Rock Products

FEB 2018

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60 • ROCK products • February 2018 www.rockproducts.com LAW Mark Savit is senior counsel at Husch Blackwell. As a member of its Energy & Natural Resources group, Savit counsels clients in government investigations and regulatory matters, and litigates improper enforcement actions and whistleblower cases. He can be reached at mark.savit@ huschblackwell.com. Erik Dullea is senior counsel at Husch Blackwell. As a member of its Technology, Manufacturing & Transportation team, he focuses on administrative/regulatory law, with an emphasis on heavily regulated industries and government contractors. He can be reached at erik.dullea@ huschblackwell.com. Do Safety Complaints Allow Bad Deeds To Go Unpunished? By Erik Dullea and Mark Savit Part Two of Section 105(c)'s Two-Headed Monster – The Interference Complaint. Last month we discussed the legal tools operators can present to: (1) rebut a claim that an operator discriminated against a miner in violation of § 105(c) of the Mine Act and (2) the factors operators must prove if raising affirmative defenses to that discrimination claim. Now we are going to examine the second claim § 105(c) allows a miner to bring – that an operator interfered with the protected statutory rights of the miner in violation of § 105(c). Defining Interference Section 105(c)(1) of the Mine Act states that "[n]o person shall discharge or in any manner discriminate against … or otherwise interfere with the exercise of the statutory rights of any miner." Unlike discrimination claims, which commonly involve demotions, suspensions or discharge, Congress believed that interference was more subtle – promising ben- efits or threats of reprisal directed to miners. UMWA o/b/o Franks v. Emerald Coal Resources, LP, 36 FMSHRC 2088 (Rev. Comm'n 2014). Persistent, accusatory interrogations directed towards a miner who complained to MSHA are also prohib- ited interference. Facts and Procedures in Franks and Pepin The Franks case involved two hourly miners (Franks and Hoy) who told their UMWA safety representative that fire- bosses (also hourly miners) were not performing adequate preshift exams. An anonymous complaint was later made to MSHA about the exams. MSHA interviewed 34 people including Franks and Hoy, and surprisingly told Emerald Coal management that Franks and Hoy had knowledge about the inadequate exams. MSHA and management for the names of the firebosses, but Franks and Hoy refused to answer. At the end of the investigation, MSHA found no evidence of inade- quate preshift exams. Emerald Coal then conducted its own investigation, again asking Franks and Hoy for the names of the firebosses. Franks and Hoy again declined to answer, and were suspended for failing to provide information about serious safety allegations. Franks and Hoy filed discrimination claims under § 105(c) alleging they had been targeted and singled out for partici- pating in MSHA's investigation. In Franks ALJ Miller held there was substantial evidence that Emerald Coal discriminated against the miners. Emerald Coal appealed and the Commission affirmed ALJ Miller's decision but could not reach a majority on the ratio- nale behind the ruling. Two commissioners agreed with ALJ Miller, while two commissioners found there was no discrim- ination but instead interference with the miners' rights. The fifth commissioner would have overturned ALJ Miller's ruling. Emerald Coal appealed and the Court of Appeals vacated the Commission's ruling because it lacked a majority rationale. The case was eventually remanded back to ALJ Miller and settled after Emerald Coal filed for bankruptcy and closed the mine, with no clear guidance from the Commission on the legal test for employer interference. In the absence of guidance from a Commission majority, a separate interference claim was brought by MSHA, alleging a miner was intimidated by a supervisor for engaging in activ- ities protected by the Mine Act. Sec'y of Labor o/b/o Pepin v. Empire Iron Mining Partnership, 38 FMSHRC 1435 (ALJ 2016). ALJ Barbour presided in Pepin. On October 31, 2014, Pepin observed an alert on the mine's lightning detection system. Management concluded the alert was a false positive caused by snow. Pepin disagreed, and annotated the alert on the Take-5 cards on the next two shifts. MSHA arrived to investigate a complaint about miners working during the alert. MSHA made a negative finding, which the supervisor told Pepin. This discussion led to an argument between the supervisor and Pepin. The supervisor allegedly said "[we] knew you called MSHA" and Pepin was being watched by management. Pepin was never disciplined by Empire, so there is no adverse action and thus no discrim- ination claim. The Evolving Legal Test for Interference In Franks, the Secretary of Labor proposed a two-step test for the existence of interference: (1) a person's action can be

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