Rock Products

JAN 2018

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50 • ROCK products • January 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. Most operators have at some point in their history faced the following dilemma: Company discovers miners have been doing something improper. The alleged infraction justifies disciplining the miners. The company investigates and dis- covers the miners raised safety concern(s) in the past but miners' concerns are unrelated to the improper activity. The Human Resources and Safety departments ask whether the contemplated discipline exposes the company to discrimi- nation/retaliation complaints under § 105(c) of the Mine Act? The Mine Act's Prohibition on Discrimination/Retaliation Section 105(c) prohibits employers from discharging, dis- criminating in any manner against or interfering with miners exercising their statutory rights. 30 U.S.C. § 815(c)(1). Exam- ples of miners exercising their statutory rights include filing complaints under the Mine Act, notifying operators, opera- tors' agents, or the miners' representatives of alleged dangers or safety or health violations in the mine, or testified or is about to testify in any such proceeding. See id. Miners who believe their rights under § 105(c) have been violated can file complaints with MSHA, and if they were terminated, § 105(c) (2) requires the miners be temporarily reinstated if MSHA's investigations show the complaints were not "frivolously brought." 30 U.S.C. § 815(c)(2). The legal framework to establish a discrimination violation requires the miner to show that he or she engaged in pro- tected activity, and thereafter, suffered adverse employment actions that were motivated at least in part by the protected activity. McNary v. Alcoa World Alumina, LLC, 39 FMSHRC 433, 437 (Rev. Comm'n Mar. 2017) (emphasis added). The examples of protected activity are broad, and with the trigger for discrimination being the protected activity partially motivated the adverse action, HR and Safety's concerns about a § 105(c) complaint are well founded. In these circumstances, operators ask how do they avoid receiving a complaint? The only way to guarantee not receiving discrimination complaints is not to take any action against the miners who committed the infraction. If the company takes no action, the miners do not suffer any adverse action. However, that solution is as impractical as preventing airlines from flying, to guarantee an airline disaster will not occur. Moreover, failing to discipline a miner for an infraction can be counter-productive. Inaction may lead other employees to believe they can ignore company policies designed for their own safety, or for the efficient operation of the business. The Mine Act Is a Safety Statute, Not a Guaranteed Employment Statute The potential for a complaint should not discourage an oper- ator from properly managing its workforce, and the Mine Act does not preclude it either. The Mine Act and the Federal Mine Safety and Health Review Commission are charged with protecting miners from retali- ation who act in the interest of mine safety, but the Mine Act and Commission were not intended to guarantee permanent employment. Administrative Law Judge ("ALJ") Simonton recently reiterated the boundaries of the Commission's and its ALJs' roles regarding labor-employment matters: (The) Commission does not sit as a super grievance board to judge the industrial merits, fairness, reason- ableness, or wisdom of an operator's employment policies except insofar as those policies may conflict with rights granted under section 105(c) of the Mine Act. Sica v. Jacobs Field Services, 37 FMSHRC 442, 447 (ALJ Feb. 9, 2015). Rebutting the Complaint's Allegations and Affirmative Defenses Operators can defeat a discrimination claim by showing (1) Do Safety Complaints Allow Bad Deeds To Go Unpunished? By Erik Dullea and Mark Savit This is the first part of a two-part series. –Ed.

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