We can envision situations where actions by mine operators may constitute actionable
interference under section 105(c) absent motivation to inhibit miners’ protected activity. An
obvious example is the fact pattern described in Gray, where the Commission found interference
although the Judge accepted Brummett’s testimony that he was only joking with Gray and that
no threat occurred. 27 FMSHRC at 5.

At least one Commission Judge has described how demanding proof of motivation as a
requirement in interference cases would permit operators to interfere with statutory rights for
reasons that would not be actionable. Commission Judge John Kent Lewis noted, “[a]ccording
to the Pepin test,'” an agent of the operator would be legally permitted to interfere with a miner’s
statutory rights because he doesn’t like the miner, because there was a lack of resources, because
he was ignorant of the miner’s statutory rights, or a host of other reasons that are not motivated
by the exercise of statutory rights.” Wilson v. Armstrong Coal Co., 39 FMSHRC 1072, 1092
(May 2017) (ALJ), review granted June 15, 2017. Thus, the interpretation of section 105(c)
advanced by our colleagues, like the interpretation by the Operators, would lead to absurd
results: in some circumstances, policies intruding upon the Mine Act’s broad protections would
escape corrective action under section 105(c).

Moreover, we note that both the Operators and our colleagues assert that their respective
interpretations of section 105(c) represent the “plain meaning” of the statutory language. The
obvious conflict between these allegedly “plain” meanings suggest that section 105(c) actually is
ambiguous, and not subject to resolution under Chevron I analysis. See American Coal Co., 796
F.3d at 24-25,

D. Deference to the Secretary’s Interpretation is Warranted.

Given our conclusion that the alleged “plain meaning” interpretations by the Operators
and our colleagues lead to absurd results, and thus that section 105(c) is ambiguous as to whether
proof of motivation is required in an interference claim, we next consider whether it is
appropriate to defer to the Secretary’s interpretation of the statutory language pursuant to
Chevron II analysis.

As noted above, the Secretary submits that an action constitutes interference in violation
of section 105(c)(1) if:

(1) a person’s action can be reasonably viewed, from the
perspective of members of the protected class and under the
totality of the circumstances, as tending to interfere with the
exercise of protected rights, and

17 Tudge Lewis was discussing Judge David Barbour’s decision in Secretary obo Pepin v.
Empire Iron Mining Partnership, 38 FMSHRC 1435, 1453-54 (June 2016) (ALJ), a decision
whose thesis that in a claim of unlawful interference under section 105(c) the Secretary has the
threshold burden of proving the operator’s unlawful motivation is echoed by our colleagues’
opinion in this case.

20


B. Inclusive Communities Cannot Serve as a Template for Interpretation
of Section 105(c).

Inclusive Communities is predicated entirely on the principle that cases of racial
discrimination in housing may be based on the disparate impact that facially-neutral policies may
have on racial or ethnic minorities.'? The Secretary did not cite to Inclusive Communities before
the Judge below, nor did the Secretary introduce any evidence pertaining to, or make any
argument concerning the applicability of, disparate-impact analysis to the facts in this case.
Thus, there are no distinct classes against whom any statistical or other objective analysis may be
applied in order to infer an improper basis for the circumstances in which the law has found
them.

As Inclusive Communities and other disparate-impact cases have made clear, a showing
of discriminatory effect requires a sophisticated and thorough exposition grounded on record
evidence. “A plaintiff who fails to allege facts at the pleading stage or produce statistical
evidence demonstrating a causal connection cannot make out a prima facie case of disparate
impact.” Inclusive Communities, 135 S. Ct. at 2523. None was provided below. Thus, the
Secretary seeks to introduce before the Commission an entirely new argument upon which the

2 The historical background of racial discrimination in housing and its persistent effects
demonstrate why disparate-impact analysis was necessary to determine causation. Both before
and after the Fair Housing Act, the federal government actively supported racial segregation for
decades. See Federal Housing Administration, Underwriting Manual, pt. 2, 228 (Apr. 1936),
https://catalog.hathitrust.org/Record/002137289 (last visited June 26, 2018). Outlining a policy
known as “redlining,” the Federal Housing Administration expressly approved of segregation
and racial covenants to prevent minorities from purchasing homes and urged federal evaluators
to “investigate areas surrounding the location to determine whether or not incompatible racial
and social groups are present, to the end that an intelligent prediction may be made regarding the
possibility or probability of the location being invaded by such groups.” Jd. § 233. For an
saddeningly long period, government, including in the provision of mortgage assistance and
public housing assistance, entrenched institutional racism and furthered segregation. See, e.g.,
Gautreaux v. Romney, 448 F.2d 731, 739, 740 (7th Cir. 1971) (“It also is not seriously disputed
on appeal that the Secretary exercised the above described powers in a manner which
perpetuated a racially discriminatory housing system in Chicago, and that the Secretary and other
HUD officials were aware of that fact.”) (granting summary judgment for plaintiffs for violations
of the Fifth Amendment and the Civil Rights Act of 1964); Young v. Pierce, 628 F. Supp. 1037,
1053 (E.D. Tex. 1985) (“The actions complained of here are not in any sense facially neutral:
HUD supports those authorities it knows to discriminate.”). It is against this background of
government-assisted and government-subsidized racism that the Supreme Court adopted a
disparate-impact theory of discrimination in Inclusive Communities — a far different historical
context than that presented in this case. To be analogous, one would be required to show that the
federal government, after passage of the Mine Act, had mine regulators working to suppress
protected activity by miners. There is not a scintilla of evidence suggesting support for a parallel
in the Mine Act experience to the government’s suppression of fundamental civil rights in the
exercise of official state housing policy.

41


without any such evidence there is no basis to find the Operators introduced the plan “because”
of protected activity. The Secretary made no effort to introduce such evidence in this case.

B. The Legislative History of Section 105(c)(1) Supports the Plain
Language’s Imperative for a Motivational Nexus.

Because the language of the law plainly excludes the Secretary’s distortion, it is
unnecessary to resort to legislative history. However, for purposes of a complete analysis, we
note that the revisions made to section 105(c) of the Mine Act from its antecedent strengthened
the requirement that actionable misconduct must be motivated by protected activity, and that the
history shows that Congress clearly intended that improper actions be proscribed because of their
relationship to protected activity.

Section 105(c)(1) is similar in purpose to its predecessor, section 110(b)(1) of the Coal
Act, which used terms synonymous with those employed in the Mine Act. The earlier provision
stated:

No person shall discharge or in any other way discriminate against
or cause to be discharged or discriminated against any miner or
any authorized representative of miners by reason of the fact that
such miner or representative (A) has notified the Secretary or his
authorized representative of any alleged violation or danger, (B)
has filed, instituted, or caused to be filed or instituted any
proceeding under this Act, or (C) has testified or is about to testify
in any proceeding resulting from the administration or enforcement
of the provisions of this Act.

83 Stat. 758-59. The changes made to the Coal Act’s protections in Section 110(b) in drafting
Section 110(c) of the Mine Act reinforced the requirement for motivation — literally. The Act’s
structure was changed to ensure “because” or “because of” was appended to each class of
protected activity, making clear that improper motivation is essential to a finding of violation.

This change to emphasize by repetition the integral nature of the motivational
requirement forecloses any misreading here. In essence, in the Mine Act, Congress repeated and
amplified the requirement that the Secretary prove that an operator acted “because of” some
prohibited reason. The motivational nexus set forth in the Mine Act flows logically from the
antecedent Coal Act.

The Secretary intones the intents and purposes of the Mine Act, but its legislative history
contains not a shred of authority for applying any type of disparate-impact analysis, or for
discarding Congress’ plain and direct articulation of violative interference. Indeed, the
legislative history demonstrates the overarching relevance of the exercise of miners’ rights under
the Act, stating as a goal the protection of miners against forms of interference with those rights,
such as “threats of reprisal.” S. Rep. No. 95-181, at 36, reprinted in Legis. Hist. at 624. For
there to be a threat of reprisal there must be an action that triggers the threat — that is, there must
be a cause for the reprisal.

37


The historical record, in fact, suggests that the contrary is true. The Commission as a
whole has never varied from the need to show motivation in the more than 30 years since
adopting the Pasula-Robinette framework. Here, our colleagues pursue the abstraction the
Secretary has thrown them to suggest easing his duty under the law: The obligation to prove
violations by substantial evidence, including all of the elements Congress has provided."

Pasula-Robinette has long provided a framework and clear authority for deriving
improper motivation from circumstantial evidence. Without doubt, evidence of motivation may
be drawn from circumstantial evidence. Rather than attempting to demonstrate an improper
motive, the Secretary seeks to avoid the necessity for proof by eliminating an element of the
violation.”

We do not accept the Operators’ argument, relied upon by the majority for its assertion of
absurdity, that a specific occurrence of protected activity necessarily must precede an operator
action motivated by a desire to thwart or prevent protected activity. See supra slip op. at 34 n.6.
Commission case law related to operator efforts to deter protected activity remains fully
applicable.

Following Pasula and Robinette, Moses v. Whitley Development Corp., 4 FMSHRC 1475
(Aug. 1982), raised the issue of whether a miner was discharged because the operator suspected
he had engaged in protected activity. The Commission highlighted the motivation requirement:
“Section 105(c) prohibits discharge, discrimination, or interference ‘because’ of ‘a miner’s
exercise of any statutory right afforded by [the] Act.” Jd. at 1480. The Commission then found
that, if a suspicion of protected activity motivated the discharge, such discharge would violate
section 105(c) even if the suspicion turned out to be incorrect. Thus, the Commission’s reading
of the law is both protective of miners’ rights and faithful to its intent.

In Gray v. North Star Mining, 27 FMSHRC 1 (Jan. 2005), we similarly found
interference, overturning a Judge’s conclusion that a threat he found not to have been sincere did

'9 Legal reasoning unrelated to facts of record such as that employed here is not only
devoid of useful content, it is arguably foreclosed to us. The Supreme Court has stated that “[i]t
has long been settled that a federal court has no authority ‘to give opinions upon moot questions
or abstract propositions, or to declare principles or rules of law which cannot affect the matter in
issue in the case before it.’” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12
(1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). The Commission, as an adjudicative
body, is likely equally constrained by the Supreme Court’s admonition, and the Commission
since its inception has repeatedly expressed that we need not reach issues unnecessary to the
disposition of cases. See, e.g., Ross v. Monterey Coal Co., 3 FMSHRC 1171, 1173 n.6 (May
1981); Kaiser Steel Corp., 1 FMSHRC 343, 345 n.6 (May 1979).

20 The Secretary, quite unlike the Court in Griggs, has not demonstrated a change in the
law that justifies unsettling our interpretation of “because of” in discrimination cases or decades
of settled law governing our use of inferences to resolve questions of motivation. He has simply
seized upon Inclusive Communities as an instrument of interest and convenience.

46


781(footnote omitted).” The Phillips Court analogized section 110(b)’s protection to the
protection afforded under the corresponding anti-discrimination provision of the National Labor
Relations Act which, the Phillips Court noted, had been construed broadly so as to apply to the
discharge of an employee for giving a sworn written statement to a NLRB field examiner who
was investigating an unfair labor charge. Such protection was necessary, the Supreme Court had
determined, in order “to prevent the Board’s channels of information from being dried up by
employer intimidation of prospective complainants and witnesses.” Jd. at 782 (emphasis added)
(citing NLRB v. Scrivener dba AA Electric Co., 405 U.S. 117, 122 (1972)).!°

The concern that safety-related channels of information were being dried up prompted the
Secretary’s filing in this case. Here, however, the reluctance of the miners to assert their rights is
attributed not so much to employer intimidation as it is to the inducements contained in the
employer’s bonus plan. As set forth in more detail, infra slip op. at 22-24, certain aspects of the
plan can cause a miner who chooses to exercise his or her right to accompany an inspector to risk
losing a portion of a bonus payment. Likewise, under the plan, a miner who points out a
condition that is hazardous, or which violates a safety standard, can be, at least indirectly, the
cause of a forfeiture of all or part of the bonus. Reporting an injury can result in the entire crew
losing their bonus. Miners who insist that certain time-consuming but necessary safety-related
chores (like rock dusting) be carried out incur the ire of fellow employees, who fear that the
activity will lessen the likelihood of a bonus. Putting aside for a moment the issue of whether
the Secretary has adequately proven these potentially deterrent effects of the bonus plan, the
question remains whether the Secretary must also show that the plan was implemented “because
of” the miners’ exercise of protected activity.

In interpreting other, similarly-worded, statutes, the Supreme Court has found the phrase
“because of” not to have the alleged plain meaning of motivation advocated by the Operators or
our colleagues. The Court has recognized that statutes prohibiting discrimination “because of”
congressionally designated criteria need not include a motive element. In Texas Department of
Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2518
(2015), the Court considered whether a method of distributing low income housing tax credits
violated the Fair Housing Act. That statute made it unlawful inter alia to “refuse to sell or rent

° The holding of the Phillips Court, that the coverage of the anti-discrimination
provisions of the Coal Act begins when a miner notifies mine officials or the safety committee of
possible safety violations, and that no formal complaint to the Secretary of Labor is required,
was reaffirmed in Munsey v. Morton, 507 F.2d 1202, 1208-9 (D.C. Cir. 1974).

10 Four years later, in Baker v. IBMA, 595 F.2d 746 (D.C. Cir. 1978), the Court rejected
the view that section 110(b)’s protection from discrimination was only afforded to miners who
had the intent to contact federal officials at the time they made safety complaints to a mine
foreman. The Court noted the comment by the sponsoring Senator, Edward Kennedy, that
“(T)he rationale for this amendment is clear. For safety’s sake we want to encourage the
reporting of suspected violations of health and safety regulations.” 595 F.2d at 749-50 (citation
omitted). Thus, the Court focused on the safety-enhancing purpose of the statute’s anti-
discrimination language rather than on the express language of the statute.

14


Distribution

Thomas A. Smock, Esq.

Philip K. Kontul, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
One PPG Place, Ste. 1900

Pittsburgh, PA 15222
Thomas.smock@ogletreedeakins.com
Philip.kontul@ogletreedeakins.com

Arthur Traynor, Esq.

Laura P. Karr, Esq.

United Mine Workers of America
15354 Quantico Gateway Dr., Suite 200
Triangle, VA 22172

altraynor@unwa.or; 4

Ikarr@umwa.org

Emily C. Toler

Office of the Solicitor

U.S. Department of Labor

201 12" Street South, Suite 401
Arlington, VA 22202-5450

Toler.emily.c@dol.gov

Ali A. Beydoun, Esq.

Office of the Solicitor

US Department of Labor
201 12th St. South-Suite 401
Arlington, VA 22202-5450

Melanie Garris

Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor

201 12th Street South, Suite 401
Arlington, VA 22202-5450

Administrative Law Judge Margaret Miller
Federal Mine Safety Health Review Commission
721 19th Street, Suite 443

Denver, CO 80202-2500


Appendix A

SECRETARY OF LABOR, MSHA, i Docket Nos.:
on behalf of RICKY BAKER ‘
and UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION

v.

OHIO COUNTY COAL CO.,
CONSOLIDATION COAL CO.,
MURRAY AMERICAN ENERGY, INC.,
and MURRAY ENERGY CORPORATION

SECRETARY OF LABOR, MSHA,
on behalf of LEVI ALLEN
and UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION

Vv.

THE MARSHALL COUNTY COAL CO.,
McELROY COAL COMPANY,
MURRAY AMERICAN ENERGY, INC.,
and MURRAY ENERGY CORPORATION

SECRETARY OF LABOR, MSHA,
on behalf of MICHAEL PAYTON
and UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION

Vv.

MARION COUNTY COAL CO.,
CONSOLIDATION COAL CO.,
MURRAY AMERICAN ENERGY, INC.,
and MURRAY ENERGY CORPORATION

52

WEVA 2015-905-D
WEVA 2015-906-D
WEVA 2015-907-D
WEVA 2015-908-D
LAKE 2015-616-D


accumulations, id. at 49, failed to maintain and inspect equipment, id., and failed to change belt
rollers, id. at 51.

The Judge found that “the effect of the bonuses is to create pressure on miners to
maximize short-term production at the expense of safety,” such that “each worker feels pressure
to work as fast as possible so as not to take away from potential bonuses for the other workers,”
because “safety-related tasks take additional time, and miners are therefore reluctant to do them
under the [plan] because they are less likely to achieve the production goals.” 38 FMSHRC at
950.

