**FEDERAL MINE SAFETY ANDHEALTH REVIEW COMMISSION**

OFFICE OFADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA  AVENUE N. W., SUITE 520N

WASHINGTON, D.C. 20004-1710

Telephone No.: 202-434-9933 

Telecopier No.: 202-434-9949

 

 
| SECRETARY  OF LABOR

MINE  SAFETY AND HEALTH

ADMINISTRATION  (MSHA), obo TARA OTTEN

                            Complainant

 

                        v.

 

 

CONTINENTAL  CEMENT COMPANY, LLC,

                              Respondent                                                                            |   |   | DISCRIMINATION  PROCEEDING

 

Docket  No. CENT 2021-0013

 

 

 

 

 

 

Mine:  Hannibal Underground

Mine  ID: 23-02434   

    |
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**DECISIONAND ORDER**

Appearances: Megan J. McGinnis, Esq., for theSecretary of Labor, R. Lance Witcher, Esq., and Thomas R. Chibnall, Esq., forthe Respondent

Before: Judge William B. Moran

            In thisdiscrimination matter brought under Section 105(c) of the Federal Mine Safetyand Health Act of 1977, 30 U.S.C. §801 et seq., (“Mine Act” or “Act”), theissue is whether a miner walkaround representative, when accompanying an MSHAinspector during an inspection, is entitled only to the miner’s regular rate ofpay or to the upgraded pay that miner would have received, per the mine’semployment agreement, but for the miner’s participation in the walkaround. 

Thewalkaround provision is set forth at 30 U.S.C. 813(f). Titled “Participation ofrepresentatives of operators and miners in inspections,” in relevant part, it provides“Subject to regulations issued by the Secretary, a representative of theoperator and a representative authorized by his miners shall be given anopportunity to accompany the Secretary or his authorized representative duringthe physical inspection of any coal or other mine made pursuant to theprovisions of subsection (a), for the purpose of aiding such inspection and toparticipate in pre- or post-inspection conferences held at the mine. Wherethere is no authorized miner representative, the Secretary or his authorizedrepresentative shall consult with a reasonable number of miners concerningmatters of health and safety in such mine. Such representative of miners who isalso an employee of the operator shall suffer *no loss of pay* during theperiod of his participation in the inspection made under this subsection.” (emphasisadded).

Forthe reasons which follow, the Court finds that when Congress provided in 30U.S.C. 813(f) that such representative of miners who is also an employee of theoperator *shall suffer no loss of pay*duringthe period of his participation in the inspection made under this subsection, *itmeant what it said: the representative shall suffer no loss of pay.*AsComplainant Ms. Tara Otten did suffer such a loss of pay, Continental CementCo. LLC, violated the Act’s discrimination provision, 30 U.S.C.§815(c) . 

**FINDINGS OF FACT**

****Althoughthe Court here includes its findings of fact from the hearing testimony, itdoes so only for the sake of completeness.[1]It makes this point at the outset because, in its estimation, the record doesnot reflect conflicting facts. There being no genuine facts in dispute for theCourt to resolve, this case devolves into a legal interpretation of the no lossin pay provision for miners’ accompanying an inspector during an inspection. Thoughnot apparent to the parties, and not realized by the Court until the hearingtestimony was well underway, this matter could’ve been resolved throughcross-motions for summary judgment. With that observation noted, the findingsof are now presented.

The Secretary’spresentation began by calling MSHA Special Investigator Charles Lee Jones. Tr.54-55. (Hereinafter, “Investigator Jones,” “Investigator” or “Jones”). He worksout of the MSHA Madisonville, Kentucky District Office. In 2020 he conductedsuch an investigation regarding a discrimination complaint made by Ms. TaraOtten. MSHA received the complaint from Ms. Otten, Complainant, on April 28,2020. The essence of her claim, as related by the Investigator, was that Ms.Otten “informed [him] that she was the most senior laborer in the pool and thatshe would have been entitled to operate the equipment, to be upgraded. Butbecause she chose to participate in the MSHA inspection, she was -- that paywas removed from her.” Tr. 58. Joint Ex 1, J-1. , Ms. Otten’s Complaint.[2] The Complaintnamed Terry Powell, Stacy Fujarski and Heather Ames as the persons whodiscriminated against her. Complainant alleged that she was entitled to theupgraded rate of pay as a mobile equipment operator during “the weeks of 3/21,3/28, and 3/29, 4/4.” Tr. 60.

The Court would note thatthere is no dispute that Ms. Otten is a miner and that acting as a miners’representative is protected activity. Only the third element is in dispute: didshe suffer “some sort of discriminatory act, ... in this case, loss of pay?” Tr.61. Thus, Complainant seeks her backpay and direction that the Respondent willnot so reduce her pay in the future when so acting as the miners’representative. 

As part of hisinvestigation, Investigator Jones sought statements from the individuals namedin Ms. Otten’s complaint.[3]However, he only received one response, that from the mine operator. Tr. 62. Ex.J 3 is the Respondent Operator’s position statement, which was prepared by Ms.Heather Ames. Tr. 64. Jones particularly pointed out from that positionstatement the Respondent’s contention that “Miss Otten was correctly paid theupgraded hourly wage while performing work using mobile equipment as outlinedin the Hannibal hourly CBA, but she did not receive an upgrade hourly wage foracting as a miners' rep as per the current CBA.” J 3 and Tr. 65. 

From that statement,Jones deduced that the Respondent was acknowledging that Ms. Otten would havebeen “entitled to that upgraded pay if the MSHA inspector was not there.    Inother words, if the MSHA inspector did not show up, or she did not participatein the inspection, there was no question she was entitled to it. They wouldhave paid it without question, the upgraded pay. But because that sheparticipated with MSHA, in the inspection, that was the sole reason forretracting the pay.” Tr. 65-66.

Investigator Jones didinterview the Complainant, Ms. Otten, on May 7, 2020. Tr.68, Ex. J 2. This wasdone over the telephone. Jones informed that, during that interview, the Complainantprovided additional information, consisting of “e-mail exchanges betweenHeather Ames and LaRay Mundell,[4]or Stacy Fujarski was on some of them.” *Id.*Ex. J3, at pages 5-6.

Ms. Otten providedadditional information to Investigator Jones during the interview, beyond thewalkaround pay issue.[5]Tr. 70-71. J 2 at page 3. Jones related that Otten informed that in connectionwith that “particular inspection cycle, ... the Company had received severalcitations. And she made the statement that she felt like that there was atarget on her back because that she participated in these inspections.”[6] Tr. 71. 

On cross-examination,Jones stated that he did send individual letters to Mr. Powell, Miss Fujarski,and Miss Ames, but those were general letters, which did not request positionstatements. He also sent an inquiry to Mr. Gutierrez, the plant manager atContinental Cement. Tr. 79-81.[7]

Respondent’s Counselremarked that the Complainant did not reference any other, earlier, dates ofalleged discrimination beyond those stated in her complaint. Tr.88. Inconnection with that observation, Counsel noted that there is a time limitwithin which a complaint is to be filed; namely 60 days. Tr. 89. Pointing toExhibit J 1, the Investigator agreed that April 25, 2020 is the date on thatexhibit and further noting that 60 days before that would be February 28th.From that, Respondent’s Counsel asserted that alleged acts of discriminationbefore February 28th would be too late to assert as acts ofdiscrimination. Jones did not agree however, maintaining that dates earlierthan February 28th “go to show history of activity that [Ms. Otten]was subjected to.” Tr. 89-90. Jones did concede that Ms. Otten’s claim is overloss of pay, but countered with his view that the earlier events may be used toshow “that she was being harassed, discriminated against, because of herinvolvement in these MSHA inspections.” Tr. 91.

This decision rests uponthe specific issue of the rate of pay Ms. Otten was entitled to during specificdates when she was accompanying an MSHA inspector during an inspection.   Assuch, Ms. Otten’s background allegations are not determinative of the issue inthis case. However, those alleged preceding even ts provide useful context inmaking the penalty determination.[8]

Still referring to Ms.Otten’s remarks about prior workplace harassment, Respondent’s Counsel, calledattention to Ex. J 2 at page 3, wherein it reflects the Complainant’s remarkthat “[d]uring that time [she] called in on the MSHA hotline about November 5thor 6th, because [she] felt [she] was being harassed, not to the point any moneywas being withheld from me, but it seemed like they were trying to push me outof the miners' rep position and to get me not to walk around with theinspectors.” Tr. 93. Respondent’s Counsel noted that the Complainant makes noclaim that she was losing money as a result of those actions nor does she claimshe was disciplined because of them, and Investigator Jones agreed. *Id.* Asbest as the Inspector could recall, when Otten made her hotline call to MSHA onNovember 5, 2019, she made no mention or claim that “she had accompanied MSHAall day that day and was only paid her laborer rate.” Tr. 94. However, *regardingthe time when she made the complaint in this matter*, Jones stated thatOtten did complain that she had accompanied MSHA all day but was only paid alaborer's rate while other laborers were performing mobile equipmentoperations. Jones remarked that was the essence of her complaint – that “on daysthat she would have been entitled to that upgraded pay, a laborer with lesssenior time would run that piece of equipment, but then she was not paid thatpay.” Tr. 95. The investigator added that, at first, Otten was paid theupgraded pay but that it was later retracted.[9]*Id.*

Also referring to page 3of that exhibit, Respondent’s Counsel directed Investigator Jones to theComplainant’s remark that in February 2020, at which time she was part of thesafety focus group, she stated that Mr. Powell, “had to go to what [Powell]called MSHA court on February 5th and 6th. When he got back, he put me on acrappy shift.” Tr.96. Concerning that remark, Respondent’s Counsel asked InspectorJones whether Otten explained why she considered that to be harassment? Jonesanswered that Otten “talked [to him] about the inspection where sheparticipated with the MSHA inspector and [the mine] received ... several Dorders, or a couple of D orders.” Tr. 96. Jones reaffirmed that Otten’scomplaints relating to those D orders were made to him at a point in timebeyond the 60-day period for her to file a complaint of discrimination. Tr. 98.The Court notes that, aside from providing useful contextual information, thisissue is not relevant to the core issue in this case. 

This is an appropriatepoint to highlight the core issue in this case. The Court believes that it maybe simply stated: 

The Respondent believes that theCollective Bargaining Agreement (“CBA”) carries the day. As applied here, thatstance means that because the CBA does not provide that an employee is entitledto an upgrade or any higher pay classification if that employee *does notactually perform that work*, that employee is not entitled to such a payincrease. Period. Full stop. 

That the Respondent mayardently believe this to be the case, does not make its position stronger. Accordingly,the Respondent’s approach to present several witnesses affirming their beliefthat the CBA controls this matter does not make it so. In short, repetition ofthe viewpoint does not bolster the Respondent’s position.[10]

Respondent’s Counsel thenturned to Ex J 4, which contains the collective bargaining agreement, andspecifically to pages 37-49, the wage rate schedule. Tr. 107-108. Jones agreedhe reviewed this to compare Otten’s labor pay rate with the mobile equipmentrate and he conceded that, within the mobile equipment operator rates and thewage rate schedule overall, there is no mention of a wage rate for miners’representatives.[11]Tr. 108-109. Nor, the Court would observe, is therea need to have such a provision, as the Mine Act speaks to the issue.

Investigator Jones also agreedthat in the CBA there is “a defined provision in the contract that governedwhen an employee would receive an upgraded wage rate for performing higherclassification work.” *Id.*Ex. J 4, Section 9 of Article 6 in thatexhibit, page 16 of 49. Tr. 110. That section is titled, “Rate of pay fortemporary transfers.” *Id.*

Accepting that theprovision was “negotiated and mutually agreed upon by the Union and theCompany,” Jones agreed that there is nothing in that document providing that“employees [are] entitled to a higher classification wage simply becauseanother employee who's junior gets that upgrade.” *Id.*All of thiscontinues the Respondent’s theme that the CBA addresses the issue of upgradesin pay and therefor that it controls the rate of.pay when a miner is engaged ina walkaround. This theme is repeated over and over in the Respondent’s case. 

Jones agreed that the CBAprovides “[w]hen work of a higher paid classification is required of anyemployee, he/she shall receive the higher rate of pay for a minimum of fourhours,” and that this means “if an employee works less than four -- a minimumof four hours at a higher wage classification that they're going to get anupgrade for at least those four hours.” Tr. 110-111. And so too, if an employeeworks more than four hours, that employee’s pay will be upgraded for the wholeday. Tr. 111. 

Respondent’s counsel,building on those admissions from Investigator Jones, then noted that theprovision speaks to “[w]hen *work* ... of a higher paid classification itrequired an employee,” emphasizing that the term “work” is used. Tr. 111. However,the Court considers this to be a fatuous argument. Jones was asked if Otten isperforming miners’ representative duties by accompanying MSHA on an inspection,if she was required to operate mobile equipment at that time. Tr. 111-112. Naturally,the investigator responded that Otten was not required to operate mobileequipment at those times, explaining that she was exercising her rights as thedesignated miners’ rep to travel with the inspector. Tr. 112. 

Thus, the argument madeby Respondent’s Counsel is that “in order to get that paid a higher payclassification upgrade,*work* had to be performed at that higher paidclassification upgrade.”  Tr. 113. (emphasis added). Ex. J 3 was raised to makethe same argument: that “a laborer [is] [ ] eligible for upgraded hourly wage *whenrunning a piece of equipment* classified as mobile equipment.” Tr. 123. (emphasisadded). With *actually running the equipment* being a prerequisite in theRespondent’s eyes, that would be impossible when Ms. Ottten was acting as aminers' rep during MSHA inspections. Tr. 123-124. 

Investigator Jones didnot agree with the Respondent’s assertion that that the issue in this case issimply a matter of contract interpretation, restricted to how each side seesthe CBA. Tr. 142. The Court agrees with the investigator’s perspective. 

The Secretary thencalled, Norris Laray Mundell who has been employed at the Continental CementPlant at Hannibal, Missouri for 28 years. Presently, his job title is “laborer”in the yard department. During those many years of employment he held otherpositions in the yard; advising that “for seven years [he] was acting foremanof the yard department,” and for many years before that, he was a ‘knockout’foreman, meaning if the foreman was absent, he would assume those duties.  Inshort, Mundell had many years working in the capacity as a supervisor at themine. As noted, Mr. Mundell is the father of the Complainant, Ms. Otten. 

Speaking to the events inissue, Mundell explained the job assignment process at the mine. That processtakes into account seniority.  The yard department, he informed, is a bigcleanup crew for the entire plant. Thus, he stated, “Any place on the plantthat spills stuff onto the ground, or makes messes, piles, shuts down stuff,the yard department is called in to clean up all this mess so that they cankeep operating.” Tr. 154-155. The yard department has its own physicallocation, that is to say, its own building, from which everyone in the yardworks out of.” Tr. 155. Miners in the yard report in the morning and are giventhe day’s assignments. 

