time for you about your honor as an underground coal mine is a very dynamic constantly changing environment and this is going to have an adverse consequences for safety this case concerns of mine operators ability to communicate with its miners about the has to do with interference with protected rights and other issue concerns whether there was substantial evidence to support the judges in the commission's finding of interference in this case and finally another issue concerns whether the commission  really focuses on presentations that were made to the workforce in each of the five mines in this case these presentations for me by mr murray who's the new owner of the mines in a very competitive market the get the presentations focused on many aspects of the operation particularly those concerning production efficiency and the other competitive pressures that the mines were facing there was a very small portion of the presentations that concerned safety it's actually there were three or four sites that really focused on informed of c t issues so that these issues could be quickly addressed how we somehow need a prompt of the need for that reminder to the miners the company was concerned the issues were not being reported as she was coming out of house running to the slides motive for the operators action has to be based upon concerned with protected activity basically wanting to limit or interfere with protected activity on the part of minors so that that's are  case is still pending before this court i'm going to say it right protective activity and anyway so you're rejecting me in any part aspect i'm sorry you're rejecting the in any part aspect of the causation test as used for discrimination there is actually i'm sorry it is actually a multi part test the  burden shifting type of analysis so you've told me that the language here is plain in the statute you have plain language chevron step one so the plain language chevron step one of the statutory provision does it require that doesn't allow what did allow liability if your client had been motivated in any part by the exercise of rights under one of the  of what caused the i really don't care surely doesn't set out a burden shifting framework right that's what the agency has adopted but the statutory language because of you're saying means  cases which cause which calls for the secretary of labor is show that militarization was at least a part of what cause the arbiter to act better than the operator as the defense can show that the operator was either not motivated by protect activity at all or would have acted based on that all an act herself is in any part you agree that the statutory language would allow viability if your motive was in any part response to motivated by the actions of filing complaints are motivated by an intent to interfere with rights but is a plain language answer that your honor if you're speaking to whether we believe that the actually focus filing complaints or must be motivated by an intent to interfere with their ability to file things if i understand the question we believe that the motive has to be focused on wanting to interfere with their filing complaints of the because language focuses on on filing a complaint with the operator needs to be acting to try to interfere or to deter chill that type of activity  them the actor would have to know this is your plain language interpretation would have to not only be reacting to conduct by minors but would have to intend to interfere with known legal rights correct into the statute itself and i think it is worthwhile the point out that under the secretary's argument they focus on the national labor relations act as helping us to interpret the section one of i've seen and we believe that the  section eight one of the national labor relations act taken in concert with section eighty four president congress wanted there to be a different test for interference and for discrimination congress would have divided these out into separate sentences but that's not what occurred in this a lot of claims were being filed your honor mr murray's motivation was not with stopping filing ballots i'm asking you do you do you agree that what motivated that part of the presentation was the fact that to be clear i will give you some time but just to be clear you say your position is the reason that didn't trigger the plain language was that he was not intending to in the field with what he understood to be their legal right he thought they were we just want you to let us know when there's a safety issue that's something that's very much we're talking about what prompted this management to make sure i'm clear on your understanding that there's no question here the filing of complaint is something that was been reacting to here it's just that murray's there marshall coles few was that those were not legally protected complaints because they didn't in his uterus safety but clearly the filing of those complaints triggered this part at least mention and in our brief there actually were at least five times where at one point or another in the briefing or hearing with l j we mention or actually raise an objection ok and your i would like to point out that in the first decision written by the in november twenty fifth team she actually analyzed under the national labor relations act the person reading case law you know so she understood that this was going to be an and that was she was she was and why is it in his law that we have cited to show that the person reading requirement is not appropriate i think i'm getting the nature of your objection so as i read this footnote which is on remember right it's not the requirement it's what it what it includes that right that was the nature of our concern the real requirement changed when it was drafted by the government reza and by us so what is the content that when the parties that the secretary would agree to reading a statement that did not include an acknowledgment that the company had violated the law this is the statement that we put forward your honor is the one that was posted which which reiterates the miners rights under the no contemplation that there would be unilaterally drafted by by murray right it would have to be approved by the second that's correct your honor it was going to be mutually drafted by