[00:00:00] Speaker 02: case number 20-1049, Michael K. McNary, petitioner, versus Federal Mine Safety and Health Review Commission, et al. [00:00:08] Speaker 02: Mr. Obgaard for the petitioner, Mr. Bacon for the respondents. [00:00:13] Speaker 03: Morning. [00:00:14] Speaker 00: Good morning, Judge. [00:00:19] Speaker 00: May it please the court, Mr. Bacon. [00:00:23] Speaker 00: My name is Tony Obgaard. [00:00:24] Speaker 00: I'm attorney for [00:00:27] Speaker 00: Michael K. McNary and with me in the virtual [00:00:33] Speaker 00: Courtroom is my co-counsel, Wes Addington. [00:00:37] Speaker 00: I wanted to start with the issue that the court raised in its order on Friday evening, whether this dispute presents a live case or controversy within the meaning of Article III of the U.S. [00:00:48] Speaker 00: Constitution, including specifically whether McNary's asserted injuries are redressable by the remedies he seeks. [00:00:56] Speaker 00: And the court cited El Paso Natural Gas Company [00:01:00] Speaker 00: versus FERC, and we've read that decision, and we do believe that Mr. McNary has standing in this case, that he has suffered an injury in fact, that would be the threats made against him, and that his injury is redressable by the remedies he seeks. [00:01:22] Speaker 00: And the court also cited the joint appendix at pages 11-13 and 117, [00:01:29] Speaker 00: And at the beginning of the trial on August 15th, 2017, the ALJ asked us what remedies we were seeking in the case. [00:01:40] Speaker 00: And that set forth in the back and forth between counsel and the court in which we said that one of the remedies is a fine. [00:01:51] Speaker 00: The purpose of the mine act is to protect the health and safety of miners and civil money penalties are intended to incentivize the mine operator to comply with the law or disincentivize the operator from violating the law. [00:02:08] Speaker 00: and this is a 105C3 case. [00:02:11] Speaker 00: That is, the miner filed his complaint with Emsha. [00:02:15] Speaker 00: Emsha investigated and declined to prosecute the case. [00:02:19] Speaker 00: If they had prosecuted, it would be under 105C2, but the Mine Act gives the miner his own right to file his case if Emsha turns it down. [00:02:31] Speaker 00: And [00:02:33] Speaker 00: The statute provides, the MINE Act provides that there has to be a fine for any violation of the Act. [00:02:40] Speaker 00: And that would include discrimination or interference, findings of discrimination or interference. [00:02:46] Speaker 00: So typically, if the Secretary of Labor files a case on behalf of a minor, and if the ALJ rules that the law was violated, then there's a civil penalty attached. [00:02:59] Speaker 00: That's actually assessed before the case goes to trial. [00:03:04] Speaker 00: And the judge has to consider various factors, gravity negligence, et cetera. [00:03:09] Speaker 00: and assessing a civil penalty. [00:03:13] Speaker 00: Under a C3 case, as Mr. McNary has, if we were to prevail in front of the ALJ, then that case would be referred to the Secretary of Labor for an assessment of a civil penalty. [00:03:27] Speaker 00: We can't assess the civil penalty. [00:03:29] Speaker 00: It has to be the government. [00:03:30] Speaker 04: So there would – Is that civil penalty paid to your client or to the U.S. [00:03:35] Speaker 04: Treasury? [00:03:36] Speaker 00: To the U.S. [00:03:36] Speaker 04: Treasury. [00:03:40] Speaker 04: The ALJ said at the beginning of the hearing that this plant is no longer producing alumina. [00:03:46] Speaker 04: And we know it was down to pretty skeletal proof. [00:03:50] Speaker 04: Can you tell us, at the time you filed your petition for review in this court, your petition for review in this court, was the plant producing alumina? [00:04:01] Speaker 04: Was the plant operating? [00:04:07] Speaker 00: I am. [00:04:10] Speaker 00: looking right now to see judge the date of when we filed the petition for review. [00:04:16] Speaker 00: And if you bear with me for a second, I should be able to get that petition for review was filed February 21 of this year. [00:04:30] Speaker 04: Um, as a February about the status of the plant and, um, whether Mr McNary [00:04:39] Speaker 04: He's working there. [00:04:40] Speaker 04: I assume he's still not working there. [00:04:42] Speaker 00: No, he was laid off at that point. [00:04:44] Speaker 00: He was laid off, and I believe it was 2016. [00:04:48] Speaker 00: Because this issue was not raised below either before the ALJ or the commission or by ALCOA before