**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

**1331 PENNSYLVANIA AVENUE, NW, SUITE 520N**

**WASHINGTON, D.C. 20004‐1710**

 

 

SECRETARYOF LABOR,                             :         

  MINESAFETY AND HEALTH                   :                                 

  ADMINISTRATION(MSHA),                     :

  onbehalf of TARA OTTEN                           :         

                                                                         :         

                        v.                                              :          Docket No. CENT 2021-0013

                                                                         :                                                         

CONTINENTALCEMENT COMPANY,       :

  LLC                                                                :

 

 

BEFORE:Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

 

 

**DECISION**

 

BY: Jordan,Chair; Rajkovich and Baker, Commissioners

 

This case, which arises underthe Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018)(“Mine Act” or “Act”), concerns a complaint filed by the Secretary of Labor onbehalf of Tara Otten, pursuant to section 105(c) of the Act, 30 U.S.C. §815(c).[1]The Secretary alleges that Continental Cement Company (“Continental”) violatedsection 105(c)(1) when it withheld pay from Otten because she exercised herstatutory rights as a designated representative of miners pursuant to section103(f) of the Mine Act, 30 U.S.C. § 813(f) (miners’ representatives shall havethe “opportunity to accompany [an inspector] during the physical inspection [ofthe mine]” while “suffer[ing] *no loss of pay*during the period of [her]participation.”) (emphasis added).   

 

After a hearing, a CommissionJudge issued a decision holding that Continental violated sections 103(f) and105(c)(1) of the Mine Act when it refused to pay Otten the wage-rate she wouldhave otherwise earned on certain shifts, had she not served as a miners’representative. 44 FMSHRC 121, 149 (Feb. 2022) (ALJ). The Judge awarded Ottenbackpay of $388.39 plus pre-judgment interest and assessed a civil penalty of$17,500 against Continental. *Id*. at 159. Thereafter, Continental filed apetition for discretionary review of the Judge’s decision, which the Commissiongranted. For the reasons herein, we affirm the Judge’s decision.          

** **

** **

**I.**

** **

**Factual and Procedural Background**

 

At the time of the events atissue, Tara Otten worked as a “Laborer” in the Yard department at Continental’sunderground limestone mine in Hannibal, Missouri. Otten also served as adesignated representative of miners pursuant to section 103(f) of the Mine Act.  

 

The United Steelworkersrepresents Continental’s employees; a collective bargaining agreement (“CBA”)governs the terms and conditions of their employment. According to the CBA, ifthere are an insufficient number of “Mobile Equipment Operators” on a shift,the most senior qualified “Laborer” is given the opportunity to perform mobileequipment work and is paid at the higher Mobile Equipment Operator hourly rate.[2]Therefore, in instances when Otten was the most senior qualified Laborer in theYard department, she would receive the first opportunity for an availablemobile equipment assignment. 

 

On certain shifts thatoccurred between March 2020 and January 2021, Otten accompanied an inspectorfrom the Department of Labor’s Mine Safety and Health Administration (“MSHA”) asthe designated miners’ representative on inspections of the mine.[3] During these shifts, a Laborer operated mobile equipment and received thecorresponding pay upgrade. It is undisputed that as the senior Laborer, Ottenwould have had the first opportunity to operate the mobile equipment on theseshifts, had she not acted as a miners’ representative. 

 

Otten testified that she previouslyreceived Mobile Equipment Operator pay when she served as a miner’srepresentative during shifts on which she would have otherwise operated mobileequipment. Vol II, Tr. 253-55. Otten further testified that she was assigned tooperate mobile equipment “generally every day.” Vol. II, Tr. 268.

 

A dispute arose when HeatherAmes, a Continental human resources manager, instructed the payroll specialistto retract the Mobile Equipment Operator pay upgrades that Otten’s 

supervisorhad coded on her timecard for shifts on which Otten worked as a miners’representative (March 24-26, 31 and April 1-2, 2020). Ames testified that shebelieved that according to the new CBA, a miner must actually operate mobileequipment to receive the corresponding wage rate. Vol. II, Tr. 179, 182,214-15. Ames relied upon the CBA’s “zipper clause” which she understood tocancel past-practices concerning wage upgrades. Jt. Stip. at 24 (“ThisAgreement supersedes and cancels prior practices and agreements . . . .”). Accordingly,Ames believed that Otten should instead be paid as a Laborer for these specificshifts.[4]

 

Otten filed a grievancealleging that Continental wrongfully withheld pay, which Continental denied. OnApril 28, 2020, Otten filed the subject discrimination complaint with MSHA. TheSecretary filed a complaint on behalf of Otten with the Commission.[5]

 

The Judge concluded thatsection 103(f) requires that a miners’ representative receive the same compensationshe would have otherwise received had the inspection not occurred. The Judge heldthat Continental structured its pay practices in a manner that may dissuade aminers’ representative from exercising her statutory rights in violation ofsections 103(f) and 105(c)(1). The Judge conducted two discrete analyses insupport of his conclusion. In his primary analysis the Judge stated that theSecretary establishes a violation of section 105(c)(1) by demonstrating, by apreponderance of the evidence, that the miners’ representative suffered a loss ofpay in violation of section 103(f). 44 FMSHRC at 149. As an alternativeanalysis, the Judge utilized the traditional *Pasula-Robinette* test fordiscrimination, finding that the loss of pay was motivated by Otten’s exerciseof protected rights. *Id*. at 150. 

 

On review, Continental raisesnumerous arguments as to why the Judge erred in his analysis and why his findingslack evidentiary support. For the reasons which follow, we reject those arguments,and we affirm the Judge.   

 

 

**II.**

** **

**Disposition**

** **

Section 103(f), 30 U.S.C. §813(f), establishes walkaround rights for miners who accompany MSHA inspectorson mine safety inspections. It provides that:

 

. . . a representative of the operator and a representativeauthorized by his miners shall be given an opportunity to accompany the Secretaryor his authorized representative during the physical inspection of any coal orother mine . . . for the purpose of aiding such inspection and to participatein pre- or post-inspection conferences held at the mine . . . Such representative of minerswho is also an employee of the operator**shall suffer no loss of pay**duringthe period of his participation in the inspection made under this subsection.