both parties that was our understanding and that's the way the notice was drafted but that's not what ended up happening with the person reading statement and that didn't give enough note your position is that the contemplation at the end before the a l j initially that a senior officer would have to read a statement that the secretary agreed to that had yet to be drafted that wasn't enough to put marie on notice that if there was going to be a first amendment action need to be clearly raise that's your position i believe so you are i think you're seeing what you're saying  we are understanding of what the remedy was going to be was quite different than what i mean very different than the way it ended up evolving over the course of the case and as soon as we realized what this was actually going to be an able j drafted statement and ears but some operators may take no action to correct hazards that are reported some operators retaliate against miners for making reports and some operators discourage miners from making records so congress created a mechanism for miners to make those reports when they don't feel that they can make them to the operators and that's the company section one of three sheen which has miners the right not just to make complaints but to make complaints that are requiring to remain anonymous in my cd which protects minors both from discrimination for making complaints and from interference with making complaints commission here with how out both of those provisions while the secretaries  act expanded the protections that existed under the cole act i would have to look at the precise language to give you a question or to give you a better answer to that i don't have the calling or collect language in front of me but i'm not aware of any case where  an operator have a policy that required all employees to report any safety concerns to the operator without linking it to whether they're making a complaint  is going to tell you the circumstances so if a policy like that provided in some way to preserve anonymity to guarantee minors anonymity i think that would help to help make that policy lawful if there were no evidence of hostility or intimacy again that would be a factor that would tend to make it policy more awful and if it were limited in scope in some way or demonstrated some tailoring to accommodate my experience and again this is exactly what the secretary's test interference contemplates first the secretary status is reasonable tendency to interfere but the second step of the secretary's test is a really important one because it does a comedy of mine operators legitimate and important human substantial i guess i should say because doesn't necessarily require a motive particularly in the context of the text of the statue but more importantly in the context of the remedial purpose of my act i'm not aware of and murray has not cited any case where the court has adopted the strict punishment but so so this case you know as some of the commissioners thought there is evidence here of a motive so give us the kind of case that your thinking is at stake in the distinction between your position interference and the operators position that there has to be some what what would fall by the wayside were they to prevail as some examples are in our brief but and so that's an important concern i think other concerns would be so with that you're really asking the commission and the courts to get involved in weighing the degree of safety interference or reporting interference and managerial progressives and that's sort of what the two prongs of the franks test contemplate yes i think that's right and i don't think that's all that different from the kind of balancing act that the commission in the court always be there and so miners and mine operators are in the best position to identify hazards and i don't think and imagine my next congress was very clear that minors have to be involved they have to feel like they are entitled to meet complain i don't think it has the required motive would mean that at least in some he says minors who are the victims of conduct that have the effect of deterring them from exercising their rights would not be able to establish that action was unlawful and that's not what congress me that in the legislative history when it added or otherwise interfere with to the whole act congress said this is a matter of this is meant to broaden the existing protections so what was already prohibited by the whole act was going to allegation retaliatory discriminatory action by congress  minors are not inhibited in any way from exercising their rights and i think i'm sorry for that and i think that that language is is indicative of congress's attention to the facts and not just a mood of congress say that what matters is minors in who are minors being  ideally not being inhibited in any way from exercising their rights and the secretary said is consistent with advancing that purpose i'm still just circling back on you said in your brief you talked about what what's at stake in terms of the mode of base versus the interfere prospectively so that i don't find that very convincing maybe you could help me out and i don't think that as being as a rule discrimination is right up there is retrospective and interferences respect and i think generally that's probably how it shakes but for example one could show that a bonus policy was adopted with the intent to discriminate between people who would exercise their reporting rights and those who wouldn't and it was nobody had done it yet but i'm just saying you know we're looking ahead and we want to make sure that i'm happy and i mean that could be the motive were shown discrimination among miners based on that characteristic so it just issue but enjoying the operator from taking action like this in the future i think is important right but if there were proof that the interference were intentional that grammy would be available under the operator's perspective so again i thought that the the saying well you know interfere promise of benefit or threat of reprisal is cover some adverse  action that may not be formally listed as discrimination but it's it could be presence that that kind of action and remedies for that kind of action would be available presumably in a case in which the interference