At the time in issue here,Mundell had four mobile equipment operators, with everyone else in the positionof laborer. *Id.*A key factor in this matter, it is the practice that whenthere are insufficient mobile equipment operators, laborers are assigned tooperate those pieces of equipment. Tr. 156. 

The Court here takes notethat the mine’s seniority process is *not* in dispute in this case. In hisrole as yard supervisor, Mundell gives out work assignments each day. Criticalto this matter, Mundell explained that “if there was more work to be done onmobile equipment, than they had mobile equipment operators, he would assignlaborers to run such equipment by seniority. Tr. 155, 167. 

Several types of mobileequipment are listed in the CBA and many are pieces of equipment that laborersmay be needed to operate. Tr. 160-167 and Ex. J 4 at page 39. When there areinsufficient operators, laborers are upgraded to run such equipment. If thereis a need for a mobile equipment operator, Mundell stated “when a job comes upfor bid, it's always the senior person that gets it if they're qualified.” Tr.167. 

Referring to Ex. J 7,that exhibit lists the names of the laborers Mundell supervised in the yard forthe week of March 22, 2020. Tr. 170. Speaking to March 24 through March 26 ofthat week, Mundell agreed Ms. Otten participated in an MSHA inspection on March24th. 

It is worth noting again,because it is important, that there is no dispute between the parties as to thedays during this week that Ms. Otten participated in MSHA inspections.[12]

The case, very simply,devolves down to whether Ms. Otten was entitled to a pay upgrade as a mobileequipment operator during those times she was accompanying the MSHA inspectoras the walkaround representative. In fact, there are no significant factualdisputes between the parties on these issues. Accordingly, in retrospect, theCourt believes that the parties could have stipulated to all of these facts,leaving only a motion for summary judgment, as important as that issue is, forthe Court to resolve.  

The Court also takes notethat there is no dispute regarding Otten’s seniority status    vis-à-vis the otherlaborers. She had the most seniority on the dates in issue. Tr. 181 and Ex. J5. This again highlights that the only genuine dispute in this case is whether,when acting as the miners’ walkaround representative during an inspection Ms.Otten was entitled to the upgraded pay of a mobile equipment operator duringthe days identified in her complaint. 

Upon cross-examination, Respondent’sCounsel again raised the carpentry work theme, a contention the Court has notedto be non-starter because it is not involved in this dispute and is otherwiseinapplicable, as set forth in the following footnote.[13]

Mundell agreed that underthe CBA there is no provision “that sets a wage rate or offers a pay upgradefor miners' rep duties.” Tr. 212. Apart from past practices at the mine and thegentleman’s agreement in the past, it was Mundell’s position that Ms. Ottenshould not be penalized because she was with an MSHA inspection as the miners’rep and that view was apart from those prior arrangements. Tr. 218-219. Respondent’sCounsel noted that Mundell could not point to a provision *within the CBA*that miners are entitled to a pay upgrade when they voluntarily choose to serveas a miners’ representative. Tr. 220-221. Along the same theme – that the CBAcontrols the issue in this case, Respondent asserts that its position isenhanced because the CBA’s “zipper clause” eliminated past practices.[14] Tr. 222. However,whatever Mr. Mundell’s position happens to be on that issue, it is necessary topoint out that it is a matter for the Court decide as a legal question underthe facts as determined by the Court. 

            Respectfully, the Court finds thatRespondent’s Counsel continued to pursue hypotheticals which were off the markand, as such, they are mentioned only in footnotes.[15]

For purposes ofclarification, the Court then asked of Mundell if it correctly understood thetypes of work performed in the yard, inquiring if those categories consisted oflaborers, operators of mobile equipment, and carpentry. He agreed that was, forthe most part, 

accurate.[16]Tr. 246-247. Mundell also confirmed that a laborerwho is bumped up from that work to operate mobile equipment is paid at a higherrate. Tr. 247-248. There is no dispute about this. He further confirmed that alaborer who is given a carpentry assignment used to be paid at a higher rate,but that this is no longer the case, as there is no longer any carpentry classificationunder the current CBA. Tr. 248. 

This last point, thatthere is no carpentry classification *now*, pursuant to the CBA, is partof the Respondent’s contention, as the CBA was in effect at the time of theevents Ms. Otten cites in her complaint. Thus, Respondent’s Counsel assertsthat is the effect of the ‘zipper clause,’ which refers to the elimination ofpast practices including things like upgrades for carpentry work. From thatchange, through the CBA, Respondent contends that clause dictates the sameresult, controlling the issue of walkaround pay. Whatever might have been thepast practice for walkaround pay, the zipper clause of the CBA put it to an end,so says the Respondent. 

The Secretary then calledTerry G. Powell. He is the quarry and auto garage supervisor at the Hannibalplant and Hannibal Mine and from April of 2016 to February 2020, he was theyard supervisor. Tr. 271. His testimony was consistent with the witnesses whopreceded him. 

He confirmed that if hedid not have sufficient mobile equipment operators to do jobs, he “would assignlaborers to run mobile equipment.” Tr. 272. The yard supervisor determines ifit’s necessary to assign a laborer to operate mobile equipment. If neededmobile equipment work was needed there would be an upgrade in pay and the workwould be assigned based on seniority. Tr. 277. If that was not followed, andthe work was assigned to a miner with lesser seniority, the more senior laboreremployee would still be paid the upgrade rate, though he did not operate themobile equipment. This was in line with the contract, meaning the CollectiveBargaining Agreement. Tr. 280-281. The provision, he admitted, keeps one fromgiving the money to a junior person because maybe he didn’t like the seniorperson, or whatever. It's a provision in there to guarantee equality in pay andopportunity.”[17]Tr. 278. 

As noted in footnote 16,the Court finds that Mr. Powell was not exactly a fan of Ms. Otten. It is alsoof concern to the Court that his testimony was equivocal at times and that hehad an unusual definition of an “emergency.” Adding to these concerns, theCourt notes that when Powell was asked if he spoke with Heather Ames about,...[his] experience in supervising Tara Otten while she was on MSHA inspections,he could not recall but added that he was “not going to say it didn't happen,but we're talking quite some time ago, so no. I -- I don't think we had anyparticular conversation about that, but I can't be certain.” Tr. 287. When thenasked about Exhibit J-7, an email from Ms. Ames to Mr. Robert Pickering, the HRManager, on April 9, 2020, Powell changed his previous answer stating, itappeared that he did have such a conversation. Tr. 288. 

Powell also adopted theRespondent’s perspective about the controlling effect of the CBA. Thus, he didnot take issue with the accuracy of Ms. Ames’s email including his remark to herthat “[i]f Tara is unavailable for a job, she is not available.” To him, it was“[*n*]*o different than if she was on vacation, or in the storehousefilling in*.” Tr. 289 (emphasis added). When asked if Ms. Otten is ‘unavailable’while working with MSHA, whether that it is no different than if she was onvacation, Powell reaffirmed that is his view, stating “It's -- it's nodifferent. If she's unavailable to do the physical work, she's unavailable todo the physical work.” *Id.*

Very simply, Powell’sposition on the issue of the pay upgrade was that employees “have to be able towork the job. You can't run mobile equipment if you're not available to do it. Ifyou can't sit in the seat and operate it, then by the Collective BargainingUnit Agreement, you -- you don't get the pay. I mean, that's pretty much theway it is with every job at Continental. If you cannot do the job, y ou do notget the pay.” Tr. 295-296.

Powell’s testimony forthe day concluded with a reference to Joint Ex 4, the CBA, at page 28 of 49, whereinthat document provides “[a]ll hours worked in connection with the work of thecommittee by a Union representative, including all time spent in pre or postinspection conferences and walk-around time spent in relation to Federal MSHAinspections and investigations as provided above, shall be compensatedaccording to the provisions of this agreement.” Tr. 317. The Court notes that,though asserted in different ways, the Respondent’s position still boils downto whether the CBA controls the walkaround pay due a miner when accompanying aninspector during an inspection. 

            At the outset of the second day oftestimony, the Court notified the parties that “[f]or thedates that are mentioned in the complaint, and just those dates,” they weredirected “to present their proposed findings of fact as to whether theComplainant, Tara Otten, would have worked on those days in question, and whatthat job would have been, and the hours that that would have been. It wouldeither be a mobile equipment operator, or none of the above, or potentiallycarpentry, if that was the only thing available. ... [and that more was requiredthan simply asserting them as findings of fact because for each proposedfinding they were to supply]     the record support, through testimony orexhibits, ... for those assertions.” Vol II Tr. 7. 

            With Powell’s testimony resuming on thesecond day of the hearing, Respondent’s Counsel tried to create a distinction,namely that when an employee is acting as the miners’ representative during awalk-around, that person is then with the safety department, not with the yard.Powell concurred, expressing, “[i]f [Ms. Otten’s] called out by the safetydepartment to walk with MSHA, *she's with the safety department* until sheis released to come back to yard. Then when she would come back to the yard,she would be assigned her duties that day, whether it be laborer work or anupgrade to mobile equipment once she returned to the yard department.” Vol II, Tr.23-24. Powell thus claimed that during the time Ms. Otten was with MSHA, “she’snot working for the yard department at that time because she's unavailable todo the duties. Yes, she is working basically for the safety department.” VolII, Tr. 24. 

*While creative, the Courtholds that these attempts to create new administrative labels do not change theanalysis. This is because if Ms. Otten accompanied an MSHA inspector on a givenday and on that day, but for that walkaround role, she would have been in theyard and assuming there was a need for a mobile equipment operator on that day,she would be entitled to the pay upgrade, regardless of the purely semanticattempt to claim that she was then in the employ of the safety department whenaccompanying the inspector. To the Court, this argument amounts to an admissionthat the CBA theory may not carry the day, and for that reason the pretensethat she became part of the safety department was nothing more than aninvention.*

Further, as Powell thenconceded, while claiming that Ms. Otten was working “basically for the safetydepartment, [*s*]*he’s actually working on behalf -- she's representingminers*.” Vol II Tr. 24. Yet, Powell believed that the Mine Act provisionproviding that a representative of miners shall suffer no loss in pay, means noloss in pay but that doesn’t mean they would be *upgraded*in pay. *Id.*atTr. 25. 

The flaw in the analysis,as the Court sees it, is that Ms. Otten’s pay is to be measured by the pay shewould have received during the time she was serving as a miners’ rep. If shewould’ve been working as a laborer during those times, she would receive thelaborer pay rate, but if she would’ve been working as a mobile equipmentoperator during those times, that is the pay rate she would’ve received and topay her the labor rate under those circumstances would certainly be a loss ofpay by any definition.   

            Still another angle presented by theRespondent arose from Ex. J-4, at page 11, wherein it states that “[p]lantseniority shall be in effect at this location.” Powell agreed that theprovision says nothing else about seniority. From that, Respondent’s Counselasked if the provision provides that “just because someone's seniority they getan upgrade for a particular day.” Vol II Tr. 41. Unsurprisingly, Powellanswered it does not so provide. This led Counsel to ask how seniority works,which fed into Powell’s, repeated response that seniority “is for biddingprocesses. It is for upgrading in pay, *as long as they're available for that*.And it's also for if two people put in for the same vacation, then the seniorperson would get first choice.” *Id.*But the Court notes that thisamounts to yet another run at the Respondent’s claim that one must be *available*to perform the work and, if the person is engaged in a walk-around role, theyare perforce not available. Vol II, Tr. 44-45 and Ex. J-4 at page 16. 

            Thus, the Respondent tried “Six ways fromSunday”[18]in its attempt to show that Ms. Otten was not entitled to the pay upgrade whenacting as the miners’ walkaround representative. Tr. 50-52  Accordingly, all oftheir attempted analogies, for example, bereavement leave, work in thestorehouse, jury duty, etc., and their contention that one must in fact actuallyperforming the higher classification work, fail, because the Mine Actspecifically addresses the issue and provides that there is to be no loss ofpay. 

            The Secretary then called Miss HeatherAmes. She is presently the human resource and labor relations manager, but atthe times in issue in this litigation she was the HR labor relationsspecialist, a position she held during March and April of 2020. Vol II, Tr. 56.In that role, she was involved in the decision to retract the Complainant’s payupgrade for the days named in the complaint. *Id*. at Tr. 58. Ames wasaware that Ms. Otten had participated in an MSHA inspection during the week ofMarch 23rd. *Id.* at Tr. 60. She also admitted that theComplainant Otten was the most senior laborer on duty at the times in issue inthis matter. Vol II, Tr. 65-66.      In retracting Ms. Otten’s pay upgrade,that decision was based on one factor only, namely she determined that Ms.Otten was “unavailable.” *Id*. at Tr. 63. She determined that Ms. Otten“was unavailable to perform the mobile equipment upgrade.” *Id.* at Tr.66. By using that term, Ames meant Otten “was not present ... [meaning] [n]otphysically present in the department to be able to get on to that piece ofmobile equipment.” *Id.*However, Ames was fully aware of the reason Ms.Otten was not “available,” stating “[b]ecause she was accompanying the MSHA[inspector] during an inspection.” *Id*. at Tr. 67. And Ames stated thatwas the only reason she found Ms. Otten to be unavailable. *Id.* at Tr.67-68. In making that decision, Ames instructed Miss Fujarski that Ms. Ottenwas not available to receive the upgrade in pay because she “was not eligibleaccording to the contract,” by which she meant the collective bargainingagreement. Vol II at Tr.68-69. Ames discussed the issue with several otherpersonnel at the plant including Scott Allen, Terry Powell, Jose Gutierrez andBob Pickering. Tr. 70-71. In retracting the pay rate, removing the upgrade,Otten’s pay was reduced from $28.21 per hour to $25.05 per hour. Tr. 75.

