PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SECRETARY OF LABOR, on behalf of

Cletis R. Wamsley, Robert A.

Lewis, John B. Taylor, Clark D.

Williamson, and Samuel Coyle,

Petitioner,

No. 95-1130

v.

MUTUAL MINING, INCORPORATED;

FEDERAL MINE SAFETY AND HEALTH

REVIEW COMMISSION,

Respondents.

MUTUAL MINING, INCORPORATED,

Petitioner,

v.

SECRETARY OF LABOR, on behalf of

Cletis R. Wamsley, Robert A.

No. 95-1212

Lewis, John B. Taylor, Clark D.

Williamson, and Samuel Coyle;

FEDERAL MINE SAFETY AND HEALTH

REVIEW COMMISSION,

Respondents.

On Petitions for Review of an Order

of the Federal Mine Safety and Health Review Commission.

(93-395-WEVA-D, 93-396-WEVA-D, 93-397-WEVA-D,

93-398-WEVA-D)

Argued: November 3, 1995

Decided: April 3, 1996
Before WILKINSON, Chief Judge, and WIDENER and

WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed in part and reversed in part by published opinion. Chief

Judge Wilkinson wrote the majority opinion, in which Judge Williams

joined. Judge Widener wrote an opinion concurring in all but § III(B)

of the majority opinion.

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COUNSEL

ARGUED: Ellen Leslie Beard, UNITED STATES DEPARTMENT

OF LABOR, Washington, D.C., for Petitioner. James Gerard Zissler,

JACKSON & KELLY, Washington, D.C., for Respondents. ON

BRIEF: Thomas S. Williamson, Jr., Solicitor of Labor, Steven J.

Mandel, Deputy Associate Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Petitioner. L. Anthony

George, JACKSON & KELLY, Denver, Colorado, for Respondent

Mutual Mining.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

The Secretary of Labor, on behalf of five miners, and Mutual Mining, Inc. ("Mutual") both petition for review of an order of the Federal

Mine Safety and Health Review Commission. Mutual contends that

the Commission erred when it found that Mutual's discharge of five

miners violated the Federal Mine Safety and Health Act of 1977. 30

U.S.C. § 801 et seq. The Secretary, in turn, challenges the Commission's decision to deduct unemployment compensation from the

miner's back pay awards. We find that substantial evidence supports

the finding of a violation of the Mine Act. We further find, however,

that the Commission erred when it ordered the deduction of unemployment benefits from the back pay award owed each miner. In sum,

we affirm in part, and reverse in part the Commission's decision.

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I.

In December, 1992, Mutual discharged a number of employees of

its Logan, West Virginia surface mine. Three of those employees --

Robert Lewis, John Taylor and Cletis Wamsley -- constituted the

local union's safety committee at the Logan mine; Taylor served as

its chairman. As part of their duties, Wamsley and Taylor participated

in a safety inspection of the mine on December 17, 1992. After the

inspection, the union safety committee presented a list of safety violations to mine management. This list included various fire hazards and

numerous problems with pieces of equipment, including fuel leaks,

missing parts, and defective safety alarms. The next day, the union

submitted that same list to the Mine Safety and Health Administration

(MSHA) and requested an inspection of the mine as authorized by the

Mine Act. 30 U.S.C. § 813(g)(1).

The following Monday, December 21st, MSHA commenced an

inspection of the mine. MSHA inspectors provided mine management

with a copy of the complaint giving rise to the inspection, and the

managers commented that the list of alleged safety violations accompanying the complaint was identical to the one submitted to them only

days before by the union safety committee. MSHA ultimately issued

numerous citations to Mutual as a result of its inspection.

On the same day that MSHA inspected the mine, Mutual laid off

twelve employees without warning. All three members of the safety

committee were laid off. Taylor, the chairman, was the most senior

employee discharged. Five miners -- the three members of the safety

committee and Clark Williamson and Samuel Coyle-- complained

to the Secretary that their discharges violated the Mine Act.1

After an investigation, the Secretary filed a complaint with the

Commission alleging that Mutual's discharge of the miners violated

the Mine Act. According to the Secretary, the discharge was in retaliation for the union's safety run and the ensuing MSHA inspection,

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1 Mutual subsequently recalled Williamson in January, 1993 and Taylor

and Coyle in April, 1993. A Commission ALJ ordered the immediate

temporary reinstatement of the two remaining miners, Wamsley and

Lewis, in August, 1993. 30 U.S.C. § 815(c)(2).

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both protected activities under the Act. 30 U.S.C.§§ 813(g)(1),

815(c)(1). Mutual denied the allegation, maintaining that the miners

were laid off for legitimate business reasons. A Commission ALJ

agreed with the Secretary. He ordered Mutual to provide back pay to

each of the miners, reduced by the amount of unemployment compensation each had collected, and also assessed a civil penalty of $5000.

