[00:00:00] Speaker 04:
Case number 18-1320, Harrison County Co-Petitioner, which is a federal analysis 18 and up review section at L. Ms.

[00:00:09] Speaker ?:
Lopez, the petitioner.

[00:00:11] Speaker ?:
Ms.

[00:00:11] Speaker ?:
Scott, respond.

[00:01:04] Speaker 03:
Good morning, Your Honors.

[00:01:06] Speaker 03:
May it please the Court, I'm Margaret Lopez.

[00:01:09] Speaker 03:
Your Honors, one of the things I wanted to focus on first in this case is the fact that Mr. Scholes was not provoked into committing the insubordinate act in the derail incident, as the Secretary alleges.

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Mr. Scholes had a pattern of resisting the authority of his manager, Mr. McCauley.

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It was actually Mr. Scholes in this incident who initiated the chain of events that led to his insubordination.

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He was the first person to specifically say who should throw the derail.

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The driver of the man lift had said just get the derail and some other things to that effect.

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Before you go down this line, can I ask a question?

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Would the remedies that were imposed here change if you were right on the man trip incident but wrong on the physical altercation?

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Do you have to win on both?

[00:01:54] Speaker 03:
Yes, Your Honor.

[00:01:55] Speaker 03:
Yes, Your Honor.

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We would maintain that

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What happened in the manlift incident in terms of insubordination supports our affirmative defense, and therefore there should be no decision in favor of the Secretary in this case if there was in fact insubordination in the manlift incident.

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So as I was saying, Your Honors, it was Mr. Scholes who was the first person to speak up in the man-lift incident and say that Mr. McCauley, his manager, should throw the derail.

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Mr. McCauley was not calling out Mr. Scholes' name before that.

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And Mr. Scholes was actually taunting Mr. McCauley in front of his subordinates, setting up a challenge to Mr. McCauley, which was really Mr. Scholes' pattern of conduct up to this point.

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Mr. McCauley gave Mr. Scholes several opportunities to comply with his order that Mr. Scholes throw the derail, and each time Mr. Scholes refused that.

[00:02:50] Speaker 03:
This was clear in subordination.

[00:02:54] Speaker 02:
Was it a factual argument or a legal argument?

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Are you just reading the LJ's facts?

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or the law?

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This is a factual argument primarily, Your Honor.

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However, the law does support our position that Mr. Scholes was not provoked into this insubordination.

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But primarily what we're focusing on here is that there's not substantial evidence to support the judge's decision.

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So you have to establish very clear error in the fact findings that were different from the ones you're reciting.

[00:03:21] Speaker 03:
Well, Your Honor, we would submit that the facts do not support a reasonable conclusion that there was provocation or that there was not insubordination, which is actionable here.

[00:03:29] Speaker 03:
The facts as found by the ALJ?

[00:03:31] Speaker 03:
Yes, Your Honor.

[00:03:32] Speaker 03:
The ALJ found that there was provocation.

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Now one of the facts found by the ALJ is that is that Scholes would not have been the person because of his position in the man trip.

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He would not

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he would not have been the person who would have ordinarily been ordered to perform this action.

[00:03:52] Speaker 03:
That's right, Your Honor, and that is another important fact that the judge made a mistake on in our estimation.

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The judge found that Mr. Scholes was not the person closest and therefore he wasn't the one who should have thrown the derail.

[00:04:04] Speaker 03:
But in fact,

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Jason Tennant, who was the driver of the man lift, was calling out for someone to throw the derail.

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He had Mr. McCauley sitting right next to him in the jump seat, which is the position that the judge believes and the secretary believes should have been the person to throw the derail.

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Why would Mr. Tennant have called for someone to throw the derail knowing that Mr. McCauley was sitting right there next to him?

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Mr. Schultz had already thrown a switch earlier.

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Mr. Ifaw, who was sitting on the opposite end of the man lift, but was closest to another switch earlier in the ride, also threw a switch.

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So it's clear that there was not a practice, as Mr. Scholes contends, that the man in the jump seat should be throwing the derail.

[00:04:47] Speaker 03:
Why would Mr. Tennant have called out for the derail to be thrown?

