[00:00:00] Speaker 00:
Case number 16-1250, Michael Wilson, Petitioner versus Federal Online Safety and Health Review Commission at L. Ms.

[00:00:07] Speaker 00:
Obergaard for the petitioner, Ms.

[00:00:09] Speaker 00:
Farag for the respondent, Jim Browning.

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Council, members of the court, may it please the court.

[00:00:50] Speaker 08:
My name is Tony Oppegard.

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And along with my co-counsel, Wes Addington, we represent the petitioner, Michael Flip Wilson.

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This case involves the review of an agency decision, the Federal Mine Safety and Health Review Commission, in which, in our view, the ALJ improperly granted summary judgment to the respondent, Jim Browning.

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And we believe that a remand to the commission is required.

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Because mining is an ultra-hazardous occupation, and because miners, Congress wanted miners to be involved in matters that affect their own safety and health at the mine, they created a position called a representative of miners, or more commonly referred to as a miner's rep.

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And also in enacting Section 105C1 of the Mine Act, Congress made it unlawful to discriminate against or interfere with the exercise of any statutory rights of a miner or a miner's rep because that miner or miner's rep was engaged in safety-related activities.

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So your first point here is that the ALJ misapplied the statute

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I think she used the correct standard for interference under the statute.

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However, she gave four reasons why she thought this case did not rise to the level of interference.

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Of those four reasons, two of them are flat out wrong under commission case law, and the other two have no support in the case law and are very dubious.

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And that's what I'm getting at.

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Are you suggesting that the ALJ misinterpreted the MINE Act itself

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in applying Commission President, et cetera, or not to what she found to be the facts of this case.

[00:02:44] Speaker 08:
Yes, she did.

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And she also did not mention the legislative history, which this Court has a long history with in terms of MINAC cases, talking about how

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the Mine Act and 105C specifically, grew out of a series of tragic mine disasters, and that the Act is supposed to be liberally construed to affect or promote safety and health.

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And what the ALJ did here is she took a very restrictive view or interpretation of what constitutes interference under the Mine Act, which we believe is at odds with the purpose of the Act.

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So no one, is this correct, that no one challenged the ALJ's reliance on the Secretary's definition of interference?

[00:03:36] Speaker 08:
That's correct.

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It was not challenged below by counsel from Mr. Browning and has not been challenged on appeal.

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Right.

[00:03:42] Speaker 03:
So when you say the ALJ

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Well, this would take us to the four reasons why she said interference didn't, this case didn't rise to the level of interference.

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So the standard judge

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is set forth in the Franks and Hoy cases and the McGarry and Bowersox cases that we cited in our briefs.

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And that's interference occurs when a person's action can reasonably be viewed from the perspective of the member of the protected class and under the totality of the circumstances as tending to interfere with protected rights, which is a pretty liberal, broad standard.

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And if there is a finding of interference, it can only be overcome if the person justifies that action with the legitimate and substantial reason whose importance outweighs the harm caused to the exercise of protected rights.

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So I read your argument in part to be that given the facts found, it followed

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necessarily that there was interference.

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But some of the facts found were simply erroneous based on the evidence for the ALJ.

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She had a couple of findings of fact that were not supported by substantial evidence.

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Yes, she did.

[00:05:14] Speaker 06:
Of course, she did this on summary judgment.

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She did.

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All right, so she shouldn't be finding facts.

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They're supposed to be taking all the facts in the light most favorable.

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So that's, are you saying that she found, when you say found facts, you mean she didn't take the facts in the light most favorable to Wilson?

[00:05:29] Speaker 08:
Yes, that is true.

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She recited a couple of facts that were in the light most favorable to Mr. Browning as opposed to Mr. Wilson.

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Specifically?

[00:05:38] Speaker 08:
She found that it was unable to be determined who was the aggressor.

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In other words, that there was an altercation.

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Well, in the light most favorable to Mr. Browning or Mr. Wilson, there was no altercation.

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Mr. Browning just came up.

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leaned over his chair where he was sitting going through these safety reports, got within 18 inches of him and started screaming at him that, you know, you don't belong here.

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You need to close that book and go home.

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He said that several times.

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You look vendetta against the company.

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You're trying to find a violation so that Emerson gives a citation to the company.

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You're taking money out of my pocketbook.

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And he went on and on until finally the superintendent came in the bath house, saw what was going on, went over and removed Mr. Browning from the bath house and suspended him for the rest of the shift.

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And these four findings that Judge Miller said that it doesn't rise to the level of interference, like I said, two of them contradict Commission case law.

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The first one is she said that Browning's conduct was, quote unquote, mitigated slightly because it took place in the bathhouse in front of several witnesses, which that's really difficult to understand because

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It's much worse to berate somebody and scream at them in front of other minors than it is to do it in private.

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And the supplemental case that we sent to the court was just issued on March 28.

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McNary versus Alcoa World Illumina held that threatening a minor's rep in front of minors can have a chilling effect on the raising of safety complaints.

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any precedent before McNary at the time the ALJ was ruling?

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Not directly on point.

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There really are very few cases, Judge, that have to do with minors reps, particularly non-employee minors reps.

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Now, in that case, Mr. McNary was a minors rep, but he was an employee.

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The person who threatened him or harassed him was a member of management, unlike Mr. Browning here.

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But still, I think it's instructive.

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The second finding that's contrary to case law is that the judge said she actually cited the correct law that the issue is not whether the harassment succeeded or failed.

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She cited that, but then said, nonetheless, I find that because Mr. Wilson continued to act as a minor threat,

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that that's one of the reasons that it didn't rise to the level of interference.

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And again, we're just at the summary judgment stage.

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We don't know what he would have testified at trial about.

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Did he skip going to the mine some days because of this harassment?

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We just know he continued as a minor threat.

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The third

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Are you saying that's a fact issue or it's also a law issue?

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Is it right under the law to say you're not interfered with as long as you persevere?

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That's a legal issue.

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And the commission has said that's not the test.

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Whether you persevere is not the test.

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It's when a reasonable minor field deterred.

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A reasonable minor's rep, in this case.

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Whether or not that would have a tendency to, you know,

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curtail his exercise of protected rights.

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The third finding she made was that this was a single act of harassment and saying that it didn't.

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It was an isolated incident.

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But there's no support for this in commission case law.

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This isn't a hostile work environment case.

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This isn't a constructive discharge case where courts look at cumulative behavior.

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Moreover, single acts of discrimination are regularly found to constitute violations 105c.

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So, for example, if you have a threat or reprisal, a single threat or reprisal, judges don't say, well, it's only one threat.

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We're going to give the guy a free pass because he only did it once.

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It doesn't rise to the level of discrimination.

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Nor, if a written warning is issued to a minor, does the judge say, well, it's only written warning, therefore it doesn't rise to the level of discrimination?

[00:09:54] Speaker 06:
And just to be clear, again, this sounds like you're identifying legal error in what the ALJ did.

[00:10:00] Speaker 06:
You're not disputing that this was a single act.

[00:10:03] Speaker 06:
No, I'm not.

[00:10:04] Speaker 08:
But to say that that's a reason why it didn't rise to the level of interference, we believe, is error.

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And then the final point that she made was that Browning's actions had a less coercive effect on Wilson because Browning was an hourly employee who had no authority over Wilson.

[00:10:23] Speaker 08:
He had no economic power over him.

[00:10:26] Speaker 08:
Well, that's true.

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He was an hourly employee.

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However,

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Um, there's no case law to support that finding that that's a reason to say interference didn't occurred.

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And the more important point is that management also had no authority over Mr Browning.

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They could not discriminate against him.

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He was not an employee.

[00:10:48] Speaker 07:
No, but they did.

[00:10:49] Speaker 07:
I mean, it does seem mitigating here that the employer did take action against Mr Browning.

[00:10:55] Speaker 07:
I mean, you would have a stronger case

[00:10:57] Speaker 07:
I'd take it if that had not occurred.

[00:11:01] Speaker 08:
I don't think it affects whether or not interference occurred, Judge.

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I mean, the company suspended him for the rest of the day.

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But this is a company that we have had this series of litigation against.

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Mr. Browning's counsel argued in their brief that the company can self-police itself.

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There's no need for...

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It shows that the MINE Act works.

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This was in their argument that there was not a cause of action.

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In any event, there's decades of case law about how companies have discriminated against minors, and minors perhaps are interfered with their rights.

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But you would agree that it's part of what, if you look at the totality of circumstances to ask, would

[00:11:49] Speaker 07:
this conduct tend to deter an objective minor's representative, it would be mitigating if everyone around said, hey, Browning, Browning, out of line, and then the employer comes in and says, Browning, totally out of line, you go home.

[00:12:03] Speaker 07:
That's a different case from a case where everyone around is cheering, there's a manager standing in the doorway, the manager smiles, no discipline is taken, right?

[00:12:13] Speaker 08:
Perhaps you could argue that, Judge, but we don't have that facts in this case where everybody's saying, hey, Browning, you were out of line.

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There's no evidence of that.

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We had a previous case which we cited, the Greenwell case, which was another minor and another hourly employee harassed him and threatened him.

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And the court in that case, the judge in that case, found that Mr. Oglesby was his name, was a person for purposes of 105C interference.