We conclude that the Judge’s finding that the first prong of the Franks test was satisfied
is supported by substantial evidence. We turn now to the operators’ justification of the plan.

B. The Operators’ Justification for the Policy Does Not Outweigh the
Resulting Interference with Miners’ Rights.

Applying the second step of Franks, under which an operator may defend against an
otherwise valid interference claim if it offers a “legitimate and substantial reason whose
importance outweighs the harm caused to the exercise of protected rights,” the Judge identified
the Operators’ proffered reason as improving production and safety at its mines. 38 FMSHRC at
954 (quoting Franks, 36 FMSHRC at 2108, 2116).

The opinion of Chairman Jordan and Commissioner Nakamura in Franks noted that
where the employer established a justification under step two, the operator’s actions must be
“narrowly tailored” to promote that justification as part of the balancing of the operator’s
interests with the protected rights of miners. 36 FMSHRC at 2118 n.14 (citing Guardsmark,
LLC v. NLRB, 475 F.3d 369, 376-376 (D.C. Cir. 2007)). Even if the operator’s actions are
narrowly tailored, it is still necessary to balance the degree of interference with protected rights
against the importance of the asserted business justification. Franks, 36 FMSHRC at 2108.

The Operators failed to present any evidence addressing this step of the Franks test. The
Operators asserted that the purpose of the bonus plans was to enhance both safety and production
at the attendant mines. However, they made no assessments as to the impact of the plans on
safety before implementation, and were unable to discern the impact on either safety or
production after the plans were implemented.” Finding that the Operators had failed to establish
a legitimate and substantial reason for the plans which outweighed the impact on miners’
protected rights, the Judge cited the same concerns. She concluded that “the harm to miners’

2 As the Judge noted, 38 FMSHRC at 954, Murray Energy Senior Vice President John
Forelli, who had designed the bonus plans, testified that two statistical analyses he had
commissioned failed to reach a conclusion as to whether the bonus plans had improved
production, and that his review of daily and quarterly safety reports did not show an impact on
safety. Tr. 293-301. Significantly, however, as the Secretary notes, the combined non-fatal
injury rate at the six mines went up by 18% during 2015, the year the bonus plans were put in
place. S. Br. at 10, n.3.

24


Judge below was not given an opportunity to pass, and for which there is no substantial
evidentiary support. This is impermissible as a matter of law. 30 U.S.C. §§ 823(d)(2)(A)Gii),
(@)2)\B)."

There also are critical distinctions between Inclusive Communities, decided by a majority
of the Supreme Court, and Smith v. City of Jackson (an earlier disparate-impact case), which was
a plurality decision. The Court found in Inclusive Communities that Congress had effectively
ratified the application of disparate-impact analysis to the FHA by amending the FHA’s anti-
discrimination provisions in 1988 without addressing the “unanimous” body of circuit court
opinion holding that its application was appropriate. Inclusive Communities, 135 S.Ct. at 2519-
22. “Indeed, the inference of disparate-impact liability is even stronger here than it was in Smith.
As originally enacted, the ADEA included the RFOA provision, see § 4(f)(1), 81 Stat. 603,
whereas here Congress added the relevant exemptions in the 1988 amendments against the
backdrop of the uniform view of the Courts of Appeals that the FHA imposed disparate-impact
liability.” Jd. at 2521.

The Mine Act, of course, reveals no such historical context, no unanimous body of circuit
court opinions, and no statutory revisions that are relevant to the consideration here. Further,
Justice Kennedy, who authored the majority opinion in Inclusive Communities, was not part of
the plurality that extended Griggs’ disparate-impact holding beyond race discrimination cases in
Smith.

In addition to noting the “significant differences between the ADEA and Title VII of the
Civil Rights Act of 1964 [that] counsel[ed] against transposing to the former our construction of
the latter” in Griggs," Justices O’ Connor, Kennedy, and Thomas expressly disclaimed in Smith
the linguistic contortion the Secretary has thrust before us. Smith, 544 U.S. at 2118. Criticizing
the plurality’s parsing of the language of the ADEA, such that in successive paragraphs, the term
“because of” would have different meanings, Justice O’Connor noted that the language at issue
in Section 4(a)(1) of the ADEA was clear:

That provision requires discriminatory intent, for to take an action
against an individual “because of such individual’s age” is to do so
“by reason of” or “on account of” her age. See Webster’s Third
New International Dictionary 194 (1961); see also Teamsters v.
United States, 431 U.S. 324, 335-336, n. 15, 97 S.Ct. 1843, 52

3 We note the flaw of the Secretary’s objection to the Operators’ challenge to the ALJ’s
misconstruction of the law. It is our duty to interpret the law de novo, so, in any proper review,
the Judge’s error in applying the wrong legal standard must be uprooted.

4 Justice Kennedy deemed this significant in Smith, which at least involved another
disparate-impact claim. In nearly four decades of Mine Act jurisprudence before the
Commission and the Appellate Courts, there has never been any suggestion of even a remote
association between such claims, grounded on a statistical showing of disparity between groups,
and interference claims under the Mine Act.

42


B. The Judge’s Decision

On May 2, 2016, the Judge issued a decision and order finding that the Operators had
interfered with miners’ rights at each of the mines. The Judge began her analysis by concluding
that the proper test for analyzing section 105(c)(1) interference claims is the two-step framework
adopted by two Commissioners in UMWA on behalf of Franks and Hoy v. Emerald Coal
Resources, LP, 36 FMSHRC 2088, 2108 (Aug. 2014) (sep. op. of Chairman Jordan and Comm’r
Nakamura) (hereinafter cited as “Franks”). 38 FMSHRC at 946-48. The Judge rejected the
Operators’ reliance on Sec ’y of Labor on behalf of Feagins v. Decker Coal Co., 23 FMSHRC 47
(Jan. 2001) (ALJ), a 15-year-old ALJ decision, concluding that it was out of line with the
Commission’s current case law on interference. Id. at 948-49.

The Judge then turned to the first step of the Franks test, which asks whether a
reasonable miner would view the operator’s actions as tending to interfere with miners’ protected
rights. The Judge found that (1) “[t]estimony at hearing indicated that the effect of the bonuses
is to create pressure on miners to maximize short-term production at the expense of safety,” and
that this effect was compounded by peer pressure, id. at 950; (2) miners were “reluctant to report
safety issues to management or MSHA under the bonus plans because making the report and
undergoing an inspection take away from production time,” id. at 950-51; (3) “[tJhere is no
question that some miners are discouraged from serving as walk-around representatives because
they would miss out on the chance to get a larger bonus,” id. at 952; and (4) the injury
disqualification “impermissibl[y] burden[s]” miners’ right to report injuries because an injured
miner “must choose between exercising his right to report the injury and getting a bonus,” id.

Having adopted the Franks test, the Judge then turned to the second step of this test,
which requires identifying and weighing any legitimate and substantial business justification
proffered by the operator for actions it takes that interfere with protected rights. The Judge
recognized that the Operators purported to have promulgated the bonus plans to increase safety
and production. The Judge stated that an operator “certainly has a right to implement programs
to assure that miners are producing at the best rate possible,” but found that the Operators had
not shown that the bonus plans promoted safety or increased production. /d. at 954. “In
contrast, the harm to miners’ rights is evident.” Jd. at 955. Thus, the Judge found that “[t]he
uncertain benefits that [the Operators] put forth do not outweigh these harms.” Id.

The Judge therefore ordered that the bonus plans be rescinded at the three mines where
they remained in place, required the posting of a remedial notice, and assessed a civil penalty of
$25,000 per mine — $5,000 more per mine than the Secretary’s proposal. Id. at 955-56.

The Operators filed a timely petition for review. The UMWA also filed a timely petition
for review, arguing that the Judge should have ordered additional remedies. The Commission
granted both petitions.


Our colleagues’ failure even to attempt to reconcile the plain language of the statute, by
citing the straw man of the Operators’ hyper-literal argument, has been held to be improper upon
judicial review. We agree that the Operators’ “literal” interpretation is incorrect.” But, as
instructed by the D.C. Circuit, in a case interpreting the very same provision, “plain meaning and
literal meaning are not equivalents.” Meredith v. FMSHRC, 177 F.3d 1042, 1054 (D.C. Cir.
1999) (citing Bell Atlantic Tel. Cos, v. FCC, 131 F.3d 1044, 1045 (D.C. Cir. 1997)). In that case,
the UMWA argued that, by its literal language, the term “person” included MSHA officials, thus
allowing suits against MSHA officials for discrimination under section 105(c)(1) of the Act. Jd.
at 1052. The D.C. Circuit disagreed with that literal interpretation and found that “the text and
structure of the Mine Act, as well as the legislative history, inexorably lead to a single
conclusion. The Mine Act’s anti-discrimination provision does not apply to MSHA employees
for actions taken under color of their authority.” Jd. at 1053. Notably, although the court found
that the literal reading of the statute was incorrect, the court did not then consider the statute to
be ambiguous. The court considered Congress’s intent to be clear and resolved the issue under
the first prong of Chevron. Id. at 1053 n.9. Accordingly, the court vacated the Commission’s
decision, which had incorrectly defined “persons.” Jd. at 1044.

Similarly, in Nally & Hamilton Enterprises, Inc., 33 FMSHRC 1759 (Aug. 2011), the
Commission rejected an operator’s literal reading of a standard to apply the standard’s ordinary
meaning. The operator argued that “maintain,” as a verb, required a willful failure to act in order
to be held liable for a violation. The Commission found that “its literal meaning is less
complicated than what is suggested by the operator.” Jd. at 1763. Instead, the Commission
applied “the ordinary meaning of ‘maintain’ and conclude[d] that the term is not ambiguous.”

Id, Even though the Commission reversed the judge’s determination that there was no violation
and rejected the operator’s literal interpretation, the Commission nevertheless found “the
standard’s language plain and unambiguous,” and “[did] not reach the Secretary’s deference
argument.” Jd. at 1764. Contrary to our colleagues’ argument, rejecting a “literal” interpretation
is not some sort of deus ex machina they can call upon to find ambiguity where there is none.

Finally, in addition to the commanding bulwark of cases we have cited to show the
resolute refusal of appellate courts to exceed the limits of judicial authority to interpret statutes,
we note the Supreme Court has recently provided an emphatic admonishment of a failure to do
so. In Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767 (2018), the Court reversed —

7 Our colleagues’ charge that the Act does not require “retaliatory motivation” and their
indignation over the Operators’ artificially narrow reading of section 105(c) is no exception. See
slip op. at 10-11. We find that the requisite motivation for an operator’s improper interference
may be because of the operator’s fear of the prospective exercise of protected rights or the
operator’s belief that a miner or group of miners has engaged in protected activity, regardless of
whether any protected activity actually occurred. This is consistent with the Commission’s
holdings in Moses and Gray.

35


(2) the person fails to justify the action with a legitimate and
substantial reason whose importance outweighs the harm caused to
the exercise of protected rights.

S. Br. at 13-17 (quoting Franks & Hoy, 36 FMSHRC at 2108 (sep. op of Chairman Jordan and
Comm’r Nakamura). The Secretary thus interprets the Mine Act so as to allow a miner to prevail
on an interference claim, without requiring proof of the operator’s motivation to interfere with
the miners’ statutory rights. This two-part test was articulated and adopted by two
Commissioners in Franks & Hoy, 36 FMSHRC at 2108 (sep. op of Chairman Jordan and
Comm’r Nakamura). This analytic framework has been dubbed “the Franks test.”

Commissioners recently concluded that it was not error for a Judge to apply the Franks
test. Sec’y of Labor on behalf of McGary v. Marshall Cty. Coal Co., 38 FMSHRC 2006 (Aug.
2016). In that case, the operator instituted a policy, announced at company-wide meetings,
requiring miners to report safety hazards to management first, thereby circumventing miners’
rights to report hazards under section 103(g) of the Act.'® 38 FMSHRC at 2012 n.11, 2028
n.22.'° All five commissioners concluded that the Franks test was consonant with Moses and
Gray and thus it was not incorrect for the Judge to use it in the McGary case. Id. at 2012.

In a recent interference case under the Mine Act, the D.C. Circuit also employed the
Franks test, noting that the administrative law judge had applied it and that neither party
challenged its use. Wilson v. FMSHRC, 863 F.3d 876 (D.C. Cir. 2017). In ruling on the miner’s
interference claim, the Court emphasized that the Franks test calls for an objective evaluation of
how a reasonable miners’ representative would view the alleged discriminator’s conduct, and not
whether the individual accused of interference had a subjective intention to interfere with the
statutory rights of the miners’ representative. Jd. at 881-82. Specifically, the Court stated, “as
the Commission has instructed, whether ‘interference’ occurred does not turn ‘on the
[respondent’s] motive ....’” Jd. at 881 (citing Gray, 27 FMSHRC at 9).

In sum, we reject the literal interpretation of section 105(c) that would unduly restrict the
reach of the Mine Act’s protection from interference. We would have the Commission adopt the
Franks test, deferring to the Secretary’s reasonable interpretation of the statutory language, an
interpretation that is consistent with Commission precedent, federal case law, and the legislative

'8 As previously noted, supra slip op. at 10 n.5, That statutory provision affords miners
the right to make anonymous complaints to the Secretary. 30 U.S.C. § 813(g).

19 4 number of Commission Judges have also applied Franks to interference claims. See
UMWA ex rel. Franks v. Emerald Coal Res., 38 FMSHRC 799 (Apr. 2016); McGary v. Marshall
County Coal Co., 37 FMSHRC 2597, 2603-04 (Nov. 2015); McGlothlin v. Dominion Coal
Corp., 37 FMSHRC 1256, 1264-65 (June 2015); Pendley v. Highland Mining Co., 37 FASHRC
301, 309-11 (Feb. 2015). One Commission Judge has rejected the Franks test. Sec’y obo Pepin
vy, Empire Iron Mining Partnership, supra.

21


have otherwise been replete with repetitious or cumulative testimony.”® It was well within her
discretion to make this choice.

Furthermore, as the Judge noted, much of the hearsay testimony to which the operators
objected went to the state of mind of the miners (regarding the effect of the bonus plan). This
would be admissible evidence under Federal Rule of Evidence 803(3), which states that out-of-
court declarations are admissible to demonstrate “the declarant’s then-existing state of mind
(such as motive, intent, or plan).” Thus, for example, testimony by a safety committeewoman
that a miner told her he didn’t want to travel with an inspector because he wanted to go to the
section demonstrates the miner’s state of mind at the time he spoke. Tr. 152, 155, 167. This
would be admissible under Federal Rule of Evidence 803(3).

Finally, in Knight Hawk Coal, LLC, 38 FMSHRC 2361 (Sept. 2016), the Commission
rejected the contention of the operator that the Judge in that case had improperly relied on vague
and speculative hearsay statements of miners who had been interviewed by MSHA accident
investigators. We noted that the operator did not call the rank-and-file miners interviewed by
MSHA as witnesses at the hearing to rebut MSHA’s assertions. We held that the Judge did not
err in admitting and relying on the testimony of the MSHA investigator concerning what he was
told by the miners during the investigation, because the statements by the miners were “clearly
material and relevant.” 38 FMSHRC at 2366, n.13.77

The decision to admit evidence rests primarily in the province of the Judge.*> Our
analysis above confirms that the evidence in question was reliable and relevant, and that the
Judge did not abuse her discretion in admitting it. We thus decline to take the extraordinary step
of overturning the Judge’s evidentiary ruling.

B. Cross-Examination

The Operators contend that the Judge committed procedural errors in not allowing them
to cross-examine the Secretary’s witness on prior inconsistent statements made in response to
discovery requests. This argument is also without merit. As discussed in further detail below,
the Judge imposed limits on cross-examination only after the Operators had successfully

26 Courts routinely use representative testimony to establish violations of the Fair Labor
Standards Act on behalf of similarly situated employees who do not testify, when employers fail
to maintain proper wage and hour records. See, e.g., Garcia v. Tyson Foods, Inc., 770 F.3d
1300, 1307 (10th Cir. 2014); Reich v. S. New England Telecomm. Corp., 121 F.3d 58, 67 (2d Cir.
1997); Martin v. Selker Bros., Inc., 949 F.2d 1286, 1297-98 (3d Cir. 1991).