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There was evidence in the record, though, that said that that was the practice, right?

[00:04:55] Speaker 03:
There was testimony of evidence to that effect, but there also was testimony, including from Mr. Tennant himself, that that was not the standard practice in the line.

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There was a conflict in the evidence?

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That's correct.

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There was a conflict in the evidence.

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The A.L.J.

[00:05:05] Speaker 03:
resolved against you.

[00:05:05] Speaker 03:
Pardon me?

[00:05:06] Speaker 03:
That the ALJ resolved against you.

[00:05:07] Speaker 03:
That's correct.

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But we believe the substantial evidence, primarily the fact that Mr. Tennant was calling out for someone to throw the derail, which the judge really didn't wrestle with, supports our position that Mr. Scholes was a person who should have thrown that derail.

[00:05:22] Speaker 03:
There also was some discussion in the testimony about Mr. Hixenbaugh and whether he should have been the person to throw the derail.

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He was sitting opposite Mr. Scholes on that side of the man lift.

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There's also evidence in the record showing that Mr. Scholes, the way that his legs were intertwined with Mr. Hixenbaugh's, was actually the person closer to the switch.

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And I think it's important to note that Mr. Scholes had thrown a switch earlier in the incident.

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So, I mean, clearly Mr. Scholes, as between him and Mr. Hitsenbaum, was the person who was closest to the opening, and it was easiest for him to be the person to throw that derail.

[00:05:59] Speaker 02:
Can I ask you one question on another issue, and that is you have argued that the LJ abused his discretion by, we calculated the back pay award without having

[00:06:11] Speaker 02:
open up the record for evidence.

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Did you argue anywhere before the ALJ or even in your brief here that maybe I missed as to what evidence you would have put in that you didn't have the opportunity to?

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Because I know you did the declaration with your post hearing brief.

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Where have you

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Where have you made a proffer of what evidence you would put in or shown demonstrated prejudice by this process?

[00:06:37] Speaker 03:
Well, Your Honor, the declaration is the evidence that we would put in, either through testimonial evidence to bring in this case.

[00:06:43] Speaker 02:
So you got it before the ALJ?

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We did get that before the ALJ.

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But we take contention with the fact that the ALJ dismissed that, saying that Mr. Fazio was incredible on those facts and that he was not going to take Mr. Fazio's.

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So that's a sufficient evidence argument.

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You're not making a process argument.

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You're making a sufficient evidence argument as to the back pay award.

[00:07:01] Speaker 03:
Well, Your Honor, let me supplement that, because there is a process element to this, which is that if the ALJ wanted to have testimonial evidence to this point, he did not give us an opportunity to do that.

[00:07:13] Speaker 03:
And in fact, he said it wasn't necessary.

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He said that there would be a different point somewhere later in the process where if he wanted to hear further evidence on that or take further evidence on that, he would give both parties an opportunity to submit evidence as to the amount of the back pay.

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And the ALJ ultimately did not give us that opportunity.

[00:07:33] Speaker 02:
In a lot of these types... I just want to be clear then, but you said you got the evidence, the FASIO declaration was the evidence you wanted to put in.

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That's correct.

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The facts in the Fazio evidence were the facts that we would have put in.

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But if the judge wasn't going to be convinced of that, he should have given us an opportunity to have testimonial evidence put in as well.

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What, of the same facts?

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It would have been us to the same facts, but Mr. Fazio could have testified as to more particularly why his experience of the mine qualified him to put in those facts.

[00:08:01] Speaker 03:
why Mr. Scholl's recitation of the facts are not correct.

[00:08:05] Speaker 03:
I mean, we could have addressed a lot more here if you thought you'd given us... Why don't you address that stuff in your post-hering briefing?

[00:08:10] Speaker 02:
Pardon me, Your Honor?

[00:08:10] Speaker 02:
I just hadn't seen any argument from you as to prejudice, as to the process.

[00:08:15] Speaker 02:
I'm putting aside your argument that, so what the district court, sorry, the ALJ had was sufficient to support the back pay award.

[00:08:23] Speaker 02:
That's one argument.

