Boich v. Federal Mine Safety and Health Review Com'n

• Decision Date: 14 October 1983
• Docket Number: No. 81-3186,81-3186
• Citation: 719 F.2d 194
• Parties: 1983 O.S.H.D. (CCH) P 26,689 Wayne BOICH, d/b/a W.B. Coal Company, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, and Richard W. Neal, Jr., Respondents, and Raymond J. Donovan, Secretary of Labor, Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 194

719 F.2d 194

1983 O.S.H.D. (CCH) P 26,689

Wayne BOICH, d/b/a W.B. Coal Company, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, and Richard W. Neal, Jr., Respondents, and Raymond J. Donovan, Secretary of Labor, Intervenor.

No. 81-3186.

United States Court of Appeals, Sixth Circuit.

Argued May 27, 1982.

Decided Oct. 14, 1983.

R. Henry Moore argued, Rose, Schmidt, Dixon, Hasley, Whyte & Hardesty, Pittsburg, Pa., for petitioner.

Dennis D. Clark, James A. Lastowka, Federal Mine Safety and Health Review Com'n, Washington, D.C., Thomas A. Mascolino, U.S. Dept. of Labor, Arlington, Va., Morton Hollander, Chief, U.S. Dept. of Justice, Appellate Section, Civ. Div., Washington, D.C., for respondent Federal Mine Safety and Health Review Com'n.

Ann S. Rosenthal, Michael A. McCord, U.S. Dept. of Labor, Arlington, Va., for intervenor on behalf of respondent.

Stanley G. Burech, argued, St. Clairsville, Ohio, for respondent Neal.

Before ENGEL and CONTIE, Circuit Judges, and TAYLOR, District Judge. ^*

ENGEL, Circuit Judge.

In our earlier decision in these proceedings, Boich v. Federal Mine Safety & Health Review Commission, 704 F.2d 275 (6th Cir.1983), decided April 5, 1983, we applied to proceedings before the Federal Mine Safety and Health Commission the rationale of the First, Second, and Third Circuits' rejection in part of the so-called "Wright Line" test adopted by the National Labor Relations Board in Wright Line, a Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). In that decision, the National Labor Relations Board held that in mixed motive cases, the General Counsel had the burden of persuading the Board that anti-union animus contributed to an employer's decision to discharge an employee. Once this burden was satisfied, the employer could avoid a finding that it violated the National Labor Relations Act ("NLRA") only by demonstrating by a preponderance of the evidence that the worker would have been fired even if he had not been involved in the protected conduct. This test was derived from the standard set out in Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) for mixed motive cases involving constitutionally protected speech.

As indicated in our earlier reported decision, the Administrative Law Judge and the Federal Mine Safety and Health Review Commission had applied the Wright Line approach to these proceedings under the Mine Act, consistent with the Commission's prior ruling in Secretary of Labor ex rel. Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Rev.Comm.1980). The issue, therefore, was whether our circuit would approve the Pasula test or whether it would reject the test, just as the First, Second, and Third Circuits had rejected the Wright Line test. NLRB v. Wright Line, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982); NLRB v. New York University Medical Center, 702 F.2d 284 (2d Cir.1983), petition for cert. granted, --- U.S. ----, 104 S.Ct. 53, 77 L.Ed.2d --- (1983); Behring International, Inc. v. NLRB, 675 F.2d 83 (3rd Cir.1982) vacated, --- U.S. ----, 103 S.Ct. 3104, 77 L.Ed.2d 1359 (1983).

We essentially agreed in our earlier decision with the rationale of those three circuits. In so doing, we recognized that while their cases dealt with the impact of section 10(c) of the NLRA and section 7(c) of the Administrative Procedures Act, there appeared to be no fundamental reason for not applying the rule with equal force to the Mine Act, at least with respect to the burden of proof. We did not however deny enforcement altogether on this account:

We do not suggest that Neal necessarily was discharged for unprotected reasons. There is evidence on the record which could support a finding that Neal's discharge was based, at least in part, upon his protected activity. However, it is unclear whether the ALJ would have come to a different conclusion regarding W.B. Coal's proffered reasons had he applied the proper standard, and the evidence offered may create an issue of fact....

704 F.2d at 286. Instead, we remanded for a reevaluation of the evidence under "the proper standard," the one applied by the First, Second, and Third Circuits in the NLRA cases and derived not from Mt. Healthy, but from Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

The Secretary and Neal, after obtaining a stay of the mandate in these proceedings, petitioned our court for a reconsideration and rehearing of our earlier decision, calling our attention to the Supreme Court's decision in NLRB v. Transportation Management Corp., --- U.S. ----, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). Thereafter we called for and...