[00:00:03] Speaker 00: Case number 18-1098, Marshall County Coal Committee at Elk Petitioners versus Federal Nine City and Health and Human Services Commission at Elk. [00:00:12] Speaker 00: Ms. [00:00:12] Speaker 00: Lopez for the petitioners. [00:00:13] Speaker 00: Ms. [00:00:14] Speaker 00: Scott, the respondent, Ms. [00:00:15] Speaker 00: Carr, and Ms. [00:00:16] Speaker 00: Van. [00:00:18] Speaker 05: May it please the court. [00:00:19] Speaker 05: My name is Margaret Lopez, and I represent the petitioners, Marshall County Coal at Elk in this case. [00:00:24] Speaker 05: With me is Mr. Michael Glass. [00:00:27] Speaker 05: I'd like to reserve five minutes of my time for rebuttal. [00:00:31] Speaker 05: Your Honor, an underground coal mine is a very dynamic, constantly changing environment, and this can have adverse consequences for safety. [00:00:39] Speaker 05: This case concerns the mine operator's ability to communicate with its miners about the importance of reporting hazardous conditions to mine management quickly so that they may be timely addressed before anyone is injured. [00:00:52] Speaker 05: Among the issues in the case are the tests for interference under Section 105C3 in the Federal Mine Safety and Health Act, [00:00:59] Speaker 05: This has to do with interference with protected rights. [00:01:01] Speaker 05: Another issue concerns whether there was substantial evidence to support the judges and the commission's finding of interference in this case. [00:01:09] Speaker 05: And finally, another issue concerns whether the commission can order the CEO of petitioners' companies, Mr. Robert Murray, to read a statement drafted by the court to the workforce that essentially was admitting liability of wrongdoing under the Mine Act and interfering with miners' rights. [00:01:30] Speaker 05: Your Honors, this case really focuses on presentations that were made to the workforce at each of the five mines in this case. [00:01:36] Speaker 05: These presentations were made by Mr. Murray, who's a new owner of the mines, in a very competitive market. [00:01:43] Speaker 05: The presentations focused on many aspects of the operation, particularly those concerning production, efficiency, and the other competitive pressures that the mines were facing. [00:01:54] Speaker 05: There was a very small portion of the presentations that concerned safety. [00:01:57] Speaker 05: essentially there were three or four slides that really focused on safety. [00:02:02] Speaker 05: This was a very small part of a very large presentation. [00:02:05] Speaker 05: And the purpose of the presentation was not to school miners for poly-EMSHA, but rather to remind miners of their important role under the Mine Act in keeping management informed of safety issues so that these issues could be quickly addressed. [00:02:20] Speaker 07: Having a safe mine. [00:02:21] Speaker 07: What prompted the need for that reminder to the miners? [00:02:25] Speaker 05: The company was concerned that issues were not being reported. [00:02:27] Speaker 05: MSHA was coming out on hazard. [00:02:29] Speaker 07: According to the slides, what does it reference as prompting the request that submissions be made to them? [00:02:38] Speaker 05: The three slides in the presentation that the court is focused upon have to do with section 103G of the MIND Act, which is a hazard reporting requirement under the MIND Act. [00:02:48] Speaker 05: or at least it has a reporting right for minors. [00:02:51] Speaker 05: It gives minors and minors' representatives the right to report to the administration, the Mine Safety and Health Administration. [00:02:57] Speaker 07: Your slide specifically referenced filings under 103G. [00:03:01] Speaker 07: Yes, they do, Your Honor. [00:03:04] Speaker 07: To the administration. [00:03:05] Speaker 07: Yes, they do, Your Honor. [00:03:07] Speaker 07: You argue a lot about requiring motive, and I just want to be clear on [00:03:18] Speaker 07: What exactly does you mean by motive in this case? [00:03:22] Speaker 07: Thank you, Your Honor. [00:03:23] Speaker 07: Do you mean a motive or the motive? [00:03:27] Speaker 07: Let's start with that question. [00:03:29] Speaker 05: Your Honor, if I understand your question, we mean that the motive for the operator's action has to be based upon concern with protected activity, basically wanting to limit or interfere [00:03:41] Speaker 05: with protected activity on the part of minors. [00:03:43] Speaker 05: So that's our understanding of it. [00:03:45] Speaker 05: So does it have to be the motive or a motive? [00:03:49] Speaker 05: It can be a motive under the prima facie part of the case. [00:03:53] Speaker 05: That's your client's position? [00:03:54] Speaker 07: Because your client has argued different positions throughout this case and has taken a much narrower position in the case that's still pending before this court. [00:04:03] Speaker 07: I'm not going to say it right. [00:04:04] Speaker 07: Menonga Leo, thanks. [00:04:06] Speaker 07: What was your client's position first on a motive versus the motive? [00:04:12] Speaker 07: What is your client's position on that? [00:04:14] Speaker 05: Our client's position is as an affirmative defense the operator can show but for causation, which is that [00:04:20] Speaker 05: the operator was not motivated by protective activity in any way. [00:04:24] Speaker 07: So you're rejecting the in any part aspect. [00:04:27] Speaker 07: I'm sorry? [00:04:27] Speaker 07: You're rejecting the in any part aspect of the causation test that's used for discrimination. [00:04:32] Speaker 05: There's actually a multi-part test. [00:04:35] Speaker 05: The minor or the Secretary of Labor can prove in the first instance in their prima facie case part of the test that motive was a part of what caused the operator [00:04:47] Speaker 05: to act. [00:04:47] Speaker 05: This is under the discrimination test that we believe should be applied here. [00:04:51] Speaker 05: But then the burden shifts to the operator, where the operator can show that the operator was not motivated in any part by protected activity, or that the operator would have acted based on unprotected activity alone. [00:05:05] Speaker 05: So it's a burden shifting type of analysis. [00:05:09] Speaker 07: So you've told me that the language here is plain in the statute. [00:05:13] Speaker 07: Plain language, Chevron step one. [00:05:15] Speaker 07: So the plain language, Chevron step one of the statutory provision, does it require that, would it allow liability if your client had been motivated in any part [00:05:33] Speaker 07: by the exercise of rights under 103-G, the client's position on them. [00:05:39] Speaker 05: Our position on that is that because of that, because language in Section 105-C, the Secretary first has to show that their motive was a part of what caused the operator to give. [00:05:54] Speaker 07: The statute surely doesn't set out a burden-shifting framework. [00:05:57] Speaker 07: Right, that's what the agency has adopted. [00:06:00] Speaker 07: But the statutory language because of, you're saying means, what type of causal or motivational tests are you asking for? [00:06:10] Speaker 05: Your Honor, we are asking the court to apply what basically has been the longstanding case law under Section 105C for proving discrimination, applying that essentially to interference cases, which calls for [00:06:25] Speaker 05: the Secretary of Labor to show that motivation was at least a part of what caused the operator to act, but that then the operator as a defense can show that the operator was either not motivated by protected activity at all or would have acted based on undetected activity. [00:06:40] Speaker 07: At all. [00:06:40] Speaker 05: Correct. [00:06:40] Speaker 07: So if there's in any part, you agree that the statutory language would allow viability if your motive was in any part [00:06:50] Speaker 07: response to the exercise of statutory rights? [00:06:53] Speaker 05: No, Your Honor. [00:06:54] Speaker 05: We also believe that there is an affirmative defense opportunity for the operator, which again exists under the Pestula-Rabanet test. [00:07:00] Speaker 05: It's long been in place. [00:07:02] Speaker 05: It allows the operator to show that even if there was some motivation based on protected activity, the operator would have taken the action