* *

The Act’s legislative history states thatsection 103(f) was included in the Mine Act to:

 

enable miners to understand the safety and healthrequirements of the Act and [thereby] enhance miner safety and healthawareness. To encourage such miner participation, it is the Committee'sintention that the miner who participates in such inspection and conferences be*fully compensated* by the operator for time thus spent. To provide forother than full compensation would be inconsistent with the purpose of the Actand would unfairly penalize the miner for assisting the inspector in performinghis duties.

 

S. Rep. No. 95-181, 95th Cong., 1st Sess, at 28-29(1977), reprinted in Senate Subcomm.on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., *LegislativeHistory of the Federal Mine Safety and Health Act of 1977*, at 616-17 (1978)(emphasis added).

 

With respect to section105(c) of the Mine Act, its legislative history has led the Commission andcourts to conclude that the section is to be construed “expansively to assurethat miners will not be inhibited in any way in exercising any rights affordedby the [Act].” S. Rep. at 36, Legis. Hist. at 624 (quoted in *Moses v.Whitley Development Corp*., 4 FMSHRC 1475, 1480 (Aug. 1982));*see alsoSec’y of Labor v. Cannelton Industries,* 867 F.2d 1432, 1437 (D.C. Cir.1989). In *Moses*, theCommission held that section 105(c)(1) was intended to encourage minerparticipation in enforcement of the Mine Act by protecting them against “‘notonly the common forms of discrimination, such as discharge, suspension,demotion . . . but also against the more subtle forms of interference . . . .”’*Id*. at 1478 (quoting S. Rep. No. 95-191, at 36, Leg. Hist. at 624).

** **

**A.   ****Continental Violated Sections103(f) and 105(c)(1) of the Mine Act.**

 

Section 103(f) of the MineAct plainly requires an operator to compensate a miners’ representative withthe pay she would have received had she not exercised her statutory rights. 30 U.S.C. § 813(f) (“[s]uch representative of minerswho is also an employee of the operator**shall suffer no loss of pay**duringthe period of his participation.). Our plain reading of the section is fullyconsistent with Congress’ stated intention “to encourage [ ] minerparticipation” by providing “full compensation.” S. Rep. No. 95-181, 95thCong., 1st Sess, at 28-29 (1977); *see also Magma Copper Co.,* 1 FMSHRC 1948, 1951-52 (Dec. 1979) (“[t]he purpose ofthe right to walkaround pay granted by section 103(f) is [] clear: to**encourageminers to exercise their right to accompany inspectors.”). 

 

We affirm the Judge’s primaryanalysis and his holding that Continental interfered with miner representative Otten’sstatutory rights in violation of section 105(c)(1) when it paid her at a lowerhourly rate than she would have otherwise earned. 44 FMSHRC at 149. 

The Judge’s decision is supportedby *Roger L. Stillion v. Quarto Mining Co.,*12 FMSHRC 932 (May 1990), inwhich the Commission concluded that the failure to compensate a miners’representative as required by section 103(f) demonstrates that the operatordiscriminated against the miners’ representative. The Commission consideredwhether the miner was entitled to compensation pursuant to section 103(f) andwhether the right was violated. *Id*. at 937-39. Notably, the Commission*did not* find it necessary to consider whether the operator was motivated bydiscriminatory animus.[6]

 

We also find the Judge’sanalysis to be fully consistent with *Sec’y obo Richard Truex v.Consolidation Coal C*o., 8 FMSHRC 1293, 1299 (Sept. 1986). In *Truex*,the Commission found that the operator interfered with the miners’representative’s section 103(f) rights in violation of section 105(c)(l). As in*Stillion*, the Commission in *Truex* did not base its liabilityfindings on whether the operator was motivated by discriminatory animus. The Commissiontherefore ordered backpay, finding “Consol's attempt to use the Contract as adefense [to be] irrelevant.” *Id*. 

 

The record in this case isclear. Continental does not dispute that Otten would have earned a higher wage-rate on the shifts at issue if shehad not exercised her walkaround rights and instead accepted the availablemobile equipment assignment. In fact, Heather Ames testified that sheinstructed the payroll specialist to retract the pay upgrades “[b]ecause[Otten] was accompanying the MSHA [inspector] during an inspection.” Vol. II,Tr. 58-62, 67-68, 72. She further testified Otten “could say she didn’t want togo on the inspection. There are other miners’ reps.” Vol II, Tr. 79-80. Furthermore,in an email to her colleague Ames wrote “if Tara [Otten] is unavailable for a job, she is not available –no different than if she was on vacation or in the store house filling in, shewould not get the upgrade because junior people below her received the upgrade.She chooses to work with MSHA.” J Ex. 7-j. Ames confirmed, in a writtenstatement to MSHA, that Continental would not pay wage upgrades to miners’representatives when a less senior employee receives the upgrade. J Ex. 3.[7]Because Otten exercised her statutory walkaround rights, she suffered anadverse action (loss of pay in violation of section 103(f)).[8]

The operator argues that itcomplied with the Mine Act’s requirements when it paid Otten her Laborer rateof pay for time served as a miners’ representative. We disagree. Otten suffereda prohibited “loss of pay during the period of [her] participation in theinspection” when she was paid less for the shifts than she would have otherwiseearned. 30 U.S.C. § 813(f). Continental “unfairly penalize[d] the miner forassisting the inspector” contradicting the legislative purpose of the section.[9] S. Rep. No. 95-181 at 28-29, Legis. Hist. at 616-17.  

 

Additionally, Continentalargues that according to the CBA, Otten was only entitled to the wage upgradeprovided that she actually operated the mobile equipment.  In the event of aconflict between the terms of the parties’ agreement and the requirements of afederal statute, the statutory requirements take precedence. *See Barrentinev. Arkansas-Best Freight System, Inc*., 450 U.S. 728, 740-41 (1981) (“[W]ehave held that congressionally granted FLSA rights take precedence overconflicting provisions in a collectively bargained compensation arrangement.”);*see also**W.R. Grace and Co. v. Local Union 759*, 461 U.S. 757, 766(1983) (*citing Hurd v. Hodge*, 334 U.S. 24, 34-35 (1948) (“As with anycontract, however, a court may not enforce a collective bargaining agreementthat is contrary to public policy.”)). 

 

To the extent that the CBAmay conflict with section 103(f), the requirements of section 103(f) control. *Seealso**R. Mullins v. Beth-Elkhorn Coal Corporation*, 9 FMSHRC 891, 899(May 1987) (citations omitted) (“we do not decide cases in a manner whichpermits parties’ private agreements to overcome mandatory safety requirementsor miners’ protected rights; nor 

do weunnecessarily thrust ourselves into resolution of labor or collectivebargaining disputes.”). 

