Secretary of Labor on behalf of Eric Greathouse, Ricky Baker, Levi Allen, Michael Payton, Ann Martin, and Mark Richey v. Murray Energy respondents
Secretary of Labor on behalf of Eric Greathouse, et al. v. Murray Energy respondents (FMSHRC WEVA 2015-906 D, et al.): Production bonus plans unlawfully interfered with miners' rights
What's the rule today?
This ALJ decision was superseded by the Commission's decision in the same case. Ezel starts from the controlling decision and answers your situation under current law, with citations.
Plain-English summary
Six Murray Energy underground coal mines offered shift bonuses based on production but disqualified crews after certain S&S citations, withdrawal orders, lost-time accidents, or absences during the shift. Judge Margaret A. Miller found that the plans created personal financial pressure and peer pressure that discouraged miners from reporting injuries and hazards, taking time for safety work, and serving as walkaround representatives during MSHA inspections. The operators did not prove that the plans improved either production or safety enough to outweigh those harms. The judge found interference under section 105(c), ordered the remaining plans rescinded, prohibited similar plans, and required six months of notices at each mine. She assessed $25,000 per mine, totaling $150,000. An evenly divided Commission later left those findings and remedies in effect.
Decision snapshot
- Governing provisions: 30 U.S.C. §§ 813(f) and 815(c)(1)
- Outcome: The bonus plans were found unlawful, rescission and notice remedies were ordered, and six $25,000 penalties totaled $150,000.
- Subsequent review: A two-to-two Commission split left the decision in effect in weva-2015-904-d-commission.
- Key point: A bonus plan interferes with Mine Act rights when it puts miners' own pay and coworkers' pay at risk for reporting hazards, injuries, or inspection-related activity.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION
OFFICE OF
ADMINISTRATIVE LAW JUDGES
721 19th
STREET, SUITE 443
DENVER, CO 80202-2536
TELEPHONE:
303-844-5266 / FAX: 303-844-5268
May 2, 2016
SECRETARY OF LABOR, MSHA : INTERFERENCE
PROCEEDING
on behalf of ERIC GREATHOUSE, :
Complainant, : Docket
No. WEVA 2015-904-D
: MORG-CD-2015-07
v. :
:
MONONGALIA COUNTY COAL CO., : Monongalia County Mine
CONSOLIDATION COAL COMPANY, : Mine ID: 46-01968
MURRAY AMERICAN ENERGY, INC., and :
MURRAY ENERGY CORPORATION, :
Respondents. :
:
SECRETARY OF LABOR, MSHA, : INTERFERENCE
PROCEEDING
on behalf of RICKY BAKER, :
Complainant, : Docket
No. WEVA 2015-905-D
: MORG-CD-2015-08
v. :
:
OHIO COUNTY COAL CO., : Ohio County
Mine
CONSOLIDATION COAL CO., : Mine ID:
46-01436
MURRAY AMERICAN ENERGY, INC., and :
MURRAY ENERGY CORPORATION, :
Respondents. :
:
SECRETARY OF LABOR, MSHA, : INTERFERENCE
PROCEEDING
on behalf of LEVI ALLEN, :
Complainant, : Docket
No. WEVA 2015-906-D
: MORG-CD-2015-09
v. :
:
THE MARSHALL COUNTY COAL, CO., : Marshall County Mine
MCELROY COAL COMPANY, : Mine ID: 46-01437
MURRAY AMERICAN ENERGY INC., and :
MURRAY ENERGY CORPORATION, :
Respondents. :
:
SECRETARY OF LABOR, MSHA, : INTERFERENCE
PROCEEDING
on behalf of MICHAEL PAYTON, :
Complainant, : Docket
No. WEVA 2015-907-D
: MORG-CD-2015-10
v. :
:
MARION COUNTY COAL CO., : Marion County
Mine
CONSOLIDATION COAL CO., : Mine ID:
46-01433
MURRAY AMERICAN ENERGY INC., and :
MURRAY ENERGY CORPORATION, :
Respondents. :
:
SECRETARY OF LABOR, MSHA, : INTERFERENCE
PROCEEDING
on behalf of ANN MARTIN, :
Complainant, : Docket
No. WEVA 2015-908-D
: MORG-CD-2015-11
v. :
:
HARRISON COUNTY COAL CO., : Harrison County
Mine
CONSOLIDATION COAL CO., : Mine
ID:46-01318
MURRAY AMERICAN ENERGY INC., and :
MURRAY ENERGY CORPORATION, :
Respondents. :
:
SECRETARY OF LABOR, MSHA, : INTERFERENCE
PROCEEDING
on behalf of MARK RICHEY, :
Complainant, : Docket
No. LAKE 2015-616-D
: MORG-CD-2015-12
v. :
:
THE OHIO VALLEY COAL CO., and : Powhatan No. 6 Mine
MURRAY ENERGY CORPORATION, : Mine ID: 33-01159
Respondents. :
DECISION AND
ORDER
Before: Judge Miller
These cases are before me upon a
complaint of interference filed by the Secretary of Labor (“the Secretary”) on
behalf of six miner representatives pursuant to the interference provisions of
Section 105(c) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30
U.S.C. § 815(c). On January 20, 2015, Complainants filed complaints with the Mine
Safety and Health Administration (MSHA) alleging that bonus plans implemented
at Respondents’ mines violated Section 105(c) of the Mine Act. On July 31,
2015, the Secretary filed this action on behalf of Complainants. The parties
presented testimony and documentary evidence at a hearing on March 2, 2016, in
Pittsburgh, Pennsylvania. For the reasons that follow, I conclude that
Respondents interfered with the rights of Complainants under the Mine Act in
violation of Section 105(c).
At hearing, the parties presented a
number of stipulations, as well as a number of stipulated exhibits. The
stipulations are a part of the record as Exhibit A, and the stipulated exhibits
are entered into the record as numbered. Based upon the stipulations, there is
no issue as to the jurisdiction of MSHA at the six mines named, and no issues
of jurisdiction as to the Commission. Jt. Stips. ¶ 1. Complainants were all employed
at the mines or serving as representatives of miners at the time the matters
arose. Jt. Stips. ¶¶ 15-26. Because the bonus plans at issue at the six mines
and the complaints regarding them are nearly identical, I have addressed them
together. The Secretary has proposed a civil penalty of $20,000 as to each of
the six mines.