that he did based on unprotected activity alone. [00:07:13] Speaker 05: So there is this but-for causation part in the affirmative defense. [00:07:16] Speaker 05: Do you think it means but-for causation? [00:07:17] Speaker 07: Pardon me? [00:07:18] Speaker 07: You think the plain language is but-for causation? [00:07:21] Speaker 05: Yes, Your Honor. [00:07:22] Speaker 07: The plain language for COAS is a substantial factor. [00:07:24] Speaker 05: Ultimately, that's correct. [00:07:25] Speaker 05: If you look at all the elements of the test and the affirmative defenses that are available, we support but-for causation. [00:07:31] Speaker 07: And then is the motive motivated by the actions of filing complaints or motivated by an intent to interfere with rights? [00:07:44] Speaker 07: But it was a plain language answer to that. [00:07:47] Speaker 05: Your Honor, if you're speaking to whether we believe that the act focuses on past protected activity. [00:07:52] Speaker 07: No, I'm asking exactly what I asked. [00:07:55] Speaker 07: And that is, must the motive be, whether retrospective or prospective, must the motive be [00:08:01] Speaker 07: motivated by the filing, the actions of minors who are filing complaints? [00:08:08] Speaker 07: Or must it be motivated by an intent to interfere with their ability to file complaints? [00:08:17] Speaker 05: If I understand the question, we believe that the motive has to be focused on wanting to interfere with their filing complaint. [00:08:24] Speaker 05: So the because language focuses on filing of complaints with Emsha. [00:08:29] Speaker 05: the operator needs to be acting to try to interfere, to deter or chill that type of activity. [00:08:35] Speaker 07: The actor would have to know, this is your plain language interpretation, would have to not only be reacting to conduct by minors, but would have to intend to interfere with known legal rights. [00:08:48] Speaker 07: Correct. [00:08:54] Speaker 05: So Your Honor, we do believe that the MIND Act is susceptible to a plain language or should be interpreted under a plain language type of analysis because of the language and structure of Section 105C, where interference was put directly into the statute itself. [00:09:11] Speaker 05: And I think it's worthwhile to point out that under the Secretary's argument, they focus on the National Labor Relations Act as helping us to interpret the Section 105C. [00:09:21] Speaker 05: And we believe that the Section 8A1 of the National Labor Relations Act, taken in concert with Section 8A4, shows that if Congress wanted there to be a different test for interference and for discrimination, Congress would have divided these out into separate sentences. [00:09:36] Speaker 05: But that's not what occurred in this case. [00:09:38] Speaker 05: Congress put interference directly into that same sentence as discrimination and actually put it right before [00:09:44] Speaker 05: because of language in Section 105C. [00:09:48] Speaker 07: Do you agree that the slides, even taking your approach, that we look only at the slides addressing 103G, do you agree that Marie's position there was motivated by the fact that a lot of claims were being filed? [00:10:11] Speaker 05: Your Honor, Mr. Murray's motivation was not with stopping filing valid documents. [00:10:16] Speaker 07: I'm asking you, do you agree, do you agree that what motivated that part of the presentation was the fact that minors had been filing a lot of complaints that were Murray's view deemed to be unwarranted? [00:10:28] Speaker 07: We do not agree with that, Your Honor. [00:10:30] Speaker 05: What do you agree? [00:10:30] Speaker 05: It's more subtle. [00:10:31] Speaker 05: What does it mean? [00:10:32] Speaker 07: Pardon me? [00:10:32] Speaker 07: What does it mean? [00:10:33] Speaker 07: What do those slides mean? [00:10:34] Speaker 05: The focus was on the use of 103G for completely unrelated safety purposes. [00:10:41] Speaker 05: These were invalid complaints that the slides talk about. [00:10:44] Speaker 05: Right. [00:10:45] Speaker 07: And so that's what motivated his presentation, was what he said were invalid complaints. [00:10:50] Speaker 05: Invalid complaints that had no merit. [00:10:52] Speaker 07: So there was no safety merit to that? [00:10:55] Speaker 07: Correct. [00:10:56] Speaker 07: OK. [00:10:56] Speaker 07: But you agree that the filing of complaints [00:11:00] Speaker 07: that, in his view, had no safety merit is what motivated that aspect of the resolution. [00:11:04] Speaker 05: Invalid complaints, Your Honor. [00:11:06] Speaker 07: Invalid complaints. [00:11:06] Speaker 07: So just to be clear – we'll give you some time – but just to be clear, so your position is that the reason it didn't trigger this plain language was that he was not intending to interfere with what he understood to be their legal right. [00:11:21] Speaker 07: He thought they were exercising something that wasn't legally protected. [00:11:27] Speaker 05: The PowerPoint presentations make it very clear, as through the transcript, that Mr. Murray said multiple times, we are not going to interfere with your 103G rights. [00:11:36] Speaker 05: You have the right to call MSHA. [00:11:37] Speaker 05: We just want you to let us know when there's a safety issue. [00:11:40] Speaker 05: That's something that's very important. [00:11:41] Speaker 07: I'm just talking about what prompted this, and I just want to make sure I'm clear on your understanding. [00:11:46] Speaker 07: And it's that there's no question here that the filing of complaints was something that was being reacted to here. [00:11:52] Speaker 07: It's just that [00:11:54] Speaker 07: Murray's or Marshall Cole's view was that those were not legally protected complaints because they didn't, in his view, address safety. [00:12:02] Speaker 07: But clearly, the filing of those complaints triggered this part, at least this part of the presentation. [00:12:08] Speaker 05: The concern, again, Your Honor, was that the complaints were not valid, and therefore... I'm not asking about the concern. [00:12:14] Speaker 07: I'm asking about what triggered. [00:12:16] Speaker 05: It was the filing of invalid complaints, complaints that were not going to further the cause of safety and actually were detrimental to safety because they were calling safety people off of doing their safety-related duties to walk around with the line inspector to look at something that didn't exist. [00:12:31] Speaker 05: They were being used for the union's purposes. [00:12:34] Speaker 05: I see I'm into my rebuttal time. [00:12:35] Speaker 07: We'll give you some extra time. [00:12:36] Speaker 05: All right, thanks. [00:12:37] Speaker 07: I've been interrupting you a lot, so if there's more points, or if my colleagues have questions. [00:12:43] Speaker 06: Now, in terms of the reading requirement, the Secretary argues that that's been – that hasn't been preserved. [00:12:53] Speaker 06: That is the Secretary's argument, yes. [00:12:55] Speaker 06: Yeah. [00:12:56] Speaker 06: And your position? [00:12:59] Speaker 06: Is that the reference to, oh that's over the top, that that was enough to preserve it? [00:13:06] Speaker 05: As well as the other references that we mentioned in our brief, there actually were at least five times [00:13:13] Speaker 05: when at one point or another in the briefing or in that hearing with the ALJ, we mentioned or actually raised an objection to the personal reading requirement. [00:13:26] Speaker 05: And I'd actually like to also note. [00:13:28] Speaker 04: Where can you point to a single place where someone on your behalf or your client said, we object to that as a legal matter, and then we were preserving that objection? [00:13:38] Speaker 04: Well, Your Honor, the objection is over the top. [00:13:41] Speaker 05: Okay. [00:13:41] Speaker 04: That's not an objection to the last item. [00:13:44] Speaker 05: Well, Your Honor, in the first opening brief to the Commission, which is in Appendix 226, as well as in the first petition for discretionary review that we filed with the Commission, it was in Appendix 193-94, we noted that there was no indication in the judge's order as to who will prepare or approve the statement to be read, and that order potentially could infringe on First Amendment rights. [00:14:07] Speaker 04: Who has the objection to the