Anyagreement between mine operators and unions must meet or exceed the statutoryfloor.[10]

 

            Continentalmaintains that it did not discriminate against Otten or otherwise interferewith her rights, noting that during the same payroll processing period it alsoretracted the wage upgrades for Laborers that had performed carpentry work. Continentalmaintains it interpreted the CBA’s zipper clause as canceling all informal priorpay practices, including its informal practice of providing pay upgrades for workingas a miners’ representative or as a carpenter. The analogy Continental drawsbetween miner’s representatives and carpenters is inapposite, performingcarpentry work, in and of itself, is not a protected activity. Again, section103(f) protects the pay of miners performing the statutory role of a “miners’ representative”and is not superseded by any private agreement.

 

**B.   ****A Showing of DiscriminatoryAnimus is Not Required to Establish a Violation of Section 103(f).**

 

Continental argues that itdid not interfere with Otten’s section 103(f) rights in violation of section105(c)(1) because it was not motivated by a discriminatory animus. Continentalargues that the Secretary must demonstrate that Otten’s loss of pay wasmotivated by the exercise of protected activity in accordance with the *Pasula-Robinette*test for discrimination, in order for Continental to be liable for the allegedviolations of the Mine Act.[11]

 

The Secretary likewise arguesthat a finding of discriminatory animus is a necessary element of a claim. However,the Secretary maintains that the Judge’s alternative analysis – finding thatContinental was motivated by Otten’s exercise of protected rights when it retractedthe pay upgrades – is supported by substantial evidence. The Secretary reliesupon *Sec’y of Labor on behalf of Glover v. Consolidation Coal Co*., 19FMSHRC 1529 (Sept. 1997), in which the Commission applied the *Pasula-Robinette*test for discrimination and found that the operator violated section 105(c)(1)when it transferred the positions of two miners’ representatives in retaliationfor the exercise of their rights.

 

We disagree withContinental’s and the Secretary’s contentions. As established *supra*, theCommission has not required that a miners’ representative demonstrate that aloss of pay was motivated by discriminatory animus to prove unlawfulinterference with section 103(f) rights. In fact, permitting the operator toprovide an affirmative defense – as Continental seeks to do – would beinconsistent with the operator’s duty to comply with the explicit “no loss ofpay” requirement in section 103(f) of the Mine Act. *See Sec’y on behalf of Truex*,8 FMSHRC at 1299 (finding the operator’s affirmative defense “irrelevant”).

 

We also find *Glove*r tobe readily distinguishable. Transfers of positions are not generally prohibitedunder the Mine Act. A transfer is unlawful, however, when motivated bydiscriminatory animus in violation of section 105(c)(1). In contrast, the “lossof pay” while exercising rights as a miners’ representative is *always*expresslyprohibited by section 103(f) of the Mine Act, regardless of intent. 30 U.S.C. §820(a) (“The operator of a coal or other mine in which a violation occurs of amandatory health or safety standard or who violates any other provision of thischapter, shall be assessed a civil penalty by the Secretary . . . .”)*; see alsoNally & Hamilton Enterprises*, 38 FMSHRC 1644, 1650 (July 2016)(citations omitted) (“Because the Mine Act is a strict liability statute, anoperator is liable if a violation of a mandatory safety standard occurs,regardless of the level of fault.”). 

 

Accordingly, consistent with Commissionprecedent, we find that a showing of animus is not required to establish aviolation of section 103(f) and that *Pasula-Robinette* is not theappropriate test for evaluating a miners’ representative’s claim of an unlawfulloss of pay in that regard.[12]

 

**C.   ****We Affirm the Judge’sPenalty Assessment.**

** **

Continental additionallyargues that the Judge erred in assessing a $17,500 civil penalty. Section110(i) of the Mine Act, 30 U.S.C. § 820(i), provides that the Commission isauthorized to assess all penalties under the Mine Act and that such penaltiesmust reflect consideration of six statutory factors.[13]The Commission’s review of a Judge’s discretionary penalty assessment is atwo-step process. First, the Commission reviews the Judge’s findings on thepenalty factors for the support of substantial evidence and, second, theCommission reviews the Judge’s overall assessment for an abuse of discretion. *SolarSources I*, 42 FMSHRC 181, 208 (Mar. 2020).

 

Here, the Judge found thatthe operator’s previous violation history, size of the mine and the size of thecontrolling entity were all moderate. 44 FMSHRC at 159. However, the Judgeconcluded that the negligence and gravity factors were significant. *Id*. at158. 

 

Continental asserts that theJudge erred in his assessment of the mine’s violation history, failing toaccount for its lack of a prior history of section 105(c) violations. Continentalis incorrect. It is well established that the Commission considers theoperator’s *general* violation history, not just its history of similarviolations, when assessing a penalty. *See Solar Sources Mining*, *LLC,*43 FMSHRC 367, 373 (Aug. 2021) (citations omitted). 

Continental also argues thatthe Judge erred in his gravity finding. The operator wrongly maintains that theJudge should have considered its reliance on the CBA as a mitigating factor. 

 

We conclude that the Judge’sfindings are supported by the record and that the Judge did not otherwise abusehis discretion in assessing a civil penalty. *See American Coal Co. v. FMSHRC*,933 F.3d 723, 726 (D.C. Cir. 2019), *aff’g* 40 FMSHRC 1011 (Aug. 2018)(“we review the ALJ’s penalty calculation for an abuse of discretion.”); *seealso Donovan ex rel. Chacon v. Phelps Dodge Corp*., 709 F.2d 86, 92 (D.C.Cir. 1983) (Commission may not “substitute a competing view of the facts forthe view [an] ALJ reasonably reached.”); *Island Creek Coal Co*., 15FMSHRC 339, 347 (Mar. 1993) (“[i]t would be inappropriate for the Commission toreweigh the evidence ... or to enter *de novo*findings based on an independentevaluation of the record.”).  

 

Accordingly, we affirm thepenalty assessed by the Judge. 

 

 

**III.**

** **

**Conclusion**

** **

For the foregoing reasons, weaffirm the Judge’s decision in all respects.  