27 The Operators do not contend that the testimony of the miners’ representatives was not
relevant. They would be hard pressed to do so, given that the testimony addressed such issues as
instances in which the bonus plan deterred miners from reporting hazards and injuries, refusing
unsafe work, and serving as walkarounds. See, e.g., Tr. 112, 152, 226.

28 The Operators cite no case in which the Commission had found a Judge’s reliance on
hearsay evidence to be an abuse of discretion.

27


center, and being told by a miner that “[i]f I report this, we are going to have MSHA here
tomorrow investigating it and tomorrow’s bonus was out.” Tr. 141. 2

Testimony indicated that internal safety complaints also decreased after the bonus plans
took effect. Ann Martin, the former mine safety committee chairman at the Harrison County
Mine, described how “[dJuring my inspections on the section, I found it interesting that before
the plan was implemented, the guys were just waiting to talk to you, converse with you, you
know, per the plan itself, that changed because those guys were doing nothing more than
setting on their equipment and mining coal.” Jd. at 158.

After shutting down a section because of ventilation issues, Martin was told by a miner
“you just knocked us out of our Bonus Plan.” Jd. at 165. Upon being asked by another
committeeman whether he would prefer to have the money rather than assure safe mining
conditions, the miner’s response was “yes.” Jd. Under the plan, foremen receive double the
bonus their crews earn. Jd. at 308. There was testimony that some foremen instructed miners
that they “absolutely cannot shut down the belt.” Jd. at 58-60.

Miners who were injured but not incapacitated were tempted to “rough it out” so as to not
lose the bonus for leaving the mine face. Jd, at 54. Levi Allen, who had served as the local
union president at the Marshall County Mine, described a specific incident in which an employee
injured his shoulder while working but did not report the injury: “His exact words to me was he
didn’t want to screw everybody,” Allen testified. Jd. at 226. Allen explained that he rarely
received calls before the plan about miners who left a shift without reporting an injury, but after
the plans went into effect, the frequency of such calls tripled. Jd. at 229.

Under the plan, bonus amounts were tied to one’s presence on a working section. A
production miner who left the section to accompany a federal inspector earned 10% of the bonus
his or her section earned if the section met its production quota. After the bonus plans were
implemented, safety committees had difficulty identifying miners willing to accompany
inspectors. Id. at 47, 72-73, 152, 155, 166. Ann Martin testified: “I approached a young man
who normally would jump at the chance to travel with the inspector and earn that experience,
and his exact words to me were, ‘No, Ann, I don’t want to go today. We are set up for
production bonus, so I want to go to the section.”” Jd. at 152. Timothy McCoy testified that his
coworkers on the production crew discouraged him from serving as a walk-around representative
because a less experienced miner would be sent to replace him, and this would reduce the crew’s
ability to achieve a bonus. /d. at 113-14.

There was also abundant testimony describing safety issues that were being neglected
while the bonus plans were in effect. Specifically, miners did not adequately rock dust, id. at 49,
52, 106, 119, 153, 217, failed to properly bolt the roof, id. at 105-6, 119,153, worked in poorly
ventilated and high methane conditions, id. at 49, 51-2, 106, 108, 118-19, failed to clean up

2 McCoy heard of other crews not filing section 103(g) complaints in similar situations.
Tr. 114-15. At mines where the bonus plans were discontinued, section 103(g) reporting
rebounded. /d. at 166.

23


unanimously —a Ninth Circuit holding that application of statutory language as written could not
have been what Congress intended.

Somers, like the case at bar, construed statutory language designed to protect those who
exercise protected rights, especially including the right to bring private wrongs to the attention of
supervisors or authorities.” In a decision by Justice Ginsburg, the Court unanimously reversed
the Circuit Court, finding, “[cJourts are not at liberty to dispense with the condition — tell the
SEC — Congress imposed.” Jd. at 777.

In the present case, the Secretary has not presented any evidence of any motivation to
interfere with protected rights. Indeed, the Secretary has not even presented evidence that the
miners in this case would suffer any harm from the application of the plain language requiring
proof of a nexus between the Operators’ conduct and rights protected under the Act. It would be
astonishing for a court to endorse such a misreading of the plain words of the statute in this
context, where there has been no attempt to show that construing the statute as written would be
contrary to the purposes of the Act.

In attempting to overcome the exquisite clarity of section 105(c) our colleagues gamely
assert that the plain language of section 105(c) leads to absurd results and/or is ambiguous. Slip
op. at 10-11. These arguments only emphasize the weakness of their position. With respect to
their absurdity argument, it is difficult to conceive of a more absurd result than construing
section 105(c) — which four times expressly requires a motivational component for a violation —
nonetheless nor to require motivation and to permit imposition of monetary penalties upon
operators for actions not motivated in any way by protected activities. In turn, there is nothing
ambiguous about the word “because” or about the requirement that the interference occur
“because” of protected activity.

As read by our colleagues, section 105(c) as a practical matter could prohibit virtually
any form of incentive plan for miners. Congress certainly did not intend to abolish for the coal
industry incentive programs used throughout American businesses without any recognition of
that effect. In a given case, indeed even in this case, the Secretary might well be able to present
evidence that the current or future exercise of protected activities motivated, at least in part, the
introduction of an incentive program. In such case, the program would be unlawful. However,

5 The reversed courts cited to the “absurd results doctrine” to avoid the result required by
the pain language of the statute. The District Court and the Ninth Circuit, in succession, adopted
the Second Circuit’s finding that applying the statute as written “would make little practical
sense and undercut congressional intent. The Supreme Court unanimously held that courts must
apply the plain language of the statute.

° It is perhaps obvious beyond need of mention, but Somers is a whistleblower case
arising in the context of a statute written to provide protections to persons based on their
conduct, rather than personal characteristics, and is thus much more like Section 105(c)(1) than
the status-based protections giving rise to disparate-impact claims. See Part Il, infra (discussing
inapplicability of disparate-impact case law).

36


Congress intended to include “threats of reprisal” within the ambit of illegal interference, but
such threats cannot be reached under the Operators’ test unless there has been a predicate act of
miners exercising protected rights which gave rise to the threat of reprisal. Moreover, the
“promises of benefit” contemplated by Congress virtually cannot be reached at all.'* The test
proposed by the Operators’ is essentially backward-looking. It requires that there be a pre-
existing exercise of statutory rights by a miner which triggers the alleged act of interference by
the operator. However, the Mine Act’s prohibition of unlawful interference, as described in the
legislative history, is forward-looking. The interference which Congress sought to prevent is the
promise of future benefit or the threat of reprisal for a future assertion of statutory rights by a
miner.

C. Demanding Proof of an Operator’s Motivation Would Permit Some

Policies Intruding Upon the Mine Act’s Protections Against Interference
to Go Uncorrected.

The test proposed by the Operators would have the effect of reading the “interference”
language of section 105(c) out of the Mine Act. The statutory language 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, ....” Thus, “interference” is distinct from “discrimination.” In Sec’y on behalf of
Pendley v. Highland Mining Co., the Commission held that “discrimination” includes all
retaliatory “adverse actions” that are “harmful to the point that they could well dissuade a

“whistleblower” is a person who provides information relating to a violation of securities laws to
the Secretary, was driven in large part by its view that the purpose of the statute was to
encourage prompt reporting of violations to the SEC (which the plaintiff had not done). By
contrast, a literal reading of section 105 of the Mine Act (resulting in the institution of a
motivation requirement in interference cases) does nothing to further the objectives of the anti-
discrimination provisions in the Act. To the contrary, it makes it more difficult for miners to
prevail in interference lawsuits.

Although, in Digital Realty Trust, the Court applied a plain meaning analysis to the
language of a discrimination statute, its rationale was based specifically on the statute’s purpose
and on alternative mechanisms that could protect employees. The Court opinion is not the first —
nor the last — to base an interpretation on the plain meaning of statutory text. Importantly,
however, in rejecting the specific “absurd results” analysis of the lower court and the parties, the
Supreme Court relied on case-specific rationales, and did not call into question the use of the
absurd results doctrine in other cases.

'* The Operators’ express concern is that under the Franks test (as embodied in the
Judge’s Decision), “any bonus plan that provides an element of production is per se unlawful.”
Oral Arg. Tr. 30. We reject this suggestion. But what is clear is that under the Operators’
proposed test, the “promises of benefit” provided in a bonus plan based on production can never
be found unlawful under section 105(c) without smoking gun evidence that the plan’s intent was
to subvert statutory rights.

18


A. The Language of Section 105(c) has No Plain Meaning Because a Literal
Reading Would Lead to Absurd Results.

We conclude that the language of section 105(c), insofar as it pertains to interference
claims, does not have a plain meaning. The relevant language states: “No person shall . . .
otherwise interfere with the exercise of the statutory rights of any miner . . . because of the
exercise by such miner . . . of any statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1).
As the Operators contend, a literal reading of the words “because of the exercise by such miner

. .of any statutory right afforded by this Act” necessarily refers to an exercise of a statutory
right which has already taken place. But such a reading leads to absurd results.

Imagine a situation where a mine is newly opened with a new workforce and the mine
owner creates a bonus plan which provides that if a miner contacts MSHA to complain about an
unsafe condition, an action protected under section 103(g) of the Act,’ the miner will lose his
bonus. Clearly, this is interference within the meaning of section 105(c). But it does not involve
any prior act by any miner, and so, under the Operators’ literal reading, it would not be an illegal
act under section 105(c).°

Because a literal reading of the statute leads to absurd results, the interference provision
of section 105(c) must be seen as lacking a plain meaning. A case in point is American Water
Works Assoc. v. EPA, supra. This case involved a challenge by the Natural Resources Defense
Council (“NRDC”) to the EPA’s interpretation of the language “not economically or
technologically feasible” in the Safe Drinking Water Act, 42 U.S.C. § 300f(1)(C)(@i). The
dispute centered on an EPA regulation for the control of lead in public water systems,
specifically whether EPA was required to set a numeric maximum contaminant level (“MCL”),
which was required by the statute unless it was “not economically or technologically feasible,”
or whether it could establish a treatment technique to control lead. In support of its position that
the EPA was required to set a specific MCL for lead, the NRDC argued that the plain meaning of
the word “feasible” was “physically capable of being done at reasonable cost.” In response, the
EPA did not dispute that it was “feasible” to monitor lead under the definition proposed by the
NRDC, but contended that use of an MCL standard could lead to requiring public water systems
to undertake aggressive corrosion control techniques which would increase the levels of other

5 Section 103(g) provides: “Whenever ... a miner . . . has reasonable grounds to believe
that a violation of this Act or a mandatory health or safety standard exists, or an imminent danger
exists, such miner . . . 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).

© This hypothetical was posed to counsel for the Operators during the oral argument in
this case. The initial response of the Operators’ counsel was that the plan would constitute
interference with statutory rights under section 105(c). Oral Arg. Tr. 11-13. But on further
reflection, after being reminded that the test he proposed required prior protected activity by a
miner, counsel agreed that the bonus plan would not constitute illegal interference because of the
absence of a predicate act by a miner. Oral Arg. Tr. 14-17.

10


account of.” Id., at 176, 129 S.Ct. 2343 (citing 1 Webster’s Third
New International Dictionary 194 (1966); 1 Oxford English
Dictionary 746 (1933); The Random House Dictionary of the
English Language 132 (1966); emphasis in original). Thus, the
“requirement that an employer took adverse action ‘because of”
age [meant] that age was the ‘reason’ that the employer decided to
act,” or, in other words, that “age was the ‘but-for’ cause of the
employer’s adverse decision.” 557 U.S., at 176, 129 S.Ct.

2343. See also Safeco Ins. Co. of America v. Burr, 551 U.S. 47,
63-64, and n.14, 127 S. Ct. 2201, 167 L. Ed. 2d 1045

(2007) (noting that “because of” means “based on” and that
““based on’ indicates a but-for causal relationship”); Holmes v.
Securities Investor Protection Corporation, 503 U.S. 258, 265-
266, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) (equating “by reason
of” with “‘but for’ cause”).

133 S. Ct. at 2527 (emphasis and alteration in original).

Thus, “because of” is the same as “by reason of” or “on account of.” Congress’ repeated
use of that term in section 105(c)(1) demonstrates an intention to prohibit interfering actions
when taken “by reason of” or “on account of” the specifically-identified types of protected
activity.’ Substituting the definition for the word “because” makes this inescapably clear: “No
person shall . . . interfere with the exercise of the statutory rights of any miner . . . [by reason of
or on account of] . . . the exercise by such miner . . . on behalf of himself or others of any
statutory right afforded by this chapter.”

3 Notably, in Nassar, the Court also stated,

When the law grants persons the right to compensation for injury
from wrongful conduct, there must be some demonstrated
connection, some link, between the injury sustained and the wrong
alleged. The requisite relation between prohibited conduct and
compensable injury is governed by the principles of causation, a
subject most often arising in elaborating the law of torts.

133 S. Ct. at 2522.

4 The Secretary asserts that Congress’ use of the term “because of” is ambiguous. S.
Resp. Br. at 26. The foundational premise of this assertion, that section 105 is complex, is
patently absurd. Section 105(c)(1) is hardly complex. It is a single (admittedly long) sentence
comprising, in its entirety, barely 200 words. Reducing the sentence to its salient features
reveals a quite simple structure: No person shall a or b or c or d or e because w, because x,
because y, or because of z.

33


Acting Chairman Althen and Commissioner Young, in favor of reversing:

In 2011, the D.C. Circuit Court of Appeals, quoting liberally from a Commission dissent,
noted that the plain language in section 105 was “a marvel of Congressional clarity” and
“struggle[d] to see how Congress could have intended any other reading of the phrase” at issue in
another provision of section 105. Performance Coal Co. v. FMSHRC, 642 F.3d 234, 238-39
(D.C. Cir. 2011). “Indeed, it is hard to imagine a clearer expression of congressional language.”
Id. at 239.

Indeed. Once again, it is hard to imagine how Congress could have more clearly required
the prohibited actions in section 105(c) be improperly motivated in order to be actionable, than
by pointedly including “because” or “because of” four times as a threshold requirement for a
violation. As explained below, we would apply the plain language of the Mine Act’s anti-
interference provision and vacate the decision below.

DISCUSSION

I. Plain Statutory Language, Reinforced by Legislative History, Clearly

Requires that Interference be Motivated in Some Way by Rights Protected
Under the Act

A. The Plain Language of Section 105(c)(1) Requires Proof that
Protected Activity Motivated the Operators’ Action.

The fundamental problem with the Secretary’s argument is that he is not interpreting
statutory language at all. He is impermissibly attempting to revise the statute by excising
“because” from the text for interference claims alone.

The Secretary’s effort “runs afoul of the ‘cardinal principle’ of interpretation
that courts ‘must give effect, if possible, to every clause and word of a statute.’” Loughrin v.
United States, 134 S. Ct. 2384, 2389 (2014) (quoting Williams v. Taylor, 529 U.S. 362, 404
(2000) (citation omitted). Section 105(c) identifies five actions — among them, interference —
that may not be taken “because” of one or more of four specifically identified reasons. As
relevant, section 105(c)(1) 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...

' During oral argument, the Secretary conceded that he did not present evidence or
argument that there was a motivational nexus between the Operators’ implementation of the
bonus plan and any prior or anticipated exercise of protected rights by miners. Oral Arg. Tr. 77-
78. Therefore, there is no basis to find the Operators implemented the plans because of prior or
anticipated protected activity, and accordingly, no reason to remand the case for reconsideration
under the proper standard.

30


Til.

Separate Opinions of the Commissioners

Commissioners Jordan and Cohen, in favor of affirming the Judge:

As more fully explained in our decision, we reject the interpretation of the Operators and
our colleagues that section 105(c) has a plain meaning, because both interpretations would lead
to absurd results. Hence, we find the language ambiguous and would defer to the Secretary’s
reasonable interpretation. We thus would apply the Franks test and would conclude that
substantial evidence supports the Judge’s determination that the Operators violated section
105(c) by implementing bonus plans which interfered with miners’ protected rights under the
Mine Act. We also conclude that the Judge did not abuse her discretion in making her
evidentiary rulings below.