order? [00:14:09] Speaker 04: All that says is we don't know who's going to prepare it, not that we object to anyone preparing it because we shouldn't have to read it. [00:14:17] Speaker 05: Your Honor, that actually goes to a key point that we would like to make with respect to this forfeiture argument, which is that the nature of the remedy changed considerably throughout the course of this case, and ultimately it became a statement that was drafted completely by the administrative law judge. [00:14:32] Speaker 05: a statement that was different than the one that the companies had proposed. [00:14:38] Speaker 05: And I'd also like to point out, but then the first- No, no, no, no, no. [00:14:40] Speaker 04: You're missing what Judge Perot asked you, which is, when did you object? [00:14:45] Speaker 04: And I'm asking you the same thing. [00:14:48] Speaker 04: You go into law school, you understand the game. [00:14:50] Speaker 04: Where is it in the record that you objected? [00:14:53] Speaker 04: We object, as a legal matter, to any requirement that we have to read a notice. [00:15:00] Speaker 04: Your Honor. [00:15:02] Speaker 05: Absolutely, Your Honor. [00:15:15] Speaker 05: We reiterated that using the notice language was what we felt was the proper step to take if a reading was going to be required at all. [00:15:24] Speaker 05: And we stated that compelling a reading implicates First Amendment protections. [00:15:29] Speaker 05: So this was raised. [00:15:29] Speaker 07: And the ALJ in her first decision... That's the footnote on your very last, your penultimate sentence in that brief, and you says it implicates. [00:15:39] Speaker 07: Is that the same as raising? [00:15:41] Speaker 05: That was the intent behind that word, Your Honor. [00:15:45] Speaker 04: Potentially. [00:15:46] Speaker 04: That's not an objection. [00:15:49] Speaker 05: Well, that was our intent with that word. [00:15:51] Speaker 04: This is an easy objection to make if you really have the objection. [00:15:54] Speaker 04: If you go back, I know you have your job to do, but you can't take that seriously. [00:15:58] Speaker 04: There's no objection here. [00:16:00] Speaker 04: You're supposed to raise it with the ALJ in the first instance. [00:16:03] Speaker 05: And Your Honor, I would like to point out that in the first decision written by the ALJ in November 2015, she actually analyzed under the National Labor Relations Act the personal reading case law. [00:16:14] Speaker 05: So she understood that this was going to be [00:16:16] Speaker 04: an issue, and she did analyze whether she was… No, no, no, she was writing an opinion which covered the bases, and that was among the things that she covered. [00:16:26] Speaker 05: And she was analyzing the same case law that we have cited to show that the personal reading requirement is not appropriate. [00:16:32] Speaker 06: I don't think I'm getting the nature of your objection. [00:16:35] Speaker 06: So as I read this footnote, which is on remand, right, it's not the initial [00:16:41] Speaker 06: But even then, if the secretary seeks to include further material, it could potentially constitute compelled speech. [00:16:51] Speaker 06: So in your view, it's not the fact of the reading requirement. [00:16:55] Speaker 06: It's what it includes. [00:16:58] Speaker 05: Is that right? [00:16:59] Speaker 05: That was the nature of our concern. [00:17:01] Speaker 05: The reading requirement changed to one that was drafted by the government rather than by us. [00:17:06] Speaker 05: So what is the content that your client objects to? [00:17:12] Speaker 05: The statement differs significantly from the notice that was posted at the mine, and in part it notes that the Murray Energy Corporation and its West Virginia subsidiaries have violated the federal [00:17:25] Speaker 05: Mind, Safety, and Health Act and has ordered me to read and abide by this notice. [00:17:28] Speaker 05: That's the very first sentence in the statement. [00:17:32] Speaker 06: So it's the fact of violation, that having to say that Murray violated, that's the First Amendment problem? [00:17:39] Speaker 05: That is one of the issues. [00:17:41] Speaker 05: And the case law under the National Liberations Act shows that that is really a shaming type of action to order an individual to do to stand up [00:17:47] Speaker 05: in front of, basically in this case, his employees and say, I violated the law. [00:17:52] Speaker 05: I did the law. [00:17:52] Speaker 06: So Murray contemplated that when the parties, the secretary would agree to reading a statement that did not include an acknowledgment that the company had violated the law? [00:18:02] Speaker 05: This statement that we put forward, Your Honor, is the one that was posted, which reiterates the Miners' Rights under the Mine Act to file complaints with the Mine Safety and Health Administration and does not discuss, in one way or another, the company's view [00:18:17] Speaker 05: or admission, basically, of any kind of violation of the law. [00:18:21] Speaker 05: It's a fair student. [00:18:22] Speaker 06: But even in the very beginning, there was no contemplation that it would be unilaterally drafted by Murray, right? [00:18:28] Speaker 05: It would have to be approved by the Secretary. [00:18:30] Speaker 05: That's correct, Your Honor. [00:18:31] Speaker 05: It was going to be mutually drafted by both parties. [00:18:33] Speaker 05: That was our understanding. [00:18:35] Speaker 05: And that's the way the notice was drafted, but that's not what ended up happening with the person reading statement. [00:18:41] Speaker 06: And that didn't give enough note – your position is that [00:18:45] Speaker 06: The contemplation before the ALJ initially that a senior officer would have to read a statement that the secretary agreed to that had yet to be drafted, that wasn't enough to put Marie on notice that if there was going to be a First Amendment objection, it needed to be clearly raised. [00:19:04] Speaker 05: That's your position. [00:19:06] Speaker 05: I believe so, Your Honor, if I understand what you're saying. [00:19:08] Speaker 05: Our understanding of what the remedy was going to be [00:19:11] Speaker 05: was quite different than what, I mean, very different than the way it ended up evolving over the course of the case. [00:19:18] Speaker 05: And as soon as we realized that this was actually going to be an ALJ drafted statement and saw what the statement was, we fully briefed those issues to the commission. [00:19:27] Speaker 05: That was after the remand. [00:19:29] Speaker 04: And is there some place, once again, where you said you fully briefed those issues? [00:19:34] Speaker 04: Where did you fully brief those issues? [00:19:36] Speaker 05: That was in our briefing to the commission after the remand. [00:19:40] Speaker 05: it resulted in the last decision from the Commission that's at issue in this case. [00:19:45] Speaker 05: The second decision. [00:19:49] Speaker 07: And when you say the issue that there's a First Amendment problem? [00:19:53] Speaker 07: There could be. [00:19:55] Speaker 07: It's that footnote six that you're pointing to. [00:19:57] Speaker 07: Where's the full briefing of the, it violates the First Amendment for him to read the statement? [00:20:04] Speaker 07: It does violate the First Amendment? [00:20:09] Speaker 07: You're talking about the supplemental brief regarding issues remanded to the ALJ? [00:20:13] Speaker 05: It was after the remand to the ALJ. [00:20:15] Speaker 05: I'm sorry, Your Honor. [00:20:16] Speaker 05: I don't have that citation in front of me. [00:20:18] Speaker 07: I'm looking at, Jay, 343, that brief. [00:20:21] Speaker 07: Is that the one you're talking about? [00:21:17] Speaker 07: That's correct, Your Honor. [00:21:19] Speaker 05: It begins on page 349, the argument. [00:21:24] Speaker 07: Okay, so that's about whether the aim of that, that's back to the adding additional language would be punitive and not remedial. [00:21:36] Speaker 07: Do you cite any First Amendment cases here? [00:21:40] Speaker 05: No, Your Honor, it's just mentioned in a footnote. [00:21:43] Speaker 05: Okay. [00:21:43] Speaker 05: We're back to the same footnote. [00:21:44] Speaker 05: Okay. [00:21:44] Speaker 05: Footnote six. [00:21:45] Speaker 05: This week. [00:21:49] Speaker 05: Okay. [00:21:49] Speaker 05: But Your Honor, we maintain under the National Labor Relations Act case law and this court's decision in HTH, this is not an appropriate remedy, regardless of whether it's a first-manage violation or not. [00:22:00] Speaker 05: We have an alternative argument that we've been advancing in this case, and that actually – the National Labor Relations Act argument is actually the one that the administrative law judge had analyzed in her first decision. [00:22:14] Speaker 07: We'll give you some time. [00:22:18] Speaker 07: We'll give you some time to rebuttal. [00:22:19] Speaker 05: Thank you. [00:22:39] Speaker 02: May it please the Court, Emily Toler-Scott for the Secretary. [00:22:43] Speaker 02: The Secretary agrees that miners' participation in safety matters is essential to the enforcement of the Mine Act. [00:22:48] Speaker 02: The Mine Act places the responsibility for preventing safety and health hazards on mine operators with the assistance of miners. [00:22:55] Speaker 02: And in the legislative history, Congress explained that if our national mine safety and health program is to be truly effective, miners will have to play an active part in the enforcement of the Act. [00:23:05] Speaker 02: Miners should be able to report safety and health hazards to mine operators, but some operators may take no action to correct hazards that are reported. [00:23:15] Speaker 02: Some operators retaliate against miners for making reports, and some operators discourage miners from making reports. [00:23:21] Speaker 02: So Congress created a mechanism for minors to make those reports to MSHA when they don't feel that they can make them to the operators. [00:23:28] Speaker 02: And that's the combination of Section 103G, which gives minors the right not just to make complaints, but to make complaints that are required to remain anonymous. [00:23:37] Speaker 02: And by Section 105C, which protects minors both from discrimination for making complaints and from interference with making complaints. [00:23:45] Speaker 02: Murray's position here would hollow out both of those provisions while the secretaries would ensure their vitality. [00:23:53] Speaker 07: I'd like to begin then with... The complaints have to be right, have to be valid at the end of the day. [00:23:59] Speaker 07: Does a minor have to be right that there was an actual safety violation in order to be protected? [00:24:04] Speaker 02: No. [00:24:04] Speaker 02: Section 103G gives minors the rights to make those complaints when, I apologize, I don't have the exact language, but reasonably believe or have grounds to believe. [00:24:12] Speaker 02: So there is some element of [00:24:16] Speaker 02: Miners protected regardless of whether they're right. [00:24:18] Speaker 02: And in the Muncie case, this court held under the Cole Act that even complaints that are frivolous or not made in good faith would still be protected. [00:24:25] Speaker 02: And it's important to note here that simply because – And why made that holding yet under this statute? [00:24:30] Speaker 02: Not that I'm aware of, Your Honor, but Commission ALJ is – I believe the union's brief cites a few of those cases have applied the Muncie holding to 103G. [00:24:38] Speaker 07: It doesn't matter – Is there any differential in the language between the two provisions that would say [00:24:43] Speaker 07: even frivolous ones were protected under the Cole Act, but here they're not? [00:24:49] Speaker 02: I don't think there is any basis for that interpretation. [00:24:52] Speaker 02: The MINE Act expanded the protections that existed under the Cole Act. [00:24:58] Speaker 02: I would have to look at the precise language to give you a question – or to give you a better answer to that. [00:25:02] Speaker 02: I don't have the Cole – or Cole Act language in front of me, but I'm not aware of [00:25:06] Speaker 02: any case where the Mine Act has restricted the scope of rights that were guaranteed by the Cole Act, because the whole point of the Mine Act was, of course, to make mines safer and to expand miners' rights. [00:25:18] Speaker 06: I understand, Ms. [00:25:18] Speaker 06: Scott, that this is not the facts in this case, but could an operator have a policy that required all employees to report any safety concerns to the operator? [00:25:34] Speaker 06: without linking it to whether they're making a complaint or not. [00:25:38] Speaker 02: This may be kind of an unsatisfying answer. [00:25:40] Speaker 02: I'm going to say it depends on the totality of the circumstances. [00:25:43] Speaker 02: It is not the secretary's position, though, that reporting policies like that are across the board unlawful. [00:25:49] Speaker 02: That is absolutely not the secretary's position. [00:25:51] Speaker 02: Instead, what matters is, again, the totality of the circumstances. [00:25:54] Speaker 02: So if a policy like that provided some way to preserve anonymity, to guarantee miners' anonymity, I think that would help to [00:26:04] Speaker 02: help make that policy lawful. [00:26:06] Speaker 02: If there were no evidence of hostility or animus, again that would be a factor that would tend to make a policy more lawful. [00:26:13] Speaker 02: And if it were [00:26:15] Speaker 02: limited in scope in some way or demonstrated some tailoring to accommodate miners' rights. [00:26:20] Speaker 02: And again, this is exactly what the secretary's test for interference contemplates. [00:26:24] Speaker 02: First, the secretary establishes reasonable tendency to interfere, but the second step of the secretary's test is a really important one, because it does accommodate for a mine operator's legitimate and important – legitimate and substantial, I guess I should say – need to be informed about hazards at mines. [00:26:40] Speaker 02: So some policies would absolutely be lawful. [00:26:43] Speaker 02: This policy was not, not even close. [00:26:47] Speaker 07: You argue about Chevron deference for the Secretary's litigating position, interpreting the language, the because of language. [00:27:03] Speaker 07: Is the Secretary's position binding on the Secretary? [00:27:07] Speaker 07: I mean, can the Secretary just, in the next case, adopt a different position? [00:27:12] Speaker 07: Or when you claim Chevron deference, does that mean the Secretary's agreed to [00:27:17] Speaker 07: find herself or himself absent, a sort of reasoned explanation for the change of position? [00:27:27] Speaker 02: I think that is the secretary's position. [00:27:28] Speaker 02: As our brief explains, this is the position the secretary has consistently taken since the Franks case before the commission in every interference case, not just before the commission, but I guess only this one before the courts of appeals. [00:27:41] Speaker 02: I will also just note that [00:27:43] Speaker 02: With respect to the litigating position issue, the Secretary is in kind of a strange bind when it comes to embodying interpretations in case – in 105C cases. [00:27:54] Speaker 02: So normally, the Secretary issues a citation, right, to say here's what this regulation means or here's how we interpret the Mine Act. [00:28:01] Speaker 02: The secretary can't do that under Section 105C. [00:28:03] Speaker 02: The mechanism the secretary has for articulating his interpretation under 105C is filing a complaint with that interpretation, which is precisely what the secretary has done in this case. [00:28:15] Speaker 02: And I will also note, as our brief explains, the court has repeatedly explained that the secretary's litigating position in any event is an exercise of the secretary's discretion. [00:28:25] Speaker 02: I think, Judge Millet, your exchange with Ms. [00:28:29] Speaker 02: Lopez illustrates that [00:28:32] Speaker 02: Section 105C does not have a plain meaning. [00:28:35] Speaker 02: It's long. [00:28:35] Speaker 02: It does say because, but because doesn't necessarily require motive, particularly in the context of the text of the statute, but more importantly, in the context of the remedial purpose of the Mine Act. [00:28:48] Speaker 02: I'm not aware of, and Murray has not cited, any case where the court has adopted a strict, literal, hyper-technical reading of Section 105C or of its predecessor under the Cole Act, Section 110 of the Cole Act. [00:29:01] Speaker 02: Instead, every case that I'm aware of, this court has