Both the Secretary and Mutual petitioned for discretionary review

with the Commission, 30 U.S.C. § 823(d)(2), which the Commission

denied. The Secretary and Mutual then petitioned for review in this

court.2 30 U.S.C. §§ 816(a), (b).

II.

We first address Mutual's contention that the discharge of the miners did not violate the Act. We conclude that substantial evidence supports the ALJ's ruling that the discharges were unlawful. See 30

U.S.C. § 816(a)(1).

The Mine Act recognizes that mine employees can play an important role in accomplishing the health and safety goals embodied in the

Act. Consequently, when miners have a reasonable belief that a violation of the Act's health or safety standards exists,"such miner or representative shall have a right to obtain an immediate inspection by

giving notice to the Secretary . . . of such violation or danger." 30

U.S.C. § 813(g)(1). In order to protect miners who exercise these

rights, an employer cannot "discharge or in any manner discriminate

against . . . [a] miner . . . because such miner . . . has filed or made

a complaint under or related to this chapter." 30 U.S.C. § 815(c)(1).

Protected complaints under the Act include those made to mine operators or to MSHA itself. Id.

There is ample evidence to support the Commission's conclusion

that the layoffs in this case were in retaliation for activities protected

under the Act. It is undisputed that mine managers knew that the

union's safety run and subsequent complaint triggered MSHA's

December 21st mine inspection. The layoff was unannounced and its

timing, coming only hours after MSHA had started its inspection, was

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2 The Secretary's motion to join Johnny Porter as a respondent/crosspetitioner in this case is denied.

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suspicious to say the least. Such circumstances raise an inference that

the layoffs were motivated by an unlawful reason. See Donovan v.

Stafford Constr. Co., 732 F.2d 954, 960 (D.C. Cir. 1984). Mutual also

laid off just enough miners to reach Taylor, the chairman of the

union's safety committee and most senior miner discharged, without

clearly violating the seniority provisions of its labor contract. Furthermore, the ALJ found that mine management was hostile to particular

members of the union safety committee, especially Cletis Wamsley,

and the committee's activities in general. Wamsley and the mine

superintendent clashed on a number of occasions, and after listening

to the parties' divergent accounts of the source of this friction, the

ALJ concluded that "some of [the mine superintendent's] hostility

towards Wamsley resulted from differences of opinion over safety

matters." The ALJ also pointed to the mine superintendent's view that

members of the safety committee were "giving him a hard time on

safety matters."

Mutual claims that its discharge was motivated by economic reasons. It declares that just before the layoff it learned that its customer,

Island Creek Coal Company, might drastically reduce its purchases.

As the ALJ found, however, no testimony established a close proximity between the predicted demand reduction and the hastily executed

December 21st discharge. The evidence, in fact, revealed that any

reduction in demand was simply a return to normal levels from a temporary dramatic increase in demand in the fall of 1992. Because the

same number of employees worked for Mutual prior to the boost in

demand, a return to normal levels would not necessitate the discharge.

Finally, as the ALJ noted, Mutual never offered any documentary evidence of a reduction in demand for its coal.

Mutual also maintained that the December 21st discharge was part

of a long-planned realignment of employees from the day shift to the

night shift in order to increase productivity. The ALJ observed, however, that if the discharge was part of a realignment, most of the

workers should have been quickly recalled in their new "realigned"

capacities, but this did not occur. The ALJ further found that "[g]iven

the number of discussions Mutual Mining management had . . . concerning the realignment, I do not believe that on December 21, 1992,

that they gained surprising new information which caused them to

institute a lay-off instead."

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Mutual's version of events was simply rejected by the fact-finder

in favor of the Secretary's. The "possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative

agency's finding from being supported by substantial evidence."

Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966). The

decision in this case has such support, and we decline to disturb it.

III.

We next address the Secretary's claim. The ALJ, adhering to the

Commission's decision in Meek v. Essroc Corp. , 15 F.M.S.H.R.C.

606, 616-18 (1993), directed that the back pay award be reduced by

the amount of unemployment compensation received by each miner.

The Secretary argues that unemployment compensation should not be

deducted from back pay awards. He asserts that deference is owed to

his view, not that of the Commission, on the deductibility of benefits

and that, in any event, his view of the Act is the sounder one.

A.

