Secretary of Labor obo Eric Greathouse and United Mine Workers of America International Union v. Monongalia County Coal Co., Consolidation Coal Co., Murray American Energy, Inc., and Murray Energy Corp.

Read the official release (fmshrc.gov)

Plain-English summary

Six Murray Energy mines implemented production bonus plans that reduced or eliminated crew bonuses after S&S citations, withdrawal orders, lost-time injuries, and time spent accompanying MSHA inspectors. The ALJ found that the plans discouraged safety complaints, injury reporting, walkaround participation, and time-consuming safety work, ordered the remaining plans rescinded, required remedial notices, and assessed $25,000 per mine. The Commission denied the union's request for additional make-whole relief because it had not presented evidence of individual lost bonuses below. Commissioners Mary Lu Jordan and Robert F. Cohen would affirm under an objective interference test that weighs deterrent effect against legitimate business justification. Acting Chairman William I. Althen and Commissioner Michael G. Young would reverse because section 105(c)(1) requires a motivational connection to protected activity and the Secretary conceded he offered none. The two-to-two split left the ALJ's violations and penalties standing as if affirmed without establishing a majority legal test.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(c)(1), 813(g), and 814(d)(1)
• Outcome: The ALJ's interference findings, rescission and notice remedies, and $25,000-per-mine penalties remained in effect by an evenly divided Commission; additional make-whole relief was denied.
• Key point: An evenly divided Commission preserved the result below but established no majority rule on whether a Mine Act interference claim requires proof of operator motivation.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

SECRETARY OF LABOR,                            
 :                  

MINE SAFETY AND HEALTH                   
 :

ADMINISTRATION (MSHA),                     
 :

on behalf of ERIC GREATHOUSE               
 :                                          

and UNITED MINE WORKERS OF              :

AMERICA INTERNATIONAL UNION       :                                  

:                                          

v.                                                             :                   Docket
No. WEVA 2015-904-D

:                  

MONONGALIA COUNTY COAL               
 :                              

COMPANY, CONSOLIDATION COAL       :                                          

COMPANY, MURRAY AMERICAN            :                  

ENERGY, INC., and MURRAY ENERGY   :

CORPORATION [1]                                            
 :                  

BEFORE: Althen, Acting Chairman; Jordan,
Young, and Cohen, Commissioners

DECISION

In these proceedings, arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”),
the Administrative Law Judge found that the operators of six mines owned and operated by Murray Energy Corporation (“the
Operators”) violated section 105(c) of the Mine Act, 30 U.S.C. § 815(c), by
interfering with miners’ protected rights . 38
FMSHRC 941 (May 2016) (ALJ). Section 105(c)(1) provides:

No person shall discharge or in any manner
discriminate against or cause to be discharged or cause discrimination against
or otherwise interfere with the exercise of the statutory rights of any miner,
representative of miners or applicant for employment in any coal or other mine subject
to this chapter because such miner, representative of miners or applicant for
employment has filed or made a complaint under or related to this chapter,
including a complaint notifying the operator or the operator’s agent, or the
representative of the miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine, or because such miner,
representative of miners or applicant for employment is the subject of medical
evaluations and potential transfer under a standard published pursuant to   section 811 of this title   or because such miner, representative of miners or
applicant for employment has instituted or caused to be instituted any
proceeding under or related to this chapter or has testified or is about to
testify in any such proceeding, or because of the exercise by such miner,
representative of miners or applicant for employment on behalf of himself or
others of any statutory right afforded by this chapter.

30 U.S.C. § 815(c)(1).

The cases arise from the Operators’ implementation of bonus
plans at their respective mines. The Operators and the United Mine Workers of
America (“UMWA” or “the Union”) filed cross petitions for review of the Judge’s
decision, which the Commission granted. We briefly respond to the Union’s
petition and then turn to the Operators’ claim.

The
UMWA’s Request for a Make-Whole Remedy

UMWA seeks a make-whole remedy for miners who did not
receive bonuses under the plans’ provisions. We deny that request. The Union
did not present evidence regarding miners who suffered lost bonuses. As the
Secretary’s brief in response to UMWA’s opening brief pointed out, proof of
such relief would require a remand and re-opening the record to present
additional evidence of each instance of denied bonus and proof of the lost
payment amount, beyond the scope of issues raised in the initial hearing before
the Judge. The Union had the opportunity to submit this issue for consideration
by the Judge, but it did not. Accordingly, we find that the Union waived this
argument, and the Commission declines to consider it on appeal.

The
Operators’ Challenge to the Decision of the Judge Below

Regarding the Operators’ claim, the parties stake their
positions on clear and sharply contrasting views of section 105(c). The
Secretary and the UMWA contend that an action interferes with the exercise of
protected rights if the action tends to interfere with the exercise of
protected rights and is not justified by a legitimate
and substantial reason whose importance outweighs harm caused to the
exercise of protected rights. They assert motivation or causation is not an element of
such a violation. The Operators, on the other hand, contend that the Judge
erred in the application of section 105(c). They contend that section 105(c)
contains a necessary element of motive or causation. Thus, they argue that the complaining
party must demonstrate that an operator’s action arose because of the exercise
of protected activity. The Judge adopted the position asserted by the Secretary
and the UMWA.

The Commissioners
are divided  evenly regarding the correct analytical framework
to apply and whether the Operators violated section 105(c).

Commissioners Jordan and
Cohen would find that the language of section 105(c) is ambiguous and
would defer to the Secretary’s reasonable interpretation. They would apply the Franks
test, infra slip op. at 8, and conclude that substantial evidence
supports the Judge’s determination that the Operators violated section 105(c)
by implementing bonus plans which interfered with miners’ protected rights
under the Mine Act.

Acting Chairman Althen and Commissioner
Young would find that the language of section 105(c) is plain and requires
proof of motivation related to protected activity to establish a claim of
interference and would conclude that the Secretary has failed to prove
motivation in this case. Thus, they would reverse the Judge’s finding of interference
in violation of section 105(c).

The effect of
the  split  decision is to allow the Judge’s  conclusions on the violations and penalty assessments to  stand as if affirmed . Pennsylvania
Electric Co. ,  12 FMSHRC 1562, 1563-65 (Aug. 1990),  aff’d , 969 F.2d 1501 (3d Cir. 1992).

I.

Background
and Proceedings Below

A.     Background

In
2014, the Operators decided to implement bonus plans at each of the six mines. The
bonus plans provided that miners would earn additional pay if they met
specified production goals. In October or November 2014, the Operators held a
meeting at each of the mines with the UMWA representatives to present the bonus
plans. During these meetings, the UMWA representatives argued that the bonus
plans would have a negative effect on mine safety and miners’ willingness to
exercise their rights. Tr. 33-34, 146-47, 149, 208-09, 282, 288.

The
Operators made minor changes to their initial proposals that somewhat narrowed
plan provisions that disqualify entire crews from earning bonuses if an injury
occurred during a shift. However, miners continued to raise safety concerns
during subsequent meetings with management. Jt.
Ex. 1A, Stip. 28; Jt. Ex. 14-19; Tr. 36-37,

151. At three mines, miners voted on whether to approve the bonus plan s,
     and two of the three rejected the plans. Jt. Ex. 1A, Stips. 35, 47; Tr. 37,
     210-11. The Operators nonetheless implemented
     the bonus plans at all six mines between January 15 and 19, 2015.

Arbitration decisions under
the collective bargaining agreement between the Operators and the UMWA have
since led to the discontinuation of the bonus plans at the Marion County Mine
in July 2015, at the Powhatan No. 6 Mine in September 2015, and at the Harrison
County Mine in December 2015. 38 FMSHRC at 946. The plans remained in effect at
the other three mines until the Judge’s decision in this case in May 2016. Id.

The plans at the six
mines were generally identical. Miners in a production crew qualified for
bonuses that increased by steps according to how far the working face advanced
during a shift. To qualify for the bonus, miners had to be “physically present
the entire shift.” 38 FMSHRC at 943; Jt. Exs. 20-25. Miners working outby the
face were eligible to receive 10% of the bonuses achieved by production crews. Miners
from production crews who accompanied MSHA inspectors during inspections were
only eligible for the 10% outby bonus.

Certain events would
disqualify section crews for a shift, a day, or even a week. All production
crews on a section would lose their bonus eligibility for a full day if an MSHA
inspector issued a significant and substantial (“S&S”) [2]
citation for a condition inby the tailpiece. Similarly, all the miners on a
section could be deemed ineligible to receive a bonus for a full week if the
section received a withdrawal order under sections 104(b) or 104(d) of the Mine
Act. The entire crew would be ineligible for one
shift if any crew member suffered a lost-time
accident during that shift. And at five mines, any “major deviation” from “[s]ection
production and safety standards” would disqualify a production crew. [3]
38 FMSHRC 943; Jt. Exs. 20-25.

As set forth above, the parties assert starkly contrasting
views of the proper interpretation of section 105(c). As one would expect, each
side presented evidence supporting its legal position.

The Secretary and Union presented six Union officials and/or
local safety committeemen. Each testified in detail about the terms of the
bonus plans, explaining how certain activity by miners would render them ineligible
for a bonus. They also testified to the chilling effects of the plans upon the
exercise of protected rights, describing numerous instances in which miners
were deterred from engaging in safety related activity in order to avoid
negatively impacting a bonus. The testimony of interference ranged from miners
raising fewer safety issues and neglecting non-production safety tasks, such as
rock dusting, to fewer reports of injuries and antipathy towards miners’
representatives’ assertion of safety rights. The witnesses also explained why
the legitimate business purposes intended to be served by the bonus plan did
not offset the interference.

At oral argument, the Secretary stated that his case did not
depend upon a showing of retaliatory motivation. Accordingly, the Secretary did
not present evidence going to a causal connection between the implementation of
the bonus plan and prior protected activity.

The Operators, on the other hand, staked their case on their
view of the law. They presented just one witness – John Forrelli, Senior Vice
President of Murray Energy Corporation. He testified that the purpose of the
bonus plans was to improve both production and safety and that the Operators
did not implement the plans because of any protected activity. Thus, they claimed
protected activity did not motivate adoption of the plans. Under their view of
section 105(c), an absence of evidence showing that the plans were implemented
because of the exercise of protected rights defeats a section 105(c) claim.

B.      The
Judge’s Decision

On
May 2, 2016, the Judge issued a decision and order finding that the Operators
had interfered with miners’ rights at each of the mines. The Judge began her
analysis by concluding that the proper test for analyzing section 105(c)(l)
interference claims is the two-step framework adopted by
two Commissioners in UMWA
on behalf of Franks and Hoy v. Emerald Coal Resources, LP ,
36 FMSHRC 2088, 2108 (Aug. 2014) (sep. op. of Chairman Jordan and
Comm’r Nakamura) (hereinafter cited as “ Franks ”). 38 FMSHRC at 946-48. The
Judge rejected the Operators’ reliance on Sec’y of Labor on
behalf of Feagins v. Decker Coal Co. , 23
FMSHRC 47 (Jan. 2001) (ALJ) , a 15-year-old ALJ
decision, concluding that it was out of line with the Commission’s current case
law on interference.   Id. at 948-49.

The
Judge then turned to the first step of the Franks test, which asks
whether a reasonable miner would view the operator’s actions as tending to
interfere with miners’ protected rights. The
Judge found that (1) “[t]estimony at hearing indicated that the effect of the
bonuses is to create pressure on miners to maximize short-term production at
the expense of safety,” and that this effect was compounded by peer pressure, id.
at 950; (2) miners were “reluctant to report safety issues to management or
MSHA under the bonus plans because making the report and undergoing an
inspection take away from production time,” id. at 950-51; (3) “[t]here
is no question that some miners are discouraged from serving as walk-around
representatives because they would miss out on the chance to get a larger
bonus,” id. at 952; and (4) the injury disqualification “impermissibl[y]
burden[s]” miners’ right to report injuries because an injured miner “must
choose between exercising his right to report the injury and getting a bonus,” id.

Having
adopted the Franks test, the Judge then turned to the second step of
this test, which requires identifying and
weighing any legitimate and substantial business justification proffered by the
operator for actions it takes that interfere with protected rights. The Judge
recognized that the Operators purported to have promulgated the bonus plans to
increase safety and production. The Judge stated that an operator “certainly
has a right to implement programs to assure that miners are producing at the
best rate possible,” but found that the Operators had not shown that the bonus
plans promoted safety or increased production. Id. at 954. “In contrast,
the harm to miners’ rights is evident.” I d.
at 955. Thus, the Judge found that “[t]he uncertain benefits that [the
Operators] put forth do not outweigh these harms.” Id.

The
Judge therefore ordered that the bonus plans be rescinded at the three mines
where they remained in place, required the posting of a remedial
notice, and assessed a civil penalty of $25,000
per mine – $5,000 more per mine than the Secretary’s proposal. Id. at
955-56.

The
Operators filed a timely petition for review. The UMWA also filed a timely
petition for review, arguing that the Judge should have ordered additional
remedies . The Commission granted both petitions.

II.

Disposition

The Operators contend that the Judge erred by applying the
wrong test for analyzing a claim of interference. They argue that the Franks
test fails to adhere to the plain language of section 105(c), which requires a
finding of motive or intent. They set forth the following three-part test as an
alternative framework for analyzing interference claims: (1) the exercise of statutory rights by a miner; (2) any
adverse action taken must be directed against the miner who engaged in the
exercise of statutory rights; and (3) the operator must take some affirmative
adverse action against a miner in response to the exercise of statutory rights.
PDR at 12. The Operators point to the Judge’s decision in Secretary of Labor on behalf of Pepin v.
Empire Iron Mining Partnership , 38 FMSHRC 1435 (June 2016) (ALJ)
(hereinafter cited as “ Pepin ”), as support for its interpretation of
section 105(c) and the application of its interference test in lieu of the
Secretary’s Franks test. [4]

The Secretary asserts that the Judge correctly applied the Franks
test as supported by the Mine Act’s text, its legislative history, and Commission
precedent. Both the UMWA, an intervenor in these proceedings, and the United Steel, Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial & Service Workers International Union (“USW”) ,
which filed an amicus brief on appeal, support the Secretary’s position that
the Judge correctly applied the Franks test in concluding that the
Operators’ bonus plans violate section 105(c) by interfering with miners’
protected rights.

A majority of
Commissioners has not endorsed the Franks test, under which evidence of
motivation or causation is relevant only to proof of a legitimate business
justification defense. Commissioners Jordan and Cohen agree that the applicable
test is Franks and conclude that substantial evidence supports the
Judge’s finding of a violation. Acting Chairman Althen and Commissioner Young
conclude that the plain language of the Mine Act requires proof that the action
was taken “because of” the exercise of protected rights. They would find,
therefore, that the Judge failed to apply the proper test. The effect of the
split vote is to affirm the Judge’s decision below. The separate opinions of
the Commissioners follow.

III.

Separate
Opinions of the Commissioners

Commissioners Jordan and Cohen, in
favor of affirming the Judge:

As more fully explained
in our decision, we reject the interpretation of the Operators and our
colleagues that section 105(c) has a plain meaning, because both
interpretations would lead to absurd results. Hence, we find the language
ambiguous and would defer to the Secretary’s reasonable interpretation. We thus
would apply the Franks test and would conclude that substantial evidence
supports the Judge’s determination that the Operators violated section 105(c)
by implementing bonus plans which interfered with miners’ protected rights
under the Mine Act. We also conclude that the Judge did not abuse her
discretion in making her evidentiary rulings below.

I.       
Proof of Retaliatory Motive is Not Required in an Interference
Claim Under the Mine Act.

This case concerns the scope of section 105(c) of the
Federal Mine Safety and Health Act of 1977 (“Mine Act” or “Act”). That
particular statutory provision prohibits persons from discharging, or in any
manner discriminating against, or otherwise interfering with the statutory
rights of any miner “because of the exercise by such miner . . . of any
statutory right afforded by this Act.” 1 30 U.S.C. §
815(c)(1). The case before us presents the issue of whether, in order to
constitute a violation of section 105(c), it is sufficient to demonstrate that
an operator’s policy interferes with the exercise of miners’ rights, and that
such interference is unjustified, or whether one must also prove that the
challenged policy was implemented with a retaliatory motive, in other words
directly “because of” a miner’s exercise of a statutory right.

As described below, we believe that the correct test is the
test previously articulated by two Commissioners in Franks & Hoy , 36
FMSHRC at 2108 (sep. op. of Chairman Jordan and Comm’r Nakamura), and proposed
by the Secretary herein (S. Resp. Br. at 13-15), providing that a section
105(c) violation of interference occurs if:

(1) a person’s action
can be reasonably viewed, from the perspective of members of the protected
class and under the totality of the circumstances, as tending to interfere with
the exercise of protected rights, and (2) the person fails to justify the
action with a legitimate and substantial reason whose importance outweighs the
harm caused to the exercise of protected rights.

