United States Court of Appeals, District of Columbia Circuit
January 15, 2019
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
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
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.
EDWARDS, SENIOR CIRCUIT JUDGE
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).
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.
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.
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.
reasons explained below, we deny the petition for review.
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).
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.").
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
promote participation in enforcing mine health and safety,
the Act specifically protects miners and their
representatives against retaliation and interference. Section
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
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
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).
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.
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.
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)