this court, there really, there hasn't been any fact finding on it. [00:05:01] Speaker 00: And I'm going on what my client has told me. [00:05:03] Speaker 04: When you file a petition for review, you have the burden of establishing [00:05:08] Speaker 04: ending in a live controversy. [00:05:10] Speaker 04: That's just part of your job as a petitioner for review. [00:05:12] Speaker 04: So if you can just explain to us, Mr. McNary is still not working there. [00:05:17] Speaker 04: As of February, I understand this plant is getting closed down, but as of February, is this plant still open? [00:05:23] Speaker 00: My understanding was as of February, yes, it was open. [00:05:28] Speaker 04: Because it wasn't producing alumina at the time of the ALJ decision. [00:05:32] Speaker 00: Well, there's a difference, Judge, between a plant being open and whether it's in production. [00:05:37] Speaker 04: Yes. [00:05:38] Speaker 04: It was producing alumina, which creates the very risk you seek to remedy here. [00:05:44] Speaker 00: I don't believe it was, but I'm [00:05:46] Speaker 00: I don't believe it was. [00:05:48] Speaker 00: I think it was a maintenance crew comprised of management, some hourly workers, and some contractors. [00:05:56] Speaker 00: And there still would have been miners reps there. [00:05:59] Speaker 00: There still would be dangers present, even if it's maintenance. [00:06:05] Speaker 00: And that's my understanding. [00:06:08] Speaker 04: Mr. McNary, you said it was laid off. [00:06:13] Speaker 04: Was he still going to the plant as a miners representative? [00:06:16] Speaker 00: No, he's not judge. [00:06:18] Speaker 00: I believe from what we learned from our client this weekend that the plant is actually shuttered now and that there is not a maintenance crew at the plant. [00:06:30] Speaker 00: Now it's really as closed down as opposed to being a skeleton crew. [00:06:38] Speaker 04: All right. [00:06:39] Speaker 04: Um, when you say there was a maintenance crew there, um, [00:06:45] Speaker 04: but nothing was being produced at the plant that you're aware of. [00:06:52] Speaker 00: I believe that's correct. [00:06:54] Speaker 00: So a maintenance crew would be to, Mr. Bacon could probably answer this better than I, but to make sure that everything was in working order in case it was brought back into production, to make sure there weren't safety hazards present for those who were there. [00:07:12] Speaker 00: I'm not sure what the contractors would be doing, [00:07:15] Speaker 00: and the hourly employees, if they were all maintenance, it's a rather large plant. [00:07:22] Speaker 00: You can sort of get an idea from the photos or in the record, like how big the valves are, how big the pumps are, and that's just a minor part of the overall plan. [00:07:32] Speaker 00: It's a very large operation. [00:07:34] Speaker 04: You mentioned for remedies, you mentioned the fine, the civil penalty. [00:07:37] Speaker 04: What other remedies, at least at the petition for review stage, is your client seeking? [00:07:44] Speaker 00: Well, if there was a finding that ALCOA had violated 105C, we had asked the judge for training to be required in minors' rights, specifically in the rights of representatives of minors for all management personnel at ALCOA. [00:08:02] Speaker 00: We had asked that the decision be posted sort of like decisions are posted through the NLRB. [00:08:13] Speaker 00: Posting is a standard. [00:08:16] Speaker 00: remedy in 105 C cases, it has been for decades, and cease and desist order, which would ask that or order ALCO to stop threatening minors reps who raise safety issues with management. [00:08:34] Speaker 00: And again, those are remedies that are regularly ordered by ALJs. [00:08:39] Speaker 00: So those are the remedies we seek and the fine, the training, the posting, the cease and desist. [00:08:46] Speaker 00: And one of the things I'd like to point out, Your Honor, is that in 105 C cases involving minors reps, unless the minor rep has been discharged, they typically do not involve claims for monetary relief. [00:09:02] Speaker 00: And the remedies that Mr McNary is seeking before this court on this appeal are the same as the remedies that he was seeking on the day of the trial back in August 2017. [00:09:15] Speaker 00: We believe it's very important to protect representative of miners from discrimination or interference. [00:09:22] Speaker 00: Congress created that position to ensure that miners play a role in their own health and safety at the mine. [00:09:30] Speaker 00: And