Wilson v. Fed. Mine Safety & Health Review Comm'n

• Decision Date: 21 July 2017
• Docket Number: No. 16-1250,16-1250
• Citation: 863 F.3d 876
• Parties: Michael WILSON, Petitioner v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, et al., Respondents
• Court: U.S. Court of Appeals — District of Columbia Circuit

863 F.3d 876

Michael WILSON, Petitioner

v.FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, et al., Respondents

No. 16-1250

United States Court of Appeals, District of Columbia Circuit.

Argued May 4, 2017

Decided July 21, 2017

Tony Oppegard argued the cause for petitioner. With him on the briefs were Wes Addington and Evan B. Smith.

Donna M. Farag, Student Counsel, argued the cause for respondent Jim Browning. With her on the brief were Erica J. Hashimoto, Director, and Luke Sullivan, Student Counsel.

Before: Rogers, Millett and Pillard, Circuit Judges.

Concurring opinion by Circuit Judge Millett.

Rogers, Circuit Judge:

The question presented by the petition is whether the Federal Mine Safety and Health Review Commission, upon declining to review a decision of an Administrative Law Judge, see 30 U.S.C. § 823(d)(1), erred in rejecting Michael Wilson's complaint of unlawful "interference" with his rights as a miners' representative under the Federal Mine Safety and Health Amendments Act of 1977 ("the Mine Act"), 30 U.S.C. § 815(c)(1). Wilson's challenge arises in the context of a Section 105(c) "interference" allegation by a non-employee representative of miners against a non-management employee. See 30 U.S.C. § 815(c). He contends that the Administrative Law Judge erred as a matter of law in assessing whether "interference" occurred and in applying the Commission's summary decision standard. For the following reasons, we deny the petition.

I.

Congress adopted the Mine Act "to protect the health and safety of the Nation's ... miners."

Thunder Basin Coal Co. v. Reich , 510 U.S. 200, 202, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994) (quoting 30 U.S.C. § 801(g) ). The Mine Act charges two separate agencies—the Secretary of Labor and the Federal Mine Safety and Health Review Commission—with "complementary policymaking and adjudicative functions." Prairie State Generating Co. v. Sec'y of Labor , 792 F.3d 82, 85 (D.C. Cir. 2015). The Secretary, acting through the Department of Labor Mine Safety and Health Administration ("MSHA"), has rulemaking, inspection, and enforcement authority, and the Secretary's reasonable interpretation of the Mine Act is "accorded deference by both the Commission and this Court." CalPortland Co. v. Fed. Mine Safety & Health Review Comm'n , 839 F.3d 1153, 1162 (D.C. Cir. 2016). The Commission is an adjudicatory body "independent of the Secretary." Prairie State , 792 F.3d at 85–86 (citing 30 U.S.C. §§ 815(d), 823 ).

Section 105(c)(1) of the Mine Act provides that "[n]o person shall ... interfere with the exercise of the statutory rights of any miner [or] representative of miners ... because of the exercise by such miner [or] representative ... of any statutory right afforded by [the Mine Act]." 30 U.S.C. § 815(c)(1). Miners' representatives have the statutory right of access to the company's records for purposes of examining whether hazardous conditions exist or violations of mandatory health and safety standards have occurred. See 30 U.S.C. §§ 813(h), 863(d)(1), (e), (f) ; 30 C.F.R. §§ 75.360(b), (h), 75.363(b), (d). The Secretary has concluded that "interference" occurs when:

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.

McGary v. Marshall Cnty. Coal Co. , 38 FMSHRC 2006, 2011 (Aug. 26, 2016); see also Franks v. Emerald Coal Res., LP , 36 FMSHRC 2088, 2108 (Aug. 29, 2014) (Chairman Jordan and Comm'r Nakamura, separate op.) (citing Sec'y Amicus Br. at 10). The Commission has not settled upon a test for interference. See McGary , 38 FMSHRC at 2012 n.11; id. at 2028 n.22 (Chairman Jordan and Comm'r Cohen, concurring in part and dissenting in part). In Wilson's case, the Administrative Law Judge ("ALJ") applied the Secretary's test, Wilson v. Browning , 38 FMSHRC 1161, 1163 (May 18, 2016) ("Dec."), and neither party has challenged that test. See Pet'r's Br. 27–29; Resp't's Br. 15 n.6.

Michael Wilson is a former employee of Parkway Mine, which is located in Muhlenberg County, Kentucky and operated by Armstrong Coal Company. In February 2014, Wilson began to serve as a representative of miners. Upon his retirement in May 2015, he continued to serve as a miners' representative. In a discrimination complaint filed with MSHA, Wilson claimed that on June 13, 2015, Jim Browning, who worked as a miner for Armstrong Coal at the underground Parkway Mine, violated Section 105(c) by interfering with his statutory right as a miners' representative to inspect the mine's examination books. Wilson requested that Browning be fined, required to undergo training, and ordered to cease and desist from future violations of the Mine Act. The Secretary, through MSHA, declined to file a complaint on Wilson's behalf, and Wilson sued Browning "in his own behalf before the Commission." 30 U.S.C. § 815(c)(3).