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The point I'm trying to make is that case settled, but harassment continued with other minors.

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So the company did not do the right thing in that case.

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They didn't go to the workforce and say, if anybody harasses or interferes with a minor, you're going to have the wrath of the company down on you, because harassment continued.

[00:13:02] Speaker 06:
What I'm curious about is under this statute, what remedy is available as I read the statute

[00:13:20] Speaker 06:
I don't see that there's any legal authority for any of the remedies that Mr. Wilson is seeking against Mr. Browning.

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And so I'm trying to figure out how.

[00:13:34] Speaker 08:
Well, Judge, 105C3, which is the provision that we brought this under after M should turn down the case for prosecution, is the relief provision.

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And it says the commission can order any relief as appropriate, including but not limited to, et cetera.

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So first of all, it's going to help me if you actually use the USC sites.

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And so are you talking about 815?

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815C3.

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So it says that as appropriate, but then at the end it says,

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with specificity, violations of paragraph 1, which is your interference, are subject to the provisions of 818 and 820.

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That deals with operators.

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818, injunctions only available against an operator or an agent.

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And you don't allege that he was certainly not an operator, and there's no allegations that he was an agent.

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That's correct.

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So you can't get an injunction.

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Correct.

[00:14:30] Speaker 06:
which would include a cease and desist order as a form of injunction?

[00:14:35] Speaker 08:
There are regularly cease and desist orders issued by Commission ALJ.

[00:14:38] Speaker 06:
I'm sure they are against operators.

[00:14:41] Speaker 08:
Yes.

[00:14:41] Speaker 08:
Well, against minors, against anyone.

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Section 818 is an injunction in federal court, I believe.

[00:14:49] Speaker 08:
A.L.J.'

[00:14:50] Speaker 08:
's due.

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A.L.J.'

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's, for instance, in the case that's most clearly on point in this case, the Penley decision.

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In that case, the A.L.J.

[00:14:58] Speaker 08:
fined Mr. Creighton, who was a non-management employee who harassed Mr. Penley,

[00:15:06] Speaker 08:
who was a non-employee miners' rep, the same situation that we have here.

[00:15:10] Speaker 08:
The judge fined him, Mr. Creighton, $250, and the Secretary had proposed a civil penalty of $500 against Mr. Creighton in that case.

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So the secretary had turned the case down for prosecution.

[00:15:25] Speaker 08:
Actually, Mr. Addington and I had litigated the case.

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We had won it in front of the judge.

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And because the secretary had turned it down, the ALJ then goes back to the secretary and says, I found a violation of 105C.

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You have to propose a civil penalty.

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They proposed $500.

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And I think 19,500 against the company.

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In any event, the judge reduced that to 250.

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But he did fine Mr. Creighton.

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What I'm trying to figure out is, first of all, you're in federal court now.

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And we have to figure out whether you're aggrieved in a way that this court can remedy you.

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And civil penalties.

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Spring Court has said, at least when it's a one-off instance, like you can see that this is, there's no prospect of recurrence by Mr. Browning, are not something that are an injury, is an injury to your client.

[00:16:14] Speaker 06:
Spring Court has said no on that.

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There's no basis for injunctive relief because there's no, you said it's a single instance.

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There's no allegations in your complaint anywhere that they're concerned that Mr. Browning is going to do this again, and you haven't sued the company.

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And so I'm trying to figure out what relief, and attorney's fees don't give you standing, so I'm trying to figure out what relief there is.

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And you can't get something against a company, a company's not a party.

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So as I go through your complaint, there's nothing there that is available through judicial review.

[00:16:47] Speaker 08:
Well, Judge, what we... Well, first of all, that issue hasn't been raised below.

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And if you look at the judicial review section of the Act, that's Section 106A, I think it'd probably be 816A1.

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It says that no issue that has not been urged before the commission shall be considered by the court.

[00:17:08] Speaker 06:
Yeah, but this goes to whether...

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what your standing is in this court or what your redressability is in this court is a jurisdictional issue that we can be decided.

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And secondly, this is a type of issue that the commission has no interpretive authority over.

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The commission is just an adjudicator like a district court, so I don't think that is going to help you, that argument.

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And he certainly did object below saying, look, I'm a minor, I'm a minor, you can't do this stuff to me.

[00:17:42] Speaker 08:
I don't think that went, I do not think that went to the remedy, and I don't think he ever did object below to say there's no remedy against me.

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What we ask for in our complaint, and this is consistent with case law for decades about what the commission can do, is we ask for a cease and desist order.

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You cannot interfere with Mr.

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Wilson when he's performing his duties as a minor rep.

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Two, we ask that training be provided, that he be required to take training in statutory rights of minors.

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And that happens all the time in these cases.

[00:18:14] Speaker 06:
Can we do these one?

[00:18:14] Speaker 06:
Okay, one at a time.

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So cease and desist.

[00:18:16] Speaker 06:
There's nothing that's described in the statute as abating.

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behavior or harm.

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There's nothing to abate if he's not.

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There's no ongoing threat.

[00:18:24] Speaker 06:
There's nothing to cease.

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There's nothing to desist.

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It was a one-off time instance by this fellow.

[00:18:29] Speaker 08:
We never agreed there was no ongoing, Judge.

[00:18:31] Speaker 06:
You just told me it was a single instance.

[00:18:32] Speaker 06:
When I asked you that question, you said you agreed this was not an ongoing harm.

[00:18:35] Speaker 08:
I think we misunderstood each other, Judge.

[00:18:37] Speaker 08:
It was a single instance

[00:18:39] Speaker 08:
that brought rise to this case, but can you say that it's incapable of happening again?

[00:18:45] Speaker 08:
No, you can't say that.

[00:18:45] Speaker 06:
Well, some of what I can say is whether you've alleged it or shown it, and you haven't alleged it and you haven't shown it, and you agreed when I asked you that this was a single instance situation.

[00:18:54] Speaker 08:
Certainly, I don't mean to argue with you, Judge.

[00:18:56] Speaker 08:
I don't think we can allege in a complaint of discrimination or interference that it's an ongoing violation.

[00:19:04] Speaker 08:
It was a single, discreet incident.

[00:19:06] Speaker 08:
What I'm saying to you is

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I don't think we can say that it's never going to happen again.

[00:19:12] Speaker 06:
By Mr. Browning?

[00:19:13] Speaker 08:
By Mr. Browning, certainly.

[00:19:14] Speaker 06:
Can you say that, do you have any basis for thinking that it will recur?

[00:19:18] Speaker 08:
Yes, because Mr. Wilson has been consistently harassed ever since he became a minor step.

[00:19:25] Speaker 07:
By Mr. Browning?

[00:19:26] Speaker 08:
one instance by Mr. Brown.

[00:19:28] Speaker 07:
So the difficulty, I mean, I think you cited cases like the Greenwell case and other cases that involve persons like individual employees, but the employer is also in the case.

[00:19:43] Speaker 07:
And I think there's a different sensitivity to an employer sending a signal, I countenance this, or I tolerate this, or I do this kind of interference where

[00:19:55] Speaker 07:
it needs to be made clear to the ongoing employees of that employer that their employer understands the labor law.

[00:20:03] Speaker 07:
That calculus seems a little different when you're talking about an isolated employee.

[00:20:08] Speaker 07:
Do you have any cases, any federal court cases that involve any remedy against an individual employee violating the Mine Act where the employer is not also a defendant?

[00:20:24] Speaker 08:
No, Judge.

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And I don't believe there are.

[00:20:26] Speaker 08:
There's there's virtually no case law in this area.

[00:20:29] Speaker 07:
How about a case where federal court case where the employer is in but where there's a relief that's

[00:20:35] Speaker 07:
that's brought to bear against the employee employee.

[00:20:39] Speaker 08:
I don't know of any federal court cases.

[00:20:41] Speaker 08:
There are commission cases and we cited those in our brief and that long side of all the cases over the years in which accidents have been brought against individuals as persons under 105 clear that long list.

[00:20:53] Speaker 06:
Is that a long list of only minors or cases where both the minor and the company were involved?

[00:20:58] Speaker 08:
Those were cases where a person was a defendant or a respondent.

[00:21:03] Speaker 08:
And in some cases, they were management personnel.

[00:21:06] Speaker 08:
In some cases, they were employees.

[00:21:10] Speaker 08:
And we cited a couple of cases, and these are just ALJ decisions, Judge Use or Not Federal Court decision, where the judge issued cease and desist orders against management agents and all employees.

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one case was Boogerman mining that we cited.

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It's in a footnote on that long string.

[00:21:28] Speaker 08:
But there are cases where the commission has has issued what you would call injunctive release, cease and desist orders, which is what we what we sought against Mr Browning.

[00:21:38] Speaker 08:
When this when we filed this case,

[00:21:41] Speaker 08:
What we were seeking was for Mr. Browning to stop harassing Mr. Wilson and also for him to have to take training.

[00:21:50] Speaker 08:
And it's very common in 105C cases, for instance, for companies to be ordered, you have to allow them to train all your management personnel and statutory rights of mind.

[00:22:00] Speaker 06:
Yeah, I think we're talking, I think it's a different issue.