I. Proof of Retaliatory Motive is Not Required in an Interference Claim Under the
Mine Act.

This case concerns the scope of section 105(c) of the Federal Mine Safety and Health Act
of 1977 (“Mine Act” or “Act”). That particular statutory provision prohibits persons from
discharging, or in any manner discriminating against, or otherwise interfering with the statutory
rights of any miner “because of the exercise by such miner . . . of any statutory right afforded by
this Act.”! 30 U.S.C. § 815(c)(1). The case before us presents the issue of whether, in order to

Section 105(c)(1), 30 U.S.C. § 815(c)(1), states:

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,
representative of miners or applicant for employment in any coal
or other mine subject to this chapter because such miner,
representative of miners or applicant for employment has filed or
made a complaint under or related to this Act, including a
complaint notifying the operator or the operator’s agent, or the
representative of the miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or other mine, or
because such miner, representative of miners or applicant for
employment is the subject of medical evaluations and potential
transfer under a standard published pursuant to section 811 of this
title or because such miner, representative of miners or applicant
for employment has instituted or caused to be instituted any
proceeding under or related to this chapter or has testified or is
about to testify in any such proceeding, or because of the exercise
by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right
afforded by this chapter.


Ih.
Disposition

The Operators contend that the Judge erred by applying the wrong test for analyzing a
claim of interference. They argue that the Franks test fails to adhere to the plain language of
section 105(c), which requires a finding of motive or intent. They set forth the following three-
part test as an alternative framework for analyzing interference claims: (1) the exercise of
statutory rights by a miner; (2) any adverse action taken must be directed against the miner who
engaged in the exercise of statutory rights; and (3) the operator must take some affirmative
adverse action against a miner in response to the exercise of statutory rights. PDR at 12. The
Operators point to the Judge’s decision in Secretary of Labor on behalf of Pepin v. Empire Iron
Mining Partnership, 38 FMSHRC 1435 (June 2016) (ALJ) (hereinafter cited as “Pepin”), as
support for its interpretation of section 105(c) and the application of its interference test in lieu of
the Secretary’s Franks test.!

The Secretary asserts that the Judge correctly applied the Franks test as supported by the
Mine Act’s text, its legislative history, and Commission precedent. Both the UMWA, an
intervenor in these proceedings, and the United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial & Service Workers International Union (““USW”),
which filed an amicus brief on appeal, support the Secretary’s position that the Judge correctly
applied the Franks test in concluding that the Operators’ bonus plans violate section 105(c) by
interfering with miners’ protected rights.

A majority of Commissioners has not endorsed the Franks test, under which evidence of
motivation or causation is relevant only to proof of a legitimate business justification defense.
Commissioners Jordan and Cohen agree that the applicable test is Franks and conclude that
substantial evidence supports the Judge’s finding of a violation. Acting Chairman Althen and
Commissioner Young conclude that the plain language of the Mine Act requires proof that the
action was taken “because of” the exercise of protected rights. They would find, therefore, that
the Judge failed to apply the proper test. The effect of the split vote is to affirm the Judge’s
decision below. The separate opinions of the Commissioners follow.

4 The Secretary claims that the Operators have waived this argument because they did
not present it to the Judge below. We disagree. This argument is intrinsically intertwined with
the Operators’ challenge of the claim of interference. Although the Operators challenged the
application of Franks below, they did not present their alternative test for the Judge to consider,
Op. Post-Hrg. Br. at 7-9 & n.4, However, they did cite Commission precedent concerning the
issue. Since their test essentially mirrors the Commission’s Pasula-Robinette test applicable to
discrimination claims, their argument on appeal is sufficiently related. See Freeman United Coal
Mining Co., 6 FMSHRC 1577, 1580 (July 1984) (finding that operator’s broad statements
addressing the issue of the interpretation of the regulation at issue “afforded the administrative
law judge an opportunity to pass” upon the question). Moreover, Pepin was not issued until after
the Judge issued her decision in this case. Thus, we may appropriately consider the Operators’
arguments.


reasonable worker” from engaging in protected activity. 34 FMSHRC 1919, 1932 (Aug. 2012)
(quoting Burlington N. & Santa Fe Railway v. White, 548 U.S. 53, 57 (2006)). Given that the
dissuading of workers from engaging in protected activity is the essence of “interference,”
Pendley establishes that “interference” which is in retaliation for protected activity —i.e., the test
proposed by the Operators — is covered by section 105(c)’s provision against “discrimination.”
As noted above, Congress added the “interference” language to the 1969 Coal Act in creating the
Mine Act in 1977 and intended the interference provision to broaden the coverage of the anti-
discrimination provision. However, if the test proposed by the Operators is adopted by the
Commission, it would render the “interference” language a nullity.

Our colleagues’ approach is somewhat different from that of the Operators. They reject
the literal interpretation of section 105(c) advanced by the Operators and argue that they can
divine a plain meaning of the section separate from its literal meaning, slip op. at 34 n.6, 35, 46,
49-50, although, as the Operators point out, the literal meaning of the statutory language is
clear.'° Like the Operators, our colleagues assert that there must be a causal nexus between
alleged acts of interference and protected activity in order to come within the ambit of the
statutory prohibition. However, unlike the Operators, they assert that the required protected
activity can include activity that is yet to occur.

'S Our colleagues rely on Meredith v. FMSHRC, 177 F.3d 1042, 1054 (D.C. Cir. 1999),
where the Court held that MSHA employees are not “persons” who can be named as respondents
in discrimination claims under section 105(c) of the Mine Act. Interestingly, the Court found a
textual analysis of the word “person” to be insufficient to determine a plain meaning of the
statute. Rather, the Court looked to the statutory scheme as a whole. Jd. at 1054-56. Our
colleagues, however, rely primarily on a textual analysis. Our colleagues also rely on the
Commission decision in Nally & Hamilton Enterprises, Inc., 33 FMSHRC 1759 (Aug. 2011),
where the Commission interpreted the word “maintain” as used in 30 C.F.R. § 77.410(c). In
finding a plain meaning for the word, the Commission did not reject the literal meaning of the
word as inconsistent with the plain meaning, but rather, rejected the operator’s attempt to inject
nuances and requirements into the plain meaning which simply were not present. Jd. at 1763.

'© Our colleagues submit that interference claims are analytically indistinguishable from
discrimination claims characterized by firing, suspension, adverse change in job duties or other
such direct adverse action, and so should be analyzed under the traditional formula created in
Sec’y of Labor on behalf of Pasula vy. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980) and
Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FASHRC 803 (Apr. 1981),
and widely known as the Pasula-Robinette test. Slip op. at 46, 50. However, in Gray, the
Commission noted that “[t]he Commission’s approach to the analysis of operator statements [of
alleged coercive interrogation or harassment constituting interference with protected rights]
stands in contrast to its analysis of discrimination against miners who have exercised their rights
under the Mine Act.... This latter analysis is generally referred to as the Pasula-Robinette
test.” 27 FMSHRC at 8-9 n.6. Thus, the Commission has indeed recognized a difference
between interference claims and the more typical discrimination claims arising under section
105(c).

19


“otherwise interfere with the exercise of [miners’] statutory rights.” 30 U.S.C. § 815(c)(1). In
general, a claim that a person has interfered with another’s ability to do something would cause
us to consider whether, or how, that person’s actions made it more difficult for another person to
carry out the activity in question. The focus of the inquiry is on the effect of the challenged
action, not necessarily on the motive behind the action.

The respondent operators, Murray Energy Corporation, et al. (“the Operators”) and our
colleagues assert that the plain language of section 105(c) requires any employer action
challenged as violating that provision be shown to have been taken “because of” the exercise of
protected rights. They focus on the meaning of the term “because” to derive an alleged plain
meaning in section 105(c). However, “[t]he plainness or ambiguity of statutory language is -
determined [not only] by reference to the language itself, [but as well by] the specific context in
which that language is used, and the broader context of the statute as a whole.” The American
Coal Co., 796 F.3d 18, 25 (D.C. Cir. 2015) (affirming the Commission, the Court held that the
term “fire” in section 3(k) of the Mine Act is ambiguous and the Secretary’s interpretation of the
term to include smoldering, smoking combustion without visible flames was reasonable) (citing
Yates v. United States, 135 S.Ct 1074, 1081 (2015)).

Here too, we must interpret the terms used in section 105(c) in context with both the
Mine Act’s goals and the actual experiences of miners. Congress recognized that interference
with miners’ rights can be subtle and will take uncommon forms. See S. Rep. No. 95-181 at 36,
discussed infra. To permit subtle interference through a narrow construction of the term
“because of” in section 105(c) would be inconsistent with this Congressional recognition.

Specifically, the Operators argue that the statutory test requires three elements to
establish a claim of interference: (1) the actual exercise of statutory rights by a miner prior fo
the alleged act of interference by the employer, (2) that the alleged act of interference be directed
against the miner who previously exercised statutory rights, and (3) that the employer be shown
to have committed the alleged act of interference in response to the miner’s exercise of statutory
rights. PDR at 12. Thus, in the operators’ view, a literal reading of the statutory language
requires that prior conduct of a miner be the catalyst for the employer action under review, and to
do otherwise would read the “because of” language out of the Act.*

3 In American Coal Company, the Commission had considered the legislative history and
context in which the Mine Act was written as part of its analysis. 35 FMSHRC 380, 383-84
(Feb. 2013). The Commission determined that because the legislative history of the Mine Act
contained reference to “smoldering” fires that resulted in mass suffocation fatalities, Congress
could not have plainly used the term “fire” to mean or exclusively require the presence of a
flame.

* Our colleagues take a somewhat different view. See infra slip op. at 18-20.


rights is evident,” while the Operators are “unable to show that the [plan has] actually been
effective at improving or maintaining safety” and “unable to establish that the [plan] actually
resulted in increased production.” 38 FMSHRC at 954.

Given the totality of the circumstances, demonstrating the imbalance between the bonus
plans’ unsubstantiated benefits and the clear evidence of their chilling effect on the exercise of
rights, we conclude that substantial evidence supports the Judge’s conclusion that the Operators’
bonus plans interfered with miners’ protected rights in violation of section 105(c).

Ill. The Operators’ Objections to the Judge’s Evidentiary Rulings are not
Meritorious

A. Admission of Hearsay Testimony

The Operators argue that the Judge erred in admitting and relying on hearsay testimony
of miners’ representatives. Their testimony described how the bonus plans negatively affected
miners’ willingness to exercise their protected rights (such as the right to report injuries to
management, to report safety hazards to management and MSHA, and to exercise their
walkaround rights). Our inquiry centers on whether this testimony was reliable, and whether its
admission was unfair to the Operators.

We review the Judge’s ruling under an abuse of discretion standard. Shamokin Filler Co.
Inc., 34 FMSHRC 1897, 1907 (Aug. 2012), aff'd, Shamokin Filler Co. Inc. v. FMSHRC, 772
F.3d 330 (3d Cir. 2014), cert. denied, 135 S. Ct. 1549 (2015) (mem.); Dynamic Energy, Inc., 32
FMSHRC 1168, 1174 (Sept. 2010) (holding that a judge’s credibility determinations are
reviewed under an abuse of discretion standard). Abuse of discretion may be found when there
is no evidence to support the decision or if the decision is based on an improper understanding of
the law. Pero v. Cyprus Mining Corp., 22 FMSHRC 1361, 1366 (Dec. 2000).

Commission Rule 63(a) explicitly permits hearsay evidence “that is not unduly
repetitious or cumulative.” Comm’n Proc. Rule 63(a), 29 C.F.R. § 2700.63(a). See also Mid-
Continent Res., Inc., 6 FMSHRC 1132, 1135 (May 1984) (holding that hearsay evidence is
admissible so long as it is material and relevant). In Mid-Continent Resources, the Commission
emphasized that “properly admitted hearsay testimony, and reasonable inferences drawn from it,
may constitute substantial evidence upholding a judge’s decision if the hearsay testimony is
surrounded by adequate indicia of probativeness and trustworthiness.” Jd. at 1135-36. In that
case, the Commission rejected the operator’s argument that the Judge had erred in relying on the
testimony of two MSHA inspectors about what they were told by a foreman.

In Mid-Continent, the Commission set forth a number of factors used to measure the
probative value of hearsay evidence. Applying the relevant factors to the case at hand, we
conclude that the Judge’s finding of interference clearly rested on reliable evidence.

First, the statements of the miners’ representatives were undisputed. See Mid-Continent

Res., 6 FMSHRC at 1137. The operators produced no contradictory evidence, never calling any
witnesses who testified that their protected rights were not impacted by the bonus plan. The fact

25


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 ERIC GREATHOUSE
and UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION

Vv.

MONONGALIA COUNTY COAL
COMPANY, CONSOLIDATION COAL
COMPANY, MURRAY AMERICAN
ENERGY, INC., and MURRAY ENERGY
CORPORATION!

JUN 2 7 2018

Docket No. WEVA 2015-904-D

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners

DECISION

In these proceedings, arising under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), the Administrative Law Judge found that the
operators of six mines owned and operated by Murray Energy Corporation (“the Operators”)
violated section 105(c) of the Mine Act, 30 U.S.C. § 815(c), by interfering with miners’
protected rights. 38 FMSHRC 941 (May 2016) (ALJ). Section 105(c)(1) 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,
representative of miners or applicant for employment in any coal
or other mine subject to this chapter because such miner,
representative of miners or applicant for employment has filed or
made a complaint under or related to this chapter, including a
complaint notifying the operator or the operator’s agent, or the
representative of the miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or other mine, or
because such miner, representative of miners or applicant for
employment is the subject of medical evaluations and potential
transfer under a standard published pursuant to section 811 of this
title or because such miner, representative of miners or applicant

| Additional captions in these cases are listed in Appendix A to this order.


Therefore, in Gray, the Commission’s decision is consistent with a requirement that the
employer’s action have a motivational nexus with protected activity. As the Commission stated
in Moses, “the ‘more subtle forms of interference’ are coercive interrogation and harassment
over the exercise of protected rights.” 4 FMSHRC at 1478 (emphasis added). Here, the
Secretary has not sought to demonstrate that the challenged plan was motivated in any way by
considerations of protected activity, preferring instead to attempt a sweeping change in the
interpretation of clear language, solely to make it easier for him to prove interference as a
general matter wholly unrelated to the circumstances of this case.

Obviously, this would open the door for almost unlimited interference claims. A miner
presumably could establish a prima facie case of interference by testifying that a supervisor’s
chastisement for slow work led him to believe he should not adequately rock dust his assigned
area. Of course, this would be a direct result of construing the statutory term “because” —
repeated for emphasis and certainty in each provision of 105(c)(1) — to mean one thing in a
discrimination case while construing it to mean literally nothing in an interference case.

Finally, we must point to the coup de grace foreclosing the Secretary’s position. While
the Secretary has disparaged the decision of an administrative law judge in Pepin, and while our
colleagues fret that miners would not be able to pursue interference claims if required to show
motivation, the Judge in Pepin found evidence of motivation and held the operator liable for
interference with the miner’s rights in that case. In that way, Pepin is indistinguishable from
every interference case decided by the Commission.

There has been no showing of absurd results flowing from a faithful reading of the
statute. Unanimous authority, including recent Supreme Court cases, makes clear that such cases
against the plain meaning of a statute are hard to make, even with compelling facts and even with
Circuit Court support. It is an impossible proposition here.

V. The Secretary’s Interpretation Is Not Entitled to Deference.

Given the clarity of the language of section 105(c), the Secretary’s claimed entitlement to
Chevron deference hardly requires a response.” See Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-43 (1984) (“If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress.”).

22 Even in Franks and Hoy, evidence of motivation was sufficient to convince two
Commissioners that the miners in that case had been discriminated against. See Franks and Hoy,
(Opinion of Commissioners Young and Cohen).

3 Tt bears noting that Justice Kennedy joined Justices O’Connor and Thomas in refusing
to extend deference to the EEOC in Smith. See 544 U.S. at 263-65.

48


the protection of section 105 comes into play,” but we nevertheless found a violation.
Emphasizing the effect of the employer’s action on the willingness of miners to exercise their
rights, we pointed out that:

Miners would be less likely to exercise their rights if no remedy
existed for discriminatory action based on an operator’s mistaken
belief that a miner had exercised a protected right ....
[{E]mployees could reasonably fear that they might be treated
adversely on the basis of suspicion alone, and thus would seek to
avoid even the appearance of asserting their rights.

Id.

More recently, in Sec ’y obo Gray v. North Star Mining, Inc., 27 FMSHRC 1 (Jan. 2005),
a case involving an alleged threat against a miner, we stated:

[I]nterference . . . does not turn on the employer’s motive or on
whether the coercion succeeded or failed. The test is whether the
employer engaged in conduct which, it may reasonably be said,
tends to interfere with the free exercise of employee rights ....

