare it, and that, if necessary, the Judge
resolve any disputes and approve the statement. In reply, Respondents complain
that this will permit the Secretary to include in the statement material that
is beyond the scope of what the Judge’s order described. In sur-reply, the
Secretary details what he views as the shortcomings of the notice that the
Respondents were required to post, and maintains that the Commission needs to
clarify the manner in which the statement is to be “prepared and approved.”
While the Secretary’s proposed solution has merit,
because this case is being remanded, we will permit the Judge to further clarify
what she meant in requiring CEO Murray to read the “prepared and approved”
statement. The Judge can then structure the proceedings on remand accordingly
and in light of prior experience in this case.
III.
Conclusion
For the foregoing reasons, we (1) affirm
the Judge’s decision upholding five counts of interference against Respondents
and dismissing the second count of interference against the Marshall County
Mine; (2) vacate the penalties she assessed for those counts; and (3) remand the
penalty determinations and consideration of the statement CEO Murray is to read
to miners for further proceedings consistent with this decision.
______ /s/
Michael G. Young
Michael G.
Young, Commissioner
______ /s/
Patrick K. Nakamura
Patrick K.
Nakamura, Commissioner
______ /s/
William I. Althen
William I.
Althen, Commissioner
Chairman
Jordan and Commissioner Cohen, concurring in part and dissenting in part:
We
join our colleagues in affirming the Judge’s decision that the Respondents
interfered with the miners’ rights in violation of section 105(c) of the Mine
Act. We agree with the Judge’s application of the test for interference
articulated by Chairman Jordan and Commissioner Nakamura in UMWA on behalf
of Franks v. Emerald Coal Resources, Inc., 36 FMSHRC 2088, 2104-19 (Aug.
2014).[22]
In addition, we join the majority in affirming the Judge’s decision to dismiss
the second count of interference against Marshall County Mine, and in directing
the Judge to clarify what she meant in requiring CEO Murray to read the
“prepared and approved” statement. We write separately, however, because we
would affirm the penalties assessed by the Judge in this case.
The
Secretary proposed a penalty of $20,000 for each violation. The Judge assessed
a penalty of $30,000 for each of the five violations. 37 FMSHRC at 2609-10. Reviewing
the statutory criteria for penalty assessments in section 110(i) of the Mine
Act against the Judge’s findings in this case, we find that the penalties she
assessed did not constitute an abuse of discretion.
Congress
has conferred broad discretion upon the Commission and its Judges when
assessing penalties under the Mine Act. Westmoreland Coal Co., 8 FMSHRC
491, 492 (Apr. 1986). In concluding that the operators’ actions “were
calculated to discourage miners from using the MSHA complaint process,” 37 FMSHRC
at 2608, and in emphasizing that “interference with the right to make anonymous
complaints [is] a very serious matter that undermines the safety of the mine,” id.
at 2610, the Judge was well within the bounds of her discretion to
significantly raise the penalty. She carefully set forth her findings on all
six of the 110(i) criteria (finding, for instance, that the mines and Murray
entities were large operators, id. at 2609, and determining that the
level of negligence was high. Id. at 2610).
Our
colleagues, however, insist on remanding the case to the Judge. They believe
she erred because, after admitting evidence of a federal court complaint that
named the three individuals the Secretary had identified as witnesses in the
case before her, she drew an inference that Respondents’ only reason for filing
the lawsuit was to intimidate these three witnesses. She found this to be
evidence to support a finding of a lack of good faith in abating the section
105(c) violation.
In
analyzing this question, we turn first to the issue of the admissibility of the
evidence of the court suit, as that evidence plays a key role in our
colleagues’ decision to vacate the penalty assessments. We agree that the Judge
did not err in admitting into the record the federal court complaint and a
press release announcing the filing of the suit, distributed by Murray American
Energy. We review such rulings under an abuse of discretion standard. Shamokin
Filler Co., 34 FMSHRC 1897, 1907 (Aug. 2012), aff’d, 772 F.3d 330
(3d Cir. 2014), cert. denied, 135 S. Ct. 1549 (2015). Under our fairly
flexible evidentiary standards, Commission Procedural Rule 63(a), 29 C.F.R. §
2700.63(a), we discern no abuse of discretion in the Judge’s ruling.
