Secretary of Labor o/b/o Perry Poddey v. Tanglewood Energy, Inc.

Plain-English summary

Tanglewood Energy operated an underground coal mine where a scoop's emergency-parking brake repeatedly became ineffective after its securing bolt loosened. Miner Perry Poddey reported the problem to mine personnel and an MSHA inspector, then was discharged after confronting a foreman about the incident. The Commission affirmed the findings of low negligence and low gravity, but vacated the $100 penalty and remanded for additional findings about Tanglewood's history of violations. It also reversed the deduction of unemployment compensation from Poddey's back-pay award.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.523-3(a); 30 U.S.C. §§ 815(c)(1), 815(c)(2), and 815(c)(3)
• Outcome: The low-negligence and low-gravity findings were affirmed, the $100 penalty was vacated and remanded for reassessment, and the unemployment-compensation deduction from back pay was reversed.
• Key point: In a Mine Act discrimination case, the Commission required a supported penalty assessment and held that unemployment compensation should not be deducted from the miner's back pay.

Full text (FMSHRC public release)

+FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                       August 5, 1996

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
on behalf of PERRY PODDEY :
:
v. : Docket No. WEVA 93-339-D
:
TANGLEWOOD ENERGY, INC. :

BEFORE: Holen, Marks and Riley, Commissioners1

                                          DECISION

BY: Riley, Commissioner2

    This discrimination proceeding, arising under the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”), raises the question of whether
Administrative Law Judge Arthur Amchan properly considered and applied certain penalty criteria
in section 110(i) of the Mine Act3 in assessing a $100 civil penalty against Tanglewood Energy,

   1
     Chairman Jordan has recused herself in this matter. Pursuant to section 113(c) of the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 823(c), Commissioners Holen, Marks
and I have designated ourselves a panel of three Commissioners to exercise the powers of the
Commission.
2
I am the only Commissioner in the majority on all issues presented.
3
Section 110(i) sets forth six criteria for assessment of penalties under the Act.

                    The Commission shall have authority to assess all civil
            penalties provided in [the Act]. In assessing civil monetary
            penalties, the Commission shall consider the operator’s history of
            previous violations, the appropriateness of such penalty to the size
            of the business of the operator charged, whether the operator was
            negligent, the effect on the operator’s ability to continue in
            business, the gravity of the violation, and the demonstrated good
            faith of the person charged in attempting to achieve rapid
            compliance after notification of a violation.


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Inc. (“Tanglewood”) for discharging Perry Poddey in violation of section 105(c)(1) of the Mine
Act, 30 U.S.C. § 815(c)(1), and whether the judge erred in deducting unemployment
compensation from back pay he awarded Poddey.4 15 FMSHRC 2401 (November 1993) (ALJ).
For the reasons that follow, the Commission vacates the penalty and remands for assessment
consistent with this decision, and reverses the judge’s deduction of unemployment compensation.

                                             I.

                            Factual and Procedural Background

    Tanglewood operates the Coal Bank 12 Mine, an underground coal mine in Randolph

County, West Virginia. On November 3, 1992, Kenneth Tenney, an inspector from the
Department of Labor’s Mine Safety and Health Administration (“MSHA”), issued a citation to
Tanglewood alleging a violation of 30 C.F.R. § 75.523-3(a) (1995) because a scoop operated by
Poddey was not equipped with an automatic emergency-parking brake.5 15 FMSHRC at 2403;
Gov’t Ex. 1. Although the brake was subsequently installed, the bolt securing it to the scoop
repeatedly became loose, rendering the brake ineffective. Id. at 2403-04. Poddey reported the
problem to the operator’s mechanic, Doug McCoy, who tightened the bolt on several occasions.
Id. at 2404. On January 4, 1993, Poddey again reported the problem to McCoy and to Section
Foreman Jeff Simmons, suggesting installation of a second bolt on the brake assembly. Id. The
maintenance crew was informed of the request, but the work was not performed before the
following morning. Id.

    On January 5, Inspector Tenney inspected the scoop and discovered that the brake was

inoperable. Id. Poddey informed him that the brake assembly bolt was loose and that he had
previously reported the problem. Id. The inspector issued a citation alleging a violation of
section 75.523-3(a). Id.; Gov’t Ex. 3.

30 U.S.C. § 820(i).
4
Section 105(c)(1) provides in part:

                   No person shall discharge or in any manner discriminate
           against or cause to be discharged or cause discrimination against or
           otherwise interfere with the exercise of statutory rights of any
           miner . . . because such miner . . . has filed or made a complaint
           under or related to this [Act], including a complaint notifying the
           operator . . . of an alleged danger or safety or health violation in a
           coal or other mine . . . .

30 U.S.C. § 815(c)(1).
5
Section 75.523-3(a) provides in part that, “[e]xcept for personnel carriers, rubber-tired,
self-propelled electric haulage equipment used in the active workings of underground coal mines
shall be equipped with automatic emergency-parking brakes . . . .”

                                             2

Page 3

    At the end of the shift, Simmons installed the second bolt on the brake assembly. 15

FMSHRC at 2404. Simmons later recounted the circumstances surrounding issuance of the
citation to his supervisor, Randy Key, and indicated that Poddey had a month within which to
repair the brake himself. Id. at 2405.

     On January 6, upon reporting to work, Poddey was directed to telephone Key. Id.

During the conversation, Key chastised Poddey for complaining to MSHA and advised him that it
was his responsibility to have installed the bolt. Id. at 2405-06. Poddey then confronted
Simmons, accusing him of falsely informing Key that he had deliberately reported the brake
problem to MSHA. Id. at 2406. Poddey told Simmons that if the foreman had a problem with
him, they should settle it “outside the gate.” Id.; Tr. I 116.6 Simmons immediately called Key to
inform him of the incident. 15 FMSHRC at 2407. Key traveled to the mine and, at the end of the
shift, discharged Poddey. Id.

    Poddey filed a discrimination complaint with MSHA and the Secretary of Labor filed the

present complaint pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2).7 The
Secretary proposed that a civil penalty be assessed against Tanglewood in the range of $2,500 to
$3,000. S. Amend. Complaint at 3-4. On May 25, 1993, Poddey was temporarily reinstated to
his job. 15 FMSHRC at 2407-08. The matter proceeded to hearing before Judge Amchan.