[00:22:02] Speaker 06:
I mean, I'll give you, if it's a manager, a supervisor,

[00:22:09] Speaker 06:
or an agent in any form, if anyone thought management had put Mr. Browning up to this.

[00:22:15] Speaker 06:
My question is when you're talking about someone who's just an ordinary minor communicating to his minor representative about his views of his representative's work without any argument.

[00:22:34] Speaker 06:
that management was behind it, or he was their agent, and he has no supervisory authority whatsoever.

[00:22:40] Speaker 08:
I think there's two problems with that.

[00:22:43] Speaker 08:
Number one is he wasn't communicating his views.

[00:22:47] Speaker 08:
He was just flat out harassing him.

[00:22:49] Speaker 06:
What's the difference between saying, you're hurting me, the way you're doing your job is bad, it's hurting me, it's hurting my economics, I don't like the way you're doing it?

[00:22:58] Speaker 06:
Stop.

[00:22:59] Speaker 06:
People say that to their representatives all the time.

[00:23:02] Speaker 08:
was physically hovering over him, which the judge found was threatening, could have been perceived as intimidating, could have been perceived as threatening.

[00:23:12] Speaker 08:
That's a quote from the judge.

[00:23:13] Speaker 08:
We think any time that ALJ says that someone's behavior could be perceived as threatening, that's interference.

[00:23:22] Speaker 08:
And what we're afraid of is that if minors get a free pass,

[00:23:27] Speaker 08:
What's to stop any miners?

[00:23:29] Speaker 08:
Miner's reps are not popular at non-union mines in America.

[00:23:33] Speaker 08:
There's very few at non-union mines.

[00:23:36] Speaker 08:
This was a non-union mine.

[00:23:38] Speaker 08:
Mr. Wilson was not popular because he was a miner's rep traveling with inspectors on a regular basis.

[00:23:44] Speaker 08:
If we say, it's okay, you got a free bite of the apple because you only did it once, you can harass someone, you can scream at them, you can try to prevent them from exercising their rights.

[00:23:55] Speaker 08:
Tell them, leave the mine property, go home.

[00:23:57] Speaker 06:
Well, no one's talking about actually preventing him.

[00:24:00] Speaker 06:
They're talking here about

[00:24:02] Speaker 06:
people expressing their opinions to the minor's representative in a raised voice and to their face.

[00:24:10] Speaker 06:
That's all.

[00:24:11] Speaker 06:
If he actually physically did something.

[00:24:13] Speaker 08:
He was within 18 inches, I understand.

[00:24:15] Speaker 08:
He was in his face.

[00:24:16] Speaker 08:
We would have a different case if Mr. Browning had stood at the mine with a placard and said, we don't want Flip Wilson as a minor's rep.

[00:24:24] Speaker 08:
That's not interference.

[00:24:25] Speaker 08:
If he had sent him a letter, said, Flip, we don't want you as our minor's rep.

[00:24:30] Speaker 08:
We have other guys here.

[00:24:32] Speaker 08:
You're hurting the company.

[00:24:34] Speaker 08:
That's pure speech.

[00:24:35] Speaker 08:
That's First Amendment.

[00:24:36] Speaker 08:
That's not interference.

[00:24:37] Speaker 08:
Even if he had seen them at Walmart and said, Flip, I really got a problem with you being the minor's rep who don't want you, we would not have filed a case.

[00:24:45] Speaker 08:
But Mr. Wilson was in the midst of his duties.

[00:24:48] Speaker 08:
He was reading the pre-shift, on-shift reports, looking for violations so that he can inform other miners of safety hazards underground.

[00:24:57] Speaker 08:
When Mr. Browning came up, started harassing him, did not speak about mine safety and health, that he's not interested in mine safety and health.

[00:25:05] Speaker 08:
He was interested in thinking that I could lose money if you point out to EMCHA citations or violations that result in citations which result in fine.

[00:25:15] Speaker 08:
He's interested in himself.

[00:25:18] Speaker 08:
He had not signed for Mr. Wilson to be his minors rep.

[00:25:22] Speaker 08:
He had never discussed any safety or health issue with Mr. Wilson.

[00:25:25] Speaker 06:
It doesn't matter, right?

[00:25:27] Speaker 08:
well you said his minors rep.

[00:25:30] Speaker 06:
Is he only representing the two minors that voted for him?

[00:25:33] Speaker 06:
He is.

[00:25:33] Speaker 06:
Or does he represent all the minors?

[00:25:34] Speaker 08:
Only the two minors.

[00:25:36] Speaker 06:
That's how it works.

[00:25:37] Speaker 06:
Imagine you had a minors rep who's really bad at his job, unlike Mr. Wilson.

[00:25:41] Speaker 06:
We're out of Mr. Wilson's area now.

[00:25:43] Speaker 06:
It's really bad.

[00:25:45] Speaker 06:
And there's some real problems at a hypothetical mine.

[00:25:48] Speaker 06:
And Mr. Browning, Mr. X, walks in and sees this really crappy minors representative sitting there looking at

[00:25:57] Speaker 06:
at leaf slips, something that isn't going to promote safety.

[00:26:01] Speaker 06:
He's doing a really bad job and runs over and gets within 18 inches of him and says, what are you doing?

[00:26:07] Speaker 06:
Stop doing that.

[00:26:08] Speaker 06:
You shouldn't be doing that.

[00:26:09] Speaker 06:
You're a terrible miners representative.

[00:26:11] Speaker 06:
There's real safety problems.

[00:26:12] Speaker 06:
If you would go look at these other books, you're doing a horrible job.

[00:26:15] Speaker 06:
You're not protecting our safety.

[00:26:17] Speaker 06:
You're just a ruse.

[00:26:19] Speaker 06:
You're a cover here.

[00:26:21] Speaker 06:
You're endangering us by pretending to go through the forms of looking at these things.

[00:26:25] Speaker 06:
Is that the interference?

[00:26:27] Speaker 08:
Well, first of all, a minor shrub does not have a right to look at leaf slips.

[00:26:32] Speaker 06:
OK, looking at something that doesn't document.

[00:26:35] Speaker 06:
The safety concerns that everybody knows are going on at this time.

[00:26:38] Speaker 08:
They don't have the right to look at anything other than safety records that are required by MSHOP.

[00:26:43] Speaker 06:
They're looking at old safety records.

[00:26:45] Speaker 06:
There's a real problem that's emerged in the last month.

[00:26:47] Speaker 06:
Everybody in the mind knows that.

[00:26:48] Speaker 06:
I don't want to crib with the facts here.

[00:26:49] Speaker 06:
My hypothetical is you've got a lousy minor rep who's looking at the wrong stuff, not looking at the real problems, the evidence of real problems there, and people are scared.

[00:26:59] Speaker 06:
And someone gets within 18 inches of his face and yells at him and says, stop doing that.

[00:27:05] Speaker 06:
You're doing a terrible job.

[00:27:08] Speaker 06:
There's real problems you need to deal with.

[00:27:09] Speaker 06:
Is that interference?

[00:27:11] Speaker 08:
That's a close call.

[00:27:12] Speaker 06:
No, no.

[00:27:12] Speaker 06:
Is it interference?

[00:27:13] Speaker 06:
It's not.

[00:27:13] Speaker 06:
Why?

[00:27:13] Speaker 06:
Is 18 inches from his face yelling at him while he's doing stuff as a minor representative do a terrible job and stop doing that?

[00:27:21] Speaker 06:
That's no different at all.

[00:27:22] Speaker 08:
Well, yes it is.

[00:27:23] Speaker 08:
Because first of all, Mr. Wilson was looking at safety records.

[00:27:28] Speaker 08:
Mr. Browning did not say any things that you put in your hypothetical.

[00:27:33] Speaker 08:
It was just,

[00:27:34] Speaker 08:
Stop.

[00:27:35] Speaker 08:
Put the books.

[00:27:36] Speaker 08:
Close them down.

[00:27:36] Speaker 08:
Go to your house.

[00:27:38] Speaker 08:
You're taking money out of my pocket.

[00:27:39] Speaker 08:
You're trying to hurt the company.

[00:27:41] Speaker 08:
He didn't say anything about safety or health.

[00:27:42] Speaker 06:
So interference depends on what words?

[00:27:46] Speaker 06:
So if Mr. Browning had done the exact same and said, I don't think you're promoting my safety.

[00:27:50] Speaker 06:
I think you're hurting me, it wouldn't be interference.

[00:27:53] Speaker 06:
Go home.

[00:27:54] Speaker 06:
I don't think you're promoting my safety.

[00:27:55] Speaker 06:
You're hurting my safety.

[00:27:58] Speaker 06:
That would be OK?

[00:28:00] Speaker 08:
I'm not going to concede that that would be OK, no.

[00:28:03] Speaker 08:
I really do think it's a hard call, but I do think we have to look at, this is a summary judgment case, the facts that are before us.

[00:28:11] Speaker 08:
And what did happen in this case, and the point is that Mr. Browning was not interested in mind safety and health.

[00:28:18] Speaker 08:
He did not raise it.

[00:28:20] Speaker 08:
The judge found that this conversation lasted, or not conversation, it's yelling, berating, lasted for a few minutes.