[00:08:24] Speaker 02:
But just as to this process thing, my understanding from you is you've got in everything you want and you never

[00:08:29] Speaker 02:
objected to the ALJ or argued in your brief here that you were prejudiced by here's something else we would have done had we been given the opportunity that we weren't given procedurally.

[00:08:40] Speaker 03:
I appreciate you giving me a chance to address that.

[00:08:42] Speaker 03:
We take concern with the way that the ALJ did not give us an opportunity to put in additional evidence.

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If he felt that he was going to need that,

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There was no indication here that an affidavit wouldn't have been sufficient.

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These are cut and dry facts.

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The ALJ didn't seem to think he needed more.

[00:09:01] Speaker 02:
So if the ALJ thought he had enough and you put your stuff in, then it's a sufficiency argument, not a procedural argument.

[00:09:07] Speaker 03:
Your Honor, I will agree with you.

[00:09:09] Speaker 03:
It's primarily a sufficiency argument.

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But the judge was very clear that he wasn't going to need a full hearing yet on that point.

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And so we put in the affidavit to counter the information that had already gotten in the record through Mr. Soles.

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We could have countered that in a much more thorough way if we knew that that was going to be the only opportunity the ALJ was going to give us.

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And in these types of cases, they usually are far away, so that's where I didn't see anything in the brief that said, here's what else.

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we would have put on or what else?

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Not that we would have said the same stuff orally rather than writing.

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Here's what else we didn't get a chance to put on.

[00:09:44] Speaker 03:
Well, Your Honor, he made his decision based on a credibility finding against Mr. Fazio.

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I think testimonial evidence would have helped to counter any concern the judge had about Mr. Fazio's qualifications to say that these in fact

[00:09:55] Speaker 03:
were the correct ways to calculate the back pay.

[00:09:59] Speaker 00:
But didn't he testify about other matters?

[00:10:02] Speaker 00:
Did Mr. Fazio testify about other matters?

[00:10:04] Speaker 00:
He did, Your Honor.

[00:10:05] Speaker 00:
And he was found to be not credible in that testimony?

[00:10:09] Speaker 03:
He was.

[00:10:09] Speaker 03:
But, Your Honor, as to back pay, Mr. Fazio was the manager of Pima Resources at the mine.

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He was the person who could look at the payroll records and determine definitively

[00:10:19] Speaker 03:
what would have been the average amount of overtime for Mr. Scholes in the relevant period, how many Saturdays he would have worked.

[00:10:25] Speaker 03:
Mr. Scholes admitted in his testimony, and the judge used the same words to describe Mr. Scholes' testimony on this as a rough estimate.

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Mr. Scholes did not have that data at his fingertips that Mr. Fazio had.

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So we really do take exception of the way the judge, first of all, didn't give us an opportunity to put on testimonial evidence to this point, which we could have because Mr. Fazio was there.

[00:10:48] Speaker 03:
And then secondly, dismissed an affidavit, a sworn affidavit with the facts from the head of HR as to what the correct back pay calculation was.

[00:10:58] Speaker 03:
Your Honors, I also wanted to address the headbutt incident, so-called, because this is something else the judge relied on very heavily, particularly to find that there was protected activity in this case.

[00:11:09] Speaker 03:
Mr. Scholes did not have a good faith belief that this was intentional conduct.

[00:11:13] Speaker 03:
The very fact that Mr. Schultz just five days later in the derail incident challenged Mr. McCauley in front of the crew by saying Mr. McCauley should be the one to throw the derail incident I think is good evidence of the fact that Mr. Schultz was not intimidated

[00:11:27] Speaker 03:
by what happened in the so-called headbutt incident.

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Mr. Sculls was not in fear of his physical safety with regard to Mr. McCauley.

[00:11:35] Speaker 03:
If he were, he never would have challenged Mr. McCauley just five days later, the next time they were together, as he did in the derail incident.

[00:11:44] Speaker 03:
This was a mutual disagreement that was escalated by Mr. Scholes on September the 3rd.

