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June 15 — Members of the mine safety review board signaled their intent to uphold a ruling that a coal company and its top executive made statements that constituted an interference with miners’ safety rights ( Sec'y of Labor v. Marshall Cty. Coal Co., FMSHRC, No. WEVA 2015-583-D, meeting held 6/13/16 ).
In its June 14 meeting, the five commissioners of the Federal Mine Safety and Health Review Commission said they would affirm the administrative law judge's finding that Murray Energy violated the interference provision, Section 105(c)(1) of the Federal Mine Safety and Health Act, although they disagreed on the operative test.
After miners at the Marshall County Mine, the Ohio County Mine, the Harrison County Mine, the Monongalia County Mine and the Marion County Mine made Section 103(g) complaints to the Mine Safety and Health Administration, the agency conducted inspections and issued 42 citations for, among other things, accumulations of coal and combustible materials, obstructed travelways and roof support violations. All the mines are located in West Virginia.
In April 2014, President and Chief Executive Officer Robert Murray sent a letter to the union president and management employees that requested management be “simultaneously” informed of the safety issues raised in the complaints.
Murray also held “awareness” meetings at the mines from April to June 2014. He gave a speech and a PowerPoint presentation at each mine, which said that the future of the miners' jobs depends on the market for coal, and mines must produce low-cost coal to survive.
The presentation also said that safety and compliance issues must be reported to management and 103(g) complaints to the agency must also be made to management. Moreover, these complaints dilute company and agency resources and hurt company and job survival, according to the presentation.
A miner also made a recording at the Marshall County Mine of Murray telling miners that they are required to report 103(g) complaints to management and using these complaints “because you're unhappy with management is not something that will be accepted.”
A miner filed a 105(c) discrimination complaint with the agency in June 23 and five others followed suit, alleging intimidation and interference with their statutory rights to file anonymous 103(g) complaints.
Murray Energy also filed an action in the U.S. District Court for the Northern District of West Virginia, alleging the union and individual miners violated the collective bargaining agreement.
The administrative law judge, Margaret A. Miller, ruled in November 2015 that Murray Energy violated the act.
She found that the miners had a protected right, and the communications made to the miners interfered with this right. Although Murray said the policy was meant to keep the company informed of unsafe conditions, the ALJ rejected this argument because the policy directly related to complaints made to MSHA.
She ordered it to pay $30,000 for each of the five mines, cease and desist from future interference violations, and read and post statements that miners are not required to notify management of safety complaints.
Although the commissioners agreed to affirm the ALJ's interference violations ruling, they disagreed on the test to apply.
Commissioners Nakamura and Jordan said they would affirm based upon the test they announced in a 2014 commission decision ( UMWA ex rel. Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088 (2014)).
Under Franks framework, a violation occurs if “(1) a person’s action can be reasonably viewed, from the perspective of members of the protected class and under the totality of the circumstances, as tending to interfere with the exercise of protected rights, and (2) the person fails to justify the action with a legitimate and substantial reason whose importance outweighs the harm caused to the exercise of protected rights.”
Commissioner Cohen said he was prepared to adopt Franks, as the ALJ had done, but would look into a recent test announced by a different ALJ and cited by Commissioners Althen and Young, which would add another step to the interference analysis—whether the company's actions were motivated by the exercise of protected rights, such as the filing of a 103(g) complaint ( Sec'y of Labor v. Empire Iron Mining P'ship, FMSHRCJ, No. LAKE 2015-386-DM, 6/6/16 ).
Young and Althen said that the facts of the case would support a finding of violations under the Empire Iron framework.
The commissioners also discussed, and in some cases disagreed, on the authenticity and admissibility of the recording, whether the ALJ should have considered the filing of the district court case and subsequent depositions in her ruling, and whether the company or the secretary should have the final say over the content of the statements to the miners.
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