I.
FINDINGS OF FACT
This case involves six mines
located in West Virginia and Ohio: the Monongalia County Mine (previously known
as Blacksville No. 2 Mine), the Ohio County Mine (previously known as Shoemaker
Mine), the Marshall County Mine (previously known as McElroy Mine), the Marion
County Mine (previously known as Loveridge Mine), the Harrison County Mine (previously
known as Robinson Run No. 95 Mine), and the Powhatan No. 6 Mine. Jt. Stips. ¶¶
5, 6, 8-13. The mines are owned and operated by wholly-owned subsidiaries of Murray
Energy Corporation (“Murray Energy”). Jt. Stips. ¶¶ 2-13. The subsidiaries as
well as Murray Energy are named as respondents. The six complainants are
members of the UMWA and representatives of miners at the mines who work or have
worked as miners at the named mines. Jt. Stips. ¶¶ 15-26.
In January 2015, Respondents
implemented the “Safety and Production Bonus Plans” at issue at six underground
coal mines under their control. Jt. Stips. ¶¶ 36, 39, 43, 46, 50, 54. Hourly
employees were notified of the bonus plans in letters distributed in November
2014 and January 2015. Jt. Stips. ¶¶ 28, 30. The plans offer miners money
bonuses if their assigned section produces a certain amount of coal during
their shift. Jt. Exs. 20-25. The bonus amounts range from $50 to $250 per shift
depending on how much coal is produced. Id. Miners who do not work in a
coal production area (“outby employees”) are eligible for bonuses at a lower
rate—ten percent of the bonuses earned by the production crews on their shift. Id.
The bonus plans also provide that
certain circumstances disqualify miners from receiving a bonus, notwithstanding
sufficient coal production. First, to be eligible for a bonus, a section crew
member must be “physically present the entire shift, including time spent
switching at the face, during the shift the bonus share is earned.” Jt. Exs.
20-25. Employees who are not on production crews must also be present for the
entire shift to share in the bonus. Id. Second, if a “lost time
accident” occurs that incapacitates a crew member, the entire crew is
disqualified from receiving the bonus for that shift. Id. Finally, a
crew working on a section may be disqualified if an MSHA inspector issues a certain
type of citation or order to that section. If an MSHA inspector issues a
citation designated as significant and substantial (“S&S”), all crews that
worked on the cited section are disqualified from earning a bonus for that day.
Id. If a withdrawal order under Section 104(d) or 104(b) of the Mine Act
is issued and is attributable to the crews working on the section, all the
crews on that section are disqualified from receiving the bonus for seven
consecutive days. Id.
The bonus and safety plans at issue
were designed by Senior Vice President of Murray Energy Corporation John Forelli.
Jt. Stips. ¶ 31; Tr. at 265. Forelli based the plans in part on plans that were
already in place for supervisors at the mine. Jt. Stips. ¶ 33; Tr. at 307-08,
- Forelli testified that the company’s motivation in implementing the plans
was to improve production and safety at the mines. Tr. at 265-66. The bonus
amounts were intended to be high enough to motivate workers but not so high
that miners would risk their safety. Tr. at 277-79; 315. Forelli also believed
that awarding the bonus on a per-shift basis would minimize the chance of
miners taking safety risks: a miner faced with addressing an unsafe condition
would know that even if he lost the bonus that day, he would have an
opportunity to earn it the next day. Tr. at 277-78.
Before the plans were implemented,
Forelli and other managers held meetings with members of the mine committee of
the local union at each mine. Tr. at 147-50, 287. A number of alterations were
made to the original plans as a result of these meetings. For example, in
response to complaints from the union that the lost-time injury
disqualification would discourage reporting of injuries, Forelli added the phrase
“that incapacitates the crew member during the shift” to clarify that the
disqualification would depend on when the injury was incurred rather than when
it was reported. Tr. at 271, 288-89. To the provision disqualifying miners for 104(d)
and 104(b) orders, Forelli added the phrase “attributable to the crews working
on that section” so that crews would not be disqualified for violations that
were beyond their control. Tr. at 270; Jt. Exs. 20-25. A term providing for an
additional inspection by the union safety committee each month was added to the
plans at the Ohio County and Powhatan No. 6 mines. Tr. at 268-69; Jt. Exs. 21,
25.
Forelli testified that once the
plans were implemented, he reviewed production data from the mines to see
whether production had improved, but he did not reach a definite conclusion. Tr.
at 297-301. Forelli also reviewed daily and quarterly safety reports from the
mines and did not see a discernible difference in safety after the plans were
implemented. Tr. at 293-96.
The Secretary presented witnesses
from the mines who testified about the effects the bonus plans had on
conditions at the mines.[1]
Several witnesses testified that they observed that miners were less willing to
serve as walk-around representatives after the bonus plans were implemented. Tr.
at 46-47, 117-18, 152. The witnesses agreed that a person who served as a walk-around
representative on a shift would be counted as an outby employee for purposes of
the bonus and so would earn ten percent of the bonuses earned by the production
crews on his shift. Tr. at 46, 178, 243, 283. Ann Martin, chairman of the
Safety Committee at the Harrison County Mine, testified that a young miner who
had frequently volunteered to be a walk-around representative declined after
the bonus plan was implemented because he did not want to miss out on earning
the bonus. Tr. at 152. Martin observed that miners became more willing to walk
with inspectors when the bonus plan was discontinued at her mine. Tr. at 156,
- Timothy McCoy, a member of a production crew at the Marshall County Coal
Mine, testified that his coworkers discouraged him from serving as a walk-around
representative because a less experienced person would be sent to replace him,
affecting the crew’s ability to achieve a bonus. Tr. at 113-14.