In attempting to answer the
question of the correct test for interference, we turn to the language of the
statute, and our first inquiry is “whether Congress has directly spoken to the
precise question at issue .” Chevron U.S.A. Inc. v. Natural Res.
Def. Council, Inc. ,
467 U.S. 837, 842 (1984) ;  Thunder
Basin Coal Co. , 18 FMSHRC 582, 584 (Apr. 1996). If a statute is clear and
unambiguous, effect must be given to its language. See  Chevron , 467 U.S. at 842-43; accord   Local Union 1261, UMWA , 917 F.2d 42, 44 (D.C. Cir. 1990) . In ascertaining the
meaning of the  statute , courts utilize traditional tools of construction,
including an examination of the “particular statutory language at issue, as
well as the language and design of the  statute  as a whole,” to determine whether Congress had an
intention on the specific question at issue (“ Chevron I ” analysis ). Local Union 1261, UMWA v. FMSHRC , 917 F.2d at 44 ;  Coal Employment Project v. Dole , 889 F.2d 1127, 1131 (D.C. Cir. 1989) . If an interpretation of statutory language which
apparently is clear and unambiguous leads to absurd results, then the language
should be found to be ambiguous. American
Water Works Assoc. v. EPA , 40 F.3d 1266,
1271 (D.C. Cir. 1994); see also United
States v. Ryan , 284 U.S. 167, 175 (1931)
(“A literal application of a statute which would lead to absurd consequences is
to be avoided whenever a reasonable application can be given which is consistent
with the legislative purpose.”). If a statute  is  ambiguous  or silent on a point in question, deference is
accorded to the interpretation of the agency charged with administering the
provision in question, provided that the interpretation is reasonable ( Chevron
II analysis). See Chevron , 467 U.S. at 843-44;  Energy West Mining Co. v. FMSHRC , 40 F.3d 457, 460 (D.C. Cir. 1994) .

Section 105(c) mandates that
persons not take certain actions “because of” a miner’s 2
exercise of statutory rights. Included in the list of prohibited actions is the
directive not to “otherwise interfere with the exercise of [miners’] statutory
rights.” 30 U.S.C. § 815(c)(1). In general, a
claim that a person has interfered with another’s ability to do something would
cause us to consider whether, or how, that person’s actions made it more
difficult for another person to carry out the activity in question. The focus
of the inquiry is on the effect of the challenged action, not necessarily on
the motive behind the action.

The
respondent operators, Murray Energy Corporation, et al. (“the Operators”) and
our colleagues assert that the plain language of section 105(c) requires any
employer action challenged as violating that provision be shown to have been
taken “because of” the exercise of protected rights. They focus on the meaning
of the term “because” to derive an alleged plain meaning in section 105(c). However,
“[t]he plainness or ambiguity of statutory language is determined [not only] by
reference to the language itself, [but as well by] the specific context in
which that language is used, and the broader context of the statute as a
whole.” The American Coal Co ., 796 F.3d 18, 25 (D.C. Cir. 2015)
(affirming the Commission, the Court held that the term “fire” in section 3(k)
of the Mine Act is ambiguous and the Secretary’s interpretation of the term to
include smoldering, smoking combustion without visible flames was reasonable)
(citing Yates v. United States , 135 S.Ct 1074, 1081 (2015)). 3

Here too, we must interpret the terms used
in section 105(c) in context with both the Mine Act’s goals and the actual
experiences of miners. Congress recognized that interference with miners’
rights can be subtle and will take uncommon forms. See S. Rep. No. 95-181
at 36, discussed infra. To permit subtle interference through a narrow
construction of the term “because of” in section 105(c) would be inconsistent
with this Congressional recognition.

Specifically, the Operators argue
that the statutory test requires three elements to establish a claim of
interference: (1) the actual exercise of statutory rights by a miner prior
to the alleged act of interference by the employer, (2) that the alleged
act of interference be directed against the miner who previously exercised
statutory rights, and (3) that the employer be shown to have committed the
alleged act of interference in response to the miner’s exercise of
statutory rights. PDR at 12. Thus, in the operators’ view, a literal reading of
the statutory language requires that prior conduct of a miner be the catalyst
for the employer action under review, and to do otherwise would read the
“because of” language out of the Act. 4

A.    
The Language of Section
105(c) has No Plain Meaning Because a Literal Reading Would Lead to Absurd
Results.

We conclude that the language of
section 105(c), insofar as it pertains to interference claims, does not have a
plain meaning. The relevant language states: “No person shall . . .
otherwise interfere with the exercise of the statutory rights of any miner . .
. because of the exercise by such miner . . . of any statutory right afforded
by this Act.” 30 U.S.C. § 815(c)(1). As the Operators
contend, a literal reading of the words “because of the exercise by such miner

. . . of
any statutory right afforded by this Act” necessarily refers to an exercise of
a statutory right which has already taken place. But such a reading leads to
absurd results.

Imagine a situation where a mine
is newly opened with a new workforce and the mine owner creates a bonus plan
which provides that if a miner contacts MSHA to complain about an unsafe
condition, an action protected under section 103(g) of the Act, [5]
the miner will lose his bonus. Clearly, this is interference within the meaning
of section 105(c). But it does not involve any prior act by any miner, and so,
under the Operators’ literal reading, it would not be an illegal act under
section 105(c). [6]

Because a literal reading of the
statute leads to absurd results, the interference provision of section 105(c)
must be seen as lacking a plain meaning. A case in point is American Water
Works Assoc. v. EPA , supra . This case involved a challenge by the
Natural Resources Defense Council (“NRDC”) to the EPA’s interpretation of the
language “not economically or technologically feasible” in the Safe Drinking
Water Act, 42 U.S.C. § 300f(1)(C)(ii). The dispute centered on an EPA
regulation for the control of lead in public water systems, specifically
whether EPA was required to set a numeric maximum contaminant level (“MCL”),
which was required by the statute unless it was “not economically or
technologically feasible,” or whether it could establish a treatment technique
to control lead. In support of its position that the EPA was required to set a
specific MCL for lead, the NRDC argued that the plain meaning of the word
“feasible” was “physically capable of being done at reasonable cost.” In
response, the EPA did not dispute that it was “feasible” to monitor lead under
the definition proposed by the NRDC, but contended that use of an MCL standard
could lead to requiring public water systems to undertake aggressive corrosion
control techniques which would increase the levels of other contaminants. Hence,
EPA interpreted “feasible” broadly to mean “capable of being accomplished in a
manner consistent with the Act.” 40 F.3d at 1270-71.

In siding with the EPA, the Court
stated:

We agree with the EPA that the meaning of ‘feasible’ is not
as plain as the NRDC suggests. Although we generally assume that the Congress
intends the words it uses to have their ordinary meaning, . . . case law is
replete with examples of statutes the ordinary meaning of which is not
necessarily what the Congress intended. . . . Indeed, where a literal reading
of a statutory term would lead to absurd results, the term simply ‘has no plain
meaning . . . and is the proper subject of construction by the [agency] and the
courts.’ . . . If the meaning of ‘feasible’ suggested by the NRDC is indeed its
plain meaning, then this is such a case; for it could lead to a result squarely
at odds with the purpose of the Safe Drinking Water Act.

Id. at 1271 (citations omitted). The Court then went on to
defer to the agency’s interpretation of the statute, finding, pursuant to the Chevron
doctrine, that it was a reasonable one.

Likewise, we conclude that the
literal reading of the interference provision of section 105(c) asserted by the
Operators leads to absurd results. As illustrated by the example of a new mine
with a bonus plan which discourages complaints to MSHA described above, it
leads “to a result squarely at odds with the purpose” of the Mine Act.

The Commission has adhered to the
principle that when interpreting the Mine Act and safety standards,
constructions that lead to absurd results must be avoided. See, e.g. , Central
Sand and Gravel Co. , 23 FMSHRC 250, 254 (Mar. 2001). Notably, the
Commission has been guided by this precept in considering the scope of
protection afforded by section 105(c). For example, the statute prohibits the
“discharge . . . of any miner . . . because such miner . . . has filed or made
a complaint under or related to this Act.” 30 U.S.C. § 815(c)(1). The literal
application of the provision advocated by the Operators would cover only
retaliatory actions taken against the particular person who made a safety
complaint. This is because the statute prohibits the discharge of a miner
“because such miner . . . has . . . made a complaint under or related to
this Act . . . or because of the exercise by such miner . . . of any
statutory right afforded by this Act.” Id. (emphasis added). If an
employer fired a miner believing that the miner filed a safety complaint, but a
different miner had made the complaint, would the fired miner have a claim
under section 105(c)? A literal approach, seeking to give effect to every word,
would require the Commission to answer in the negative.

In Moses v. Whitley Dev. Corp .,
4 FMSHRC 1475 (Aug. 1982), aff’d , 770 F.2d 168 (6th Cir. 1985), the
Commission confronted this very question. Moses was fired, and the Judge below
found that the discharge occurred “because the operator thought the complainant
had engaged in protected activity, even though he had not.” 4 FMSHRC at 1480. We
acknowledged that “a literal interpretation . . . might require the actual or attempted
exercise of a right before the protection of section 105 comes into play,” but
we nevertheless found a violation. Emphasizing the effect of the
employer’s action on the willingness of miners to exercise their rights, we
pointed out that:

Miners would be less likely to exercise their rights if no
remedy existed for discriminatory action based on an operator’s mistaken belief
that a miner had exercised a protected right . . . . [E]mployees could
reasonably fear that they might be treated adversely on the basis of suspicion
alone, and thus would seek to avoid even the appearance of asserting their
rights.

Id.

More recently, in Sec’y obo
Gray v. North Star Mining, Inc ., 27 FMSHRC 1 (Jan. 2005), a case
involving an alleged threat against a miner, we stated:

[I]nterference . . . does not turn on the employer’s motive
or on whether the coercion succeeded or failed. The test is whether the
employer engaged in conduct which, it may reasonably be said, tends to
interfere with the free exercise of employee rights . . . .

Id. at 9 (quoting Am.
Freightways Co ., 124 NLRB 146, 147 (1959)).

The case   involved conversations between an assistant mine
superintendent, Jim Brummett, and Mark Gray, who had been called to testify
before a grand jury about smoking, ventilation and roof support violations at
the mine (although ultimately he was not called as a witness). Id.  at

2. When Gray told Brummett that he did not want hard feelings between them, Brummett
   replied, “No, they ain’t no hard feelings, unless you put the screws to me,
   then I’ll kill you,” and then laughed. Id. at 3. The next day, Brummett sought
   assurances from Gray that a second miner had not testified against him. Id.
   Brummett told Gray that “if anyone had laid the screws to him that he would
   whip their ass.” Id. The Judge dismissed Gray’s discrimination complaint,
   finding that Brummett’s statement to Gray was just an “exaggerated expression,
   commonly used between friends” and that his statement to Gray on the following
   day was directed at the second miner, and not at Gray. Id.  at 5.

The Commission found that the
Judge had erred in denying Gray’s interference claim based on the absence of
intent or motive. The Commission said, “We conclude that the judge examined
Brummett’s statements too narrowly by considering largely, if not
exclusively, Brummett’s intent or motive in making the statements. . . . rather
than considering only Brummett’s intent, the judge should have analyzed the
totality of circumstances surrounding Brummett’s statements to determine
whether they were coercive and violative of section 105(c) of the Mine Act.” Id.
at 10. [7]

The Commission’s approach in Moses
and Gray is consistent with cases that considered the scope of the
analogous anti-discrimination provision in the Federal Coal Mine Health and
Safety Act of 1969, the predecessor to the current statute. In Phillips v.
IBMA , 500 F.2d 772 (D.C. Cir. 1974), the D.C. Circuit considered whether a
miner came under the protection of section 110(b) of that Act when he
complained to his foreman, and then subsequently refused to work because of the
dusty conditions in the mine. [8] The
dissenting judge applied the literal language of the Coal Act, which afforded
protection to miners who notified the Secretary or his authorized
representative of an unsafe condition, and concluded that “the phrase ‘the
Secretary or his authorized representative’ on its face plainly does not mean a
foreman or the mine employees serving on a safety committee.” Id. at

785. The Phillips majority, however, after considering the procedures in
     place at the mine and the practical effect of applying the literal language of
     the provision, concluded that such an interpretation “would nullify not only
     the protection against discharge but also the fundamental purpose of the Act to
     compel safety in the mines.” Id. at 781(footnote omitted). [9]
     The Phillips Court analogized section 110(b)’s protection to the
     protection afforded under the corresponding anti-discrimination provision of
     the National Labor Relations Act which, the Phillips Court noted, had
     been construed broadly so as to apply to the discharge of an employee for
     giving a sworn written statement to a NLRB field examiner who was investigating
     an unfair labor charge. Such protection was necessary, the Supreme Court had
     determined, in order “to prevent the Board’s channels of information from
     being dried up by employer intimidation of prospective complainants and
     witnesses.” Id. at 782 (emphasis added) (citing NLRB v. Scrivener dba
     AA Electric Co ., 405 U.S. 117, 122 (1972)). [10]

The concern that safety-related
channels of information were being dried up prompted the Secretary’s filing in
this case. Here, however, the reluctance of the miners to assert their rights
is attributed not so much to employer intimidation as it is to the inducements
contained in the employer’s bonus plan. As set forth in more detail, infra
slip op. at 22-24, certain aspects of the plan can cause a miner who chooses to
exercise his or her right to accompany an inspector to risk losing a portion of
a bonus payment. Likewise, under the plan, a miner who points out a condition
that is hazardous, or which violates a safety standard, can be, at least
indirectly, the cause of a forfeiture of all or part of the bonus. Reporting an
injury can result in the entire crew losing their bonus. Miners who insist that
certain time-consuming but necessary safety-related chores (like rock dusting)
be carried out incur the ire of fellow employees, who fear that the activity
will lessen the likelihood of a bonus. Putting aside for a moment the issue of
whether the Secretary has adequately proven these potentially deterrent effects
of the bonus plan, the question remains whether the Secretary must also show
that the plan was implemented “because of” the miners’ exercise of protected
activity.

In interpreting other,
similarly-worded, statutes, the Supreme Court has found the phrase “because of”
not to have the alleged plain meaning of motivation advocated by the Operators or
our colleagues. The Court has recognized that statutes prohibiting
discrimination “because of” congressionally designated criteria need not
include a motive element. In Texas Department of Housing &
Community Affairs v. Inclusive Communities Project, Inc ., 135 S. Ct. 2507,
2518 (2015), the Court considered whether a method of distributing low income
housing tax credits violated the Fair Housing Act. That statute made it
unlawful inter alia to “refuse to sell or rent after the making of a
bona fide offer . . . or otherwise make unavailable or deny, a dwelling
to any person because of race, color, religion, sex, familial
status, or national origin.” Id. at 2518 (quoting 42 U.S.C. § 3604(a))
(emphasis added). Although a purpose underlying the Fair Housing Act was to
reduce racially segregated housing, the housing tax credit program under review
actually wound up reinforcing it, albeit without evidence of a discriminatory
intent. The Housing Department denied liability, claiming that “[a]n action is
not taken ‘because of race’ unless race is a reason for the action.” 135 S. Ct.
at 2519.

The Court rejected the argument
that “because of” must include a motivational argument. Focusing on the phrase
“or otherwise make unavailable,” it noted the similar language in both Title
VII and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, and
concluded:

In these three statutes the operative text looks to
results. The relevant statutory phrases, moreover, play an identical role in
the structure common to all three statutes: Located at the end of lengthy
sentences that begin with prohibitions on disparate treatment, they serve as
catchall phrases looking to consequences, not intent. And all three
statutes use the word ‘otherwise’ to introduce the results-oriented phrase. “Otherwise”
means “in a different way or manner,” thus signaling a shift in emphasis from
an actor’s intent to the consequences of his actions. Webster’s Third New
International Dictionary 1598 (1971).

135 S. Ct.
at 2519 (emphasis added). Thus, the Court held that the inclusion of the phrase
“because of” in an anti- discrimination statute does not imply the need to show
discriminatory motive. [11]     

B.     
The Mine Act’s Legislative
History Demonstrates that Interference Could Occur Without a Showing of Motive
on the Part of the Operator.

The directive that no person shall
“otherwise interfere with the exercise of the statutory rights of any miner”
was included when the 1969 Coal Act was amended to become the Federal Mine
Safety and Health Act of 1977. The Senate drafters explained that the wording
of section 106(c)(1) (the section which became section 105(c) in the final
bill) was “broader than the counterpoint language in section 110 of the Coal
Act” and the listing of protected rights was “intended to be illustrative and
not exclusive.” S. Rep. No. 95-181, at 36 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal
Mine Safety and Healthy Act of 1977 , at 624 (1978). The Committee specified
that this section should “be construed expansively to assure that miners will
not be inhibited in any way in exercising any rights afforded by the
legislation” and indicated its intention “to insure the continuing vitality of
the various judicial interpretations of section 110 of the Coal Act which are
consistent with the broad protections of the bill’s provisions. See, e.g. ,
Phillips v. IBMA , 500 F.2d 772; Munsey v. Morton , 507 F.2d 1202.”
S. Rep. No. 95-181, at 36, reprinted in Legis. Hist. at 624.

