Rock Products

FEB 2018

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Page 64 of 85 ROCK products • February 2018 • 61 LAW 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. The Secretary's test does not require proof that a miner was actually deterred or prevented from exercising a right, or that the operator acted with a discriminatory motive or unlaw- ful intent. His test relies on Commission and National Labor Relations Act (NLRA) precedent. The two commissioners in Franks who adopted the Sec- retary's test analyzed the trial transcripts and concluded Franks and Hoy felt they were being coerced into fingering their fellow union members. The commissioners concluded reasonable miners, under those circumstances, would believe management was interfering with their statutory rights and that Emerald Coal's rationale was insufficient because man- agement had already obtained the names of the firebosses elsewhere. On remand, ALJ Miller adopted and applied the Secretary's test in full, and ruled against Emerald Coal. In Pepin, ALJ Barbour analyzed the Secretary's test and his assertions regarding the burdens of proof. Unlike ALJ Miller and the two commissioners above, ALJ Barbour did not agree with all of the Secretary's assertions. ALJ Barbour noted the NLRA's and Mine Act's statutory pur- poses are different, thus NLRA precedent was not necessarily helpful. While ALJ Barbour agreed that the Secretary does not need to prove "actual interference" in order to prevail, he disagreed that absence of improper motive by the operator was acceptable. ALJ Barbour's interference test required proof that (1) the operator's actions can be reasonably viewed, from the perspective of the protected class, under the totality of the circumstances, as tending to interfere with the exercise of protected rights, and (2) the operator's actions were moti- vated by the exercise of protected rights. Commission members have spoken favorably of ALJ Barbo- ur's analysis in Pepin, but the Commission has not yet adopted a final legal test for interference, and there is no consensus amongst the ALJs. Hence, until the Commission rules on a case that allows it to provide clear guidance, Franks and Pepin need to be viewed as cautionary tales. The important takeaway for operators is that interference claims are judged based on how the actions are viewed by a reasonable miner based on surrounding circumstances, and there may be no requirement for operators to have a motive to interfere with the miners' rights under the Mine Act. 3 Days | Live Demonstrations | 500 Exhibitors | Free Entry 26 – 28 June | Hillhead Quarry | Buxton | Derbyshire | UK Register free today at #Hillhead18

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