Congress also specifically stated in the legislative history of the act that Section 105C protects miners and miners' reps against even subtle forms of discrimination, such as threats of reprisal. [00:09:46] Speaker 00: So it was recognized by Congress from the beginning that you would have cases where there is no monetary relief. [00:09:55] Speaker 00: The Mine Act is a make-hole remedy, or 105C is a make-hole remedy. [00:09:59] Speaker 00: The most a minor can get if he's been fired, he or she's been fired, is reinstatement to their job with back pay and interest. [00:10:08] Speaker 00: There's no punitive damages. [00:10:11] Speaker 00: There's no damages for emotional distress. [00:10:14] Speaker 00: It's a make whole remedy. [00:10:16] Speaker 00: And typically in cases involving minor representatives, there will be no monetary relief. [00:10:23] Speaker 00: So our request really hasn't changed, Judge. [00:10:29] Speaker 00: When we read the El Paso case, it cited the Supreme Court case of Lujan versus Defenders of Wildlife. [00:10:39] Speaker 00: And in that case, Justice Scalia said that there are three elements necessary to confer constitutional standing. [00:10:47] Speaker 00: And that is injury and fact, the same thing that El Paso says, which he said is a violation of a legally protected interest [00:10:56] Speaker 00: which is concrete and particularized. [00:10:59] Speaker 00: In other words, it's not speculative and it's not hypothetical. [00:11:03] Speaker 00: Number two is a causal connection between the injury and the conduct complain of, which we have here. [00:11:09] Speaker 00: We have a threat, that's the injury. [00:11:12] Speaker 00: And number three, it must be likely as opposed to speculative that the injury will be addressed by a favorable decision. [00:11:22] Speaker 00: And we believe under Lujan, we also have all three elements necessary for a constitutional standing. [00:11:29] Speaker 00: And we believe that under El Paso, we have the same. [00:11:34] Speaker 00: We've met the requirements, particularly that it's not speculative. [00:11:39] Speaker 00: We're not saying something could happen down the road. [00:11:42] Speaker 00: We're saying Mr McNary was threatened, was threatened three times. [00:11:46] Speaker 00: And that is a concrete entry. [00:11:49] Speaker 00: and we believe it is redressable by the court. [00:11:56] Speaker 00: If I can turn to the merits of the case, a couple of points we wanted to make is first that EMSA issued two citations or orders to Alcoa the day after the incident between Mr. McNary and Mr. Emig. [00:12:14] Speaker 00: on January 8, 2014. [00:12:18] Speaker 00: And in the order that Emsha issued, they specifically mentioned Mr. Emig said that safe access to the pumps where they were trying to reseat the valve had not been provided. [00:12:36] Speaker 00: And Mr. Emig had engaged in aggravated conduct and failing to provide safe access. [00:12:45] Speaker 00: Although Mary had complained to Mr and make about sending workers into that area, or at the least allowing them to go into that area. [00:12:56] Speaker 00: The judge found that that wasn't protected activity which really turns case law 105 on its head over the years. [00:13:05] Speaker 00: The second citation was that Alcoa failed to properly train the miners in the event that the pump valve failed. [00:13:14] Speaker 00: So the judge found that these citations were not material, that they were immaterial to the case, as if he was viewing them in a vacuum where Emsha, here you have neutral arbiters, they're inspectors going to the mine, [00:13:31] Speaker 00: um, to protect the health and safety of miners, they essentially agreed with Mr McNary's complaints to Mr Emig that you're acting recklessly in sending these miners into a dangerous area. [00:13:44] Speaker 00: And, um, the judge also found it irrelevant in his, um, analysis that, um, [00:13:54] Speaker 00: miners had been burned at this plant before. [00:13:58] Speaker 00: The same thing that Mr. McNary was complaining about that day, he had been burned by that same slurry a couple of years before. [00:14:06] Speaker 00: and he was burned over 30% of his body. [00:14:09] Speaker 00: He spent time in a burn center a month, and he was off of work for about a year. [00:14:15] Speaker 00: But even closer to the incident, just four months before the incident in question back in September of 2013, another minor, Mike Brown, was burned. [00:14:27] Speaker 00: again in the in the digestion unit, and he was burned over 60% of his body and spent a