The legislative history of the discrimination provision in
the 1977 Mine Act establishes that Congress had contemplated the type of
operator conduct present in this case, and that Congress intended to prohibit
it without a showing of operator motive. The Senate Report demonstrates that Congress’ intent was to protect miners from “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
benefit or threats of reprisal.” S. Rep. No. 95-181, at 36 (emphasis
added) . This
language directly addresses the Operators’ bonus plans at issue here. “Promises
of benefit” inherently affects future protected activity rather than
being made in reaction to prior protected activity. Thus the Operators’ argument
that section 105(c) only forbids adverse action or interference “because . . .
such miner” previously participated in protected activity directly contravenes
the legislative history of the Mine Act. [12]

In light of this legislative
history, we conclude it inappropriate to limit the scope of section 105(c)’s
protection from interference in the manner proposed by the Operators. We
decline to adopt their narrow construction, based on the literal terminology of
the statute and focused on an employer’s motivation when implementing the
policy, rather than on the effects of the policy on miners’ willingness to
exercise their rights. The decisions endorsed by the Senate drafters rejected
such an interpretation. Those decisions declined to elevate the statutory text
at the expense of the underlying remedial purpose of the law, and we find it
difficult to believe the drafters would consider motivation to be such a
necessary element that its absence would be the basis for an interpretation of
105(c) that undermines its very purpose: to encourage the reporting of
suspected violations of health and safety regulations.

Indeed, the test proposed by the
Operators leads to absurd results because the Congressional intent to include
“the more subtle forms of interference” is essentially precluded. [13]
Congress intended to include “threats of reprisal” within the ambit of
illegal interference, but such threats cannot be reached under the Operators’ test
unless there has been a predicate act of miners exercising protected rights
which gave rise to the threat of reprisal. Moreover, the “promises of benefit”
contemplated by Congress virtually cannot be reached at all. [14]
The test proposed by the Operators’ is essentially backward-looking. It
requires that there be a pre-existing exercise of statutory rights by a miner
which triggers the alleged act of interference by the operator. However, the
Mine Act’s prohibition of unlawful interference, as described in the
legislative history, is forward-looking. The interference which Congress sought
to prevent is the promise of future benefit or the threat of reprisal
for a future assertion of statutory rights by a miner.

C.    
Demanding Proof of an
Operator’s Motivation Would Permit Some Policies Intruding Upon the Mine Act’s
Protections Against Interference to Go Uncorrected.

The test proposed by the Operators
would have the effect of reading the “interference” language of section 105(c)
out of the Mine Act. The statutory language provides, “No person shall
discharge or in any manner discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere with the exercise of the
statutory rights of any miner, . . . .” Thus, “interference” is distinct from
“discrimination.” In Sec’y on behalf of Pendley v. Highland Mining Co. ,
the Commission held that “discrimination” includes all retaliatory “adverse
actions” that are “harmful to the point that they could well dissuade a
reasonable worker” from engaging in protected activity. 34 FMSHRC 1919, 1932
(Aug. 2012) (quoting Burlington N. & Santa Fe Railway v. White , 548
U.S. 53, 57 (2006)). Given that the dissuading of workers from engaging in
protected activity is the essence of “interference,” Pendley establishes
that “interference” which is in retaliation for protected activity – i.e., the
test proposed by the Operators – is covered by section 105(c)’s
provision against “discrimination.” As noted above, Congress added the
“interference” language to the 1969 Coal Act in creating the Mine Act in 1977
and intended the interference provision to broaden the coverage of the
anti-discrimination provision. However, if the test proposed by the Operators is
adopted by the Commission, it would render the “interference” language a
nullity.

Our colleagues’ approach is
somewhat different from that of the Operators. They reject the literal
interpretation of section 105(c) advanced by the Operators and argue that they
can divine a plain meaning of the section separate from its literal meaning, slip
op. at 34 n.6, 35, 46, 49-50, although, as the Operators point out, the literal
meaning of the statutory language is clear. [15]
Like the Operators, our colleagues assert that there must be a causal nexus
between alleged acts of interference and protected activity in order to come
within the ambit of the statutory prohibition. However, unlike the Operators,
they assert that the required protected activity can include activity that is
yet to occur. [16]

We can envision situations where actions by mine
operators may constitute actionable interference under section 105(c) absent
motivation to inhibit miners’ protected activity. An obvious example is the
fact pattern described in Gray, where the Commission found interference
although the Judge accepted Brummett’s testimony that he was only joking with
Gray and that no threat occurred. 27 FMSHRC at 5.

At least one Commission Judge has described how demanding
proof of motivation as a requirement in interference cases would permit
operators to interfere with statutory rights for reasons that would not be
actionable. Commission Judge John Kent Lewis noted, “[a]ccording to the Pepin
test, [17]
an agent of the operator would be legally permitted to interfere with a miner’s
statutory rights because he doesn’t like the miner, because there was a lack of
resources, because he was ignorant of the miner’s statutory rights, or a host
of other reasons that are not motivated by the exercise of statutory rights.” Wilson
v. Armstrong Coal Co., 39 FMSHRC 1072, 1092 (May 2017) (ALJ), review
granted June 15, 2017. Thus, the interpretation of section 105(c) advanced
by our colleagues, like the interpretation by the Operators, would lead to
absurd results: in some circumstances, policies intruding upon the Mine Act’s
broad protections would escape corrective action under section 105(c).

Moreover, we note that both the
Operators and our colleagues assert that their respective interpretations of
section 105(c) represent the “plain meaning” of the statutory language. The
obvious conflict between these allegedly “plain” meanings suggest that section
105(c) actually is ambiguous, and not subject to resolution under Chevron I analysis.
See American Coal Co ., 796 F.3d at 24-25.

D.    
Deference to the Secretary’s
Interpretation is Warranted.

Given our conclusion that the
alleged “plain meaning” interpretations by the Operators and our colleagues
lead to absurd results, and thus that section 105(c) is ambiguous as to
whether proof of motivation is required in an interference claim, we next
consider whether it is appropriate to defer to the Secretary’s interpretation
of the statutory language pursuant to Chevron II analysis.

As noted above, the Secretary submits that an action
constitutes interference in violation of section 105(c)(1) if:

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

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

S. Br. at 13-17 (quoting Franks
& Hoy , 36 FMSHRC at 2108 (sep. op of Chairman Jordan and Comm’r
Nakamura). The Secretary thus interprets the Mine Act so as to allow a miner to
prevail on an interference claim, without requiring proof of the operator’s
motivation to interfere with the miners’ statutory rights. This two-part test
was articulated and adopted by two Commissioners in Franks & Hoy , 36
FMSHRC at 2108 (sep. op of Chairman Jordan and Comm’r Nakamura). This analytic
framework has been dubbed “the Franks test.”

Commissioners recently concluded that it was not error for a
Judge to apply the Franks test. Sec’y of Labor on behalf of McGary
v. Marshall Cty. Coal Co ., 38 FMSHRC 2006 (Aug. 2016). In that case, the
operator instituted a policy, announced at company-wide meetings, requiring
miners to report safety hazards to management first, thereby circumventing
miners’ rights to report hazards under section 103(g) of the Act. [18]
38 FMSHRC at 2012 n.11, 2028 n.22. [19] All five
commissioners concluded that the Franks test was consonant with Moses
and Gray and thus it was not incorrect for the Judge to use it in
the McGary case. Id. at 2012.

In a recent interference case under the Mine Act, the D.C.
Circuit also employed the Franks test, noting that the administrative
law judge had applied it and that neither party challenged its use. Wilson
v. FMSHRC , 863 F.3d 876 (D.C. Cir. 2017). In ruling on the miner’s
interference claim, the Court emphasized that the Franks test calls for
an objective evaluation of how a reasonable miners’ representative would view
the alleged discriminator’s conduct, and not whether the individual accused of
interference had a subjective intention to interfere with the statutory rights
of the miners’ representative. Id . at 881-82. Specifically, the Court
stated, “as the Commission has instructed, whether ‘interference’ occurred does
not turn ‘on the [respondent’s] motive . . . .’” Id. at 881 (citing Gray ,
27 FMSHRC at 9).

In sum, we reject the literal interpretation of section
105(c) that would unduly restrict the reach of the Mine Act’s protection from
interference. We would have the Commission adopt the Franks test,
deferring to the Secretary’s reasonable interpretation of the statutory
language, an interpretation that is consistent with Commission precedent,
federal case law, and the legislative history of the Mine Act and, importantly,
one in keeping with Congressional intent to encourage miners to play an active
role in maintaining safe and healthful conditions in the mines. [20]

II.                
Substantial Evidence Supports the Judge’s Finding that the
Bonus Plans Interfered with the Miners’ Protected Rights.

A.     A
Reasonable Miner Would be Deterred from Exercising His or Her Rights as a
Result of the Bonus Plans.

Concluding that the bonus
plans discouraged miners from making safety complaints, reporting injuries, and
serving as walk-around representatives, the Judge explained:

While the bonus
amounts are not extraordinarily large, the amounts for production crewmembers
are large enough to matter to most miners. The witnesses at the hearing also
emphasized the intensity of the peer pressure fostered by the plans. The bonus
plans make it so that a miner must decide whether it is worth taking money out of
his own pocket and those of his entire section every time he considers
reporting an unsafe condition or an injury. This impact on a miner’s decision
to exercise his rights constitutes a coercive pressure analogous to the
interrogation and harassment discussed by the Commission in Moses and Gray .

38 FMSHRC at 953 (citations omitted).

Ample evidence [21]
supports the Judge’s conclusion regarding the negative impact the plans had on
the miners’ exercise of rights, evidence the operator did not attempt to
counter.

Miner
Timothy McCoy, employed at the Marshall County Mine, testified that miners on
his production crew did not report hazards to MSHA because they did not want to
risk their bonuses. He described an incident in which roof bolts were not
properly spaced over a power center, and being told by a miner that “[i]f I
report this, we are going to have MSHA here tomorrow investigating it and
tomorrow’s bonus was out.” Tr. 141. [22]

Testimony
indicated that internal safety complaints also decreased after the bonus plans
took effect. Ann Martin, the former mine safety committee chairman at the
Harrison County Mine, described how “[d]uring my inspections on the section, I
found it interesting that before the plan was implemented, the guys were just
waiting to talk to you, converse with you, you know, per the plan itself, that
changed because those guys were doing nothing more than setting on their
equipment and mining coal.” Id. at 158.

After
shutting down a section because of ventilation issues, Martin was told by a
miner “you just knocked us out of our Bonus Plan.” Id. at 165. Upon
being asked by another committeeman whether he would prefer to have the money
rather than assure safe mining conditions, the miner’s response was “yes.” Id.
Under the plan, foremen receive double the bonus their crews earn. Id.
at 308. There was testimony that some foremen instructed miners that they
“absolutely cannot shut down the belt.” Id. at 58-60.

Miners
who were injured but not incapacitated were tempted to “rough it out” so as to
not lose the bonus for leaving the mine face. Id. at 54. Levi Allen, who
had served as the local union president at the Marshall County Mine, described
a specific incident in which an employee injured his shoulder while working but
did not report the injury: “His exact words to me was he didn’t want to screw
everybody,” Allen testified. Id. at 226. Allen explained that he rarely
received calls before the plan about miners who left a shift without reporting
an injury, but after the plans went into effect, the frequency of such calls
tripled. Id. at 229.

Under
the plan, bonus amounts were tied to one’s presence on a working section. A
production miner who left the section to accompany a federal inspector earned
10% of the bonus his or her section earned if the section met its production quota.
After the bonus plans were implemented, safety committees had difficulty
identifying miners willing to accompany inspectors. Id. at 47, 72-73,
152, 155, 166. Ann Martin testified: “I approached a young man who normally
would jump at the chance to travel with the inspector and earn that experience,
and his exact words to me were, ‘No, Ann, I don’t want to go today. We are set
up for production bonus, so I want to go to the section.’” Id. at 152. Timothy
McCoy testified that his coworkers on the production crew discouraged him from
serving as a walk-around representative because a less experienced miner would
be sent to replace him, and this would reduce the crew’s ability to achieve a
bonus. Id. at 113-14.

There
was also abundant testimony describing safety issues that were being neglected
while the bonus plans were in effect. Specifically, miners did not adequately
rock dust, id. at 49, 52, 106, 119, 153, 217, failed to properly bolt
the roof, id. at 105-6, 119,153, worked in poorly ventilated and high methane
conditions, id. at 49, 51-2, 106, 108, 118-19, failed to clean up
accumulations, id. at 49, failed to maintain and inspect equipment, id. ,
and failed to change belt rollers, id. at 51.

The Judge found that “the
effect of the bonuses is to create pressure on miners to maximize short-term
production at the expense of safety,” such that “each worker feels pressure to
work as fast as possible so as not to take away from potential bonuses for the
other workers,” because “safety-related tasks take additional time, and miners
are therefore reluctant to do them under the [plan] because they are less
likely to achieve the production goals.” 38 FMSHRC at 950.

We conclude that the Judge’s
finding that the first prong of the Franks test was satisfied is supported
by substantial evidence. We turn now to the operators’ justification of the
plan.

B.      The
Operators’ Justification for the Policy Does Not Outweigh the Resulting
Interference with Miners’ Rights.

Applying the second step of Franks , under which 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,” the Judge identified the Operators’
proffered reason as improving production and safety at its mines. 38 FMSHRC at
954 (quoting Franks , 36 FMSHRC at 2108, 2116).

The opinion of Chairman Jordan and Commissioner Nakamura in Franks
noted that where the employer established a justification under step two, 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
miners. 36 FMSHRC at 2118 n.14 (citing Guardsmark, LLC v. NLRB , 475 F.3d
369, 376-376 (D.C. Cir. 2007)). Even if the operator’s actions are narrowly
tailored, it is still necessary to balance the degree of interference with
protected rights against the importance of the asserted business justification.
Franks , 36 FMSHRC at 2108.

The Operators failed to present any evidence addressing this
step of the Franks test. The Operators asserted that the purpose of the
bonus plans was to enhance both safety and production at the attendant mines. However,
they made no assessments as to the impact of the plans on safety before
implementation, and were unable to discern the impact on either safety or
production after the plans were implemented. [23]
Finding that the Operators had failed to establish a legitimate and substantial
reason for the plans which outweighed the impact on miners’ protected rights,
the Judge cited the same concerns. She concluded that “the harm to miners’
rights is evident,” while the Operators are “unable to show that the [plan has]
actually been effective at improving or maintaining safety” and “unable to establish
that the [plan] actually resulted in increased production.” 38 FMSHRC at 954.

Given the totality of the circumstances, demonstrating the
imbalance between the bonus plans’ unsubstantiated benefits and the clear
evidence of their chilling effect on the exercise of rights, we conclude that
substantial evidence supports the Judge’s conclusion that the Operators’ bonus
plans interfered with miners’ protected rights in violation of section 105(c).

III.             
The Operators’ Objections to the Judge’s Evidentiary Rulings
are not Meritorious

A.     Admission
of Hearsay Testimony

The Operators argue that the Judge erred in admitting and
relying on hearsay testimony of miners’ representatives. Their testimony
described how the bonus plans negatively affected miners’ willingness to
exercise their protected rights (such as the right to report injuries to
management, to report safety hazards to management and MSHA, and to exercise
their walkaround rights).  Our inquiry centers on whether this testimony was
reliable, and whether its admission was unfair to the Operators.

We review the Judge’s ruling under an abuse of discretion
standard. Shamokin Filler Co. Inc. , 34 FMSHRC 1897, 1907 (Aug.
2012),  aff’d, Shamokin Filler Co. Inc. v. FMSHRC , 772 F.3d 330
(3d Cir. 2014),  cert. denied , 135 S. Ct. 1549
(2015) (mem.);  Dynamic Energy, Inc. , 32 FMSHRC 1168, 1174
(Sept. 2010) (holding that a judge’s credibility determinations are reviewed
under an abuse of discretion standard). 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 Mining
Corp. , 22 FMSHRC 1361, 1366 (Dec. 2000).

Commission Rule 63(a) explicitly permits hearsay evidence
“that is not unduly repetitious or cumulative.” Comm’n Proc. Rule 63(a), 29
C.F.R. § 2700.63(a). See also Mid-Continent Res., Inc ., 6 FMSHRC
1132, 1135 (May 1984) (holding that hearsay evidence is admissible so long as
it is material and relevant). In Mid-Continent Resources , the Commission
emphasized that “properly admitted hearsay testimony, and reasonable inferences
drawn from it, may constitute substantial evidence upholding a judge’s decision
if the hearsay testimony is surrounded by adequate indicia of probativeness and
trustworthiness.” Id. at 1135-36. In that case, the Commission rejected
the operator’s argument that the Judge had erred in relying on the testimony of
two MSHA inspectors about what they were told by a foreman.

In Mid-Continent , the Commission set forth a number
of factors used to measure the probative value of hearsay evidence. Applying
the relevant factors to the case at hand, we conclude that the Judge’s finding
of interference clearly rested on reliable evidence.