Witnesses for the Secretary also
testified about the plan’s impact on miners’ willingness to report injuries. The
miners understood the plans to disqualify everyone on the crew from receiving a
bonus for the day if anyone on the crew was involved in a “lost time accident”
during the shift. Tr. at 53, 159-60; Jt. Exs. 20-25. Several witnesses had
observed or heard about instances of miners deciding not to report injuries they
sustained on the job because they did not want to disqualify themselves and
their coworkers from receiving the bonus. Tr. at 54-55, 112. Levi Allen, UMWA
local president at the Marshall County Coal Mine, described an incident in
which a miner sustained a shoulder injury during his shift but decided not to
report it because he “didn’t want to take money off of everybody.” Tr. at 226. Allen
testified that after the bonus plan was implemented at his mine, he got three
times as many calls about miners leaving the mine without reporting an
accident. Tr. at 229. At the Ohio County and Powhatan No. 6 mines, the plan
included a term providing that the Mine Safety Committee and Mine Safety
Director would jointly review any accident to ensure that it was correctly
documented. Jt. Exs. 21, 25. However, the chairman of the safety committee at Powhatan
No. 6 testified that he had never been asked to review any accident reports. Tr.
at 327-28. Thus, I find that the extra provision did not lessen the effect of the
bonus plans on injury reporting at those two mines.
The witnesses also testified that
they believed miners were less willing to report dangerous conditions in the
mine while the bonus plans were in effect. Tr. at 48, 50, 112, 158, 213. They
attributed this in part to the provisions of the plan disqualifying miners from
the bonus for citations and orders received inby the tailpiece. Tr. at 48, 112,
- The witnesses explained that even if MSHA did not issue a disqualifying citation,
reporting a dangerous condition to management or requesting an inspection took
time away from production and so would lessen the crew’s chance of earning a
bonus that day. Tr. at 50, 251. McCoy described an incident in which a miner
expressed that he was unwilling to report a safety hazard because MSHA would
come and the crew would lose the bonus the next day. Tr. at 141-42. Martin
testified that in her capacity as chairman of the local union safety committee,
she received fewer reports from miners about safety hazards while the plans
were in effect. Tr. at 158, 166. As with the injury disqualification provision,
the witnesses believed that peer pressure exacerbated the effect of the plans
on safety reporting. Tr. at 50-51, 114, 163. Martin emphasized the importance
the miners placed on earning a good income, which meant that the bonuses had a
substantial effect on them. Tr. at 163.
At all of the mines except for
Harrison County, the bonus plan contained a provision stating that all
“production and safety standards, including roof control, ventilation, and rock
dusting, shall be maintained on all shifts where the bonus thresholds are
reached. Any major deviation will disqualify a crew from receiving the bonus
award.” Jt. Exs. 20-23, 25. Presumably, this provision was meant to encourage
compliance with safety standards even where MSHA was not involved. Allen
described an incident at the Marshall County Coal Mine in which a crew had
failed to rock dust as required but had attained the level of production to
qualify for a bonus. Tr. at 217-18. The next crew reported the rock dusting
problem to management, and the first crew lost their bonus under the “standard
deviation” provision. Id. However, the second crew also ended up not
achieving a bonus because of the time it took them to report the problem to
management and correct the problem. Tr. at 219-20. Allen thus explained that in
most cases, a crew would not bother to report the deviation and so the
provision would have little effect. Tr. at 220.
Finally, the witnesses for the
Secretary testified that the plans had resulted in miners taking shortcuts
related to safety, particularly in the areas of rock dusting, roof bolting,
equipment checks, and ventilation. Tr. at 51-52, 105-07, 153, 223. They
explained that safety-related maintenance tasks and fixing hazards slowed down
production and so could prevent the crew from receiving the biggest bonus. Tr.
at 49, 107-08, 159, 218. Not only the bonus itself but also peer pressure motivated
miners to move quickly and skip safety steps. Tr. at 50, 106-07.
The local union membership at the
Powhatan No. 6 and Harrison County mines voted against adopting the bonus
plans, and as a result, the plans are no longer in effect at those mines. Jt.
Stips. ¶¶ 52, 53, 56, 57. The plan was discontinued as a result of arbitration
at the Marion County Mine. Jt. Stips. ¶¶ 48, 49. The plans remain in effect at
the Monongalia, Ohio County, and Marshall County mines. Jt. Stips. ¶¶ 38, 42,
45.
II.
ANALYSIS
The prohibition against interference
is established in Section 105(c)(1) of the Mine Act, which 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 Act 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 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 Act.
30 U.S.C. § 815(c)(1) (emphasis added). Section 105(c)(2)
permits a miner or his representative to file a discrimination complaint with
the Secretary if he believes “that he has been discharged, interfered with, or
otherwise discriminated against” in violation of the Mine Act. 30 U.S.C. §
815(c)(2).
A majority of the Commission has recognized that
“the Mine Act establishes a cause of action for unjustified interference with
the exercise of protected rights which is separate from the more usual
intentional discrimination claims evaluated under the Pasula-Robinette
framework.” UMWA on behalf of Franks v. Emerald Coal Res., LP, 36 FMSHRC
2088, 2103 n.22 (Aug. 2014) (Young & Cohen, Comm’rs), vacated, 620
Fed. Appx. 127 (3d Cir. 2015); id. at 2105-07 (Jordan & Nakamura,
Comm’rs). To make out a claim of discrimination under the Pasula-Robinette
framework, an employee must prove that he engaged in protected activity and
suffered an adverse employment action motivated at least in part by the
protected activity. Turner v. Nat’l Cement Co. of Cal., 33 FMSHRC 1059,
1064 (May 2011); Sec’y of Labor on behalf of Pasula v. Consol. Coal Co.,
2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds sub nom. Consol.
Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr.
1981). In contrast, in interference cases, the Commission has accepted claims
where the complainant did not actually engage in protected activity or where
the conduct complained of was verbal harassment rather than a classic adverse
employment action. See Sec’y of Labor on behalf of Gray v. N. Star Mining,
Inc., 27 FMSHRC 1 (Jan. 2005); Moses v. Whitley Dev. Corp., 4 FMSHRC
1475 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985). In these cases,
the Commission has focused not on the employer’s motive, but rather on whether
the conduct would “chill the exercise of protected rights,” either by the
directly affected miner or by others at the mine. Gray, 27 FMSHRC at 8; Moses,
4 FMSHRC at 1478-79.
Although the Commission as a whole
has not outlined a framework for analyzing interference claims, two
Commissioners recently proposed a framework that has since been adopted by
several of the Commission’s Administrative Law Judges. Franks, 36 FMSHRC
at 2108 (Jordan & Nakamura, Comm’rs); see Sec’y of Labor on
behalf of McGary v. Marshall Cty. Coal Co., 37 FMSHRC 2597, 2603-04 (Nov.