Turning
to the Judge’s use of this evidence to support her finding of a lack of good
faith abatement, we are unable to agree that vacating and remanding her penalty
determinations is warranted. As the Judge noted in her explanation of her
penalty assessment, the timing of the filing of the complaint, together with
the fact that the deposition testimony in the Mine Act case was included, would
lead one to believe that the mine was trying to intimidate the witnesses.[23]
Unlike
our colleagues, we consider this a permissible and inherently reasonable inference,
with a logical and rational connection between the fact of the federal court
case filing and the Judge’s inference. The lawsuit was filed on the Friday
before the Tuesday when the Commission hearing was scheduled to begin. The
lawsuit named Ron Bowersox as a defendant and quoted the deposition testimony
of Michael Payton and Ann Martin in this case. Bowersox, Payton, and Martin had
all been identified by the Secretary as witnesses in the scheduled Commission
hearing. Interestingly, the other three complainants in the Commission case —
Thomas McGary, Rick Baker, and Raymond Copeland — were not identified as
witnesses on the Secretary’s witness list, nor were they mentioned or quoted in
the Respondents’ federal court complaint. See Gov’t Ex. 31; S. List of
Witnesses & Exhibits. It was certainly reasonable and permissible for the
Judge to draw the inference that the Respondents’ federal court lawsuit
represented a lack of good faith in abating the violation.
We
further note that the Judge’s increase of the penalties was not predicated
solely on the Respondents’ filing of the federal court complaint. Near the end
of her opinion, the Judge stated, “I find interference with the right to make
anonymous complaints to be a very serious matter that undermines the safety of
the mine. The negligence is high.” 37 FMSHRC at 2610. Negligence is one of the
factors identified for the assessment of penalties in section 110(i) of the
Mine Act. The Judge’s finding of high negligence in this case is based on the Respondents’
acts of interference with the right of miners to make anonymous complaints
under section 103(g) of the Mine Act. These acts occurred in the Awareness
Meetings which constitute the basis for the finding of interference which the
Commission affirms, not in the filing of the lawsuit. The Judge’s findings of
high negligence, together with the other factors she considered separate from
the lawsuit, justify her increase in the penalties to $30,000 each.
For the above reasons, we would affirm
the penalties assessed by the Judge, and thus respectfully dissent.
/s/
Mary Lu Jordan
Mary Lu Jordan,
Chairman
______ /s/
Robert F. Cohen, Jr.
Robert F. Cohen,
Jr., Commissioner
Appendix
A
SECRETARY
OF LABOR,
SECRETARY OF LABOR, : Docket
Nos. WEVA 2015-584-D
MINE SAFETY AND
HEALTH : WEVA
2015-585-D
ADMINISTRATION
(MSHA) on behalf : WEVA
2015-586-D
of
RICK BAKER and RON : WEVA
2015-587-D
BOWERSOX :
SECRETARY
OF LABOR, ADMINISTRATION
(MSHA) on behal f :
WEVA 2015-586-D
of RICK
BAKER and RON :
WEVA 2015-587-D
BOWERSO X
:
:
a A nd
:
:
UNITED
MINE WORKERS OF :
AMERICA
INTERNATIONAL UNION, :
Intervenor :
:
v. :
:
OHIO
COUNTY COAL CO., :
CONSOLIDATION
COAL COMPANY :
MURRAY AMERICAN
ENERGY, INC., :
and MURRAY
ENERGY CORPORATION :
:
:
SECRETARY OF LABOR, :
MINE SAFETY AND
HEALTH :
ADMINISTRATION
(MSHA)
ADMINISTRATION (MSHA) on behalf :
of
ANN MARTIN and RON :
BOWERSOX
:
:
and :
:
UNITED
MINE WORKERS OF :
AMERICA
INTERNATIONAL UNION, :
Intervenor :
:
v. :
:
HARRISON
COUNTY COAL CO., :
CONSOLIDATION
COAL COMPANY :
MURRAY AMERICAN
ENERGY, INC., :
and MURRAY
ENERGY CORPORATION :
:
SECRETARY OF LABOR, :
MINE SAFETY AND
HEALTH :
ADMINISTRATION
(MSHA)
ADMINISTRATION (MSHA) on behalf :
of
RAYMOND COPELAND and RON : :
BOWERSOX
:
:
and :
:
UNITED
MINE WORKERS OF :
AMERICA
INTERNATIONAL UNION, :
Intervenor :
:
v. :
:
MONONGALIA
COUNTY COAL CO., :
CONSOLIDATION
COAL COMPANY :
MURRAY AMERICAN
ENERGY, INC., :
and MURRAY
ENERGY CORPORATION :
:
:
SECRETARY OF LABOR, :
MINE SAFETY AND
HEALTH :
ADMINISTRATION
(MSHA) ADMINISTRATION
(MSHA) on behalf :
:
of
MICHAEL PAYTON and RON :
:
BOWERSOX
:
:
and :
:
UNITED
MINE WORKERS OF :
AMERICA
INTERNATIONAL UNION, :
Intervenor :
:
v. :
:
MARION
COUNTY COAL CO., :
CONSOLIDATION
COAL COMPANY :
MURRAY AMERICAN
ENERGY, INC., :
and MURRAY
ENERGY CORPORATION :
[1]
Additional captions are listed in Appendix A to this order.