First, the statements of the miners’ representatives were undisputed.
See Mid-Continent Res. , 6 FMSHRC at 1137. The operators produced no
contradictory evidence, never calling any witnesses who testified that their
protected rights were not impacted by the bonus plan. The fact that the
operators did not refute the evidence in any way significantly weakens their
argument that the evidence was not reliable.

Second, the hearsay testimony was consistent. Id. at
1136-37. All of the miners’ representatives testified about incidents involving
miners who chose to forego protected activity due to the bonus plan. Tr. 47,
54-55, 72, 107-08, 112, 114-15, 141, 152, 155-58, 167, 213, 226-229. See Mid
Continent Res. , 6 FMSHRC at 1136-37 (“If there is more than one reported
[hearsay] statement, we inquire whether the statements are consistent . . . . And
we examine the content of any contradictory or corroboration evidence.”).

As in Mid-Continent , the out-of-court statements in
this matter “rest[ed] on personal knowledge gained from firsthand experience.” Id .
at 1136. The miners’ representatives testified to the thoughts and motivations
of miners reacting to the bonus plan, as it was related to them. Clearly, these
miners had personal knowledge of their own responses to the bonus plan.

A final factor suggested by the Commission in Mid-Continent
is whether the out-of-court declarant had an interest in the outcome of the
case (and thus a reason to lie). Id . at 1136. Here, the record indicates
that the miners felt that they benefited economically from the bonus plan, so
they would have had no motivation to dissemble in order to shore up an
interference claim challenging the plans. [24]

As the above discussion indicates, there is nothing that
tempts us to call into question the reliability of the undisputed testimony
admitted by the Judge. [25]
Moreover, the use of relevant information from the miners’ representatives
permitted the Judge to avoid a hearing that would have otherwise been replete
with repetitious or cumulative testimony. [26]
It was well within her discretion to make this choice.

Furthermore, as the Judge noted, much of the hearsay
testimony to which the operators objected went to the state of mind of the
miners (regarding the effect of the bonus plan). This would be admissible evidence
under Federal Rule of Evidence 803(3), which states that out-of-court
declarations are admissible to demonstrate “the declarant’s then-existing state
of mind (such as motive, intent, or plan).” Thus, for example, testimony by a
safety committeewoman that a miner told her he didn’t want to travel with an
inspector because he wanted to go to the section demonstrates the miner’s state
of mind at the time he spoke. Tr. 152, 155, 167. This would be admissible under
Federal Rule of Evidence 803(3).

Finally, in Knight Hawk Coal, LLC , 38 FMSHRC 2361
(Sept. 2016), the Commission rejected the contention of the operator that the
Judge in that case had improperly relied on vague and speculative hearsay
statements of miners who had been interviewed by MSHA accident investigators. We
noted that the operator did not call the rank-and-file miners interviewed by
MSHA as witnesses at the hearing to rebut MSHA’s assertions. We held that the
Judge did not err in admitting and relying on the testimony of the MSHA
investigator concerning what he was told by the miners during the
investigation, because the statements by the miners were “clearly material and
relevant.” 38 FMSHRC at 2366, n.13. [27]

The decision to admit evidence rests primarily in the
province of the Judge. [28]
Our analysis above confirms that the evidence in question was reliable and
relevant, and that the Judge did not abuse her discretion in admitting it. We
thus decline to take the extraordinary step of overturning the Judge’s
evidentiary ruling.

B.     
Cross-Examination

The Operators contend that the Judge committed procedural
errors in not allowing them to cross-examine the Secretary’s witness on prior
inconsistent statements made in response to discovery requests. This argument
is also without merit. As discussed in further detail below, the Judge imposed
limits on cross-examination only after the Operators had successfully
established potential inconsistencies in testimony and the Judge had taken
notice of them. Tr. 69-72, 91-92, 167-70, 248-49. Since the Operators had
already raised the issue of allegedly inconsistent testimony, any additional
cross-examination would have had limited probative value. See Shamokin
Filler Co. , 772 F.3d at 339 (holding the judge did not err in excluding
evidence of limited probative value when the presentation of that evidence
would unnecessarily delay the hearing). The Judge merely re-directed the
Operators’ counsel to focus his examination substantively, rather than to spend
time proving the inconsistency.

Rule 63(b) requires that a party be permitted “to conduct
such cross-examination as may be required for a full and true
disclosure of the facts.” Comm’n Proc. Rule 63(b), 29 C.F.R.

§ 2700.63(b) (emphasis added). A Judge’s
limitations on cross-examination are reviewed for abuse of discretion. See
Connolly-Pacific Co. , 36 FMSHRC 1549, 1555-56 (June 2014) (holding that the
Judge did not err in enforcing time limits on some cross-examination).

The Operators first argue that the Judge twice limited their
ability to impeach the Secretary’s witnesses with allegedly prior inconsistent
statements from their depositions. Counsel for the Operators attempted to
impeach the witnesses by asking why they had mentioned a certain anecdote at
trial but not in their depositions. [29]

The Operators additionally complain that they were not
permitted to question two of the Secretary’s witnesses about having testified
to anecdotes that were not mentioned in the initial interrogatories exchanged
by the parties during discovery. See R. PDR at 23-25 (citing Tr. 91-92,
248-49). However, the Secretary and the UMWA had objected to the
interrogatories as being overly broad, unduly vague, and burdensome. Hence,
these interrogatory responses were not inconsistent with the subsequent
testimony. Moreover, at the hearing, the Judge appears to have been willing to
assume that the anecdotes in question were not mentioned in the
interrogatories, but the Judge found that this did not undermine the witnesses’
credibility because they testified to the anecdotes at their depositions. See
Tr. 91-92, 248-49.

In short, we reject these baseless objections by the
Operators, and conclude that the Judge did not abuse her discretion. [30]

IV.             
Conclusion

For the foregoing reasons, we would affirm the Judge’s
decision.

/s/
Mary Lu Jordan

Mary
Lu Jordan, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

Acting Chairman Althen and
Commissioner Young, in favor of reversing:

In 2011, the D.C.
Circuit Court of Appeals, quoting liberally from a Commission dissent, noted
that the plain language in section 105 was “a marvel of Congressional clarity”
and “struggle[d] to see how Congress could have intended any other reading of
the phrase” at issue in another provision of section 105. Performance Coal
Co. v. FMSHRC , 642 F.3d 234, 238-39 (D.C. Cir. 2011). “Indeed, it is
hard to imagine a clearer expression of congressional language.” Id. at
239.

Indeed. Once again, it
is hard to imagine how Congress could have more clearly required the prohibited
actions in section 105(c) be improperly motivated in order to be actionable,
than by pointedly including “because” or “because of” four times as a
threshold requirement for a violation. As explained below, we would apply the
plain language of the Mine Act’s anti-interference provision and vacate the
decision below. 1

DISCUSSION

I.                   
Plain Statutory Language, Reinforced by Legislative History,
Clearly Requires that Interference be Motivated in Some Way by Rights Protected
Under the Act

A.        The
Plain Language of Section 105(c)(1) Requires Proof that Protected Activity
Motivated the Operators’ Action.

The fundamental problem with the Secretary’s
argument is that he is not interpreting statutory language at all. He is
impermissibly attempting to revise the statute by excising “because” from the
text for interference claims alone.

The Secretary’s effort “runs afoul of the
‘cardinal principle’ of interpretation that  courts  ‘ must   give   effect , if possible, to every clause and  word  of a  statute .’”
Loughrin v. United States , 134 S. Ct. 2384, 2389 (2014) (quoting Williams
v. Taylor , 529 U.S. 362, 404 (2000) (citation omitted). Section 105(c)
identifies five actions – among them, interference – that may not be taken “ because ”
of one or more of four specifically identified reasons. As relevant, section
105(c)(1) provides:

No person shall
discharge or in any manner discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere with the exercise of the
statutory rights of any miner . . . [1] because such miner
. . . has filed or made a complaint under or related to this chapter, . . . or
[2] because such miner . . . is the subject of medical
evaluations and potential transfer under a standard published pursuant
to section 811 of this title or [3] because such miner
. . . has instituted or caused to be instituted any proceeding under or related
to this chapter or has testified or is about to testify in any such proceeding,
or [4] because of the exercise by such miner . . . on
behalf of himself or others of any statutory right afforded by this chapter.

30 U.S.C. § 815(c)(1) (emphasis
added). In the present action, despite not presenting any evidence of the
motivation for the bonus plans, the Secretary alleges that the Operators “interfere[d]
with the exercise of the statutory rights of any miner . . . because of the
exercise by such miner . . . of any statutory rights afforded by this chapter.”

Where the meaning of a statute is plain, we must apply the
statute as written, looking first to the ordinary meaning of the words. Schindler
Elevator Corp. v. United States ex rel. Kirk , 563 U.S. 401, 407 (2011); see
also Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist. , 541
U.S. 246, 253 (2004) (“Statutory construction must begin with the language
employed by Congress and the assumption that the ordinary meaning of that
language accurately expresses the legislative purpose.” (quoting Park ’N
Fly, Inc. v. Dollar Park and Fly, Inc. , 469 U.S. 189, 194 (1985))); Asgrow
Seed Co. v. Winterboer , 513 U.S. 179, 187 (1995) (“When terms used in a
statute are undefined, we give them their ordinary meaning.” (citing FDIC v.
Meyer , 510 U.S. 471, 476 (1994))). If the words are clear, we may not make
any further inquiry. Schindler Elevator Corp. , 563 U.S. at 412
(quoting  Robinson v. Shell Oil Co. , 519 U.S. 337, 340 (1997)).
Here, Congress repeatedly used the same term throughout section 105(c)(1) as a
prerequisite for connecting a prohibited action to a miner’s protected
activity. That term is “because.”

The motivation
requirement of “because” is repeated four times – once for each class of
protected conduct – in Section 105(c)(1), which is a single sentence. The
Supreme Court has recently, and unanimously, instructed that the “presumption
that a given term is used to mean the same thing throughout a statute” is “at
its most vigorous when a term is repeated within a given sentence.” Mississippi
ex rel Hood v AU Optronics Corp , 571 U.S. 161, 134 S. Ct. 736, 743
(2014), citing Brown v. Gardner ,  513
U.S. 115, 118 (1994). Therefore, “because” – repeated four times in the single
sentence that comprises the entirety of Section 105(c)(1) – has one meaning,
and that meaning clearly relates squarely to motivation. 2

Absent a statutory definition, the ordinary meaning of a
term, as provided in dictionaries, determines the plain meaning to the statute.
See Sebelius v. Cloer , 569 U.S. 369, 376 (2013)( “ [u]nless otherwise
defined, statutory terms are generally interpreted in accordance with their
ordinary meaning.”); Martin County Coal Corp. , 28 FMSHRC 2487,
267 (May 2006). Here, there is no doubt concerning the ordinary meaning. Dictionaries
uniformly define “because” as “for the reason that.” See Webster’s Third
New International Dictionary 194 (1993) (“for the reason that: on account of
the cause that”); American Heritage Dictionary of the English Language 159
(2009) (“for the reason that; since”); Random House Dictionary of the English
Language 184 (1987) (“for the reason that; due to the fact that”).

Interpreting “because” as meaning “for the reason that” is
particularly appropriate with respect to an anti-discrimination provision like
section 105(c). The Supreme Court has repeatedly adopted such a definition of
the term when asked to interpret federal anti-discrimination statutes. In Gross
v. FBL Financial Services, Inc. , 557 U.S. 167 (2009), the Court construed
the term “because of” in the following provision: “[i]t shall be unlawful for
an employer . . . to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s
age.” Id. at 176 (alteration in original) (quoting 29 U.S.C. § 623(a)(1)
(Age Discrimination in Employment Act (ADEA)). In rejecting the idea that the
ADEA authorizes a mixed-motive age-discrimination claim and holding that the
term “because of” means that age must have been the “but-for” cause of the
employer’s action, the Court explained:

The words “because of” mean “by reason of: on account of.”

1 Webster’s Third New International Dictionary 194 (1966); see
also 1 Oxford English Dictionary 746 (1933) (defining “because of” to mean
“By reason of, on account of ” (italics in original)); The Random House
Dictionary of the English Language 132 (1966) (defining “because” to mean “by
reason; on account”). Thus, the ordinary meaning of the ADEA’s requirement that
an employer took adverse action “because of” age is that age was the “reason”
that the employer decided to act. See Hazen Paper Co. v. Biggins ,
507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (explaining that the
claim “cannot succeed unless the employee’s protected trait actually played a
role in [the employer’s decisionmaking) process and had a determinative
influence on the outcome . . . .”

557 U.S. at 176-77 (emphasis added).

The Supreme Court reaffirmed the Gross definition of
“because” in University of Texas Southwestern Medical Center v. Nassar ,
133 S. Ct. 2517 (2013):

Concentrating first and foremost on the meaning of the phrase “‘ because
of . . . age,’” the Court in  Gross  explained that the ordinary
meaning of “‘because of’” is “‘by reason of’” or “‘on account of.’” Id.,  at 176, 129 S.Ct. 2343  (citing
1 Webster’s Third New International Dictionary 194 (1966); 1 Oxford English
Dictionary 746 (1933); The Random House Dictionary of the English Language 132
(1966); emphasis in original). Thus, the “requirement that an employer took
adverse action ‘because of’ age [meant] that age was the ‘reason’ that the
employer decided to act,” or, in other words, that “age was the ‘but-for’ cause
of the employer’s adverse decision.” 557 U.S., at 176, 129 S.Ct. 2343. See
also Safeco Ins. Co. of America v. Burr , 551 U.S. 47, 63–64, and
n.14, 127 S. Ct. 2201, 167 L. Ed. 2d 1045 (2007) (noting that “because of”
means “based on” and that “‘based on’ indicates a but-for causal
relationship”); Holmes v. Securities Investor Protection Corporation ,
503 U.S. 258, 265-266, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) (equating “by
reason of” with “‘but for’ cause”).

133 S. Ct. at 2527 (emphasis and
alteration in original). 3

Thus, “because of” is the same as “by reason of” or “on
account of.” Congress’ repeated use of that term in section 105(c)(1)
demonstrates an intention to prohibit interfering actions when taken “by reason
of” or “on account of” the specifically-identified types of protected activity. 4
Substituting the definition for the word “because” makes this inescapably
clear: “No person shall . . . interfere with the exercise of the statutory
rights of any miner . . . [by reason of or on account of] . . . the
exercise by such miner . . . on behalf of himself or others of any
statutory right afforded by this chapter.”

Indeed, from its very outset, the Commission recognized
the meaning of “because” and required a motivational nexus between protected
activity and violations of section 105(c). In Secretary of Labor on behalf
of Pasula v. Consolidation Coal Co. , 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d
on other grounds , 663 F.2d 1211 (3d Cir. 1981), the Commission held that “the
complainant has established a prima facie case of a violation of section
105(c)(1) if a preponderance of the evidence proves (1) that he engaged in a
protected activity, and (2) that the adverse action was motivated in any part
by the protected activity.”

Pasula and its progeny are not limited to
any one of the four subgroups of unlawful conduct under section 105(c), but
apply, broadly, to any “violation of section 105(c)(1).” Id. For all
violations of section 105(c), protected activity must motivate at least in part
the adverse action. The Commission has repeatedly affirmed the Pasula test
identifying indicia necessary to “establish a nexus between the protected
activity and the alleged discrimination” – most recently in the case of Sec’y
of Labor on behalf of Kevin Shafer , 40 FMSHRC 39 (Feb. 2018).

Essentially, the Secretary argues that the same word – “because”
– has different meanings in the very same instance of its use depending on
which type of case he has decided to bring. 5 The
Secretary’s repeated attempts to rewrite unambiguous legislative terms must try the patience of the circuit courts that have
reminded the Commission and the Secretary again and again that they may not
exalt their policy desires over the words of Congress. CalPortland
Co. v. FMSHRC , 839 F.3d 1153, 1161 (D.C. Cir. 2016) (rejecting Secretary’s
attempt to interpret section 105(c) to extend its reach as contrary to plain
meaning of provision); Performance Coal Co. , 642 F.3d at 239
(“[T]he language Congress selected [is] plain, clear, and simple and we refuse
to muddy it by finding ambiguity where none exists.”); Vulcan Constr.
Materials, L.P. v. FMSHRC , 700 F.3d at 309 (section 105(c) case); see
also N. Fork Coal Corp. v. FMSHRC , 691 F.3d 735, 743-44 (6th Cir. 2012)
(rejecting Secretarial attempt to extend reach of section 105(c) as entirely
unpersuasive). 6

Our colleagues’ failure even to attempt to reconcile the
plain language of the statute, by citing the straw man of the Operators’
hyper-literal argument, has been held to be improper upon judicial review. We
agree that the Operators’ “literal” interpretation is incorrect. 7
But, as instructed by the D.C. Circuit, in a case interpreting the very same
provision , “plain meaning and literal meaning are not equivalents.” Meredith
v. FMSHRC , 177 F.3d 1042, 1054 (D.C. Cir. 1999) (citing Bell Atlantic
Tel. Cos. v. FCC , 131 F.3d 1044, 1045 (D.C. Cir. 1997)). In that case, the
UMWA argued that, by its literal language, the term “person” included MSHA
officials, thus allowing suits against MSHA officials for discrimination under
section 105(c)(1) of the Act. Id. at 1052. The D.C. Circuit disagreed with
that literal interpretation and found that “the text and structure of the Mine
Act, as well as the legislative history, inexorably lead to a single
conclusion. The Mine Act’s anti-discrimination provision does not apply to MSHA
employees for actions taken under color of their authority.” Id. at
1053. Notably, although the court found that the literal reading of the statute
was incorrect, the court did not then consider the statute to be ambiguous. The
court considered Congress’s intent to be clear and resolved the issue under the
first prong of Chevron . Id. at 1053 n.9. Accordingly, the court
vacated the Commission’s decision, which had incorrectly defined “persons.” Id.
at 1044.