[00:28:27] Speaker 08:
Mr. Browning had plenty of time during that time to talk about safety and health, but he didn't.

[00:28:34] Speaker 08:
It was all you just need to go, you need to go home, get out of here.

[00:28:39] Speaker 08:
Now when the MCHA Special Investigator, who was investigating the case, interviewed Mr. Browning, he asked him, did you say you're taking money out of my pocket?

[00:28:48] Speaker 08:
He said, yes, I did.

[00:28:49] Speaker 08:
Well, what did you mean by it?

[00:28:50] Speaker 08:
And he said,

[00:28:52] Speaker 08:
If Flip finds a violation, the company has issued a citation, that could come out of my coal royalty, or potentially the mine could shut down for a couple days and I might lose money.

[00:29:05] Speaker 08:
Well, that was his motivation.

[00:29:08] Speaker 08:
My financial interests might be affected by you doing something that Congress told you you have the right to do.

[00:29:16] Speaker 08:
And we can't lose sight of the fact of why miners' reps are created in the first place.

[00:29:23] Speaker 08:
Mr. Wilson, through his job, he could find something, talk to an inspector and say, here's the problem.

[00:29:29] Speaker 08:
This could cause an explosion.

[00:29:31] Speaker 08:
30 people could die in an explosion or more.

[00:29:34] Speaker 08:
Just like we had the Upper Big Branch disaster a few years ago in West Virginia.

[00:29:38] Speaker 08:
29 miners died.

[00:29:40] Speaker 08:
They had no miners reps at that mine.

[00:29:42] Speaker 08:
There's a purpose for miners reps.

[00:29:43] Speaker 08:
It's to prevent disasters, to prevent injuries, disabling injuries.

[00:29:49] Speaker 08:
And that's what Mr. Olson was doing.

[00:29:51] Speaker 03:
Why don't you finish your sentence?

[00:29:54] Speaker 08:
And Mr. Browning's concern was not that he was doing a poor job, as you allege,

[00:30:00] Speaker 08:
In your hypothetical, it's more that he's doing a good job.

[00:30:04] Speaker 08:
He's saying, your job isn't to point out violations to MSHA.

[00:30:07] Speaker 08:
Well, yes, that's exactly his job.

[00:30:09] Speaker 08:
That's what he's supposed to be doing.

[00:30:11] Speaker 08:
He travels with the mine inspector and says, by the way, you missed these bolts over here that are hanging down.

[00:30:17] Speaker 08:
That's a violation.

[00:30:18] Speaker 08:
It could cause a roof fall.

[00:30:21] Speaker 08:
It needs to be corrected.

[00:30:22] Speaker 08:
That's the miner's rep's job.

[00:30:24] Speaker 08:
And that's what Mr. Browning didn't want.

[00:30:26] Speaker 03:
All right.

[00:30:26] Speaker 03:
Let us hear counsel.

[00:30:29] Speaker 03:
for respondent Mr. Browning, and then we'll give you a couple of minutes on rebuttal.

[00:30:33] Speaker 08:
Thank you very much.

[00:30:39] Speaker 01:
Your Honor, my name is Erica Hashimoto, and I'm the director of the Georgetown Appellate Litigation Clinic.

[00:30:45] Speaker 01:
With the court's permission, third year law student Donna Barak will be arguing for Mr. Browning.

[00:30:52] Speaker 01:
And Mr. Browning did give his consent for this.

[00:30:55] Speaker 03:
Thank you, Professor.

[00:30:56] Speaker 03:
All right, welcome, counsel.

[00:31:14] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:31:16] Speaker 02:
Viewing the facts in the light most favorable to Wilson, in a single isolated incident, Browning approached Wilson and angrily told him to go home multiple times.

[00:31:26] Speaker 02:
Within minutes, Browning was suspended, his pay was docked, and he was sent home.

[00:31:31] Speaker 02:
But there has never been any incident, any other incident, between Browning and Wilson and Browning and any other minor's representative.

[00:31:38] Speaker 02:
The issue in this case, then, is whether this single incident constituted interference.

[00:31:42] Speaker 02:
The ALJ properly found that it did not, and held that such conduct was beyond the scope of the Mine Act.

[00:31:49] Speaker 02:
The Mine Act was intended to ensure that mine operators would not be using their authority to interfere with miners' representative safety inspections.

[00:31:56] Speaker 02:
Congress never intended nor envisioned that a single conversation of poorly chosen words would subject a miner to two years of litigation and being hailed into federal court.

[00:32:06] Speaker 06:
Well, it doesn't say any person.

[00:32:08] Speaker 06:
I'm sorry, go ahead.

[00:32:09] Speaker 06:
It doesn't say any person.

[00:32:10] Speaker 06:
Elsewhere, when Congress just wants mine operators, it can say that, but it says any person.

[00:32:16] Speaker 02:
Yes, Your Honor, and there is a chance that a mine representative, a mine, an hourly miner could be guilty or liable of conduct that interferes.

[00:32:27] Speaker 02:
But not in this case, not in a case where it's a single incident and it's a few one-off comments.

[00:32:32] Speaker 02:
Yes, they were said in anger.

[00:32:33] Speaker 02:
But that conduct does not rise to the level of interference.

[00:32:37] Speaker 06:
What I'm trying to spit out here, is it the words that make it not interference, or is it that you keep talking about a single event?

[00:32:44] Speaker 02:
It's a number of factors, part of it being that yes, it was a single event.

[00:32:52] Speaker 02:
That is correct, Your Honor, but the test is if there's a reasonable tendency to interfere, and certainly a single incident would weigh against a finding of a reasonable tendency to interfere.

[00:33:03] Speaker 02:
It's just one time one man was venting, spewing words angrily, but given everything else that was going on in that situation, it was just one man.

[00:33:12] Speaker 02:
It was something that lasted fearments.

[00:33:13] Speaker 06:
Well, yeah, it could be.

[00:33:15] Speaker 06:
six-foot-five, 300-pound guy going up to Mr. Wilson's old tire, and I think he has black lung disease.

[00:33:23] Speaker 06:
Imagine he's sitting there with an oxygen machine on, and this big guy comes up and starts screaming at him, stop what you're doing.

[00:33:33] Speaker 06:
At least while he's being yelled at, Mr. Wilson stops what he's doing.

[00:33:37] Speaker 06:
He stops looking at the books.

[00:33:41] Speaker 06:
That's interference.

[00:33:42] Speaker 06:
How is that just not the most plain meaning of interference?

[00:33:45] Speaker 06:
it could be it could potentially but how is that not interference that could be how is that the plain meaning of interference

[00:33:54] Speaker 02:
Because you still have to look at everything that was going on in that circumstance.

[00:33:58] Speaker 02:
And certainly someone, regardless of their size, although there's nothing in the record indicating.

[00:34:02] Speaker 02:
But certainly someone still has a right to go up and communicate to the minor's representative their displeasure.

[00:34:09] Speaker 02:
It's whether the comments are of such a sufficiently serious nature that they would disincentivize someone from doing their job.

[00:34:17] Speaker 03:
So you need physical contact?

[00:34:21] Speaker 02:
I believe physical obstruction would rise to the level of interference.

[00:34:25] Speaker 03:
When words can hurt and interfere.

[00:34:29] Speaker 03:
With words in a single incident, you need something more serious.

[00:34:35] Speaker 03:
It went on several minutes.

[00:34:37] Speaker 03:
It was in front of other miners.

[00:34:38] Speaker 03:
Brief says, you let Mr. Browning get away with this, then the rest of the miners are free to do the same thing.

[00:34:45] Speaker 02:
And I think the opposing counsel neglects the supervisor's intervention.

[00:34:51] Speaker 03:
After several minutes, it was actually another witness who said to the supervisor, hey,

[00:34:59] Speaker 03:
This is getting out of hand.

[00:35:01] Speaker 03:
You better get in there.

[00:35:02] Speaker 02:
And I think this cuts in our favor because other miners that were present were not inclined to follow Browning's example.

[00:35:10] Speaker 02:
Here was a miner who was yelling, probably shouldn't be doing that.

[00:35:13] Speaker 02:
But there's really no fear that Browning would, in fact, be doing this in the future to other miners' representatives.

[00:35:19] Speaker 02:
And no reasonable miners' representative would fear Browning when they know that there are other witnesses that called him out on his behavior.

[00:35:25] Speaker 02:
and that the supervisor immediately came in, suspended him, that was done.

[00:35:29] Speaker 02:
In fact, the minor's representatives would know that they are protected.

[00:35:32] Speaker 02:
Browning's conduct is no longer an issue.

[00:35:36] Speaker 07:
Go ahead.

[00:35:39] Speaker 07:
Are you pressing your position that there's no claim where the interference is by a non-supervisory employee?

[00:35:49] Speaker 07:
It seems like that's gotten way too broad.

[00:35:52] Speaker 02:
For an hourly minor, we don't believe that there is a cause of action.

[00:35:55] Speaker 02:
But the court need not reach that decision today because this simply does not rise to the level of interference.

[00:36:02] Speaker 02:
And so the court does not have to determine that.

[00:36:05] Speaker 02:
But even if the court were to find that he is subject to a cause of action, it's still unclear what the remedies would be.