[2] Section
105(c)(1), 30 U.S.C. § 815(c)(1), provides in pertinent part:
No person shall
discharge or in any manner discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere with the exercise of the
statutory rights of any miner . . . because of the exercise by such miner . . .
on behalf of himself or others of any statutory right afforded by this [Act].
[3]
As shown in the five case captions, each of the cases was brought on behalf of United
Mine Workers of America (UMWA) International Safety
Representative Ronald Bowersox and another individual. Each of these
individuals is a local UMWA representative at his or her respective mine. 37
FMSHRC 2597, 2599 (Nov. 2015) (ALJ).
[4]
Section 103(g)(1) provides that, if a miner or miner representative has
reasonable grounds to believe that a violation of the Act or a mandatory
standard exists, the miner or representative has a right to obtain an immediate
inspection by MSHA. It further provides that the name of the person requesting
an inspection shall not be revealed.
[5]
Similar letters were sent to each of the local union presidents,
safety committee officers, and mine committee officers at the five mines. Those
letters requested that miners inform the company of safety issues instead of,
or in conjunction with, making a section 103(g) complaint. The letters
emphasized that the company did not intend “to chill the exercise by concerned
miners of their rights under Section 103(g)”; rather, the reporting policy was
intended to serve “the most effective means to address and correct safety
issues.” Gov’t Ex. 19.
[6] The suit was
recently dismissed by the federal district court on the ground that the subject
matter of the complaint is subject to arbitration under the CBA. See Consolidation
Coal Co. v. United Mine Workers of America, Civ. Action No.
1:15CV167, 2016 WL 3248427 (N.D.W.Va. June 10, 2016).
[7]
The legislative history of the Mine Act expressly mentions that section 105(c)
reaches interference. See S. Rep. 95-181 at 36 (1977), reprinted in
Senate Subcomm. on Labor, Comm. on Human Res., 95th Cong., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 624 (1978) (“It
is the Committee’s intention to protect miners against not only the common
forms of discrimination, such as discharge, suspension, demotion . . . but also
against the more subtle forms of interference, such as promises of benefits or
threats of reprisal.”).
[8]
Section 103(g)(1), 30 U.S.C. § 813(g), states:
Whenever a
representative of the miners or a miner in the case of a coal or other mine
where there is no such representative 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 or representative 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 representative of the miners or by the miner, and a copy
shall be provided the operator or his agent no later than at the time of
inspection, except that the operator or his agent shall be notified forthwith
if the complaint indicates that an imminent danger exists. 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. If the Secretary determines that a violation or danger does not
exist, he shall notify the miner or representative of the miners in writing of
such determination.
[9] A majority of
Commissioners in that section 105(c)(3) case upheld the decision of the same
Judge that the two complaining miners had been discriminated against. However,
because the majority split as to the rationale for the affirmance, the decision
was vacated and remanded by the court of appeals. See Emerald Coal Res. LP v.
Hoy, 620 F. App’x 127 (3rd Cir. 2015). The Commission thereupon remanded
the proceedings to the Judge “to conduct the interference analysis in the first
instance.” 38 FMSHRC 226, 228 (Feb. 2016). The Judge applied the same test she
applied in this case, and found interference. 38 FMSHRC 799, 804-10 (Apr. 2016)
(ALJ). The parties subsequently filed a joint petition for review of the
Judge’s decision and settled the case. See Decision Approving Settlement
(May 17, 2016).
