Coal Age

MAR 2018

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Page 49 of 51

48 March 2018 legally speaking Part II of Section 105(c)'s 2-Headed Monster: The Interference Complaint by erik dullea and mark savit This month, we examine the second claim Section 105(c) of the Mine Act al- lows a miner to bring — that an opera- tor interfered with the miner's protected statutory rights. Defining Interference Section 105(c)(1) states that "[n]o per- son shall discharge or in any manner discriminate against … or otherwise interfere with the exercise of the stat- utory rights of any miner." Unlike dis- crimination claims, Congress believed interference was more a subtle injury, promising benefits or threats of repri- sal directed to miners. Persistent, ac- cusatory interrogations of a miner who complained to the Mine Safety and Health Administration (MSHA) are also prohibited interference. The UMWA o/b/o Franks v. Emerald Coal Resources case involved two hour- ly miners (Franks and Hoy) who told their United Mineworkers of America (UMWA) safety representative that fire bosses were not performing adequate pre-shift exams. An anonymous com- plaint was later made to MSHA. MSHA interviewed 34 people including Franks and Hoy, and told management that Franks and Hoy had knowledge about the inadequate exams. MSHA and man- agement asked for the names of the fire bosses, but Franks and Hoy refused to answer. Utlimately, MSHA found no ev- idence of inadequate pre-shift exams. Emerald Coal conducted its own investigation, again asking Franks and Hoy for the names of the fire bosses. Franks and Hoy again declined to an- swer, and were suspended. They filed § 105(c) discrimination claims alleging they had been target- ed and singled out for participating in MSHA's investigation. Administrative Law Judge Miller held there was sub- stantial evidence Emerald Coal discrim- inated against the miners. Emerald Coal appealed and the commission affirmed the judge's de- cision, but could not reach a majority. It appealed again and the court vacat- ed the commission's ruling because it lacked a majority. The case was remand- ed, but settled after Emerald Coal filed for bankruptcy and closed the mine. In a separate interference case, MSHA, alleged a miner was intimidated by a supervisor for engaging in activities protected by the Mine Act ( Pepin v. Em- pire Iron Mining Partnership) . Judge Bar- bour presided in Pepin. Pepin observed an alert on a lightning detection system. Management conclud- ed the alert was a false positive caused by snow. Pepin disagreed, and annotated the alert on the Take-5 cards on the next two shifts. Shortly after, MSHA investigat- ed a complaint of miners working during the alert. MSHA made a negative finding, which the supervisor told Pepin. This dis- cussion led to an argument between the supervisor and Pepin. The supervisor al- legedly said, "[we] knew you called MSHA" and that Pepin was being watched. In Franks, the secretary of labor pro- posed a two-step test for the existence of interference: a person's action can be reasonably viewed, from the perspective of members of the protected class and under the totality of the circumstances, as tending to interfere with the exercise of protected rights; and the person fails to justify the action with a legitimate and substantial reason whose impor- tance outweighs the harm caused to the exercise of protected rights. The secretary's test does not require proof that a miner was actually deterred or prevented from exercising a right, or that the operator acted with a discrimi- natory motive or unlawful intent. Two commissioners in Franks adopt- ed the test and concluded that Franks and Hoy felt they were being coerced into fingering their fellow union mem- bers, and that reasonable miners, un- der those circumstances, would believe management was interfering with their statutory rights. The commissioners held that Emerald Coal's rationale was insufficient because management had already obtained the names of the fire bosses elsewhere. On remand, Miller ad- opted and applied the secretary's test in full, and ruled against Emerald Coal. In Pepin, Judge Barbour analyzed the secretary's test. Unlike Miller and two commissioners in the Franks case, Bar- bour did not entirely agree with the test. Barbour agreed the secretary does not need to prove "actual interference," but disagreed that absence of improper mo- tive by the operator was acceptable. Barbour's interference test required proof that the operator's actions can be reasonably viewed, from the perspective of the protected class, under the totality of the circumstances, as tending to inter- fere with the exercise of protected rights, and the operator's actions were motivat- ed by the exercise of protected rights. Some commission members have spoken favorably of Barbour's analysis in Pepin, but the commission has not adopted a final legal test for interfer- ence. Franks and Pepin must be viewed as cautionary tales. Interference claims are judged based on how the actions are viewed by a reasonable miner based on surrounding circumstances, and there may be no requirement for operators to have a motive to interfere with the min- ers' rights under the Mine Act. Erik Dullea is a partner and Mark Savit is a senior counsel with Husch Blackwell. This is the second part of a two-part series.

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