[00:36:12] Speaker 07:
Why couldn't it just be some monetary liability against the individual?

[00:36:15] Speaker 07:
I mean, you can imagine

[00:36:17] Speaker 07:
of mine in which the atmosphere is toxic and it has something to do with the employer, maybe they're reading on the internet or somehow getting them, and every day it's a different minor, but whenever the minor's representative comes, they get in his face and they just speech, no physical, and yell at him and tell him to go home.

[00:36:43] Speaker 07:
I mean, I know I'm not a minors representative, but after several days, you would not want to work there.

[00:36:50] Speaker 07:
You would hesitate, or an objective person might reasonably be thought to hesitate.

[00:36:55] Speaker 07:
Isn't there a situation in which those employees should be held liable, in which the MINAC contemplates their liability?

[00:37:06] Speaker 02:
I think in a situation like that, where it's multiple employees and it's happening repeatedly, there's a chance that those employees have become agents of the mine operator.

[00:37:16] Speaker 07:
I'm actually positing in my hypothetical that they're not, but that the statutory language appears to encompass situations in which they aren't any person.

[00:37:29] Speaker 07:
And I guess I'm just trying to understand why you would go there, given that that's a very hard position.

[00:37:35] Speaker 07:
If we were to rule against you on that, do you lose?

[00:37:39] Speaker 02:
No, Your Honor.

[00:37:39] Speaker 02:
I believe certainly that this conduct does not tend towards interference.

[00:37:44] Speaker 02:
And then if the court finds that it does, it has to deal with the First Amendment argument.

[00:37:49] Speaker 03:
Let's be clear, though.

[00:37:51] Speaker 03:
It's not what you believe or what we believe.

[00:37:54] Speaker 03:
It's whether or not the ALJ's findings in the summary judgment proceeding

[00:38:01] Speaker 03:
were proper, and the ALJ says, talking about Mr. Wilson, quote, he ultimately, oh, Mr. Browning, he ultimately expressed that opinion in an agitated manner that Wilson may have perceived as threatening.

[00:38:22] Speaker 03:
That's a finding by the ALJ.

[00:38:24] Speaker 03:
And then the ALJ goes on and says, however, applying the factors from multi-ad in the commission's interference cases, I do not find interference.

[00:38:33] Speaker 03:
And then she goes on and she misapplies one factor, namely what happened afterward, because that's not the test that applies here.

[00:38:44] Speaker 03:
Looking at the NLRB cases under the NLRA interference standard that

[00:38:54] Speaker 03:
is being applied here.

[00:38:57] Speaker 03:
And the ALJ basically says, you know, the fact that Wilson may have perceived this to be interference, and he stopped his work, and the man was in his face for several minutes.

[00:39:17] Speaker 03:
Well, he went on doing his job, so there's no interference.

[00:39:22] Speaker 03:
Is that a proper legal analysis, given the Mine Act and what its purpose is?

[00:39:29] Speaker 02:
First, Your Honor, the ALJ admitted that, yes, Wilson went on to do his job, but she did indicate that that was not the dispositive factor.

[00:39:37] Speaker 03:
No, but it was one of the factors that she identified that the ALJ identified as causing her to find no interference here, even though the ALJ had found

[00:39:52] Speaker 03:
that Wilson could reasonably view this as interference.

[00:39:58] Speaker 03:
So she says, look at the totality.

[00:40:01] Speaker 02:
And I believe that the totality inquiry is the proper legal one.

[00:40:04] Speaker 03:
It may be, but one of the factors was error.

[00:40:08] Speaker 03:
So what do you do with that?

[00:40:10] Speaker 03:
If a judge, a district court says, I find against you for the following four reasons, and one of those is wrong, and the judge hasn't indicated that's an independent ground,

[00:40:22] Speaker 03:
then what is the court supposed to do?

[00:40:24] Speaker 03:
The whole house of cards tumbles?

[00:40:27] Speaker 02:
No, Your Honor.

[00:40:28] Speaker 02:
Why not?

[00:40:29] Speaker 02:
Because I think the other factors would still support her reasoning.

[00:40:33] Speaker 02:
But that's not what she said.

[00:40:35] Speaker 03:
She said, look at these four factors, taking them together.

[00:40:43] Speaker 03:
I find no interference.

[00:40:45] Speaker 02:
Yes, Your Honor.

[00:40:46] Speaker 02:
And if I could just briefly address one of the factors.

[00:40:49] Speaker 03:
But do you get the thrust of my question?

[00:40:51] Speaker 03:
In other words, if a judge rules against you and says I'm giving four reasons and each is critical to my decision, and we find that one of them is legal error, don't we have to send it back?

[00:41:05] Speaker 02:
know your honor I believe you know no I believe that if on summary judgment on summary decision where you have to show that you were entitled to judgment as a matter of law and

[00:41:18] Speaker 03:
The district court, in my hypothetical, has made an error of law?

[00:41:22] Speaker 02:
Yes, Your Honor, because if the ALJ may have misapplied one of the factors, if the other factors would still indicate that there is no reasonable interference, then I don't believe this court would have to remand.

[00:41:35] Speaker 03:
How would we know?

[00:41:36] Speaker 03:
The judge said all four of these are what made me decide what I decided.

[00:41:41] Speaker 03:
You just guess?

[00:41:43] Speaker 02:
No, this court has the ability to make that determination as well.

[00:41:47] Speaker 02:
Surely this court could remand and we could find ourselves in the same position because the ALJ will say it still does not rise to the level of interference, looking at all these other factors that are waiting.

[00:41:58] Speaker 03:
So our review is de novo?

[00:42:00] Speaker 02:
It's not clear what the standard of review is, Your Honor.

[00:42:03] Speaker 02:
For a question of interference, it's likely substantial evidence.

[00:42:08] Speaker 02:
But because this is on summary decision, there's no case law clearly indicating what the standard of review is.

[00:42:16] Speaker 03:
Well, I'm just trying to follow your analysis.

[00:42:20] Speaker 03:
If this is on summary judgment, then our review is de novo.

[00:42:26] Speaker 03:
And we look for clear error.

[00:42:29] Speaker 03:
findings of facts and de novo on the law.

[00:42:33] Speaker 02:
Yes, Your Honor, but that also allows you to look at the record and determine whether this conduct, given all the circumstances, given the fact that it was just a few minutes, and that the statements, while they may have been perceived as threatening, first, it's not clear that the ALJ found that a reasonable minors representative would have perceived them as threatening.

[00:42:52] Speaker 02:
And second, a threat, an implied threat, may not necessarily reach interference.

[00:42:57] Speaker 06:
How a reasonable minor would have responded, is that a legal question?

[00:43:04] Speaker 06:
Did we also decide de novo?

[00:43:07] Speaker 02:
I believe so, Your Honor.

[00:43:09] Speaker 02:
And I want to say that there was no indication that this was a threat.

[00:43:13] Speaker 02:
Wilson never even alleged he felt threatened.

[00:43:16] Speaker 02:
This was the ALJ.

[00:43:17] Speaker 03:
The ALJ found, quote, Browning took an aggressive tone with Wilson that could have been interpreted as intimidating.

[00:43:26] Speaker 03:
And then she goes on to say, but he said it in front of several witnesses, so that's mitigating.

[00:43:32] Speaker 03:
All right.

[00:43:33] Speaker 02:
And I think the may have is indicative of the fact that if it's a single incident, it has to be something more than this might have been threatening.

[00:43:41] Speaker 02:
It could have been potentially perceived.

[00:43:43] Speaker 06:
Well, Nelson alleged in his complaint that he had been harassed.

[00:43:46] Speaker 02:
But simply saying that I am harassed does not make it so.

[00:43:50] Speaker 06:
Would you normally say if you harass somebody, you're interfering with what they're doing?

[00:43:54] Speaker 02:
Harassment may, but not necessarily.

[00:43:57] Speaker 06:
OK, so taking the little facts and all reasonable inferences that can be drawn from the allegations in the light most favorable to Mr. Wilson, can we say that saying I was harassed and then the factual description that we're given as a matter of law is not

[00:44:17] Speaker 02:
In this case, no, harassment can't, but according to these facts, where it's one incident, just a few minutes, and it's a man angrily... What if we added to a complaint that the minor's rep has black lung disease, zoonotic machine, has a heart condition?

[00:44:36] Speaker 06:
And if we add the facts that the minor, six foot five, 300 pounds, screaming at the top of his lungs for three minutes,

[00:44:47] Speaker 02:
I don't believe that would constitute interference.

[00:44:50] Speaker 02:
And based on the law, those subjective qualities don't necessarily make this reasonably tend towards interference.

[00:44:57] Speaker 06:
And in part, the law- It doesn't actually have to interfere.

[00:44:59] Speaker 06:
It just has to tend to interfere.

[00:45:01] Speaker 02:
That's correct.

[00:45:02] Speaker 02:
But minors representatives are used to engaging with minors, and they're used to hearing perhaps not the most civil dialogue.

[00:45:08] Speaker 02:
The MINE Act was never intended to impose a code of civility.

[00:45:12] Speaker 02:
How do we know that?

[00:45:13] Speaker 03:
what you just described.