[00:11:49] Speaker 03:
Mr. Scholes was, again, the first person to elevate this to the point of an argument, when Mr. McCauley said that he was checking to see if Mr. Radd had actually ordered Mr. Scholes to do the shoveling on the belt.

[00:12:02] Speaker 03:
Mr. Scholes' comeback to that was, you can ask whoever you want.

[00:12:08] Speaker 03:
And then he proceeded to follow again his pattern of resisting work assignments from Mr. McCauley and challenge him, claiming that he felt like he was being harassed, he was being intimidated.

[00:12:21] Speaker 03:
And at one point when Mr. McCauley tried to give Mr. Scholes a tape measure so that Mr. Scholes could measure the height of the belt under which they were going to be shoveling, Mr. Scholes said he couldn't read it because he was illiterate.

[00:12:33] Speaker 03:
So again, Mr. Scholes is the one who is really driving the chain of events here.

[00:12:39] Speaker 03:
All right.

[00:12:40] Speaker 04:
You've used up your time.

[00:12:41] Speaker 04:
Am I correct that Mr. Scholes has since been discharged and his discharge upheld?

[00:12:48] Speaker 04:
That's correct, Your Honor.

[00:12:49] Speaker 04:
All right.

[00:12:50] Speaker 04:
Thank you.

[00:12:53] Speaker 04:
Ms.

[00:12:53] Speaker 04:
Scott.

[00:13:01] Speaker 01:
May it please the court.

[00:13:03] Speaker 01:
Perhaps I'll work backward from Ms.

[00:13:04] Speaker 01:
Lopez's argument.

[00:13:05] Speaker 01:
This case is simply a substantial evidence challenge to the judge's findings.

[00:13:10] Speaker 01:
And what Harrison County has asked the court to do is simply to relitigate the facts, not to review them under the deferential standard, which simply asks whether the judge could reasonably have reached the conclusions that he did.

[00:13:20] Speaker 01:
And the answer to that question with respect to every issue is yes.

[00:13:23] Speaker 02:
Can you start by focusing on the calculation of backpacks?

[00:13:28] Speaker 02:
How there was sufficient evidence to rely on what the ALJ said was just an estimate that more detailed or specific information would have to be in the record before he could calculate back pay and then just relied on an estimate.

[00:13:47] Speaker 02:
I will agree that maybe the judge's language on this point was imperfect, but the fundamental language, I'm talking about whether there was sufficient, and by the way, the ALJ said you all agree that it was just an estimate too, so that's not a problem with the ALJ's language.

[00:14:02] Speaker 02:
So tell me why, not language, what was the sufficient evidence on which the back pay calculation rested?

[00:14:10] Speaker 01:
The evidence was Mr. Skoll's testimony about the number of hours he typically worked, about his wages, about the amount of overtime he typically worked after Labor Day, and about, to the best of his knowledge, the days during which the mine was idled.

[00:14:23] Speaker 01:
Well, he said he didn't know.

[00:14:24] Speaker 02:
That's true, he said he didn't know, but in its brief... So he didn't purport to offer a number on that, and then Mr. Fazio came in and said, here's the days it was closed.

[00:14:34] Speaker 02:
What evidence was there that Mr. Fazio was wrong?

[00:14:37] Speaker 02:
The district court said, or the ALJ said, I don't believe Mr. Fazio, I guess, for anything.

[00:14:42] Speaker 02:
So what evidence, what affirmative evidence was there in the evidence, in the record in which he could credit Mr. Skoll's

[00:14:52] Speaker 02:
estimate as to the number of days the mine was closed.

[00:14:55] Speaker 01:
Well, other than Mr. Scholes' evidence about what he worked, there wasn't any, but I don't think that that means... Isn't that part of the back... Is that an important part of the back pay calculation?

[00:15:03] Speaker 02:
Do you get paid back pay for a day that the mine's closed?

[00:15:08] Speaker 02:
I do not believe so, no.

[00:15:10] Speaker 02:
And there was no dispute that the mine was closed some number of days during this suspension period?

[00:15:15] Speaker 01:
That's true.

[00:15:16] Speaker 01:
And Scholes, again, gave the judge the best evidence that he had of that.