Similarly, in Nally & Hamilton Enterprises, Inc. ,
33 FMSHRC 1759 (Aug. 2011), the Commission rejected an operator’s literal
reading of a standard to apply the standard’s ordinary meaning. The operator
argued that “maintain,” as a verb, required a willful failure to act in order
to be held liable for a violation. The Commission found that “its literal
meaning is less complicated than what is suggested by the operator.” Id.
at 1763. Instead, the Commission applied “the ordinary meaning of ‘maintain’
and conclude[d] that the term is not ambiguous.” Id. Even though the
Commission reversed the judge’s determination that there was no violation and
rejected the operator’s literal interpretation, the Commission nevertheless
found “the standard’s language plain and unambiguous,” and “[did] not reach the
Secretary’s deference argument.” Id. at 1764. Contrary to our
colleagues’ argument, rejecting a “literal” interpretation is not some sort of deus
ex machina they can call upon to find ambiguity where there is none.

Finally, in addition to the commanding
bulwark of cases we have cited to show the resolute refusal of appellate courts
to exceed the limits of judicial authority to interpret statutes, we note the
Supreme Court has recently provided an emphatic admonishment of a failure to do
so. In Digital Realty Trust, Inc. v. Somers , 138 S. Ct. 767 (2018), the
Court reversed – unanimously – a Ninth Circuit holding that application of
statutory language as written could not have been what Congress intended. 8

Somers , like the case at
bar, construed statutory language designed to protect those who exercise
protected rights, especially including the right to bring private wrongs to the
attention of supervisors or authorities. 9 In a decision
by Justice Ginsburg, the Court unanimously reversed the Circuit Court, finding,
“[c]ourts are not at liberty to dispense with the condition – tell the SEC – Congress
imposed.” Id. at 777.

In the present case, the
Secretary has not presented any evidence of any motivation to interfere with
protected rights. Indeed, the Secretary has not even presented evidence that
the miners in this case would suffer any harm from the application of
the plain language requiring proof of a nexus between the Operators’ conduct
and rights protected under the Act. It would be astonishing for a court to
endorse such a misreading of the plain words of the statute in this context,
where there has been no attempt to show that construing the statute as written
would be contrary to the purposes of the Act.

In attempting to overcome the exquisite clarity of section
105(c) our colleagues gamely assert that the plain language of section 105(c)
leads to absurd results and/or is ambiguous. Slip op. at 10-11. These arguments
only emphasize the weakness of their position. With respect to their absurdity
argument, it is difficult to conceive of a more absurd result than construing
section 105(c) – which four times expressly requires a motivational component
for a violation – nonetheless not to require motivation and to permit
imposition of monetary penalties upon operators for actions not motivated in
any way by protected activities. In turn, there is nothing ambiguous about the
word “because” or about the requirement that the interference occur “because”
of protected activity.

As read by our colleagues,
section 105(c) as a practical matter could prohibit virtually any form of
incentive plan for miners. Congress certainly did not intend to abolish for the
coal industry incentive programs used throughout American businesses without
any recognition of that effect. In a given case, indeed even in this case, the
Secretary might well be able to present evidence that the current or future exercise
of protected activities motivated, at least in part, the introduction of an
incentive program. In such case, the program would be unlawful. However,
without any such evidence there is no basis to find the Operators introduced
the plan “because” of protected activity. The Secretary made no effort to
introduce such evidence in this case.

B.        The
Legislative History of Section 105(c)(1) Supports the Plain Language’s
Imperative for a Motivational Nexus.

Because the language of the law plainly excludes
the Secretary’s distortion, it is unnecessary to resort to legislative history.
However, for purposes of a complete analysis, we note that the revisions made
to section 105(c) of the Mine Act from its antecedent strengthened the
requirement that actionable misconduct must be motivated by protected activity,
and that the history shows that Congress clearly intended that improper actions
be proscribed because of their relationship to protected activity.

Section 105(c)(1) is similar in purpose to its
predecessor, section 110(b)(1) of the Coal Act, which used terms synonymous
with those employed in the Mine Act. The earlier provision stated:

No person shall
discharge or in any other way discriminate against or cause to be discharged or
discriminated against any miner or any authorized representative of miners by
reason of the fact that such miner or representative (A) has notified the
Secretary or his authorized representative of any alleged violation or danger,
(B) has filed, instituted, or caused to be filed or instituted any proceeding
under this Act, or (C) has testified or is about to testify in any proceeding
resulting from the administration or enforcement of the provisions of this Act.

83 Stat. 758-59. The
changes made to the Coal Act’s protections in Section 110(b) in drafting
Section 110(c) of the Mine Act reinforced the requirement for motivation –
literally. The Act’s structure was changed to ensure “because” or “because of”
was appended to each class of protected activity, making clear that improper
motivation is essential to a finding of violation.

This change to emphasize by repetition the integral
nature of the motivational requirement forecloses any misreading here. In
essence, in the Mine Act, Congress repeated and amplified the requirement that the
Secretary prove that an operator acted “because of” some prohibited reason. The
motivational nexus set forth in the Mine Act flows logically from the
antecedent Coal Act.

The Secretary intones the intents and purposes of the Mine
Act, but its legislative history contains not a shred of authority for applying
any type of disparate-impact analysis, or for discarding Congress’ plain and
direct articulation of violative interference. Indeed, the legislative history
demonstrates the overarching relevance of the exercise of miners’ rights under
the Act, stating as a goal the protection of miners against forms of
interference with those rights, such as “threats of reprisal.” S. Rep. No.
95-181, at 36, reprinted in Legis. Hist. at 624. For there to be a threat
of reprisal there must be an action that triggers the threat – that is, there
must be a cause for the reprisal.

In fact, the legislative history of the Mine Act – with its
references to threats as illustrative of “interference” – establishes that disparate-impact
liability has no place in interpreting the interference clause of section
105(c)(1). The addition of the phrase “or otherwise interfere” simply
recognizes that other forms of employer retaliation, such as threats, may also
– or “otherwise” – constitute wrongful action when motivated by protected
activity. 10

The legislative history of the two statutes confirms this
congressional intent. In proposing an amendment to the Coal Act that became section
110(b)(1) – the precursor to section 110(c) – Senator Edward Kennedy explained
that it “would make it unlawful for any person to discharge or otherwise
discriminate against a miner for bringing suspected violations of this act
to the attention of the authorities .” 115 Cong. Rec. 27948 (Oct. 1, 1969), reprinted
in S. Subcomm. on Labor, S. Comm. on Labor and Pub. Welfare, 94th Cong.,
1st Sess., Legislative History of the Federal Coal Mine Health and Safety
Act of 1969 Part I , at 666 (1975) (emphasis added). He further explained
that his amendment gave miners “the same safeguards that we give to other
employees who raise possible violations of the law .” Id. at
667-68 (emphasis added).

The available history of section 110(b)(1) of the Coal Act clearly
supports the plain language’s protection against operator conduct motivated by
a desire to retaliate for a miner’s assertion of his/her safety rights. Thus, a
motivational nexus was the required for a successful claim under section
110(b)(1).

Regarding interference with protected rights under the Mine
Act, at no point did Congress even hint at an intention to eliminate or qualify
the motivation required by the Coal Act. On the contrary, the Committee on
Human Resources explained, “if miners are to be encouraged to be active in
matters of safety and health, they must be protected against any possible
discrimination which they might suffer as a result of their
participation.” It further stated that “[w]henever protected activity is in any
manner a contributing factor to the retaliatory conduct, a finding of discrimination
should be made.” S. Rep. No. 95-181, at 35, 36, reprinted in Legis. Hist.
at 623, 624 (emphases added).

Section 105(c)(1) provides protection against
discrimination, discharge, and interference because of protected activity. It
achieves those protections through direct and/or circumstantial evidence
permitting reasonable inferences drawn from all the evidence presented in a
case. To erase “because,” and thus the necessary motivational nexus, from
section 105(c)(1) is entirely contrary to the language and legislative history
of the Mine Act and the Coal Act.

II.       There’s
No Evidence or Rational Analysis to Support the Secretary’s Application of
Incongruous Legal Doctrine and Statutes Not Germane Here.  

Unable to argue persuasively the definition of “because” in
the context of the wording of the Mine Act or in an analysis of legislative
history, the Secretary turns to a wholly different and completely irrelevant
category of cases in an effort to obscure the clear wording of the Mine Act. The
Secretary relies on Texas Department of Housing Community Affairs v.
Inclusive Communities Project, Inc. , 135 S. Ct. 2507 (2015), to support an
argument that section 105(c)(1) should be read to embrace a “disparate impact”
analysis. There is no foundation anywhere in the law for this discordant
cherry-picking of out-of-context language from an exotic, context-sensitive
legal doctrine.

A.        Disparate-Impact
Case Law is Not Applicable in This Case.

Disparate-impact cases use statistical evidence to show that
members of a protected class defined by identifiable and usually immutable
characteristics, have been disproportionately disadvantaged compared to members
outside the class by policies that are facially-neutral. “[C]laims that stress
‘ disparate impact ’ [by contrast] involve
employment practices that are facially neutral in their treatment of different
groups but that in fact fall more harshly on one group than another . . . .” Smith
v. City of Jackson , 544 U.S. 228, 239 (2005) (quoting  Teamsters
v. U.S. ,  431 U.S.
324, 335-336 n.15 (1977)). 11

There is a total absence of any of these facts in the
record of this case:

·         
There is no group of persons that Congress has chosen to protect
on the basis that the group is subject to prejudice or discrimination based on
characteristics.

·         
There are no distinguishing personal characteristics one might
use to establish a disparity based on protected-group membership.

·         
There is no comparator class of persons against whom a disparate
impact theory may be evaluated, and thus no showing that consequences of an
action fall more harshly on one group than another.

·         
There are no statistics – indeed, no objective evidence of any
sort – showing a disparity.

Because none of the predicate facts exist in this case,
there is, of course, no showing of a disparate impact – which is an
irresolvable problem for a disparate-impact case. In fact, there is not even
really a theory here: just a slogan or a catchphrase. It matters not at all to
our colleagues, who unquestioningly accept the Secretary’s radical reliance on
an extraordinary legal remedy, despite a total absence of the evidence used to
prove that theory in its proper context.

Even properly-applied disparate-impact cases are rare. While
the Secretary states – incorrectly – that Inclusive Communities “says
nothing about applying only in exceptional circumstances,” S. Resp. Br. at 25, the
Supreme Court majority not only specifically acknowledged that “the underlying
dispute in this case involves a novel theory of liability,” but cited a
historical review showing that such cases do, in fact, appear to be
“exceptional.” Inclusive Communities , 135 S. Ct. at 2522 (citing Seicshnaydre,
Is Disparate Impact Having Any Impact? An Appellate Analysis of Forty Years of
Disparate Impact Claims Under the Fair Housing Act, 63 Am. U. L. Rev. 357,
360-63 (2013)) (“noting the rarity of this type of claim ” (emphasis
added)). The Secretary is thus either unaware of the exotic foundation of his
own theory, or he has chosen to ignore what the Court said about it in Inclusive
Communities .  

The foregoing caveat would apply even to a true
disparate-impact case, reflecting a justified caution in the Court’s
consideration of the scope of disparate-impact doctrine, even in a case with
the requisite evidentiary support and a common foundation in civil rights law. Here,
though, the Secretary produced none of the evidence required to support the
theory he himself has chosen to argue before us , and which is spelled
out as a prerequisite for the type of theory he espouses in the very
authority he has chosen to cite . Simultaneously, he disclaims that
authority’s own acknowledgment that the approach it endorsed is highly unusual.
The Secretary does all this in order to favor his policy preferences over the
clear words of Congress.

B.        Inclusive
Communities Cannot Serve as a Template for Interpretation of Section
105(c).

Inclusive Communities is predicated entirely on the
principle that cases of racial discrimination in housing may be based on the
disparate impact that facially-neutral policies may have on racial or ethnic
minorities. 12 The Secretary did not cite
to Inclusive Communities before the Judge below, nor did the Secretary
introduce any evidence pertaining to, or make any argument concerning the
applicability of, disparate-impact analysis to the facts in this case. Thus,
there are no distinct classes against whom any statistical or other objective
analysis may be applied in order to infer an improper basis for the
circumstances in which the law has found them.

As Inclusive Communities and other disparate-impact
cases have made clear, a showing of discriminatory effect requires a
sophisticated and thorough exposition grounded on record evidence. “A plaintiff
who fails to allege facts at the pleading stage or produce statistical evidence
demonstrating a causal connection cannot make out a prima facie case of
disparate impact.” Inclusive Communities , 135 S. Ct. at 2523. None was
provided below. Thus, the Secretary seeks to introduce before the Commission an
entirely new argument upon which the Judge below was not given an opportunity
to pass, and for which there is no substantial evidentiary support. This is
impermissible as a matter of law. 30 U.S.C. §§ 823(d)(2)(A)(iii), (d)(2)(B). 13

There also are critical distinctions between Inclusive
Communities , decided by a majority of the Supreme Court, and Smith
v. City of Jackson (an earlier disparate-impact case), which was a
plurality decision. The Court found in Inclusive Communities that
Congress had effectively ratified the application of disparate-impact analysis
to the FHA by amending the FHA’s anti-discrimination provisions in 1988 without
addressing the “unanimous” body of circuit court opinion holding that its
application was appropriate. Inclusive Communities , 135 S.Ct. at
2519-22. “Indeed, the inference of disparate-impact liability is even stronger
here than it was in Smith . As originally enacted, the ADEA included the
RFOA provision, see § 4(f)(1), 81 Stat. 603, whereas here Congress added
the relevant exemptions in the 1988 amendments against the backdrop of the
uniform view of the Courts of Appeals that the FHA imposed disparate-impact
liability.” Id. at 2521.

The Mine Act, of course, reveals no such historical context,
no unanimous body of circuit court opinions, and no statutory revisions that
are relevant to the consideration here. Further, Justice Kennedy, who authored
the majority opinion in Inclusive Communities , was not part of
the plurality that extended Griggs ’ disparate-impact holding
beyond race discrimination cases in Smith .

In addition to noting the “significant differences between
the ADEA and Title VII of the Civil Rights Act of 1964 [that] counsel[ed]
against transposing to the former our construction of the latter” in Griggs , 14
Justices O’Connor, Kennedy, and Thomas expressly disclaimed in Smith the
linguistic contortion the Secretary has thrust before us.        Smith ,
544 U.S. at 2118. Criticizing the plurality’s parsing of the language of the
ADEA, such that in successive paragraphs, the term “because of” would have
different meanings, Justice O’Connor noted that the language at issue in
Section 4(a)(1) of the ADEA was clear:

That provision requires discriminatory intent, for to take an
action against an individual “ because of such individual’s age” is to do
so “by reason of” or “on account of” her age. See Webster’s Third New
International Dictionary 194 (1961); see also Teamsters v. United States ,
431 U.S. 324, 335-336, n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (“‘Disparate
treatment’ . . . is the most easily understood type of discrimination. The
employer simply treats some people less favorably than others because of their
[protected characteristic]. Proof of discriminatory motive is critical”
(emphasis added)).

Smith ,
544 U.S. at 249 (emphasis in original). Thus, the author of Inclusive
Communities read “because of” precisely as we do, and even if there were
any plausible basis for applying disparate-impact analysis to interference
cases as a threshold matter (there is not), employing the doctrine here would
require a radical leap over a fortified barricade of legal authority and
practical and evidentiary barriers. If the Court was hesitant to expand the
scope of disparate-impact liability to analogous anti-discrimination statutes,
it surely would never approve of its application to a case with no elements in
common and no evidence of any disparity.

A more thoughtful review in place of the Secretary’s specious
analysis of Supreme Court precedent makes abundantly clear that Inclusive
Communities is wholly irrelevant to the case before us. 15
Section 105(c)(1) is different in kind from Title VII and the Fair Housing Act.
The Mine Act’s prohibition against interference is not aimed at
facially-neutral employer policies affecting miners because of their membership
in a protected group. In characterizing Section 105(c) as an
“anti-discrimination law,” somehow similar to Title VII, the FHA or the ADEA,
the Secretary disregards the fact that he suggests an interpretation that he
would apply only to interference claims, and not to discrimination
claims – for which he acknowledges motivation is required. 16
Cf. S. Resp. Br. at 18.