[10] The Commission
has drawn on case law interpreting analogous provisions of the National Labor Relations
Act for guidance in construing Mine Act provisions. See Sec’y on
behalf of Bernardyn v. Reading Anthracite, 23 FMSHRC 924, 934 n.8 (Sept.
2001); Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361,
1368-69, n.11 (Dec. 2000). Here the analogous provision is section 8(a)(1) of
the NLRA, 29 U.S.C. § 158(a)(1),
which makes it unlawful for an employer “to interfere with, restrain, or coerce
employees in the exercise of” rights by the NLRA. Threats of reprisal, force,
or promise of benefits can be considered to constitute interference, restraint,
or coercion. 29 U.S.C. § 158(c).
[11] Commissioners
Young and Althen do not find it necessary to settle upon a final, specific test
of interference in this case. They find that in Secretary on behalf of Pepin
v. Empire Iron Range Mining Partnership, 38 FMSHRC ____, 2016 WL 3226148, Docket
No. LAKE 2015-386-DM (June 6, 2016) (ALJ) (not appealed to Commission), the Commission
Judge wrote a thoughtful analysis of the specific wording of section 105(c) in
the context of interference claims. Based upon his analysis and the differing
management-employee contexts of the NLRA and Mine Act, the Judge formulated a
test for interference that would require the Secretary to show the alleged
interfering actions were motivated by the exercise of protected rights. In this
case, the filing of complaints under section 103(g) clearly motivated the
offending portions of the Respondent’s presentations. Consequently, the
elements of the test formulated in Empire Iron are present, and it is
not necessary to adopt the Franks test. Because of the procedural
posture in Franks, the issue was not briefed before the Commission in
that case — and in fact, the issue never has been fully briefed to the
Commission. Under the circumstances, Commissioners Young and Althen do not
believe it is appropriate to settle upon a specific test of interference in
this case in which either of competing tests would arrive at the same result.
Commissioner Nakamura affirms the
Judge’s application of the Franks text. Regarding the question of
whether section 105(c)’s prohibition against discrimination and interference
“because of” protected activity” requires a plaintiff to show a retaliatory
motive, he observes that the Supreme Court has often recognized that
statutes prohibiting discrimination “because of” congressionally designated
criteria need not include a motive element. See Tex. Dep’t of Hous. &
Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507
(2015) (stating that proof of discriminatory motive is not needed to
demonstrate liability under the Fair Housing Act, even though that statute includes
“because of’ language, and noting that in prior cases the Court upheld
disparate-impact liability under Title VII and the ADEA, which contain similar
language); see also Griggs v. Duke Power Co., 401 U.S. 424
(1971); Smith v. City of Jackson, Miss., 544 U.S. 228 (2005). The Court
noted that these statutes contained lengthy sentences that, while initially
discussing prohibitions on actions taken with discriminatory motivation, also
used results-oriented “catchall phrases looking to consequences, not intent.” Tex.
Dep’t of Hous., 135 S. Ct. at 2518-19. The shift in emphasis from the
intent of the actor to the consequences of the actor’s actions was signaled by
the use of the word “otherwise” and implied that intent was not a factor in the
analysis. Id. Commissioner Nakamura believes that, in light of
the text and purpose of section 105(c), this line of Supreme Court cases
provides support for the Franks test.
[12] When reviewing
a Judge’s factual determinations, the Commission is bound by the terms of the
Mine Act to apply the substantial evidence test. 30 U.S.C. §
823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a
reasonable mind might accept as adequate to support [the Judge’s] conclusion.’”
Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
[13]
Respondents object to the Judge using a “reasonable miner” standard in this
instance on the ground “that all of named Complainants in this matter are
officials of the UMWA, and have experience and knowledge of not only the
provisions of the [CBA], but the actual rulemaking process.” R. Br. at 10 n.6. However,
each of the complaints those officials filed with MSHA plainly state that the
complaints were being brought “on behalf of all miners at the” mine in
question. Gov’t Ex. 2.
[14]
As the Secretary points out, Respondents alleged in the federal court complaint
that the CBA already establishes the position Respondents took at the Awareness
Meetings with regard to reporting safety concerns to management.