 

 

 

 

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

 

 

 

 

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

 

 

 

 

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

 

 

Commissioner Althen,concurring in part and dissenting inpart:

 

 

**I.**

** **

**The record supports a loss of pay in violation ofsection 103(f).**

** **

I concur that the Complainant, Tara Otten, suffered aloss of pay due to not receiving an upgrade in pay to the status of a MobileEquipment Operator (“MEO”) on the days in question. I emphasize that nothing isillegal or improper in paying a miner for the work the miner performs on agiven day. There is no legal deficiency with Article VI Section 9 of ContinentalCement Company, LLC’s (“Continental”) contract with the United Steel Workers ofAmerica.

 

Here, however, the record permits no conclusion otherthan that Otten would have worked as an MEO on the days in question and,therefore, would have received upgraded MEO pay for those days. She wasentitled to MEO pay for her time as a walkaround representative on those days. 

 

 

**II.**

** **

**The Commission should overrule thediscredited *Pasula/Robinette* standard and apply the “because” standardused in federal discrimination statutes.**

** **

            Section 103(f) does not provide a privateright of action for a miner to recoup a loss of wages. The miner must rely uponthe Mine Safety and Health Administration (“MSHA”) to recover lost pay. 

 

Two routes are available to MSHA. It may cite theoperator for a violation under section 104(a), 30 U.S.C § 814(a), for causing a loss of pay. For103(f) citations issued under section 104(a), a strict liability section, MSHAmust only prove a loss of pay from the miners’ representative’s participationin the inspection. A section 104(a) citation is straightforward and does notrequire proof of action motivated by protected activity. *See Magma CopperCo. v. Sec’y of Labor*, 645 F.2d 694 (9th Cir. 1981).

 

Alternatively, MSHA or a miner may file adiscrimination complaint under section 105(c). 30 U.S.C. § 815(c). Section 105(c) requires proof ofmotivation “because of” protected activities. As relevant, Section 105(c)(1) ofthe Mine Act provides:

 

No person shall discharge or in any manner discriminate againstor cause to be discharged or cause discrimination against or otherwiseinterfere with the exercise of the statutory rights of any miner . . . [1] ***becausesuch miner*** . . . has filed or made a complaint under or related tothis Act . . . or [2]***because such miner*** . . . is the subjectof medical evaluations and potential transfer under a standard publishedpursuant to section 101 or [3] ***because such miner*** . . .has instituted or caused to be instituted any proceeding under or related tothis Act or has testified or is about to testify in any such proceeding, or[4] ***because of the exercise by such miner*** ... on behalfof himself or others **of any statutory right afforded by this Act**.

 

30U.S.C. § 815(c)(1) (emphasis added).

* *

The Secretary asserted a section 105(c) violation inthis matter. By doing so, the Secretary accepted an obligation to prove itsclaim under the statute’s requirements.[14]

 

The Commission’s traditional standard of proof for asection 105(c) discrimination violation has been the *Pasula-Robinette*test. *Sec’y of Labor on behalf of Pasula v.Consolidation Coal Co.*, 2 FMSHRC 2786(Oct. 1980), *rev’d on other**grounds*,**663 F.2d 1211(3d Cir. 1981); *Sec’y of Labor on behalf of Robinette v. UnitedCastle Coal Co.*, 3 FMSHRC 803 (Apr.1981). Under that test, the complainant or Secretary establishes a prima faciecase of discrimination by proving (1) that theminer engaged in a protected activity and (2) that the adverse action wasmotivated in any part by the protected activity. The operator may raise anaffirmative defense by claiming it would have taken the same action for areason other than protected activity. Despiteits years as the Commission standard, it is now clear the *Pasula-Robinette*test is invalid.

 

In 2021, the United States Court ofAppeals for the Ninth Circuit invalidated the *Pasula-Robinette* test,holding: “Section 105(c)’s unambiguous textrequires a miner asserting a discrimination claim under Section 105(c) to provebut-for causation.” *Thomasv. CalPortland Co.*, 993F.3d 1204, 1211 (9th Cir.2021). The *CalPortland*case focused squarely upon section105(c). The Commission must now apply that standard in cases within the NinthCircuit. However, more compelling is that the circuit court’s holding iscorrect. Indeed irrefutable. In *CalPortland*, the circuit court citednumerous Supreme Court decisions. *Id.* at 1209-10, *citing**Univ. of Tex.Sw. Med. Ctr. v. Nassar*, 570 U.S. 338 (2013); *Gross v. FBL Fin. Servs.*, 557 U.S. 167 (2009). Those cases andCalPortland compel the application of the but-for standard to section 105(c)cases.

 

As the inevitable result of *CalPortland*, Judges now hedge their decisions byreferring to *Pasula-Robinette*and*CalPortland*. Continued citation to *Pasula-Robinette* willinevitably result in parties and Commission Judges trying, arguing, anddeciding cases under two standards. In this case, the Judge added a tagline inthe decision that he would have reached the same result under the but-forstandard. Such pro forma references to but-for causation may result, as in thiscase, in a minimized finding of but-for causation without meaningfuldiscussion. The Commission should forego whistling *Pasula-Robinette* inthe wind and formally adopt the proper standard. The correct issue on thisappeal is whether Continental's insufficient payment was “because” of animositytoward the exercise of walkaround rights. In other words, we should apply thebut-for standard and decide the issue based on whether the preponderance of theevidence shows protected activity-motivated discrimination.

 

However, application of *Pasula-Robinette*, inthis case, would not change the result because that test requires proof ofcausation based upon protected activity. Here, the majority fails to apply anycausation standard without explaining why an explicit element of section 105(c)does not apply to section 103(f) cases.

 

In 2016, the Commission rejected a challenge to *Pasula-Robinette*.*Sec’yof Labor on behalf of Riordan v. Knox Creek Coal Corp.*, 38 FMSHRC 1914, 1919-21(Aug. 2016). However, times change, and Commission Judges now plot a course betweentwo tests. It is time for the Commission to recognize the inevitability of theproper test for discrimination and adjust its test to the correct “but for”standard. 

 

 

**III.**

 

**The record does not containsubstantial evidence that Otten received her regular pay “because” she acted asa miners’ representative. Continental’s human resource manager decided theappropriate pay “because” of Continental’s collective bargaining agreement withOtten’s union.**

** **

**A.  Relevant facts**

** **

            Continental operates the Hannibal UndergroundMine in Missouri. The United Steel Workers of America represents the hourlyemployees at the plant. The Union negotiated a collective bargaining agreement(“CBA”) with Continental for union-represented employees, including Otten. Aswith most union contracts, the CBA created classified employee positions andestablished pay rates for each classification. 

