provision of the mine at section one of privacy that is an anti discrimination anti retaliation provision thinking working in this case i think you have to keep several things in mind first of which is that under the mine act it is not ensure but the operator that has the primary responsibility for the safety of the mine and in addition there's a problem with with an employee union member go through his union right we're not all are hearing that there's no there's a problem with that but that's he can certainly do that but that it doesn't stop there because certainly he can go through his union but you still go that's not where it stops where it's as commissioner often pointed out in his dissent even if you go to your union representative and they raise it to ensure they raise it to the company which mr david moore the union rep in this case did not do  you still have to do an investigation and in that case if you do an investigation you're entitled to the end for if you're an operator entitled to the information commissioners to conclude that there was no intentional discrimination your honor i would agree with you there was no intentional discrimination and there was there was no intent to discriminate  before us is whether there is substantial evidence to support the majority decision that there was not intentional discrimination and then we need to decide whether or not there is a basis for that  course we've taken the position that interference isn't separate and apart from discrimination it's not some separate cause of action it is as i see it and lumination congress in seventy seven when they did that was clarifying what they meant by discrimination as it said or otherwise interfere and they were very in their congressional report they were  were thinking out but it it's really all part of the same i don't see that it's a separate cause of action and we didn't win that's why we're here and rather  commission could cobble together or not but frankly because we're going to judge says it was says said there was no intent to discriminate and tweeted excuse me three of the commissions created a commission i said we had a legitimate not be the person answered remember also the new commission is a separate independent adjudicatory body right but i think you can simply look at the fact that three said there was no intent to discriminate and three said that was a business just that being the case i think that clearly means there is no ballet in section one five six i don't think you can separate are not like this case i mean gray i think i mean in moses as i recall there was a distinct conversation about whether the individual ta yes he had but there was that in it grab a the individual was painted appear before a grand jury and had a conversation with a supervisor where the supervisor jokingly or not threaten to kill i don't employees the mind acting business not presume that in fact it presumes a co operative relationship and frankly that is necessary if you're going to in chief say that you're talking about an industry that you could say this protected activity going on every day we're talking about follow up fire bosses mine examiners here what is their job their job is to iden y hazards and write them in a book you have people talking every day about there is no issue that doesn't somehow have some relationship to safety when you're talking about operating any kind of m and free to disclose the name role first of all but as we remember that they gave up their anonymity anonymity they're the ones who said two months after the fact apparently e one or two were fired bosses why isn't there sufficient evidence to take to them and adverse employment action against those fire bosses without getting liens from the let's take what we have lied we have the fire bosses and we recognize that these belts are split up oftentimes between five losses so we don't have that specific so we don't have and we have a fire bosses who are theoretically the target of this  now i guess and we'll make the mistake of assuming that there was some validity to the complaint but if they're going to go in and discharge somebody for failing to appreciate the examination which is undisputed on his record this is a more who told us and we suspected we knew and they suspected he knew the fire bosses and they said no i think they did the exam the only people who were on that belt theoretically were the it says they did the exam we have fire bosses that said they did it we have we don't have any eyewitness or anything like that and we don't have any concrete evidence record judge about that but frankly i think moore said he checked it out there wasn't anything so you've got to go to the source of the information and more would not know he wasn't on a conveyor belt at the time he doesn't have any information and that's why you have to go to the source and he's trying to get just said they have the information and they had said they had documentation and they refused to produce it but on this point records and they would tell us what the conditions were and that is not sufficient you don't have what occurred on september twenty second with the belts white doesn't tell you what the belt was  so other then a majority concluding that there was not intentional discrimination what rationale of any majority are we reviewing but as i understand it this court isn't title to make the noble legal conclusions from the facts that are coming up for it and the fact that we're still dealing with the with kate said finally that they all say because none of the commissioners question those facts or made any new factual find it were not permitted by the supreme court in ventura in our case all seven liability but it is kind of an unusual situation it might be a bit of a novelty tuition coming out of my act bar but but i think that they leave point here is that four out of five commissioners did find that animal committed a violation of the understand that but if we agree with him jerry we did find there is not substantial evidence supporting intentional discrimination i under the circumstances would you agree that we don't need to pages dealing with this this new issue of of what we're supposed to do with the two to you know can we review that so give you choose to do research on it and give us some briefing it's possible in broad in service of broader think the goals in the mines and congress understood that a miner who in making such a report is called upon to name the name of a coworker allegedly responsible faces not only the ever present risk of retaliation for management that always quote fell for any minor stated report but also it's a pig having financial difficulties with coworkers and makes it difficult to get the job done difficult to get along to disclose it representative but we cannot necessarily expect from the operator and that's why a one zero three g prevents that congressional intent of not having the operator have access to the names of the few q s coworkers  complaint so that emma doesn't wind up with it at the end of the day now the circumstances in this case are a little bit unique in the fact that the operator inserted itself into those meetings with ems and found out about the safety records pretty much as they were given to the inspectors but the fact that emerald did that in the fact that there wasn't the usual time lapse between the time the miners made the record