Secretary of Labor on Behalf of Wamsley v. Mutual Min., Inc.

Decision Date03 April 1996
Docket Number95-1212,Nos. 95-1130,s. 95-1130
Citation80 F.3d 110
Parties1996 O.S.H.D. (CCH) P 31,021 SECRETARY OF LABOR, on behalf of Cletis R. WAMSLEY, Robert A. Lewis, John B. Taylor, Clark D. Williamson, and Samuel Coyle, Petitioner, v. MUTUAL MINING, INCORPORATED; Federal Mine Safety and Health Review Commission, Respondents. MUTUAL MINING, INCORPORATED, Petitioner, v. SECRETARY OF LABOR, on behalf of Cletis R. WAMSLEY, Robert A. Lewis, John B. Taylor, Clark D. Williamson, and Samuel Coyle; Federal Mine Safety and Health Review Commission, Respondents.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Ellen Leslie Beard, United States Department of Labor, Washington, DC, for Petitioner. James Gerard Zissler, Jackson & Kelly, Washington, DC, for Respondents. ON BRIEF: Thomas S. Williamson, Jr., Solicitor of Labor, Steven J. Mandel, Deputy Associate Solicitor, United States Department of Labor, Washington, DC, for Petitioner. L. Anthony George, Jackson & Kelly, Denver, Colorado, for Respondent Mutual Mining.

Before WILKINSON, Chief Judge, and WIDENER and WILLIAMS, Circuit Judges.

Affirmed in part and reversed in part by published opinion. Chief Judge WILKINSON wrote the majority opinion, in which Judge WILLIAMS joined. Judge WIDENER wrote an opinion concurring in all but § III(B) of the majority opinion.


WILKINSON, Chief Judge:

The Secretary of Labor, on behalf of five miners, and Mutual Mining, Inc. ("Mutual") both petition for review of an order of the Federal Mine Safety and Health Review Commission. Mutual contends that the Commission erred when it found that Mutual's discharge of five miners violated the Federal Mine Safety and Health Act of 1977. 30 U.S.C. § 801 et seq. The Secretary, in turn, challenges the Commission's decision to deduct unemployment compensation from the miner's back pay awards. We find that substantial evidence supports the finding of a violation of the Mine Act. We further find, however, that the Commission erred when it ordered the deduction of unemployment benefits from the back pay award owed each miner. In sum, we affirm in part, and reverse in part the Commission's decision.


In December, 1992, Mutual discharged a number of employees of its Logan, West Virginia surface mine. Three of those employees--Robert Lewis, John Taylor and Cletis Wamsley--constituted the local union's safety committee at the Logan mine; Taylor served as its chairman. As part of their duties, Wamsley and Taylor participated in a safety inspection of the mine on December 17, 1992. After the inspection, the union safety committee presented a list of safety violations to mine management. This list included various fire hazards and numerous problems with pieces of equipment, including fuel leaks, missing parts, and defective safety alarms. The next day, the union submitted that same list to the Mine Safety and Health Administration (MSHA) and requested an inspection of the mine as authorized by the Mine Act. 30 U.S.C. § 813(g)(1).

The following Monday, December 21st, MSHA commenced an inspection of the mine. MSHA inspectors provided mine management with a copy of the complaint giving rise to the inspection, and the managers commented that the list of alleged safety violations accompanying the complaint was identical to the one submitted to them only days before by the union safety committee. MSHA ultimately issued numerous citations to Mutual as a result of its inspection.

On the same day that MSHA inspected the mine, Mutual laid off twelve employees without warning. All three members of the safety committee were laid off. Taylor, the chairman, was the most senior employee discharged. Five miners--the three members of the safety committee and Clark Williamson and Samuel Coyle--complained to the Secretary that their discharges violated the Mine Act. 1

After an investigation, the Secretary filed a complaint with the Commission alleging that Mutual's discharge of the miners violated the Mine Act. According to the Secretary, the discharge was in retaliation for the union's safety run and the ensuing MSHA inspection, both protected activities under the Act. 30 U.S.C. §§ 813(g)(1), 815(c)(1). Mutual denied the allegation, maintaining that the miners were laid off for legitimate business reasons. A Commission ALJ agreed with the Secretary. He ordered Mutual to provide back pay to each of the miners, reduced by the amount of unemployment compensation each had collected, and also assessed a civil penalty of $5000. Both the Secretary and Mutual petitioned for discretionary review with the Commission, 30 U.S.C. § 823(d)(2), which the Commission denied. The Secretary and Mutual then petitioned for review in this court. 2 30 U.S.C. §§ 816(a), (b).