Finally, the Secretary argues that the use of the word
“otherwise” in section 105(c)(1) indicates an intent to apply a disparate-impact
analysis, as in Inclusive Communities . That argument makes no sense,
linguistically, logically, or legally. All of the actions prohibited by section
105(c) (discrimination, discharge, etc.) are forms of “interference” with
protected rights. Use of the term “otherwise” simply extends the Act’s
prohibitions to include employer conduct, such as threats of reprisals, that
does not rise to the level of a direct and adverse employment action, and
represent nothing more than Congressional recognition that interference may be
found – and proved – in operator actions beyond those expressly enumerated, when
those actions are taken “because of” the exercise of protected rights .

The Secretary’s argument disregards the fact that Inclusive
Communities itself, like the disparate-impact cases upon which it relies,
continues to require that plaintiffs prove causation, i.e., that the harm they
have suffered is “as a result of” or “because of” their race. His citation to a
single word yanked out of context cannot serve to erase statutory language –
especially where the Secretary acknowledges that his position would require
“because” to be interpreted differently in successive clauses of the same
sentence. While we feel duty-bound to respond to all of the Secretary’s
arguments, in fact the question is settled at the initial consideration of the
statute’s plain meaning. The Court’s “inquiry ceases
[in a statutory construction case] ‘if the statutory language is unambiguous and the statutory scheme is coherent and consistent.’”
Barnhart v. Sigmon Coal Co. , 534 U.S. 438, 450 (2002) . The Secretary’s argument would reduce Section 105(c)(1) to
incoherence and inconsistency – the exact opposite of the clear command of the
law.

Disparate-impact liability has been relied upon in rare
circumstances, e.g., when it has been “necessary to achieve Title VII’s
ostensible goal of eliminating the cumulative effects of historical racial
discrimination.” Smith , 544 U.S. at 262 (O’Connor, J., joined by Kennedy
and Thomas, JJ., concurring in the judgment). Finding no such necessity,
the O’Connor opinion Justices declined to extend Griggs beyond the
remediation of “historical racial discrimination” – the same evil targeted by
the Fair Housing Act and addressed in Inclusive Communities .

The Secretary has not made a showing that the expansion of a
doctrine from cases of racial discrimination is not merely permissible and
convenient but necessary to achieve the purposes of the Act. 17
There was no evidence adduced in this case showing that any miner would be
prejudiced unfairly or the Act’s protections neutered by a requirement to show
that the Operators’ actions were motivated by protected activity. In sum, there
is no authority for applying Inclusive Communities even if there were evidence
showing how miners interfered with might theoretically have been disparately
impacted by the Operators’ bonus plan, and there is no evidence showing that it
would be necessary – or even proper – to apply a disparate-impact analysis in
contravention of the statute’s plain language.

III.       The
Secretary has Misstated Section 8(a)(1) of the National Labor Relations Act,
Which is Materially Dissimilar to Section 105(c) and Must Be Read As Adverse to
the Secretary’s Position

The Secretary urges that Commission precedent compels us to
rely on the National Labor Relations Act (“NLRA”) as persuasive authority. The
Commission does use NLRA case law to assist its interpretations. See Gray ,
27 FMSHRC at 9-10. We are not compelled to follow NLRA case law. More
importantly, here, an honest reading of the relevant provision of the NLRA
torpedoes the Secretary’s argument amidships.

Section 8(a)(1) of the NLRA provides: “It shall be an unfair
labor practice for an employer to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in section 157 of this title.” 29
U.S.C. § 158(a)(1).

Unlike section 105(c)(1), section 8(a)(1) does not include
any motivational requirement – that is, there is no “because” in it. Actions
that “interfere” or rise to the level of “coercion” are likely to be similar in
both contexts, but the Mine Act contains the explicit requirement that
interference must be occur “because of” protected activity – section 8(a)(1) of
the NLRA contains no such requirement.

Thus, the NLRA case law is irrelevant due to the omission of
“because” from section 8(a)(1), which is material and presumptively
intentional. The Court has stated that it has “often noted that when ‘Congress
includes particular language in one section of a statute but omits it in
another’ – let alone in the very next provision – this Court ‘presume [s]’ that
Congress intended a difference in meaning.” Loughrin , 134 S. Ct. at 2390
(quoting Russello v. United States , 464 U.S. 16, 23 (1983)). 18

The Secretary further failed to note that, in 8(a), Congress
did require motivation, but only in subsection (a)(4), which makes it an unfair
labor practice “to discharge or otherwise discriminate against an employee because
he has filed charges or given testimony under this subchapter.” 29 U.S.C. §
158(a)(4) (emphasis added).  

Of course, the NLRA is an entirely separate statute. There
is no congruence between the respective provisions of the Mine Act and the NLRA
because the latter does not include “because” – a crucial term with fatal
significance here. The Secretary’s misstatement of the law is thus readily
exposed, and the NLRA’s interference provision has no relevance here.   

IV.       There
Is No Basis for Our Colleagues’ Reliance Upon an “Absurd Results” Theory and No
Grounds for Re-Writing The Statute to Avoid Them.

The real danger represented by the misreading of the Mine
Act is demonstrated by the fact that it is unnecessary to any purpose save
bureaucratic expedience. A decade after Griggs – and 35 years before we
heard this case — the Commission addressed, and resolved, the same concerns our
colleagues and the Secretary have raised. See Pasula , 2 FMSHRC at
2795-2801; Robinette v. United Castle Coal Co. , 3 FMSHRC 803, 817-18
(Apr. 1981). Our colleagues’ claim that absurd results will necessarily flow
from a consistent, harmonious reading of the provisions of section 105(c)(1). Their
claim is demonstrably false.

The historical record, in fact, suggests that the contrary
is true. The Commission as a whole has never varied from the need to show
motivation in the more than 30 years since adopting the Pasula-Robinette framework.
Here, our colleagues pursue the abstraction the Secretary has thrown them to
suggest easing his duty under the law: The obligation to prove violations by
substantial evidence, including all of the elements Congress has
provided. 19  

Pasula-Robinette has long provided a framework
and clear authority for deriving improper motivation from circumstantial
evidence. Without doubt, evidence of motivation may be drawn from
circumstantial evidence. Rather than attempting to demonstrate an improper
motive, the Secretary seeks to avoid the necessity for proof by eliminating an
element of the violation. 20

We do not accept the Operators’ argument, relied upon by the
majority for its assertion of absurdity, that a specific occurrence of
protected activity necessarily must precede an operator action motivated by a
desire to thwart or prevent protected activity. See supra slip op. at 34
n.6. Commission case law related to operator efforts to deter protected
activity remains fully applicable.  

Following Pasula and Robinette , Moses v.
Whitley Development Corp. , 4 FMSHRC 1475 (Aug. 1982), raised the issue of
whether a miner was discharged because the operator suspected he had engaged in
protected activity. The Commission highlighted the motivation requirement:
“Section 105(c) prohibits discharge, discrimination, or interference ‘because’
of ‘a miner’s exercise of any statutory right afforded by [the] Act.’” Id.
at 1480. The Commission then found that, if a suspicion of protected activity
motivated the discharge, such discharge would violate section 105(c) even if
the suspicion turned out to be incorrect . Thus, the Commission’s reading of
the law is both protective of miners’ rights and faithful to its intent.

In Gray v. North Star Mining , 27 FMSHRC 1 (Jan.
2005), we similarly found interference, overturning a Judge’s conclusion that a
threat he found not to have been sincere did not constitute interference. We held
that, in determining whether an actor’s statements are coercive under the Mine
Act, Judges must consider the totality of the circumstances. Id. at 10.

The Secretary argues that Gray ’s holding is
substantially broader and that “[t]he only reasonable way to read Gray
is as adopting the NLRA interference test and rejecting the notion that the
interferer’s intent matters.” S. Resp. Br. 19. The Secretary misreads the Gray
decision by ignoring the case’s factual context, where the motivation was
apparent. 21 The Commission in Gray
did not confront the issue in the present case — whether an employer’s
allegedly interfering actions must be motivated by protected activity in order
to constitute a violation of section 105(c)(1). Rather, Gray was
concerned with policing the line between allowable comments and questions about
protected activity and impermissible coercive interrogations and harassment
about protected activity.

In Gray , a co-worker asked Gray about whether he had
testified against him before a grand jury in a case related to unsafe mining
activities. 27 FMSHRC at 3. Such testimony is protected activity under the Mine
Act. 30 U.S.C. § 815(c)(1). The miner said that there would not be any hard
feelings “unless you put the screw to me, then I’ll kill you.” 27 FMSHRC at 3. Later,
the same miner asked Gray about another miner’s testimony, stating that “if
anyone had laid the screws to him that he would whip their ass.” Id. The
Judge found that such comments did not constitute threats because the co-worker
did not actually intend to kill or hurt Gray or the other miner. Sec’y of
Labor on behalf of Gray v. N. Star Mining, Inc. , 25 FMSHRC 198, 215-16
(Apr. 2003) (ALJ).

In that case, whether or not the threats were genuine, they
were clearly motivated by protected activity (testimony related to unsafe
mining activities). Protected activity was at the core of the case. The issue
of whether motivation was required for interference was not before the
Commission. Rather, the Commission found that the Judge applied the wrong legal
standard in determining whether such comments rose to the level of coercion. The
Judge had framed the question in the case as whether “[the miner] meant the
literal meaning of the words, ‘I’ll kill you,’ or whether he was speaking
figuratively, as in, ‘I’ll really be upset with you.’” 27 FMSHRC at 10.

The Commission found that the Judge focused too narrowly on
the goal of the statements – that is, “largely, if not exclusively, [the miner’s]
intent or motive in making the statements.” Id. The Commission found
that the occurrence of a violation did not turn upon the literal truth of the
murder threat. Instead, the miner’s “statements could be coercive, even if he
did not mean to literally kill or cause physical harm to Gray or other miners
who testified against him.” Id. “[T]he judge should have considered the
effect of [the miner’s] statements in this broader context and what other
meanings could be reasonably inferred from them, rather than limiting her
consideration to their literal meaning and what [ the miner ]
intended .” Id. (emphasis added).

Therefore, in Gray , the Commission’s decision is
consistent with a requirement that the employer’s action have a motivational
nexus with protected activity. As the Commission stated in Moses , “the
‘more subtle forms of interference’ are coercive interrogation and harassment over
the exercise of protected rights .” 4 FMSHRC at 1478 (emphasis added). Here,
the Secretary has not sought to demonstrate that the challenged plan was
motivated in any way by considerations of protected activity, preferring
instead to attempt a sweeping change in the interpretation of clear language,
solely to make it easier for him to prove interference as a general matter
wholly unrelated to the circumstances of this case.

Obviously, this would open the door for almost unlimited
interference claims. A miner presumably could establish a prima facie case of
interference by testifying that a supervisor’s chastisement for slow work led
him to believe he should not adequately rock dust his assigned area. Of course,
this would be a direct result of construing the statutory term “because” – repeated
for emphasis and certainty in each provision of 105(c)(1) – to mean one thing
in a discrimination case while construing it to mean literally nothing in an
interference case.

Finally, we must point to the coup de grace
foreclosing the Secretary’s position. While the Secretary has disparaged the
decision of an administrative law judge in Pepin , and while our
colleagues fret that miners would not be able to pursue interference claims if
required to show motivation, the Judge in Pepin found evidence of
motivation and held the operator liable for interference with the miner’s
rights in that case.  In that way, Pepin is indistinguishable from every
interference case decided by the Commission. 22

There has been no showing of absurd results flowing from a
faithful reading of the statute. Unanimous authority, including recent Supreme
Court cases, makes clear that such cases against the plain meaning of a statute
are hard to make, even with compelling facts and even with Circuit Court
support. It is an impossible proposition here.

V.        The Secretary’s Interpretation Is
Not Entitled to Deference.

Given the clarity of the language of section 105(c), the Secretary’s
claimed entitlement to Chevron deference hardly requires a response. 23
See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. ,
467 U.S. 837, 842-43 (1984)   (“If
the intent of Congress is clear, that is the end of the matter; for the court,
as well as the agency, must give effect to the unambiguously expressed intent
of Congress.”).  

The deference question is never reached here because it
fails necessarily under step one of Chevron. See Section I.A., supra.
Even if we were to consider deference, though, analysis under Chevron is
foreclosed as a matter of law in this case.

Since the turn of the century, the Supreme Court has
repeatedly addressed and reshaped the scope of Chevron deference. See
Christensen v. Harris County , 529 U.S. 576, 586-87 (2000); United States
v. Mead Corp. , 533 U.S. 218 (2001). In Gonzalez v. Oregon , 546 U.S.
243, 255-56 (2006), the Court confirmed that even if statutory language is
ambiguous, “[d]eference in accordance with Chevron , however, is
warranted only ‘when it appears that Congress delegated authority to the
agency generally to make rules carrying the force of law, and that the
agency interpretation claiming deference was promulgated in the exercise of
that authority.’” Id. at 255-56 (emphasis added) (quoting Mead ,
533 U.S. at 226-27). Here, there can be no such claim.

The Secretary’s interpretation in this case does not
germinate from any rule carrying the force of law, a prerequisite for Chevron
deference under Gonzalez , Christensen , and Mead . Rather,
the Secretary announced this interpretation in briefs and litigating positions
before the Commission, which are not legally binding on the opposing party, the
regulated industry, or the government itself. As a plurality of circuit courts
have held specifically in Mine Act cases, the Secretary’s litigating positions
do not warrant Chevron deference. See Knox Creek Coal Corp. v.
Sec’y of Labor , 811 F.3d 148, 158-60 (4th Cir. 2016); North Fork Coal
Corp. v. FMSHRC , 691 F.3d 735, 742 (6th Cir. 2012); Vulcan Const.
Materials L.P. v. FMSHRC , 700 F.3d 297, 315-16 (7th Cir. 2012). But see
Sec’y of Labor v. Twentymile Coal Co. , 411 F.3d 256, 261 (D.C. Cir.
2005) (disregarding Mead ’s holding to afford Chevron deference to
the Secretary’s litigating position); Pattison Sand Co., LLC v. FMSHRC ,
688 F.3d 507, 512 (8th Cir. 2012) (agreeing with the D.C. Circuit’s approach).

Rather than contend with the commonsense, plain meaning of
the Mine Act, our colleagues argue not with our interpretation but rather with
the Operators’ hyper-literal and incorrect interpretation that, if motivation
is required, section 105(c) could not apply until after protected activity
occurs.

Knowing that construction cannot stand review, our
colleagues’ willingly embrace it in an effort to support their effort to read
“because” out of the statute. The Operators and our colleagues erroneously
conflate “literal meaning” and “plain meaning” and boldly declare that
“[b]ecause a literal reading of the statute leads to absurd results, the
interference provision of section 105(c) must be seen as lacking a plain
meaning.” Slip op. at 10 (emphasis added). The D.C. Circuit and the
Commission, though, have previously rejected this reasoning. See Meredith ,
177 F.3d at 1054; Nally and Hamilton , 33 FMSHRC at 1763-64.

Of course, we do not accept the notion that section 105(c)
does not protect miners from operator activity motivated by a desire to
interfere with protected activity that has not yet occurred. Section 105(c)
applies fully if the Secretary or claimant demonstrates that an operator’s
action was motivated by a desire to prevent protected activity from occurring
in the first place. Slip op. at 31-38. For example, a general pre-hiring
announcement or policy that any miner who files a section 103(g) complaint will
be fired would violate section 105(c) because it is because of a right to
engage in protected activity.

As we said at the outset, the Secretary did not introduce
evidence or argue, let alone prove, that the bonus plans were motivated by the
prospect of protected activity. Our colleagues, naturally, have made no effort
at all to reconcile the plain language with the circumstances in this case
because no evidence permitting such analysis was introduced, and because the
circumstances fall squarely within the Pasula-Robinette formula we have
unfailingly applied to cases arising undr Section 105(c)(1).

As a final point, this case does not involve mining
activities with respect to which MSHA may claim any special expertise or
experience. The issue does not turn on a policy interpretation of a safety
standard in the Mine Act or promulgated by MSHA. Here, we reach a legal
decision on the meaning of legal requirements of the Mine Act, not mining
practices prescribed in the Act. The Secretary has not taken any formal action
to formulate and announce a coherent policy on discrimination and interference;
instead, he attempts to prevail in a particular case by claiming deference
without any recognition or consideration of the broad scope of the principle that
would result.

MSHA has not demonstrated that it has considered the effect
that eliminating motive from an interference claim might have on literally
thousands of daily events in which management communicates a mining technique,
mining practice, or mine directive to miners. The Secretary has not allowed any
public comment or participation regarding an attempt to expand of the scope of
section 105(c). Indeed, notwithstanding the use of “because” repeatedly after
the prohibitions against discrimination and interference and the Secretary’s
agreement that motivation is a prerequisite for discrimination, the Secretary
asserts the illogical and, frankly, absurd position that the word “because”
requires motivation when applied to discrimination cases but does not require
motivation when applied to interference cases. 24

Congress designated the Commission as the adjudicatory
agency for Mine Act disputes. There is no reason for the Commission to defer to
a litigation position on a purely legal matter on which the Secretary has not
demonstrated any formal, thoughtful, or fully informed consideration, analysis,
or reasoning. The Secretary’s position has neither the attributes required for Chevron
deference nor persuasiveness were we to apply the standard of Skidmore v. Swift & Co. ,   323 U.S. 134 ( 1944).