Thus, Ames agreed withPowell that upgrading Otten for MSHA work is no different than her being onvacation or in the storehouse. Tr. 78. Ames also agreed that she told Mr.Pickering that Ms. Otten “chooses to work with MSHA.” *Id.*She then added“I mean, she doesn't have to be a miners' rep. That's an elected position bythe Union, but she -- she's not forced to be miners' rep, is what I mean.” *Id.*Ames agreed that Ms. Otten was with MSHA all day on March 25, 2020. Tr. 80,Ex. J-7 (p). The same was true for March 26th. Tr. 81. Ames informedthat she was relying upon the CBA , Article 6, Section 9, right of pay for temporarytransfer and Article 14, Section 3, under health and safety. Tr. 82. Ames wasthe person who wrote the mine’s position statement regarding Otten’s complaint.[19]*Id.*

* *

Ms. Ames did not acquitherself well in her remark regarding pay for miners accompanying an MSHAinspector, when she commented that “[n]o employees have been upgraded to higherhourly rate for being a miners' rep under the current CBA.” Tr. 87-88 and Ex.J-3 at page 5. She affirmed that by that remark she “meant that none of thoseemployees listed as miners’ reps received upgrades or special rate for actingas a miners' rep under this current Collective Bargaining Agreement.” Tr. 88. Buta closer look at her remark reveals, in the Court’s estimation, that it wasdisingenuous. This is because among the list of six miners who were miners’reps, which number included Ms. Otten, *not one*of the other five minerswere yard personnel. *Id.* Further, she conceded that not one of the otherfive employees would even have been eligible for a mobile equipment upgrade. *Id.*As if that were not bad enough, Ames conceded that it was true that those“other five employees, a welder, an electrician, a maintenance electricalwelding, and a crush operator, they are paid a higher rate than the laborerthroughout the time that they were with MSHA. They were always paid a higherrate on the wage scale than a laborer.” Tr. 88-89 and Ex P-7. 

The Court may be naïvebut considers it possible that some mine operators, rather than having animplicitly negative view towards miners’ representatives, could embrace thepractice, as such informed personnel might observe hazards to miners that mightotherwise be overlooked and thereby make their operations safer, to theirbenefit and to the miners. 

As with other employees calledby the Respondent, Ames’ position was in line with those management employeesof the Respondent, that if Ms. Otten is with MSHA as a walkaroundrepresentative, she is deemed “not available.” Vol II Tr. 92. Turning to Ex.J-4 at page 5, under Article 2, general, Section 1, the non-discriminationprovision, Counsel for the Secretary noted that it provides that: “[a]llprovisions of this agreement shall be applied to all employees without regardto race, color, sex, religious creed, ancestry, disability, age or nationalorigin, *or other status protected by applicable law*.” Tr. 94. (emphasisadded). Ames agreed that the designated miners' representative is a statusprotected by the Mine Act. *Id.*

            The Secretary’s questioning then turned toan investigation made by Mr. Pickering regarding potential harassment againstMs. Otten. Vol II Tr. 100 and Ex. P-9(a) through (i).   In November 2019,Pickering was the HR manager and the exhibit just noted above reflects hisnotes regarding a meeting he held with Miss Otten, Mr. Clayton, the Union representativeand  a plant manager, Matt Helms. Vol II Tr. 99. Ames was present at themeeting too. The Court, employing a landscape and trees analogy, commented thatthe exhibit would not be outcome determinative to the core issue, but that itcould have relevance to the broader picture. Vol II, Tr. 103. 

 

 

            Continuing with the theme of the defense, Counselfor the Respondent asked if Ames had ever reinstated any upgrades after theyhad been retracted. Ames answered that she had done that and that such changeswere all based on the terms of the CBA.[20]Tr. 107. In what the reader will recognize as more of the same contention, Amesaffirmed her view that seniority does *not*mean that a senior employee isentitled to a wage upgrade that a junior employee receives if that senioremployee is *not available* to do the work of that higher classification.Tr. 118. Ames believed that paying Otten the upgrades while acting as thewalkaround representative violated the CBA and that such an upgrade was nodifferent than the inappropriate upgrades paid to Matson and Lucas when theywere replacing ceiling tiles, which was considered to be carpentry work. Vol IITr. 129-141. She maintained that the decision to retract the upgrades for allthree was based solely on the Collective Bargaining Agreement. Vol II Tr.140. 

**Again, the Court mustnote its view that the Respondent’s many revisitations of the same contentiondoes not advance the persuasiveness of that contention. Numerosity, at least interms of counting the number of times witnesses affirmed that the provisions ofthe CBA control the issue of the pay due, does not translate into prevailing onthe issue. This is because of two fundamental things – the facts attendant tothe work Ms. Otten would have performed on the days in issue in her complaintare not in dispute and the question, given those undisputed facts, is a legaldetermination of the no loss in pay provision when a miner is engaged in awalkaround with an MSHA inspector. Attempted analogies such as entitlement topay upgrades when a miner is on jury duty, required MSHA training, bereavementand the like are off the mark, because the walkaround right is in a class byitself.**

And though it could notbe clearer from all the foregoing testimony from the Respondent, Ames affirmedthat her response to the MSHA special investigator Jones, was made on behalf ofthe mine operator and it was “based on the language of the CollectiveBargaining Agreement.” Tr. 177. Amplifying its view, Ames expressed that Ms.Otten’s pay upgrades were retracted not because she was with MSHA forinspections, but rather because the upgrades “didn’t comply with the CollectiveBargaining Agreement.”[21]Tr. 179. 

            The Court then made a few comments aboutthe conduct of the hearing through that point of the proceeding. First it notedthat the procedural rules allow it to control unduly repetitious and cumulativeevidence. It remarked that it had not invoked that authority up to that point,but that it had heard much repetitious testimony. Tr. 189. The Court then notedthat, as there was testimony of pay being retracted from Ms. Otten which paywas then reinstated, those specific times would then be moot. In thoseinstances, the parties’ briefs should take note of these corrections. Tr. 190. 

            The Court also expressed that certainissues were, effectively, dead-ends. These included items such as Mr. Mundell’scoding errors regarding pay, talk of jury duty, MSHA required training andbereavement leave, with the Court advising the parties that none of those werematerial to the issues in this case. The Court expressed that the laborgrievance process is of the same non-material ilk. Vol II, Tr.191-192. Instead,the Court expressed that, at that point in the hearing, the critical issue iswhether the CBA “reign[s] supreme vis-à-vis the Mine Act walk-around provision.Vol. II, Tr. 192. 

Followingthe Court’s remarks, testimony resumed. In an attempt to repair the adverseinferences raised earlier in the testimony, regarding whether she harbored anegative view of Ms. Otten, Ames agreed that in connection with her emailreferences to Ms. Otten having so many issues with Terry Powell, she then concededthat Ms. Otten, as the Union steward, would be expected to have such issuesbecause she represented fellow employees in such matters. Vol II Tr. 196-197. Further,Ames acknowledged that when she contacted Powell on the pay upgrade issue inthis case, she knew that Powell did not get along with Ms. Otten. Vol II, Tr.197. The Court, reflecting on this additional testimony, reconsidered itsearlier view, and advised that further testimony on the matter could be ofvalue. During this revisitation of the issue, Ames acknowledged that there was“turmoil” within the labor department and this was a factor in Powell’s decisionto leave that department. Vol II Tr. 210-211. Ames then admitted that the Powell’sdecision to leave that department was based mostly on his interactions with Ms.Otten. Tr. 211.

 Ms.Stacy Fujarski then testified.[22]She is a payroll specialist at Continental Cement Company. Vol II Tr.219. Partof her job involves entering the proper coding for payroll processing. Inperforming that task, she endeavors to have the timecards correspond with thecontract. Tr. 221. If she sees a possible error, she contacts a member ofmanagement to resolve such questions. Tr. 222. Though Ms. Fujarski was apleasant person, who explained her role in ensuring that timecards are correct,the Court finds that none of her testimony is of any value to the issues beforethis Court.[23]Tr. 224-233. 

The Secretary, thencalled the Complainant, Ms. Tara Lynn Otten. Tr. 246. At the time of the eventsin issue, March and April 2020, Otten was a laborer at the mine, but aroundFebruary 2021 she became a mobile equipment operator.[24]*Id.*She has been a miners’ representative since May 2018. Tr. 247.  Ottencapsulized the essence of her complaint: “The discriminatory action was that mymoney was retracted. I suffered a loss of wages, loss of pay, for performing myprotected act of walking with MSHA.” Tr. 253. As she expressed in hercomplaint, she “would like to have the backpay and continue to receive theupgrade as I always have when acting as a miners' rep.” By the term “backpay,”Otten meant the difference between labor rate and the mobile equipment upgradethat was retracted. Tr. 254-255. It was also Otten’s belief that “this entirething is an attempt to get [her] to step down as a miners' rep.”[25] Tr. 256.

At the time of her complaint,when Ms. Otten worked as a laborer in the yard, she informed that generally sheoperated mobile equipment nearly every day, most often running a Bobcat or skidsteer. Tr. 268. Otten identified Ex. P 11 as the document “representing thetimes and the hours, the dates that [she] walked with MSHA, and where [she] wasnot given the mobile upgrade, that a junior laborer was on a piece of mobileequipment.” Tr. 269. Working with Counsel for the Secretary, Otten prepared thedocument, which is a summary of dates and times she was denied the mobileequipment operator pay level because she was accompanying an MSHA inspector asthe miners’ rep. For example, per that exhibit, Otten stated that for March 24,2020, she contends that $44.24 was due her that day but was instead paid at thelabor rate. Tr. 270-277. It should be noted that there is no genuine disputeabout the mobile equipment operator pay rates on the days in issue, nor thatMs. Otten was accompanying an MSHA inspector during the days and timesidentified in Ex P 11. 

*Again, the only genuinedispute in this matter is whether Ms. Otten should’ve been paid at the mobileequipment operator rate or the laborer rate.*[26]In response to the Court’s inquiry, Otten stated that Ex. P 11 reflects theentirety of her monetary damages. Tr. 278. To be clear, Otten is not and hasnot contended that she was entitled to the mobile equipment operator pay rate *everytime*she accompanied an MSHA inspector. Rather, her claimed damages werelimited to “entitle[ment] to the upgrades when [she] walked with MSHA if ajunior laborer was on a piece of mobile equipment. It was not every time. Itwasn't every time I got called out. It was only if a junior employee was on apiece of mobile equipment, then I was entitled.”[27] Vol II, Tr.279-280.

The third day oftestimony began with the Respondent calling Darin Douglas. He is employed byContinental Cement and is presently the yard supervisor, a position he has beenin for the previous nine months. Vol III, Tr. 15. He then stated how upgradeswork for temporary work performed by laborers, including as in this dispute,the pay a laborer receives when assigned to operate mobile equipment. With no disrespectby the Court, Douglas’ testimony was cumulative, an attempt at reinforcing theRespondent’s position as to the procedure for laborer pay upgrades when suchindividuals operate mobile equipment.[28]Vol III, Tr. 16-18. 

** **

** **

** **

**Analysis**

**Case law regarding****theMine Act’s Walkaround Provision**

****TheCourt endeavored to research relevant cases construing the walkaroundprovisions under the Mine Act. Those holdings are referenced here. 

In*Magma Copper,*1 FMSHRC 1948, (Dec. 1979),*aff’d*645 F.2d 694 (9th Cir., May 18, 1981),**the Commission heldthat “one miners’ representative *in each*inspection party must be paidfor time spent accompanying an inspector who is engaged in an inspection of themine ‘in its entirety’ under 103(a) of the Federal Mine Safety and Health Actof 1977.” *Id.*The language employed by the Commission is instructive, asit remarked that “[w]alkaround pay was designed toimprove the thoroughness of mine inspections and the level of miner safetyconsciousness.   The first sentence of section 103(f) expressly states that thepurpose of the right to accompany inspectors is to aid the inspection. TheSenate committee report on S. 717, 95th Cong., 1st Sess. (1977), the bill fromwhich section 103(f) is derived, explained that the purpose of the right toaccompany an inspector is to assist him in performing a ‘full’ inspection, and ‘enableminers to understand the safety and health requirements of the Act and[thereby] enhance miner safety and health awareness.” S. Rep. No. 95-181, 95thCong., 1st Sess., at 28-29 (1977), reprinted in Senate Subcommittee on Labor,Committee on Human Resources, 95th Cong., 2d Sess., Legislative History ofthe Federal Mine Safety and Health Act of 1977, at 616-617 (1978) [“1977Legis. Hist.”]. The purpose of the right to walkaround pay granted by section103(f) is also clear: *to encourage miners to exercise their right toaccompany inspectors*.” *Id.*at 1951-1952, (emphasis added).

It was Congress’ judgmentthat a failure to pay miners’ representatives to accompany inspectors woulddiscourage miners from exercising their walkaround rights, and that theresulting lessening of participation would detract from the thoroughness of theinspection and impair the safety and health consciousness of miners. Ifonly one of the inspectors would be assured of receiving the assistance of aminers’ representative when conducting a 103(a) inspection of the mine, only apart of the mine would be likely to receive the kind of inspection thatCongress expected the walkaround pay right to help assure. *Id.* at 1952.(emphasis added).

The Court considers thelanguage, as italicized above, to be useful in this matter, because if theRespondent’s view were adopted, reducing the pay of the walkaroundrepresentative from the amount of pay that representative would have receivedduring that time accompanying the inspector “*would discourage miners fromexercising their walkaround rights, and that the resulting lessening ofparticipation would detract from the thoroughness of the inspection and impairthe safety and health consciousness of miners*.” 

 

In *Quarto Mining*,12 FMSHRC 932 (May 1990), the Commission upheld the right to walkaround paywhere a mine operator’s employee accompanied an inspector, even though thefocus of the inspection arose as a result of safety hazards associated withactivity of an independent contractor at the site. As instructive here, theCommission noted the 9th Circuit’s decision affirming its holding in*Magma Copper Co. v. Secretary of Labor*, 645 F.2d 694 (9th Cir. 1981),referencing that Court’s remark that “[t]he walkaround pay provision and theparticipation right are both aimed at the protection of the health and safetyof miners - the single overriding purpose of the legislation.” *Id.*at698.

            The Commission then continued “[a]s theSenate Committee that by-and-large drafted the Mine Act stated, paidparticipation in inspections by the miners’ representative ‘will enable minersto understand the safety and health requirements of the Act and will enhancemine safety and health awareness.’ Senate Committee on Labor, Committee onHuman Resources, 95th Cong., 2d Sess., Legislative History of the Federal MineSafety and Health Act of 1977 at 616-17 (1978). In addition, Congressrecognized that paid participation by representatives of miners would, becauseof the representatives’ particular knowledge of the conditions at the mine,make the inspection ‘much more thorough.’ Thus, the right of paid participationby the miners’ representative provides MSHA’s inspectors needed familiaritywith the specific working conditions in a particular mine.” *Quarto Mining*at937*.*

*The Commission’s decision in**Secretary of Labor onbehalf of Greathouse v. Monongalia Coal Co**.*,******40FMSHRC 679 (June 2018), is also believed to be of value. Though it involvedbonus plans at the mine, there was testimony from miners’ representativesdescribing “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*).” *Id*. at 703. (emphasis added). The pointbeing that actions by a mine operator, in *Monongalia*, a bonus plan, andby comparison in this instance, denial of the pay that a miner would havereceived on a particular day, can impact participation in protected rights,here the walkaround right. 