 

            Two classifications were Laborer andMobile Equipment Operator. Laborersarehourly-rateemployeeswhoperformprimarilygeneralclean-up work throughouttheplant,lawn work,labor workinvolvedinrefractoryreplacementin kiln andcooler, snowremovalfromroadwaysand sidewalks,andpainting. A Laborer isexpectedto be capable of operating varioustypes of mobileequipmentasneeded. Of course, the work of an MEO isto exclusively operate mobile equipment.

            The CBA pay rates provide slightly morethan $3.00 per hour additional pay for employees classified as MEO workers. TheCBA, however, also provides that management could require a Laborer to performMEO work. When a Laborer does so, the CBA requires Continental to pay the MEOclassification wage rate, stating, “[w]hen workofa higherpaid classificationis requiredofanyemployee,he/sheshallreceive thehigherrateofpayforaminimumof four hours.” J. Ex. 4, at 14. Under theCBA, this upgraded pay depended upon the performance of MEO work. If a Laborerperformed MEO work for less than four hours, the Laborer received the higherrate for four hours. If the employee performed MEO work for more than fourhours, the employee received MEO pay for the entire day.[15]

 

            Otten’s default classification wasLaborer. She also was a miners’ representative. All agree that she frequentlyperformed MEO work and received the upgraded pay according to the CBA when sheperformed such work. Continental paid her according to her classification as aLaborer when not performing such work.

 

On the dates in question, Otten had or would have hadthe opportunity to perform MEO work at the MEO pay rate. On those dates,however, an MSHA inspector was present at the mine, and Otten chose to exerciseher walkaround rights with the MSHA inspector. It is undisputed that based uponexperience, Otten would have taken that opportunity for MEO work had she notchosen to exercise the right of a miners’ representative. 

 

            Initially, Otten received pay at the rateof an MEO for the days in question. Subsequently, a Continental Human Resourcesspecialist, Heather Ames, reviewed Continental’s pay records including those ofOtten and two other union-represented workers. According to Ames, she alonedecided to apply the terms of the CBA. Ames found that Otten did not performMEO work on certain days and, therefore, was not entitled to upgraded MEO payunder the CBA. On the same day, Ames reversed the paid upgrade for the twoother employees because the upgrade pay provision did not apply to them. Amestestified that she later found that she had made a mistake for certain days andthen partially reinstated the upgrades for Otten. 

 

            The evidence establishes that Ames madethese pay decisions based on the terms of the CBA. Ames testified that she, andshe alone, decided to reduce the pay and then partially upgrade the pay of Ottenand other workers. No witness or evidence impeached Ames’ testimony that shemade these decisions. 

**B.  The Judge’s Decision****

** **

The Judge’s decision initially recognized that *Pasula-Robinette*is the Commission’s test for discrimination. He correctlyfound that under that test, a miner proves discrimination “when [she]proves by a preponderance of the evidence that the miner (1) engaged inprotected activity, (2) suffered an adverse action, and (3) the adverse actionwas motivated in any part by that protected activity.” 44 FMSHRC 121, 148 (Feb.2022) (ALJ).

 

The Judgeacknowledged that “it is true that theCommission has applied the *Pasula-Robinette*framework in [s]ection103(f) walkaround cases.” *Id.* at 149. Immediatelyafter that, however, the Judge asserted that he did not need to apply the thirdfactor (adverse action motivated in any part by that protected activity)of *Pasula-Robinette* to find a violation of section 103(f). 

 

The Judge concluded, “theCourt does not believe that the Secretary *must*show, per the *Pasula-Robinette*framework, that Continental’s refusal to pay Otten the wage upgrades wasmotivated by Otten’s walkaround activities.” *Id.*[16] Incredibly, the majority now accepts the Judge’s deeply flawedreasoning and states violations of section 105(c) need not contain any elementof expressly required causation.

Finally, after a briefdiscussion of the penalty factors, the Judge imposed a penalty of $17,500. 

 

**C.  ToPrevail on a Section 105(c) accusation, the Secretary Must Prove Three Factors:**

**ProtectedActivity, Adverse Action, and Adverse Action Because of the Protected**

**Activity.The Majority Errs by Disregarding the Necessity for Finding Causation**

**byProtected Activity.**

** **

      The majority correctly, albeit implicitly,decides that the Secretary did not prove the violation of section 103(f) was“because of protected activity.” The Secretary introduced inconclusive evidenceto suggest that certain supervisory employees of Continental may have harboredill feelings toward Otten due to other safety activities. However, the recordclearly demonstrates that Ames, and Ames alone, decided to pay Otten Laborerwages per the CBA. 

 

As the Judge fleetingly acknowledged but thenabandoned, motivation is critical for finding a violation of section 105(c). Indeed,all three elements—protected activity, adverse action, and motivation by theprotected activity—are expressly articulated in the statute and are necessaryto establish discrimination. Indeed, one might conclude that motivation is thelynchpin of section 105(c) violations. Each day miners raise issues related to safety,thereby engaging in protected activity. Each day operators take adverse actionsregarding miners. Section 105(c) crucially mandates that discrimination occursonly when the protected activity motivates the adverse action. 

 

It is in this respect that the majority departed fromthe law. The majority declares by fiat that a clearly expressed requirement fora section 105(c) violation does not apply if the case involves section 103(f). Themajority does not provide any support or explanation for arbitrarily dismissingan explicit factor for a violation. Nowhere does the majority explain why theexpress language of section 105(c) unambiguously requiring motivation does notapply in a section 103(f) context.

Circuit court cases uniformly recognize that “because”in section 105(c) means “because” and, therefore, a complainant must establisha motivational nexus between the protected activity and adverse action. *Seegenerally**CalPortland Co.*, 993 F.3d at 1208-1211; *Harrison CountyCoal Co. v. FMSHRC*, 790 Fed. Appx. 210, 213 (D.C. Cir. 2019); *Con-Ag,Inc. v. Sec’y of Labor*, 897 F.3d 693, 700-02 (6th Cir. 2018); *Cumberland River Coal Co. v. FMSHRC*, 712 F.3d 311, 318 (6th Cir. 2013); *Donovan exrel. Chacon v. Phelps Dodge Corp.*, 709 F.2d 86, 88 (D.C. Cir. 1983).