considerable period of time in a burn center. [00:14:38] Speaker 04: Mr McNary, the inspector even reference those prior incidents when he was having his vigorous discussion with Mr and make. [00:14:48] Speaker 04: Am I right? [00:14:50] Speaker 00: He did mention the Brown incident. [00:14:52] Speaker 00: He said, what are you guys doing? [00:14:53] Speaker 00: You had a guy who was just seriously burned a few months ago. [00:14:56] Speaker 00: And he pointed to the miners wearing the tie cam suits and said, those are the guys you should be concerned about, not producing more alumina. [00:15:08] Speaker 00: And another issue, your honors, is that [00:15:21] Speaker 00: I'm sorry, I lost my train of thought here. [00:15:25] Speaker 00: Well, the court found that Mr. [00:15:31] Speaker 00: McNary had not been threatened because he was a minor's rep or in his status as a minor's rep, that he had been threatened in his status as an employee. [00:15:41] Speaker 00: However, when Mr. Emmig was asked about that on cross-examination, he could not identify a single thing that Mr. McNary had done or any conduct he had engaged in [00:15:55] Speaker 00: or supposedly was insubordinate other than the fact that Mr McNary supposedly told him there'll be a group of people coming to assess the situation. [00:16:06] Speaker 00: That's all Mr. Emig could identify. [00:16:08] Speaker 04: No, Mr. Emig also said that Mr. McNary had said, I don't, you can't tell me what to do or words to that effect, at least in my capacity as a minors. [00:16:17] Speaker 00: I don't have to listen to you was his testimony. [00:16:21] Speaker 04: seemed to be what the A. L. J. Was focused on. [00:16:24] Speaker 04: So talk to me about why that what we should do about that, given our deficit. [00:16:30] Speaker 00: Yes, your honor. [00:16:30] Speaker 00: First of all, the A. L. J. Um, had several variations of what Mr McNary had supposedly said. [00:16:40] Speaker 00: He didn't just confine it. [00:16:41] Speaker 00: I don't have to listen to you. [00:16:43] Speaker 00: And certainly Alco and their brief [00:16:45] Speaker 00: has not confined it to, I don't have to listen to you. [00:16:49] Speaker 00: But our position is that a minor SREP does not have to listen to a supervisor's evaluation of a danger. [00:16:57] Speaker 00: And that goes back to the DC Circuit's decision in the Phillips case, which was one of the seminal cases under 105C, where the court said it's clear beyond per adventure [00:17:10] Speaker 00: that a minor does not have to accept a foreman's evaluation of a safety danger. [00:17:17] Speaker 00: That's the whole purpose of a minor's rep. [00:17:20] Speaker 00: Mr. McNary was representing other minors at the plant. [00:17:26] Speaker 00: He's supposed to raise issues having to do with safety and health with supervisors, also has the right to travel with inspection inspectors. [00:17:36] Speaker 00: So when [00:17:38] Speaker 00: when he tells Mr Emig that you shouldn't have sent the miners in to that situation. [00:17:44] Speaker 00: And I've called the health and safety manager. [00:17:47] Speaker 00: She should be on her way to help assess the situation. [00:17:50] Speaker 00: That's when it escalated. [00:17:51] Speaker 00: And there's dispute between what Mr Emig said and McNary. [00:17:56] Speaker 00: But really, when you compare the testimony, they're not that different. [00:18:01] Speaker 00: Mr Emig basically said, I call the shots. [00:18:03] Speaker 00: I make the decisions, not you. [00:18:05] Speaker 00: And [00:18:08] Speaker 00: when Ms. [00:18:09] Speaker 00: Cronus, the health and safety manager, came to the site, then Mr. McNary was not involved in conversations with her. [00:18:18] Speaker 00: He was standing to the side by that point. [00:18:21] Speaker 00: But our belief is that he has that right to say, you shouldn't have sent workers into this area. [00:18:29] Speaker 00: He has the right to call a supervisor to come to help with the situation, to help protect those minors. [00:18:38] Speaker 00: And another critical point is that Mr. Emig admitted in his testimony that he knew Mr. McNary was concerned for the safety of the miners. [00:18:49] Speaker 00: He wasn't questioning that. [00:18:53] Speaker 00: The court also, the ALJ also found, and we believe this violates the case law under 105C, that because Mr. McNary did not invoke this quote unquote stop job policy, that that stripped him of the protection of 105C. [00:19:10] Speaker 00: And the stop job policy was supposedly any minor at the site had the