2015) (ALJ); McGlothlin v. Dominion Coal Corp., 37 FMSHRC 1256, 1264-65
(June 2015) (ALJ); Pendley v. Highland Mining Co., 37 FMSHRC 301, 309-11
(Feb. 2015) (ALJ). Under the Franks test, an interference violation
occurs if:
(1) a person’s
action can be reasonably viewed, from the perspective of members of the
protected class and under the totality of the circumstances, as tending to
interfere with the exercise of protected rights, and
(2) the person
fails to justify the action with a legitimate and substantial reason whose
importance outweighs the harm caused to the exercise of protected rights.
Franks, 36 FMSHRC at 2108. This approach is
consistent with Commission precedent addressing interference with employee
rights, in which the Commission has focused on the effect of the employer’s
conduct on employees’ exercise of protected rights rather than on the motive
behind the employer’s conduct. See Gray, 27 FMSHRC at 9 (analyzing
whether employer’s statements were coercive based on reasonable inferences of
the miner); Moses, 4 FMSHRC at 1479 (holding that actions constituted
interference because they “could logically result in a fear of reprisal and a
reluctance to exercise the right in the future”).
The framework proposed in Franks is
similar to that used by the National Labor Relations Board (NLRB) in cases
involving the interference provision of the National Labor Relations Act (NLRA).
Section 8(a)(1) of the NLRA provides that “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 7 of the Act. 29 U.S.C. § 158(a)(1). In
evaluating Section 8(a)(1) claims, “the Board first examines whether the
employer’s conduct reasonably tended to interfere with Section 7 rights. If so,
the burden is on the employer to demonstrate a legitimate and substantial
business justification for its conduct.” Cal. Newspapers P’ship, 343 N.L.R.B.
564, 565 (2004). The analysis “does not turn on the employer’s motive or on
whether the coercion succeeded or failed.” Am. Freightways Co., Inc.,
124 N.L.R.B. 146, 147 (1959); see also Medeco Sec. Locks, Inc. v. NLRB,
142 F.3d 733, 747 (4th Cir. 1998). Rather, the question is “whether the
employer engaged in conduct which, it may reasonably be said, tends to
interfere with the free exercise of employee rights under the [NLRA].” American
Freightways, 124 N.L.R.B. at 147. If the employer produces a “legitimate
and substantial business justification” for its action, the Board must then
“strike the proper balance between the asserted business justifications and the
invasion of employee rights in light of the [NLRA] and its policy.” NLRB v.
Fleetwood Trailer Co., Inc., 389 U.S. 375, 378 (1967); Cal. Newspapers
P’ship, 343 N.L.R.B. at 565.
Respondents urge the Court to instead apply the
test for interference used in a 2001 ALJ decision, Secretary of Labor on
behalf of Feagins v. Decker Coal Co., 23 FMSHRC 47 (Jan. 2001) (ALJ). Resp.
Br. at 9. Under the Decker test, the complainant must prove either that
“the challenged action was taken with the intent to damage or deny rights
assured under the Act” or that there is a causal relationship—that is,
“exercise of a protected right[] is the acknowledged cause of damage to the person attempting to
exercise the protected right.” 23 FMSHRC at 50. This test is rooted in the
statutory language of Section 105(c), which prohibits “interfere[nce] with the
exercise of the statutory rights of any miner … because of the exercise
by such miner … of any statutory right afforded by” the Act. 30 U.S.C. §
815(c)(1) (emphasis added). However, the Commission in Gray rejected a
“literal interpretation” of Section 105(c)(1), which “might require the actual
or attempted exercise of a right before the protection of [that section] comes
into play.” 4 FMSHRC at 1480. Instead, the Commission has focused on the likely
effect of an operator’s actions on the future exercise of rights by miners. See
Gray, 27 FMSHRC at 9; Moses, 4 FMSHRC at 1478-79. Additionally, the
Commission suggested in Gray that intent is not a necessary element of
an interference claim, finding that the judge erred by focusing primarily on
the intent behind a supervisor’s statements to a miner. 27 FMSHRC at 10.
The Commission’s approach is
consistent with NLRB cases involving interference, which do not require proof that
the employee actually attempted to exercise a protected right. See, e.g., Medeco,
142 F.3d at 745 (“An employer’s coercive action affects protected rights
whenever it can have a deterrent effect on protected activity. This is true
even if an employee has yet to exercise a right protected by the Act.”); Jeannette
Corp. v. NLRB, 532 F.2d 916, 918 (3d Cir. 1976) (holding work rule invalid
under Section 8(a)(1) because of its “tendency to inhibit” protected activity
without deciding whether protected activity in fact occurred). Further, it is
well established under NLRA case law that unlawful motive is not a necessary
element of an interference claim. See NLRB v. Burnup & Sims, Inc.,
379 U.S. 21, 22-23 (1964); Am. Freightways Co., 124 N.L.R.B. 146, 147
(1959). I find that the test used in Decker Coal does not accurately
reflect the Commission’s current approach to interference, and thus reject the
Respondent’s argument to apply it here.
a. Interference
with Protected Rights
The Commission has recognized
conduct as tending to interfere with the exercise of protected rights on a
number of occasions. In Moses v. Whitley Development Corp., the
Commission found that coercive interrogation and harassment of a miner after an
accident report was made at the mine constituted interference because it could
chill the exercise of protected rights by miners. 4 FMSHRC 1475, 1478-79 (Aug.