*Consolidation Coal,*19FMSHRC 1529, (Sept. 1997), was a discriminationproceeding under the Mine Act, wherein the issue was whether the administrativelaw judge properly found that the mine operator violated section 105(c)(1) ofthe Mine Act when it transferred two mine representatives from their positionsas “scooter barn” mechanics to positions as underground mechanics. Both minerswere told that their transfer, ostensibly brought about because of inadequatetransportation and mantrip availability and the decision to have the repairbarn operating on a 24-hour basis, could be avoided if they stopped theirwalkaround activities. The Commission affirmed the violation, noting that alink had been established between the miners’ exercise of their walkaroundrights and the decision to transfer them, and rejecting the claim that theirabsences from the repair barn was the motivating reason for the action. TheCommission also took note that, in another case, it had recognized a linkbetween walkaround rights and absenteeism, expressing that “in enacting thewalkaround right, Congress recognized ‘that an operator would be required tomake modifications in work assignments to permit miner representatives toexercise section 103(f) rights.’” *Id*. at 1536, citing *Secretary oboof Labor on behalf of Truex v. Consolidation Coal*., 8 FMSHRC 1293(September 1986).  

An earlier *Consolidation Coal* case,16 FMSHRC 713 (April 1994), held that, even where anoperator has a good faith, reasonable belief that the area to be inspected istoo dangerous to permit a miner from accompanying the inspector during awalkaround, the operator may not restrict the walkaround right. As enlighteninghere, the Commission, in recounting the history of the walkaround right, noted“that the walkaround right provided in section 103(f) existed under the FederalCoal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977) (“Coal Act”). That provision stated: At the commencement of anyinspection of a coal mine by an authorized representative of the Secretary, theauthorized representative of the miners at the mine at the time of suchinspection shall be given an opportunity to accompany the authorizedrepresentative of the Secretary on such inspection. 30 U.S.C. § 813(h) (1976) (amended 1977) *Id*.at 717, (underscoring in original). 

 

The Commission went on tostate that “[i]n enacting the Mine Act, Congress continued the Coal Act’s broadapplication of the walkaround right and expanded rights incident to it. TheConference Report on S.717, the Senate’s version of the bill, explained: Theconference substitute expands the concept of miners’ participation ininspections by authorizing miners’ representatives to participate not only inthe actual inspection of a mine, but also in any pre- or post-inspectionconferences held at that mine. H.R. Conf. Rep.on S. 717, 95th Cong., 1st Sess. (1977), reprinted in Senate Subcommittee on Labor, Committee on HumanResources, 95th Cong., 2d Sess., Legislative History of the Federal MineSafety and Health Act of 1977, at 1361 (1978). In addition to adding aright of the miners’ representative to participate in inspection conferences,the Mine Act added a compensation provision in section 103(f). The Mine Act didnot restrict the types of inspections to which the walkaround right applies.

 

The only qualification to thewalkaround right in section 103(f) is that it is subject to regulations issuedby the Secretary. The Secretary’s regulations have not limited the walkaroundright in the manner urged by Consol. Moreover,although Congress recognized that a walkaround representative could be exposedto danger, (the inspections enumerated in section 103(a) include inspections todetermine whether an imminent dangerexists as well as inspections of especially hazardous conditions), it did not curtailthe walkaround right in dangerous situations.Thus, upon ‘employing traditional tools of statutory construction, includingtext, structure and legislative history,’ CoalEmployment Project v. Dole, 889 F.2d 1127,1131 (D.C. Cir. 1989); Chevron at 842-43, we conclude that Congressional intentis clear on this issue. Accordingly, we hold that section 103(f) precludesdenying the walkaround right on the basis of an operator’s good faith,reasonable belief that the area to be inspected is too dangerous to be entered.

 

The right of a miners’representative to accompany the inspector on all section 103 inspections hasbeen consistently recognized by the Commission and the courts. It has beenuniformly held that the walkaround right includes the right to accompany theinspector during section 103(i) “spot inspections” which, significantly, occurin mines that liberate excessive quantities of explosive gases or that presentsome other especially hazardous condition. ...” 16 FMSHRC 713, 717-719.

The question for theCommission in *Magma Copper Co*, 1 FMSHRC 1948 (1979), was “whethera mine operator [was] required to pay only one representative of miners fortime spent accompanying an inspector when the inspection is divided into two ormore parties to simultaneously inspect different parts of a mine,” with theCommission reversing the administrative law judge’s determination that only onerepresentative could be paid, holding instead that “one miners’ representative ineach inspection party must be paid for time spent accompanying an inspector whois engaged in an inspection of the mine “in its entirety” under 103(a) of theFederal Mine Safety and Health Act of 1977.”*Id*.

Employing words that thisCourt considers to be of value in this proceeding, the Commission informed“[w]e do not think it is enough to rely, as the administrative law judge did,only upon the literal language of section 103(f). The literal words of astatute may not be the best guide to the legislative purpose when they appearto conflict with the congressional purpose for creating a right or produce aresult that is illogical.” *Id.*at 1950. 

Expounding on theimportance of this, *the Commission continued, “[i]t was Congress’ judgmentthat a failure to pay miners’ representatives to accompany inspectors woulddiscourage miners from exercising their walkaround rights, and that theresulting lessening of participation would detract from the thoroughness of theinspection and impair the safety and health consciousness of miners.* Ifonly one of the inspectors would be assured of receiving the assistance of aminers’ representative when conducting a 103(a) inspection of the mine, only apart of the mine would be likely to receive the kind of inspection thatCongress expected the walkaround pay right to help assure.” *Id.*at 1952.(emphasis added).

Utilizing those words, inthis Court’s judgment, given that the Mine Act is a remedial statute, andtaking into account the Commission’s remarks, as italicized above, it wouldmake sense that, as a matter of construction, the Commission’s remarks be readas “it was Congress’ judgment that a failure to *fully*pay miners’representatives to accompany inspectors would discourage miners from exercisingtheir walkaround rights.” The logic of this interpretation, at least to thisCourt, is inescapable, as paying less than the miner would have received woulddiscourage miners from exercising their walkaround rights.

Perhaps the most instructivewords regarding the ‘no loss in pay’ provision appears in *Monterey Coal Co.*,743 F.2d 589 (Seventh Cir. Sept. 1984). There, the Court of Appeals for theSeventh Circuit remarked that “[i]n describing the changes of the newAct, the Senate and conference reports on the 1977 Act pointed out the newwalkaround pay provisions and stressed the importance of those pay provisionsin ensuring miner participation in safety matters. S. Rep. No. 181, 95th Cong.,1st Sess. 28–29, 1977 U.S. Code Cong. & Admin. News 3401, *reprinted in*Subcommittee on Labor of the Senate Committee on Human Resources, 95th Cong.,2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977at 616–17 (Comm. Print 1978) [hereinafter “Legislative History”]; S. Conf. Rep.No. 461, 95th Cong., 1st Sess. 45 (1977), *reprinted in* LegislativeHistory at 1323.” *Id.*at 593. And “[t]he floor debate in the Senate on aproposed floor amendment to eliminate the walkaround pay provisions alsoemphasized the need for walkaround pay to provide for effective minerparticipation in inspections. 123 Cong. Rec. 20019–20 (1977) (remarks of SenatorsJavits and Helms), *reprinted in* Legislative History at 1053–56. *Id.*Thus,the mine operator sought to “bifurcate the participation rights and thewalkaround pay rights granted by section 103(f).” *Id.*at 594. 

 

The Seventh Circuit noted thatthe conference committee expressed that “the intention of the conferencecommittee is to assure that a representative of the miners shall be entitled toaccompany the Federal inspector, including pre- and post-conferences, **at noloss of pay***only during the four regular inspections of each undergroundmine and two regular inspections of each surface mine in its entirety,*including pre- and post-inspection conferences.” *Id.* (*italics* inoriginal, bold added). *Id.*

 

Of significance in the SeventhCircuit’s analysis, it pointed to “[t]he Senate committee report [which]stressed the importance of involving miners in the inspection process in orderboth to improve the quality of inspections and to enhance miners’ safety andhealth awareness. S.Rep. No. 181, 95th Cong., 1st Sess. 28–29 (1977), *reprintedin* Legislative History at 616–17. The committee said the bill provided forwalkaround pay to encourage miner participation. “[t]o provide **for otherthan full compensation** would be inconsistent with the purpose of the Actand would unfairly penalize the miner for assisting the inspector in performinghis duties.’” *Id.* at 596-597*.*(emphasis added). 

 

Finally, it is noted that anadministrative law judge faced with a similar issue regarding the compensationdue during a walkaround, observed “[i]n commenting on the provisions of section103(f), the Senate Human Resources Committee in its report on Senate Bill 717,the bill which was the basis for the 1977 Act, stated that: “to encourage suchminer participation, [in walkaround activities] it is the committee’s intentionthat the miner that participates in such inspection and conferences be fullycompensated by the operator for time thus spent. To provide for other than fullcompensation would be inconsistent with the purpose of the Act and wouldunfairly penalize the miner for assisting the inspector in performing hisduties.” Senate Report No. 181, 95th Congress, 1st Session reprinted in U.S.Code Congressional and Administrative News 3428-3429 (1977). Within thisframework it is clear that if [the Complainant] suffered a loss of pay as aresult of his statutorily protected walkaround activities then he suffereddiscrimination under section 105(c)(1).”  *Sec. obo Scott v. ConsolidationCoal,*2 FMSHRC 1056, 1057 (May 5, 1980).

 

There, as in this case, themine operator was contending that, per a wage agreement, the walkaroundrepresentative was due less than the pay grade one would receive for performingoverburden removal work. 

 

The judge held that “[i]norder to assure that [the miners’ representative] is not unfairly penalized forhaving performed his duties as a representative of miners, I find that he mustbe compensated in an amount equivalent to the grade 5 rate for the maximum timeworked in that mine by any other single employee in the capacity of a grade 5scraper operator during the time [the Complainant] was engaged in hiswalkaround activities. To provide him anything less would discourage hisparticipation in these important functions, contrary to law and the clearintent of Congress. Since the evidence indicates that at least one otherscraper operator employed at this mine performed the grade 5 work during theentire 21-1/4-hour period at issue, [the miners’ representative] is entitled tothe grade 5 pay differential for the entire period.” *Id.* at 1058.

 

Thus, at least to this Court,given the many broad interpretations by the Commission and the federal courtsof the 103(f) walkaround provision, it would be inconsistent to find that aminers’ representative could be, literally, shortchanged by being paid lessthan the representative would have received but for being engaged in thewalkaround.

** **

**Must a 103(f) walkaround, ‘no loss of pay,’ violation only beestablished through application of the*****Pasula-Robinette*****framework****?**

 

            The Court believes that while a 103(f) walkaround, noloss of pay, violation may often be established through application of the *Pasula-Robinette*framework, it isnot the only avenue for such relief, especially where a slavish application ofthat framework would work an illogical result, at odds with the statute. Thus,because *Pasula-Robinette* is not a one-size-fits-all formula, it shouldnot be viewed as the sole means for achieving relief from discrimination. Inthis instance, the Court applies an alternative analysis approach to thisdiscrimination action, with the view that both are appropriate to employ.

 

It is true that theargument section of the Secretary’s Post-hearing brief, after first noting thetext of Section 105(c), begins with a discussion of the *Pasula-Robinette*framework, wherein it is noted that the Secretary establishes a *prima facie*case of discrimination when he proves by a preponderance of the evidence thatthe miner (1) engaged in protected activity, (2) suffered an adverse action,and (3) the adverse action was motivated in any part by that protectedactivity. 

Insisting on this 3rdelement in *all* discrimination claims would ignore the broader statutorylanguage of Section 105(c) addressing discrimination, which language permits anaction upon showing the first two elements.

Nevertheless, if theanalysis of an alleged section 103(f) no loss of pay violation must be weddedto *Pasula-Robinette*, the Court still finds that the Secretaryestablished such a case. And this remains true upon application of both therebuttal and affirmative defense features of *Pasula-Robinette*. 

**An alternative avenue to provide relieffrom discrimination where a statutory right is involved**

However, the Courtbelieves that making *Pasula-Robinette*theonly avenue for redress against discrimination results in a cramped reading ofdiscrimination claims, insisting as it were that a square peg must be insertedinto a round hole, and ignores a significant and distinct part of Section105(c) of the Mine Act. Read, without distorting the words in that section, butfocusing on a separate feature within that provision, the Court believes such areading demonstrates that *Pasula-Robinette*neednot be the exclusive analysis for discrimination claims.

 

The following, **boldtext added**, text of Section 105(c) shows this tobe true.

**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 ...in any coal or other mine subject to this chapter ... **because of the exerciseby such miner**, representative of miners ... on behalf of himself or others **ofany statutory right afforded by this chapter**.

30 U.S.C. §815 (c)

Another,perhaps clearer, way to express this, as particularly apt to the discriminationclaim here would thus be expressed as:

**No person shall****inany manner discriminate against****or 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 chapter**.

Thisfocus on particular words within the provision does not work any distortion ofit. And, so read, the Court finds that the Respondent violated Ms. Otten’s *statutoryright* to accompany the MSHA inspector as the miners’ representative by *interfering*with the exercise of that right by imposing a loss of pay upon her.

And while it is true thatthe Commission has applied the *Pasula-Robinette* framework in Section103(f) walkaround cases, it has not invoked it each time. For example, in *QuartoMining*, 12 FMSHRC 932 (May 1990), referred to above, the judge, in findingthat the operator denied the miners’ rep the opportunity to participate in aninspection of the mine without a loss of pay, made no reference to *Pasula*in his decision, 11 FMSHRC 523 (April 6, 1989), nor did the Commission’s inaffirming it. 

Whenthis focus on language within Section 105(c) is applied to the walkaroundright, per Section 103(f), the applicable language within that provision,establishing the statutory right, plainly provides that the right is to beexercised so that the walkaround representative *does not suffer any loss ofpay*. Undeniably, Ms. Otten suffered a loss of pay per the dates identifiedin her Complaint. 