[00:15:20] Speaker 02:
And I think this goes to... The best evidence that Scholes had was, I don't know.

[00:15:26] Speaker 02:
Unless I'm wrong, if you can point me to something where Scholes said, here is my actual evidence of how many days the mine was closed.

[00:15:34] Speaker 01:
I mean, Scoles told the judge to the best of his knowledge, here's what the mine was closed.

[00:15:40] Speaker 02:
And I think this goes to the point that... Where are you reading the record?

[00:15:44] Speaker 01:
I don't have this side in front of me.

[00:15:46] Speaker 02:
Did he have first-hand knowledge of when the mine was closed?

[00:15:50] Speaker 01:
I don't know that he testified in detail about this.

[00:15:53] Speaker 01:
I think that, you know, and if you look at Harrison's affidavit, the affidavit that was attached, really this is, even assuming that Scholes made an error, this was an error of two days, I think, whether Scholes was entitled to 40 days or 42 days.

[00:16:06] Speaker 02:
Does he have to have substantial evidence for the, well, no, I'm talking about within the 40-day suspension period, whether the mine was closed more.

[00:16:12] Speaker 02:
But does he have to have, do you not have to have substantial evidence for the dollar amount you adopt, or do we have a good enough for government work?

[00:16:20] Speaker 01:
Well, I think the Secretary has to prove the amount back paid by a preponderance.

[00:16:24] Speaker 01:
And at that point, the burden shifts under Commission President to the operator to rebut that by a preponderance itself.

[00:16:30] Speaker 02:
Yeah.

[00:16:30] Speaker 02:
I'm trying to go on that first part.

[00:16:32] Speaker 02:
Did you prove by a preponderance how many days the mine was open?

[00:16:36] Speaker 02:
I think by a preponderance, yes.

[00:16:37] Speaker 02:
I mean... Where is that?

[00:16:39] Speaker ?:
Okay.

[00:16:42] Speaker 02:
I didn't see that.

[00:16:42] Speaker 02:
I saw Mr. Scholes saying, I wasn't working, remember?

[00:16:47] Speaker 02:
I'm not, I think it was close some days, but I don't know.

[00:16:50] Speaker 02:
Am I wrong in that characterization?

[00:16:53] Speaker 01:
I don't think so, no.

[00:16:54] Speaker 01:
The mine was, I think the period, the actual number of days between Scholes' suspension and when he went back to work was 60.

[00:17:01] Speaker 01:
I think he said there were 20 days that he wasn't working as a result of shifts being off or idling, and according to Harrison, I believe it was 18, I think,

[00:17:11] Speaker 01:
But the point, though, is the judge found that that was adequate, and this court and the commission review that for an abuse of discretion.

[00:17:20] Speaker 01:
And I don't think the judge abused his discretion by concluding that that evidence was adequate, particularly when Harrison, who conceded to this court that it was in the best position to rebut that evidence, didn't do it.

[00:17:30] Speaker 02:
I don't believe anything this guy says, and so therefore...

[00:17:33] Speaker 02:
I'm crediting someone who said, I don't know.

[00:17:35] Speaker 01:
I don't think that's what the judge said.

[00:17:37] Speaker 01:
I mean, the judge's decision actually does, I mean, it does say that generally, yes, they didn't find Fasio credible, but it also says, you know, Harrison was in possession of these records and it didn't give them to me.

[00:17:46] Speaker 01:
It also never gave the judge its own estimate of what schools were supposed to get.

[00:17:50] Speaker 02:
It's a little bit much for the ALJ to say, you didn't give me the records when the ALJ didn't have the stage of the proceeding to do that that the ALJ had promised.

[00:18:00] Speaker 01:
Well, I think Harrison never,

[00:18:02] Speaker 01:
were actually objected to the, you know, being quote-unquote denied the opportunity to do that.

[00:18:06] Speaker 01:
And in the case that we cited to this court... No, no, wait, wait, wait, wait.

[00:18:09] Speaker 02:
At that hearing where that estimate came in, they actually kept their objective, but we still disagree.

[00:18:16] Speaker 02:
And the ALJ was quite clear.