   The judge determined that Tanglewood had violated section 105(c) by discharging

Poddey. Id. at 2414. He concluded Poddey had engaged in protected activity when he reported
the malfunctioning brake to the mechanic, Simmons and Inspector Tenney, and that Poddey’s
discharge was motivated in part by that protected activity. Id. at 2408-09. He determined that,
although Tanglewood fired Poddey “for what it perceived to be a threat to . . . Simmons, or at

   6
     References to “Tr. I” are to the transcript of the hearing that took place on September 1,

1993; “Tr. II” references are to the September 2 transcript.
7
Section 105(c)(2) provides in part:

                    Any miner . . . who believes that he has been discharged,
            interfered with, or otherwise discriminated against by any person in
            violation of this subsection may, within 60 days after such violation
            occurs, file a complaint with the Secretary alleging such
            discrimination. Upon receipt of such complaint, the Secretary shall
            forward a copy of the complaint to the respondent and shall cause
            such investigation to be made as he deems appropriate. . . . If upon
            such investigation, the Secretary determines that the provisions of
            this subsection have been violated, he shall immediately file a
            complaint with the Commission . . . alleging such discrimination or
            interference and propose an order granting appropriate relief.

30 U.S.C. § 815(c).

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least insubordinate behavior,” Tanglewood had failed to rebut the prima facie case of
discrimination. Id. at 2409, 2414. He reasoned that Poddey had been unjustly blamed for not
repairing the brake, and that Poddey’s invitation to fight Simmons and other remarks did not
forfeit Poddey’s statutory rights to protection from retaliation. Id. at 2409-14.

     The judge determined that, although Tanglewood had a “relatively large number of

previous violations,” assessment of a $100 civil penalty was appropriate based on his findings of
gravity and negligence. Id. at 2415. He reasoned that, while Key and Simmons provoked the
outburst leading to Poddey’s discharge by unjustifiably blaming Poddey for the violation, there
was no evidence that they “did so with the intention of generally discouraging safety complaints
or cooperation with MSHA.” Id. The judge observed that the penalty was warranted nonetheless
because Poddey’s discharge did, in fact, tend to inhibit employees in exercising their rights under
the Act. Id. The judge also ordered Tanglewood to pay Poddey “full backpay and benefits with
interest, less the payments he received in unemployment compensation.” Id. at 2416.

   The Secretary filed a petition for discretionary review, challenging the civil penalty

assessment and backpay award.8

                                              II.

                                         Disposition

   A.       Civil Penalty

            1.      General Principles

    The Commission’s judges are accorded broad discretion in assessing civil penalties under

the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (April 1986). The Commission has
cautioned, however, that the exercise of such discretion is not unbounded and must reflect proper
consideration of the penalty criteria set forth in section 110(i) of the Mine Act. Id., citing
Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (March 1983), aff’d, 736 F.2d 1147 (7th Cir.
1984). In reviewing a judge’s penalty assessment, the Commission must determine whether the
judge’s findings are supported by substantial evidence.9 Assessments “lacking record support,

   8
       Tanglewood declined to file a brief.
   9
       The Commission is bound by the substantial evidence test when reviewing an

administrative law judge’s factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial
evidence” means “such relevant evidence as a reasonable mind might accept as adequate to
support [the judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163
(November 1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). While
the Commission does not lightly overturn a judge’s factual findings and credibility resolutions,
neither is it bound to affirm such determinations if only slight or dubious evidence is present to
support them. See, e.g., Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir.

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infected by plain error, or otherwise constituting an abuse of discretion are not immune from
reversal . . . .” U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984). The judge must make
findings of fact on the criteria that “not only provide the operator with the required notice as to
the basis upon which it is being assessed a particular penalty, but also provide the Commission
and the courts . . . with the necessary foundation upon which to base a determination as to
whether the penalties assessed by the judge are appropriate, excessive, or insufficient.”
Sellersburg, 5 FMSHRC at 292-93.

           2.      Negligence10

    The Secretary argues that, in applying the negligence criterion, the judge should have

considered whether the operator intended to commit the violation of section 105(c) rather than
whether it intended to generally discourage protected activities. S. Br. at 10. The Secretary
asserts that Tanglewood’s violation was intentional, and that the judge “ignored both logic and
the law” in finding low negligence. Id. at 11-12.

    Commissioner Marks and I agree with the Secretary that the proper inquiry before the

judge in his consideration of negligence was whether Tanglewood intended to commit the
violation rather than whether it intended to chill future protected activities. Commissioner Marks
and I disagree, however, that a finding that the operator engaged in certain intentional conduct in
violation of section 105(c) necessarily leads to a determination of high negligence.

    The Commission has previously recognized that a finding of high negligence “suggests an

aggravated lack of care that is more than ordinary negligence.” Eastern Associated Coal Corp.,
13 FMSHRC 178, 187 (February 1991). Although Key’s actions in discharging Poddey were
intentional, there were mitigating circumstances that do not support a finding that such actions
demonstrated an aggravated lack of care. Tanglewood discharged Poddey for what it perceived
to be a threat, or at least insubordinate behavior, toward Simmons. 15 FMSHRC at 2409.
Poddey confronted Simmons, yelling at him, accusing Simmons of lying when he told Key that
Poddey had deliberately informed MSHA about the brake problem, and invited Simmons to fight
“outside the gate.” 15 FMSHRC at 2406-07; Tr. I 116, 273; Tr. II 19-21. In view of these
mitigating circumstances, Commissioner Marks and I conclude that substantial evidence supports

1984); Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980). The
Commission is guided by the settled principle that, in reviewing the whole record, an appellate
tribunal must also consider anything in the record that “fairly detracts” from the weight of the
evidence that supports a challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474,
488 (1951).
10
All Commissioners vote to affirm the judge’s finding of low negligence.
Commissioners Marks and I agree that the proper inquiry before the judge was whether
Tanglewood intended to commit the violation of section 105(c). Commissioner Holen concludes
that the proper inquiry was whether the violation resulted from more than ordinary negligence.
Slip op. at 13 (Commissioner Holen, concurring).

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the judge’s finding that Tanglewood’s violation of section 105(c) involved a low level of
negligence.11 Accordingly, the Commission affirms, in result, the judge’s negligence finding.