rejected an interpretation like that and has instead looked to consequences, to congressional intent, and to the remedial purpose of the MIME Act. [00:29:12] Speaker 02: And the secretary's interpretation is the one that can be squared with each of those things, whereas Murray's cannot. [00:29:20] Speaker 02: The legislative history, I think, makes this very clear. [00:29:23] Speaker 07: Is this just an anti-retaliation provision? [00:29:26] Speaker 02: Section 105C? [00:29:28] Speaker 02: No, it's not just an anti-retaliation provision. [00:29:30] Speaker 02: I think the prohibition on discrimination goes to anti-retaliation, but interference is separate and it's different. [00:29:37] Speaker 02: So interference is not aimed just at retaliatory action. [00:29:40] Speaker 02: Interference is aimed at threats that have the – or not threats, but actions that have the effect of interfering. [00:29:47] Speaker 02: Congress said in the legislative history that Section 105C must be interpreted in [00:29:52] Speaker 02: expansively so that minors will not be inhibited in any way from exercising their rights. [00:29:56] Speaker 02: Congress didn't just say, minors won't be punished, minors won't be retaliated against. [00:30:00] Speaker 02: Congress made a distinction here that interference or that Section 15C has to encompass both of these things, not just punishment. [00:30:07] Speaker 06: So this case, as some of the commissioners thought, there's evidence here of a motive. [00:30:15] Speaker 06: So give us the kind of case that you're thinking is at stake. [00:30:22] Speaker 06: in the distinction between your position, interference, and the operator's position that there has to be some motive. [00:30:31] Speaker 06: What would fall by the wayside were they to prevail? [00:30:35] Speaker 02: Some examples are in our brief, but another one is Montegaglia, for example. [00:30:39] Speaker 02: So a case where an operator, perhaps even acting in good faith, [00:30:43] Speaker 02: And I don't mean to mischaracterize the facts of mining daily. [00:30:45] Speaker 02: It involves bonus plans, incentive plans, essentially, that were created at mines. [00:30:50] Speaker 02: So I am not talking about these plans or the plans in that case. [00:30:53] Speaker 02: But some bonus plans could create so much disincentive for miners not to report hazards that it would create interference with their rights, even if a mine operator was acting in good faith. [00:31:06] Speaker 02: And so that's an important concern, I think. [00:31:10] Speaker 06: Other concerns would be that you're really asking the commission and the courts to get involved in weighing the degree of safety interference or reporting interference and the managerial prerogatives. [00:31:27] Speaker 06: I mean, that's sort of what the two prongs of the Frank's test contemplate. [00:31:31] Speaker 02: Yes, I think that's right. [00:31:32] Speaker 02: And I don't think that's all that different from the kind of balancing that the commission and the courts engage in in a variety of anti-discrimination burden shifting approaches. [00:31:42] Speaker 02: What about under the NLRA? [00:31:46] Speaker 06: There's not really a two-pronged test for the interference under the NLRA. [00:31:50] Speaker 02: No, that's true. [00:31:51] Speaker 02: I think that, or my understanding of the NLRA is, or the interpretation of the NLRA is just [00:31:56] Speaker 02: reasonable tendency to interfere, end of story. [00:32:00] Speaker 02: I think the secretary's test is more reasonable than that because it does have the second element, which accommodates an operator's legitimate business needs and doesn't give the secretary carte blanche, as Marie has suggested, to go around filing complaints every time an operator took some action that arguably might deter a minor from filing complaints. [00:32:19] Speaker 02: Again, the secretary still is going to have a significant burden [00:32:22] Speaker 02: to meet in these cases to prove interference, a reasonable tendency to interfere. [00:32:27] Speaker 02: In the first instance, the Secretary is not always going to be able to establish that in all likelihood. [00:32:31] Speaker 02: And then second, the operator will also have the opportunity to rebut that, to provide a legitimate and substantial reason whose importance outweighs the harm to protected rights. [00:32:42] Speaker 04: It's not inconsistent with the NORA. [00:32:46] Speaker 04: No, I don't. [00:32:47] Speaker 04: The NLRB and measuring interference cases would take into account the business interests asserted by the employer. [00:32:54] Speaker 02: Right. [00:32:55] Speaker 02: Oh, okay. [00:32:55] Speaker 04: So yes, I mean, I don't – That so-called second test is all encompassed in NLRA cases. [00:33:04] Speaker 02: Which I think then just illustrates again that the Secretary is not asking for anything novel or unusual or difficult. [00:33:11] Speaker 02: The Secretary's test is just consistent with how interference is analyzed in [00:33:15] Speaker 07: The LRA, the statutory provision there, doesn't use the because of language. [00:33:21] Speaker 02: That's true, it doesn't. [00:33:23] Speaker 02: Doesn't that seem kind of an important difference? [00:33:26] Speaker 02: It is an important difference, but the Secretary's sole justification for the reasonableness of the test is not just the LRA, it's one element of [00:33:36] Speaker 02: reason that the Secretary's test is reasonable. [00:33:38] Speaker 02: But the NLRA's context is also different from the MINAC context, and I think this is an important point. [00:33:43] Speaker 02: Mining is very, very, very dangerous, and IMSA is at mines a lot but cannot always be there, and so miners and mine operators are in the best position to identify hazards. [00:33:53] Speaker 02: And I don't think – and in enacting the MINAC, Congress was very clear that miners have to be involved, they have to feel like they are entitled to make complaints. [00:34:04] Speaker 02: And if an adopting a test that required motive would mean that, at least in some cases, minors who were the victims of conduct that had the effect of deterring them from exercising their rights would not be able to establish that action was unlawful. [00:34:18] Speaker 02: And that's not what Congress meant. [00:34:19] Speaker 07: Why wouldn't that same language apply to the discrimination phrase? [00:34:22] Speaker 07: Why would Congress want discrimination to require motivation? [00:34:26] Speaker 07: Because it's discrimination against them for exercising their rights. [00:34:29] Speaker 07: So why, given what you've just said, would Congress have wanted [00:34:34] Speaker 02: and this is under administration tests, a causal element for discrimination or discharge. [00:34:49] Speaker 02: Congress said in the legislative history when it added or otherwise interfere with to the Cole Act, Congress said this is meant to broaden the existing protections. [00:34:58] Speaker 02: So what was already prohibited by the Cole Act was retaliation, retaliatory, discriminatory action. [00:35:04] Speaker 02: But Congress said this is supposed to be broader. [00:35:06] Speaker 02: And it added interference in this, added the interference language particularly, dropped it in between the discrimination, the pivoted types of discrimination and the because language. [00:35:15] Speaker 02: But Congress said this is broader, this is different, and it must be construed expansively. [00:35:19] Speaker 02: to ensure that minors are not inhibited in any way from exercising their rights. [00:35:22] Speaker 02: And I think that language is indicative of Congress's attention to effect and not just to motive. [00:35:30] Speaker 02: Congress said what matters is minors being or ideally not being inhibited in any way from exercising their rights, and the Secretary's test is consistent with advancing that purpose. [00:35:40] Speaker 06: I'm still just circling back on – you said in your brief you talk about what's at stake in terms of [00:35:46] Speaker 06: the motive-based versus the interfering effects-based analysis. [00:35:52] Speaker 06: And one of the things that I didn't really follow in your brief was why you think there's this prospective-retrospective distinction. [00:36:00] Speaker 06: It seems to me one could discriminate prospectively just as one could interfere