Id, at 9 (quoting Am. Freightways Co., 124 NLRB 146, 147 (1959)).

The case involved conversations between an assistant mine superintendent, Jim
Brummett, and Mark Gray, who had been called to testify before a grand jury about smoking,
ventilation and roof support violations at the mine (although ultimately he was not called as a
witness). Jd. at 2. When Gray told Brummett that he did not want hard feelings between them,
Brummett replied, “No, they ain’t no hard feelings, unless you put the screws to me, then ’ll kill
you,” and then laughed. Jd. at 3. The next day, Brummett sought assurances from Gray that a
second miner had not testified against him. Jd. Brummett told Gray that “if anyone had laid the
screws to him that he would whip their ass.” Jd. The Judge dismissed Gray’s discrimination
complaint, finding that Brummett’s statement to Gray was just an “exaggerated expression,
commonly used between friends” and that his statement to Gray on the following day was
directed at the second miner, and not at Gray. Id. at 5.

The Commission found that the Judge had erred in denying Gray’s interference claim
based on the absence of intent or motive. The Commission said, “We conclude that the judge
examined Brummett’s statements too narrowly by considering largely, if not exclusively,
Brummett’s intent or motive in making the statements. . . . rather than considering only
Brummett’s intent, the judge should have analyzed the totality of circumstances surrounding
Brummett’s statements to determine whether they were coercive and violative of section 105(c)
of the Mine Act.” Id. at 10.”

7 Our colleagues would require proof of motivation in a claim of interference. They
contend that their approach is consistent with Gray because the threats in Gray “were clearly

12


contaminants. Hence, EPA interpreted “feasible” broadly to mean “capable of being
accomplished in a manner consistent with the Act.” 40 F.3d at 1270-71.

In siding with the EPA, the Court stated:

We agree with the EPA that the meaning of ‘feasible’ is not as
plain as the NRDC suggests. Although we generally assume that
the Congress intends the words it uses to have their ordinary
meaning, . . . case law is replete with examples of statutes the
ordinary meaning of which is not necessarily what the Congress
intended. . . . Indeed, where a literal reading of a statutory term
would lead to absurd results, the term simply ‘has no plain
meaning . . . and is the proper subject of construction by the
[agency] and the courts.’ . . . Ifthe meaning of ‘feasible’
suggested by the NRDC is indeed its plain meaning, then this is
such a case; for it could lead to a result squarely at odds with the
purpose of the Safe Drinking Water Act.

Id. at 1271 (citations omitted). The Court then went on to defer to the agency’s interpretation of
the statute, finding, pursuant to the Chevron doctrine, that it was a reasonable one.

Likewise, we conclude that the literal reading of the interference provision of section
105(c) asserted by the Operators leads to absurd results. As illustrated by the example of a new
mine with a bonus plan which discourages complaints to MSHA described above, it leads “to a
result squarely at odds with the purpose” of the Mine Act.

The Commission has adhered to the principle that when interpreting the Mine Act and
safety standards, constructions that lead to absurd results must be avoided. See, e.g., Central
Sand and Gravel Co., 23 FMSHRC 250, 254 (Mar. 2001). Notably, the Commission has been
guided by this precept in considering the scope of protection afforded by section 105(c). For
example, the statute prohibits the “discharge .. . of any miner . . . because such miner . . . has
filed or made a complaint under or related to this Act.” 30 U.S.C. § 815(¢)(1). The literal
application of the provision advocated by the Operators would cover only retaliatory actions
taken against the particular person who made a safety complaint. This is because the statute
prohibits the discharge of a miner “because such miner... has .. . made a complaint under or
related to this Act . . . or because of the exercise by such miner . . . of any statutory right afforded
by this Act.” /d. (emphasis added). If an employer fired a miner believing that the miner filed a
safety complaint, but a different miner had made the complaint, would the fired miner have a
claim under section 105(c)? A literal approach, seeking to give effect to every word, would
require the Commission to answer in the negative.

In Moses v. Whitley Dev. Corp., 4 FMSHRC 1475 (Aug. 1982), aff'd, 770 F.2d 168 (6th
Cir. 1985), the Commission confronted this very question. Moses was fired, and the Judge
below found that the discharge occurred “because the operator thought the complainant had
engaged in protected activity, even though he had not.” 4 FMSHRC at 1480. We acknowledged
that “a literal interpretation . . . might require the actual or attempted exercise of a right before

11


The Secretary’s argument disregards the fact that Inclusive Communities itself, like the
disparate-impact cases upon which it relies, continues to require that plaintiffs prove causation,
i.e., that the harm they have suffered is “as a result of” or “because of” their race. His citation to
a single word yanked out of context cannot serve to erase statutory language — especially where
the Secretary acknowledges that his position would require “because” to be interpreted
differently in successive clauses of the same sentence. While we feel duty-bound to respond to
all of the Secretary’s arguments, in fact the question is settled at the initial consideration of the
statute’s plain meaning. The Court’s “inquiry ceases [in a statutory construction case] ‘if the
statutory language is unambiguous and the statutory scheme is coherent and consistent.’”
Barnhart vy. Sigmon Coal Co., 534 U.S. 438, 450 (2002). The Secretary’s argument would
reduce Section 105(c)(1) to incoherence and inconsistency — the exact opposite of the clear
command of the law.

Disparate-impact liability has been relied upon in rare circumstances, e.g., when it has
been “necessary to achieve Title VII’s ostensible goal of eliminating the cumulative effects of
historical racial discrimination.” Smith, 544 U.S. at 262 (O’Connor, J., joined by Kennedy and
Thomas, JJ., concurring in the judgment). Finding no such necessity, the O’Connor opinion
Justices declined to extend Griggs beyond the remediation of “historical racial discrimination” —
the same evil targeted by the Fair Housing Act and addressed in Inclusive Communities.

The Secretary has not made a showing that the expansion of a doctrine from cases of
racial discrimination is not merely permissible and convenient but necessary to achieve the
purposes of the Act.'” There was no evidence adduced in this case showing that any miner
would be prejudiced unfairly or the Act’s protections neutered by a requirement to show that the
Operators’ actions were motivated by protected activity. In sum, there is no authority for
applying Inclusive Communities even if there were evidence showing how miners interfered with
might theoretically have been disparately impacted by the Operators’ bonus plan, and there is no
evidence showing that it would be necessary — or even proper — to apply a disparate-impact
analysis in contravention of the statute’s plain language.

Ill. The Secretary has Misstated Section 8(a)(1) of the National Labor Relations

Act, Which is Materially Dissimilar to Section 105(c) and Must Be Read As
Adverse to the Secretary’s Position

The Secretary urges that Commission precedent compels us to rely on the National Labor
Relations Act (“NLRA”) as persuasive authority. The Commission does use NLRA case law to
assist its interpretations. See Gray, 27 FMSHRC at 9-10. We are not compelled to follow
NLRA case law. More importantly, here, an honest reading of the relevant provision of the
NLRA torpedoes the Secretary’s argument amidships.

"7 Neither the Commission nor the Courts have decided the issue before us in this case.
Griggs was decided in 1971, before the Mine Act was signed and forty-five years before we
heard this case on review. If disparate impact were essential to the protection of miners’ rights,
one imagines we would have heard of the need before now.

44


Absent a statutory definition, the ordinary meaning of a term, as provided in dictionaries,
determines the plain meaning to the statute. See Sebelius v, Cloer, 569 U.S. 369, 376
(2013)([uJnless otherwise defined, statutory terms are generally interpreted in accordance with
their ordinary meaning.”); Martin County Coal Corp., 28 FMSHRC 2487, 267 (May 2006).
Here, there is no doubt concerning the ordinary meaning. Dictionaries uniformly define
“because” as “for the reason that.” See Webster’s Third New International Dictionary 194
(1993) (“for the reason that: on account of the cause that”); American Heritage Dictionary of the
English Language 159 (2009) (“‘for the reason that; since”); Random House Dictionary of the
English Language 184 (1987) (“for the reason that; due to the fact that”).

Interpreting “because” as meaning “for the reason that” is particularly appropriate with
respect to an anti-discrimination provision like section 105(c). The Supreme Court has
repeatedly adopted such a definition of the term when asked to interpret federal anti-
discrimination statutes. In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Court
construed the term “because of” in the following provision: “[i]t shall be unlawful for an
employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” Jd, at 176 (alteration in original) (quoting 29
U.S.C. § 623(a)(1) (Age Discrimination in Employment Act (ADEA)). In rejecting the idea that
the ADEA authorizes a mixed-motive age-discrimination claim and holding that the term
“because of? means that age must have been the “but-for” cause of the employer’s action, the
Court explained:

The words “because of” mean “by reason of: on account of.”

1 Webster’s Third New International Dictionary 194 (1966); see
also 1 Oxford English Dictionary 746 (1933) (defining “because
of” to mean “By reason of, on account of ” (italics in original));
The Random House Dictionary of the English Language 132
(1966) (defining “because” to mean “by reason; on account”).
Thus, the ordinary meaning of the ADEA’s requirement that an
employer took adverse action “because of” age is that age was the
“reason” that the employer decided to act. See Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338
(1993) (explaining that the claim “cannot succeed unless the
employee’s protected trait actually played a role in [the employer’s
decisionmaking) process and had a determinative influence on the
outcome. ...”

557 U.S. at 176-77 (emphasis added).

The Supreme Court reaffirmed the Gross definition of “because” in University of Texas
Southwestern Medical Center v. Nassar, 133 8. Ct. 2517 (2013):

Concentrating first and foremost on the meaning of the phrase

“because of .. . age,’” the Court in Gross explained that the
ordinary meaning of “‘because of” is “‘by reason of” or “‘on
gs Di

32


The deference question is never reached here because it fails necessarily under step one
of Chevron. See Section 1.A., supra. Even if we were to consider deference, though, analysis
under Chevron is foreclosed as a matter of law in this case.

Since the turn of the century, the Supreme Court has repeatedly addressed and reshaped
the scope of Chevron deference. See Christensen v. Harris County, 529 U.S. 576, 586-87
(2000); United States v. Mead Corp., 533 U.S. 218 (2001). In Gonzalez v. Oregon, 546 U.S.
243, 255-56 (2006), the Court confirmed that even if statutory language is ambiguous,
“deference in accordance with Chevron, however, is warranted only ‘when it appears that
Congress delegated authority to the agency generally to make rules carrying the force of law, and
that the agency interpretation claiming deference was promulgated in the exercise of that
authority.”” Jd. at 255-56 (emphasis added) (quoting Mead, 533 U.S. at 226-27). Here, there can
be no such claim.

The Secretary’s interpretation in this case does not germinate from any rule carrying the
force of law, a prerequisite for Chevron deference under Gonzalez, Christensen, and Mead.
Rather, the Secretary announced this interpretation in briefs and litigating positions before the
Commission, which are not legally binding on the opposing party, the regulated industry, or the
government itself. As a plurality of circuit courts have held specifically in Mine Act cases, the
Secretary’s litigating positions do not warrant Chevron deference. See Knox Creek Coal Corp. v.
Sec’y of Labor, 811 F.3d 148, 158-60 (4th Cir. 2016); North Fork Coal Corp. v. FMSHRC, 691
F.3d 735, 742 (6th Cir. 2012); Vulcan Const. Materials L.P. v. FMSHRC, 700 F.3d 297, 315-16
(7th Cir. 2012). But see Sec’y of Labor v. Twentymile Coal Co., 411 F.3d 256, 261 (D.C. Cir.
2005) (disregarding Meaa’s holding to afford Chevron deference to the Secretary’s litigating
position); Pattison Sand Co., LLC v. FMSHRC, 688 F.3d 507, 512 (8th Cir. 2012) (agreeing with
the D.C. Circuit’s approach).

Rather than contend with the commonsense, plain meaning of the Mine Act, our
colleagues argue not with our interpretation but rather with the Operators’ hyper-literal and
incorrect interpretation that, if motivation is required, section 105(c) could not apply until after
protected activity occurs.

Knowing that construction cannot stand review, our colleagues’ willingly embrace it in
an effort to support their effort to read “because” out of the statute. The Operators and our
colleagues erroneously conflate “literal meaning” and “plain meaning” and boldly declare that
“[b]ecause a literal reading of the statute leads to absurd results, the interference provision of
section 105(c) must be seen as lacking a plain meaning.” Slip op. at 10 (emphasis added). The
D.C. Circuit and the Commission, though, have previously rejected this reasoning. See
Meredith, 177 F.3d at 1054; Nally and Hamilton, 33 FMSHRC at 1763-64.

Of course, we do not accept the notion that section 105(c) does not protect miners from
operator activity motivated by a desire to interfere with protected activity that has not yet
occurred. Section 105(c) applies fully if the Secretary or claimant demonstrates that an
operator’s action was motivated by a desire to prevent protected activity from occurring in the
first place. Slip op. at 31-38. For example, a general pre-hiring announcement or policy that any

49


[1] because such miner . . . has filed or made a complaint under or
related to this chapter, . . . or [2] because such miner . . . is the
subject of medical evaluations and potential transfer under a
standard published pursuant to section 811 of this title or [3]
because such miner . . . has instituted or caused to be instituted
any proceeding under or related to this chapter 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 chapter.

30 U.S.C. § 815(c)(1) (emphasis added). In the present action, despite not presenting any
evidence of the motivation for the bonus plans, the Secretary alleges that the Operators
“interfere[d] with the exercise of the statutory rights of any miner . . . because of the exercise by
such miner . . . of any statutory rights afforded by this chapter.”

Where the meaning of a statute is plain, we must apply the statute as written, looking first
to the ordinary meaning of the words. Schindler Elevator Corp. v. United States ex rel. Kirk, 563
US. 401, 407 (2011); see also Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S.
246, 253 (2004) (“Statutory construction must begin with the language employed by Congress
and the assumption that the ordinary meaning of that language accurately expresses the
legislative purpose.” (quoting Park ’N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194
(1985))); Asgrow Seed Co, v. Winterboer, 513 U.S. 179, 187 (1995) (“When terms used in a
statute are undefined, we give them their ordinary meaning.” (citing FDIC v. Meyer, 510 U.S.
471, 476 (1994))). If the words are clear, we may not make any further inquiry. Schindler
Elevator Corp., 563 U.S. at 412 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340
(1997)). Here, Congress repeatedly used the same term throughout section 105(c)(1) as a
prerequisite for connecting a prohibited action to a miner’s protected activity. That term is
“because.”

The motivation requirement of “because” is repeated four times — once for each class of
protected conduct — in Section 105(c)(1), which is a single sentence. The Supreme Court has
recently, and unanimously, instructed that the “presumption that a given term is used to mean the
same thing throughout a statute” is “at its most vigorous when a term is repeated within a given
sentence.” Mississippi ex rel Hood v AU Optronics Corp, 571 U.S. 161, 134 S. Ct. 736, 743
(2014), citing Brown v. Gardner, 513 U.S. 115, 118 (1994). Therefore, “because” — repeated
four times in the single sentence that comprises the entirety of Section 105(c)(1) — has one
meaning, and that meaning clearly relates squarely to motivation.

2? “Because” is one of the 100 most-commonly-used words and most clearly understood
words in the English language, as it is the natural beginning of any response to the question,
“Why?” Our colleagues, though, maintain that the reasons “why” an operator has taken an
action they deem to be interference are immaterial, despite the pointed inclusion of “because”
four times in the text of section 105(c). There is an inherent irony in their incuriosity.

oil


constitute a violation of section 105(c), it is sufficient to demonstrate that an operator’s policy
interferes with the exercise of miners’ rights, and that such interference is unjustified, or whether
one must also prove that the challenged policy was implemented with a retaliatory motive, in
other words directly “because of” a miner’s exercise of a statutory right.

As described below, we believe that the correct test is the test previously articulated by
two Commissioners in Franks & Hoy, 36 FMSHRC at 2108 (sep. op. of Chairman Jordan and
Comm’r Nakamura), and proposed by the Secretary herein (S. Resp. Br. at 13-15), providing that
asection 105(c) violation of interference occurs if:

(1) a person’s action can be reasonably viewed, from the
perspective of members of the protected class and under the
totality of the circumstances, as tending to interfere with the
exercise of protected rights, and (2) the person fails to justify the
action with a legitimate and substantial reason whose importance
outweighs the harm caused to the exercise of protected rights.

