By Erik Dullea and Mark Savit
This is the first part of a two-part series. –Ed.
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 discovers 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 discrimination/retaliation complaints under § 105(c) of the Mine Act?
The Mine Act’s Prohibition on Discrimination/Retaliation
Section 105(c) prohibits employers from discharging, discriminating in any manner against or interfering with miners exercising their statutory rights. 30 U.S.C. § 815(c)(1). Examples of miners exercising their statutory rights include filing complaints under the Mine Act, notifying operators, operators’ 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 protected 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 operator 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 retaliation 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, reasonableness, 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) that no protected activity occurred or (2) that the adverse action was in no part motivated by the protected activity.
The challenge operators face here is that “direct evidence of motivation is rarely encountered; more typically, the only available evidence is indirect.” Sec’y of Labor OBO Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Rev. Comm’n. Nov. 1981). These are not the only options. Operators can also make an affirmative defense and prove they were motivated solely by the miner’s unprotected activity. Bane v. Denison Mines (USA) Corp., 39 FMSHRC 897, 907 (ALJ Apr. 2017).
Keep in mind that affirmative defenses shift the burden of persuading the ALJ from the miners to the operators. It is not enough for the operators to show that the miners deserved to be fired for their unprotected activity. The operators must prove that the justifications were plausible, and that the operators considered the miners deserving of discipline solely for the infraction and that they would have disciplined the miners regardless of any previous protected activities. To persuade the ALJ, operators must show that the justifications were not just a pretext to mask the protected activity. Id.
Factors to Consider When Rebutting Allegations or Proving the Affirmative Defense
The Commission recognizes that pretext can exist when the justifications are weak, implausible or at odds with the operators’ normal business practices. Sec’y of Labor OBO Price v. Jim Walter Res., Inc., 12 FMSHRC 1521 (Rev. Comm’n. Aug. 1990). The miners can challenge the justifications by showing they have no basis in fact, did not actually motivate the discipline or were insufficient to support the level of discipline. Bane, 39 FMSHRC at 908.
Indirect, circumstantial evidence of the operators motivation include: (1) proximity in time between the protected activity and the adverse action; (2) operators’ knowledge of the protected activity; (3) hostility or animus toward the protected activity; and, (4) operators’ disparate treatment of similar infractions. Chacon, 3 FMSHRC at 2510. Addressing these factors is extremely fact-specific and will vary with each case.
By way of example, in Sec’y of Labor OBO Hamilton v. American Mining & Tunneling 38 FMSHRC 2319 (ALJ Aug. 2016) and Kreimier v. Coeur Alaska, Inc., 39 FMSHRC —-, WEST 2017-80-DM (ALJ Nov. 2017) the operators persuaded the ALJ that the Chacon factors were in favor of the operators. In those cases, the operators rebutted any “proximity in time” links and any allegations of hostility towards the protected activities. Perhaps most important, the operators showed there was no disparate treatment of the complainants as compared to previous disciplinary events.
Bottom line: There are virtually no “black and white” situations, but operators who consistently enforce their policies and document those actions, are in the best position to defend themselves from discrimination complaints.
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 [email protected].
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 [email protected].