           3.      Gravity12

    The Secretary argues that, in determining gravity, the judge erred in considering whether

the operator “intended to ‘generally discourag[e] safety complaints or cooperation with MSHA’”
and that, rather, a chilling effect on protected activities should be presumed for any violation of
section 105(c). S. Br. at 12-15, quoting 15 FMSHRC at 2415. The Secretary submits that the
judge should have considered “what effect on miners the violation in fact created.” Id. at 12. He
asserts that the gravity of Tanglewood’s violation was serious because there was compelling
evidence that Poddey’s discharge had a severe chilling effect on Poddey and other miners at the
No. 12 Coal Bank. Id. at 15-18.

     Contrary to the Secretary’s assertions, it appears that the judge’s reference to the

operator’s intent to discourage safety complaints or cooperation with MSHA was related only to
his consideration of the negligence criterion. Consistent with the Commission’s recent holding in
Secretary of Labor on behalf of Carroll Johnson v. Jim Walter Resources, Inc., 18 FMSHRC
552, 558 (April 1996), Commissioner Holen and I reject the Secretary’s argument that a chilling
effect on protected activities should be presumed for any violation of section 105(c). In Carroll
Johnson, the Commission explained that the Mine Act does not provide for such a presumption
and that references to chilling effect in the legislative history are made in connection with the
temporary reinstatement provision “to protect miners from the adverse and chilling effect of loss
of employment.” Id. (citations omitted). The Commission noted that “Congress intended that
section 105(c) would protect miners against the chilling effect of employment loss they might
suffer as a result of illegal discharge” and that Congress did not intimate that a chilling effect
should be presumed for every violation. Id. The Commission concluded that determinations of
whether a chilling effect resulted from a section 105(c) violation should be made on a case-by-
case basis. Id.

    In making such a determination, the Commission held that both subjective and objective

evidence should be considered and that a finding of chilling effect does not a fortiori mean the
gravity of the violation is high. Id. at 558-59. For objective evidence, the Commission
recognized the appropriateness of considering whether the adverse action “reasonably tended to
discourage miners from engaging in protected activities,” citing by analogy authority relating to
the enforcement of section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1)

   11
       Commissioner Marks and I note that the Secretary in his regulations for proposing civil

penalties defines high negligence in part by the lack of mitigating circumstances. See 30 C.F.R. §
100.3(d).
12
Commissioner Holen and I affirm in result the judge’s finding of low gravity.
Commissioner Marks would recognize a presumption of chilling effect on protected activities in
every instance of a section 105(c) violation and would reverse the judge’s finding of low gravity.

                                             6

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(1994). Id. at 558, citing in part Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946, 954
(D.C. Cir. 1988), cert. denied sub nom. A.G. Boone Co. v. NLRB, 490 U.S. 1065 (1989);
Southwest Regional Joint Bd., Amalgamated Clothing Workers of Am. v. NLRB, 441 F.2d 1027,
1031 (D.C. Cir. 1970). Subjective evidence of a chilling effect includes testimony of the
complainant or other miners. Id. at 559.

     Applying this test, Commissioner Holen and I reject the Secretary’s contention that

Poddey’s discharge created a chilling effect at the mine. The Secretary relies upon Inspector
Tenney’s testimony that, after Poddey’s discharge, he received such comments from miners at
Coal Bank No. 12 as, “Don’t tell anybody I said so.” S. Br. at 16. Such subjective evidence
reveals that, although miners were cautious and wary of retaliation, they were nonetheless
communicating their safety and health concerns. Nor do Commissioner Holen and I find objective
evidence of a chilling effect. As the judge found, “there is no indication that [Tanglewood] would
have so retaliated but for the unusual circumstances of this case.” 15 FMSHRC at 2415.
Because Poddey was discharged in part as a result of his heated confrontation with Simmons, the
discharge would not “reasonably tend[] to discourage miners from engaging in protected
activities.” Carroll Johnson, 18 FMSHRC at 558.

    To the extent the judge found that Poddey’s discharge tended to create a chilling effect

(15 FMSHRC at 2415), Commissioner Holen and I conclude for the reasons discussed above that
such a finding is not supported by substantial evidence. Accordingly, the Commission affirms the
judge’s finding of low gravity.

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           4.      History of Previous Violations13

    The Secretary argues that, although the judge correctly found the operator had a

“relatively large number of previous violations,” the judge erred in failing to give weight to those
violations because there was no evidence of violations of section 105(c). S. Br. at 18. The
Secretary avers that an operator’s complete history of violations should be considered and that the
judge ignored such evidence including that the operator was delinquent in the payment of
penalties, and that numerous prior violations involved “a significant threat to miner safety.” Id. at
18-23.

      All Commissioners agree with the Secretary that the judge’s consideration of previous

violations is not limited to only those involving section 105(c). The Commission has explained
that “section 110(i) requires the judge to consider the operator’s general history of previous
violations . . . . Past violations of all safety and health standards are considered for this
component.” Carroll Johnson, 18 FMSHRC at 557, quoting Peabody Coal Co., 14 FMSHRC
1258, 1264 (August 1992) (emphasis added). All Commissioners disagree with the Secretary,
however, that the judge was required to consider evidence of the operator’s alleged delinquency
in the payment of civil penalties. As the Commission recently held in Secretary of Labor on
behalf of James Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 841, 850 (June 1996), an
operator’s delinquency in regard to payment of civil penalties “is not one of the criteria set forth in
section 110(i) of the Mine Act for consideration in the assessment of penalties.” Commissioner
Holen and I also reject the Secretary’s argument that the judge was constrained to consider the
seriousness of the previous violations. Such consideration is not required by section 110(i) of the
Act or by the Secretary in his regulations for proposing penalties. See, e.g., 30 C.F.R. § 100.3(c).

    Nonetheless, the judge’s terse finding that Tanglewood had “a relatively large number of

previous violations” (15 FMSHRC at 2415) does not provide the necessary foundation for our
review of the appropriateness of the $100 penalty, which was a significant reduction of the $2,500
to $3,000 penalty proposed by the Secretary. See Dolese Bros. Co., 16 FMSHRC 689, 695
(April 1994) (adequate findings are “critical” where a judge assesses a penalty that significantly
departs from that proposed by the Secretary). Accordingly, the Commission vacates the penalty
and remands for the assessment of a civil penalty with further findings.

   13
       All Commissioners remand the judge’s history of previous violations determination for

further findings. All Commissioners reject the Secretary’s argument that the judge erred in failing
to consider the operator’s payment history. Commissioner Holen and I also reject the Secretary’s
argument that the judge was required to consider the seriousness of past violations.
Commissioner Holen further rejects his argument that the judge erred in failing to consider that
the mine had been targeted under MSHA’s Joint Mine Assistance Program.