In attempting to answer the question of the correct test for interference, we turn to the
language of the statute, and our first inquiry is “whether Congress has directly spoken to the
precise question at issue.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). Ifa statute is clear
and unambiguous, effect must be given to its language. See Chevron, 467 U.S. at 842-43;
accord Local Union 1261, UMWA, 917 F.2d 42, 44 (D.C. Cir. 1990). In ascertaining the
meaning of the statute, courts utilize traditional tools of construction, including an examination
of the “particular statutory language at issue, as well as the language and design of the statute as
a whole,” to determine whether Congress had an intention on the specific question at issue
(“Chevron I” analysis). Local Union 1261, UMWA v. FMSHRC, 917 F.2d at 44; Coal
Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989). If an interpretation of
statutory language which apparently is clear and unambiguous leads to absurd results, then the
language should be found to be ambiguous. American Water Works Assoc. v. EPA, 40 F.3d
1266, 1271 (D.C. Cir. 1994); see also United States v. Ryan, 284 U.S. 167, 175 (1931) (“A literal
application of a statute which would lead to absurd consequences is to be avoided whenever a
reasonable application can be given which is consistent with the legislative purpose.”). Ifa
statute is ambiguous or silent on a point in question, deference is accorded to the interpretation of
the agency charged with administering the provision in question, provided that the interpretation
is reasonable (Chevron II analysis). See Chevron, 467 U.S. at 843-44; Energy West Mining Co.
v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994).

Section 105(c) mandates that persons not take certain actions “because of” a miner’s”
exercise of statutory rights. Included in the list of prohibited actions is the directive not to

2 Section 105(c) speaks of the protected class as including “miner[s], representative[s] of
miners, or applicant[s] for employment in any coal or other mine subject to this Act.” 30 U.S.C.
§ 815(c)(1). For simplicity of expression, in this opinion we shall simply use the word “miner,”
understanding that it refers to the entire protected class.


history of the Mine Act and, importantly, one in keeping with Congressional intent to encourage
miners to play an active role in maintaining safe and healthful conditions in the mines.”°

Il. Substantial Evidence Supports the Judge’s Finding that the Bonus Plans
Interfered with the Miners’ Protected Rights.

A. A Reasonable Miner Would be Deterred from Exercising His or Her
Rights _as a Result of the Bonus Plans.

Concluding that the bonus plans discouraged miners from making safety complaints,
reporting injuries, and serving as walk-around representatives, the Judge explained:

While the bonus amounts are not extraordinarily large, the amounts
for production crewmembers are large enough to matter to most
miners. The witnesses at the hearing also emphasized the intensity
of the peer pressure fostered by the plans. The bonus plans make it
so that a miner must decide whether it is worth taking money out
of his own pocket and those of his entire section every time he
considers reporting an unsafe condition or an injury. This impact
on a miner’s decision to exercise his rights constitutes a coercive
pressure analogous to the interrogation and harassment discussed
by the Commission in Moses and Gray.

38 FMSHRC at 953 (citations omitted).

Ample evidence”! supports the Judge’s conclusion regarding the negative impact the
plans had on the miners’ exercise of rights, evidence the operator did not attempt to counter.

Miner Timothy McCoy, employed at the Marshall County Mine, testified that miners on
his production crew did not report hazards to MSHA because they did not want to risk their
bonuses. He described an incident in which roof bolts were not properly spaced over a power

20 Indeed, section 2(e) of the Mine Act states that mine operators, with the assistance of
miners, have the primary responsibility to prevent the existence of unsafe and unhealthful
conditions and practices in mines. 30 U.S.C. § 801(e).

2! Tn his case-in-chief, the Secretary presented evidence from four miners to describe the

effects of the bonus plans. The Secretary attempted to call additional miner witnesses, but the
Judge excluded their testimony, finding that it would be cumulative. 38 FMSHRC at 944, n.1.

22


Il. There’s No Evidence or Rational Analysis to Support the Secretary’s
Application of Incongruous Legal Doctrine and Statutes Not Germane Here.

Unable to argue persuasively the definition of “because” in the context of the wording of
the Mine Act or in an analysis of legislative history, the Secretary turns to a wholly different and
completely irrelevant category of cases in an effort to obscure the clear wording of the Mine Act.
The Secretary relies on Texas Department of Housing Community Affairs v. Inclusive
Communities Project, Inc., 135 S. Ct. 2507 (2015), to support an argument that section 105(c)(1)
should be read to embrace a “disparate impact” analysis. There is no foundation anywhere in the
law for this discordant cherry-picking of out-of-context language from an exotic, context-
sensitive legal doctrine.

A. Disparate-Impact Case Law is Not Applicable in This Case.

Disparate-impact cases use statistical evidence to show that members of a protected class
defined by identifiable and usually immutable characteristics, have been disproportionately
disadvantaged compared to members outside the class by policies that are facially-neutral.
“[{C]laims that stress ‘disparate impact’ [by contrast] involve employment practices that are
facially neutral in their treatment of different groups but that in fact fall more harshly on one
group than another... .” Smith v. City of Jackson, 544 U.S. 228, 239 (2005) (quoting Teamsters
v. U.S., 431 US. 324, 335-336 n.15 (1977)).!!

"Ip International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15
(1977), the Supreme Court explained the difference between “disparate treatment” and “disparate
impact”:

“Disparate treatment” such as is alleged in the present case is the
most easily understood type of discrimination. The employer
simply treats some people less favorably than others because of
their race, color, religion, sex, or national origin. Proof of
discriminatory motive is critical, although it can in some situations
be inferred from the mere fact of differences in treatment... .
Claims of disparate treatment may be distinguished from claims
that stress “disparate impact.” The latter involve employment
practices that are facially neutral in their treatment of different
groups but that in fact fall more harshly on one group than another
and cannot be justified by business necessity.

Obviously, section 105(c) does not deal with separate or “disparate” groups. A// miners are
entitled to exercise protected rights without discrimination or interference because of their
exercise of such rights. With the Secretary’s resort to a theory of disparate-impact liability for
interference cases, it appears that the Secretary has entirely failed to heed the Supreme Court’s
admonition, set forth in the context of interpreting discrimination provisions, to “be careful not to
apply rules applicable under one statute to a different statute without careful and critical
examination.” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008).

39


There is a total absence of any of these facts in the record of this case:

e There is no group of persons that Congress has chosen to protect on the basis that
the group is subject to prejudice or discrimination based on characteristics.

e There are no distinguishing personal characteristics one might use to establish a
disparity based on protected-group membership.

e There is no comparator class of persons against whom a disparate impact theory
may be evaluated, and thus no showing that consequences of an action fall more
harshly on one group than another.

e There are no statistics — indeed, no objective evidence of any sort — showing a
disparity.

Because none of the predicate facts exist in this case, there is, of course, no showing of a
disparate impact — which is an irresolvable problem for a disparate-impact case. In fact, there is
not even really a theory here: just a slogan or a catchphrase. It matters not at all to our
colleagues, who unquestioningly accept the Secretary’s radical reliance on an extraordinary legal
remedy, despite a total absence of the evidence used to prove that theory in its proper context.

Even properly-applied disparate-impact cases are rare. While the Secretary states —
incorrectly — that Inclusive Communities “says nothing about applying only in exceptional
circumstances,” S. Resp. Br. at 25, the Supreme Court majority not only specifically
acknowledged that “the underlying dispute in this case involves a novel theory of liability,” but
cited a historical review showing that such cases do, in fact, appear to be “exceptional.”
Inclusive Communities, 135 S. Ct. at 2522 (citing Seicshnaydre, Is Disparate Impact Having Any
Impact? An Appellate Analysis of Forty Years of Disparate Impact Claims Under the Fair
Housing Act, 63 Am. U. L. Rev. 357, 360-63 (2013)) (“noting the rarity of this type of claim”
(emphasis added)). The Secretary is thus either unaware of the exotic foundation of his own
theory, or he has chosen to ignore what the Court said about it in Inclusive Communities.

The foregoing caveat would apply even to a true disparate-impact case, reflecting a
justified caution in the Court’s consideration of the scope of disparate-impact doctrine, even in a
case with the requisite evidentiary support and a common foundation in civil rights law. Here,
though, the Secretary produced none of the evidence required to support the theory he himself
has chosen to argue before us, and which is spelled out as a prerequisite for the type of theory he
espouses in the very authority he has chosen to cite. Simultaneously, he disclaims that
authority’s own acknowledgment that the approach it endorsed is highly unusual. The Secretary
does all this in order to favor his policy preferences over the clear words of Congress.

40


established potential inconsistencies in testimony and the Judge had taken notice of them. Tr.
69-72, 91-92, 167-70, 248-49. Since the Operators had already raised the issue of allegedly
inconsistent testimony, any additional cross-examination would have had limited probative
value. See Shamokin Filler Co., 772 F.3d at 339 (holding the judge did not err in excluding
evidence of limited probative value when the presentation of that evidence would unnecessarily
delay the hearing). The Judge merely re-directed the Operators’ counsel to focus his
examination substantively, rather than to spend time proving the inconsistency.

Rule 63(b) requires that a party be permitted “to conduct such cross-examination as may
be required for a full and true disclosure of the facts.” Comm’n Proc. Rule 63(b), 29 C.F.R.
§ 2700.63(b) (emphasis added). A Judge’s limitations on cross-examination are reviewed for
abuse of discretion. See Connolly-Pacific Co., 36 FMSHRC 1549, 1555-56 (June 2014) (holding
that the Judge did not err in enforcing time limits on some cross-examination).

The Operators first argue that the Judge twice limited their ability to impeach the
Secretary’s witnesses with allegedly prior inconsistent statements from their depositions.
Counsel for the Operators attempted to impeach the witnesses by asking why they had mentioned
acertain anecdote at trial but not in their depositions.”

The Operators additionally complain that they were not permitted to question two of the
Secretary’s witnesses about having testified to anecdotes that were not mentioned in the initial
interrogatories exchanged by the parties during discovery. See R. PDR at 23-25 (citing Tr. 91-
92, 248-49). However, the Secretary and the UMWA had objected to the interrogatories as being
overly broad, unduly vague, and burdensome. Hence, these interrogatory responses were not
inconsistent with the subsequent testimony. Moreover, at the hearing, the Judge appears to have
been willing to assume that the anecdotes in question were not mentioned in the interrogatories,
but the Judge found that this did not undermine the witnesses’ credibility because they testified
to the anecdotes at their depositions. See Tr. 91-92, 248-49.

In short, we reject these baseless objections by the Operators, and conclude that the Judge
did not abuse her discretion.*°

?° One of the two witnesses explained that she did not mention the incident at the
deposition because the Operators’ counsel had objected to the fact that the witness would not
disclose the identity of the miners who allegedly were involved. Tr. 168-69.

3° We reject the Operators’ argument that the Judge erred by considering the evidence
collectively as applying to each mine. In conjunction with streamlining this trial, the Judge
limited the Secretary’s presentation of redundant witnesses by prohibiting the Secretary from
presenting a witness from each individual mine. The evidence reflected that the bonus plans at
the mines were nearly identical. One individual drafted a single plan and met with each mine in
implementing them. The only differences with the plans at Ohio County Mine and Powhatan
No. 6 Mine were minimal — allowing a representative of the mine safety committee to conduct
one additional inspection each month and permitting safety committee participation in
determining whether injuries affecting bonuses were properly documented. This did not affect

28


inspector issued a significant and substantial (“S&S”) citation for a condition inby the tailpiece.
Similarly, all the miners on a section could be deemed ineligible to receive a bonus for a full
week if the section received a withdrawal order under sections 104(b) or 104(d) of the Mine Act.
The entire crew would be ineligible for one shift if any crew member suffered a lost-time
accident during that shift. And at five mines, any “major deviation” from “[s]ection
production and safety standards” would disqualify a production crew.’ 38 FMSHRC 943; Jt.
Exs. 20-25.

As set forth above, the parties assert starkly contrasting views of the proper interpretation
of section 105(c). As one would expect, each side presented evidence supporting its legal
position.

The Secretary and Union presented six Union officials and/or local safety committeemen.
Each testified in detail about the terms of the bonus plans, explaining how certain activity by
miners would render them ineligible for a bonus. They also testified to the chilling effects of the
plans upon the exercise of protected rights, describing numerous instances in which miners were
deterred from engaging in safety related activity in order to avoid negatively impacting a bonus.
The testimony of interference ranged from miners raising fewer safety issues and neglecting non-
production safety tasks, such as rock dusting, to fewer reports of injuries and antipathy towards
miners’ representatives’ assertion of safety rights. The witnesses also explained why the
legitimate business purposes intended to be served by the bonus plan did not offset the
interference.

At oral argument, the Secretary stated that his case did not depend upon a showing of
retaliatory motivation. Accordingly, the Secretary did not present evidence going to a causal
connection between the implementation of the bonus plan and prior protected activity.

The Operators, on the other hand, staked their case on their view of the law. They
presented just one witness — John Forrelli, Senior Vice President of Murray Energy Corporation.
He testified that the purpose of the bonus plans was to improve both production and safety and
that the Operators did not implement the plans because of any protected activity. Thus, they
claimed protected activity did not motivate adoption of the plans. Under their view of section
105(c), an absence of evidence showing that the plans were implemented because of the exercise
of protected rights defeats a section 105(c) claim.

? The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.
§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a. . . mine safety or health hazard.”

3 The discontinued plan at the Harrison County Mine did not include the “major
deviation” provision. Jt. Ex. 24.


not constitute interference. We held that, in determining whether an actor’s statements are
coercive under the Mine Act, Judges must consider the totality of the circumstances. Jd, at 10.

The Secretary argues that Gray’s holding is substantially broader and that “[t]he only
reasonable way to read Gray is as adopting the NLRA interference test and rejecting the notion
that the interferer’s intent matters.” S, Resp. Br. 19. The Secretary misreads the Gray decision
by ignoring the case’s factual context, where the motivation was apparent.” The Commission in
Gray did not confront the issue in the present case — whether an employer’s allegedly
interfering actions must be motivated by protected activity in order to constitute a violation of
section 105(c)(1). Rather, Gray was concerned with policing the line between allowable
comments and questions about protected activity and impermissible coercive interrogations and
harassment about protected activity.

In Gray, a co-worker asked Gray about whether he had testified against him before a
grand jury in a case related to unsafe mining activities. 27 FMSHRC at 3. Such testimony is
protected activity under the Mine Act. 30 U.S.C. § 815(c)(1). The miner said that there would
not be any hard feelings “unless you put the screw to me, then I’ll kill you.” 27 FMSHRC at 3.
Later, the same miner asked Gray about another miner’s testimony, stating that “if anyone had
laid the screws to him that he would whip their ass.” Jd. The Judge found that such comments
did not constitute threats because the co-worker did not actually intend to kill or hurt Gray or the
other miner. Sec’y of Labor on behalf of Gray v. N. Star Mining, Inc., 25 FMSHRC 198, 215-16
(Apr. 2003) (ALJ).

In that case, whether or not the threats were genuine, they were clearly motivated by
protected activity (testimony related to unsafe mining activities). Protected activity was at the
core of the case. The issue of whether motivation was required for interference was not before
the Commission. Rather, the Commission found that the Judge applied the wrong legal standard
in determining whether such comments rose to the level of coercion. The Judge had framed the
question in the case as whether “[the miner] meant the literal meaning of the words, ‘I’ll kill
you,” or whether he was speaking figuratively, as in, ‘I'll really be upset with you.’”” 27
FMSHRC at 10.

The Commission found that the Judge focused too narrowly on the goal of the statements
— that is, “largely, if not exclusively, [the miner’s] intent or motive in making the statements.”
Id. The Commission found that the occurrence of a violation did not turn upon the literal truth of
the murder threat. Instead, the miner’s “statements could be coercive, even if he did not mean to
literally kill or cause physical harm to Gray or other miners who testified against him.” Jd.
“[T]he judge should have considered the effect of [the miner’s] statements in this broader context
and what other meanings could be reasonably inferred from them, rather than limiting her
consideration to their literal meaning and what [the miner] intended.” Id. (emphasis added).

21 As previously noted, Section IIL, supra, the Secretary also dissembles the statutory
language of the NLRA, which was not in issue in Gray and which, read fairly, undercuts his
argument.

47


Section 8(a)(1) of the NLRA provides: “It shall be an unfair labor practice for an
employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed
in section 157 of this title.” 29 U.S.C. § 158(a)(1).