and the time that emma found out about it doesn't mean that the miners can be compelled under those circumstances to later answer they saw a hazard they reported it and they tried to do that while keeping confidential according to their one of three g writes the name of the accused minor involved now the fact that there were some unique circumstances about this case where management was when these one of the three g it's supposed to protect minor is in the sense of keeping the operator from getting the name of any case where that's a congressional purpose the fact that and it wouldn't make any sense to provide this protection ephemeral could later go and question the miners directly about information that shouldn't have been a part of anything that i wrote received as part of the take the complaint and how do they investigate if they don't have a reject the idea that the only way to take that action is to have that firsthand testimony from frank white but you are you're you're you're representing the and the union here is the union representative himself men about who he thought spectating who he investigated would include following up on the safety committee with investigation asking about the details of that investigation to see whether he had reached the correct conclusion in talking to any number of other people who might have information all of that information can then be presented to the arbitrator and yet the arbitrator went to turn around and asked well who actually saw this where those people emeril could make a legitimate argument that underwent a three g they were under the first circumstance there is a minor who approaches the employer obviously has a decreased expectation of confidentiality a minor who is approached by the employer and has information should have made that complain in the first place and the minor who approaches does with the knowledge of the mine act provide certain protections and you can see that in the record the complaints talked a lot about the confidentiality of expected to have as a result of the specific house of reporting techniques that they employed a minor to go through that avenue expects a certain level confidentiality to certain details about their complaint and that's exactly what one of three g give the fact that these miners recorded through and circumstances though that really can't be considered in knowing waiver of any kind of rate it doesn't reflect any understanding on the miners part that they knew that they had the opportunity to exactly test both miners testify to the fact that they've never been you know you can say you don't have to have  management to leave and given their lack of experience with a to investigation then the general kind of power relationship between management and the miners i don't think it's reasonable to conclude from their agreement under the circumstances that that was a genuine authentic to management's presence they also had a union representing present is now right they did have one of their beng kind of internal political difficulties attaching to this case in the sense that the union president he testified to at the hearing was really there primarily interested in protecting the fire bosses rights not in looking out for frank the way so any kind of protective effect that you could attribute to his presence i think is the really limited docket we are not taking a position again on the merits of either the discrimination really the interference claims before the court and were taking up a position only he said the court reaches issues related to interference i think for the the agency hasn't done so below they all j made no findings regarding interference she did not consider the case under interference framework two of the commissioners abstain from addressing in a fair and so there's reading the statute obviously if this court wishes to endorse our reading of the statute that makes it easier for us however is a matter of procedural propriety it might be best for the a view on that issue would you agree that assuming we conclude that there is  substantial evidence supporting again the three commissioners if there was not discrimination and we read men are looking at the question of intentionally or ference we can at least address the threshold question when it when it amended the statute in one nine hundred seventy seven specifically add this anti interference language into one of five c one it also amended one of five c two and one of five c three of the act to authorize the secretary of labor or individual minors bringing their own private right of action to file with the commission complaints of discrimination or interference i think that that language in the use of the destructive or strong evidence that congress wish to establish an interference cause of  action in addition to that we have a sort of history this comes from the senate committee the committee that drafted this language the type of legislative history that this court has said is deserving of the greatest amount of attention and they say that it is intent of the committee to prohibit not just discrimination but also forms of interference including threats of reprisal or promises that benefit so they use the word and of interference as a separate action and then just add on to that those specific forms of interference majority for us to be able to address again either then a majority of three that found it was not intentional discrimination here were this it doesn't actually deprive us of jurisdiction to i knew for word because it would seem the consequence of that if we truly didn't have jurisdiction would effectively affirm moving in place the only majority rationale that there was not discrimination rather than providing the commission the opportunity to redress came to the minors representing the so called informants it would be contrary to the purpose of the act to court to protect people who are doing things improper the one that they where they got this when they were given a last chance these were not there is as commissioner often said there is no indication yelling screaming threats intimidation they simply asked a question and they were called in the second time where they got the discipline i don't think that scene where only intimidating the secretary stalks not closed door meetings we all know that if you're going to interview people in an investigation you don't want the door open so everybody walking by the commons from can hear what's going on simply put there just simply isn't anything here that says you know they didn't give they didn't yell at them they weren't hostile they just simply asked them the question and it's a legitimate question as three of the commissioners finally i will know  recognize that throughout all of this they have taken what i think is a nuanced approach to one of three g and yet oh we didn't know this mr moore does this case  do not think their actions are protected under one of three g they never remember they answered questions over insurance they never came forward to the this and it came to the attention that horton franks were named in the one authority that they are entitled to some protection but i think it's something you have to take into what authority do you have on the wrong i have the authority of the language one of three g is it which clearly isn't talking about what these individuals that they were interviewed and investigation