The Secretary and the Commission thus flatly disagree on the question before us. Determining which interpretation is owed deference

requires a close examination of the Act. Under the"splitenforcement" arrangement envisioned by the Act, the Secretary and

the Commission perform distinct regulatory responsibilities. See

Johnson, The Split-Enforcement Model: Some Conclusions from the

OSHA and MSHA Experiences, 39 Admin. L. Rev. 315 (1987). The

Act charges the Secretary with the development and enforcement of

health and safety standards "for the protection of life and prevention

of injuries in coal or other mines." 30 U.S.C.§ 811(a). The Secretary

develops these standards by rulemaking, id., and enforces them by

conducting inspections, issuing citations and proposing civil penalties

for violations, 30 U.S.C. §§ 813, 814(a), 815(a), 820(a). If a party

contests the Secretary's actions, the Commission adjudicates the

claims and "issue[s] an order, based on findings of fact, affirming,

modifying, or vacating the Secretary's citation, order, or proposed

penalty, or directing other appropriate relief." 30 U.S.C. § 815(d).

Only one of these two administrative actors can retain the ability

to render authoritative interpretations of the Act. The nature of the

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functions that the Secretary and the Commission perform under the

Act -- rulemaking and enforcement authority rest with the Secretary,

and adjudicatory authority rests with the Commission-- has led

courts to conclude that "when the Secretary and the Commission disagree on the interpretation of ambiguous provisions of the Mine Act,

and both present plausible readings of the legislative text, this court

owes deference to the Secretary's interpretation." Secretary of Labor

v. Cannelton Indus., Inc., 867 F.2d 1432, 1433 (D.C. Cir. 1989); see

also Secretary of Labor v. Western Fuels-Utah, Inc. , 900 F.2d 318,

321 (D.C. Cir. 1990). The history of the Act supports this conclusion.

As the Senate report observed: "Since the Secretary of Labor is

charged with responsibility for implementing this Act . . . the Secretary's interpretations of the law and regulations shall be given weight

by both the Commission and the courts." S. Rep. No. 181, 95th Cong.,

1st Sess. 49 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3448.

The Secretary's role of rulemaking and enforcement explains this

deference to the Secretary's interpretations of the Act. In order to promulgate health and safety standards in the first instance, the Secretary

must evaluate a wide variety of information regarding the operation

of the mining industry. And in enforcing these standards -- through,

for instance, periodic inspections of mines and issuance of citations

-- the Secretary comes into constant contact with the daily operations

of the mines. See Martin v. OSHRC, 499 U.S. 144, 152 (1991). In

short, developing rules and enforcing them endow the Secretary with

the "historical familiarity and policymaking expertise," id. at 153, that

are the basis for judicial deference to agencies. In Martin, which

involved a split enforcement scheme under the Occupational Safety

and Health Act of 1970 (OSH Act) similar to that in the Mine Act,

the Supreme Court concluded that the Secretary's"power to render

authoritative interpretations," id. at 152, of OSH Act regulations was

a "`necessary adjunct' of the Secretary's powers to promulgate and to

enforce national health and safety standards." Id. We do no more than

follow Martin's teachings here.

The Commission, of course, performs an essential role under the

split-enforcement regime established by the Act. With respect to the

provisions at issue here, the Commission independently adjudicates

claims brought by the Secretary, 30 U.S.C. § 815(c)(2), and orders

appropriate relief, including the award of back pay. Id. But these

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duties, like the Commission's other duties, are adjudicatory in nature.

See Thunder Basin Coal Co. v. Reich, 114 S.Ct. 771, 780 (1994)

(FMSHRC is "independent commission established exclusively to

adjudicate Mine Act disputes.") Consistent with this adjudicatory

role, the Commission's findings of fact, if supported by substantial

evidence, are conclusive. 30 U.S.C. § 816(a)(1). But because the

Commission adjudicates only a select number of cases and does not

promulgate rules under the Act, it is not equipped with the same "historical familiarity and policymaking expertise" as the Secretary. As

the Supreme Court concluded with respect to an analogous adjudicatory body, the Commission operates as a "neutral arbiter," Martin,

499 U.S. at 155, that possesses "nonpolicymaking adjudicatory powers." Id. at 154.3

An across-the-board rule setting the terms of back pay awards is a

question upon which the Secretary's view is entitled to deference.

While the Act empowers the Commission to impose back pay, Meek's

rule reaches beyond an exercise of adjudicatory discretion. The Commission has decreed that in every case, no matter the nature of the circumstances, unemployment compensation shall be deducted from

back pay awards. 15 F.M.S.H.R.C. at 618. Such a broad policy turns

on the meaning of ambiguous statutory terms and implicates the overall purpose of the Act to improve mine health and safety. The interpretation of the Act that the Secretary presented to the Commission,

Secretary of Labor ex. rel. Nantz v. Nally & Hamilton Enterprises,

Inc., 16 F.M.S.H.R.C. 2208, 2216-20 (1994), though not embodied in

a promulgated rule, was an exercise of authority delegated to the Secretary by Congress. Martin, 499 U.S. at 156-7. Accordingly, the Commission should have deferred to the Secretary's interpretation of the

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3 It is true that the Commission exercises discretionary jurisdiction over

Commission ALJ decisions that raise a "substantial question of law, policy or discretion." 30 U.S.C. § 823(d)(2)(A)(ii)(IV). But to say that the