 

The importance of section 103(f) neither requires norsuggests tarring Continental with a discrimination tag based upon Ames’ beliefthat, per the CBA, Otten was only entitled to Laborer’s wages. The majorityfinds discrimination by removing the necessary element of motivation from asection 105(c) violation, even though the Secretary concedes it is necessary.

 

In disclaiming the express requirement of the MineAct, the majority does not cite the words of the Act, legislative history, orany policy requisite. Without meaningful analysis, the majority would establishthat a violation of section 103(f) is a per se violation of section 105(c). Indoing so, it primarily relies on one case. *Stillion v. Quarto Mining Co.*,**11 FMSHRC 523 (Apr. 1989) (ALJ), *aff’d* 12 FMSHRC 932 (May 1990).[17]

*Quarto* doesnot support the majority “per se” concept. At best, the ALJ and Commissiondecisions are cursory. To the extent the decisions recite facts, it is clearthe failure to pay arose from the operator’s animus to the walkaround. Theoperator refused to pay a miner any money “because” he did the walkaround withan MSHA inspector. Moreover, the Commission did not even discuss the standardsfor finding a section 105(c) violation or any issue of motive or causation.

 

In *Quarto*, a miner alleged violations ofsections 103(f) and 105(c). The ALJ decision does not discuss *Pasula-Robinette*or any elements of section 105(c). Having not discussed section 105(c) in hisdecision, the ALJ did not discuss any requirements for finding a section 105(c)violation. The entirety of the ALJ’s finding is: “Respondentviolated § 103(f) of the Act by refusing to pay Complainant his regular rate ofpay for his time spent accompanying a federal mine inspector on October 6, 7,and 8, 1987.” 11 FMSHRC at 527. The Judge did not make any findingconcerning section 105(c) or its necessary elements. Had the Judge consideredmotivation, he would have found it in the case. Further, the Judge did notimpose any penalty upon the operator nor invite MSHA to do so. *See Stillionv. Quarto Mining Co.*, 11 FMSHRC 875 (May 1989) (supplemental decision ondamages). 

 

Upon review, the Commission mistakenly stated at theoutset of its decision that the Judge had found discrimination. However, theCommission’s conclusion of law did not find a section 105(c) violation. TheCommission’s concluded “that in the circumstancesof the present case Stillion had a right to walkaround pay under section103(f).” 12 FMSHRC at 939. As with the ALJ’s decision, the Commission’sdecision did not discuss the essential elements of discrimination, *Pasula-Robinette*,or motive or causation, let alone dispense with motivation as an element ofsection 105(c). Further, the Commission also did not impose a penalty. 

Therefore,*Quarto*supports a section 103(f)violation. However, *Quarto* does not reach a legal conclusion that asection 105(c) violation occurred, does not discuss the requirements for asection 105(c) violation, would have found motivation under the facts of thecase, and does not support a claim of per se violations. 

 

The majority expressly recognizes that the Secretaryargues that a finding of discriminatory animus is a necessary element of aclaim. Slip Op. at 7. The Secretary does not contend that violations of section103(f) are per se violations of section 105(c). The Secretary’s failure to makesuch an argument is an appropriate recognition that section 105(c) requiresmotivation (causation) arising from protected activity. The Secretary’sposition is correct. 

 

**IV.**

 

**The Facts Suggest Only a Small Penalty.**

 

The Mine Act sets forth six factors in settingpenalties: (1) effect on the operator’s ability to continue in business; (2) anappropriate reduction for demonstrated good faith of the person charged inattempting to achieve rapid compliance after notification of a violation; (3)the appropriateness of such penalty to the size of the business of the operatorcharged; (4) the operator’s history of previous violations; (5) whether theoperator was negligent; and (6) the gravity of the violation. 30 U.S.C. §820(i).

 

Factors one and two play no role in this case. Theproposed penalty would not affect the ability of the operator to continue inbusiness. The statute allows mitigation of penalties when an operator actsrapidly to achieve compliance. In this case, believing in the legality of itsuse of the CBA, Continental continued to make payments in the same fashionafter the Secretary filed the complaint. The failure to capitulate immediately tothe Secretary’s legal position with which an operator in good faith disagreesis not a reason to increase the penalty. Regarding size, the Hannibal mine is amid-size operation, so size does not weigh heavily for or against a particularpenalty. 

 

Despite a long operational history, Continental has nohistory of a prior finding of a violation of section 103(f). The present caseis a one-off in which the operator incorrectly thought it should use the CBA. Ofcourse, even in discrimination cases, the Commission also considers theoperator’s history of safety violations. However, strict liability violationsof operational safety rules have little to do with a tendency of an operator tobe motivated to retaliate against a miner based on protected activity. Certainly,the absence of even one prior violation weighs heavily in favor of a lowpenalty. 

 

It is difficult to know what to make of the ALJ’sbrief discussion of negligence. The ALJ cites a Commission decision to proposethat the negligence issue is whether the operator engaged in intentionalconduct in committing the violation rather than whether it intended todiscriminate. 44 FMSHRC at 157, *citing Sec’y**on behalf of Poddey v.Tanglewood Energy, Inc*., 18 FMSHRC 1315, 1319 (Aug. 1996) (CommissionersMarks and Riley).[18] Continental’s actions were intentional to the extentAmes’ decision to apply the CBA was intentional. In *Tanglewood Energy*,the Commission found that, although the conduct was intentional, the actionsconstituted low negligence. *Id.* at 1319-20. Continental, through Ames,had an objective, albeit mistaken, belief that it should apply the CBA toOtten’s work. Continental’s legal position was untenable. However, there is noevidence that Continental took the position in bad faith or, in taking anincorrect position, it failed to exercise reasonable care. Thus, substantialevidence supports that negligence is a minor factor in the penaltyconsideration.

 

Interestingly, *Tanglewood* has greater relevanceto the gravity consideration than negligence. In *Tanglewood*, theCommission rejected the Secretary’s argument that every section 105(c)violation must be presumed to have a chilling effect. *Id.* at 1320. Aswith any violation, the gravity of section 105(c) violation must be based on theevidence.

 

Objective and subjective evidence determine gravity. *Id.*at 1321. The subjective element is the chilling effect upon miners thatrests upon “the testimony of the complainant orother miners.” *Id*., *citing Sec’y on behalf of Johnson v. Jim WalterRes., Inc.*, 18 FMSHRC 552, 558 (Apr. 1996). From an objectivestandpoint, the question is whether there is evidence that the incident“reasonably tended to discourage miners from engaging in protected activities.”*Id*. 