were proved to be motivated i think there's also an element in discrimination cases that the secretary has to prove a minor has suffered an adverse action and as a writer but so and so there is going to be what we're assuming that that interference there is an interference action the question is if the interference actually required a motive what kind of case that's important from the secretary's perspective would no longer be actionable and you said well a case that would get this kind of remedy and my response to that is no if intentional interference were shown that remedy would still be available right i think ok i guess i suppose that maybe  to but they are these are facts these things i don't think the secretary can anticipate every club or means that are mine operator might identify to not deny him deliberately but that might occur at a mine whether deliberate or or not me exactly how the operator would like motive to work in a test and i thought they were quite clear they wanted they want a strict motive standard that requires a motive to interfere with known legal rights because a little unclear to me possible about safety problems or that is at least a mining company could argue could could justifiably think please tell us if you see something please tell us right away  are cases where there's no evidence of animus cases that are situations where without anima situations where minors anonymity is protected situations where where there is again some evidence of accommodating minors resident recognition that this policy might implicate those but some way to mitigate those effects well one thing to you might point to i think you pointed to in in your previous the pack crack made clear that an operator has the right to require the reporting of dangerous look at counsel five will be five minutes or i'm sorry three minutes for about oh i'm sorry mine because they are continually present at the work site and should therefore rely on miners to assist in important by reporting hazards to the agency as we've seen throughout the kids in the arguments presented here that anonymity of the necessary the interference with an uncredited complaint then it's a serious matter precisely because it limits miners ability to provide the necessary assistance to the agency this is why anonymous reports are so carefully protected in the act even  policy what is your position on whether or mine operator can have a policy that requires employees to report safety concerns that they run across to the operator like the union can to you know if you file with i'm sure we want to know why you know we really want to know what the safety concerns are what are some of the hallmarks in your view of a good policy would have to have anonymous reporting what were you thinking of that would make such a policy continued employment or the survival of the company i mean we would hope that would take a collaborative approach and not be something that is kind of issued as a threat to miners the best give us all this information or else but as if that means there couldn't be any disciplinary or employment consequences for miners who fails rule fails to comply with an operator wall that safety concerns must be brought i don't know that i'm prepared to make that pronouncement here i mean as i stated in the get it right answer it will depend significantly on what the actual text of the policy how it's prevented and whether the union had any involvement in bargaining over this and working with our thinking tory employers to develop th trying to make the argument that that means that it was not an actual work rule it's not mandatory for the miners to abide by it the other traces vision cited in the brief show the fact that a policy and that a new rule is not bargained over doesn't mean that it exists in some out of the ether somewhere and doesn't have to be something that means that the company acted improperly through improper unilateral procedures and permitting that doesn't matter to the issue before us whether it was real or not i think that it matter is in as much as the mandatory nature or farmers perspective the lack there of have an impact on how a reasonable miner would view these management is saying you must make the same reports that you make under one of three g and capture that as mary did in the presentation that directly connects one of three d reporting to the survival of the company to miners continued employment honor first of all i think it's important to know that before there was any discussion of one of the complaints in the presentation there is one slide that says that safety you must it's also important to note that the secretary's interpretation here would result in a different test being used for interference as opposed to discrimination we've got a fair amount of discussion on that today but isn't the whole point to make the interference  aspect have some independent function in the statute it's meant to the independent function comes from the fact that the word discrimination or discharged here wouldn't cover every situation that comes up  basically meant to cover what are chilling statements made by horman to their minors or things of that nature that don't result in a consequence of the climate that would fit under discrimination or just charge we do not believe that using interference and want  season and to set a lower standard for proof of interference that have been has long been the test for discrimination in my neck and therefore motivation to be part of the interference test i'd also like to point out with regard to chevron deference with the agency with for my clients there really is nothing out there to guide operators in terms of chevron deference this is not the type of provision of the might have to require some kind of special expertise on the secretary's part is not regarding are again there are already existed or rule in the collective bargaining agreement requiring miners to report safety issues to management and that's what was being reiterated in these presentations there were comments made about one of three g and concerns that the that this right of miners was being used against a company that nevertheless the concern and the focus was really to make sure that the meiers don't walk by hazards and leave him sitting there until they can get out of line