Thus,the Court finds as fact, that “Otten was entitled to the mobile equipmenthourly wage upgrade while she performed walkaround duties on March 24-26 andMarch 31, 2020, because she would have operated mobile equipment if not for theMSHA inspection.” Sec. Brief at 26. Accordingly, the Court also finds that “tobe fully compensated on March 24, 25, 26 and 31, Otten needed to receive themobile equipment hourly rate of $28.21, not the laborer hourly rate of $25.05.”*Id* at 27. Further, as set forth below, Ms. Otten is also entitled to reimbursementfor the other dates, as established by the Secretary and through the jointstipulations, when she incurred additional losses of pay. Equally important,and speaking to Congress’ clearly expressed intention in establishing the Section103(f) right, the Court finds that “Continental discouraged [Ms. Otten’s]participation in MSHA inspections and unfairly penalized her for protectedactivity, contrary to Congressional intent.” *Id.*

TheCourt also finds that “[b]y refusing to pay Otten the mobile equipmentupgrades, Continental took an action that could dissuade a reasonable employeefrom participating in an MSHA inspection [and that] [w]hen faced with thechoice of accompanying MSHA on an inspection of unpredictable duration orreceiving $3.16 more per hour (the difference between the laborer and mobileequipment rates), a reasonable miners’ representative could be dissuaded fromexercising the[] statutory walk-around rights. The Act does not require aminers’ representative to have to make this choice.” *Id*. at 28. 

Giventhe above analysis, the Court does not believe that the Secretary *must*show, per the *Pasula-Robinette*framework,that Continental’s refusal to pay Otten the wage upgrades was motivated byOtten’s walkaround activities. That is to say, *Pasula-Robinette*is not the exclusive means to establish discrimination because Section105(c) is not so restricted. Simply stated, showing an unjustified loss of pay,and thereby violating the statutory command of Section 103(f) is sufficientunder the plain language of Section 105(c) to establish discrimination. 

**Application of thePasula-Robinette framework**

Underthe *Pasula-Robinette*framework the Court hasfound direct evidence, through the testimony of Respondent’s witnesses, Ames,and Powell, that the adverse action, loss of pay, was motivated by Ms. Otten’sprotected activity as miners’ representative, to the end of having her foregoher salutary participation, providing keen eyes when accompanying MSHAinspectors, and making her choose between such participation or suffer a lossof pay. Clearly, the record establishes that the adverse action was motivatedby safety-advocate Otten’s protected activity. 

Interms of any claimed affirmative defense, the Respondent presented nounprotected activity to justify that the loss of pay was motivated byunprotected activity. This is because the Court has determined that the CBAdoes not override Congress’ walkaround no loss of pay provision.[29]Relying upon the CBA could conceivably amount to unprotected activity, but notwhen paired with a deprivation of the walkaround no loss of pay provision, ashappened here. Since there was no cognizable unprotected activity, one does notproceed to the second step of the affirmative defense – that the operator wouldhave taken the adverse action against the miner based on the unprotectedactivity alone.[30]

**Comments Regarding theParties’ Post-Hearing Briefs**[31]****

The Respondent contendsthat no adverse action was established. This argument lacks merit. If this weremerely a pay dispute involving only the CBA, then arguably the Respondent couldbe correct. However it is not such a matter; Ms. Otten’s pay was inextricablytied to the exercise of the walkaround provision. As the designated walkaroundrepresentative, the Court has determined that, as a matter of law, she wasentitled to perform that valuable safety related function *with no loss ofpay.*This is what the statutory provision expressly provides. Such adeprivation of pay constitutes an adverse action. Whether the Respondent wasmotivated to take the adverse action because Ms. Otten was acting as theminers’ representative, does not matter in a case such as this because she wasexercising the statutory right to perform such assistance and she suffered aloss of pay by the Respondent’s actions. 

To be clear, *inaddition to and separate from* the previous remark, the Court also findsthat in fact the Respondent was motivated in part by Ms. Otten’s exercise ofthat right, because she was a safety nuisance in the eyes of the Respondent. Becausethe walkaround right is in a class by itself, the claim that the CBA negatesthat clear right and with it the provision that the right applies with no lossof pay attendant to it, the idea that the CBA can, Zombie fashion, beresurrected as an affirmative defense is likewise a non-starter.[32]

**The Secretary’s ReplyBrief**

****TheCourt takes note of and agrees with the Secretary’s remark that “Continentalconcedes, in its Proposed Findings of Fact 1, that Otten would have beenpresented the opportunity to operate mobile equipment for 8 hours on the[ ]days [in issue]” and that “[i]t was established at trial [that] Otten wouldhave performed mobile equipment operator work if she had not spent time onwalkaround activities.”[33]Sec. Reply at 2. 

            As expressed by the Court in this decision,the *Pasula-Robinette* framework[34]neednot be applied slavishly in every discrimination case. The walkaround provisionof Section 103(f) is such an instance because demanding its use could lead toirrational results.[35]Thus, the Court agrees with the Secretary’s observation that “direct evidenceof discrimination [was established] by Continental’s failure to pay Otten thewage she would have received on the days of the walkaround because sheparticipated in the walkaround.” Sec. Reply at 5. As the Secretary conciselyexpressed it, “[w]hat this boils down to is, the only reason Continental deemedOtten ineligible was because she accompanied MSHA instead of operating mobileequipment; this was a plainly impermissible and discriminatory reason to denywage upgrades.”[36]*Id.*

            The Court agrees that concepts like “mixedmotives” are also inapt in this instance.[37]Thus, the Court subscribes to the view that Continental violated section 103(f)because it allowed its interpretation of the CBA to govern whether Otten shouldbe paid the upgraded wage. When the CBA contradicts the Mine Act’s statutorywalkaround provision, the Mine Act must prevail.

**The Respondent’s Reply Brief**

****Asdiscussed above, the Court does not buy into the Respondent’s argument that,beyond the *Pasula-Robinette* test applied in many discrimination claims,the Ninth Circuit’s “but-for” test should be used. Respondent’s Reply at 1-2. Thejurisdiction of the Ninth Circuit does not apply to actions arising inMissouri, the location of the Respondent’s mine. End of argument. Full stop. Thatsaid, the Court finds that the loss of pay to Ms. Otten would not have occurred*but for* her engaging as a miners’ representative during a walkaroundinspection. 

            The Respondent’s contention that Ms. Amesacted neutrally, free of any discriminatory animus, and that Ames' statementsreflect “only that performing walkaround duties did not independently qualifyOtten for a mobile equipment operator upgrade under the terms of the CBA,” isrejected for several reasons. *Id.*at 4. First,it reaffirms the Respondent’s core challenge that the CBA takes precedence overthe statutory walkaround “no loss of pay” provision. Second, suchdiscriminatory animus need not be shown to establish a violation of thatprovision – it is sufficient to show that the miner suffered a loss of pay. Third,assuming for the sake of argument that such animus must be shown, Ames, throughher actions and testimony, clearly showed such animus, as demonstrated *supra.*

            As to the Respondent’s contention that itrebutted the Secretary’s *prima facie* case by “establish[ing] [that] itrelied on the terms of the CBA in making its decision to retract [Ms. Otten’s]pay,” that only reinforces the Court’s point – the terms of the CBA do notcontrol the determination of whether Ms. Otten incurred a loss of pay. *Id.*at5. And, as to the idea that the Secretary must establish that the Respondent’spay determination was pretextual, if one assumes for the moment that there wasno pretext whatsoever, the outcome would be the same. Under the facts of thiscase, Ms. Otten suffered a loss of pay within the meaning of section 103(f). Andthis is not simply a matter of math. Congress made it clear that the purposeserved by the walkaround provision is to aid the inspection. Miners’representatives who incur a loss of pay would have the effect of“discourag[ing] miners from exercising their walkaround rights, and that theresulting lessening of participation would detract from the thoroughness of theinspection and impair the safety and health consciousness of miners.” *MagmaCopper,*1 FMSHRC 1948, 152 (Dec. 1979), *supra*. Accordingly, pretextis not an essential element in 103(f) matters. Imposing a loss of pay, forwhatever reason, is essential and has been established. 

            Similarly, the Respondent’s contentionthat it proved its affirmative defense by showing that Heather Ames relied uponthe terms of the CBA has no merit, as it is founded upon the premise that theCBA may override Congress’s expressed intent of the no loss of pay provision. 

**Further Discussion: Relief due Ms. Otten and the Appropriate Civil Penalty**

**Relief due Ms. Otten**

            Asforewarned at the start of this decision, the Court determined during thecourse of the hearing that this dispute could have been submitted viacross-motions for summary judgment. This is because it has concluded that thereare no genuine issues of material fact to be resolved. That being the case, thematter strictly involves a legal determination. The Court, recognizing thatthere were no genuine factual disputes, directed by email to Counsels that they:

 

confer with oneanother and advise me, either through a joint email or in a statement in thepost-hearing briefs, or both, regarding the pay dates in issue. Per Exhibit P11, there does not seem to be a **genuine**dispute about the figuresidentified in that exhibit. This includes the 401 K contributions, and a payraise affecting all miners, all as identified in that exhibit and throughtestimony from Ms. Otten about these issues, including Ms. Otten’s remark thatshe was mistaken about a date when she believed she was underpaid, but thenrealized she had not been short-changed. See Tr. pages 270-283.

 

Rather, thedispute is over the pay rate due to miners’ representatives under thecircumstances identified in Otten’s Complaint – pay at the laborers’ rate orthe mobile equipment operator rate.  Therefore, **absent a genuinedispute**, I am directing that the parties stipulate as to the amounts Ms.Otten would have received **on each** of the days identified in hercomplaint. These figures are obviously apart from and distinct from thecontrolling issue I must decide – whether Ms. Otten was entitled to the mobileequipment operator rate or the laborer rate. 

 

E-mailfrom the Court, December 27, 2021. (emphasis in original)

 

Shortlythereafter the parties responded, providing the following:

 

Counsel for Respondent and Counsel for the Secretarymet and conferred regarding your emails, particularly your email concerningExhibit P-11 and the figures identified in that exhibit. You asked for theparties to stipulate to the amounts Ms. Otten would have received on the daysidentified in her complaint. As Ms. Otten is not contesting her pay on April 1stand April 2nd, the only days identified in the complaint are March24-26, and 31st. 

Without admitting Ms. Otten was entitled to suchamounts, the parties can stipulate that Ms. Otten would have received a totalof **$116.67** for the days identified in her complaint.

For a more specific breakdown, the parties stipulateto the following figures by day:

·       March 24, 2020 – the partiesstipulate that Ms. Otten would have received $44.24 more if she had operatedmobile equipment for the entire 8 hour shift;

·       March 25, 2020 – the partiesstipulate that Ms. Otten would have received $25.28 more if she had operatedmobile equipment for the entire 8 hour shift

·       March 26, 2020 - the partiesstipulate that Ms. Otten would have received $27.65 more if she had operatedmobile equipment for the entire 8 hour shift

·       March 31, 2020 - the partiesstipulate that Ms. Otten would have received $15.01 more if she had operatedmobile equipment for the entire 8 hour shift

·       Wage Total = $112.18

·       401K contribution (4%) = $4.49

·       Combined Total = $116.67

 

Email from Counsels tothe Court, December 29, 2021.

            The stipulationdoes not encompass all the compensation due Ms. Otten because the Court notesthat the Secretary also asserts that: 

[a]dditionally, in the interests ofjustice, Otten should receive the full compensation she would have earned butfor continuing discriminatory action on eight more days: June 9, 2020; July 8,2020; July 14, 2020; July 15, 2020; July 21, 2020; July 22, 2020; January 28,2021; and January 29, 2021. ... Continental had notice of the continuingviolations. Potential future losses of pay were alleged in Otten’sdiscrimination complaint filed with MSHA in April 2020. See, for example,Otten’s discrimination complaint asserting, “many hours, by me, will be spentacting as a miner’s rep and this action by my Company has the potential to costme a lot of money through the years.” Ex. J-1 at 2. Otten also requested in hercomplaint that she continue to receive the upgrade. Joint Stip. ¶ 72; 11/10/21Tr. 255; Ex. J-1 at 2. Similarly, in the complaint filed with the Commission,the Secretary alleged Continental was continuing to refuse to pay Otten thewage rate she was entitled to and would have received if she had not beenperforming duties as a miners’ representative. Compl. at 2 ¶ 8. Finally, thereis a clear basis for awarding further relief because of the continuingviolations. Evidence shows that on these eight additional days, Otten engagedin walkaround activities with MSHA and received the laborer wage rate, therewas a need to operate mobile equipment and junior laborers operated mobileequipment for wage upgrades, and when Otten would have operated mobileequipment had it not been for her walkaround duties. Joint Stip. ¶¶ 30, 59, 60,66; 11/10/21 Tr. 276-77; Ex. J-13 at 24-25, 31-32; Ex. J-14 at 5; Ex. J-15 at19, 25; Ex. J-19 at 3-4; Ex. J-20 at 78, 83-84, 110; Ex. J-27. **Therefore, the Court should also award Otten $261.27 in lost wages and$10.45 in lost employer contributions for the period from June 9, 2020, toJanuary 29, 2021; for a total monetary award of $388.39.** Ex. P-11.Continental should pay pre-judgment interest on this amount. 

Sec.Br. at 41-42 (**bold**text added). 

TheCourt, examining Ms. Otten’s complaint again, notes that the dates identifiedin it are “4/9/2020 and 4/16/2020” and in the accompanying “DiscriminationReport,” the dates are identified as “3/21/- 3/28/20 and 3/29/20 – 4/4/20.” JointEx. 1. The Secretary’s Complaint does not identify additional specific datesfor the alleged discrimination involving loss of pay, nor was the Complaintamended. Joint Stipulation 30, while mentioning dates in June and July in 2020and in January 2021, does not tie those dates with loss of pay. However, JointStipulations 59 and 60 do mention those dates and that, per those stipulations,she “performed her role as the designated miner’s [sic] representative byaccompanying MSHA on an inspection for the entirety of her shift and did notoperate mobile equipment. Further, for those same dates, June 9, July 8, July14,   July 15, July 21, and January 28 and 29, 2021, “Otten received herregular rate of pay *as a laborer*.” Joint Stipulations 59 and 60, *italics*added. The other documents cited by the Secretary, as listed above, confirmthat, by virtue of those Joint Exhibits, that the Secretary is correct and thatthe Court should also award Ms. Otten $261.27 in lost wages and $10.45 in lostemployer contributions for the period from June 9, 2020, to January 29, 2021;for a total monetary award of **$388.39, plus pre-judgmentinterest on this amount****.**

**Appropriate Civil Penalty**

Under section 110(i) ofthe Act, the Commission has independent authority to assess civil penalties forviolations. 30 U.S.C. § 820(i); *Sec’y v. Lehigh Anthracite Coal*, 40FMSHRC 273, 278 (Apr. 2018). Per that provision, the Commission is to considersix statutory factors in its penalty assessment: (1) the operator’s history ofprevious violations; (2) the appropriateness of such penalty to the size of thebusiness of the operator charged; (3) whether the operator was negligent; (4)the effect on the operator’s ability to continue in business; (5) the gravityof the violation; and (6) the demonstrated good faith of the operator chargedin attempting to achieve rapid compliance after notification of a violation. 30U.S.C. § 820(i).