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   B.       Unemployment Compensation14

    In Meek v. Essroc Corp., 15 FMSHRC 606 (April 1993), a three-member majority of the

Commission adopted as agency policy the deduction of unemployment compensation from
backpay awards. Id. at 618. The majority reasoned that the issue was a matter of agency
discretion and that such a deduction comports with the Mine Act’s goal of making miners whole.
Id. at 616-18. It noted that the “Commission seeks to fashion relief that is just and does not
overcompensate the discriminatee.” Id. at 617 (citation omitted). The majority stated that the
employer would still be required to place the discriminatee in the position he was in but for the
unlawful discrimination, but that the employer should not additionally compensate the miner for
funds that he or she received as earnings for working during the interim or as unemployment
compensation. Id. at 617-18. The majority noted that when “an individual receives
unemployment compensation, his previous employer is, as a result, taxed at an increased rate,
depending upon the degree of experience rating.” Id. at 618 n.11 (citation omitted).

    Commissioner Backley dissented in Meek, concluding that, although the deduction of

unemployment compensation was a matter of agency discretion, the majority had abused its
discretion. Id. at 621. He concluded that the majority had acted arbitrarily by relying upon a
rationale rejected by the Supreme Court in NLRB v. Gullett Gin Co., 340 U.S. 361 (1951).
Commissioner Backley explained that, in finding that the NLRB acted properly within its
discretion by refusing to deduct unemployment compensation from back pay, the Supreme Court
rejected the arguments that unemployment compensation should be treated as earnings or
considered as direct payments from the employer and properly set off against back pay. Id. at
621-22, citing Gullett, 340 U.S. at 363, 364. Commissioner Backley further concluded in his
Meek dissent that the majority’s policy failed to fairly balance the interests of the parties, noting
that by ensuring that “illegally discharged miners not receive a windfall, [the majority] has adopted
a national policy which will at times provide an employer with a windfall” under state
unemployment compensation laws, and that their choice of employer over the victim of
wrongdoing seemed “illogical and unfair.” Id. at 625 (emphasis in original). Commissioner
Backley also noted the majority of courts of appeals have opted not to deduct unemployment
compensation, and that four circuits (the Third, Fourth, Ninth, and Eleventh) have removed the
matter from district court discretion, holding as a matter of law that unemployment compensation
should not be deducted from backpay awards.15 Id. at 623.

   14
       All Commissioners reverse the judge’s deduction of unemployment compensation from

Poddey’s backpay award. Commissioner Marks and I reach our determination based on the
rationale set forth in the dissents in Meek v. Essroc Corp., 15 FMSHRC 606, 621-26 (April
1993), and Secretary of Labor on behalf of Nantz v. Nally & Hamilton Enterprises, Inc., 16
FMSHRC 2208, 2221-29 (November 1994). All Commissioners reverse based on the
applicability of the court’s holding in Secretary of Labor on behalf of Wamsley v. Mutual Mining,
Inc., 80 F.3d 110 (4th Cir. 1996) to the instant case, which arises in the Fourth Circuit.
15
Meek did not appeal the Commission’s decision.

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    In Secretary of Labor on behalf of Nantz v. Nally & Hamilton Enterprises, Inc., 16

FMSHRC 2208 (November 1994), the Commission again considered the appropriateness of
deducting unemployment compensation from backpay awards. Before the Commission, the
Secretary urged the Commission “to adopt Commissioner Backley’s position” in Meek.16 Id. at
2221. Two Commissioners voted to affirm the judge’s decision to deduct unemployment
compensation based on the reasoning and conclusions set forth in Meek. 16 FMSHRC at 2216-

20. Two Commissioners voted to reverse based on the rationale of Commissioner Backley’s
    dissent in Meek.17 Id. at 2221-29. The effect of the tie vote was to let stand the judge’s ruling.
    Id. at 2208 n.1 (citation omitted).

    The Commission’s decision in Nantz was appealed to the U.S. Court of Appeals for the
    Sixth Circuit. The appeal was dismissed on motion, without resolution of the issue of deduction
    of unemployment compensation. Secretary of Labor v. Nally & Hamilton Enterprises, No. 94-
    4325, 6th Cir. (June 21, 1995).

    In Secretary of Labor on behalf of Wamsley v. Mutual Mining, Inc., 80 F.3d 110 (4th Cir.
    

    1996), the court reversed that portion of a Commission administrative law judge’s decision
    directing the Secretary to deduct unemployment compensation from the backpay awards of five
    miners who had been discharged in violation of section 105(c) of the Act. Id. at 116. The
    administrative law judge’s decision had adhered to Meek, 15 FMSHRC at 616-18. Id. at 113. In
    reaching its conclusion, the Court relied upon Martin v. Occupational Safety and Health Review
    Comm’n, 499 U.S. 144 (1991), in which the Supreme Court recognized that the Secretary’s
    reasonable interpretation of a regulation promulgated by the Secretary, pursuant to her authority
    under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (1994) (“OSH
    Act”), was entitled to deference over a reasonable, but conflicting, interpretation by the
    Occupational Safety and Health Review Commission (“OSHRC”). Wamsley, 80 F.3d at 114.
    The Wamsley Court analogized that this Commission, which it considered a “neutral arbiter” that
    possesses “nonpolicy-making adjudicative powers,” should have deferred to the interpretation
    disallowing deduction of unemployment compensation advanced by the Secretary, whom it

    16
    The Secretary was not a party to Meek.
    17
    The dissenting Commissioners also noted that subsequent to the issuance of Meek, the
    Eighth Circuit reversed the district court’s deduction of unemployment compensation from a
    backpay award in a case arising under the Age Discrimination in Employment Act, 29 U.S.C.
    § 621 et seq. (1994), stating in part that, “no circuit that has considered the matter has determined
    that unemployment benefits should, as a general rule, be deducted from backpay awards in
    discrimination cases.” 16 FMSHRC at 2227-28, quoting Gaworski v. ITT Commercial Finance
    Corp., 17 F.3d 1104, 1113 (8th Cir. 1994) (emphasis omitted). The Eighth Circuit joined the
    majority of circuits in holding as a matter of law that unemployment benefits should not be
    deducted from backpay awards. Gaworski, 17 F.3d at 1114.