[00:18:18] Speaker 02:
You said it's an...secretary says it's only an estimate.

[00:18:21] Speaker 02:
I'm only letting it as an estimate.

[00:18:23] Speaker 02:
At this stage, if we need to get more evidence for back pay, we'll have another proceeding.

[00:18:30] Speaker 02:
I think Harrison's – The Secretary didn't come back with any more evidence?

[00:18:34] Speaker 01:
No, that's correct.

[00:18:35] Speaker 01:
The Secretary – Rested on the estimate?

[00:18:40] Speaker 01:
Yes.

[00:18:41] Speaker 01:
Well, I might disagree to the extent that it's an estimate, but the Secretary rested on the evidence this poll's provided.

[00:18:46] Speaker 02:
Was the ALG wrong to say that you all had described it as an estimate as well?

[00:18:50] Speaker 01:
I suppose not.

[00:18:51] Speaker 01:
I think, though, again, the point is that – So do you agree it's an estimate or not?

[00:18:54] Speaker 01:
I agree that it was enough to satisfy the burden of preponderance of the evidence, and especially on appellate review, it was not abusive discretion for the judge to conclude that that was adequate to prove the damages that Scholes was entitled to.

[00:19:06] Speaker 01:
And I think also, if there were any issue of, you know, Harrison's being denied the opportunity to present its evidence, the fact that it actually presented

[00:19:16] Speaker 01:
the little evidence it chose to present would have to cure any problem.

[00:19:21] Speaker 01:
I mean, like I said, the case that we cited in our brief, at least on this procedural point, Darrell Andrews' trucking, this court explained that in an administrative proceeding like this, as long as the party has notice of the issue and has the opportunity to present evidence and... That's a procedural argument.

[00:19:36] Speaker 02:
I'm trying to get to sufficiency.

[00:19:37] Speaker 02:
And what the ALJ is saying is, because they were objecting

[00:19:43] Speaker 02:
We're objecting to it being offered as though it's an actual calculation of actual damages.

[00:19:47] Speaker 02:
And the ALJ says, right.

[00:19:49] Speaker 02:
But they, the secretary, have characterized it as an estimate.

[00:19:54] Speaker 02:
Mr. Crower, you know I'll accept it only on that basis that it's an estimate, but that's it.

[00:19:59] Speaker 02:
And right before that, should this matter go to the point of a need to determine relief, a more precise calculation is going to be needed.

[00:20:07] Speaker 02:
ALJ again, an estimate, this is JA 237, 238, can only be that, just an estimate.

[00:20:15] Speaker 02:
All right, we're gonna need a more precise one.

[00:20:16] Speaker 02:
Both parties will be involved.

[00:20:19] Speaker 01:
I think then both parties were involved in the post-hearing briefs.

[00:20:22] Speaker 01:
In the post-hearing briefs, the secretary explained, here's the evidence that Skoll's provided.

[00:20:25] Speaker 01:
We're standing by this.

[00:20:27] Speaker 01:
And Harrison provided its evidence.

[00:20:28] Speaker 01:
It provided the affidavit.

[00:20:29] Speaker 02:
So the secretary decided by, at what point did the secretary tell the ALJ that we no longer consider this an estimate, we consider it actually our prima facie case?

[00:20:42] Speaker 01:
I don't know exactly what date that occurred.

[00:20:45] Speaker 01:
You know, again, I think the question is whether the judge abused his discretion on this point.

[00:20:50] Speaker 01:
And to the extent... No, no, my question is sufficiency of evidence.

[00:20:53] Speaker 02:
I'm not making the procedural concern.

[00:20:56] Speaker 02:
I'm asking if there's sufficient evidence to have calculated it under this process and under these showings when everyone agreed the mine was closed a certain number of days and there's no evidence.

[00:21:08] Speaker 02:
No, substantial evidence other than something that was described as an estimate.

[00:21:12] Speaker 02:
Well, I think that's good enough to meet the substantial evidence test at the very least.

[00:21:15] Speaker 02:
OK, but the estimate said Mr. Scholes doesn't know how many days it's open.

[00:21:19] Speaker 02:
It was closed.