CONCLUSION

A principal goal of the Mine Act is to foster cooperation
between management and workers on safety matters and increase worker
participation in achieving safe working conditions. It does not advance the
interests served by the Act to disconnect a miner’s allegation of interference
with protected rights from any exercise of protected rights. Further, the
course urged by our colleagues would do real violence to basic principles of
statutory construction and Commission precedents and would ratify an effort by
the Secretary to arrogate to him legislative power reserved to Congress by the
Constitution. We would reverse the Judge and dismiss this case for a lack of
substantial evidence on an essential element of the violation.

/s/
William I. Althen

William
I. Althen, Acting Chairman

/s/
Michael G. Young

Michael
G. Young, Commissioner

Appendix
A

SECRETARY OF LABOR, MSHA,              
 :                               Docket Nos.:   WEVA 2015-905-D

on behalf of RICKY BAKER                         :                                                     
WEVA 2015-906-D

and UNITED MINE WORKERS OF               :                                                      WEVA
2015-907-D

AMERICA INTERNATIONAL UNION       :                                                   
  WEVA 2015-908-D

:                                                      LAKE 2015-616-D

v.                                                             
 :

:

OHIO COUNTY COAL CO.,                         
 :                              

CONSOLIDATION COAL CO.,                  
 :                                          

MURRAY AMERICAN ENERGY, INC.,     :                  

and MURRAY ENERGY CORPORATION   :                 

:                              

:                              

SECRETARY OF LABOR, MSHA,              
 :

on behalf of LEVI ALLEN                 
             :

and UNITED MINE WORKERS OF              :

AMERICA INTERNATIONAL UNION       :

:                                    

v.                                                           
 :

:                                   

THE MARSHALL COUNTY COAL CO.,      :

McELROY COAL COMPANY,                   
 :                                          

MURRAY AMERICAN ENERGY, INC.,     :                  

and MURRAY ENERGY CORPORATION   :                 

:                                   

:                              

SECRETARY OF LABOR, MSHA,              
 :

on behalf of MICHAEL PAYTON      :

and UNITED MINE WORKERS OF              :

AMERICA INTERNATIONAL UNION       :

:                                    

v.                                                           
 :

:                                   

MARION COUNTY COAL CO.,                  
 :                              

CONSOLIDATION COAL CO.,                  
 :                                          

MURRAY AMERICAN ENERGY, INC.,     :                  

and MURRAY ENERGY CORPORATION  :                  

:

:

SECRETARY OF LABOR, MSHA,               :

on behalf of ANN MARTIN                           
 :

and UNITED MINE WORKERS OF              :

AMERICA INTERNATIONAL UNION       :

:                                    

v.                                                           
 :

:                                   

HARRISON COUNTY COAL CO.,              
 :                              

CONSOLIDATION COAL CO.,                  
 :                                          

MURRAY AMERICAN ENERGY, INC.,     :                  

and MURRAY ENERGY CORPORATION  :                  

:

:

SECRETARY OF LABOR, MSHA,              
 :

on behalf of MARK RICHEY                      
    :

and UNITED MINE WORKERS OF              :

AMERICA INTERNATIONAL UNION       :

:                                    

v.                                                           
 :

:                                   

THE OHIO VALLEY COAL CO.,                
 :                              

and MURRAY ENERGY CORPORATION   :                 

[1] Additional
captions in these cases are listed in Appendix A to this order.

[2] The S&S
terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.

§ 814(d)(1), which distinguishes as more serious any
violation that “could significantly and substantially contribute to the cause
and effect of a . . . mine safety or health hazard.”

[3] The discontinued
plan at the Harrison County Mine did not include the “major deviation”
provision. Jt. Ex. 24.

[4] The Secretary
claims that the Operators have waived this argument because they did not
present it to the Judge below. We disagree. This argument is intrinsically
intertwined with the Operators’ challenge of the claim of interference. Although
the Operators challenged the application of Franks below, they did not
present their alternative test for the Judge to consider. Op. Post-Hrg. Br. at
7-9 & n.4. However, they did cite Commission precedent concerning the
issue. Since their test essentially mirrors the Commission’s Pasula-Robinette
test applicable to discrimination claims, their argument on appeal is
sufficiently related. See Freeman United Coal Mining Co. , 6
FMSHRC 1577, 1580 (July 1984) (finding that operator’s broad statements addressing
the issue of the interpretation of the regulation at issue “afforded the
administrative law judge an opportunity to pass” upon the question). Moreover, Pepin
was not issued until after the Judge issued her decision in this case. Thus, we
may appropriately consider the Operators’ arguments.

1 Section 105(c)(1), 30 U.S.C. §
815(c)(1), states:

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, representative of miners or applicant for
employment in any coal or other mine subject to this chapter because such
miner, representative of miners or applicant for employment has filed or made a
complaint under or related to this Act, including a complaint notifying the
operator or the operator’s agent, or the representative of the miners at the
coal or other mine of an alleged danger or safety or health violation in a coal
or other mine, or because such miner, representative of miners or applicant for
employment is the subject of medical evaluations and potential transfer under a
standard published pursuant to section 811 of this title or because such miner,
representative of miners or applicant for employment has instituted or caused
to be instituted any proceeding under or related to this chapter or has
testified or is about to testify in any such proceeding, or because of the
exercise by such miner, representative of miners or applicant for employment on
behalf of himself or others of any statutory right afforded by this chapter.

2 Section 105(c) speaks of the
protected class as including “miner[s], representative[s] of miners, or
applicant[s] for employment in any coal or other mine subject to this Act.” 30
U.S.C. § 815(c)(1). For simplicity of expression, in this opinion we shall
simply use the word “miner,” understanding that it refers to the entire
protected class.

3 In American Coal Company ,
the Commission had considered the legislative history and context in which the
Mine Act was written as part of its analysis. 35 FMSHRC 380, 383-84 (Feb.
2013). The Commission determined that because the legislative history of the
Mine Act contained reference to “smoldering” fires that resulted in mass
suffocation fatalities, Congress could not have plainly used the term “fire” to
mean or exclusively require the presence of a flame.

4 Our colleagues take a somewhat
different view. See infra slip op. at 18-20.

[5] Section 103(g)
provides: “Whenever . . . a miner . . . has reasonable grounds to believe that
a violation of this Act or a mandatory health or safety standard exists, or an
imminent danger exists, such miner . . . shall have a right to obtain an
immediate inspection by giving notice to the Secretary . . . of such violation
or danger.” 30 U.S.C. § 813(g).

[6] This hypothetical
was posed to counsel for the Operators during the oral argument in this case. The
initial response of the Operators’ counsel was that the plan would constitute
interference with statutory rights under section 105(c). Oral Arg. Tr. 11-13. But
on further reflection, after being reminded that the test he proposed required
prior protected activity by a miner, counsel agreed that the bonus plan would
not constitute illegal interference because of the absence of a predicate act
by a miner. Oral Arg. Tr. 14-17.

[7] Our colleagues
would require proof of motivation in a claim of interference. They contend that
their approach is consistent with Gray because the threats in Gray “were
clearly motivated by protected activity. . . . The issue of whether motivation
was required for interference was not before the Commission.” Slip op. at 47-48.
However, our colleagues ignore the fact that in Gray the Commission
vacated an ALJ decision where the Judge had specifically found that Brummett’s
statements to Gray “‘amounted to no more than an exaggerated expression,
commonly used between friends who expect loyalty from one another,’” and that
“‘no threat occurred.’” 27 FMSHRC at 5, quoting 25 FMSHRC at 215, 217. Thus,
our colleagues’ contention that Brummett issued “threats” which were “motivated
by protected activity” is inconsistent with the Judge’s findings based on
credibility determinations after a hearing. In reversing the Judge, the
Commission did not challenge her findings regarding the motivation behind
Brummett’s statements to Gray. Rather, the Commission found the motivation
relied on by the Judge to be irrelevant. It was the nature of Brummett’s
statements, and their potentially coercive effect on Gray, which was essential
to the Commission’s decision. 27 FMSHRC at 10. Hence, our colleagues are
incorrect in stating that the issue of motivation in an interference claim was
not before the Commission in Gray . Their interpretation of the
interference provision in section 105(c) is inconsistent with Gray .

[8] Section 110(b)(1)
of the Coal Act stated:

No person shall discharge or in
any other way discriminate against or cause to be discharged or discriminated
against any miner or any authorized representative of miners by reason of the
fact that such miner or representative (A) has notified the Secretary or his
authorized representative of any alleged violation or danger, (B) has filed,
instituted, or caused to be filed or instituted any proceeding under this Act,
or (C) has testified or is about to testify in any proceeding resulting from
the administration or enforcement of the provisions of this Act.

30 U.S.C. § 820(b)(1) (1976).

[9] The holding of
the Phillips Court, that the coverage of the anti-discrimination
provisions of the Coal Act begins when a miner notifies mine officials or the
safety committee of possible safety violations, and that no formal complaint to
the Secretary of Labor is required, was reaffirmed in Munsey v. Morton , 507
F.2d 1202, 1208-9 (D.C. Cir. 1974).

[10] Four years
later, in Baker v. IBMA , 595 F.2d 746 (D.C. Cir. 1978), the Court
rejected the view that section 110(b)’s protection from discrimination was only
afforded to miners who had the intent to contact federal officials at the time
they made safety complaints to a mine foreman. The Court noted the comment by
the sponsoring Senator, Edward Kennedy, that “(T)he rationale for this
amendment is clear. For safety’s sake we want to encourage the reporting of
suspected violations of health and safety regulations.” 595 F.2d at
749-50 (citation omitted). Thus, the Court focused on the safety-enhancing
purpose of the statute’s anti-discrimination language rather than on the
express language of the statute.

[11] Our colleagues
argue that Inclusive Communities is irrelevant to the issues here
because it involved a claim of disparate impact, an area of law they suggest is
unique unto itself. But the Court’s reasoning and conclusions were not so
narrowly drawn. The above-quoted passage shows that the language and structure
of the anti-discrimination provisions reviewed by the Court were critical to
its conclusion that the effects or consequences of employer conduct may support
a claim of discrimination without regard to the employer’s intent. Similar
language and structure support the same reading and conclusion for section
105(c) of the Mine Act.  

Moreover a focus on the effects of employer
conduct is not limited to cases involving disparate impact claims and, in fact,
is consistent with Commission precedent interpreting section 105(c), as
reflected in Moses and Gray . The importance the Commission has
placed on the effects of operator conduct is also reflected in its use of
section 8(a)(1) of the National Labor Relations Act as an aid in interpreting
section 105(c). See Gray , 27 FMSHC at 9-10. Section 8(a)(1) focuses on
the effects of employer misconduct and does not contain a motivational
requirement.    

Given the Supreme Court’s reasoning in Inclusive
Communities , our colleagues’ reliance on Gross v. FBL Financial
Services, Inc ., 557 U.S. 167 (2009) (“ Gross ”) and University of
Texas Southwestern Medical Center v. Nassar , 133 S. Ct. 2517 (2013) (“ Nassar ”),
to argue that the phrase “because of” has a plain meaning which requires proof
of motive in all case, is misplaced.  

Gross involved a claim of disparate
treatment under the ADEA which requires proof of wrongful motivation. Nothing in
Gross suggests that the Court was rejecting prior interpretations of the
ADEA, as described in Inclusive Communities , allowing claims challenging
the discriminatory effect or impact of employer conduct without proof of
discriminatory motive.

Similarly, Nassar involved a claim
under Title VII’s anti-retaliation provision set forth at 42 U.S.C. § 2000e-3(a).
That provision does not contain language similar to “otherwise adversely
affects” in the anti-discrimination provisions of Title VII (42 U.S.C. § 2000e-2(a)(2))
and the ADEA (29 U.S.C. § 623(a)(2)), “otherwise make unavailable or deny” in
the FHA (42 U.S.C. § 3604(a)), or “otherwise interferes” in section 105(c) of
the Mine Act (30 U.S.C.

§ 815(c)(1)). It is limited to claims of retaliatory
treatment of employees, which require proof of motive.    

[12] Our colleagues’
assertion, slip op. at 37-38, that the legislative history of section 105(c)
supports their position rings hollow. They rely heavily on the drafters’
statement that their goal was the protection of miners from interference with
their rights in the form of “threats of reprisal,” and then argue that “[f]or
there to be a threat of reprisal there must be an action that triggers the
threat – that is, there must be a cause for the reprisal.” Id. at

37. Our colleagues ignore the fact that in the same sentence of the legislative
    history containing the phrase “threats of reprisal,” the drafters expressed
    their concern about interference in the form of “promises of benefit.” S. Rep.
    No. 95-181, at 36. A promise of benefit which has the effect of
    interference with the exercise of protected rights need not have been motivated
    by the exercise of those rights.

Our colleagues also claim textual
significance in the fact that in converting the 1969 Coal Act’s section 110(b)
into the 1977 Mine Act’s section 105(c), Congress changed the language “by
reason of the fact” to “because” and re-structured the section so that instead
of phrases beginning “(A),” “(B),” and “(C),” each subject to the “by reason of
the fact” language, the section now contains separate clauses prefaced by “or”
and including the “because” or “because of” language. We fail to discern an
effectual difference between “by reason of the fact” and “because.” What is
much more significant in the evolution of this section is that in 1977 Congress
added the language “or otherwise interfere with the exercise of . . . statutory
rights,” a provision which did not exist in the 1969 Coal Act. In explanation
of the new interference language, the legislative history spoke of going beyond
“the common forms of discrimination” so as to include “the more subtle forms of
interference, such as promises of benefit . . . .” S. Rep. No. 95-181, at 36.

[13]
Digital Realty Trust, Inc. v. Somers , 138 S.Ct. 767 (2018), relied
on by our colleagues, does not refute this. In that case, the Supreme Court
ruled that a private sector employee who did not report any securities-law
violations to the Securities and Exchange Commission was not a “whistleblower,”
even though he had reported his concerns to senior management. T he Court’s adherence to the plain language of the statutory
definition of “whistleblower,” which states that a “whistleblower” is a person
who provides information relating to a violation of securities laws to the
Secretary, was driven in large part by its view that the purpose of the statute
was to encourage prompt reporting of violations to the SEC (which the plaintiff
had not done). By contrast, a literal reading of section 105 of the Mine Act
(resulting in the institution of a motivation requirement in interference
cases) does nothing to further the objectives of the anti-discrimination
provisions in the Act. To the contrary, it makes it more difficult for miners
to prevail in interference lawsuits.

Although,
in Digital Realty Trust, the Court applied a plain meaning analysis to
the language of a discrimination statute, its rationale was based specifically
on the statute’s purpose and on alternative mechanisms that could protect
employees. The Court opinion is not the first – nor the last – to base an
interpretation on the plain meaning of statutory text. Importantly, however, in
rejecting the specific “absurd results” analysis of the lower court and the
parties, the Supreme Court relied on case-specific rationales, and did not call
into question the use of the absurd results doctrine in other cases.

[14] The
Operators’ express concern is that under the Franks test (as embodied in
the Judge’s Decision), “any bonus plan that provides an element of production
is per se unlawful.” Oral Arg. Tr. 30. We reject this suggestion. But
what is clear is that under the Operators’ proposed test, the “promises of
benefit” provided in a bonus plan based on production can never be found
unlawful under section 105(c) without smoking gun evidence that the plan’s
intent was to subvert statutory rights.

[15] Our colleagues
rely on Meredith v. FMSHRC , 177 F.3d 1042, 1054 (D.C. Cir. 1999), where
the Court held that MSHA employees are not “persons” who can be named as
respondents in discrimination claims under section 105(c) of the Mine Act. Interestingly,
the Court found a textual analysis of the word “person” to be insufficient to
determine a plain meaning of the statute. Rather, the Court looked to the
statutory scheme as a whole. Id. at 1054-56. Our colleagues, however,
rely primarily on a textual analysis. Our colleagues also rely on the
Commission decision in Nally & Hamilton Enterprises, Inc. , 33 FMSHRC
1759 (Aug. 2011), where the Commission interpreted the word “maintain” as used
in 30 C.F.R. § 77.410(c). In finding a plain meaning for the word, the
Commission did not reject the literal meaning of the word as inconsistent with
the plain meaning, but rather, rejected the operator’s attempt to inject
nuances and requirements into the plain meaning which simply were not present. Id.
at 1763.  