1982), aff’d, 770 F.2d 168 (6th Cir. 1985). Two Commissioners came to a
similar conclusion in Franks, where two miners were interrogated and
suspended after a safety complaint was made at the mine. UMWA on behalf of
Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2104 (Aug. 2014) (Jordan
& Nakamura, Comm’rs) (finding that the actions could have a chilling effect
on miners’ willingness to make complaints in the future), vacated, 620
Fed. Appx. 127 (3d Cir. 2015). Finally, in Gray, the Commission determined
that potentially threatening comments made by a supervisor about an employee’s
participation in a grand jury proceeding could constitute interference if the
judge found that the comments were coercive in light of the totality of
circumstances. Sec’y of Labor on behalf of Gray v. N. Star Mining, Inc.,
27 FMSHRC 1, 10-11 (Jan. 2005).
A number of ALJ decisions have also addressed
the issue of interference. These cases have primarily involved threatening or
harassing behaviors towards miners in relation to safety complaints. See
e.g. Pendley v. Highland Mining Co., 37 FMSHRC 301 (Feb. 2015) (ALJ)
(finding that interference occurred when coworker verbally and physically
harassed miners’ representative while he exercised his walk-around rights); Shemwell
v. Armstrong Coal Co., 36 FMSHRC 2352 (Aug. 2014) (ALJ) (finding that
interference occurred where supervisor told miner it was futile to make safety
complaints and encouraged other employees to build a record against the miner
after he made a complaint); Sec’y of Labor on behalf of Clapp v. Cordero
Mining, LLC, 33 FMSHRC 2977 (Dec. 2011) (ALJ), aff’d, 699 F.3d 1232
(10th Cir. 2012) (noting that threatening comments made to an employee after
she made a safety complaint were interference, but resolving case under
discrimination provision because she was actually discharged). The issue of a
work rule or policy that interferes with employee rights was addressed in Secretary
of Labor on behalf of McGary v. Marshall County Coal Co., 37 FMSHRC 2597
(Nov. 2015) (ALJ). In that case, the ALJ found that a mine operator interfered
with employee rights to make complaints to MSHA when the operator required
employees to report all safety complaints to mine management and announced the
policy in a speech by the CEO threatening closure of the mine. Id. at
2606-07.
In addition to these cases, the Commission has
recognized that “case law interpreting the National Labor Relations Act, upon
which the Mine Act’s antidiscrimination provisions are modeled, provides
guidance on resolution of discrimination issues.” Sec’y of Labor on behalf
of Johnson v. Jim Walter Res., 18 FMSHRC 552, 558 n.11 (1996); Delisio
v. Mathies Coal Co., 12 FMSHRC 2535, 2542-43 (Dec. 1990); see also Gray,
27 FMSHRC at 9-10 (reviewing NLRB precedent in discussion of interference
provision). Courts interpreting the NLRA have determined that conferral of a benefit
on employees can constitute interference under Section 8(a)(1) if the benefit
is withheld from employees who exercise a protected right. For instance, in NLRB
v. Rubatex Corp., the Fourth Circuit determined that a company interfered
with employees’ right to strike when it paid a $100 bonus to employees who worked
through a strike. 601 F.2d 147, 150 (4th Cir. 1979). Similarly, in Lynn-Edwards
Corp., the NLRB held that interference occurred when a company included a
provision in its retirement plan suggesting that coverage would be withdrawn if
employees unionized. 290 N.L.R.B. 202, 205 (1988); see also Torbitt &
Castleman, Inc. v. NLRB, 123 F.3d 899, 907 (6th Cir. 1997) (holding
that solicitation of grievances during union campaign violates Section 8(a)(1)
if employer suggests that grievances will only be resolved if employees reject
union representation).
Respondents’ bonus plans promise bonuses ranging
from $50 to $250 per shift (or less for outby employees) based on the amount of
coal produced. Jt. Exs. 20-25. Testimony 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. Because the bonus is based on the amount
of coal produced by the crew as a whole, each worker feels pressure to work as
fast as possible so as not to take away from potential bonuses for the other
workers. The result is that miners take shortcuts that affect safety and result
in a denial of the plan benefits to miners who exercise their rights under the
Mine Act. Several witnesses described seeing areas that were not adequately
rock dusted because miners were in a hurry, or where additional roof bolts
should have been installed but were not. Tr. at 51-52, 105-06, 153, 217-18. These
safety-related tasks take additional time, and miners are therefore reluctant
to do them under the bonus plans because they are less likely to achieve the
production goals. Tr. at 119.
In addition to creating a climate adverse
to safety, the bonus plans affect miners’ willingness to exercise specific rights
under the Act. The Commission has observed that in framing the Mine Act,
Congress believed that the “participation [of miners] in the enforcement of the
Act is essential to the achievement of safe and healthful mines.” Sec’y of
Labor on behalf of Pasula v. Consol. Coal Co., 2 FMSHRC 2786, 2790 (Oct.
1980), rev’d on other grounds sub nom. Consol. Coal Co. v. Marshall, 663
F.2d 1211 (3d Cir. 1981). Thus, the Act gives miners the right to notify MSHA
officials or the operator of unsafe conditions or practices in the mine that
require attention. See id.; 30 U.S.C. §§ 813(g)(1), 815(c)(1). The
Commission has determined that miners also have the right to refuse to work in
conditions that threaten their health or safety as well as to report injuries
and accidents to the operator. Pasula, 2 FMSHRC at 2790-93; Swift v.
Consol. Coal Co., 16 FMSHRC 201, 205 (Feb. 1994). Yet, under the bonus
plan, a miner who refuses to work, along with everyone else on his crew, will
not receive the benefit of a bonus. Finally, the Act provides that when MSHA
conducts an inspection of the mine, a representative of the miners at the mine
“shall be given an opportunity to accompany the Secretary or his authorized
representative . . . .” 30 U.S.C. § 813(f). If the representative of miners is
an employee of the operator, the Act guarantees that he “shall suffer no loss
of pay during the period of his participation in the inspection . . . .” Id.
The right to accompany an inspector is frequently referred to as the
“walk-around right.” The Secretary alleges that the bonus plans at issue here
interfere with all of these rights. First Amended Comp. at 16-19.