Unlike section 105(c)(1), section 8(a)(1) does not include any motivational requirement —
that is, there is no “because” in it. Actions that “interfere” or rise to the level of “coercion” are
likely to be similar in both contexts, but the Mine Act contains the explicit requirement that
interference must be occur “because of” protected activity — section 8(a)(1) of the NLRA
contains no such requirement.

Thus, the NLRA case law is irrelevant due to the omission of “because” from section
8(a)(1), which is material and presumptively intentional. The Court has stated that it has “often
noted that when ‘Congress includes particular language in one section of a statute but omits it in
another’ — let alone in the very next provision — this Court ‘presume [s]’ that Congress intended a
difference in meaning.” Loughrin, 134 S. Ct. at 2390 (quoting Russello v. United States, 464
US. 16, 23 (1983).

The Secretary further failed to note that, in 8(a), Congress did require motivation, but
only in subsection (a)(4), which makes it an unfair labor practice “to discharge or otherwise
discriminate against an employee because he has filed charges or given testimony under this
subchapter.” 29 U.S.C. § 158(a)(4) (emphasis added).

Of course, the NLRA is an entirely separate statute. There is no congruence between the
respective provisions of the Mine Act and the NLRA because the latter does not include
“because” — a crucial term with fatal significance here. The Secretary’s misstatement of the law
is thus readily exposed, and the NLRA’s interference provision has no relevance here.

IV. There Is No Basis for Our Colleagues’ Reliance Upon an “Absurd Results”
Theory and No Grounds for Re-Writing The Statute to Avoid Them.

The real danger represented by the misreading of the Mine Act is demonstrated by the
fact that it is unnecessary to any purpose save bureaucratic expedience. A decade after Griggs —
and 35 years before we heard this case — the Commission addressed, and resolved, the same
concerns our colleagues and the Secretary have raised. See Pasula, 2 FMSHRC at 2795-2801;
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). Our colleagues’
claim that absurd results will necessarily flow from a consistent, harmonious reading of the
provisions of section 105(c)(1). Their claim is demonstrably false.

18 The Secretary’s argument elides the fact that the Commission has never equated the
two provisions, which are not, in fact, similar in their requirements. We have not held that
actions need not be motivated by protected activity, because in the entire history of the Act,
every case considered by the Commission has presented facts showing motivation, and it is
apparent from circumstance that the law was clearly understood as meaning what it plainly says.

45


after the making of a bona fide offer . . . or otherwise make unavailable or deny, a dwelling to
any person because of race, color, religion, sex, familial status, or national origin.” Jd. at 2518
(quoting 42 U.S.C. § 3604(a)) (emphasis added). Although a purpose underlying the Fair
Housing Act was to reduce racially segregated housing, the housing tax credit program under
review actually wound up reinforcing it, albeit without evidence of a discriminatory intent. The
Housing Department denied liability, claiming that “[a]n action is not taken ‘because of race’
unless race is a reason for the action.” 135 S. Ct. at 2519.

The Court rejected the argument that “because of” must include a motivational argument.
Focusing on the phrase “or otherwise make unavailable,” it noted the similar language in both
Title VII and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, and
concluded:

In these three statutes the operative text looks to results. The
relevant statutory phrases, moreover, play an identical role in the
structure common to all three statutes: Located at the end of
lengthy sentences that begin with prohibitions on disparate
treatment, they serve as catchall phrases ooking to consequences,
not intent, And all three statutes use the word ‘otherwise’ to
introduce the results-oriented phrase. “Otherwise” means “in a
different way or manner,” thus signaling a shift in emphasis from
an actor’s intent to the consequences of his actions. Webster’s
Third New International Dictionary 1598 (1971).

135 S. Ct. at 2519 (emphasis added). Thus, the Court held that the inclusion of the phrase
“because of” in an anti- discrimination statute does not imply the need to show discriminatory
motive.

'! Our colleagues argue that Inclusive Communities is irrelevant to the issues here
because it involved a claim of disparate impact, an area of law they suggest is unique unto itself.
But the Court’s reasoning and conclusions were not so narrowly drawn. The above-quoted
passage shows that the language and structure of the anti-discrimination provisions reviewed by
the Court were critical to its conclusion that the effects or consequences of employer conduct
may support a claim of discrimination without regard to the employer’s intent. Similar language
and structure support the same reading and conclusion for section 105(c) of the Mine Act.

Moreover a focus on the effects of employer conduct is not limited to cases involving
disparate impact claims and, in fact, is consistent with Commission precedent interpreting
section 105(c), as reflected in Moses and Gray. The importance the Commission has placed on
the effects of operator conduct is also reflected in its use of section 8(a)(1) of the National Labor
Relations Act as an aid in interpreting section 105(c). See Gray, 27 FMSHC at 9-10. Section
8(a)(1) focuses on the effects of employer misconduct and does not contain a motivational
requirement.

15


forbids adverse action or interference “because . . . such miner” previously participated in
protected activity directly contravenes the legislative history of the Mine Act.

In light of this legislative history, we conclude it inappropriate to limit the scope of
section 105(c)’s protection from interference in the manner proposed by the Operators. We
decline to adopt their narrow construction, based on the literal terminology of the statute and
focused on an employer’s motivation when implementing the policy, rather than on the effects of
the policy on miners’ willingness to exercise their rights. The decisions endorsed by the Senate
drafters rejected such an interpretation. Those decisions declined to elevate the statutory text at
the expense of the underlying remedial purpose of the law, and we find it difficult to believe the
drafters would consider motivation to be such a necessary element that its absence would be the
basis for an interpretation of 105(c) that undermines its very purpose: to encourage the reporting
of suspected violations of health and safety regulations.

Indeed, the test proposed by the Operators leads to absurd results because the
Congressional intent to include “the more subtle forms of interference” is essentially precluded.”

Our colleagues’ assertion, slip op. at 37-38, that the legislative history of section
105(c) supports their position rings hollow. They rely heavily on the drafters’ statement that
their goal was the protection of miners from interference with their rights in the form of “threats
of reprisal,” and then argue that “[fJor there to be a threat of reprisal there must be an action that
triggers the threat — that is, there must be a cause for the reprisal.” Jd. at 37. Our colleagues
ignore the fact that in the same sentence of the legislative history containing the phrase “threats
of reprisal,” the drafters expressed their concern about interference in the form of “promises of
benefit.” S. Rep. No. 95-181, at 36. A promise of benefit which has the effect of interference
with the exercise of protected rights need not have been motivated by the exercise of those rights.

Our colleagues also claim textual significance in the fact that in converting the 1969 Coal
Act’s section 110(b) into the 1977 Mine Act’s section 105(c), Congress changed the language
“by reason of the fact” to “because” and re-structured the section so that instead of phrases
beginning “(A),” “(B),” and “(C),” each subject to the “by reason of the fact” language, the
section now contains separate clauses prefaced by “or” and including the “because” or “because
of” language. We fail to discern an effectual difference between “by reason of the fact” and
“because.” What is much more significant in the evolution of this section is that in 1977
Congress added the language “or otherwise interfere with the exercise of . . . statutory rights,” a
provision which did not exist in the 1969 Coal Act. In explanation of the new interference
language, the legislative history spoke of going beyond “the common forms of discrimination”
so as to include “the more subtle forms of interference, such as promises of benefit ....” S. Rep.
No. 95-181, at 36.

3 Digital Realty Trust, Inc. v. Somers, 138 S.Ct. 767 (2018), relied on by our colleagues,
does not refute this. In that case, the Supreme Court ruled that a private sector employee who
did not report any securities-law violations to the Securities and Exchange Commission was not
a “whistleblower,” even though he had reported his concerns to senior management. The Court’s
adherence to the plain language of the statutory definition of “whistleblower,” which states that a

17


Acting Chairman Althen and Commissioner Young would find that the language of
section 105(c) is plain and requires proof of motivation related to protected activity to establish a
claim of interference and would conclude that the Secretary has failed to prove motivation in this
case. Thus, they would reverse the Judge’s finding of interference in violation of section 105(c).

The effect of the split decision is to allow the Judge’s conclusions on the violations and
penalty assessments to stand as if affirmed. Pennsylvania Electric Co., 12 FASHRC 1562,
1563-65 (Aug. 1990), aff'd, 969 F.2d 1501 (3d Cir. 1992).

L
Background and Proceedings Below

A. Background

In 2014, the Operators decided to implement bonus plans at each of the six mines. The
bonus plans provided that miners would earn additional pay if they met specified production
goals. In October or November 2014, the Operators held a meeting at each of the mines with the
UMWA representatives to present the bonus plans. During these meetings, the UMWA
representatives argued that the bonus plans would have a negative effect on mine safety and
miners’ willingness to exercise their rights. Tr. 33-34, 146-47, 149, 208-09, 282, 288.

The Operators made minor changes to their initial proposals that somewhat narrowed
plan provisions that disqualify entire crews from earning bonuses if an injury occurred during a
shift. However, miners continued to raise safety concerns during subsequent meetings with
management. Jt. Ex. 1A, Stip. 28; Jt. Ex. 14-19; Tr. 36-37, 151. At three mines, miners voted on
whether to approve the bonus plans, and two of the three rejected the plans. Jt. Ex. 1A, Stips. 35,
47; Tr. 37, 210-11. The Operators nonetheless implemented the bonus plans at all six mines
between January 15 and 19, 2015.

Arbitration decisions under the collective bargaining agreement between the Operators
and the UMWA have since led to the discontinuation of the bonus plans at the Marion County
Mine in July 2015, at the Powhatan No. 6 Mine in September 2015, and at the Harrison County
Mine in December 2015. 38 FMSHRC at 946. The plans remained in effect at the other three
mines until the Judge’s decision in this case in May 2016. Id.

The plans at the six mines were generally identical. Miners in a production crew
qualified for bonuses that increased by steps according to how far the working face advanced
during a shift. To qualify for the bonus, miners had to be “physically present the entire shift.”
38 FMSHRC at 943; Jt. Exs. 20-25. Miners working outby the face were eligible to receive 10%
of the bonuses achieved by production crews. Miners from production crews who accompanied
MSHA inspectors during inspections were only eligible for the 10% outby bonus.

Certain events would disqualify section crews for a shift, a day, or even a week. All
production crews on a section would lose their bonus eligibility for a full day if an MSHA


In fact, the legislative history of the Mine Act — with its references to threats as
illustrative of “interference” — establishes that disparate-impact liability has no place in
interpreting the interference clause of section 105(c)(1). The addition of the phrase “or
otherwise interfere” simply recognizes that other forms of employer retaliation, such as threats,
may also — or “otherwise” — constitute wrongful action when motivated by protected activity.!°

The legislative history of the two statutes confirms this congressional intent. In
proposing an amendment to the Coal Act that became section 110(b)(1) — the precursor to
section 110(c) — Senator Edward Kennedy explained that it “would make it unlawful for any
person to discharge or otherwise discriminate against a miner for bringing suspected violations
of this act to the attention of the authorities.” 115 Cong. Rec. 27948 (Oct. 1, 1969), reprinted in
S. Subcomm. on Labor, S. Comm. on Labor and Pub. Welfare, 94th Cong., 1st Sess., Legislative
History of the Federal Coal Mine Health and Safety Act of 1969 Part I, at 666 (1975) (emphasis
added). He further explained that his amendment gave miners “the same safeguards that we give
to other employees who raise possible violations of the law.” Id. at 667-68 (emphasis added).

The available history of section 110(b)(1) of the Coal Act clearly supports the plain
language’s protection against operator conduct motivated by a desire to retaliate for a miner’s
assertion of his/her safety rights. Thus, a motivational nexus was the required for a successful
claim under section 110(b)(1).

Regarding interference with protected rights under the Mine Act, at no point did
Congress even hint at an intention to eliminate or qualify the motivation required by the Coal
Act. On the contrary, the Committee on Human Resources explained, “if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation.” It further
stated that “[w]henever protected activity is in any manner a contributing factor to the retaliatory
conduct, a finding of discrimination should be made.” S. Rep. No. 95-181, at 35, 36, reprinted
in Legis. Hist. at 623, 624 (emphases added).

Section 105(c)(1) provides protection against discrimination, discharge, and interference
because of protected activity. It achieves those protections through direct and/or circumstantial
evidence permitting reasonable inferences drawn from all the evidence presented in a case. To
erase “because,” and thus the necessary motivational nexus, from section 105(c)(1) is entirely
contrary to the language and legislative history of the Mine Act and the Coal Act.

10 MSHA itself has recognized that the Mine Act does not reach mistreatment based on
the types of characteristics that have supported disparate-impact analysis. MSHA’s A Guide to
Miners’ Rights and Responsibilities Under the Federal Mine Safety and Health Act of 1977, at 7
(Rev. 2017), states, “Discrimination on the basis of race, sex, age, religion, handicap, union
activity, or any other non-mining status, is not covered by Section 105(c) of the Act.” Rather,
the prohibited actions are those taken for the reasons enumerated in the statute; if some other
reason motivates an action, the Mine Act provides no recourse.

38


that the operators did not refute the evidence in any way significantly weakens their argument
that the evidence was not reliable.

Second, the hearsay testimony was consistent. Jd, at 1136-37. All of the miners’
representatives testified about incidents involving miners who chose to forego protected activity
due to the bonus plan. Tr. 47, 54-55, 72, 107-08, 112, 114-15, 141, 152, 155-58, 167, 213, 226-
229. See Mid Continent Res., 6 FMSHRC at 1136-37 (“If there is more than one reported
[hearsay] statement, we inquire whether the statements are consistent .... And we examine the
content of any contradictory or corroboration evidence.”).

As in Mid-Continent, the out-of-court statements in this matter “rest[ed] on personal
knowledge gained from firsthand experience.” Jd. at 1136. The miners’ representatives testified
to the thoughts and motivations of miners reacting to the bonus plan, as it was related to them.
Clearly, these miners had personal knowledge of their own responses to the bonus plan.

A final factor suggested by the Commission in Mid-Continent is whether the out-of-court
declarant had an interest in the outcome of the case (and thus a reason to lie). Jd. at 1136. Here,
the record indicates that the miners felt that they benefited economically from the bonus plan, so
they would have had no motivation to dissemble in order to shore up an interference claim
challenging the plans.”

As the above discussion indicates, there is nothing that tempts us to call into question the
reliability of the undisputed testimony admitted by the Judge.”> Moreover, the use of relevant
information from the miners’ representatives permitted the Judge to avoid a hearing that would

24 Tn fact, in this case, miner witnesses had motivation not to come forward. Witnesses
risked retaliation, not only from the Operators, but also from their bonus-seeking fellow miners.
We agree with the Secretary that “[t]he very nature of an interference violation is that it deters or
intimidates miners from coming forward to share their concerns with MSHA, management, and
the Commission. To fault the Secretary for proffering obviously relevant testimony via
representatives of miners, as he did here, would undermine the structure and purpose of the Mine
Act, which specifically envisions representatives acting as advocates for miners.” S. Resp. Br. to
R. PDR at 42. These considerations are precisely why the Commission’s rules permit hearsay
testimony.

25 To the extent that the Operators identify instances of double hearsay, we agree that a
Judge must be particularly attentive and scrutinize such testimony for its probative value.
However, under the circumstances, given the overwhelming reliable evidence of numerous
examples of miners coerced into not exercising their protected rights in order to achieve a bonus
under the plans, any error by the Judge in crediting and relying on such double hearsay is
harmless.

26


for employment has instituted or caused to be instituted any
proceeding under or related to this chapter or has testified or is
about to testify in any such proceeding, or because of the exercise
by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right
afforded by this chapter.

30 U.S.C. § 815(¢)(1).

The cases arise from the Operators’ implementation of bonus plans at their respective
mines. The Operators and the United Mine Workers of America (“UMWA” or “the Union”)
filed cross petitions for review of the Judge’s decision, which the Commission granted. We
briefly respond to the Union’s petition and then turn to the Operators’ claim.

The UMWA’s Request for a Make-Whole Remedy

UMWA seeks a make-whole remedy for miners who did not receive bonuses under the
plans’ provisions. We deny that request. The Union did not present evidence regarding miners
who suffered lost bonuses. As the Secretary’s brief in response to UMWA’s opening brief
pointed out, proof of such relief would require a remand and re-opening the record to present
additional evidence of each instance of denied bonus and proof of the lost payment amount,
beyond the scope of issues raised in the initial hearing before the Judge. The Union had the
opportunity to submit this issue for consideration by the Judge, but it did not. Accordingly, we
find that the Union waived this argument, and the Commission declines to consider it on appeal.