**The Parties’ views on the appropriatecivil penalty**

**Secretary of Labor’s position**

TheSecretary states that “[b]ased on the six statutory factors and the evidencepresented in this case, a penalty of $17,500 is appropriate. First, theviolation was serious considering Otten played a critical role in ensuringminer participation safety and health inspections and Continental’s actionsunfairly penalized her for serving in that role. *SeeHighland Mining Co*., 37 FMSHRC 2436, 2438 (Oct. 2015) (ALJ)(finding mine operator’s interference with a miners’ representative’s rightswas serious considering the important function that miners’ reps serve inensuring a safe and healthy environment for miners). Second, Continentalexhibited negligence in violating Otten’s rights. When considering thenegligence factor, the proper inquiry is whether the operator engaged inintentional conduct in committing the violation, rather than whether itintended to discriminate. *See Sec’y obo Poddey v. TanglewoodEnergy, Inc*., 18 FMSHRC 1315, 1319 (Aug. 1996)(Commissioners Marks and Riley). On April 2, 2020, when Ames directed thepayroll specialist Fujarski to remove the wage upgrades and let the miners“fight it later,” she clearly intended to not pay Otten at the mobile equipmentrate for time spent with MSHA on the April 9, and subsequently the April 16,paycheck. 11/10/21 Tr. 75; Ex. J-7f at 1.

Third, Continental didnot demonstrate any good faith attempt to achieve compliance. In April 2020,Temporary Supervisor Mundell warned Continental’s actions would unfairlypenalize Otten for traveling with MSHA, but Ames remained obstinate in herdecision to retract Otten’s wage upgrades and, consequently, Otten suffered aloss in pay. 11/09/21 Tr. 205; 11/10/21 Tr. 269-70; Ex. J-7k at 1; Ex. P-11.Between April 2020 and January 2021, Continental continued to take the positionthat Otten was ineligible for an upgrade when she exercised her statutorywalkaround rights, resulting in more lost pay for Otten. 11/10/21 Tr. 95,276-77; Ex. P-11. The violations would have continued if Otten had not bid forand received a job as a mobile equipment operator in February 2021, consideringAmes testified that she would make the same decision if another laborer were tofill the miners’ representative role today. Joint Stip. ¶¶ 8-9; 11/10/21 Tr.206-07, 277-78.

Fourth, althoughContinental has no previous discrimination violations, it does have a historyof safety and health violations and these past violations must be considered aspart of the penalty assessment. Ex. P-5, P-6. As to the final two statutoryfactors, the record establishes Continental is a medium-sized operator thatcould remain in business if a civil penalty of $17,500 were imposed. Ex. P-6(Continental had 255,694 hours worked in 2019); Joint Stip. ¶ 82. Therefore,the Court should assess a civil penalty of $17,500 against Continental. Apenalty of this amount would encourage future compliance with section 103(f)and section 105(c).” Sec. Br. at 42-44.

**Respondent’s view of theappropriate civil penalty**

Regardingany civil penalty, in its post-hearing brief, the Respondent asserts that nocivil penalty should be imposed, expressing the following:

“Without conceding that acivil penalty is warranted or justified, assuming *arguendo*that a penalty should be assessed, the Secretary has failed to establish thesix statutorily-required penalty criteria to establish the proposed civilmonetary penalty amount ...[reciting the criteria] *SherwinAluminum Company, LLC v. MSHA*, 37 FMSHRC 2153, 2186(Sept. 25, 2015) (citing *Douglas R. Rushford Trucking*,22 FMSHRC 598, 600 (May 2000)). “The Commission is not required to give equalweight to each of the criteria ...” *Id*.(citing *Spartan Mining Co*., 30 FMSHRC 699,723 (Aug. 2008)).

Respondent has no historyof any discrimination findings or 105(c) violations. (Exhibit P-5; ExhibitP-6). Respondent’s proposed negligence in this case is non-existent, as itsactions show it was not negligent in any way as it thoroughly and painstakinglyevaluated and vetted its reasons for retracting improper mobile equipmentoperator upgrades not just from Otten, but also from two laborers who did notengage in any protected activity. The gravity of the alleged violation is low,as evidenced by the uniqueness of this situation and the fact that it is notcapable of occurring again as there are no designated miners’ representativeswho would be eligible for upgraded work. Lastly, all actions taken byRespondent in this matter were done with the sole intention and purpose ofcomplying with the terms of the CBA, to which Respondent is contractuallybound.” Respondent’s Brief at 25-26.

**The Court’s PenaltyDetermination**

Havingconsidered both arguments on the civil penalty issue, the Court cannot abide bythe Respondent’s assertions. From the Court’s perspective the gravity of theviolation and the Respondent’s negligence associated with it were significant. Thenegligence and gravity evaluations, while distinct evaluations, go hand inhand. 

Inthe face of the explicit language in Section 103(f) directing that the miners’representative suffer no loss of pay, it was not reasonable for the Respondentto conclude otherwise. No fair reading of the statute supports the Respondent’sview and the Respondent was seriously in error by concluding that the CBA wouldtrump Congress’ express command to the contrary that there be no loss of pay. 

Andthis conclusion makes sense when considering gravity as well, because Congresswanted miner participation in the inspection process, bringing their personalknowledge of the mine to bear in that process. This determination was coupledwith the Court’s finding that in fact Continental wanted to discourage Ms.Otten, who was very proactive in safety matters at the mine. Miss Ames’testimony made the Respondent’s intent clear. As the Respondent put it, Ms.Otten didn’t *have to* participate inthe inspections; she could’ve opted to run the mobile equipment instead onthose days. 

Whenconsidering the history of violations, that term is not limited to violationsof section 103(f). As noted in *Jim Walters*,18 FMSHRC 552, (April 1996), “Section 110(i) provides in part that, inassessing civil penalties, “the Commission shall consider the operator’shistory of previous violations ....” 30 U.S.C. § 820(i). Thus, the language ofsection 110(i) does not limit the scope of history of previous violations tosimilar cases. The Commission has explained that “section 110(i) requires thejudge to consider the operator’s general history of previous violations as aseparate component when assessing a civil penalty. Past violations of allsafety and health standards are considered for his component.” *PeabodyCoal Co*., 14 FMSHRC 1258, 1264 (August 1992) (emphasisadded). The appropriate weight, if any, to be attached by the judge to olderviolations should be based on relevancy.” *Id.*at557. *Seealso, Cantera Green*, 22 FMSHRC 616, 623, (May 2000). 

            Accordingly,the Court considered the Respondent’s violation history, per Ex. P-5, P-6. With115 violations over a 15-month period, and the violations per inspection at0.97, the mine falls within the mid-range for that category. Similarly, thesize of the mine falls within the mid-range, and the controlling entity islikewise in the moderate range. Taking the penalty criteria into considerationas applied to this matter, the Court concludes that the appropriate civilpenalty is $17,500.00.

**ORDER**

**WHEREFORE**,Respondent is **ORDERED** to pay Ms. Tara Otten the amounts, as identifiedabove, constituting the loss of pay she incurred, in the total amount of **$388.39,plus pre-judgment interest on this amount.** The loss of pay amounts are tobe calculated to include the interest accrued on those amounts for each date,per *Sec'y of Labor on behalf of Bailey v. Ark-Carbona Co*., 5 FMSHRC2042, (Dec. 1983). Such payment shall be made within 30 days of the date ofthis decision. 

Upon consideration of thesix statutory criteria, as discussed above, Respondent is **ORDERED** to paythe Secretary a civil penalty of **$17,500.00, (seventeen thousand fivehundred dollars)**. All payments shall be made within 30 days of the date ofthis decision, following the exhaustion of its appeal rights in this case.

**FURTHER**,the mine is ORDERED to remove from Tara Otten’s personnel file any mention ofthis incident unless the Respondent wishes to admit in that file that itimproperly denied Ms. Otten the pay she was entitled to receive during thewalkaround events identified in the Complaint. Further, for a period of 30(thirty) days, Continental Cement Company, LLC shall post a notice at theoffice of the Hannibal Underground Mine and, if different, also post the noticein a conspicuous location where employees of the mine can readily see it, withboth notices on hard stock paper of at least 8 x 14 size, in at least 14 pointfont, setting forth the rights of miners protected by 105(c) of the Mine Act. 

 

**SOORDERED.**

** **

** **

** **

** **

****/s/William B. Moran

William B. Moran 

AdministrativeLaw Judge

 

 

 

Distribution: 

MeganJ. McGinnis, Esq. Trial Attorney, U.S. Department of Labor,2300 Main St., Suite 1020, Kansas City, MO 64108 mcginnis.megan.j@dol.gov

 

R.Lance Witcher, Esq. and Thomas R. Chibnall, Esq., OGLETREE, DEAKINS, NASH,SMOAK & STEWART, P.C., 7700 Bonhomme Ave., Suite 650, St. Louis, MO 63105

lance.witcher@ogletree.com,thomas.chibnall@ogletree.com

 

Ms.Tara Otten, 813 Country Club Dr., Hannibal, Missouri 63401, tara.mundell@hotmail.com

----

[1] This approachalso spares the Commission from scouring the transcript record to locatetestimony.

 

[2] Per the parties’agreement, all the Joint Exhibits were admitted. Tr. 59.

 

[3] Due to the COVID19 pandemic, Jones did not do in person interviews. Tr.62.

 

[4] Jones learnedduring his investigation that LaRay Mundell was Ms. Otten’s supervisor at thetime of her complaint. Tr. 69. Though unimportant to the outcome of this case,it is noted as an aside, that Mr. Mundelll also happens to be Ms. Otten’sfather. Tr. 95. Similarly, Jones learned that Ms. Fujarksi was the payrollspecialist and Ms. Ames was the HR person. Tr. 69-70.

 

[5] The Courtcommented with regard to these other matters raised by Ms. Otten, that suchother matters are not essential to her establishing her 105(c) complaint. Tr.76-77. The Court stands by that observation. While those other issues mayprovide background to this case, they are not essential at all to this matter’sdetermination. 

 

[6] Jones added acomment to his remark, to which the Court sustained an objection, and thecomment was stricken.

 

[7] The Courtconsiders the following to be inconsequential but again for the sake ofcompleteness it is included here. It is noted that were it not for COVID, Joneswould have done in-person interviews with Respondent’s personnel. Tr. 83. Jonesadmitted that though Otten listed three individuals as responsible for the discrimination,he did not interview any of them. Tr. 85. Even though Ms. Ames submitted thecompany’s position statement, Jones did not follow-up with her about thatstatement. Tr. 86-87. 

 

[8] It is also worthnoting that had the other, preceding, events, that Ms. Otten alluded to, beenpart of the core allegations, the 60 day time limitation for filing a complaintis not jurisdictional in any event. As noted in *Hollis v. ConsolidationCoal,* 6 FMSHRC 21, 24 (Jan. 1984), “the purposeof the 60 day time limit is to avoid stale claims, but that a miner’s latefiling may be excused on the basis of “justifiable circumstances.” *Joseph W.Herman v. IMCO Services*, 4 FMSHRC 2135 (December 1982). The Mine Act’slegislative history relevant to the 60-day time limit states:

Whilethis time-limit is necessary to avoid stale claims being brought, it should notbe construed strictly where the filing of a complaint is delayed underjustifiable circumstances. Circumstances which could warrant the extension ofthe time-limit would include a case where the miner within the 60–day periodbrings the complaint to the attention of another agency or to his employer, orthe miner fails to meet the time limit because he is misled as to ormisunderstands his rights under the Act. S.Rep. No. 181, 95th Cong., 1st Sess.36 (1977), reprinted in Senate Sub-committee on Labor, Committee on HumanResources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safetyand Health Act of 1977, at 624 (1978) (emphasis added). Timeliness questionsmust be resolved on a case-by-case basis, taking into account the uniquecircumstances of each situation.

[9] As mentionedearlier, a quirk in this case is that before the upgraded pay was retracted,originally it was paid by her supervisor, Mr. Mundell, who is her father. Tr.95. This quirk, while interesting, has no bearing on this case.

 

[10] In a recordreplete with information that is immaterial to the core issue, another examplefrom the Respondent involved, Investigator Jones, who upon being referred to ExJ 2 at pages 5 and 6, agreed that he received some emails from Ms. Otten inconnection with his investigation and that her name was not on those emails asa sender or recipient. Tr. 102. Jones did not know how Otten acquired thoseemails. *Id*. Apart from suggesting that Otten inappropriately acquiredthe emails, the point attempted to be made by Respondent’s counsel was thatMiss Ames was responding to Mr. Mundell regarding employees Otten, Matson andLucas and that they were ineligible for pay upgrades. However, it should not belost that the latter two were *not*miners’ representatives. Counsel’s ispointing out that Ames was responding that, *per the CBA*, none of themwere entitled to pay upgrades and that her response was consistent with thecompany’s position regarding pay upgrades. Jones agreed that, to hisrecollection, the mobile equipment upgrade is defined in the contract as is thezipper clause. Tr. 103-104. Jones also agreed that the zipper clause eliminatesall past practices. Tr. 104. This information does nothing to resolve the coreissue. It is only part of the repeated assertions that Respondent’s witnessesbelieved the CBA answers the issue as to the pay Ms. Otten was entitled toreceive. 

 

[11] Another exampleof matters that are distractions, as they do not help resolve the issue in thiscase, the Respondent tried to wrap into the discussion that the CBA has no rateschedule for carpenters. Raising this is an attempt to bootstrap the dispute bypointing to wage rates for carpenters. Carpenters’ pay *is not* a relevantpart of this case. Tr. 108-109. 

[12] Thoughunnecessary to recount these details, because there is no dispute about them,for the sake of completeness regarding the days in issue, Mundell stated,without contradiction, that laborer William “Enoch,” Matson was operating aBobcat on March 2020. Tr.172-173. Charles, “Bub,” Lucas, another laborer alsoran a different Bobcat, also referred to as the ‘baby’ Bobcat and a skid steer,on that day. Reid Pullman, another laborer, also ran the ‘baby’ Bobcat on thatday, after Lucas moved to another task. Tr. 173-174. Jason Stewart’s name isalso listed for that date. He too operated a Bobcat on part of that day. Tr.175.Mundell confirmed that for March 24th, when considering employees Matson,Lucas, Pulliam and Stewart, Ms. Otten had seniority over all of them. *Id.*

* *

**In response to aninquiry from the Court to Mundell, and referring to Ex. J 7, he confirmed that“on these days, there were insufficient numbers of mobile equipment operatorsand that's why th[o]se individuals[,] Otten, Matson, Lucas, Pulliam, Stewart,were called in to operate mobile equipment because the number of people youhave to operate the mobile equipment were insufficient on those days, andtherefore, these people had to take over these mobile equipment tasks.” *Id.*All four of them operated mobile equipment on that day. Tr. 176. 