prospectively. [00:36:05] Speaker 06: So I don't find that very convincing. [00:36:08] Speaker 06: Maybe you could help me out. [00:36:10] Speaker 02: I don't think that as a rule, discrimination is retrospective and interference is prospective. [00:36:17] Speaker 02: Generally, that's probably how it shakes out. [00:36:19] Speaker 06: But for example, if one could show that a bonus policy was adopted with the intent to discriminate between people who would exercise their reporting rights and those who wouldn't. [00:36:32] Speaker 06: And nobody had done it yet. [00:36:34] Speaker 06: But it's just saying, we're looking ahead, and we want to make sure that doesn't happen. [00:36:38] Speaker 06: I mean, that could be, if motive were shown, discrimination among minors based on [00:36:45] Speaker 06: that characteristic. [00:36:47] Speaker 06: So it just, it doesn't work conceptually for me. [00:36:50] Speaker 06: And so I'm still trying to really understand what the core body of cases is that you think would not be actionable, that needs to be actionable under your reading. [00:37:01] Speaker 06: would not be actionable under the operator's reading, that would be actionable. [00:37:03] Speaker 02: I think maybe the better distinction than Judge Pillard would go to remedies. [00:37:08] Speaker 02: So in a discrimination case, minors are going to receive – I mean, there are particular remedies under the MINAC, such as temporary reinstatement provisions, but minors are also entitled generally in commission cases to back pay, to expunging of records, things like that, that are traditional remedies in discrimination cases. [00:37:26] Speaker 02: But an interference remedy [00:37:28] Speaker 02: can be different, like the remedy in this case, for example, not the statement reading requirement, which is a separate issue, but enjoining the operator from taking action like this in the future, I think, is important. [00:37:39] Speaker 06: Right, but if there were proof that the interference were intentional, that remedy would be available under the operator's perspective. [00:37:47] Speaker 06: So again, I thought that the saying, well, you know, promise of benefit or threat of [00:37:58] Speaker 06: The reprisal covers some adverse action that may not be formally listed as discrimination, but it could be present. [00:38:10] Speaker 06: That kind of action and remedies for that kind of action would be available, presumably, in a case in which the interference would prove to be motivated. [00:38:21] Speaker 02: There's also an element in discrimination cases, though, that the secretary has to prove a minor has suffered an adverse action and a threat. [00:38:27] Speaker 06: Right. [00:38:28] Speaker 06: So there's going to be – we're assuming that interference – there is an interference action. [00:38:33] Speaker 06: The question is, if the interference action required a motive, what kind of case that's [00:38:42] Speaker 06: from the secretary's perspective, would no longer be actionable. [00:38:45] Speaker 06: And you said, well, a case that would get this kind of remedy. [00:38:48] Speaker 06: And my response to that is, no, if intentional interference were shown, that remedy would still be available. [00:38:54] Speaker 06: Right? [00:38:56] Speaker 02: I think so. [00:38:57] Speaker 02: OK. [00:38:58] Speaker 02: I guess I suppose this may be an unsatisfying answer too, but these are fact-based things. [00:39:04] Speaker 02: I don't think the secretary can anticipate every clever means that a mine operator might identify to [00:39:11] Speaker 02: or not even deliberately, but that might occur out of mind, whether deliberate or not. [00:39:17] Speaker 02: I've tried to give you a few hypotheticals. [00:39:19] Speaker 02: I wish I could give you more ones that you found more persuasive, but we don't see them a lot. [00:39:27] Speaker 02: But they're out there. [00:39:28] Speaker 02: And I think changing, I'll wrap up here, but just changing one fact in this case, for example, I think really, hopefully we'll make this point a little more forcefully for you, [00:39:37] Speaker 02: If none of the minors in this case had filed Section 103G complaints and instead Mr. Murray had simply convened these awareness meetings and given precisely the same speeches, but without any evidence that this action had been precipitated by the complaints or without any evidence of animus, [00:39:53] Speaker 02: then according to Murray, that wouldn't be an interference violation. [00:39:56] Speaker 02: But I don't think that that's a reasonable outcome. [00:39:58] Speaker 02: It's certainly not one that Congress intended when it said that minors must not be inhibited in any way from exercising their rights. [00:40:04] Speaker 02: And I don't think that the court should accept an interpretation that would lead to that result. [00:40:07] Speaker 04: I mean, you're arguing intentional means the action will obviously have adverse effects, and the employer has reason to know that. [00:40:17] Speaker 04: and anyone looking at it can reasonably assume that the protected class will feel the same. [00:40:24] Speaker 04: It does not mean you've got to go into the head of the employer and be able to prove that that's what the employer sat down and thought before acting. [00:40:32] Speaker 04: This is a weird discussion for me, because in the NLRB cases, that's certainly what we tend to do. [00:40:38] Speaker 04: Intentional means you know you have every good reason to know it's going to have this effect. [00:40:45] Speaker 04: and those who are going to suffer from it are certainly going to be threatened or whatever, and you're held responsible, and we assume that you had the motive, so-called. [00:40:58] Speaker 04: We're confusing intentional and motive here in a way that I don't think the law really supports. [00:41:02] Speaker 04: Yeah, motive can mean and intentional can mean someone sat down and designed the plan, a bad plan, and then implemented it. [00:41:10] Speaker 04: It also has been read to mean intentional. [00:41:12] Speaker 04: You implemented something that, if you thought about it carefully, you had every reason to know it was going to have adverse effects on protected parties. [00:41:21] Speaker 04: And we hold that that's an intentional action. [00:41:24] Speaker 04: I'm missing something here. [00:41:25] Speaker 02: I think maybe there is a [00:41:27] Speaker 02: distinction between intent and motive, as you've suggested, and that I agree that it's not totally clear to me how or what the supposed plain meaning of. [00:41:39] Speaker 04: Well, we're reading because very broadly or in a very strange way to assume that it includes both, especially given the legislative history. [00:41:49] Speaker 04: If we're reading motive the way I'm suggesting, that you've got to be able to prove [00:41:54] Speaker 04: by a certainty that someone actually thought to do what was being done, as opposed to someone having the intention to do something that clearly was going to have the adverse effects that it's having. [00:42:06] Speaker 02: Right. [00:42:06] Speaker 02: I don't think the Secretary has to prove – or under the Secretary's test, either of those would be required. [00:42:11] Speaker 04: No, but I'm not trying to understand what the difference is. [00:42:13] Speaker 04: I mean, following up on what Judge Pill was asking, I'm not sure what the difference is between the two of you. [00:42:18] Speaker 04: can ask the other side if the other side means to say, unless you can show – if the cause means motive, in the sense we're talking about, that seems to be a very strange interpretation. [00:42:28] Speaker 02: Well, I hope that counsel Murray can help you with that issue, Judge Edwards, because I agree that it's not clear to me exactly how the operator would like motive to work in their test. [00:42:38] Speaker 07: Well, I thought they were quite clear that they wanted – they wanted [00:42:42] Speaker 07: A strict motive standard that requires a motive to interfere with known legal rights. [00:42:54] Speaker 02: We simply just disagree about this. [00:42:55] Speaker 02: And again, the secretary's test is nothing novel. [00:42:59] Speaker 02: It is simply how this, or not just how, but consistent with how this court has approached Section 105C cases and how generally interference cases in other areas of the