[16]
Our colleagues submit that interference claims are analytically
indistinguishable from discrimination claims characterized by firing,
suspension, adverse change in job duties or other such direct adverse action,
and so should be analyzed under the traditional formula created in Sec’y of
Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct.
1980) and Sec’y of Labor on behalf of Robinette v. United Castle Coal Co. ,
3 FMSHRC 803 (Apr. 1981), and widely known as the Pasula-Robinette test.
Slip op. at 46, 50. However, in Gray, the Commission noted that “[t]he
Commission’s approach to the analysis of operator statements [of alleged
coercive interrogation or harassment constituting interference with protected
rights] stands in contrast to its analysis of discrimination against miners who
have exercised their rights under the Mine Act. . . . This latter analysis is
generally referred to as the Pasula-Robinette test.” 27 FMSHRC at 8-9 n.6.
Thus, the Commission has indeed recognized a difference between interference
claims and the more typical discrimination claims arising under section 105(c).

[17] Judge Lewis was
discussing Judge David Barbour’s decision in Secretary obo Pepin v. Empire
Iron Mining Partnership , 38 FMSHRC 1435, 1453-54 (June 2016) (ALJ), a
decision whose thesis that in a claim of unlawful interference under section
105(c) the Secretary has the threshold burden of proving the operator’s
unlawful motivation is echoed by our colleagues’ opinion in this case.

[18] As previously
noted, supra slip op. at 10 n.5, That statutory provision affords miners
the right to make anonymous complaints to the Secretary. 30 U.S.C. § 813(g).

[19] A number of
Commission Judges have also applied Franks to interference claims. See
UMWA ex rel. Franks v. Emerald Coal Res ., 38 FMSHRC 799 (Apr. 2016); McGary
v. Marshall County Coal Co ., 37 FMSHRC 2597, 2603-04 (Nov. 2015); McGlothlin
v. Dominion Coal Corp ., 37 FMSHRC 1256, 1264-65 (June 2015); Pendley
v. Highland Mining Co ., 37 FMSHRC 301, 309-11 (Feb. 2015). One Commission
Judge has rejected the Franks test. Sec’y obo Pepin v. Empire Iron
Mining Partnership , supra .

[20]
Indeed, section 2(e) of the Mine Act states that mine operators, with the
assistance of miners, have the primary responsibility to prevent the existence
of unsafe and unhealthful conditions and practices in mines. 30 U.S.C. § 801(e).

[21] In his
case-in-chief, the Secretary presented evidence from four miners to describe
the effects of the bonus plans. The Secretary attempted to call additional
miner witnesses, but the Judge excluded their testimony, finding that it would
be cumulative. 38 FMSHRC at 944, n.1.

[22] McCoy heard of
other crews not filing section 103(g) complaints in similar situations. Tr.
114-15. At mines where the bonus plans were discontinued, section 103(g)
reporting rebounded. Id. at 166.

[23] As the Judge
noted, 38 FMSHRC at 954, Murray Energy Senior Vice President John Forelli, who
had designed the bonus plans, testified that two statistical analyses he had
commissioned failed to reach a conclusion as to whether the bonus plans had
improved production, and that his review of daily and quarterly safety reports
did not show an impact on safety. Tr. 293-301. Significantly, however, as the
Secretary notes, the combined non-fatal injury rate at the six mines went up by
18% during 2015, the year the bonus plans were put in place. S. Br. at 10, n.3.

[24] In fact, in this
case, miner witnesses had motivation not to come forward. Witnesses risked
retaliation, not only from the Operators, but also from their bonus-seeking
fellow miners. We agree with the Secretary that “[t]he very nature of an
interference violation is that it deters or intimidates miners from coming
forward to share their concerns with MSHA, management, and the Commission. To
fault the Secretary for proffering obviously relevant testimony via
representatives of miners, as he did here, would undermine the structure and
purpose of the Mine Act, which specifically envisions representatives acting as
advocates for miners.” S. Resp. Br. to R. PDR at 42. These considerations are
precisely why the Commission’s rules permit hearsay testimony.

[25] To the
extent that the Operators identify instances of double hearsay, we agree that a
Judge must be particularly attentive and scrutinize such testimony for its
probative value. However, under the circumstances, given the overwhelming
reliable evidence of numerous examples of miners coerced into not exercising
their protected rights in order to achieve a bonus under the plans, any error
by the Judge in crediting and relying on such double hearsay is harmless.

[26] Courts routinely
use representative testimony to establish violations of the Fair Labor
Standards Act on behalf of similarly situated employees who do not testify,
when employers fail to maintain proper wage and hour records. See, e.g. ,
Garcia v. Tyson Foods, Inc. , 770 F.3d 1300, 1307 (10th Cir. 2014); Reich
v. S. New England Telecomm. Corp ., 121 F.3d 58, 67 (2d Cir. 1997); Martin
v. Selker Bros., Inc. , 949 F.2d 1286, 1297-98 (3d Cir. 1991).

[27] The Operators do
not contend that the testimony of the miners’ representatives was not relevant.
They would be hard pressed to do so, given that the testimony addressed such issues
as instances in which the bonus plan deterred miners from reporting hazards and
injuries, refusing unsafe work, and serving as walkarounds.   See, e.g. , Tr.
112, 152, 226.

[28] The Operators
cite no case in which the Commission had found a Judge’s reliance on hearsay
evidence to be an abuse of discretion.

[29] One of the two
witnesses explained that she did not mention the incident at the deposition
because the Operators’ counsel had objected to the fact that the witness would
not disclose the identity of the miners who allegedly were involved. Tr.
168-69.

[30] We reject the
Operators’ argument that the Judge erred by considering the evidence
collectively as applying to each mine. In conjunction with streamlining this
trial, the Judge limited the Secretary’s presentation of redundant witnesses by
prohibiting the Secretary from presenting a witness from each individual mine.
The evidence reflected that the bonus plans at the mines were nearly identical.
One individual drafted a single plan and met with each mine in implementing
them. The only differences with the plans at Ohio County Mine and Powhatan No.
6 Mine were minimal – allowing a representative of the mine safety committee to
conduct one additional inspection each month and permitting safety committee
participation in determining whether injuries affecting bonuses were properly
documented. This did not affect the application and analysis of the
interference claims. Hence, the testimony of the Secretary’s witnesses was
applicable to all of the Operators’ miners and the Judge did not abuse her
discretion.

1 During oral argument, the
Secretary conceded that he did not present evidence or argument that there was
a motivational nexus between the Operators’ implementation of the bonus plan
and any prior or anticipated exercise of protected rights by miners. Oral Arg.
Tr. 77-78. Therefore, there is no basis to find the Operators implemented the
plans because of prior or anticipated protected activity, and accordingly, no
reason to remand the case for reconsideration under the proper standard.

2  “Because” is one of
the 100 most-commonly-used words and most clearly understood words in the
English language, as it is the natural beginning of any response to the
question, “Why?” Our colleagues, though, maintain that the reasons “why” an
operator has taken an action they deem to be interference are immaterial,
despite the pointed inclusion of “because” four times in the text of section
105(c). There is an inherent irony in their incuriosity.

3
Notably, in Nassar , the Court also stated,

When the law grants persons the right to compensation for
injury from wrongful conduct, there must be some demonstrated connection, some
link, between the injury sustained and the wrong alleged. The requisite
relation between prohibited conduct and compensable injury is governed by the
principles of causation, a subject most often arising in elaborating the law of
torts.  

133 S. Ct. at 2522.

4 The Secretary asserts that
Congress’ use of the term “because of’ is ambiguous. S. Resp. Br. at 26. The
foundational premise of this assertion, that section 105 is complex, is
patently absurd. Section 105(c)(1) is hardly complex. It is a single
(admittedly long) sentence comprising, in its entirety, barely 200 words. Reducing
the sentence to its salient features reveals a quite simple structure: No
person shall a or b or c or d or e because w ,
because x , because y , or because of z .

5 Neither the Secretary nor our
colleagues can adequately explain how, in a statute, the same instance of the
same word can hold within it two incompatible meanings at the same time. There
is no basis in law for this proposition. One wonders if they could turn to
literature for support: “Do I contradict myself? Very well then I contradict
myself, (I am large, I contain multitudes.)” Walt Whitman, Song of Myself 51
(1892). Or perhaps they should look to quantum physics and liken section
105(c)(1) to Schrödinger’s cat – the statute exists in a state of quantum
superposition, where “because” means both “because” and nothing at the same
time, until the Secretary brings a case and the word’s meaning is revealed.

6 As discussed further infra ,
we do not agree with and do not accept the Operators’ argument that, because
protected activity must motivate at least in part the Operators’ action, an
action taken to restrain possible future protected activity cannot violate
section 105(c). An action motivated by a desire to foil anticipated protected
activity is as fully within the scope of section 105(c) as if the protected
activity had occurred. In this case, the Secretary conceded that he did not
introduce any evidence of motivation. Therefore, we do not deal with a case
involving a claim of an attempt to forestall anticipated protected activities.

7 Our colleagues’ charge that the
Act does not require “retaliatory motivation” and their indignation over the
Operators’ artificially narrow reading of section 105(c) is no exception. See
slip op. at 10-11. We find that the requisite motivation for an operator’s
improper interference may be because of the operator’s fear of the prospective
exercise of protected rights or the operator’s belief that a miner or group of
miners has engaged in protected activity, regardless of whether any protected
activity actually occurred. This is consistent with the Commission’s holdings
in Moses and Gray .

8 The reversed courts cited to the
“absurd results doctrine” to avoid the result required by the pain language of
the statute. The District Court and the Ninth
Circuit, in succession, adopted the Second Circuit’s finding that applying the
statute as written “would make little practical sense and undercut
congressional intent. The Supreme Court unanimously held that courts must apply
the plain language of the statute.

9 It is perhaps obvious beyond
need of mention, but Somers is a whistleblower case arising in the
context of a statute written to provide protections to persons based on their conduct ,
rather than personal characteristics, and is thus much more like Section
105(c)(1) than the status-based protections giving rise to disparate-impact
claims. See Part II, infra (discussing inapplicability of
disparate-impact case law).

10 MSHA itself has recognized
that the Mine Act does not reach mistreatment based on the types of
characteristics that have supported disparate-impact analysis. MSHA’s A
Guide to Miners’ Rights and Responsibilities Under the Federal Mine Safety and
Health Act of 1977 , at 7 (Rev. 2017), states, “Discrimination on the basis
of race, sex, age, religion, handicap, union activity, or any other non-mining
status, is not covered by Section 105(c) of the Act.” Rather, the prohibited
actions are those taken for the reasons enumerated in the statute; if some
other reason motivates an action, the Mine Act provides no recourse.

11  In International
Brotherhood of Teamsters v. United States , 431 U.S. 324, 335 n.15 (1977),
the Supreme Court explained the difference between “disparate treatment” and
“disparate impact”:

“Disparate treatment”
such as is alleged in the present case is the most easily understood type of
discrimination. The employer simply treats some people less favorably than
others because of their race, color, religion, sex, or national origin. Proof
of discriminatory motive is critical, although it can in some situations be
inferred from the mere fact of differences in treatment. . . . Claims of
disparate treatment may be distinguished from claims that stress “disparate
impact.” The latter involve employment practices that are facially neutral in
their treatment of different groups but that in fact fall more harshly on one
group than another and cannot be justified by business necessity.

Obviously, section 105(c) does not deal with separate or
“disparate” groups. All miners are entitled to exercise protected rights
without discrimination or interference because of their exercise of such
rights. With the Secretary’s resort to a theory of disparate-impact liability
for interference cases, it appears that the Secretary has entirely failed to
heed the Supreme Court’s admonition, set forth in the context of interpreting
discrimination provisions, to “be careful not to apply rules applicable under
one statute to a different statute without careful and critical examination.” Fed.
Express Corp. v. Holowecki , 552 U.S. 389, 393 (2008).

12 The historical background
of racial discrimination in housing and its persistent effects demonstrate why
disparate-impact analysis was necessary to determine causation. Both before and
after the Fair Housing Act, the federal government actively supported racial segregation
for decades. See Federal Housing Administration, Underwriting Manual,
pt. 2, ¶ 228 (Apr. 1936), https://catalog.hathitrust.org/Record/002137289
(last visited June 26, 2018). Outlining a policy known as “redlining,” the
Federal Housing Administration expressly approved of segregation and racial
covenants to prevent minorities from purchasing homes and urged federal
evaluators to “investigate areas surrounding the location to determine whether
or not incompatible racial and social groups are present, to the end that an
intelligent prediction may be made regarding the possibility or probability of
the location being invaded by such groups.” Id. ¶ 233. For an
saddeningly long period, government, including in the provision of mortgage
assistance and public housing assistance, entrenched institutional racism and
furthered segregation. See, e.g. , Gautreaux v. Romney , 448 F.2d
731, 739, 740 (7th Cir. 1971) (“It also is not seriously disputed on appeal
that the Secretary exercised the above described powers in a manner which
perpetuated a racially discriminatory housing system in Chicago, and that the
Secretary and other HUD officials were aware of that fact.”) (granting summary
judgment for plaintiffs for violations of the Fifth Amendment and the Civil
Rights Act of 1964); Young v. Pierce , 628 F. Supp. 1037, 1053 (E.D. Tex.
1985) (“The actions complained of here are not in any sense facially neutral:
HUD supports those authorities it knows to discriminate.”). It is against this
background of government-assisted and government-subsidized racism that the
Supreme Court adopted a disparate-impact theory of discrimination in Inclusive
Communities – a far different historical context than that presented in
this case. To be analogous, one would be required to show that the federal
government, after passage of the Mine Act, had mine regulators working to
suppress protected activity by miners. There is not a scintilla of evidence
suggesting support for a parallel in the Mine Act experience to the
government’s suppression of fundamental civil rights in the exercise of official
state housing policy.

13 We note the flaw of the
Secretary’s objection to the Operators’ challenge to the ALJ’s misconstruction
of the law. It is our duty to interpret the law de novo, so, in any
proper review, the Judge’s error in applying the wrong legal standard must be uprooted.

14 Justice Kennedy deemed this significant
in Smith , which at least involved another disparate-impact claim. In
nearly four decades of Mine Act jurisprudence before the Commission and the
Appellate Courts, there has never been any suggestion of even a remote
association between such claims, grounded on a statistical showing of disparity
between groups, and interference claims under the Mine Act.

15 We must note, again, that Inclusive
Communities repeatedly and emphatically makes clear that it is entirely
grounded in disparate-impact theory, and a citation to the points in the case
supporting this limiting principle would read simply “ passim .” A full
reading of Inclusive Communities abundantly demonstrates: it is a case
decided to address a particular problem using particular evidentiary methods
not applicable here and requiring evidence that has not been produced in this
case.

16 This non-sequitur flows from
the fact that the Mine Act is, of course, nothing like statutes which seek to
protect group members from discrimination because of their membership in a
group , even in its “anti-discrimination” provisions.

17 Neither the Commission nor the
Courts have decided the issue before us in this case. Griggs was decided
in 1971, before the Mine Act was signed and forty-five years before we heard
this case on review. If disparate impact were essential to the protection of
miners’ rights, one imagines we would have heard of the need before now.

18 The Secretary’s argument
elides the fact that the Commission has never equated the two provisions, which
are not, in fact, similar in their requirements. We have not held that actions
need not be motivated by protected activity, because in the entire history of
the Act, every case considered by the Commission has presented facts showing
motivation, and it is apparent from circumstance that the law was clearly
understood as meaning what it plainly says.

19 Legal reasoning unrelated to
facts of record such as that employed here is not only devoid of useful
content, it is arguably foreclosed to us. The Supreme Court has stated that
“[i]t has long been settled that a federal court has no authority ‘to give
opinions upon moot questions or abstract propositions, or to declare principles
or rules of law which cannot affect the matter in issue in the case before
it.’” Church of Scientology of Cal. v. United States , 506 U.S. 9, 12
(1992) (quoting Mills v. Green , 159 U.S. 651, 653 (1895)). The
Commission, as an adjudicative body, is likely equally constrained by the
Supreme Court’s admonition, and the Commission since its inception has
repeatedly expressed that we need not reach issues unnecessary to the
disposition of cases. See, e.g. , Ross v. Monterey Coal Co. , 3
FMSHRC 1171, 1173 n.6 (May 1981); Kaiser Steel Corp. , 1 FMSHRC 343, 345
n.6 (May 1979).

20 The Secretary, quite unlike the
Court in Griggs , has not demonstrated a change in the law that
justifies unsettling our interpretation of “because of” in discrimination cases
or decades of settled law governing our use of inferences to resolve questions
of motivation. He has simply seized upon Inclusive Communities as an
instrument of interest and convenience.

21 As previously noted, Section
III, supra , the Secretary also dissembles the statutory language of the
NLRA, which was not in issue in Gray and which, read fairly, undercuts
his argument.

22 Even in Franks and Hoy , evidence
of motivation was sufficient to convince two Commissioners that the miners in
that case had been discriminated against. See Franks and Hoy , (Opinion
of Commissioners Young and Cohen).

23 It bears noting that Justice Kennedy joined Justices O’Connor and Thomas
in refusing to extend deference to the EEOC in Smith . See 544
U.S. at 263-65.

24 This point is especially
relevant where, as here, the Secretary attempts an unprincipled and significant
legislative revision that effectively reads congressional language out of the
statute.