 

Turningto March 25, 2020, Mundell confirmed his email notes “MSHA all day” meaningthat Ms. Otten was called to walk around with the MSHA inspector all that day.Tr. 176. He believed that each of the other four laborers operated mobileequipment on that day, March 25th. Id. Mundell’s notes for March 26 reflectthat Ms. Otten was with MSHA all that day too and that Matson was assigned tooperate mobile equipment that day. Tr. 177. Lucas too on that date operatedmobile equipment and Pulliam as well as Stewart did also. Tr. 178. So too, inhis recounting of Ms. Otten’s work during the week of March 23 – March 27,Mundell informed that Otten was operating a skid steer all day on March 23 andMarch 27th. For the remaining days of that week, she was acting as the miners’rep with MSHA. Tr. 183. Turning to the following week, March 30th, that emailreflects the work the laborers performed that week. Tr. 184. Ex. J 7, M.

 

Speakingto the work performed by the yard laborers during the week of March 30, 2020. Mundellstated that Ms. Otten was with MSHA during a walkaround on March 31st, April1st and 2nd. Referring to the other laborers, Mr. Matson, Mr. Lucas, Mr.Pulliam, and Mr. Stewart, he reaffirmed that each of those men were juniorlaborers to Ms. Otten, and that Enoch, Lucas and Reid were on mobile equipmentall that day. *None of this is in dispute*. For April 2nd, Lucas andMatson were on mobile equipment. Tr. 198. Ms. Otten operated mobile equipmenton March 30th and on March 31 she spent 2 1⁄2 hours on a skid steer. On April 1stshe was on a forklift after 10:00 in the morning and on the next day, the 2nd,she was on a loader after 9:00 a.m. On the 3rd Ms. Otten was on vacation. Tr.199.Though unsure if he marked upgraded pay for Ms. Otten on the 3rd, he statedthat, if he had done that, it was in error, as she would not be entitled to apay upgrade on a vacation day. Tr. 199-200. Mundell affirmed that Ms. Ottenwould’ve been entitled to operate the Bobcat on March 24th, but for the factshe was accompanying an MSHA inspector as a walkaround rep on that day. Tr.201. The same applied to March 25th; Ms. Otten would’ve been offeredthe mobile equipment job that day too. Tr. 201. In fact, she would have beenthe first one offered that job. *Id.*

* *

AddressingMarch 26th, the same applied, with several other laborers operatingmobile equipment that day, but for her walkaround duty, Ms. Otten would’ve beenoffered the mobile equipment operator job, as Matson, Lucas, Pulliam andStewart all operated such equipment on that day. *Id.* Mundell confirmedthat, other than Ms. Otten being with MSHA on that day, she would’ve beenoperating a Bobcat. He also confirmed that she is well qualified to operate aBobcat and had done so on many prior occasions. Tr. 202. Last, referring to Ex.J-7 (n), at page 2, Mundell agreed that he spoke to personnel upon learningthat Ms. Otten’s pay upgrade had been retracted. Tr. 204. 

[13] In an attempt tosupport the Respondent’s position, Counsel for the Respondent asked, andMundell agreed, that per a gentleman’s agreement it had been the case that whena laborer performed *carpentry* work, the individual would be upgraded tomobile equipment operator pay. Tr. 207. Mundell agreed that for March 24th, oneof the days in issue in Ms. Otten’s Complaint, Enoch Matson received such anupgrade on that day and on that day he operated a skid steer loader for a timeand then in the afternoon, Matson did office remodeling work. Tr. 207-208. Ex.J 7, tab p. The Court would comment that the obvious point by Respondent’sCounsel is that if Ms. Otten were given carpentry work on a day when she wasaccompanying an MSHA inspector, she would not be given a pay upgrade to mobileequipment pay. But this is a classic straw man argument because the CBAimpacted the pay rate for carpentry work. Whereas before that agreement, per alongstanding gentleman’s agreement, carpentry work was considered upgrade paywork, the CBA changed that so that the pay increase no longer applied. What thehypothetical, and the question behind it, miss is that carpentry work was nolonger eligible for a pay upgrade. As a consequence, after the CBA, no employeeperforming carpentry work was thereafter ever eligible for a pay upgrade. Accordingly,if the only work beyond laborer, on a given day, was carpentry work, that paywould be at the same rate as the laborer position. Thus, the question missesthe mark because on the days in issue in Ms. Otten’s complaint, *she waseligible*to perform mobile equipment operator work, *which work doesprovide for a pay upgrade under the CBA*. 

 

[14] Other tangentialissues ensued, such as whether “*new*”*past practices*, (aninteresting turn of phrase), can be created post the CBA. Subjects such asthese are all connected with the Respondent’s theme that the CBA controls theoutcome of the issue in this case. There were several permutations of thesetheme advanced by the Respondent during the hearing, such as whether anothersupervisor, other than Mundell, had ever given a pay upgrade to a miners’ repon a shift when they never actually operated a piece of equipment during thatshift. Tr. 224-225.

 

[15]These include the uncontested points that a miner would not be able to claim anupgrade to mobile equipment operator if he was not trained for the type ofmobile equipment to be used. Tr. 241-242. Unfortunately, other off the markobservations continued. They included remarks that a senior laborer with abroken leg, who can't operate the equipment, would not be entitled to anupgrade just because a junior laborer operated the mobile equipment. Tr. 243. Otherarguments of the same ilk were presented, with Respondent’s Counsel askingMundell, “[i]f a senior laborer is attending annual refresher training, they'reat the mine, they're there to work, but they're attending annual refreshertraining, they wouldn't be entitled to an upgrade just because a junior laborergets a mobile equipment upgrade while they're unavailable?” Tr. 244. Mundellagreed no upgrade would be due. *Id.*In the same vein, when then asked ifthings like “vacation, FMLA, jury duty, parent-teacher conference, voting,bereavement leave,” were involved, if he agreed that such miners “wouldn't beavailable to operate mobile equipment ... even if they were the senior laborer,”and that “they wouldn't get the upgrade just because a junior laborer wasoperating the equipment,” Mundell noted that under such circumstances thoseminers would not even be at work and therefore they would not be getting suchpay. Tr. 245. 

The Court recognizes thatthe many examples presented by the Respondent’s Counsel simply representenergetic advocacy, that is, trying to make the best case one can. The problem,as the Court sees it, is that none of these analogies advance the Respondent’scase. 

[16] Mundell explainedthat there are infrequent occasions when miners from the yard perform otherduties, but most of the work involves those three categories. Tr. 246-247.

 

[17]As an aside, it is noteworthy that Mr. Powell had an instance when he assigneda less senior laborer to run mobile equipment and this resulted in his havingto pay the more senior laborer the upgraded pay, even though that more seniorlaborer never operated mobile equipment on that day. This result was broughtabout under the terms of the CBA. Powell violated the terms of the CBA byassigning the mobile equipment operator job to a less senior laborer. *Andwho was that more senior employee that Powell bypassed, you may ask? None otherthan Ms. Otten.* The circumstances when this occurred involved Powellassigning mobile equipment work to Mr. Matson, bypassing Ms. Otten, though shehad seniority over Matson. Tr. 279. Powell’s excuse for bypassing Ms. Otten wasnot persuasive to the Court. He stated: “for whatever reason, Tara wasn't -- I-- I didn't either go across the plant, or Enoch [Matson] was handy, he wasright there, I just assigned him to do it because it was -- I don't know thatit was an emergency, but it was something that needed to be done right away, soI had Enoch do it and -- and just paid 'em both. I mean, that's -- that's -- doI – I don't remember the reason why I didn't go get Tara [Otten], but -- so Ijust paid 'em both.” Tr. 279. Powell later added that the decision to bypass Otten“wasn't a mistake. It was a decision I made 'cause -- because Enoch wasavailable, okay? And although Tara may have been available, at the time, I hadto have somebody on it right now. So rather than run her down, or go look forher, I made the decision to put him on it. So therefore, by contract, I have topay her.” Tr. 281-282. 

Thus, Powell knew he was bypassing the terms of theCBA; his decision was, as he put it. “was done right -- right out the gate.That was done right as soon as I paid him [Matson], I would have to pay her.Then there is no dispute on pay or anything. Tr. 282.  Powell then attempted tojustify his action, describing that “[i]t was an *emergency call*, sothat's how -- that's just how I have to handle it, how I had to handle it.” Tr.283 (emphasis added). When the subject was revisited, in which he gave a job toa less senior miner, bypassing Ms. Otten, he reiterated that “the circumstancesaround that, whether she was available, *it was an emergency, you know*.”Tr. 296 (emphasis added). On cross-examination by Counsel for the Respondent,and pertaining to the event when he assigned mobile equipment work to a junioremployee, sidestepping the Complainant, Powell again affirmed that it was anemergency that prompted that action, although he edged back from thatdescription when asked again, stating “[t]hat I remember, yes.” Tr. 306. Thoughunsure, he believed the event was “sometime in 2019.” *Id.*When Counselfor the Respondent asked the question yet again, asking if Powell’s “concernwas that some activity needed to be performed on [the manlift, which was calledthe], JLG in an emergency fashion,” he modified his response further, answeringthis time “[*i*]*n a timely fashion, yes*.” Tr. 307. Uncertain whatPowell meant, Counsel for Respondent noted that “timely fashion” could be in aweek, or in a day, or in a matter of hours.” Powell then answered “Well, I --then I guess I should say, yes, it was an emergency, if you look at timely andthat. Timely, to me, means right now. So it's a difference in -- in descriptionof what timely means. So timely, to me, means it has to be done right now.” *Id.*His definition of an emergency included “if somebody had an appointment orsomething that I wasn't made aware of, whether it be USDA to deal with birds,we have vultures, or Reliable Pests to deal with pigeons or whatever, nuisancethings, and they were scheduled there at a certain time to be taken to do theirthing at a certain time, then we can't just – you can't just turn them away andsay no, come back an hour later, or tomorrow, or whatever. They've scheduledthat time.” Tr. 308. 

The Secretary’s Attorneylater returned to the subject of Powell paying two employees the upgraded pay,which event, as noted, involved Ms. Otten. Powell reiterated that the incident“was an emergency, but she's not available.” Vol II, Tr. 12-13. He thenconfirmed again that it was an emergency situation. Vol. II, Tr. 13. This time,Powell offered the reason he had Matson operate the JLG instead of Ms. Otten,stating “I didn’t want to go down that rabbit hole, but I will. So there was anincident involving a JLG with her father. He had injured hisself previous tothat. There was quite some time that had went by, but Tara had made numerouscomplaints about the equipment, that it was unsafe. We had had numerousmechanics in to work on that. And every time she operated that, we would haveto call a mechanic in to look at it. That the safety equipment wasn't working,that -- that there was a problem with it. She would leave the piece ofequipment set somewhere, we would have to retrieve it. We do not work on thisequipment. United Rentals does. They bring in their mechanic to work on it.They would come in and they think would find nothing wrong with it. So it waseasier to, rather than deal with that, was to put someone else on it that hadno issue operating it, found no safety issues with it. So that's what the issuewas. I tried to be tender when speaking about that, but that -- that's how itis.” Vol. II, Tr. 13-14. Powell stated that Ms. Otten had made numerous priorcomplaints about the piece of equipment, again referring to the JLG, and toavoid having her complain again about it, he assigned the task of running theequipment to Matson. Vol. II, Tr. 16-18. To be plain, in the Court’s view,Powell’s claim that the incident was an “emergency” was false. As the Courtalluded to earlier in this decision, while this event does not impact the legalquestion, it is, in the Court’s view, reflective that at least some inmanagement were not big fans of Ms. Otten and her active stance on safetymatters. It therefore can be taken into account in determining an appropriatepenalty applying a *Pasula-Robinette*analysis, or under a straight violationof section 103(f) analysis. 

 

 

[18] The idiom “sixways from Sunday” means in every way possible, having done somethingcompletely, having addressed every alternative. Six ways from Sunday seems tohave its origins in the middle eighteenth century as the phrases both ways fromSunday and two ways from Sunday. These earlier phrases referred to the eyecondition known as strabismus, where someone’s eyes do not focus in unison,giving the appearance of looking in two different directions. From there, theterms both ways from Sunday and two ways from Sunday gained the figurativemeaning of looking at something askew. ... the idiom carries the same meaning,which is in all ways possible.” https://grammarist.com/idiom/six-ways-from-sunday/

 

[19] A side note,ultimately of no consequence, Ames agreed that, initially, and when speakingwith Darin Douglas, the Union President in April 2020, about the pay issue withMs. Otten in this case, she admitted that she found no provision in the CBAthat spoke to the situation where a miner, acting as a walk-around with an MSHAinspector, was not entitled to an upgrade. Tr. 85-87.

[20] It should benoted that the Court finds that many issues raised by the parties were immaterialto the resolution of this case. One example involves whether Mr. Mundellimproperly coded payroll matters. Tr. 109-110,129. This is a distraction fromthe issue before the Court. If the CBA and provisions within it, such as thezipper clause, rule the day, then Mundell, or anyone who coded a pay upgradewhen the CBA did not allow such an upgrade would have made a coding error. However,if as the Court finds in this case, the walkaround, *no loss in pay*,provision encompasses pay one would have received but for that personaccompanying an inspector during a walkaround, then the CBA takes a back seatto the statutory provision.

 

[21] In support of itsposition, Respondent pointed to Ms. Otten’s filing of a grievance in connectionwith her pay upgrade issue. Tr. 181. Ex. R 4. The complainant filed hergrievance on April 20, 2020. This was at a time before she made her complaintto MSHA. In her grievance, Otten asserted that removing her mobile equipmentupgrades violated the CBA on the basis that the upgrades were a past practice. Tr.182. It is recognized by the Court that past practices were eliminated underthe CBA by virtue of the zipper clause. Tr. 183. Following a “second step”denial of the grievance, there was no third step or arbitration requested bythe union. Tr. 187-188. The Court commented that, while Ex R 4 was admitted,that action did not imply that the Court was suggesting that it would bematerial to this decision. For the reasons within this decision, the Courtfinds that, like the CBA, the outcome of the grievance action also has nobearing on this decision.  

 

[22] Though out of theanticipated order of testimony, an accommodation was made between the partiesso that the Respondent could call Ms. Stacy Fujarski to testify. Vol II Tr.218.