law are approached. [00:43:10] Speaker 07: I'm just asking because their argument is, look, we want to promote safety, and we'd like to know as soon as possible about safety problems. [00:43:20] Speaker 07: Or that is at least, a mining company could [00:43:25] Speaker 07: justifiably think, please tell us if you see something, please tell us right away. [00:43:30] Speaker 07: Has the secretary or the administration approved, blessed certain policies that a company has adopted for encouraging reporting [00:43:45] Speaker 07: Have you found something that encourages reporting by minors to the company in a way that is still deemed to be consistent with the statute not violating 815? [00:43:54] Speaker 07: Let's see. [00:43:55] Speaker 02: I'm obviously outside the record to answer that question, Judge Millett. [00:43:58] Speaker 07: But if there's decisions or secretary positions, it would be a public record once. [00:44:02] Speaker 02: I will just say that many, many minds have injury reporting policies or requirements, and the secretary's [00:44:10] Speaker 02: The reason that this policy, and I'll say, I guess, actually, generally more, the awareness meetings, which I mean to encompass both the policy itself and the management. [00:44:19] Speaker 07: I get the argument about this case. [00:44:20] Speaker 07: I'm sorry to interrupt, but I'm just trying to see, is there, if someone wanted to do it right, is there an example or something they could go to to know how to do it? [00:44:29] Speaker 07: Or do they have to sort of try and? [00:44:32] Speaker 02: I don't think they would just have to try. [00:44:33] Speaker 02: I mean, I would hope that [00:44:36] Speaker 02: the Secretary would be willing to work with mine operators, but as I was describing to you earlier, there are characteristics of reporting policies that would tend – that would help mine – or that would make them much more likely to be lawful. [00:44:48] Speaker 02: Those are cases where there's no evidence of animus, cases that are situations where – without animus, situations where miners' anonymity is protected, situations where [00:44:58] Speaker 02: where there is, again, some evidence of accommodating miners' rights, like a recognition that this policy might implicate those, but some way to mitigate those effects. [00:45:06] Speaker 06: Well, one thing you might point to, I think you pointed to in your brief, is that PAC made clear that an operator has the right to require the reporting of dangerous conditions, and the Mine Act itself recognizes the importance of that. [00:45:21] Speaker 06: Yes. [00:45:22] Speaker 02: So the policy impact may very well be a lawful policy. [00:45:26] Speaker 02: I can't say that it necessarily is, because there still aren't facts – we don't know the totality of the circumstances analysis. [00:45:32] Speaker 02: But there wasn't impact evidence of animus or hostility. [00:45:36] Speaker 02: There weren't coercive and threatening meetings. [00:45:38] Speaker 02: The things that made the awareness meeting so egregious were not present in that case. [00:45:43] Speaker 02: And again, I do want to emphasize it is absolutely not the secretary's position that these – that any policy that requires reporting is unlawful. [00:45:49] Speaker 02: That's not the case. [00:45:52] Speaker 07: And is your position that the Secretary will work with miners if approached on developing lawful policies? [00:45:59] Speaker 07: Operators. [00:45:59] Speaker 07: Sorry, operators? [00:46:00] Speaker 02: Yes, I think that the Secretary would be willing to do that. [00:46:04] Speaker 02: Thank you. [00:46:13] Speaker 07: We'll give Council five – we'll give you five minutes for – I'm sorry, three minutes for rebuttal. [00:46:17] Speaker 07: Sorry. [00:46:18] Speaker 07: Oh, I'm sorry. [00:46:19] Speaker 07: I forgot. [00:46:26] Speaker 01: Good morning, Your Honors. [00:46:27] Speaker 01: I am Laura Carr from the United Mine Workers, representing the intervener. [00:46:31] Speaker 01: We intervened in this case in support of the Secretary of Labor, and we concur fully in the Secretary's arguments. [00:46:36] Speaker 01: But I'd also like to highlight a couple of additional points. [00:46:39] Speaker 01: First is one that Ms. [00:46:40] Speaker 01: Scott did touch on, and that's that the anonymity guarantee under Section 103-G is important statutorily and from a policy perspective because it's central to the success of the Mine Act's regulatory scheme. [00:46:52] Speaker 01: And miners are better positioned than MSHA inspectors are to recognize hazards in the mine because they are continually present at the work site. [00:46:59] Speaker 01: MSHA therefore relies on minors to assist in enforcement by reporting hazards to the agency. [00:47:05] Speaker 01: And as we've seen throughout the cases and the arguments presented here, that anonymity is a necessary precondition to getting that assistance effectively. [00:47:14] Speaker 01: Without it, the minor faces an unacceptable double bind of choosing to speak out for safety or choosing to remain silent to preserve a good relationship with management and under certain circumstances to preserve his job itself. [00:47:26] Speaker 01: The interference with anonymous hazard complaints then is a serious matter precisely because it limits minors' ability to provide the necessary assistance to the agency. [00:47:35] Speaker 01: This is why anonymous reports are so carefully protected in the act, even as Ms. [00:47:39] Speaker 01: Scott discussed, when they are non-meritorious, even when they are arguably frivolous, minors have an absolute statutory right to make these anonymous complaints so that MSHA is apprised as necessary of hazards that need to be addressed in the work site. [00:47:54] Speaker 01: Second point is that Murray substantially limited Miner's ability to exercise these protected, anonymous hazard reporting rights by establishing a mandatory work rule in the form of what the secretary's brief termed the Tell Murray 2 policy. [00:48:09] Speaker 01: Now Murray has tried to characterize this policy as just a recommendation or a suggestion for the workforce, but Mr. Murray's own words in the awareness meetings reveal the opposite to be true. [00:48:19] Speaker 01: He used the word to require some variation of it at least three times, emphasizing that miners are bound to follow the policy. [00:48:26] Speaker 06: What is your position on whether a mine operator can have a policy that requires employees to report safety concerns that they run across to the operator? [00:48:38] Speaker 01: Like Ms. [00:48:39] Speaker 01: Scott, the Union can imagine circumstances under which such a policy would be acceptable. [00:48:44] Speaker 01: It would depend highly on the specific text of the policy, on how the policy was communicated and presented to the workforce. [00:48:53] Speaker 06: Assume it's not linked to, you know, if you file with MSHEL, we want to know, you know, we really want to know what the safety concerns are. [00:49:01] Speaker 06: What are some of the [00:49:02] Speaker 06: hallmarks in your view of a good policy? [00:49:05] Speaker 06: Would it have to have anonymous reporting? [00:49:07] Speaker 06: What are you thinking of that would make such a policy consistent with the miners' rights, and what are some of the things that you're thinking of that would make it run afoul of the miners' rights? [00:49:16] Speaker 01: Yeah, so I'll preface my answer by stating that this would be a highly fact-specific analysis from the union's perspective, and so I am speaking only in hypotheticals. [00:49:26] Speaker 01: and it would depend greatly on the actual circumstances of the policy in question, but we would expect it to be completely [00:49:37] Speaker 01: delinked from 103G reporting, we would expect it to not impinge in any way upon miners' ability to make anonymous reports to the agency. [00:49:45] Speaker 01: We'd be expected to be presented to miners in a way that is non-coercive, non-threatening, not linked at all to their continued employment or the survival of the company. [00:49:57] Speaker 01: And it takes [00:49:59] Speaker 01: We would hope that it would take a collaborative approach and not be something that is kind of issued as a threat to miners, that you must give us all this information or else. [00:50:09] Speaker 06: So that means