The Operators’ Challenge to the Decision of the Judge Below

Regarding the Operators’ claim, the parties stake their positions on clear and sharply
contrasting views of section 105(c). The Secretary and the UMWA contend that an action
interferes with the exercise of protected rights if the action tends to interfere with the exercise of
protected rights and is not justified by a legitimate and substantial reason whose importance
outweighs harm caused to the exercise of protected rights. They assert motivation or
causation is not an element of such a violation. The Operators, on the other hand, contend that
the Judge erred in the application of section 105(c). They contend that section 105(c) contains a
necessary element of motive or causation. Thus, they argue that the complaining party must
demonstrate that an operator’s action arose because of the exercise of protected activity. The
Judge adopted the position asserted by the Secretary and the UMWA.

The Commissioners are divided evenly regarding the correct analytical framework to
apply and whether the Operators violated section 105(c).

Commissioners Jordan and Cohen would find that the language of section 105(c) is
ambiguous and would defer to the Secretary’s reasonable interpretation. They would apply the
Franks test, infra slip op. at 8, and conclude that substantial evidence supports the Judge’s
determination that the Operators violated section 105(c) by implementing bonus plans which
interfered with miners’ protected rights under the Mine Act.


miner who files a section 103(g) complaint will be fired would violate section 105(c) because it
is because of a right to engage in protected activity.

As we said at the outset, the Secretary did not introduce evidence or argue, let alone
prove, that the bonus plans were motivated by the prospect of protected activity. Our colleagues,
naturally, have made no effort at all to reconcile the plain language with the circumstances in this
case because no evidence permitting such analysis was introduced, and because the
circumstances fall squarely within the Pasula-Robinette formula we have unfailingly applied to
cases arising undr Section 105(c)(1).

As a final point, this case does not involve mining activities with respect to which MSHA
may claim any special expertise or experience. The issue does not turn on a policy interpretation
of a safety standard in the Mine Act or promulgated by MSHA. Here, we reach a legal decision
on the meaning of legal requirements of the Mine Act, not mining practices prescribed in the
Act. The Secretary has not taken any formal action to formulate and announce a coherent policy
on discrimination and interference; instead, he attempts to prevail in a particular case by
claiming deference without any recognition or consideration of the broad scope of the principle
that would result.

MSHA has not demonstrated that it has considered the effect that eliminating motive
from an interference claim might have on literally thousands of daily events in which
management communicates a mining technique, mining practice, or mine directive to miners.
The Secretary has not allowed any public comment or participation regarding an attempt to
expand of the scope of section 105(c). Indeed, notwithstanding the use of “because” repeatedly
after the prohibitions against discrimination and interference and the Secretary’s agreement that
motivation is a prerequisite for discrimination, the Secretary asserts the illogical and, frankly,
absurd position that the word “because” requires motivation when applied to discrimination
cases but does not require motivation when applied to interference cases.

Congress designated the Commission as the adjudicatory agency for Mine Act disputes.
There is no reason for the Commission to defer to a litigation position on a purely legal matter on
which the Secretary has not demonstrated any formal, thoughtful, or fully informed
consideration, analysis, or reasoning. The Secretary’s position has neither the attributes required
for Chevron deference nor persuasiveness were we to apply the standard of Skidmore v. Swift &
Co., 323 U.S. 134 (1944).

4 This point is especially relevant where, as here, the Secretary attempts an unprincipled
and significant legislative revision that effectively reads congressional language out of the
statute.

50


Indeed, from its very outset, the Commission recognized the meaning of “because” and
required a motivational nexus between protected activity and violations of section 105(c). In
Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct.
1980), rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981), the Commission held that “the
complainant has established a prima facie case of a violation of section 105(c)(1) ifa
preponderance of the evidence proves (1) that he engaged in a protected activity, and (2) that the
adverse action was motivated in any part by the protected activity.”

Pasula and its progeny are not limited to any one of the four subgroups of unlawful
conduct under section 105(c), but apply, broadly, to any “violation of section 105(c)(1).” Jd.
For all violations of section 105(c), protected activity must motivate at least in part the adverse
action. The Commission has repeatedly affirmed the Pasula test identifying indicia necessary to
“establish a nexus between the protected activity and the alleged discrimination” — most recently
in the case of Sec ’y of Labor on behalf of Kevin Shafer, 40 FMSHRC 39 (Feb. 2018).

Essentially, the Secretary argues that the same word — “because” — has different meanings
in the very same instance of its use depending on which type of case he has decided to bring.°
The Secretary’s repeated attempts to rewrite unambiguous legislative terms must try the patience
of the circuit courts that have reminded the Commission and the Secretary again and again that
they may not exalt their policy desires over the words of Congress. CalPortland Co. v.
FMSHRC, 839 F.3d 1153, 1161 (D.C. Cir. 2016) (rejecting Secretary’s attempt to interpret
section 105(c) to extend its reach as contrary to plain meaning of provision); Performance Coal
Co., 642 F.3d at 239 (“[T]he language Congress selected [is] plain, clear, and simple and we
tefuse to muddy it by finding ambiguity where none exists.”); Vulcan Constr. Materials, L.P. v.
FMSHRC, 700 F.3d at 309 (section 105(c) case); see also N. Fork Coal Corp. v. FMSHRC, 691
F.3d 735, 743-44 (6th Cir, 2012) (rejecting Secretarial attempt to extend reach of section 105(c)
as entirely unpersuasive).

5 Neither the Secretary nor our colleagues can adequately explain how, in a statute, the
same instance of the same word can hold within it two incompatible meanings at the same time.
There is no basis in law for this proposition. One wonders if they could turn to literature for
support: “Do I contradict myself? Very well then I contradict myself, (I am large, I contain
multitudes.)” Walt Whitman, Song of Myself 51 (1892). Or perhaps they should look to
quantum physics and liken section 105(c)(1) to Schrédinger’s cat — the statute exists in a state of
quantum superposition, where “because” means both “because” and nothing at the same time,
until the Secretary brings a case and the word’s meaning is revealed.

® As discussed further infra, we do not agree with and do not accept the Operators’
argument that, because protected activity must motivate at least in part the Operators’ action, an
action taken to restrain possible future protected activity cannot violate section 105(c). An
action motivated by a desire to foil anticipated protected activity is as fully within the scope of
section 105(c) as if the protected activity had occurred. In this case, the Secretary conceded that
he did not introduce any evidence of motivation. Therefore, we do not deal with a case
involving a claim of an attempt to forestall anticipated protected activities.

34


L.Ed.2d 396 (1977) (‘Disparate treatment’ . . . is the most easily
understood type of discrimination. The employer simply treats
some people less favorably than others because of their [protected
characteristic]. Proof of discriminatory motive is critical”
(emphasis added)).

Smith, 544 U.S. at 249 (emphasis in original). Thus, the author of Inclusive Communities read
“because of” precisely as we do, and even if there were any plausible basis for applying
disparate-impact analysis to interference cases as a threshold matter (there is not), employing the
doctrine here would require a radical leap over a fortified barricade of legal authority and
practical and evidentiary barriers. If the Court was hesitant to expand the scope of disparate-
impact liability to analogous anti-discrimination statutes, it surely would never approve of its
application to a case with no elements in common and no evidence of any disparity.

A more thoughtful review in place of the Secretary’s specious analysis of Supreme Court
precedent makes abundantly clear that Jnclusive Communities is wholly irrelevant to the case
before us.'° Section 105(c)(1) is different in kind from Title VII and the Fair Housing Act. The
Mine Act’s prohibition against interference is not aimed at facially-neutral employer policies
affecting miners because of their membership in a protected group. In characterizing Section
105(c) as an “anti-discrimination law,” somehow similar to Title VII, the FHA or the ADEA, the
Secretary disregards the fact that he suggests an interpretation that he would apply only to
interference claims, and not to discrimination claims — for which he acknowledges motivation is
required.'® Cf S. Resp. Br. at 18.

Finally, the Secretary argues that the use of the word “otherwise” in section 105(c)(1)
indicates an intent to apply a disparate-impact analysis, as in Inclusive Communities. That
argument makes no sense, linguistically, logically, or legally. All of the actions prohibited by
section 105(c) (discrimination, discharge, etc.) are forms of “interference” with protected rights.
Use of the term “otherwise” simply extends the Act’s prohibitions to include employer conduct,
such as threats of reprisals, that does not rise to the level of a direct and adverse employment
action, and represent nothing more than Congressional recognition that interference may be
found — and proved — in operator actions beyond those expressly enumerated, when those actions
are taken “because of” the exercise of protected rights.

'S We must note, again, that Inclusive Communities repeatedly and emphatically makes
clear that it is entirely grounded in disparate-impact theory, and a citation to the points in the
case supporting this limiting principle would read simply “passim.” A full reading of Inclusive
Communities abundantly demonstrates: it is a case decided to address a particular problem using
particular evidentiary methods not applicable here and requiring evidence that has not been
produced in this case.

16 This non-sequitur flows from the fact that the Mine Act is, of course, nothing like

statutes which seek to protect group members from discrimination because of their membership
in a group, even in its “anti-discrimination” provisions.

43


IV. Conclusion

For the foregoing reasons, we would affirm the Judge’s decision.

Maw, be der

Mary! Lu jprseo, Coffinissioner

mr FAL\A

Robert F. Cohen, Jr., Commissoner

the application and analysis of the interference claims. Hence, the testimony of the Secretary’s
witnesses was applicable to all of the Operators’ miners and the Judge did not abuse her
discretion.

29


The Commission’s approach in Moses and Gray is consistent with cases that considered
the scope of the analogous anti-discrimination provision in the Federal Coal Mine Health and
Safety Act of 1969, the predecessor to the current statute. In Phillips v. IBMA, 500 F.2d 772
(D.C. Cir. 1974), the D.C. Circuit considered whether a miner came under the protection of
section 110(b) of that Act when he complained to his foreman, and then subsequently refused to
work because of the dusty conditions in the mine.® The dissenting judge applied the literal
language of the Coal Act, which afforded protection to miners who notified the Secretary or his
authorized representative of an unsafe condition, and concluded that “the phrase ‘the Secretary or
his authorized representative’ on its face plainly does not mean a foreman or the mine employees
serving on a safety committee.” Jd. at 785. The Phillips majority, however, after considering the
procedures in place at the mine and the practical effect of applying the literal language of the
provision, concluded that such an interpretation “would nullify not only the protection against
discharge but also the fundamental purpose of the Act to compel safety in the mines.” Id. at

motivated by protected activity. ... The issue of whether motivation was required for
interference was not before the Commission.” Slip op. at 47-48. However, our colleagues
ignore the fact that in Gray the Commission vacated an ALJ decision where the Judge had
specifically found that Brummett’s statements to Gray “‘amounted to no more than an
exaggerated expression, commonly used between friends who expect loyalty from one another,
and that “‘no threat occurred.’” 27 FMSHRC at 5, quoting 25 FMSHRC at 215, 217. Thus, our
colleagues’ contention that Brummett issued “threats” which were “motivated by protected
activity” is inconsistent with the Judge’s findings based on credibility determinations after a
hearing. In reversing the Judge, the Commission did not challenge her findings regarding the
motivation behind Brummett’s statements to Gray. Rather, the Commission found the
motivation relied on by the Judge to be irrelevant. It was the nature of Brummett’s statements,
and their potentially coercive effect on Gray, which was essential to the Commission’s decision.
27 FMSHRC at 10. Hence, our colleagues are incorrect in stating that the issue of motivation in
an interference claim was not before the Commission in Gray. Their interpretation of the
interference provision in section 105(c) is inconsistent with Gray.

os

5 Section 110(b)(1) of the Coal Act stated:

No person shall discharge or in any other way discriminate against
or cause to be discharged or discriminated against any miner or
any authorized representative of miners by reason of the fact that
such miner or representative (A) has notified the Secretary or his
authorized representative of any alleged violation or danger, (B)
has filed, instituted, or caused to be filed or instituted any
proceeding under this Act, or (C) has testified or is about to testify
in any proceeding resulting from the administration or enforcement
of the provisions of this Act.

30 U.S.C. § 820(b)(1) (1976).

13


CONCLUSION

A principal goal of the Mine Act is to foster cooperation between management and
workers on safety matters and increase worker participation in achieving safe working
conditions. It does not advance the interests served by the Act to disconnect a miner’s allegation
of interference with protected rights from any exercise of protected rights. Further, the course
urged by our colleagues would do real violence to basic principles of statutory construction and
Commission precedents and would ratify an effort by the Secretary to arrogate to him legislative
power reserved to Congress by the Constitution. We would reverse the Judge and dismiss this
case for a lack of substantial evidence on an essential element of the violation.

A 0 Bez

William I. Althen, Acting Chairman

51


SECRETARY OF LABOR, MSHA,
on behalf of ANN MARTIN
and UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION

Vv.

HARRISON COUNTY COAL CO.,
CONSOLIDATION COAL CO.,
MURRAY AMERICAN ENERGY, INC.,
and MURRAY ENERGY CORPORATION

SECRETARY OF LABOR, MSHA,
on behalf of MARK RICHEY
and UNITED MINE WORKERS OF
AMERICA INTERNATIONAL UNION

Vv.

THE OHIO VALLEY COAL CO.,
and MURRAY ENERGY CORPORATION

53


B. The Mine Act’s Legislative History Demonstrates that Interference Could
Occur Without a Showing of Motive on the Part of the Operator.

The directive that no person shall “otherwise interfere with the exercise of the statutory
rights of any miner” was included when the 1969 Coal Act was amended to become the Federal
Mine Safety and Health Act of 1977. The Senate drafters explained that the wording of section
106(c)(1) (the section which became section 105(c) in the final bill) was “broader than the
counterpoint language in section 110 of the Coal Act” and the listing of protected rights was
“intended to be illustrative and not exclusive.” S. Rep. No. 95-181, at 36 (1977), reprinted in
Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine
Safety and Healthy Act of 1977, at 624 (1978). The Committee specified that this section should
“be construed expansively to assure that miners will not be inhibited in any way in exercising
any rights afforded by the legislation” and indicated its intention “to insure the continuing
vitality of the various judicial interpretations of section 110 of the Coal Act which are consistent
with the broad protections of the bill’s provisions. See, e.g., Phillips v. IBMA, 500 F.2d 772;
Munsey v. Morton, 507 F.2d 1202.” S. Rep. No. 95-181, at 36, reprinted in Legis. Hist. at 624.

The legislative history of the discrimination provision in the 1977 Mine Act establishes
that Congress had contemplated the type of operator conduct present in this case, and that
Congress intended to prohibit it without a showing of operator motive. The Senate Report
demonstrates that Congress’ intent was to protect miners from “not only the common forms of
discrimination, such as discharge, suspension, demotion . . . but also against the more subtle
forms of interference, such as promises of benefit or threats of reprisal.” S. Rep. No. 95-181, at
36 (emphasis added). This language directly addresses the Operators’ bonus plans at issue here.
“Promises of benefit” inherently affects future protected activity rather than being made in
reaction to prior protected activity. Thus the Operators’ argument that section 105(c) only

Given the Supreme Court’s reasoning in Inclusive Communities, our colleagues’ reliance
on Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (“Gross”) and University of Texas
Southwestern Medical Center v. Nassar, 133 S, Ct. 2517 (2013) (“Nassar”), to argue that the
phrase “because of” has a plain meaning which requires proof of motive in all case, is misplaced.

Gross involved a claim of disparate treatment under the ADEA which requires proof of
wrongful motivation. Nothing in Gross suggests that the Court was rejecting prior
interpretations of the ADEA, as described in Inclusive Communities, allowing claims challenging
the discriminatory effect or impact of employer conduct without proof of discriminatory motive.

Similarly, Nassar involved a claim under Title VII’s anti-retaliation provision set forth at
42 U.S.C. § 2000e-3(a). That provision does not contain language similar to “otherwise
adversely affects” in the anti-discrimination provisions of Title VII (42 U.S.C. § 2000e-2(a)(2))
and the ADEA (29 U.S.C. § 623(a)(2)), “otherwise make unavailable or deny” in the FHA (42
U.S.C. § 3604(a)), or “otherwise interferes” in section 105(c) of the Mine Act (30 U.S.C.
§ 815(c)(1)). It is limited to claims of retaliatory treatment of employees, which require proof of
motive.

16