Secretary of Labor, Mine Safety and Health Admin. on Behalf of Keene v. Mullins, 88-1765

Decision Date03 November 1989
Docket NumberNo. 88-1765,88-1765
Parties, 1989 O.S.H.D. (CCH) P 28,721 SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION, on Behalf of Bobby G. KEENE, Petitioner v. Tolbert P. MULLINS, Prestige Coal Company, Inc., and Federal Mine Safety and Health Review Commission, Respondents.
CourtU.S. Court of Appeals — District of Columbia Circuit

Jerald S. Feingold, Atty., Dept. of Labor, with whom Dennis D. Clark, Counsel, Dept. of Labor, was on the brief, for petitioner. George R. Salem, Solicitor, Dept. of Labor, also entered an appearance, for petitioner.

Daniel R. Bieger, Atty., for respondents, Tolbert P. Mulins and Prestige Coal Co., Inc.

L. Joseph Ferrara, Gen. Counsel, Federal Mine Safety and Health Review Com'n, also entered an appearance, for respondent, Federal Mine Safety and Health Review Com'n.

Before WALD, Chief Judge, and BUCKLEY and SENTELLE, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

The Secretary of Labor, Mine Safety and Health Administration ("MSHA" or "Secretary"), on behalf of Bobby G. Keene, petitions for review of two of three holdings in a decision by the Mine Safety and Health Review Commission ("MSHRC" or "Commission"). 1 First, the Secretary seeks review of the Commission's holding that since S & M had already been found liable under Sec. 105(c) for unlawfully discharging Keene for complaining of illegal and hazardous working conditions, Keene could not also recover under Sec. 105(c) for Tolbert Mullins' 2 subsequent offer to reemploy him under the same illegal and hazardous working conditions because that offer was merely an outgrowth of S & M's prior unlawful discharge and not a separate violation of the Act. The Secretary also seeks review of the Commission's holding that Prestige is not a successor-in-interest to S & M and therefore is not jointly and severally liable to Keene for S & M's discriminatory discharge.

Because the Commission misinterpreted the law in holding that Mullins' conditional offer to reemploy Keene was part and parcel of Keene's original unlawful discharge and thus did not constitute a separately actionable violation of Sec. 105(c), we reverse its ruling on the reemployment issue. We affirm the Commission's conclusion, however, that Prestige is not a successor-in-interest to S & M and therefore is not jointly and severally liable to Keene for the original violation.

I. BACKGROUND 3

On February 13, 1986, Keene was dismissed from his job as an electrician and maintenance foreman with S & M for refusing to "bridge-out." Bridging-out is the practice of rewiring electrical equipment in order to bypass the equipment's disconnecting devices, thereby rendering the safety features ineffective. The next day, Keene filed a complaint with the MSHA alleging that he was discriminatorily discharged in violation of Sec. 105(c) of the Mine Act. 4

Keene subsequently phoned Mullins to try and settle the dispute. After failing to agree on a monetary settlement, Mullins asked Keene to return to his job. In response Keene explained that he would not return to his old position because he did not want to be "responsible for the [electrical] examination books and conditions that everybody was bridging-out inside the mines." J.A. 61. Keene further testified that when he requested a second-shift job operating a shuttle car, Mullins replied that only Keene's original job on the day shift was available and that he could not pay electrician's wages to someone not doing an electrician's job. Id. Mullins added that if Keene returned to his old job, he would not have to record everything he saw or found in the examination books. 5 Keene summed up the conversation as follows: "Mullins told me that I would have to come back to my original job under the original circumstances I was working under.... I told him that it was too big a hazard for me to come back as electrician on the day shift." J.A. 62-63.

In May of 1986, S & M shut down for economic reasons. Prestige commenced operations in November. While Mullins and his wife owned all of S & M, they own approximately 55% of Prestige. 6 Prestige's mine is located a mile and a half from S & M's mine and Prestige mines under its own coal lease. Prestige is a surface coal mining company while S & M mined underground. Consequently, Prestige employs different mining techniques and uses different types of machinery and equipment than did S & M. Finally, Prestige and S & M employ different supervisors at S & M and only two of Prestige's eight employees worked previously at S & M.

