Pit & Quarry, November 2016

BY MICHAEL T HEENAN AND MARGO LOPEZ MSHA THE LAW INTERFERENCE OR DISCRIMINATION T he Federal Mine Safety and Health Act prohibits discrimination against miners in response to protected safety activity The act also prohibits interference with protected rights of miners There are distinctions 1 Discrimination is adverse action following a miners exercise of protected rights 2 Interference inhibits exercise of miners rights in the future 3 Discrimination involves unlawful motive 4 There need be no unlawful motive for a finding of interference Section 105 c of the Mine Act provides this No person shall discharge or in any manner discriminate against or otherwise interfere with the exercise of the statutory rights of any miner because such miner has filed or made a complaint under or related to this chapter including a complaint notifying the operator or the representative of miners of an alleged danger or safety or health violation or because of the exercise by such miner of any statutory right A case that analyzes the differences between discrimination and interference began in July 2011 when two coal miners Mark Franks and Ronald Hoy complained to their union safety representative that a fireboss was not properly completing belt safety examinations Shortly afterward MSHA investigated an anonymous complaint and asked who the fireboss was Franks and Hoy declined to provide information but said their safety committeeman knew MSHA found no fireboss violations The mine operator investigated and repeatedly questioned Franks and Hoy They persisted in refusing to name the fireboss saying they already told their safety committeeman They were suspended for seven days for refusing to cooperate with the companys investigation Franks and Hoy filed complaints of discrimination with the Mine Safety Health Administration MSHA After investigating MSHA concluded the facts did not constitute discrimination The United Mine Workers of America filed complaints of discrimination with the Federal Mine Safety and Health Review Commission on their behalf The trial judge held that Franks and Hoy were subjected to unlawful discrimination The judge ordered back pay and directed the company to post notices to inform all miners Penalties of 40000 were assessed After reviewing the judges decision a commission majority found for Franks and Hoy However there were three opinions Commissioners Robert F Cohen and Michael G Young agreed with the judge that there had been discrimination Commissioners Mary Lu Jordan and Patrick K Nakamura found there had been interference with the exercise of miners rights Commissioner William I Althen dissented concluding there was no violation The operator Emerald Coal Resources appealed The U S Court of Appeals observed there was no majority consensus among the commissioners for why the judges decision should be upheld The court therefore returned the case to the commission for a rationale that a majority of commissioners might adopt The commissioners then sent the case back to the trial judge After further argument from the parties the judge again ruled for Franks and Hoy and imposed the same remedial obligations and civil penalties on the company However in this second decision the judge switched from a finding of discrimination to a finding of interference TAKEAWAYS So what lessons can be learned from this case The judges award to Franks and Hoy considered more than the effect of events on the two complainants In addition the judge found that Emeralds need to investigate the 103 g complaint was a legitimate and substantial justification for seeking to learn the identity of the firebosses from Franks and Hoy Still the judge concluded it is necessary to strike a proper balance The judge said the companys need to investigate did not outweigh the harm caused to the protected rights of miners Further the judge noted that other miners were aware of the treatment of Franks and Hoy and that it is likely other miners could also be dissuaded from reporting safety violations in the future out of a fear of similar repercussions When miners make safety complaints to anyone when they insist on keeping confidential information related to complaints when they resist cooperating in an investigation that could reveal their reporting on another employee they are in the realm of activity protected under the Mine Act Operator actions adverse to miners in such situations can turn out to be harmful to the operators own legal interests P Q Michael Heenan and Margo Lopez are with the national labor employment and safety law firm Ogletree Deakins michael heenan@ odnss com margaret lopez@ ogletreedeakins com 62 PIT QUARRY November 2016 pitandquarry com