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Wilson v. Federal Mine Safety and Health Review Commission

United States Court of Appeals, District of Columbia Circuit

July 21, 2017

Michael Wilson, Petitioner
v.
Federal Mine Safety and Health Review Commission, et al., Respondents

          Argued May 4, 2017

         On Petition for Review of an Order of the Federal Mine Safety and Health Review Commission

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

          Donna M. Faraq, 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.

          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 (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, 791 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 ...


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