The Secretary’s witnesses at
hearing explained that miners are 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. [2]
Tr. at 50, 251. Further, the bonus plans disqualify a crew working on a section
from receiving the bonus if an MSHA inspector issues an S&S citation during
any shift on that section that day. Jt. Exs. 20-25. If a withdrawal order under
Section 104(d) or 104(b) is issued to a section and is attributable to the
crews working on that section, all the crews on that section are disqualified
from receiving the bonus for seven consecutive days. Id. The effect of these
provisions is to penalize miners who make safety complaints to MSHA, since a
complaint to MSHA that results in a violation will prevent the miner from
receiving the bonus. The provisions also create peer pressure against making
complaints, since the entire crew loses the bonus if a violation is found. The witnesses
described instances of miners being unwilling to report violations because of a
desire to keep the bonus. Tr. at 112, 114, 141, 158. Representatives from the
safety committees at the mines reported that miners were reporting fewer
violations and were less likely to bring up safety concerns when asked. Tr. at
158, 166.
Respondents argue that under the
bonus plans, “there is no correlation between reporting rights under the Mine
Act and the disqualification provisions.” Resp. Br. at 15. They contend that “there
is absolutely no correlation between the act of reporting and the issuance of a
citation or order resulting from a hazard in the mine.” Id. But in fact
there is an obvious correlation: when a miner reports a hazard to MSHA, the
hazard is substantially more likely to be discovered by an MSHA inspector and thus
result in a citation than if the miner were to ignore the hazard and wait for
someone else to address it. Thus, the miner who reports the violation, along
with his co-workers, are more likely to be disqualified from the bonus that
day. The provision disqualifying miners from bonuses for S&S violations is
analogous to the situation in the NLRB case Rubatex Corp., in which a
bonus was offered to employees who worked through a strike. 601 F.2d at 150. Employees
who exercise their statutory right are less likely to receive the bonus, and
therefore are discouraged from exercising the right. This is interference with
a protected right under Section 105(c).
The bonus plans provide for
different levels of bonuses for miners working on production crews at the face
and those working outby. Employees working outby receive only ten percent of
what the production sections on their shift earned. Jt. Exs. 20-25. The miner
witnesses testified that this provision has affected miners’ willingness to
serve as walk-around representatives during inspections of the mine. See
30 U.S.C. § 813(f). The witnesses explained that under the bonus plan, miners
who serve as walk-around representatives are treated as outby employees. Tr. at
46, 178, 243, 283. Union representatives from the mines testified that they had
difficulty finding miners to walk with inspectors after the plans were
implemented because the miners did not want to miss out on the larger bonus. Tr.
at 46-47, 152. Although a miner who typically works outby would earn the same
bonus if he walked with an inspector, a miner who typically works in the
production area could see a substantial difference in pay. Section 103(f)
specifically guarantees that a miner serving as a walk-around representative
“shall suffer no loss of pay during the period of his participation in the
inspection.” 30 U.S.C. § 813(f). Respondents argue that there would be no loss
of pay if a production crew member served as a representative, since there is
no guarantee that production crew members will earn a bonus every shift. Resp.
Br. at 16. In some circumstances, the bonus earned by a miner on walk-around
could even be higher than what he would have earned working on the production
crew. Id. But I find that this would make little if any difference to a
miner considering whether or not to act as a walk-around representative. There
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.
Finally, the bonus plans provide
that if a “lost time accident” occurs that incapacitates a crew member, the
entire crew is disqualified from receiving the bonus for that shift. Jt. Exs.
20-25. Several witnesses had observed or heard about miners deciding not to
report injuries they sustained on the job that they otherwise would have
reported, instead choosing to “rough it out” so they and their coworkers would
not lose the bonus for the shift. Tr. at 54-55, 112. A miner’s right to report
injuries to the operator is essential to the “free flow of information” about
the conditions at a mine, and the bonus plans have undermined that arrangement
at these mines. See Swift, 16 FMSHRC at 205. A miner who incurs a
“lost time” injury must choose between exercising his right to report the
injury and getting a bonus. This is an impermissible burden on his right to
report.
Respondents place much emphasis in
their brief on the Commission’s decision in Swift v. Consolidation Coal Co.,
16 FMSHRC 201 (1994). In that case, the Secretary argued that a program that
penalized miners who sustained injuries on the job interfered with miners’
rights to report injuries. Id. at 202-03. The Commission found that the program
did not on its face violate Section 105(c). Id. at 208. However, the
Commission noted that the case did not involve any evidence of actual negative
effects on miners’ exercise of their rights. Id. at 207 n.6. In this
case, by contrast, the Secretary has presented ample evidence of actual
interference. Additionally, Swift was decided as a 105(c) discrimination
case rather than an interference case, and thus is distinguishable from the
case at hand. See id. at 205-06.
The evidence presented at hearing demonstrates
that the bonus plans discourage miners from exercising their rights to make
safety complaints, report injuries, and serve as walk-around representatives. However,
Respondents argue that a miner who decides not to report an injury or safety
violation or who otherwise disregards safety is not acting “reasonably,” and therefore
any effect the plans have on miners’ exercise of their rights should not be
considered interference. Resp. Br. at 21-23. Rather, Respondents argue that the
“reasonable miners” relevant to the case are the Secretary’s witnesses at
hearing, who testified that they were not affected by the financial incentives
in the bonus plans or by peer pressure to disregard their safety rights. Id.
at 23. I do not find merit to this argument. First, the miners who testified
gave a number of examples of how the plan interfered with miners, and even if
some of those who testified were not swayed by the bonus, they observed and
talked to others who were. The appropriate inquiry under the Franks test
is whether the actions of the operator in instituting the plan could reasonably
be viewed, from the perspective of members of the protected class and under the
totality of the circumstances, as tending to interfere with the rights of the
miners. The Secretary presented sufficient evidence to demonstrate that a
reasonable miner would in fact be swayed by the promise of additional income to
sidestep some safety precautions. The Commission has clearly expressed that
“reasonable miners” can be dissuaded from exercising their rights in some
instances of extreme pressure. See Gray, 27 FMSHRC at 9-10; Moses,
4 FMSHRC at 1478-79 (“Such actions may not only chill the exercise of protected
rights by the directly affected miners, but may also cause other miners, who
wish to avoid similar treatment, to refrain from asserting their rights.”).