there couldn't be any disciplinary or employment consequences for miners who failed to comply with an operator rule [00:50:19] Speaker 06: that safety concerns must be brought. [00:50:21] Speaker 01: I don't know that I'm prepared to make that pronouncement here. [00:50:25] Speaker 01: I mean, as I stated in the beginning, my answer would depend significantly on what the actual text of the policy says, how it's presented, and whether the union had any involvement in bargaining over this and working with our signatory employers to develop this. [00:50:39] Speaker 04: There'd be a real stretch to say they could never be disciplined because the rule might be something like if there's obviously a hazardous situation where you're working, you've got to tell us and it ends up causing a disastrous accident because the minor never said anything, maybe that person could be disciplined. [00:50:58] Speaker 04: It has nothing to do with the statutory right, not interfering with that person's right to report something to the commission. [00:51:04] Speaker 01: The union is not prepared to take the position that discipline would never be acceptable, and again, would depend on the facts specific to the policy in question. [00:51:12] Speaker 07: These policies usually bargain with the union, or are they usually done separately? [00:51:16] Speaker 01: The union would take the position they should be bargained. [00:51:21] Speaker 01: Obviously the policy in this case was not bargained with the union. [00:51:23] Speaker 01: Now Murray has tried to make the argument that that means that it was not an actual work rule, it was not mandatory for the minors to abide by it, but as the arbitration decision cited in the union brief show, the fact that a policy, that a new rule was not bargained over doesn't mean that it [00:51:39] Speaker 01: exists out in the ether somewhere and doesn't have any substance, it means that the company acted improperly through improper unilateral procedures in implementing that. [00:51:48] Speaker 06: Does it matter to the issue before us whether it was a rule or not? [00:51:54] Speaker 01: I think that it matters in as much as the mandatory nature or from Murray's perspective the lack thereof [00:52:04] Speaker 01: has an impact on how a reasonable minor would view these pronouncements in the awareness meetings, whether a reasonable minor would feel that this is something that truly impinges on his ability to make anonymous reports to the company. [00:52:17] Speaker 01: And if management is just suggesting, oh, you know, we think it's a good idea if you do this, that's one thing. [00:52:23] Speaker 01: If management is saying, you must [00:52:25] Speaker 01: make the same report to us that you make under 103G and couches it as Murray did in a presentation that directly connects 103G reporting to the survival of the company, to miners continued employment, and is essentially threatening that miners will lose their jobs if they don't make certain changes in the way that they comport themselves, including by following this new policy. [00:52:48] Speaker 01: I think that a reasonable miner is going to think about that very differently. [00:52:53] Speaker 01: And ultimately, it's this reasonable minor's perspective that's important here. [00:52:57] Speaker 01: Even arguably, if Murray had not created a new mandatory rule via the awareness meetings, anybody who sat through those presentations is going to take away, this is something that management expects me to do, and this is something that I'm required to do. [00:53:12] Speaker 01: And it's that reasonable listening minor's perspective that's relevant here in this analysis. [00:53:17] Speaker 07: Thank you very much. [00:53:17] Speaker 07: Thank you, Your Honor. [00:53:19] Speaker 07: I'm sorry, now Ms. [00:53:20] Speaker 07: Lopez will give you three minutes. [00:53:31] Speaker 05: Thank you, Your Honor. [00:53:33] Speaker 05: First of all, I think it's important to note that before there was any discussion of 103G complaints in the presentation, there is one slide that says that safety, you must report unsafe situations, compliance issues to management so that they can be addressed by management. [00:53:51] Speaker 05: So the presentation was not focused solely on 103G complaints or safety [00:53:57] Speaker 05: concerns that were the subject of 103G complaints. [00:54:00] Speaker 05: This was reiterating what was already a rule that existed in the collective bargaining agreement that all unsafe situations that come to the attention of a minor must be reported to management so they can be addressed quickly. [00:54:14] Speaker 05: Your Honor, I think it's also important to note that the Secretary's interpretation here would result in a different test being used for interference as opposed to discrimination. [00:54:24] Speaker 05: We've had a fair amount of discussion on that today. [00:54:27] Speaker 06: But isn't the whole point to make the interference aspect have some independent function in the statute? [00:54:36] Speaker 05: It's meant to, the independent function comes from the fact that the word discrimination or discharge that appear wouldn't cover every situation that comes up. [00:54:44] Speaker 05: So it's basically meant to cover what are chilling statements made by foremen to their minors or things of that nature that don't result in a consequence of employment that would fit under discrimination or discharge. [00:54:57] Speaker 05: We do not believe, though, that using interference in 105C is meant to set a lower standard for proof of interference that has long been the test for discrimination on the Line Act. [00:55:07] Speaker 05: And therefore, motivation needs to be part of the interference test. [00:55:11] Speaker 05: I'd also like to point out with regard to Chevron deference that I know there's a lot of questions about any policy guidance by the Line Safety and Health Administration to help employers to understand what is interference and what is not. [00:55:23] Speaker 05: I'm not aware of any such guidance on entrance website. [00:55:26] Speaker 05: or in any discussions that at least I've been involved in with the agency for my clients, there really is nothing out there to guide operators. [00:55:35] Speaker 05: In terms of Chevron deference, this is not the type of provision of the MINE Act that requires some kind of special expertise on the Secretary's part. [00:55:43] Speaker 05: It's not regarding technical aspects of safety, and there has been no rulemaking done in this area. [00:55:49] Speaker 07: I wanted to clarify something quickly, sorry. [00:55:51] Speaker 07: Before your reply brief on page five, it sounded to me like you're abandoning the argument that it has to be a retrospective reactive motive. [00:56:02] Speaker 05: Is that right? [00:56:03] Speaker 05: That's correct, Your Honor. [00:56:04] Speaker 05: We changed our reading of the statute in response to the commission's decision in the Monongalia case. [00:56:10] Speaker 07: OK, so it was now your client's position that it covers interference, probably at least covers both retrospective and prospective efforts to interfere. [00:56:19] Speaker 05: That's correct, Your Honor. [00:56:21] Speaker 05: Looking at what interference means and the promises of benefit and threats for reprisal type of language in legislative history, we've adjusted our reading in conformance with one of the separate opinions in that other case. [00:56:34] Speaker 05: So Your Honors, again, there already existed a rule in the collective bargaining agreement [00:56:41] Speaker 05: requiring miners to report safety issues to management. [00:56:44] Speaker 05: And that's what was being reiterated in these presentations. [00:56:48] Speaker 05: There were comments made about 103G and concerns that this right of miners was being used against the company. [00:56:54] Speaker 05: But nevertheless, the concern and the focus was really to make sure that miners don't walk by hazards and leave them sitting there until they can come out of the mine and call EMSA and EMSA can respond. [00:57:07] Speaker 05: That's a critical delay for safety. [00:57:09] Speaker 05: We'd like to ask that the petition for review be granted and the Commission's August 2016 and March 2018 decisions be vacated. [00:57:17] Speaker 07: Thank you. [00:57:17] Speaker 05: The case is submitted.