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www.rockproducts.com ROCK products • August 2016 • 75 there are no areas of the mine affected, and that the miner failed to state a specific protected activity in his complaint. Mine Act Authorizes Investigation Into Every Complaint On the issue of the miner failing to indicate a protected activ- ity in his complaint, the majority of commissioners said that Section 105(c)(2) of the Mine Act authorizes MSHA to inves- tigate a complaint of any miner who believes that he has been discriminated against. "A miner's mere belief that he or she has been discriminated against and the filing of the MSHA complaint form expressing that belief are sufficient grounds to trigger an investigation of discrimination by the Secretary," the commissioners wrote. While the Mine Act is "silent on whether the miner's charging complaint must specifically identify a protected activity," the legislative history of the Mine Act is "clear that the listing of protected rights ... is intended to be illustrative and not exclusive that the scope of the protected activities be broadly interpreted by the Secretary." The three commissioners said the Mine Act requires the Sec- retary to investigate any complaint that the Secretary deems "appropriate," and "the statutory language and the legislative history together make clear that an investigation deemed appro- priate by the Secretary should be afforded to every miner who believes he has been discriminated against, and has filed a com- plaint with the Secretary alleging the discrimination." Jordan, Cohen and Nakamura also stressed there are cases where a miner does not actually engage in a protected activity, but an operator discriminates against the miner because of the operator's belief that the miner engaged in the protected activity. There are also cases where miners don't know their rights under the Mine Act, and don't know what to tell the MSHA investigator, even when discrimination has taken place. "Thus, in cases where a miner is uninformed or unclear about what constitutes a protected activity, but believes that he or she has been wronged by an employer, the Sec- retary's investigation into this 'belief ' serves as a necessary safety mechanism that ensures the miner has the opportu- nity to fully develop his possible claim of discrimination." The "threshold" for initiating an investigation "requires only the filing of a complaint with MSHA. It does not require that the Secretary establish protected activity before it may inves- tigate, because whether or not a protected activity exists is determined during the preliminary investigation, not before," the majority said. The company said MSHA should have provided a notice of the alleged protected activity, which must be done in the case of a civil lawsuit. However, under the Mine Act, the Secretary is only required to forward a copy of the complaint, as filed by the miner, to the operator in a pre-proceeding investigation such as this one. MSHA's Right to Non-Mandated Records The mining company also argued the records sought by the Secretary were not required records under the Mine Act. However, the Commission noted that it, and the 7th Circuit Court of Appeals, have upheld MSHA's right to request and review medical and personnel records not required under the Act to assure that mine operators are complying with Part 50 reporting requirements (see: 20 MSHN D-1492). This case is no different. "The Secretary has broad authority to conduct inspections and investigations under Sect. 103(a)... and Sect. 103(h) does not restrict the Secretary's access to records that are specif- ically required to be maintained by the Act and regulations." The 7th Circuit held that MSHA may require a company to produce "non-required records when the additional informa- tion would enable MSHA to perform its functions under the Act." In this case, "records that tend to establish or disprove an element of a prima facie case of discrimination generally are, in our view, reasonably required to enable the Secretary to perform his investigative function under Sect. 105(c) of the Act," according to the majority opinion. Like the Big Ridge case, the Commissioners said the request for the records was not intrusive, and would corroborate or undermine the miner's allegations of disparate treatment. The request for the six records was also "specific and clear enough that it was not unreasonably burdensome for the company to produce the targeted records." Failure to Abate Order The company also challenged MSHA's right to issue a 104(b) order where there is no section of the mine affected or there are no miners to withdraw as in this case. The commissioners said the Mine Act is silent on the issue, but "The Secretary's authority to issue a Sect. 104(b) failure to abate order is not predicated on proving that an affected area exists, but on showing that the underlying violation was not properly abated and that the time should not be extended." "While an operator's continued refusal to turn over records may not present an immediate safety risk, it is nonetheless hazard- ous in that it hinders the Secretary's investigations, which are intended to ensure operator compliance with the Act's safety measures," the majority wrote. "Consequently, the rapid abate- ment of all violations, not only those that present immediate physical hazards, is essential for the protection of miners. Oth- erwise, absent our approval of the Secretary's interpretation, MSHA would have no remedy or leverage to force timely com- pliance should an operator refuse to comply with a reasonable request for information in furtherance of an investigation." HOPKINS COUNTY COAL LLC., 6/24/2016, FMSHRC No. KENT 2009-820-R et al.; 23 MSHN D-1631