[00:21:20] Speaker 02:
That's true.

[00:21:21] Speaker 02:
OK, so what is the substantial evidence?

[00:21:24] Speaker 02:
Mr. Scholes saying, best guess, but I don't know.

[00:21:28] Speaker 01:
That's substantial evidence.

[00:21:29] Speaker 01:
I do think that's enough to sustain the judge's decision in this case, yes.

[00:21:33] Speaker 01:
And again, not because it was standing alone, but because Harrison didn't identify

[00:21:38] Speaker 01:
specific evidence or clear evidence that would have required the judge to ignore what Scholes gave him.

[00:21:45] Speaker 01:
If Harrison has told the court, again, that it was in the best position to provide this evidence, but it repeatedly hasn't done so, it still hasn't told anybody.

[00:21:52] Speaker 02:
He provided it in the ALJ, so I don't believe anything that guy says.

[00:21:55] Speaker 01:
That's within the ALJ's purview.

[00:21:59] Speaker 01:
To the extent that that was error, that I think the only

[00:22:06] Speaker 01:
the only remedy that would be required would be to remand for perhaps a more precise calculation.

[00:22:11] Speaker 01:
But I don't think that's necessary here.

[00:22:12] Speaker 01:
Again, because that evidence was not fair.

[00:22:17] Speaker 01:
So we had the chance to rebut it.

[00:22:18] Speaker 01:
The judge is in the position to make this call, and the judge made the call.

[00:22:23] Speaker 01:
And at least in the context of back pay, that's reviewed for abuse of discretion.

[00:22:26] Speaker 01:
I don't think the judge was wholly without evidence to make the decision.

[00:22:29] Speaker 02:
Sorry, is back pay not reviewed for substantial evidence?

[00:22:32] Speaker 01:
Our brief explains that generally back pay is reviewed for abuse of discretion.

[00:22:36] Speaker 02:
You don't have to have substantial evidence to support the calculations?

[00:22:40] Speaker 01:
We do.

[00:22:40] Speaker 01:
And maybe we just disagree about whether that's substantial evidence.

[00:22:44] Speaker 01:
But especially when it's unrebutted.

[00:22:46] Speaker 02:
No, I'm just trying to pin you down.

[00:22:47] Speaker 02:
Your position is that when it comes to calculating back pay, substantial evidence isn't needed?

[00:22:52] Speaker 01:
No, my position is that before the judge, the secretary has to prove by preponderance that a particular amount of damages was appropriate.

[00:22:58] Speaker 01:
The burden then shifts to the operator to rebut that by preponderance.

[00:23:02] Speaker 01:
And once the ALJ makes a finding, the question on review is whether the ALJ abused his discretion.

[00:23:06] Speaker 01:
assessing that penalty based on that evidence.

[00:23:08] Speaker 02:
Is it abuse of discretion to enter an award that's not based on substantial evidence?

[00:23:13] Speaker 01:
I think the Center for Abuse of Discretion is based on no evidence rather than substantial evidence, but I think if the record were wholly lacking in evidence and the judge made a figure out if Schultz had said, for example, well, I generally make $16 an hour and I usually work

[00:23:28] Speaker 01:
four days a week, and I don't have any idea how many days the line was closed.

[00:23:32] Speaker 01:
Maybe that would be a closer case, but Scoles was clear in this case.

[00:23:35] Speaker 01:
He said, I work this number of shifts a week.

[00:23:37] Speaker 01:
Because this is September and October, I'm typically working two hours per shift overtime, or maybe it was per week.

[00:23:44] Speaker 01:
I apologize.

[00:23:45] Speaker 01:
I can't recall.

[00:23:46] Speaker 01:
But he was very clear in the evidence that he gave the judge.

[00:23:48] Speaker 01:
It was not pure speculation.

[00:23:50] Speaker 01:
I see I'm over my time.

[00:23:54] Speaker 01:
If I might just take one moment to address the question of protected activity.

[00:23:59] Speaker 04:
Sorry.

[00:24:01] Speaker 01:
Most of what Harrison has said to attempt to argue that schools did not engage in protective activity simply misses the point.