                                             10
    

Page 11

considered to be endowed with “historical familiarity and policymaking expertise.”18 Id. at 114-
15, quoting Martin, 499 U.S. at 153, 154, 155.19

    In the instant case, Judge Amchan, citing Meek, directed that Poddey’s backpay award be

reduced by the amount of unemployment compensation he had received. 15 FMSHRC at 2416.
Commissioner Marks and I are persuaded by the rationale of the dissents in Meek, 15 FMSHRC
at 621-26, and Nantz, 16 FMSHRC at 2221-29, that unemployment compensation should not be
deducted from backpay awards. Therefore, the Commission’s holding that unemployment
compensation benefits should be deducted, enunciated in Meek and Nantz, is overruled.
Accordingly, the Commission reverses the judge’s deduction of unemployment compensation
from Poddey’s backpay award. Because the instant case arises within the Fourth Circuit, the
court’s holding in Wamsley also requires reversal of the judge’s deduction.

   18
       I do not subscribe to the rationale enunciated by the court in Wamsley. As the

Commission recognized in Drummond Co., 14 FMSHRC 661, 674-75 (May 1992), the “Mine
Act expressly empowers the Commission to grant review of ‘question[s] of law, policy or
discretion,’and to direct review sua sponte of matters that are ‘contrary to . . . Commission
policy’or that present a ‘novel question of policy . . . .’” Id., quoting 30 U.S.C.
§§ 823(d)(2)(A)(ii)(IV) & (B). I agree that, since Congress authorized the Commission to direct
such matters for review, it intended that the Commission possess “the necessary adjudicative
power to resolve them.” Drummond, 14 FMSHRC at 675. I suggest that the Supreme Court
expressly applied its holding in Martin only to the “division of powers between the Secretary and
the Commission under the OSH Act” (499 U.S. at 157) because no comparable policy jurisdiction
was expressly granted to OSHRC. Drummond, 14 FMSHRC at 675 n.15.
19
I observe that the Supreme Court in Martin and the Fourth Circuit in Wamsley reached
their determinations without citing and applying the analytical framework of Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

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                                           III.

                                       Conclusion

    For the reasons discussed above, the Commission affirms in result the judge’s finding of

low negligence, affirms his finding of low gravity, vacates the penalty and remands for assessment
with further findings on the operator’s history of previous violations. The Commission reverses
the judge’s deduction of unemployment compensation from Poddey’s backpay award.

                                                  James C. Riley, Commissioner




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Commissioner Holen, concurring:

    I agree with the majority in result on all issues but disagree with their rationale on the

issues of negligence, history of violations, and the deduction of unemployment compensation from
back pay awards.

                                             I.

                                        Negligence

   Commissioners Marks and Riley conclude that the proper inquiry before the judge in

determining negligence was whether the operator intended to commit the violation. Slip op. at 5.
Although the operator did so intend, they affirm the judge’s conclusion of low negligence only
because there were mitigating circumstances. Slip op. at 5-6.

    I agree in result that the operator’s negligence here was low, but I disagree that the proper

inquiry before the judge was whether the violation resulted from intentional conduct or that an
intentional violation absent mitigating circumstances necessarily establishes high negligence.
Under Commission case law, the proper inquiry as to negligence is whether the violation resulted
from more than ordinary negligence. Higher levels of negligence and unwarrantable conduct are
found only when the operator’s conduct is determined to have been aggravated. In Mettiki Coal
Corp., 13 FMSHRC 760 (May 1991), the Commission stated:

           ‘Highly negligent’conduct involves more than ordinary negligence
           and would appear, on its face, to suggest unwarrantable failure.
           Thus, if an operator has acted in a highly negligent manner with
           respect to a violation, that suggests an aggravated lack of care that
           is more than ordinary negligence.

13 FMSHRC at 770, quoting Eastern Associated Coal Corp., 13 FMSHRC 178, 187 (February
1991). In Mettiki, the Commission found that the operator’s intentional conduct in modifying
electrical equipment, although violative, did not result from high negligence. 13 FMSHRC at
770-71. See also American Mine Services, Inc., 15 FMSHRC 1830, 1831-33 (September 1993),
and cases cited therein.

                                             II.

                                   History of Violations

     I agree with the majority that, in assessing a civil penalty, the judge should consider an

operator’s previous violations of all standards and that an operator’s delinquency in the payment
of civil penalties should not be considered because delinquency is not one of the section 110(i)
criteria. I agree with Commissioner Riley that the judge did not err in failing to consider the
seriousness of the operator’s previous violations because such consideration is not required under
section 110(i) of the Mine Act. Slip op. at 8.

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   The opinion does not address the Secretary’s argument that the judge erred in his penalty

assessment in failing to consider that the mine had been targeted as a problem mine under
MSHA’s Joint Mine Assistance Program. S. Br. at 23. I would reject the Secretary’s argument
because such consideration is not specified under section 110(i). I note, in addition, that such
consideration also is absent from the Secretary’s regulations that govern his penalty proposals. 30
C.F.R. § 100.3.

                                           III.

                       Deduction of Unemployment Compensation

   Commissioners Marks and Riley reverse the judge’s deduction of unemployment

compensation from Mr. Poddey’s back pay award because they disagree with the Commission’s
precedent. Slip op. at 11. I take strong exception to their casual approach in overruling the
Commission’s established law.

    I concur with the majority’s disposition of deduction of unemployment compensation

because I am constrained to do so by the decision of the United States Court of Appeals for the
Fourth Circuit in Secretary of Labor on behalf of Wamsley v. Mutual Mining, Inc., 80 F.3d 110
(4th Cir. 1996). See RNS Services, Inc., 18 FMSHRC 523, 531 (April 1996) (Commissioner
Doyle, concurring). I join Commissioner Riley, however, in respectfully disagreeing with the
court’s reasoning. Slip op. at 11 n.18.

   A.      Wamsley Decision

     In Wamsley, the Fourth Circuit reversed the Commission’s deduction of unemployment

compensation from back pay awards in discrimination cases filed pursuant to section 105(c) of the
Mine Act, 30 U.S.C. § 815(c). The court concluded that the Supreme Court’s decision in Martin
v. Occupational Safety and Health Review Comm’n, 499 U.S. 144 (1991), controlled and it held
that the Commission was required to defer to the Secretary’s interpretation of the Act if it found
that interpretation to be reasonable. 80 F.3d at 114. In so concluding, the court stated that the
Commission’s duties under the Mine Act were those of a “‘neutral arbiter’that possesses
‘nonpolicymaking adjudicatory powers.’” Id., quoting Martin, 499 U.S. at 154, 155. Without
deciding whether the Commission’s or the Secretary’s interpretation was the “correct” one, the
court found that the Secretary’s reading of the Act was “reasonable” and reversed the
Commission. 80 F.3d at 115.

