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Marshall County Coal Co. v. Federal Mine Safety and Health Review Commission

United States Court of Appeals, District of Columbia Circuit

May 7, 2019

Marshall County Coal Company, et al., Petitioners
Federal Mine Safety and Health Review Commission and Secretary of Labor, Mine Safety and Health Administration, Respondents United Mine Workers of America International Union, Intervenor

          Argued January 15, 2019

          On Petition for Review of a Decision of the Federal Mine Safety and Health Review Commission

          Margaret S. Lopez argued the cause and filed the briefs for petitioners.

          Emily Toler Scott, Attorney, U.S. Department of Labor, argued the cause for respondents. With her on the brief was Ali A. Beydoun, Counsel, Appellate Litigation. John T. Sullivan, Attorney, Mine Safety and Health Review Commission, entered an appearance.

          Laura P. Karr argued the cause and filed the brief for intervenor United Mine Workers of America International Union.

          Before: Millett and Pillard, Circuit Judges, and Edwards, Senior Circuit Judge.



         Section 105(c)(1) of the Federal Mine Safety and Health Amendments Act of 1977 ("Mine Act" or "Act") prohibits mine operators from interfering with miners' exercise of statutory rights. See 30 U.S.C. § 815(c)(1). This case involves claims by miners that mine operators interfered with their rights under Section 103(g) of the Act to raise anonymous complaints with the Mine Safety and Health Administration ("MSHA") regarding health and safety issues. See 30 U.S.C. § 813(g)(1).

         Petitioners are five underground coal mines in West Virginia and associated corporate entities, including the owner and operator of the mines, Murray Energy Corporation ("Murray Energy"). Robert Murray ("Murray") is the President and Chief Executive Officer of Murray Energy. At issue are a series of mandatory "Awareness Meetings" that were held at each of the five mines. During the meetings, Murray criticized miners' use of the Section 103(g) process and instructed miners that, if they filed such complaints, they must make the same reports to mine management.

         Several miners and a union representative filed complaints with the Secretary of Labor ("Secretary") alleging that Petitioners had interfered with their rights to file anonymous complaints pursuant to Section 103(g). The Secretary then filed a complaint on behalf of the miners with the Federal Mine Safety and Health Review Commission ("Commission"). The Commission, in turn, found that Petitioners had violated Section 105(c)(1) of the Act by interfering with miners' Section 103(g) rights. The Commission imposed various remedies, including a penalty of $20, 000 per violation and an order requiring Murray to personally hold a meeting at each mine and read a statement regarding the violations. Petitioners then filed a timely petition for review with this court.

         Petitioners' primary argument is that the Commission erred in assessing the Section 105(c)(1) claims because it failed to consider whether Petitioners' actions were motivated by an intention to interfere with the miners' protected rights. We decline to decide whether the Commission applied the correct test of interference under Section 105(c)(1) because Petitioners failed to raise and preserve the issue during the administrative proceedings before the Administrative Law Judge ("ALJ") and the Commission. In addition, we find that, even under the legal standard that Petitioners would have us adopt, substantial evidence in the record clearly supports the Commission's finding that Petitioners interfered with miners' Section 103(g) rights. Moreover, we find no merit in Petitioners' challenge to the assessment of monetary penalties. And, finally, we hold that Petitioners failed to properly raise and preserve, and thus forfeited, their claims challenging the order requiring Murray to read a statement.

         For the reasons explained below, we deny the petition for review.

         I. Background

         A. Statutory Background

         "Congress adopted the Mine Act 'to protect the health and safety of the Nation's . . . miners.'" Wilson v. Fed. Mine Safety & Health Review Comm'n, 863 F.3d 876, 878 (D.C. Cir. 2017) (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 202 (1994)). "To accomplish its goals, the Mine Act charges two separate agencies with complementary policymaking and adjudicative functions." CalPortland Co. v. Fed. Mine Safety & Health Review Comm'n, 839 F.3d 1153, 1156 (D.C. Cir. 2016) (citation omitted). The Secretary, acting through MSHA, has "rulemaking, inspection, and enforcement authority," while the Commission is "an adjudicatory body[, ] independent of the Secretary," that reviews challenges to MSHA's actions. Wilson, 863 F.3d at 879 (citation omitted).

         Congress recognized that its national mine safety and health program would be most effective if miners and their representatives contributed to the enforcement of the Mine Act. Council of S. Mountains, Inc. v. Fed. Mine Safety & Health Review Comm'n, 751 F.2d 1418, 1420 (D.C. Cir. 1985). To that end, the Act establishes a process for filing complaints with MSHA. See Meredith v. Fed. Mine Safety & Health Review Comm'n, 177 F.3d 1042, 1056 (D.C. Cir. 1999) ("Believing miners to be in the best position to detect and report hazards, the Act created a number of mechanisms through which they could notify the MSHA of dangerous conditions, including written complaints, requests for inspection, and the right to point out hazards.").