[00:24:07] Speaker 01:
The question is whether a minor who has experienced what either was an assault or what he and at least two other minors reasonably perceived to be an assault underground and reported it, engaged in making a complaint that is related to the Mine Act.

[00:24:19] Speaker 01:
And it is the Secretary's position that unequivocally, yes, that is a complaint related to the Mine Act.

[00:24:25] Speaker 04:
I apologize, I have one more quick question.

[00:24:29] Speaker 02:
On the part of the order that says they have to undergo comprehensive specialized training by MSHA personnel and they object that they don't understand what it is they're supposed to do, and your sole response in the brief was what we tell you to do?

[00:24:46] Speaker 02:
Or just ask MSHA and they'll tell you what you need to do?

[00:24:49] Speaker 02:
Is that sufficient?

[00:24:50] Speaker 02:
Is this standard language?

[00:24:52] Speaker 02:
Is that sufficient?

[00:24:54] Speaker 01:
It's not standard language.

[00:24:55] Speaker 01:
It's not unprecedented.

[00:24:56] Speaker 01:
But I think the mining community is small.

[00:24:59] Speaker 01:
This mine works with IMSA very closely.

[00:25:01] Speaker 01:
And shortly after our brief was filed, and certainly before the final briefs were filed in this case, the mine had worked with IMSA.

[00:25:07] Speaker 01:
The training has been completed.

[00:25:08] Speaker 01:
Is that issue no move, then?

[00:25:12] Speaker 01:
I do think it probably is a move.

[00:25:16] Speaker 04:
All right.

[00:25:16] Speaker 04:
Does Ms.

[00:25:16] Speaker 04:
Lopez have any time?

[00:25:20] Speaker ?:
Ms.

[00:25:20] Speaker 04:
Lopez does not have any time.

[00:25:21] Speaker 04:
OK.

[00:25:21] Speaker 04:
I thought you had a minute.

[00:25:22] Speaker 04:
Why don't you take a minute?

[00:25:23] Speaker 02:
Can I ask you quickly whether you agree that the challenge to the specialized training in Istanbul?

[00:25:31] Speaker 03:
Your Honor, we have not received any confirmation from the Secretary that the training has been fully completed, but based on what the Secretary has represented here today, I think we're satisfied.

[00:25:43] Speaker 03:
We had asked for that in writing and hadn't gotten it previously.

[00:25:46] Speaker 03:
Your Honors, I just want to mention one other thing on the back pay.

[00:25:49] Speaker 03:
To come back to your question, Judge Miller, about procedural issues with it, we were not given an opportunity to cross-examine Mr. Scholes on the back pay issue.

[00:26:00] Speaker 03:
Let the parties know about he would give us another opportunity later, both sides, to craft the relief.

[00:26:06] Speaker 03:
All of that discussion was coming in during direct when we objected to.

[00:26:10] Speaker 02:
So you tried to ask cross-examination questions and were shut down?

[00:26:13] Speaker 02:
Is that in the record?

[00:26:14] Speaker 03:
No, Your Honor.

[00:26:15] Speaker 03:
But there was no cross to Mr. Scholes as to his knowledge, how, for example, he knew when the mine was closed and wasn't closed.

[00:26:22] Speaker 03:
And that's because, again, the judge indicated this is not the time to have evidence about the back pay.

[00:26:27] Speaker 03:
So we were deprived of that opportunity.

[00:26:30] Speaker 03:
pursue that as a procedural matter.

[00:26:32] Speaker 03:
Did you try to cross-examine him on that?

[00:26:35] Speaker 03:
No, Your Honor, because the judge had already told us this hearing is not the place to have evidence about the amount of the back pay.

[00:26:42] Speaker 03:
As to your question about abuse of discretion, we would submit that the question of abuse of discretion comes in as to whether a make-hole remedy of back pay is appropriate in the case.

[00:26:54] Speaker 03:
But as to the actual calculation of the back pay,

[00:26:57] Speaker 03:
That is a substantial evidence review standard for the court.

[00:27:03] Speaker 04:
All right.

[00:27:03] Speaker 04:
Thank you.