   The Wamsley decision, in my opinion, misinterprets the Commission’s role in

administering the Mine Act. Wamsley also incorrectly applies the Supreme Court’s holding in
Martin.
The Mine Act plainly sets forth the Commission’s authority and responsibility to fashion
remedial relief in discrimination cases:

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Page 15

           The Commission shall afford an opportunity for a hearing . . . , and
           thereafter shall issue an order, based upon findings of fact,
           dismissing or sustaining the complainant’s charges and, if the
           charges are sustained, granting such relief as it deems appropriate,
           including, but not limited to, an order requiring the rehiring or
           reinstatement . . . with back pay and interest or such remedy as may
           be appropriate. . . . Whenever an order is issued sustaining the
           complainant’s charges under this subsection, a sum equal to the
           aggregate amount of all costs and expenses (including attorney’s
           fees) as determined by the Commission to have been reasonably
           incurred by the miner . . . shall be assessed against the person
           committing such violation.

30 U.S.C. § 815(c)(3) (emphasis added). See 30 U.S.C. § 815(c)(2). See also S. Rep. No. 181,
95th Cong., 1st Sess. 37 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 625 (1978) (“Leg. Hist.”). As the Supreme Court stated in Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., where “Congress has directly spoken to
the precise question at issue” and “the intent of Congress is clear, that is the end of the matter.”
467 U.S. 837, 842 (1984). Such unambiguously expressed Congressional intent is present in
sections 105(c)(2) and (3).

    Moreover, the Commission, as the administrative agency vested with authority to decide

Mine Act discrimination complaints, is always present in such proceedings; the Secretary,
however, may or may not be present. Section 105(c)(3) provides that, where the Secretary has
refused to proceed with a discrimination complaint, a miner may file an action on his own behalf
before the Commission, i.e., he may hire private counsel or appear pro se. The Commission’s
paramount role in directing relief in discrimination cases is consistent with its authority
independent of the Secretary in assessing penalties for all violations, including those involving
discrimination against miners. Section 110(i) of the Mine Act provides, “The Commission shall
have authority to assess all civil penalties provided in this [Act].” 30 U.S.C. § 820(i). Similarly,
section 110(k) states that the Secretary may not compromise, mitigate, or settle any proposed
penalty that has been contested without the Commission’s approval. 30 U.S.C. § 820(k).1 E.g.,
Knox County Stone Co., 3 FMSHRC 2478, 2478-82 (November 1981).

   1
      The Mine Act contains other references to the Commission’s role in making policy. For

example, in specifying the procedures for the Commission’s sua sponte review of judges’
decisions, 30 U.S.C. § 823(d)(2)(B) states that the Commission may, in its discretion, grant
review of decisions that “may be contrary to law or Commission policy” or that present a “novel
question of policy.” See Thunder Basin Coal Co. v. Reich, 510 U.S. __, 114 S.Ct. 771, 127
L. Ed. 2d 29, 38 n.9 (1994).

                                             15

Page 16

    At issue in Martin was an ambiguous regulation2 issued by the Secretary under the

Occupational Safety and Health Act (“OSH Act”), 29 U.S.C. § 651 et seq. (1994), and
adjudicated before the Occupational Safety and Health Review Commission. In deferring to the
Secretary’s interpretation of the regulation, the Supreme Court relied on both the Secretary’s role
in drafting it, which placed her in a better position to be familiar with its purpose, and on her role
in enforcing the regulation, which gave her expertise to assess the effect of a particular
interpretation. 499 U.S. at 152-53.

    The issue of deducting unemployment compensation does not involve the choice of

conflicting interpretations of a regulation. Rather, the issue involves interpretation of a remedial
provision of the Mine Act. The Supreme Court’s primary rationale for deferring to the
Secretary’s interpretation of a regulation in Martin is absent here. The Secretary holds no
advantage over the Commission in discerning the meaning of the statutory provision authorizing
the Commission to structure appropriate relief to miners who are victims of discrimination.
Moreover, the Supreme Court in Martin emphasized that its holding was limited to “the division
of powers between the Secretary and the Commission under the OSH Act.”3 499 U.S. at 157.
The Supreme Court stated in Thunder Basin Coal Co. v. Reich that this Commission “was
established as an independent-review body to ‘develop a uniform and comprehensive
interpretation’of the Mine Act.” 510 U.S. __, 114 S.Ct. 771, 127 L. Ed. 2d 29, 42 (1994),
quoting Hearing on the Nomination of Members of the Federal Mine Safety and Health Review
Commission before the Senate Committee on Human Resources, 95th Cong., 2d Sess., 1 (1978).

   The Commission, by a majority of three Commissioners, adopted its policy of subtracting

unemployment compensation from back pay awards in Meek v. Essroc Corp., 15 FMSHRC 606,
616-18 (April 1993).4 The Secretary was not a party to that case, either before the administrative
law judge or before the Commission on review. Thus, even if Wamsley were correct as to
deference, the Secretary had not presented the Commission with a position or interpretation to
which it might defer. Nor was it apparent from other Commission cases dealing with back pay

   2
      The regulation at issue involved the use of respirators by employees who were exposed

to coke oven emissions exceeding certain limits. The employer was charged with failing to assure
that employees were supplied with properly fitting respirators, thereby exposing them to
impermissible emission levels. The Occupational Safety and Health Review Commission
(“OSHRC”) vacated the citation, holding that assurance of a properly fitting respirator was not
required by the regulation cited as the basis for liability but by another regulation. 499 U.S. at
148-49.
3
No policy jurisdiction comparable to that granted to this Commission was expressly
granted to OSHRC. Drummond Co., 14 FMSHRC 661, 674-75 & n.15 (May 1992).
4
The Commission concluded in Meek that it had the authority under the Mine Act’s
remedial scheme “to adopt an appropriate policy concerning the deduction of unemployment
compensation,” Meek, 15 FMSHRC at 616, and that such deduction “is a reasonable and sound
policy that fully effectuates the Mine Act’s goal of making whole miners who have been
wrongfully discharged in violation of the Act,” id. at 618.