According to Wilson's complaint, there was a history of hostility by Armstrong management and some miners toward miners' representatives because of their protected activities and status as representatives of miners. Compl. ¶ 7. On June 13, 2015, Wilson was at the mine in a bath house reviewing the company's preshift/onshift examination reports when Browning walked up behind him, leaned over him, and "accused [him] of looking at the preshift/onshift book in order to find a violation and to have a citation issued against the company." Compl. ¶¶ 8, 9. Browning told Wilson that he "was taking money out of his (Browning's) pocket," and repeatedly told Wilson to go home, stating that other miners' representatives at the mine could perform inspections. Id. ¶ 9. Wilson told Browning it was his right as a miners' representative to look at the reports and he was not leaving. Id . "[A] few minutes" later, the mine superintendent intervened and escorted Browning out of the bath house. Id . ¶ 10. Wilson submitted an affidavit from Justin Greenwell, another miners' representative, who witnessed "the entire event" and stated that Browning "told [Wilson] that he had a ‘personal vendetta against the company,’ [and] told [Wilson] numerous times, in a loud voice, to ‘go home.’ " Greenwell Affid. at 1 (Mar. 23, 2016). Browning, an hourly worker at the mine, in turn, acknowledged that he had been suspended for the remainder of the day, lost a day's pay, and had been told by the mine supervisor not to question Wilson in the future. See Resp't Browning's Answers to Complainant's 1st Set of Interrogs. Question No. 2; Resp't's Resp. to Compl. of Discrimination ¶ 2.

The parties filed cross motions for a summary decision, see FMSHRC Rule 67, 29 C.F.R. § 2700.67(b), with Browning arguing that his actions did not fall within the scope of Section 105(c) and that what he was alleged to have said to Wilson was speech protected by the First Amendment to the Constitution. An ALJ granted Browning's motion and denied Wilson's. The ALJ concluded that although Browning "express[ed] [his] opinion in an agitated manner that Wilson may have perceived as threatening," Dec. at 1165, the record did not support an interference claim against Browning, id.

The ALJ looked to "interference" factors on which the Commission has relied: the positions of the parties; the tone and setting of the encounter; the duration of the conduct; and whether the subject was brought up repeatedly. See id. at 1166 (citing Gray v. N. Star Mining, Inc. , 27 FMSHRC 1, 11 (Jan. 12, 2005), and Multi-Ad Servs., Inc. v. NLRB , 255 F.3d 363, 372 (7th Cir. 2001) ). The ALJ first concluded that because "Wilson was not an employee at the mine and Browning had no authority over him, [ ] Browning's actions should be understood as having less coercive effect than in comparable cases like Gray where the [challenged] actions were done by a supervisor." Id. at 1166. The ALJ next concluded that although "Browning took an aggressive tone with Wilson that could have been interpreted as intimidating," its "effect was mitigated slightly by the fact that the encounter took place in the bathhouse in front of several witnesses." Id. "Finally," the ALJ concluded that "the encounter between Wilson and Browning was an isolated incident" and that "Browning was suspended as a result of his conduct, and so was unlikely to disturb Wilson again." Id. The ALJ noted Wilson had not alleged that any similar incidents involving Browning had occurred since June 13th, and it "is unlikely that Wilson views Browning as an ongoing threat that would dissuade him from working as a miners' representative." Id.

The ALJ then supplemented this analysis, stating that "[i]n addition to these factors, it is worth noting that the incident does not appear to have had an actual effect on Wilson's exercise of his rights as a miners' representative." Id. The ALJ viewed Wilson's persistence in examining the company's books notwithstanding Browning's words and conduct, as "persuasive evidence that a reasonable miner would not have been dissuaded from exercising his rights in this situation." Id. at 1167.

Wilson petitioned for review by the Commission. When the Commission declined review, the ALJ's decision became the final decision of the Commission pursuant to 30 U.S.C. § 823(d)(1). Wilson petitions for review by the court. Id. § 816(a)(1).

II.

Wilson contends that the ALJ erred in applying several factors relevant to the Secretary's test for when statutory interference under Section 105(c) occurs. He begins by asserting that the ALJ failed to "heed the bedrock principle that § 105(c) of the Mine Act must be liberally construed to effectuate the safety-enhancing purpose of the law." Pet'r's Br. 15. From there, he challenges the ALJ's application of several factors as well as the ALJ's interpretation of relevant precedent, and he contends...