[00:45:15] Speaker 02:
Because the conduct still has to be connected to interference.

[00:45:19] Speaker 03:
Well, it interfered with him continuing to look at the books that he had a right to look at.

[00:45:28] Speaker 02:
Browning never took the books away from Wilson.

[00:45:31] Speaker 02:
It was Wilson that made the choice to engage with Browning.

[00:45:33] Speaker 03:
Well, this guy is in his face screaming at him for several minutes.

[00:45:38] Speaker 03:
Correct.

[00:45:39] Speaker 03:
And nobody does anything.

[00:45:41] Speaker 03:
Well, someone did do something, and that's... After several minutes.

[00:45:45] Speaker 06:
Yes, Your Honor.

[00:45:45] Speaker 06:
Everyone else stood around for three.

[00:45:47] Speaker 06:
You know, you see these videos all the time, violence going on, and there's no violence here, but it's actually horrible when everyone just stands around and watches you.

[00:45:56] Speaker 06:
That sends a message, too.

[00:45:58] Speaker 06:
You don't have to applaud, they don't have to cheer, they're all just standing there and letting it happen.

[00:46:04] Speaker 02:
I see my time has expired.

[00:46:06] Speaker 02:
I think if Browning were in a position of authority, if Browning had any authority over those minors, that they would be inclined to follow in his behavior.

[00:46:14] Speaker 03:
So we know that's not the fact of this case.

[00:46:17] Speaker 03:
What I want to understand is, in your opinion then, the Secretary's definition of interference does not reach conduct

[00:46:34] Speaker 03:
that a miner's rep could view as threatening and intimidating, absent something else.

[00:46:51] Speaker 03:
Is that right?

[00:46:54] Speaker 03:
In other words, I'm torn in two ways.

[00:46:55] Speaker 03:
One, I'll speak for myself.

[00:46:59] Speaker 03:
I have no idea how a miner's rep operates.

[00:47:04] Speaker 03:
in this mine at that time.

[00:47:08] Speaker 03:
Everybody may love him.

[00:47:09] Speaker 03:
Everybody may hate him.

[00:47:10] Speaker 03:
I don't know.

[00:47:11] Speaker 03:
But presumably, the administrative law judge has some expertise in this area since they're dealing with these cases all the time.

[00:47:21] Speaker 03:
But what I'm told in this case, it really doesn't matter if the miner's rep feels intimidated.

[00:47:31] Speaker 03:
And I thought, well, management stepped in.

[00:47:34] Speaker 03:
man lost some pay, that's enough.

[00:47:37] Speaker 03:
That's not what the ALJ is saying here.

[00:47:41] Speaker 03:
As I read it, she's interpreting the Secretary's definition of interference to have a fairly high threshold.

[00:47:53] Speaker 03:
And Browning's conduct is basically OK.

[00:47:58] Speaker 02:
It's not that the conduct is OK.

[00:48:01] Speaker 02:
It's just that it's beyond the scope of the Line Act.

[00:48:03] Speaker 02:
And we're not asking the court to condone Browning's actions.

[00:48:06] Speaker 03:
No.

[00:48:09] Speaker 03:
What the ALJ found was it's beyond the scope of the Secretary's definition of harassment, of interference, under the statute.

[00:48:23] Speaker 02:
Yes, Your Honor, and I think it's because of the other factors.

[00:48:27] Speaker 02:
Simply because something may be perceived as intimidating does not rise to the threshold of interference.

[00:48:32] Speaker 02:
And we can look at even the case that opposing counsel cited to, Pendley, one of the very few cases where there was an action against a minor.

[00:48:40] Speaker 02:
And in that case, it was 10 years, 10 years of an ongoing back and forth between the minor's representative and the minor.

[00:48:48] Speaker 02:
There were assault charges that were filed.

[00:48:49] Speaker 03:
There was a... Well, I understand there can be egregious cases, but I'm just trying to understand.

[00:48:54] Speaker 03:
The ALJ has lowered or raised the threshold here beyond what might be viewed as the plain words of the Secretary's definition.

[00:49:08] Speaker 02:
I don't believe she's raised the threshold, but she is saying that in a situation where it is one single actor in one single incident, the conduct has to be, and it's someone who has no authority, the conduct has to be something more than just angry words.

[00:49:25] Speaker 03:
So what more?

[00:49:26] Speaker 03:
Two of the factors we sort of disposed of.

[00:49:30] Speaker 03:
One, it's just wrong as a matter of law.

[00:49:33] Speaker 03:
Two, it really doesn't make any sense that you can do this for several minutes in front of other minors, and somehow that's mitigating.

[00:49:39] Speaker 02:
Sorry, Your Honor, can I just clarify, what is the factor that you say is wrong as a matter of law?

[00:49:43] Speaker 03:
Well, the Commission says they're following the NLRA's interference test, as interpreted by the NLRB.

[00:49:55] Speaker 03:
And the LRB has said you can't look at what happens after the incident at issue, namely whether the minor, at least I can't be dispositive as to whether the minor's rep continues to do his job or not.

[00:50:11] Speaker 02:
Yes, but the commission has said it can be considered, and I believe it has said that in the NLRB context.

[00:50:17] Speaker 02:
So yes, it can't be dispositive, and I don't think she, and she recognized that herself.

[00:50:21] Speaker 02:
But I think you have to view interference just a little bit more narrowly, or requiring something more than just angry words, because that's what the First Amendment requires.

[00:50:30] Speaker 03:
Well, we have more than angry words, according to the ALJ.

[00:50:33] Speaker 03:
We have a man who had to stop what he was doing

[00:50:39] Speaker 03:
when he's there to protect the miners, health and safety.

[00:50:46] Speaker 03:
And all your client is concerned about is his own pocketbook.

[00:50:52] Speaker 02:
Well, and this is where you need to look at the context in its entirety.

[00:50:57] Speaker 02:
Mr. Wilson had shown up after he had retired on a Saturday, and he absolutely had a right to be there.

[00:51:03] Speaker 02:
No one is disputing that.

[00:51:04] Speaker 02:
But Mr. Browning was seeing his retired coworker there on a day where he was not accustomed to seeing minors or representatives.

[00:51:11] Speaker 02:
In fact, the first time Mr. Wilson had shown up to the mine after his retirement, the mine operators were wondering what he was doing there.

[00:51:17] Speaker 02:
At least they knew the law, and they knew to call Mr. Wilson's attorney.

[00:51:22] Speaker 02:
But an hourly minor didn't know that.

[00:51:23] Speaker 02:
So he saw his coworker.

[00:51:25] Speaker 02:
He went up to him and said, what are you doing here?

[00:51:27] Speaker 02:
We have other representatives now.

[00:51:29] Speaker 02:
Go home.

[00:51:30] Speaker 02:
Certainly not polite.

[00:51:30] Speaker 02:
But I think even viewing the facts in the light most favorable to Wilson, you still have to take this into account.

[00:51:36] Speaker 02:
This was not disputed at all.

[00:51:38] Speaker 02:
And so there was a misunderstanding of sorts.

[00:51:41] Speaker 03:
And that's well, at least the employer thought it was.

[00:51:44] Speaker 03:
bad enough to dock its pay.

[00:51:47] Speaker 02:
Well, as opposing counsel himself noted, Armstrong-Cole had been the subject of quite a bit of litigation.

[00:51:53] Speaker 02:
So if anything, this was a preemptive act.

[00:51:56] Speaker 02:
We're taking this seriously.

[00:51:58] Speaker 02:
Go home.

[00:51:59] Speaker 02:
And it was a way to protect the operators as well.

[00:52:03] Speaker 02:
But certainly, an hourly minor who does not know the law should be subject to some leeway.

[00:52:10] Speaker 02:
And this is what the court has seen even in- Would you agree that if

[00:52:13] Speaker 06:
management had put him up to this?

[00:52:17] Speaker 06:
The exact same conduct would be interference?

[00:52:21] Speaker 06:
If management had put him up to this?

[00:52:23] Speaker 06:
If the supervisor had said, you really should let him know what you think?

[00:52:30] Speaker 02:
It could.

[00:52:31] Speaker 02:
I think the inquiry changes a bit because

[00:52:35] Speaker 02:
There's a question as to whether you're looking at what Mr. Browning did and everything else that the mine operators had been doing, so I think.

[00:52:41] Speaker 06:
I'm telling you one thing, the supervisor says to Browning right before he goes in this, I forget what they call it, the room, break room or whatever.

[00:52:52] Speaker 06:
Bath house.

[00:52:53] Speaker 06:
Bath house.

[00:52:54] Speaker 06:
Bath house.

[00:52:56] Speaker 06:
Sounds very exotic.

[00:52:57] Speaker 06:
Mr. Wilson's in there.

[00:53:01] Speaker 06:
He's going to try and shut down the mine again.

[00:53:03] Speaker 06:
He's always doing this, causing you guys to lose money.

[00:53:07] Speaker 06:
I know you've been really hurting financially.

[00:53:10] Speaker 06:
You should really let him know what you think.

[00:53:14] Speaker 02:
I don't think so.

[00:53:15] Speaker 02:
I don't think it should.

[00:53:16] Speaker 06:
You don't think what?

[00:53:17] Speaker 02:
I don't think it would be that Browning would be liable for interference.