         Under Section 103(g), a miner or a miner's representative who has "reasonable grounds to believe that a violation of this chapter or a mandatory health or safety standard exists, or an imminent danger exists . . . [has] a right to obtain an immediate inspection by giving notice" of such violation or danger to the Secretary. 30 U.S.C. § 813(g)(1). The Act protects miners who file complaints from having their identities disclosed to mine operators. See id. (requiring the Secretary to give the operator a copy or notice of the complaint, but "[t]he name of the person giving such notice and the names of individual miners referred to therein shall not appear in such copy or notification"). Congress considered the "strict confidentiality of complainants" to be "absolutely essential" to protect miners who exercise their right to make Section 103(g) complaints. S. Rep. No. 95-181, at 29 (1977). This is because miners have an interest both in working in a safe environment and in maintaining good relationships with fellow workers and mine management. Absent a guarantee of confidentiality, a miner would be unnecessarily forced to weigh those competing interests in deciding whether to report a violation or dangerous condition to MSHA.

         To promote participation in enforcing mine health and safety, the Act specifically protects miners and their representatives against retaliation and interference. Section 105(c)(1) states,

No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner [or] representative . . . because such miner [or] representative . . . has filed or made a complaint under or related to this chapter, . . . or because of the exercise by such miner [or] representative . . . of any statutory right afforded by this chapter.

30 U.S.C. § 815(c)(1). To make a prima facie case of discrimination under Section 105(c)(1), a miner must prove that he or she was engaged in protected activity and that the adverse action complained of was motivated in some part by that activity. Leeco, Inc. v. Hays, 965 F.2d 1081, 1084 (D.C. Cir. 1992); see also Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817 (1981); Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). Although the standard for discrimination claims is settled, the Commission has yet to reach a consensus on the proper test for interference.

         B. Factual Background

         In December 2013, a subsidiary of Murray Energy acquired five underground coal mines in West Virginia: the Marshall County Mine, Marion County Mine, Harrison County Mine, Monongalia County Mine, and the Ohio County Mine. Soon thereafter, MSHA received numerous Section 103(g) complaints from miners alleging safety hazards and violations. From December 2013 through July 2014, MSHA conducted inspections to investigate the complaints, leading to the issuance of 42 citations and orders.

         In response to these complaints, Murray sent a letter to the President of the United Mine Workers of America ("UMWA"), whose local unions represent the hourly production and maintenance workers at the mines. In the letter, Murray complained about the "rash of 103(g) complaints" being made by "disgruntled employees" and union officials who were "striking back at the Company for reasons other than safety." Joint Appendix ("J.A.") 589. He described a "very high level of negative findings from MSHA" and claimed that the misuse of the Section 103(g) complaint process was wasting the agency's and Murray Energy's resources. Id. (emphasis in original). After stating that Murray Energy would "never interfere with a miner's right to file 103(g) complaints," Murray requested that management "be given the opportunity to also simultaneously be informed [of] safety issues in place of the 103(g) complaints, or afterwards." J.A. 589-90 (emphasis in original).

         Then, between April and July 2014, Murray led a series of "Awareness Meetings" at each of the five mines. The meetings, which were held during each work shift, were mandatory for both management and hourly workers. The meetings consisted of a 77-slide PowerPoint presentation and a speech by Murray. Each PowerPoint presentation opened with the words "MUTUAL TRUST" and explained that the purpose of the meeting was to "communicate the circumstances at [the mine] surrounding your job and your family livelihood," "give you the facts," and "advise you as to what we must do to assure a future for our Mine, jobs and livelihoods." J.A. 482 (emphasis and capitalization in original); see also J.A. 502, 520, 538, 556. Many of the underlined terms were displayed in red or yellow. After a few slides emphasizing the importance of miner safety, the presentations said, "Now, Let Us Take a Moment to Think About Your Job Being Suddenly Gone," and asked, "Do You Have Another Job To Go To That Pays the Same Wages and Benefits as the One You Have at [the mine]?" J.A. 485; see also J.A. 505, 523, 541, 559. The next slide explained, "There Are No Jobs in This Area That Pay Anywhere Close to What Is Paid at [the mine]. Further, There Are None With the Benefits That You Have." Id. (line spacing altered). A subsequent slide reiterated, "Where Will you Move To Find a Job? What Will It Be? There are None Here[.] Certainly None Paying Your Wages and Benefits[.]" J.A. 486 (line spacing altered); see also J.A. 506, 524, 542, 560.

         The PowerPoint presentation also complained about the impact of government regulation on the coal industry and miners' livelihoods. See J.A. 487-89; see also J.A. 507-09, 525-27, 543-45, 561-63. Murray explained that "Only" the miners could "Save" their jobs, J.A. 489; see also J.A. 509, 527, 545, 563, and went on to berate the miners for low production rates, inefficiencies, drug and alcohol use, and "Out of Control" employee absences, J.A. 495-96; see also J.A. 490-94, 510-15, 528-33, 546-51, 564-69.

         Three PowerPoint slides addressed Section 103(g) complaints:

You Must Report Unsafe Situations and Compliance Issues to Management so that they Can Be Addressed By Management
103(g) Complaints Relative to the Mine Safety and Health Administration ("MSHA") Are Your Right Your Company Will Never Interfere With This In Any Way
But, you Are Also Required To Make the Same
Report to Management
There Are High Percentages of Negative Findings from MSHA on the 103(g) ...

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