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Page 17

awards that the Secretary had established any position on the deduction issue. See, e.g., id. at
618 n.12, citing Secretary of Labor on behalf of Nantz v. Nally & Hamilton Enterprises, Inc., 15
FMSHRC 237, 241 (February 1993) (ALJ); Ross v. Shamrock Coal Co., 15 FMSHRC 972 (June
1993) (complaint filed under section 105(c)(3)). Indeed, in Nantz, the Secretary stipulated that
whether or not unemployment compensation should be deducted from a miner’s back pay award
was within the discretion of the presiding judge. Nantz, 15 FMSHRC at 241. Similarly, when the
Commission extended its policy of reimbursing discriminatees for expenses reasonably incurred in
pursuing their claims, to include wages lost due to attendance at deposition and hearing
(Secretary of Labor on behalf of Carroll Johnson v. Jim Walter Resources, Inc., 18 FMSHRC
552, 560-61 (April 1996)), the Secretary had taken no position on this issue of remedial relief.
The Commission in Carroll Johnson agreed with the argument of the intervenor, United Mine
Workers of America.

    Congress clearly assigned the Commission responsibility in discrimination cases to grant

“such relief as it deems appropriate.” 30 U.S.C. § 815(c)(3). That responsibility does not allow
the Commission to abandon its statutory interpretations adopted in the course of its adjudications
in order to defer to the Secretary when he chooses to offer an interpretation.5

   5
      The Mine Act’s legislative history states, “the Secretary’s interpretations of the law and

regulations shall be given weight by both the Commission and the courts.” Leg. Hist. at 637.
This general admonition, however, does not overcome the statutory provisions of the Mine Act
and the more specific legislative history. Nor can I agree with the Fourth Circuit that the Mine
Act so severely limits the Commission’s review authority that it cannot decide which of two
statutory interpretations is “correct” but simply must adopt the Secretary’s if his interpretation is
“reasonable.” Wamsley, 80 F.3d at 115.

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Page 18

   B.      Reversal of Precedent

     The Commission’s rule of deducting unemployment compensation from back pay awards,

adopted in Meek, 15 FMSHRC at 616-18, was reaffirmed in Ross, 15 FMSHRC at 976-77, and
Secretary of Labor on behalf of Nantz v. Nally & Hamilton Enterprises, Inc., 16 FMSHRC 2208,
2216-20 (November 1994). A majority of two here overrules the Commission’s precedent
because they are “persuaded by the rationale of the dissents in Meek and Nantz.” Slip op. at 11,
citations omitted. Commissioners Marks and Riley change the law according to their policy
preferences, placing little weight on the Commission’s prior holdings.

     In the past, membership changes generally occurred at the Commission without major

disruption to the decisional process or disturbance of earlier holdings. Thus, the Commission
built a sound and stable body of law. When the Commission changed its law, it did so for sound
reasons such as rulings made by the Supreme Court. RBK Construction, Inc., 15 FMSHRC 2099,
2101 (October 1993) (Secretary’s authority to vacate citations is unreviewable based on
Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3 (1985)).

    On the merits of the issue, I would reaffirm Meek. I note, moreover, that it is likely the

state unemployment fund will require Mr. Poddey to repay to it the amount of unemployment
compensation that is restored to him by this decision. See Meek, 15 FMSHRC at 617 n.10.

                                                  Arlene Holen, Commissioner




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Page 19

Commissioner Marks, concurring in part and dissenting in part:

    I concur with my colleagues in the disposition of the negligence criterion.

    With respect to the gravity criterion, Commissioners Holen and Riley have again rejected

the Secretary’s call for Commission recognition that violations of section 105(c) serve to chill
miners’future invocation of protected activities because of a fear of similar adverse action. I
dissent for the same reasons expressed in my dissent in Secretary of Labor on behalf of Carroll
Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 552, 563 (April 1996). I have concluded
that a presumption of a chilling effect should be made in every instance of a section 105(c)
violation.

    With respect to the previous history criterion, I concur with the majority opinion, except

that I do not join Commissioners Holen and Riley in their rejection of the Secretary’s argument
that the judge failed to consider the seriousness of past violations. What is the effect of their
ruling? Are our judges now relegated to merely counting the number of previous violations with
no consideration given to the circumstances surrounding the past violations? Do my colleagues
conclude that all violations are fungible? Certainly no one could dispute that a previous history of
ten roof control violations resulting in injury and loss of life is far more significant than a previous
history of twenty roof control violations that arose because specific plan provisions were not
followed, e.g., bolting pattern deficiencies that posed non-S&S risks. Their lapse of judgement is
serious. It is clearly relevant and most important for the trial judge to be made aware of and to
consider, not only the quantity of past instances of violation, but also any circumstances that may
suggest that such past violations constituted serious health or safety threats to miners.

    I am in agreement with the majority disposition regarding the unemployment

compensation issue. However, because of the views espoused by Commissioner Holen and the
notation of Commissioner Riley, I am compelled to set forth the following to ensure that the
Commission’s institutional integrity be maintained.

    Both of my colleagues have an apparent difficulty embracing the concept that this

Commission has the obligation to defer to the Secretary’s reasonable statutory interpretations as
enunciated by the Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Notwithstanding Commissioner Holen’s expression of deep
consternation, stemming from her perception that the majority in this case fails to adhere to the
“Commission’s established law” (by rejecting her policy choice to require a set off of
unemployment compensation from back pay awards made under section 105(c) of the Act),
Commissioner Holen, herself, fails to adhere to controlling Supreme Court precedent. Nowhere
in her concurring opinion is the Chevron case considered or even cited for this purpose!1 Yet that

    1
     However, in her concurring opinion Commission Holen does cite Chevron in

connection with her conclusion that the intent of Congress, regarding the meaning of sections
105(c)(2) and (3) of the Act is clear and unambiguous. This, however, is curious in view of the

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case, and its mandate to appellate courts to defer to agency interpretations of statutory provisions
squarely applies to this case.

    By my colleagues’failure to apply Chevron, one could conclude that Chevron has been

deleted from our jurisprudence. However that’s not the case and to be sure there is no
misunderstanding, I submit the following which I suggest provides unequivocal direction to this
Commission in the disposition of this issue!