[00:53:21] Speaker 02:
I think the mine operator would, but not Browning, because the condom.

[00:53:24] Speaker 06:
So the saying, where no person shall interfere, interference has a different meaning, depending on who the person is?

[00:53:32] Speaker 02:
It can.

[00:53:33] Speaker 02:
If there is someone in authority saying these words, they could certainly be more coercive.

[00:53:38] Speaker 02:
I mean to say that if a reasonable minor... The supervisor has no authority over Mr. Wilson.

[00:53:43] Speaker 06:
He's retired.

[00:53:44] Speaker 02:
Even so, if it's someone who has authority to kick him off the premises, saying go home if you actually are controlling the mine certainly has a far greater impact than a miner who has no authority to tell you to do anything.

[00:53:56] Speaker 02:
And Mr. Wilson knows that.

[00:53:58] Speaker 02:
And he turned around and said, no, I can be here.

[00:54:00] Speaker 02:
It's my right to be here.

[00:54:01] Speaker 02:
And that's what the confusion was.

[00:54:03] Speaker 02:
And Browning said, we have other miners, representatives.

[00:54:06] Speaker 02:
But the inquiry also varies because of the fact that the minor is not expected to know the law.

[00:54:14] Speaker 02:
And in First Amendment cases, under the NLRB context, where employers were being sued for unfair labor practices or

[00:54:23] Speaker 02:
because individuals perceived that employers were threatening against unionization, this court had said, you need something more explicit.

[00:54:30] Speaker 02:
You need to have a threat of reprisal.

[00:54:32] Speaker 02:
Employers still retained some ability to express their opinions.

[00:54:35] Speaker 02:
Here, there was no threat of reprisal.

[00:54:38] Speaker 02:
And for an hourly minor who does not know the law, who does not have an adequate guide for his behavior, as the court said in gistle packing, he has no control over the relationship, then he should be given leeway in a single incident

[00:54:50] Speaker 02:
where the words were angry and rude, yes, but do not rise to the level of interference.

[00:54:56] Speaker 03:
So here's what the ALJ says.

[00:54:57] Speaker 03:
Considering all of these factors together, I conclude Browning's actions did not constitute interference and exercise rudiment.

[00:55:06] Speaker 03:
A single altercation between a minor and a representative with no discernible effect on protected activity at the mind

[00:55:18] Speaker 03:
does not rise to the level interference recognized actionable in past commissioned cases.

[00:55:23] Speaker 03:
It's simply beyond the scope of 105C.

[00:55:27] Speaker 03:
So I'm just pressing you on my point.

[00:55:36] Speaker 03:
You don't think that?

[00:55:37] Speaker 07:
The question is, isn't that legally the wrong standard that we don't look at whether it's a discernible effect.

[00:55:44] Speaker 07:
We look at whether, objectively, a reasonable minors representative would have had a tendency to be deterred in exercising his rights.

[00:55:52] Speaker 02:
Yes, Your Honor.

[00:55:53] Speaker 02:
And I would say this was her summing up her analysis.

[00:55:56] Speaker 02:
So if that was the only thing she said, then that would be questionable.

[00:56:00] Speaker 02:
But this court can still consider whether

[00:56:04] Speaker 02:
whether there was a discernible effect, and that is a factor, not the entire inquiry.

[00:56:10] Speaker 02:
And if this court finds that this single incident, which did not have an effect on Wilson and would not tend to have an effect on any other minor's representatives because of how Browning was instantly shut down, if this- Does she ever apply the right standard?

[00:56:26] Speaker 07:
So you say it's in summing up, but I think the difficulty that we're having is that on page JA 79,

[00:56:31] Speaker 07:
She also says in going through the evidence step-by-step, she says it does not appear to have had an actual effect on Wilson.

[00:56:39] Speaker 07:
I think one of the concerns we have is, again, that doesn't seem to be the correct test.

[00:56:44] Speaker 07:
And so is there a place where she says, you know,

[00:56:48] Speaker 07:
He may well be a reasonable minor, and given that the analysis, the legal test, is would, objectively speaking, would this be likely or have a tendency to deter the reasonable minor's rep, you know, we just don't have that articulation at the standard.

[00:57:05] Speaker 07:
She seems to be looking at him as an actual individual rather than looking at a more objective reasonableness test.

[00:57:14] Speaker 07:
Um, I believe and can we affirm if we think that there is that error and if it is, can we nonetheless affirm?

[00:57:22] Speaker 02:
If that were the only factor, then it could be error.

[00:57:27] Speaker 02:
And yes, you could nonetheless affirm.

[00:57:29] Speaker 02:
But she does note specifically that she declines to dismiss that case on that basis alone.

[00:57:35] Speaker 02:
And she finds that that is persuasive evidence that a reasonable minor would not have been dissuaded from exercising his rights in this situation.

[00:57:43] Speaker 02:
And that's bottom of page 79 to 80.

[00:57:46] Speaker 02:
But all the other factors, looking at the setting,

[00:57:50] Speaker 02:
location where Mr. Browning had a right to be.

[00:57:53] Speaker 02:
It was a public bathhouse.

[00:57:54] Speaker 02:
And yes, he was standing over Mr. Wilson because Mr. Wilson was sitting.

[00:57:58] Speaker 02:
He went to go see what Wilson was looking at.

[00:58:01] Speaker 03:
What language are you looking at on page 79?

[00:58:05] Speaker 03:
Just the bottom.

[00:58:06] Speaker 03:
How many lines from the bottom?

[00:58:09] Speaker 07:
The end of the paragraph, it's wrapping over onto 80, it's about the fourth to fifth line.

[00:58:14] Speaker 07:
The fact that Wilson continued to serve can be persuaded as a reasonable minor would not have been dissuaded.

[00:58:24] Speaker 02:
But she specifies right before that she declines to dismiss the case on that basis alone.

[00:58:30] Speaker 02:
So it's an indication to her, but she does not hang everything on that.

[00:58:35] Speaker 02:
She does look at the duration.

[00:58:36] Speaker 02:
She does look at the fact that this was just a what-off situation, and she looks at the fact that the words, while they may be perceived as threatening, are angry and she doesn't explicitly say it, but they are protected.

[00:58:50] Speaker 02:
It's a minor communicating to a minor's representative.

[00:58:53] Speaker 03:
But also, I mean, even if

[00:58:56] Speaker 03:
We didn't accept her argument.

[00:58:59] Speaker 03:
We wouldn't be deciding anything other than that summary judgment was inappropriate.

[00:59:05] Speaker 03:
We wouldn't get to the ultimate merits of the case, would we?

[00:59:12] Speaker 02:
It would dispose of Wilson's case at that point, I believe.

[00:59:16] Speaker 03:
It would go back to the ALJ, wouldn't it?

[00:59:18] Speaker 02:
Well, the ALJ dismissed me.

[00:59:21] Speaker 03:
If we were to agree with Wilson's appeal, wouldn't it just go back to the ALJ for further proceedings?

[00:59:31] Speaker 02:
Yes, but it's unclear what that proceeding would look like.

[00:59:34] Speaker 03:
That's a different issue, but it would go back for further proceedings.

[00:59:40] Speaker 02:
Yeah, I guess I'm a little confused.

[00:59:42] Speaker 02:
Because the ALJ did in fact take the facts in the light most favorable, if you're sending it back, then we'd have to actually introduce Browning's facts and take into account that.

[00:59:56] Speaker 02:
But you would be finding that that incident could constitute interference.

[01:00:00] Speaker 02:
And if the court does.

[01:00:00] Speaker 03:
Well, but I mean, we're talking about summary disposition here.

[01:00:05] Speaker 03:
That's all we'd be addressing.

[01:00:07] Speaker 03:
Isn't that correct?

[01:00:08] Speaker 03:
We wouldn't decide the facts of this case, whether or not Wilson was actually interfered with necessarily, would we?

[01:00:21] Speaker 02:
You could be deciding that if Wilson's facts were, as he alleged, that he does have a Section 105 C-1 claim of interference.

[01:00:30] Speaker 03:
No, I'm thinking take summary judgment, all right?

[01:00:34] Speaker 03:
It comes up here, and if we reverse

[01:00:37] Speaker 03:
It goes back for a trial.

[01:00:39] Speaker 03:
But we don't say anything about what the outcome of the trial might be.

[01:00:43] Speaker 03:
Right.

[01:00:43] Speaker 03:
We don't know.

[01:00:44] Speaker 06:
There could be fact findings on exactly what happened.

[01:00:49] Speaker 07:
Fact finding could completely favor Browning, or it could favor Wilson?

[01:00:54] Speaker 02:
It could.

[01:00:55] Speaker 02:
And what we're arguing is if there's any more fact finding,

[01:01:01] Speaker 02:
Even if there's more fact finding, it can't go any more in Wilson's favor.

[01:01:04] Speaker 02:
That is what we are saying.

[01:01:06] Speaker 02:
There are no more facts that could further push this to interference.

[01:01:09] Speaker 02:
The ALJ did take into account and almost bent over backwards drawing inferences when she said, this may have been perceived as intimidating and threatening, because Wilson never even alleged feeling intimidated or threatening.