 

In this case, the Secretary presented noevidence of any subjective or objective discouragement of such activity. TheSecretary did not present any objective data or measurement showing any adverseeffect upon Continental’s miners. Otten was the only hourly miner whotestified, and her continued performance of walkaround activities demonstratesthat she was not discouraged. Thus, there is no evidence of a subjective chillupon miners. In sum, there is no evidence that this one-time occurrence had anysubjective or objective adverse effect on Continental’s miners’ willingness toexercise their statutory rights. As with all factors of a penaltyconsideration, we must base the decision regarding gravity on evidence and nota Judge’s desire to punish an operator. The gravity factor is low without anysubjective or objective evidence of a chilling effect.

 

In summary, the effect on the ability to stay inbusiness and mitigation through abatement are irrelevant here. Continental’ssize is moderate. The absence of any prior violation cuts in favor of a lowpenalty. Ames’ actions were intentional in that she intended to do what she didbut unintentional in any sense of a knowing violation of section 105(c). Finally,there is no subjective or objective evidence of a chilling effect. So, thegravity is low.

 

 

**V.**

 

**Conclusion.**

** **

Here, the majority’s unwarranted decision to delete afundamental element from section 105(c) is more than a wrong result. Thedecision muddies proof of section 105(c) violations when the disparity between *Pasula-Robinette*and *CalPortland* already troubles the water. It creates uncertaintyregarding whether there are other situations in which a majority mightsubstitute its own wishes over that of Congress and decide by fiat to alter thestatute’s requirements. For the first time, it creates a per se violation ofsection 105(c). It fails to explain why a section 103(f) violationautomatically violates section 105(c), even though finding a section 103(f)violation vindicates the miner’s rights. 

 

The Commission should find a violation of section103(f). The evidence does not show Continental’s actions were because ofprotected activity. Continental did not violate section 105(c). The violationof section 103(f) warrants no or only a minor penalty. 

 

I concur with the violation of section 103(f) andrespectfully dissent from the finding of a violation of section 105(c) and theassessed penalty.

 

 

 

 

/s/ William I. Althen

William I. Althen, Commissioner

 

 

 

Emily O. Roberts, Esq.

Senior Trial Attorney

Office of the Solicitor

U.S. Department of Labor,

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

Roberts.Emily.O@dol.gov

 

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor 

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

Scott.Emily.T@dol.gov

 

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

Nelson.April@dol.gov

 

Thomas. R. Chibnall, Esq.

Ogletree, Deakins, Nash, Smoak &Stewart, P.C.

7700 Bonhomme Ave., Suite 650

St. Louis, MO 63105

Thomas.Chibnall@ogletree.com

 

R. Lance Witcher, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart,P.C.

7700 Bonhomme Ave., Suite 650

St. Louis, MO 63105

Lance.Witcher@ogletree.com

 

 

Melanie Garris

Civil Penalty Compliance Division Chief

U.S. Department of Labor

Office of Assessments

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202

Garris.Melanie@dol.gov

 

Chief Administrative Law Judge Glynn F.Voisin

Federal Mine Safety & Health ReviewCommission

1331 Pennsylvania Avenue, NW, Suite 520 N

Washington, DC 20004-1710

GVoisin@fmshrc.gov

 

Administrative Law Judge William B. Moran

Federal Mine Safety & Health ReviewCommission,

1331 Pennsylvania Avenue, NW, Suite 520 N

Washington, DC 20004-1710

WMoran@fmshrc.gov

----

[1]Section 105(c)(1), 30 U.S.C. § 815(c)(1), providesthat:

 

 [n]o person shall discharge or in any manner discriminateagainst . . . or cause discrimination against or otherwise interfere with theexercise of the statutory rights of any miner, representative of miners . . . becauseof the exercise by such miner, representative of miners . . . on behalf ofhimself or others of any statutory right afforded by this Act.

[2] According to the CBA’s Wage Rate Schedule,effective May 5, 2019, the Laborer rate was $25.05 an hour and the MobileEquipment Operator hourly rate was $28.21. Effective May 3, 2020, the Laborerhourly rate was $25.68, and the Mobile Equipment Operator hourly rate was$28.92. Jt. Stip. at 21.

 

[3]Specifically, Otten participated in MSHAinspections that took place on March 24, 2020; March 25, 2020; March 26, 2020;March 31, 2020; April 1, 2020; April 2, 2020; June 9; 2020; July 8, 2020; July14, 2020; July 15, 2020; July 21, 2020; July 22, 2020; January 28, 2021; andJanuary 29, 2021. Jt. Stip. 30. 

[4]Continental later reinstated partial payupgrades for March 31 and full upgrades for April 1-2 because Otten performedmobile equipment work during those shifts. Jt. Stip. 57, 77. Otten operatedmobile equipment after finishing her duties as a miner’s representative. 

 

[5]On January 29, 2021, Otten became a full-timeMobile Equipment Operator. 

[6]The parties’ arguments addressing animus and the*Pasula-Robinette* test are addressed *infra* in subsection B.

 

[7]Our dissenting colleague claims that the Secretarysubmitted only “inconclusive” evidence regarding animus to support a findingthat the violation was motivated by protected activity. Slip op. at 14. Whileour analysis as set forth herein does not turn on an evaluation ofContinental’s motivation, we note the record evidence described above. 

 

[8] Also, our dissenting colleague claims the majorityhas arbitrarily dismissed a statutorily required element of section 105(c) byignoring the operator’s motivation. Slip op. at 14-15.  However, what thestatute explicitly requires is *causality*. 30 U.S.C. § 815(c)(1) (noperson shall discriminate against a miner “because of” the exercise of astatutory right). None of the cases cited by our colleague support hisproposition that the definition of “because” must inherently require a showingof motivation. Slip op. at 14. Of course, in standard discrimination cases**motivationhas traditionally played a critical role in establishing causality. However, asdiscussed further below, we find that discriminatory motivation is not requiredto establish causality under the conditions of this case. The record clearlyshows that this miner suffered a loss expressly prohibited by the Act becauseof**her exercise of an expressly protected right. A finding ofdiscrimination is consistent with the statutory requirements of section 105(c).