                    When a court reviews an agency’s construction of the
           statute which it administers, it is confronted with two questions.
           First, always, is the question whether Congress has directly spoken
           to the precise question at issue. 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. If, however, the court determines Congress has not
           directly addressed the precise question at issue, the court does not
           simply impose its own construction on the statute, as would be
           necessary in the absence of an administrative interpretation.
           Rather, if the statute is silent or ambiguous with respect to the
           specific issue, the question for the court is whether the agency’s
           answer is based on a permissible construction of the statute.
           ([footnote] The court need not conclude that the agency
           construction was the only one it permissibly could have
           adopted to uphold the construction, or even the reading the
           court would have reached if the question initially had arisen in
           a judicial proceeding.)

                   ‘The power of an administrative agency to administer a
           congressionally created . . . program necessarily requires the
           formulation of policy and the making of rules to fill any gap left,
           implicitly or explicitly, by Congress.’ Morton v. Ruiz, 415 U.S.
           199, 231 (1974). If Congress has explicitly left a gap for the
           agency to fill, there is an express delegation of authority to the
           agency to elucidate a specific provision of the statute by regulation.
           Such legislative regulations are given controlling weight unless they
           are arbitrary, capricious, or manifestly contrary to the statute.
           Sometimes the legislative delegation to an agency on a particular
           question is implicit rather than explicit. In such a case, a court may

fact that both majority opinions in Meek and Nantz were grounded only on Commissioner Holen’s
policy preferences after concluding that the Act is silent on the issue of unemployment
compensation. Meek v. Essroc Corp., 15 FMSHRC 606, 616 (April 1993); Secretary of Labor
on behalf of Nantz v. Nally & Hamilton Enterprises, Inc., 16 FMSHRC 2208, 2216 (November
1994). See also infra n.4.

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           not substitute its own construction of a statutory provision for a
           reasonable interpretation made by the administrator of an agency.

                   We have long recognized that considerable weight should
           be accorded to an executive department’s construction of a
           statutory scheme it is entrusted to administer, and the principle of
           deference to administrative interpretations

                  ‘has been consistently followed by this Court
                  whenever decision as to the meaning or reach of a
                  statute has involved reconciling conflicting policies,
                  and a full understanding of the force of the statutory
                  policy in the given situation has depended upon
                  more than ordinary knowledge respecting the
                  matters subjected to agency regulations.’

                          ‘. . . If this choice represents a reasonable
                  accommodation of conflicting policies that were
                  committed to the agency’s care by the statute, we
                  should not disturb it unless it appears from the
                  statute or its legislative history that the
                  accommodation is not one that Congress would
                  have sanctioned.’

Chevron, 467 U.S. at 842-45 (footnotes and citations omitted, emphasis supplied). Accord,
Smiley v. Citibank, 517 U.S. , 116 S.Ct. 1730, 135 L. Ed. 2d 25, 31 (1996), citing Chevron,
467 U.S. at 843-44 (“We accord deference to agencies under Chevron . . . because of a
presumption that Congress, when it left ambiguity in a statute meant for implementation by an
agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and
desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity
allows.”).

    Notwithstanding the foregoing, Commissioner Holen unsuccessfully attempts to

demonstrate that the Commission has controlling policy authority in “directing relief in
discrimination cases.” Slip op. at 15 (Commissioner Holen, concurring). Support for her position
is based on the fact that Congress provided the miners with a private right under section
105(c)(3), independent of the Secretary, if the Secretary finds no violation occurred.
Commissioner Holen’s reliance on that provision of the Act for her contention is woefully off the
mark.

    In authorizing a private right of action to miners under section 105(c)(3), Congress was

clearly providing a tangible means by which miners could obtain that which Congress intended --

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that access to all relief necessary to make the miner whole be assured.2 Commissioner Holen’s
position in this case, and in the two Commission decisions being overruled3 today, only frustrate
that Congressional intention.

    Last, but by no means least, Commissioner Holen’s invective suggesting that my position

on this issue (to not set off unemployment compensation received by the miner from back pay
awards) is based merely on superficial “policy preferences” is astonishing! Slip op. at 18.
(Commissioner Holen, concurring). The Commission’s majority decisions in Meek and Nantz
admittedly relied on the policy preferences of Commissioner Holen.4 However, by some process
known only to Commissioner Holen, those ill chosen policy choices, that flagrantly ignored the
vast preponderance of federal case law, are apparently believed by her to have become ensconced
into the “Commission’s established law,” that should forever be held inviolate! Nonsense.

   2
                    It is the Committee’s intention that the Secretary propose,
           and that the Commission require, all relief that is necessary to make
           the complaining party whole and to remove the deleterious effects
           of the discriminatory conduct including, but not limited to
           reinstatement with full seniority rights, back-pay with interest, and
           recompense for any special damages sustained as a result of the
           discrimination. The special relief is only illustrative. Thus, for
           example, where appropriate, the Commission should issue broad
           cease and desist orders and include requirements for the posting of
           notices by the operator.

S. Rep. No.181, 95th Cong., 1st Sess. 37 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 625 (1978).
3
Meek v. Essroc Corp., 15 FMSHRC 606 (April 1993); Secretary of Labor on behalf of
Nantz v. Nally & Hamilton Enterprises, Inc., 16 FMSHRC 2208 (November 1994).
4
“[W]e conclude that deducting unemployment compensation from a backpay award is a
reasonable and sound policy that fully effectuates the Mine Act’s goal . . . .” Meek, 15 FMSHRC
at 618 (emphasis supplied). “The Commission . . . now adopts a policy for its administrative law
judges, in order to ensure equality of treatment . . . .” Id. (emphasis supplied). “The Commission
recently decided . . . that, as a matter of agency policy, unemployment compensation . . . should
be deducted in determining backpay awards.” Ross v. Shamrock Coal Co., 15 FMSHRC 972,
976 (June 1993) (emphasis supplied). “[T]he Commission determined [in Meek] that a policy of
deducting unemployment benefits comports with the Mine Act’s goal of making the miners whole.
It adopted this policy to be followed by its judges.” Nantz, 16 FMSHRC at 2216 (citations
omitted, emphasis supplied). “The Commission, by a majority of three Commissioners, adopted
its policy of subtracting unemployment compensation from back pay awards in Meek v. Essroc
Corp . . . .” Slip op. at 17 (Commissioner Holen, concurring) (emphasis supplied).

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     For the reasons clearly and convincingly set forth in former Commissioner Backley’s

dissent in Meek and for the same reasons amplified in the Nantz dissent, an opinion I am pleased
to have signed, I continue to conclude that unemployment compensation received by the miner
should not be set off from back pay awards.

                                                 _______________________________
                                                 Marc Lincoln Marks, Commissioner




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