Commission reviews cases involving questions of policy is not to say

that it is the final arbiter of such policies. Nor is it to say that the Commission's interpretation of the statute trumps a reasonable interpretation

put forth by the Secretary. The Commission's jurisdiction is fully consistent with the deference that it, and this court, owe to the Secretary's reasonable interpretations of the Act. Energy West Mining Co. v. FMSHRC,

40 F.3d 457, 463-64 (D.C. Cir. 1994).

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Act if it found that interpretation to be a reasonable one. Cannelton

Indus., 867 F.2d at 1435, 1439; Donovan v. Carolina Stalite Co., 734

F.2d 1547, 1552 (D.C. Cir. 1984).

B.

The deference to be accorded to the Secretary is in no sense unlimited. Both the Commission and this court have the adjudicatory

responsibility to determine whether the Secretary's interpretations are

in accord with the Act. Exercising that responsibility here, we hold

that the Secretary's view that unemployment compensation should not

be deducted from back pay awards reflects a permissible reading of

the Act.

The Act is silent on whether unemployment compensation should

be deducted from back pay awards. But the Act makes clear that its

"first priority . . . must be the health and safety of its most precious

resource--the miner." 30 U.S.C. § 801(a). It charges the Secretary

with the development and promulgation of "improved mandatory

health or safety standards for the protection of life and prevention of

injuries in coal or other mines." 30 U.S.C. § 811(a).

It is in light of the purpose and structure of the Mine Act that we

find the Secretary's view of the terms of back pay awards reasonable.

At the outset, we note that either the Secretary's or the Commission's

across-the-board rule may provide a "windfall" to one party. If unemployment compensation is not deducted from a back pay award, a

miner would be overcompensated if he were allowed to recover both

unemployment benefits and back pay for the same period of unemployment. Under the Commission's rule, on the other hand, a company that has concededly violated the anti-discrimination provisions

of the Act is not required to fully compensate the miner for the period

of unlawful unemployment. In fact, the state unemployment compensation system, which was not designed to "discharge any liability or

obligation of [the employer], but to carry out a policy of social betterment for the benefit of the entire state," NLRB v. Gullett Gin Co., 340

U.S. 361, 364 (1951), pays part of the lost wages otherwise owed by

the employer.

We need not decide which of these views is the correct one; our

role is simply to determine if the Secretary's view is reasonable under

 9
the Act. The Supreme Court itself found a similar policy reasonable

in Gullett Gin. Most importantly, the Secretary's interpretation effectuates the health and safety goals of the Act. Miners play a key role

in implementing these goals. They are at the site of often remote

mines and serve as early warning systems in reporting health and

safety concerns and potential violations of the Act. 30 U.S.C.

§§ 801(d), (e). Miners are permitted to accompany the Secretary on

mine inspections, 30 U.S.C. § 813(f), and to obtain an immediate

mine inspection by the Secretary if the miner reasonably believes a

violation of the Act exists. 30 U.S.C. § 813(g)(1). Protecting from

retaliation those miners who report health and safety problems is thus

crucial to the Act's scheme. In this context, it was permissible for the

Secretary to conclude that a policy of non-deductibility would serve

the important goal of discouraging violations of the Act.

The fact that the Act provides for mandatory civil fines for those

who violate it does not alter our conclusion that the Secretary's interpretation is a reasonable one. 30 U.S.C. §§ 820(a), (i). Civil fines are

a general enforcement mechanism under the Act and do not preclude

the availability of back pay awards, which serve different purposes.

S. Rep. No. 181, at 35, reprinted in 1977 U.S.C.C.A.N. at 3435. In

this connection, the Secretary argues that civil fines are often so nominal that they fail to deter violations of the Act, and that state laws

providing for recoupment of benefits for periods covered by back pay

awards make any "windfall" to the miner an illusory one. See W. Va.

Code § 21A-10-21; Board of Educ. v. Wirt , 453 S.E.2d 402, 413 n.16

(W. Va. 1994). We have no need to assess the empirical validity of

these assertions. It is sufficient that the Secretary's reading of the

Mine Act is a reasonable one.

IV.

For the foregoing reasons, we affirm the Commission's decision

with respect to Mutual Mining's violation of the anti-discrimination

provisions of the Mine Act. We reverse, however, that portion of the

Commission's decision that directs the Secretary to deduct unemployment compensation from the back pay awards due the five discharged

miners.

AFFIRMED IN PART, REVERSED IN PART

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WIDENER, Circuit Judge, concurring:

I concur in the result and in all of the opinion except Part III-B, in

which part I do not concur.

I concur in upholding the Secretary's construction of the statute

rather than the Commission's only because of the decision of the

court in Martin v. OSHRC, 499 U.S. 144 (1991).

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