While the Secretary has the burden
of proof in this case, the Respondents had the opportunity to present evidence
on any issue raised by the Secretary, including the effect the plan had on
miners. Respondents raise issues about how reasonable miners reacted to the
plan, yet Respondents called no witnesses and provided no other evidence to the
contrary. The Secretary, on the other hand, has demonstrated the strong effect
of the bonus plans on miners’ behavior. While the bonus amounts are not
extraordinarily large, the amounts for production crewmembers are large enough
to matter to most miners. Tr. at 163. The witnesses at 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. A
reasonable miner would be dissuaded from exercising his rights in this
situation. Therefore, the bonus plans interfere with the protected rights of
miners.
b. Legitimate
and Substantial Reason
Under the Franks framework,
if it is determined that a mine operator’s conduct interfered with the
protected rights of miners, the inquiry proceeds to whether the operator had a “legitimate
and substantial reason” for the action “whose importance outweighs the harm
caused to the exercise of protected rights.” UMWA on behalf of Franks v.
Emerald Coal Res., LP, 36 FMSHRC 2088, 2108 (Aug. 2014) (Jordan &
Nakamura, Comm’rs), vacated, 620 Fed. Appx. 127 (3d Cir. 2015). Franks
involved the coercive interrogation and ultimate suspension of two miners
after a safety complaint was made at the mine. Id. at 2113-16. The
operator justified its actions by arguing that it had a responsibility to
investigate safety complaints at the mine. Id. at 2116. While the Commissioners
agreed that this was an “important interest,” they noted that the operator could
have obtained the information it sought through other means, particularly
through speaking with the union safety committeeman. Id. at 2117. The
operator’s interest therefore did not outweigh the potentially long-term negative
consequence of discouraging miners from making safety complaints. Id. at
2117.
In NLRB cases,
courts typically take a similar approach of requiring that the employer’s
conduct be calibrated so as to minimize the effect on employee rights. See,
e.g., Hyundai Am. Shipping Agency, Inc. v. NLRB, 805 F.3d 309, 314
(D.C. Cir. 2015) (blanket confidentiality rule on all matters under
investigation by employer was overbroad); Consol. Diesel Co. v. NLRB,
263 F.3d 345, 353-54 (4th Cir. 2001) (investigation of employees for harassment
after they discussed union with coworkers not justified by interest in
maintaining harmonious workplace because effect on rights too great); Medeco
Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 747 (4th Cir. 1998) (confidentiality
term in contract with employee that interfered with his right to discuss
conditions of employment with coworkers not justified by interest in preventing
misinformation among employees, since providing accurate information would have
served the same purpose); Jeannette Corp. v. NLRB, 532 F.2d 916, 919 (3d
Cir. 1976) (rule prohibiting discussion of wages not justified by desire to
keep employees working during work hours, since it applied all the time). Courts
are more likely to find an employer’s substantial business justification to be
persuasive when the employer’s interest is important and the impact on employee
rights is minimal. See, e.g., Desert Palace, Inc., 336 N.L.R.B.
271, 272 (2011) (confidentiality policy regarding an investigation of drug
activity at workplace justified as means of protecting witnesses and preserving
evidence); Cal. Newspapers P’ship, 343 N.L.R.B. 564, 565-66 (2004)
(editors who informally reprimanded reporter for speaking to city council about
union had legitimate interest in protecting newspaper from appearance of
conflict of interest, which outweighed impact on employee). Tenuous or
speculative benefits are insufficient to justify interference. See, e.g.,
Nat’l Steel & Shipbuilding Co. v. NLRB, 156 F.3d 1268, 1271-72 (D.C.
Cir. 1998) (employer’s videotape surveillance not justified where it provided
minimal additional security and employer had little reason to suspect
misconduct would occur); Cal. Acrylic Indus., Inc. v. NLRB, 150 F.3d
1095, 1100 (9th Cir. 1998) (anticipation of violence did not justify
surveillance where employer showed no basis for its concern).
Respondents argue that their reason
for implementing the bonus plans was to improve production and safety at the
mines. Resp. Br. at 24; Tr. at 266. Senior Vice President John Forelli
testified that he gathered data on production at the mines after the plans were
implemented to see if it had improved. Tr. at 297. He was unable to reach a
definite conclusion as to whether the plans were effective, in part because he
did not have data from before the plans were implemented. Tr. at 297-301. Murray
also had a system for reviewing safety data that pre-dated the bonus plans. Tr.
at 306. Forelli personally compared safety data from before and after the bonus
plans were implemented to see if the plans had affected safety, but did not
observe any clear patterns. Tr. at 294-95.
A mine
operator certainly has a right to implement programs to assure that miners are
producing at the best rate possible. However, because I have found that the
plans at issue interfere with safety and the rights of miners, they must be
reviewed with a more careful eye. Respondents credibly assert that their
motivation in implementing the plans was to increase production. Respondents
also claim that the bonus plans were tailored so as not to interfere with any
rights under the Mine Act. Resp. Br. at 23. The bonuses are of a moderate size and
are renewed each shift, which Forelli believed would ensure that miners were
not tempted to bypass safety measures. Forelli met with union representatives
before implementing the bonus plans and attempted to address some of their
concerns about safety. Respondents also argue that the provisions disqualifying
miners from earning the bonus for safety violations and injuries were intended
to encourage safety. Resp. Br. at 26. However, the company is unable to show
that the plans have actually been effective at improving or maintaining safety
at the mines. Even more significantly, the company has been unable to establish
that the plans actually resulted in increased production at any of the mines. In
contrast, the harm to miners’ rights is evident. Miners at these mines are
discouraged through peer pressure and personal financial incentives from making
safety complaints, reporting injuries, and serving as walk-around
representatives. These rights are essential to safety at the mines. For the
Mine Act to function as Congress intended, miners must be able to freely
participate in its enforcement scheme. See S. Rep. No. 95-181, at 30
(1977). The uncertain benefits that Respondents put forth do not outweigh these
harms. Accordingly, I find that the bonus plans violate Section 105(c) of the
Mine Act.
III.