 

[9]Continental also alleges that previous decisionsof Commission Administrative Law Judges support its position. To the contrary,we conclude that the Judge’s decision in this matter is consistent withprevious decisions of our Judges. In any event, CommissionJudge’s decisions are not precedential according to Commission Procedural Rule69(d), 29 C.F.R. § 2700.69(d).

 

[10]Furthermore, the evidence demonstrates that onat least one occasion Otten was not assigned to operate mobile equipment, butwas provided with upgraded pay because a junior Laborer was assigned to operatemobile equipment. The CBA provides Continental management with the discretionto grant unilateral wage increases. Vol II, Tr. 93-94. 

[11]According to the *Pasula-Robinette*framework, in order to establish a prima facie case under section 105(c)the complainant must establish that the adverse action was motivated in anypart by the complaint’s exercise of protected activity. *Sec’y on behalf ofPasula v. Consolidation Coal Co., 2* FMSHRC 2786, 2799 (Oct.1980), *rev'd on other grounds* 663 F.2d 1211 (3rd Cir. 1981); *Sec'yon behalf of Robinette* v. *United Castle Coal Co.*, 3FMSHRC 803, 817-18 (Apr. 1981). An operator may defend affirmatively against aprima facie case by proving that it was also motivated by the miner'sunprotected activity and would have taken the adverse action for theunprotected activity alone. *See Robinette*, 3 FMSHRC at 817-18; *Pasula,2** *FMSHRC at 2799-800; *see also **EasternAssoc. Coal Corp. v. FMSHRC*, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying *Pasula-Robinette* test).

* *

The Ninth Circuit has rejected the *Pasula-Robinette*test in *Thomas v. CalPortland Co*., 993 F.3d 1204, 1209-10 (9th Cir.2021). *Thomas* has been remanded to the Commission and remains a pendingmatter on our docket. Continental’s Hannibal mine is located in the EighthCircuit, and thus the Ninth Circuit ruling is not binding. Nevertheless, the Judge found that theloss of pay to Ms. Otten would not have occurred “but for” her engaging as aminers’ representative during a walkaround inspection. We concludethat the Judge’s findings under his alternative analysis are supported bysubstantial evidence, reasonable inferences drawn from the record, and properconsideration of relevant testimony. 

[12]We make no other finding regarding the *Pasula-Robinette*test in this proceeding.

[13][1] the operator’s history of previousviolations, [2] the appropriateness of such penalty to the size of the businessof the operator charged, [3] whether the operator was negligent, [4] the effecton the operator’s ability to continue in business, [5] the gravity of theviolation, and [6] the demonstrated good faith of the [operator] charged inattempting to achieve rapid compliance after notification of a violation. 30U.S.C. § 820(i). 

[14] The majority finds the Administrative Law Judge(“ALJ”) grounded his decision on the basis that it was unnecessary to prove thestatutorily required elements of discrimination. The majority errs in acceptingand endorsing the Judge’s error. It is startling to read the majority describesection 105(c) as a strict liability section to which intent does not apply. Theconcept of strict liability in the Mine Act is derived from the section 110(a)of the Act (30 U.S.C. § 820(a)) which authorizes the imposition of civilpenalties for violations of mandatory health or safety standards. *See AlliedProd. Co. v. FMSHRC*, 666 F.2d 890, 893 (5th Cir. 1982). I disagree with themajority’s attempt to expand strict liability into section 105(c) proceedings,beyond what Congress clearly intended. Moreover, if strict liability is to beincorporated into section 105(c) proceedings, the majority’s decision must beread to only do so in the limited context of a section 103(f) contest. To dootherwise would present a major change in long-standing Commission precedentand fly directly in the face of the plain letter of the law. 

[15] Article VI, Section 9 of the CBA provides:

 

When work ofa higherpaidclassification is requiredofanyemployee,he/sheshallreceive thehigherrate ofpayforaminimumof four hours.Iftheemployeeexceedsfour hours ofwork atthehigherclassification,then he/she shallreceivethehigherrateof payfortheentireday.Whenwork ofalowerpaid classificationis temporarily required of anyemployee,he/sheshallreceivehis/herregular straighttimehourlyrateof pay. 

 

J Ex. 4, at 14; Jt. Stip. 23.

[16] It may be that the Judge felt and Commissionmistakenly feels a need to find a violation of section 105(c) for Otten toprevail on the section 103(f) claim or that prevailing on the section 103(f)automatically required a finding of discrimination. That would be incorrect. MSHA’sfiling of the discrimination claim was sufficient to put both the right to payand the occurrence of discrimination before the Commission. A supported findingof a failure to meet the requirements of section 103(f) may then be madeseparately even when the Secretary does not prove discrimination under section105(c). 

[17] The majority mischaracterizes the facts and decisionin *Sec’y on behalf of Truex v. Consolidation Coal C*o., 8 FMSHRC 1293(Sept. 1986). The Commission in *Truex,* expressly included “motivation”as part of the proof for a section 105(c) violation. Further, it explained thatan operator could defend a 105(c) case by showing the action was not motivatedby protected activity. *Id*. at 1297. The facts were that the safetysupervisor knew Truex was a miner’s representative and that he intended toattend a meeting with an MSHA inspector who would be arriving momentarily. Nonetheless,the safety supervisor ordered Truex to report to work at a location that wouldhave prevented Truex from accompanying the inspector. Truex was forced to takeunpaid leave in the form of “union business” to attend the meeting and was thenbarred from working for the rest of his shift. The operator claimed that,pursuant to the union contract, a miner could not be paid for a partial shiftif he had claimed to be on “union business.” The Commission found that thecontract was irrelevant to the defense of the section 105(c) allegations, notbecause a union contract could not be used to demonstrate the operator’smotivation, but because the discrimination happened before the operator invokedthe contractual terms and was thus irrelevant. *Id*. at 1299. There is noresemblance to this case in which the operator did not take any action toprevent the miner’s exercise of walkaround rights and paid the miner for thetime spent on the walkaround.

[18]In determiningnegligence, the Commission considers whether an operator has met its duty ofcare. The Commission considers the actions of a reasonably prudent personfamiliar with the mining industry, the relevant facts, and the purpose of the regulation. *Leeco,Inc**.*, 38 FMSHRC 1634, 1637 (July 2016). In short, did the operator act with the prudence a reasonable operator wouldhave exercised under the same or similar circumstances.