We first address Mutual's contention that the discharge of the miners did not violate the Act. We conclude that substantial evidence supports the ALJ's ruling that the discharges were unlawful. See 30 U.S.C. § 816(a)(1).

The Mine Act recognizes that mine employees can play an important role in accomplishing the health and safety goals embodied in the Act. Consequently, when miners have a reasonable belief that a violation of the Act's health or safety standards exists, "such miner or representative shall have a right to obtain an immediate inspection by giving notice to the Secretary ... of such violation or danger." 30 U.S.C. § 813(g)(1). In order to protect miners who exercise these rights, an employer cannot "discharge or in any manner discriminate against ... [a] miner ... because such miner ... has filed or made a complaint under or related to this chapter." 30 U.S.C. § 815(c)(1). Protected complaints under the Act include those made to mine operators or to MSHA itself. Id.

There is ample evidence to support the Commission's conclusion that the layoffs in this case were in retaliation for activities protected under the Act. It is undisputed that mine managers knew that the union's safety run and subsequent complaint triggered MSHA's December 21st mine inspection. The layoff was unannounced and its timing, coming only hours after MSHA had started its inspection, was suspicious to say the least. Such circumstances raise an inference that the layoffs were motivated by an unlawful reason. See Donovan v. Stafford Constr. Co., 732 F.2d 954, 960 (D.C.Cir.1984). Mutual also laid off just enough miners to reach Taylor, the chairman of the union's safety committee and most senior miner discharged, without clearly violating the seniority provisions of its labor contract. Furthermore, the ALJ found that mine management was hostile to particular members of the union safety committee, especially Cletis Wamsley, and the committee's activities in general. Wamsley and the mine superintendent clashed on a number of occasions, and after listening to the parties' divergent accounts of the source of this friction, the ALJ concluded that "some of [the mine superintendent's] hostility towards Wamsley resulted from differences of opinion over safety matters." The ALJ also pointed to the mine superintendent's view that members of the safety committee were "giving him a hard time on safety matters."

Mutual claims that its discharge was motivated by economic reasons. It declares that just before the layoff it learned that its customer, Island Creek Coal Company, might drastically reduce its purchases. As the ALJ found, however, no testimony established a close proximity between the predicted demand reduction and the hastily executed December 21st discharge. The evidence, in fact, revealed that any reduction in demand was simply a return to normal levels from a temporary dramatic increase in demand in the fall of 1992. Because the same number of employees worked for Mutual prior to the boost in demand, a return to normal levels would not necessitate the discharge. Finally, as the ALJ noted, Mutual never offered any documentary evidence of a reduction in demand for its coal.

Mutual also maintained that the December 21st discharge was part of a long-planned realignment of employees from the day shift to the night shift in order to increase productivity. The ALJ observed, however, that if the discharge was part of a realignment, most of the workers should have been quickly recalled in their new "realigned" capacities, but this did not occur. The ALJ further found that "[g]iven the number of discussions Mutual Mining management had ... concerning the realignment, I do not believe that on December 21, 1992, that they gained surprising new information which caused them to institute a lay-off instead."

Mutual's version of events was simply rejected by the fact-finder in favor of the Secretary's. The "possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). The decision in this case has such support, and we decline to disturb it.


We next address the Secretary's claim. The ALJ, adhering to the Commission's decision in Meek v. Essroc Corp., 15 F.M.S.H.R.C. 606, 616-18 (1993), directed that the back pay award be reduced by the amount of unemployment compensation received by each miner. The Secretary argues that unemployment compensation should not be deducted from back pay awards. He asserts that deference is owed to his view, not that of the Commission, on the deductibility of benefits and that, in any event, his view of the Act is the sounder one.


The Secretary and the Commission thus flatly disagree on the question before us. Determining which interpretation is owed deference requires a close examination of the Act. Under the "split-enforcement" arrangement envisioned by the...

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