 

[23] Wornout, figuratively speaking, from witnesses uttering the same contention, theCourt inquired of Respondent’s Counsel: “So what's your point, counsel? Andyou're going back to ... adhering to the Respondent's view of what the CBArequired, and through this payroll process you are correcting it to reduce thepay from what was originally incorrectly listed as an enhanced pay. Am I -- amI correct about that? Vol. II, Tr. 233.

Counsel for Respondent, Attorney Chibnall, responded:“*You're correct*, Your Honor. This was mostly for ... explanatory purposes,... to explain how the process worked and what it looked like for Your Honor'sconvenience, so that when you looked at these documents, or if you did, you'dunderstand what they meant.” Vol II, Tr. 234. (emphasis added). 

The Court then expressed about the lack of value tothis testimony, stating: “So isn't this surplusage? I mean, ...no one is reallychallenging that there were mistakes from the Company's perspective in terms ofMiss Otten being paid too much. And apparently some instances when there was acorrection made and pay was to be increased because she was available; that is,she was not working for an MSHA inspector doing a walk-around. These recordsjust show how the Company corrected it one way or the other, right? But itdoesn't change the philosophy. The [Respondent’s] philosophy is you're notavailable, you don't get the enhanced pay because you're not available tooperate mobile equipment at that time. Why? Because you were with an MSHAinspector.” Vol II Tr. 235-236. 

Attorney Chibnall responded: “And that's correct, YourHonor. And the purpose of Miss Fujarski's testimony here was mostly explanatoryfor the exhibit itself. It's already been admitted. But I also had questionsregarding the -- the technical piece of it and how to actually perform thatoperation, which I think is somewhat relevant here.” 

The Court responded that it will “be interested tohear how it's relevant, but go ahead.” Tr. 236. However, upon review ofTranscript pages 236-244, with the last page being the end of Ms. Fujarski’stestimony, the Court concludes that the testimony did not add anything of valueto the issues in this case.

[24]This change in Ms. Otten’s job classification, from laborer to mobile equipmentoperator, does not moot the issue of whether she was entitled to the upgradedpay level for the dates identified in this case, as they were before her jobchange. Further, the broader issue before the Court has not become moot as aconsequence of Ms. Otten’s new job classification, because the mine would stilltake the same position regarding pay upgrades for any laborer who would findhimself in a similar situation. Thus, the Respondent, through Ames, stated thatit would still deny a pay upgrade to anyone else in a situation similar toOtten’s in this litigation. Vol II Tr. 206-207. 

 

[25] While notcritical to the Court’s determination of the walkaround issue in this matter,there is some useful background which at least Ms. Otten believed precipitatedthis dispute. According to her, before she filed the complaint in issue, “goingback to November of 2019, we had started an inspection that ... actually startedin October. It was a terrible inspection. I mean, it was one of our worst. Andat that time, I had filed a complaint with MSHA, and it was against CrystalHudak at that time. And I had overheard her -- I had given focus notes, whichwas our safety -- at joint safety committee in their Focus safety meetings. Ihad given notes to the MSHA inspectors.” Vol. II, Tr. 256. The notes were madeby Otten whenever an employee would raise a safety issue to her, but otherminers in the focus group made notes when such issues were brought to them. Otteninformed that many of these issues involved things she had personallywitnessed. Tr. 266. All of these notes were given by Otten to MSHA. Tr. 265. Theyhad asked [her] for [the] notes. ... [a]nd then [she] had found out that [Ms.Crystal Hudak] was going around having secretmeetings, or closed-door meetings with supervisors regarding the fact that[she, Ms. Otten] gave these notes to MSHA.” Tr. 256-257. Otten knew about the“secret” meetings because she overheard Hudak speaking with another supervisor,Dean Welder. At that time Otten heard Hudak speaking, saying, “So Tara isgiving focus notes to MSHA.” Tr. 257. Having overheard that, Otten “immediatelyfelt as if [her] rights were being violated as a miners' rep.” *Id.*Thoughshe felt constrained not to open the door of the closed meeting, not knowingwhat else to do, she did speak from outside the door, informing “Crystal[Hudak], I can hear everything you're saying.” Tr. 257. Following that event,Otten filed a complaint to MSHA about it. She did this by calling the MSHAhotline. This complaint was made *prior*to the event in issue. Thisevent, occurring on November 4, 2019, was not in the distant past to the matterin this case. Tr 258. Otten also brought the incident to the attention of herUnion representative, Wil Clayton and also to Heather Ames. Tr. 259. Ex. J 2. Forthis earlier incident, Otten was also interviewed by Investigator Jones. Duringthat interview, Otten informed that she told the investigator of otherincidents, all preceding the event in this case. Tr. 262. Otten believed thatthe operator was frustrated after the MSHA inspection, because, as one example,Terry Powell kept mentioning the D orders that MSHA issued with his name on theorders. Tr. 262-263. Powell also referenced having “to go to MSHA court” aboutthe D orders. Tr. 263. One of those orders emanated out of messes in the yarddepartment, the department where Otten then worked as a laborer. Tr. 264. Subsequently,Otten left the safety focus group. This occurred on February 11, 2020 when shewas informed by Tim Schlosser, with corporate safety, that in the future allsuch notes would have to be turned over to corporate. Tr. 267. As that didn’tsit well with Otten, she left the focus group in March or April of that year. *Id*.As Otten put it, upon being told about the requirement to turn over the notes,at the end of the meeting she “thanked everyone for the opportunity, I foldedup my notebook, I handed it to Crystal Hudak. I told them that I did not thinkthat our safety program was working as they intended and I stepped down fromFocus. But I still remained a miners' rep.” *Id.*

 

Although,the incidents recited above are not critical to, nor a necessary predicate toMs. Otten’s discrimination claim, the Court concludes that, contextually, theyare important to a fuller understanding of this matter. Clearly, based on Ms.Otten’s credible testimony, Continental was not pleased with her proactiveapproach to mine safety including her courage to inform MSHA of her safetyconcerns. It is also noted that Ms. Hudak was disciplined as a result of Ms.Otten’s complaint regarding that incident. Vol II, Tr. 300. Otten did not agreewith the suggestion by Counsel for the Respondent that the incident with Hudakhad no connection with the Complaint in this matter. It was her view that at thetime involving the Hudak matter she was unaware of “all of [Bob Pickering’s]investigation” and therefore did not know at that time that Hudak had “talkedto all of these supervisors, had given them names, had insinuated [that Otten]was throwing people under the bus.” Vol. II, Tr. 301.

[26] The amountcalculated by Ms. Otten, per Ex. P 11, also reflects her 401K match. Under thatwhen miners like her “contribute 4 percent into [the mine’s] 401K, the Companywill match 100 percent of that 4 precent. And [she does] contribute thatamount. And so that is the 4 percent of the total amount that [she] feels [she]was owed. That $14.94 is 4 percent of all of that.” Tr. 277, and Ex. P 11.

 

[27] To avoidpotential confusion for those reviewing this record and Ex. P 11, the minersreceived a pay raise and the difference between the two rates is also reflectedin that exhibit. Again, there is no genuine dispute about the figures in thiscase; the dispute is over the pay rate due to miners’ representatives under thecircumstances identified in Otten’s Complaint. 

 

[28] For example, referringto the CBA, Douglas, who informed that he was involved in the negotiation ofthat agreement, expressed his view that “[t]he miner that walks around for thesafety of the Union should be paid their normal wage rate. In this case, MissOtten was at JC1, which is [the] labor rate. I've been there 26 years and Ihave never heard of anybody being upgraded when they walked around with MSHA.” Vol.III, Tr. 21. Upon cross-examination, Douglas expressed that Ms. Otten had nocase. In support of his view, he pointed to page 26 of the contract, assertingthat it states “that there should not be an upgrade to walk around with MSHA.”Vol III Tr. 27. Joint Exhibit 4 at page 28. 

[29] Because the Courthas determined that the CBA does not override the statutory protection andcommand that miners’ representatives are not to incur a loss of pay whenserving in that capacity, the Court will not engage with the claim that the CBAprevents the Respondent from paying the mobile equipment operator rate in thisinstance, nor, because it is unnecessary to do so, as it would elevate thestature of the CBA, will it delve into the Secretary’s assertion that theRespondent’s interpretation of the CBA conflicts with that agreement’s terms. 

 

[30] Thus the Courtagrees with the Secretary that the “mixed motive defense does not apply becauseOtten did not engage in any unprotected activity that would justify the adverseaction.” Sec. Br. at 36. Ames admitted that the denial of the pay upgrade wasbased on the theory that Ms. Otten was ‘unavailable’ to run the mobileequipment, but her ‘unavailability’ was solely attributable to her serving asthe miners’ representative and the foundation for all of that was that the CBAdictated the loss of pay provision. In short, the Court agrees with theSecretary’s remark that “Continental cannot use the CBA to take away a rightprovided to miners under the Act.” *Id*. at 37 (italics omitted). As theSecretary has noted, the Commission held in *Sec’y v. Akzo Nobel Salt Inc.*,19 FMSHRC 1254, (July 1997) (“*Akzo*”) that“the judge should not have looked to the collective bargaining agreement infashioning his relief under section 105(c). The Commission has stated that itdoes not ‘decide cases in a manner which permits parties’ private agreements toovercome mandatory safety requirements or miners' protected rights.’ *Mullinsv. Beth-Elkhorn Coal Corp*., 9 FMSHRC 891, 899 (May 1987) (citing *Loc. U.No. 781, Dist. 17, UMWA v. Eastern Assoc. Coal Corp*., 3 FMSHRC 1175, 1179(May 1981)).” *Akzo* at 1259 and Sec’s Br. at 37-38. 

 

[31] Although theCourt read and considered the entirety of the parties’ post-hearing briefs,this section comments upon particular contentions raised in those briefs, withthe Court concluding that other contentions were implicitly addressed in thefindings of fact and/or in the case law discussion. As one example, theRespondent’s assertion that any suggestion of animus towards Ms. Otten wasnegated by Ms. Ames’ “independent investigation,” needs no further comment, asthe issue was addressed earlier by the Court. Respondent’s Reply at 9.

 

[32] Respondent cites *St. Joe Zinc**Company*, 2 FMSHRC 3594, 3600(Oct. 28, 1980) for the proposition that the “Mine Act only requires minersreceive their regular rate of pay.” R’s Br.  at 10. As a decision by anadministrative law judge, it has no precedential impact but, beyond that, thecase is inapt. Further, Respondent misreads that decision because, in fact, itsupports the Court’s determination in this matter. In *St.Joe Zinc,*the miners’ representative, who was an oiler-tool nipper,cleaned toilets as part of that job. When he accompanied an MSHA inspector as aminers’ representative, the mine operator did not pay him for the toiletcleaner part of his job because he did not clean toilets during that week. Theoperator maintained that it would be unfair to require it to pay the miner forhousekeeping duties he not actually perform. 

Thejudge in *St. Joe Zinc,*explicitly stated that “[a]t issue in thislitigation is the proper construction of the requirement contained in section103(f), 30 U.S.C. § 813(f), of the Act that a designated walkaroundrepresentative “shall suffer no loss of pay during the period of hisparticipation in the inspection.” *Id*. at 3597. The operator in *St.Joe Zinc*looked to *another*decision, *ConsolidationCoal*, 2 FMSHRC 1056 (May 5, 1980), which decision has been discussedabove, for the proposition that, *per a wage agreement*, *the higherrate need only be awarded when the specified work is actually performed*. Thatargument should sound familiar to the reader. The judge in *ConsolidationCoal* found that the miner was unfairly penalized for exercising hiswalkaround rights, and that the failure to compensate him at the rateapplicable to the duties he would otherwise have performed was an act ofdiscrimination within the meaning of section 105(c) of the Act. 

 

Becausethe *St. Joe Zinc* decision referred to *ConsolidationCoal*, this could be confusing to the reader, and therefore it isimportant to understand that the judge in *St. Joe Zinc*rejected theoperator’s claim, reasoning that the miner’s toilet cleaning duties “were performed as part of that [miner’s] regular 40-hourwork week” and, construing the provision in issue, the judge in *St.Joe Zinc*stated “[t]hat the requirement ofsection 103(f) that miners exercising their walkaround rights ‘shall suffer noloss of pay’ means they are to receive their customary and usual compensation[as] made abundantly clear in the legislative history.” *Id.* at 3600. Thus,the judge in *St. Joe Zinc*held that “[i]fnonperformance of [the miner’s] maintenance duties is excused by the walkaroundprovision, then nonperformance of his sanitation duties must likewise beexcused.” *Id*. 3599-3600. The Court applies the same logic. There is nodispute that but for serving her fellow miners as the miners’ representative,Ms. Otten would have been operating mobile equipment on the dates sheidentified in this litigation and the parties have agreed to the amounts she wouldhave been entitled to receive on those dates, subject to this Court’sdetermination of the proper construction of the no loss in pay provision forwalkaround representatives.

 

[33] Though a matterof semantics, while it is undisputed that Ms. Otten would have been paid as amobile equipment operator on the days in issue, the Court is reluctant toemploy the phrase “regular rate of pay,” the key is that Otten suffered a “lossof pay” on those dates.

 

[34]*Sec'y of Laboron behalf of Pasula v. Consolidation Coal Co*., 2 FMSHRC 2786, 2799 (Oct.1980), *rev'd on other grounds sub. nom**Consolidation Coal Co. v.Marshall*, 663 F.2d 1211 (3rd Cir. 1981).

 

[35] “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. [citing,as one example] *Central Sand and Gravel Co.,*23 FMSHRC 250, 254 (Mar.2001),” *Secretary of Labor on behalf of Greathouse v. MonongaliaCoal Co.*,****40 FMSHRC 679, 689 (June2018). Constructions which lead to absurd results are rejected. *ConsolidationCoal*, 15 FMSHRC 1555, 1557 (Aug. 1993)

 

[36] Although theSecretary asserts that Ms. Ames acted *intentionally* in denying Ms.Otten’s upgrades, the Court believes that, whatever her intent, misguided ormalevolent, it does not matter; the loss of pay Ms. Otten incurred in thesecircumstances violated Section 103(f), constituting cognizable discriminationunder Section 105(c) of the Mine Act. 

 

[37] The Court agreesthat many of the arguments advanced by the Respondent are simply not on point. Asone example, that Matson and Lucas had pay upgrades retracted is of no momentbecause neither was acting as a miners’ representative. The Court views many ofthe other arguments raised by the Respondent as distractions which do notwarrant individualized discussion. For example, the claim that Ms. Otten was *notrequired* to perform work of a higher classification is of that ilk becauseit diverts the analysis from the core, and undisputed, fact. On the days inissue, Ms. Otten would have been first in line to operate mobile equipment and,as the designated walkaround representative, she would have done so but for thefact that she was accompanying the MSHA inspector at those times. Respondent’sReply at 17.