After a hearing, the Administrative Law Judge ("ALJ") found that Mullins was liable to Keene under Sec. 105(c) for conditioning his offer of reemployment to Keene upon Keene's willingness to engage in unlawful and hazardous activity. The ALJ also found that Prestige is a successor-in-interest to S & M and thus is jointly and severally liable for S & M's discriminatory discharge of Keene.

A majority of the Commission's panel reversed the ALJ on both rulings, explaining that the record is void of substantial evidence to support either of them. 7

II. ANALYSIS

The Secretary takes issue both with the Commission's legal conclusions regarding Mullins' offer of reemployment and with its legal and factual conclusions regarding Prestige's successorship liability.

The Secretary first contends that the Commission misinterpreted Sec. 105(c) when it concluded that Mullins' offer to rehire Keene under illegal and unsafe conditions did not constitute a violation of the Act separate from Keene's unlawful discharge for complaining of those same conditions.

The Secretary next contends that the Commission misinterpreted the law of successorship liability and that under the correct interpretation of the law, the record contains substantial evidence showing that Prestige is a successor-in-interest to S & M.

We will address each contention in turn.

A. Mullins' Conditional Offer of Reemployment to Keene

In its opinion, the Commission asserts that the facts compel it to overrule the ALJ's conclusion that Mullins transgressed Sec. 105(c) by refusing to rehire Keene except under illegal and unsafe conditions. Thus the Commission says that "substantial evidence does not support the ALJ's finding that Mullins ... unlawfully discriminated against Keene." J.A. 17 (emphasis added).

While the Commission's opinion is not a model of clarity, a careful reading of its discussion of the reemployment issue indicates that it overturned the ALJ on legal and not factual grounds: 8

While this offer [of reemployment under the same circumstances] did not resolve Keene's safety concerns, neither did it suggest any additional adverse action against Keene by Mullins.... We find no evidence that would cause the conversation to be characterized as anything other than an attempt by Keene and Mullins, in his role as President of S & M, to settle the original discrimination complaint.... Thus we view this conversation as an outgrowth of the original illegal discharge by S & M and not as a separate act of discrimination by Mullins individually. Under these circumstances, we hold that Keene's testimony regarding the crucial aspects of the conversation does not support a finding by the judge of a separate act of discrimination by Mullins individually.

J.A. 17 (emphasis added). 9

The first clue that the Commission's analysis hinges on its view of the law and not on its view of the facts is that the Commission found precisely the same dispositive facts as did the ALJ--that Mullins offered Keene his old job back under the conditions that prevailed prior to his original discharge except that he would "not have to report" the violations he found. J.A. 31-32. The second clue is that while the Commission emphasizes the nexus between an unlawful discharge and a refusal to rehire, the ALJ did not even mention the relationship. Id. Thus we read the Commission's opinion as articulating the following legal rule: An offer to reemploy a miner under illegal and dangerous conditions does not constitute a violation of Sec. 105(c) of the Act separate from a prior unlawful discharge for refusing to work under the same illegal and dangerous conditions and thus cannot be charged as an additional violation of Sec. 105(c).

We agree with the Secretary that this rule mischaracterizes the law. Moreover, because the Secretary reads the Mine Act differently than does the Commission, we are not bound by Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to accord great deference to the Commission's interpretation of the Act. 10

Mullins' offer to reemploy Keene under illegal and dangerous conditions transgresses the clear prohibition of Sec. 105(c) that "[n]o person shall ... interfere with the exercise of the statutory rights of any miner ...or applicant for employment because such miner or applicant for employment has [ ] made a complaint under or related to this chapter of an alleged danger or safety or health violation in a coal or other mine ..., or because of the exercise by such miner ... or applicant for employment on behalf of himself or others of any statutory right afforded by this chapter." (Emphasis added.) Keene was an "applicant for employment" when Mullins conditioned his job offer on Keene's working under illegal and unsafe conditions. Clearly, Mullins would not have felt compelled to condition his offer on illegal terms if Keene had not, while still employed at S & M, "made a complaint of" the unsafe conditions to which the illegal practice of bridging-out gave rise. The fact that S & M also violated Sec. 105(c) at an earlier point in time by interfering with Keene's statutorily protected rights while he was still a miner within the meaning of the Act does not insulate Mullins from liability for subsequently interfering with Keene's statutorily...

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