[15]
The Judge accepted into the record the recording of
CEO Murray’s remarks at the Marshall County Mine, edited to omit the recording
that occurred before and after the presentation, along with a transcript of
that portion of his remarks that addressed the section 103(g) complaints being
made to MSHA by Marshall County miners. Gov’t Ex. 29, 30. With regard to the
recording, the Judge had earlier ruled that the redacted version of the
recording was admissible, after listening in
camera to a complete version of the recording.
Order Denying Motion to Compel (July 20, 2015) (ALJ); Tr. 23-27.
[16]
Below, the Secretary, in arguing in support of the second count against the
Marshall County Mine, cited the Awareness Meetings’ inclusion of the slide
mentioning “job survival.”
S. Post-Hearing Br. at 17. A
version of that slide was used not just at the Marshall County Mine, but at all
five mines.
[17] We do not agree
with the Secretary’s characterization here that the Judge raised an affirmative
defense on behalf of the Respondents. The Judge’s dismissal was not based on
separate facts establishing a defense to the charge that Respondents had
threatened reprisal against the Marshall County miners, or that such conduct
could not violate section 105(c) as a matter of law. Rather, it was based on
her view that the Secretary’s case, with respect to the Marshall County Mine,
could not be broken down to support two separate counts of interference as
cleanly as the Secretary contended it could.
[18] In
assessing civil penalties, the Commission must consider the operator’s history
of violations; its size; whether the operator was negligent; the effect on the
operator’s ability to continue in business; the gravity of the violation; and
whether the violation was abated in good faith. 30 U.S.C. § 820(i).
[19]
As discussed in their separate opinion, Chairman Jordan and Commissioner Cohen
join in affirming the Judge’s ruling on the admissibility of the federal court
suit exhibits. Slip op. at 22-23. Commissioners Young and Althen would reverse
the Judge on this issue. They note that on the day of the hearing, the Judge
did not have any evidence or briefing regarding the merits of the federal court
complaint filed by Respondents. Without doubt, access to the courts is a
fundamental First Amendment right. Bill Johnson’s
Rests., Inc. v. NLRB, 461 U.S. 731
(1983). When disputes arise, all parties have a right to pursue their positions
vigorously. Unless the filing of a court complaint is demonstrated to be an
unwarranted attempt to harass, it is inappropriate to consider such a filing as
facial evidence of animus. Here, there was no evidence that the suit was filed
in bad faith. Further, the parties — a major coal operator and
the international union representing its miners — are relatively sophisticated,
and the suit was grounded on the statute governing their ongoing bargaining
relationship. Therefore, it was not relevant to a
showing of animus, and Commissioners Young and Althen would rule that
the admission of the exhibits was error.
[20]
To the extent that the Judge, when she stated that three complainants in this
case had been “named” in the federal court complaint meant that the three were
listed as defendants to the complaint, she was mistaken. Only Bowersox was
named as a defendant; the other two complainants here, Payton and Martin, were
not named as defendants, though excerpts from their depositions in this case
appear in the federal complaint. Gov’t Ex. 31, at 1, 8-10.
[21] If
the Secretary agrees with the Judge that the filing of the suit constituted an
extension of Respondents’ interference with miners’ protected rights, filing one
or more additional complaints alleging that would seem to be a more appropriate
method of vindicating miners’ rights in this instance. In fact, the Judge suggested as
much at hearing, when she stated that the circumstances surrounding the federal
court complaint could be the subject of a separate interference complaint by
the UMWA to MSHA. Tr. 42-43.
[22]
Chairman Jordan joins with Commissioner Nakamura’s footnote 11 in the majority
opinion. Slip op. at 7 n.11.
Because Respondents did not challenge the application
of the Franks interference test in the proceedings before the Judge,
Commissioner Cohen would apply the Franks test in this case. Absent
briefing from the Secretary, the regulated community and miners, however,
Commission Cohen does not believe it prudent to settle upon a specific test for
interference under the section 105(c) of the Mine Act at this time.
[23]
Our colleagues are incorrect in asserting that the Judge concluded that the
“sole motivation” for the Respondents’ filing of the complaint was “to
intimidate the three witnesses scheduled to testify.” Slip op. at 19. The Judge
did not state that intimidation was the “sole reason” for the filing of the
lawsuit. 37 FMSHRC at 2609.
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