PENALTY AND REMEDIES
Section 105(c)(2)
authorizes the Commission to require a person who has committed a violation of
section 105(c)(1) “to take such affirmative action to abate the violation as
the Commission deems appropriate.” 30 U.S.C. § 815(c)(2). The Secretary asks
the Court to order the mines to rescind the bonus plans, post a notice at the
mines for six months reflecting the court-ordered rescission, and mail such
notice to the homes of all miners and all representatives of miners at the
mines. In addition, the Secretary asks the Court to assess a civil penalty of $20,000
for each of the six violations.
The principles
governing the authority of Commission Administrative Law Judges to assess civil
penalties de novo for violations of the Mine Act are well established. Section
110(i) of the Mine Act delegates to the Commission and its judges “authority to
assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The duty
of proposing penalties is delegated to the Secretary. 30 U.S.C. §§ 815(a),
820(a). Thus, when an operator notifies the Secretary that it intends to
challenge a penalty, the Secretary petitions the Commission to assess the
penalty. 29 C.F.R. § 2700.28. The Act requires that in assessing civil monetary
penalties, the judge must consider six statutory penalty criteria: the
operator’s history of violations; its size; whether the operator was negligent;
the effect on the operator’s ability to continue in business; the gravity of
the violation; and whether the violation was abated in good faith. 30 U.S.C. §
820(i). In keeping with this statutory requirement, the Commission has held
that judges must make findings of fact on the statutory penalty criteria. Sellersburg
Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147, 1152
(7th Cir. 1984). Once these findings have been made, a judge’s penalty
assessment for a particular violation is an exercise of discretion “bounded by
proper consideration of the statutory criteria and the deterrent purposes
underlying the Act’s penalty scheme.” Id. at 294; see also Cantera
Green, 22 FMSHRC 616, 620 (May 2000).
In this case, Murray
is considered a large operator for penalty purposes. The gravity of the matters
is serious, as the bonus plans could reasonably threaten safety for all
employees at the mines. The mines have received numerous discrimination
complaints in the past, including a recent interference complaint in which they
were fined $30,000 per mine. The operator was moderately negligent in
instituting the bonus plans. At three of the mines, the plan is no longer in
effect as a result of arbitration initiated by the UMWA. Considering all of the
factors, I find that a $25,000 penalty per mine is appropriate.
IV.
ORDER
Based on my conclusion that the
bonus plans interfered with the protected rights of miners under the Act, Respondents
are ORDERED to rescind the bonus plans that remain in effect and cease
and desist from implementing any other similar plans. Respondents are further ORDERED
to post a notice at each of the six mines for a period of six months. The
Notice shall be no smaller than 10” by 13”, on white paper with clear lettering
in a font over 12-point, and shall indicate that miners have a right to file
any claim of interference without fear of harassment or retaliation, that the
bonus plans are rescinded effective immediately, that the mine has interfered
with the rights of miners in putting the plans in place, and that all bonuses
earned up until that date will be paid as promised. The notice shall be posted,
within 30 days, in a conspicuous place in at least two locations at each mine where
it is available to all miners on all shifts.
Finally, within 40 days of the date
of this decision, Respondents are ORDERED to pay a civil penalty of $150,000
to the Secretary of Labor.
/s/ Margaret
A. Miller
Margaret A. Miller
Administrative Law Judge
Distribution: (U.S. First Class Certified Mail)
Anthony Jones, Jordana Greenwald,
Philip Mayor, U.S. Department of Labor, Office of the Solicitor, 201 12th
Street South, Suite 401, Arlington, VA 22202
Philip K. Kontul, Thomas A.
Smock, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., One PPG Place, Suite
1900, Pittsburgh, PA 15222
Art Traynor, Laura Karr, United
Mine Workers of America, 18354 Quantico Gateway Drive, Suite 200, Triangle, VA
22172
[1]
Respondents argue that the Secretary failed to present any witness testimony
regarding the effects of the plans at three of the mines. Resp. Br. at 28-29. At
hearing, I did not allow the Secretary to put on several witnesses whose
testimony I believed would be cumulative. I find that, in view of the
similarity of the plans, the testimony of the witnesses at hearing was
probative as to the effects of the plans at all of the mines, and the testimony
of additional witnesses was not necessary. This manner of accepting testimony
of a representative number of employees has been approved for many years in
other employment related actions. Courts overwhelmingly recognize the propriety
of using representative testimony to establish a pattern of violations that
include similarly situated employees who did not testify. 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) (“[I]t is well-established that the Secretary
may present the testimony
of a representative sample of employees as part of his proof of the prima facie
case under the FLSA.”); Reich v. Gateway Press, Inc., 13 F.3d 685, 701 (3d Cir.1994)
(“Courts commonly allow representative employees to prove violations with
respect to all employees.”); Brock v. Tony & Susan Alamo
Found., 842 F.2d
1018, 1019–20 (8th Cir.1988)
[2]
Respondents argue that much of the Secretary’s evidence about the impact of the
bonus plans on miners was in the form of inadmissible hearsay testimony. Resp.
Br. at 18-20. Respondents also argue that they did not have the opportunity to
cross-examine witnesses when information was provided through hearsay. Id.
at 19. I reject these arguments for several reasons. First, pursuant to the
Commission’s Rules of Procedure, hearsay testimony is admissible when relevant.
30 C.F.R. § 2700.63. Here, the testimony was based on first-hand conversations
and observations, and with few exceptions was not only reliable but relevant. Next,
much of the hearsay testimony to which Respondents objected went to the state
of mind of miners with regard to the plan, which would in most cases be
admissible even under the Federal Rules of Evidence. Fed. R. Evid. 803(3); see,
e.g., Tr. at 141, 152. Finally, counsel for the respondents put on no
evidence to refute the hearsay testimony, nor did they put forth a witness who
was not adversely affected by the bonus plans. The Secretary argues
persuasively that admitting hearsay testimony serves the Mine Act’s goal of
protecting miner informants, which is necessary in an interference case where
miners may feel intimidated. Sec’y Br. at 28 (citing Revelation Energy, LLC,
36 FMSHRC 1581, 1599 (June 2014) (ALJ)). I do not find that the Secretary’s use
of hearsay evidence was problematic here.
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