[01:01:21] Speaker 03:
All right.

[01:01:22] Speaker 03:
So, counsel, we've given you a lot of extra time.

[01:01:24] Speaker 03:
Thank you for your assistance.

[01:01:26] Speaker 03:
Thank you.

[01:01:28] Speaker 08:
I appreciate having a couple extra minutes here.

[01:01:33] Speaker 08:
Just four quick points I want to make.

[01:01:36] Speaker 08:
First is that

[01:01:38] Speaker 08:
We have to remember Mr. Wilson was essentially a volunteer.

[01:01:42] Speaker 08:
He wasn't getting paid for being a miners rep, unlike an employee miners rep.

[01:01:46] Speaker 08:
So it would be much more likely, I think it's a reasonable assumption, that someone who is doing this with no compensation is going to be more likely to forfeit his rights and just say, it's not worth it.

[01:01:58] Speaker 08:
Why should I go out to the mine and fight for mine safety when I'm being harassed?

[01:02:03] Speaker 08:
The second point I want to make is that what actually happened?

[01:02:08] Speaker 07:
any law at all on that?

[01:02:11] Speaker 07:
No, but administrative or judicial decision or statutory or regulatory.

[01:02:15] Speaker 08:
No.

[01:02:15] Speaker 08:
Judge, there really aren't any cases on non-employee minors reps.

[01:02:19] Speaker 08:
Just asking.

[01:02:19] Speaker 08:
Yeah, other than the Pendley case.

[01:02:21] Speaker 08:
And with all due respect to Ms.

[01:02:23] Speaker 08:
Verrock, the facts she cited in the Pendley really aren't accurate.

[01:02:27] Speaker 08:
It was, yes, they did have some history, Pendley and Creighton.

[01:02:31] Speaker 08:
However, the two incidents in which Judge Andrews found there was interference were both less time and duration than this incident.

[01:02:41] Speaker 08:
and did not involve screaming and yelling.

[01:02:44] Speaker 08:
What it involved is an hourly employee going over to a miner's rep, Henley, who was standing with anemption inspector getting ready to go underground and standing near to him in what he perceived to be a threatening manner.

[01:02:59] Speaker 08:
The judge said both of those incidents, one was 15 to 40 seconds, the other was under 60 seconds, and both instances that constituted interference.

[01:03:09] Speaker 06:
Your complaint doesn't say screaming and yelling, it says told.

[01:03:13] Speaker 06:
Told, told, told.

[01:03:14] Speaker 08:
The judge found.

[01:03:15] Speaker 06:
Can't find facts on summary judgment.

[01:03:18] Speaker 06:
Just take the complaint in the light most favorable to your client, it says told, told, told.

[01:03:23] Speaker 06:
What do we do with that?

[01:03:24] Speaker 06:
And as they just pointed out, he doesn't allege that he was threatened or intimidated.

[01:03:28] Speaker 08:
It's in his affidavit, Judge.

[01:03:29] Speaker 08:
That was submitted to Judge Miller on the motion for summary judgment.

[01:03:34] Speaker 06:
Okay, but that then sounds like, right, okay.

[01:03:37] Speaker 08:
It's in his affidavit.

[01:03:38] Speaker 08:
The judge, and by the way, the judge allowed very little discovery in this case.

[01:03:43] Speaker 08:
The only deposition she allowed us to take is Mr. Browning.

[01:03:46] Speaker 08:
So we were not allowed to do basically any other discovery in the case.

[01:03:51] Speaker 06:
I don't know how these agency procedures work.

[01:03:54] Speaker 06:
Did you ask for more discovery?

[01:03:56] Speaker 08:
Ordinarily we do interrogatories, requests for documents.

[01:04:00] Speaker 08:
We do depositions of every potential witness.

[01:04:03] Speaker 08:
She would not allow us to depose the other witnesses that Mr. Browning had identified as having witnessed the event.

[01:04:11] Speaker 08:
We were allowed to talk to one guy on the telephone.

[01:04:16] Speaker 08:
The other issue here is that, or the other fact, is we don't know how long this harassment would have lasted had, number one, the superintendent not come in the bathhouse.

[01:04:26] Speaker 08:
And it was actually Mr. Greenwell, and I think his affidavit is that he joined Appendix 4142.

[01:04:33] Speaker 08:
He's the one, and he had been harassed earlier.

[01:04:35] Speaker 08:
He's the Greenwell in the case that we cited who Oglesby had harassed, and in which case

[01:04:44] Speaker 08:
Judge Miller had found that Oglesby, a non-management employee, was a person.

[01:04:48] Speaker 08:
And the Secretary of Labor agreed with that interpretation.

[01:04:51] Speaker 08:
It was Greenwell, in this case, who looked at the superintendent, and I'm paraphrasing now, but said, you better get over and do something about that, because he saw Browning harassing Wilson.

[01:05:01] Speaker 06:
We're again in his declaration.

[01:05:03] Speaker 06:
Does he say there was screaming, yelling, and he was intimidated?

[01:05:06] Speaker 08:
Well, I don't think that's in there, Judge.

[01:05:08] Speaker 08:
This is Mr. Greenwell.

[01:05:11] Speaker 06:
No, I'm talking about Mr. Wilson.

[01:05:13] Speaker 06:
So I've got, he uses loud voice, doesn't say screaming, yelling, and a loud voice, Browning accused, and he says, Browning was trying to intimidate me, which is not the same thing as saying I was intimidated.

[01:05:33] Speaker 06:
I'm just trying to make sure that when we analyze the ALJ decision here, we're not reading things into the, when she takes the facts, she has to take the allegations in the light most favorable.

[01:05:42] Speaker 06:
That doesn't mean she has to add things.

[01:05:45] Speaker 08:
I believe also if this case goes to trial judge, if you all reverse the judge and send it back and say, you know, you employed the improper standard and we believe she employed two improper standards.

[01:05:58] Speaker 08:
But I think that the testimony will be Mr Wilson is going to say, I thought Browning was going to punch me.

[01:06:03] Speaker 08:
He was sitting down, Browning hovered over him, and now this isn't... Just curious, he never said that in his affidavit.

[01:06:10] Speaker 08:
Right.

[01:06:10] Speaker 08:
And it's all, that's correct, it's not the judge's decision, but that's the way he felt.

[01:06:15] Speaker 08:
And he stood up and turned around and looked at Mr. Browning for that reason, because someone comes up behind you and starts yelling at you, I guess that's your natural tendency, stood up and turned around.

[01:06:27] Speaker 08:
We didn't get into any of that in discovery.

[01:06:30] Speaker 08:
Mr. Wilson's deposition was not taken.

[01:06:33] Speaker 08:
Like I said, we were only allowed to take Browning.

[01:06:36] Speaker 08:
And Mr. Browning denied everything.

[01:06:38] Speaker 08:
We had his interview with MSHA that had been taped and recorded.

[01:06:43] Speaker 08:
I asked him verbatim from his interview, did you not say you're taking money out of my pocket?

[01:06:49] Speaker 08:
And he denied everything when we took his deposition.

[01:06:53] Speaker 08:
What I'm telling you is he was dishonest about every aspect of what had happened during this encounter.

[01:06:59] Speaker 08:
Probably eight or 10 different things I asked him, didn't you do this or didn't you say that?

[01:07:04] Speaker 08:
And he denied all of it or said, I can't remember.

[01:07:07] Speaker 08:
Um, but of course, we're hoping we can go to trial and try to prove our case.

[01:07:14] Speaker 03:
Um, so I've got two points.

[01:07:17] Speaker 03:
What's three and four?

[01:07:21] Speaker 03:
You said you had four points.

[01:07:23] Speaker 08:
Oh, I think I had three of them.

[01:07:24] Speaker 08:
The last point judge was just, um, um,

[01:07:29] Speaker 08:
If we had had evidence that Armstrong Cole had put Mr. Browning up to this or had encouraged him, we would have named Armstrong Cole as a respondent as well.

[01:07:44] Speaker 08:
We actually told the Secretary of Labor, we don't want you to name Armstrong Cole because we have no proof that they did this.

[01:07:49] Speaker 08:
And this is part of our concern.

[01:07:51] Speaker 08:
If the judge's decision would be allowed to stand,

[01:07:54] Speaker 08:
And particularly if it says that a non-management, if you ruled that a non-management person cannot be sued under 105C, or if the judge's decision is allowed to stand, i.e.

[01:08:06] Speaker 08:
you get a free bite at the app or it only happened once,

[01:08:10] Speaker 08:
What is going to stop coal companies or any mining companies from encouraging hourly employees to do their bidding for them?

[01:08:20] Speaker 08:
You go and harass him.

[01:08:22] Speaker 08:
You have the freedom to do that.

[01:08:24] Speaker 03:
That's another case.

[01:08:25] Speaker 08:
Oh, and it could be judged.

[01:08:28] Speaker 03:
That's what we're afraid is going to happen.

[01:08:29] Speaker 03:
I understand, but you just have to deal with what's before us.

[01:08:31] Speaker 08:
That's correct.

[01:08:32] Speaker 03:
Thank you.

[01:08:32] Speaker 03:
Thank you very much.

[01:08:34] Speaker 03:
We will take your case under advisement.