unfettered right to shut down the operation if they thought something was unsafe. [00:19:23] Speaker 00: And there was testimony about that at the trial. [00:19:27] Speaker 00: And curiously, the judge found that because Mr. McNary just complained about the hazardous conditions, but didn't [00:19:37] Speaker 00: invoke the stop job policy that somehow he loses the protection of the act, almost as if the judge was questioning his good faith, although he didn't come right out and say that. [00:19:48] Speaker 00: And, um, the interesting thing about that stop job policy, though, is there was testimony that after Mr McNary and Mr Emig had their argument, Mr McNary was standing to the side. [00:20:03] Speaker 00: At that point, there was conversation between Mr Emig [00:20:07] Speaker 00: Carlos Delgado, who was the lead miners rep at the mine, Kelly Gronas, the health and safety manager who had showed up, and Brett Barrick, the Emsh inspector. [00:20:17] Speaker 00: And the four of them were discussing. [00:20:19] Speaker 00: And Mr. Delgado basically said what Mr. McNary had said, you're not sending anybody else back into that dangerous area. [00:20:31] Speaker 00: Now, according to the judge, [00:20:33] Speaker 00: supposedly Mr. Emig was very respectful of Delgado's opinion and it didn't get heated, but that contradicts Carlos Delgado's testimony. [00:20:44] Speaker 00: He said it got heated. [00:20:45] Speaker 00: Mr. Emig didn't like to be contradicted. [00:20:48] Speaker 00: He was the boss and he wanted to run the show. [00:20:51] Speaker 00: And when Delgado said to him, you're not sending somebody back into that area, [00:20:57] Speaker 00: i.e. [00:20:58] Speaker 00: to me, that's a stop job policy. [00:21:00] Speaker 00: EMIG flatly ruled that out and said we have to access that valve. [00:21:05] Speaker 00: The only way we can do it is sending people in there. [00:21:08] Speaker 00: I'm not shutting down the plant. [00:21:10] Speaker 00: Now, whether or not there's issues, you know, involving safety about shutting down the plant is sort of beside the point. [00:21:19] Speaker 00: Mr Delgado was saying you're not going to send anybody in there. [00:21:23] Speaker 00: i.e. [00:21:24] Speaker 00: you're going to shut down the plant. [00:21:26] Speaker 00: And that was rejected by Mr. Emig out of hand. [00:21:29] Speaker 00: But nonetheless, the judge found because Mr McNary did not try to shut down the plant that he lost the protection of 105C. [00:21:39] Speaker 03: All right. [00:21:39] Speaker 03: So these are arguments as to why abuse of discretion or clear error, correct? [00:21:45] Speaker 00: Correct. [00:21:46] Speaker 03: All right. [00:21:47] Speaker 03: So why don't we hear from counsel for fondness? [00:21:51] Speaker 00: Thank you, Judge. [00:21:56] Speaker 01: I'd like to begin with the issue about the jurisdictional issue that the court raised in its order on Friday afternoon. [00:22:10] Speaker 01: When this case was tried in 2017, I think [00:22:16] Speaker 01: It was in a very different posture because the Alcoa plant had temporarily closed down, but at the time I think there was an expectation or a hope that at some point the price of bauxite would be such where they could start up again. [00:22:31] Speaker 01: And that would probably – I think at that point there was probably even a potential for Mr. McNary himself to be recalled under his union contract. [00:22:40] Speaker 01: Throughout 2017, 2018, and 2019, there was a skeleton crew, and the plant continued to be under the jurisdiction of IMSA. [00:22:54] Speaker 01: And so IMSA, because one of the things that IMSA has to do when you have a surface mine, they would still come in and do their twice-year wall-to-wall inspections. [00:23:04] Speaker 01: Occasionally, they would even issue [00:23:06] Speaker 01: citations. [00:23:07] Speaker 01: So there certainly was a reason that, in this case, if they were still in that posture of the possibility of reopening again, I think it certainly made sense to say, you know, at some point there could be a remedy for Mr. McNairn. [00:23:21] Speaker 01: In December of 2019, Alcoa announced that it was permanently shutting down the facility and that they would not reopen the facility again. [00:23:31] Speaker 01: In January, shortly before this petition was filed, [00:23:37] Speaker 01: deactivated this mine and informed Alcoa that it was no longer going to be under IMSA's jurisdiction and that going forward, they would be under the jurisdiction of ocean. [00:23:49] Speaker 01: And you can actually, if you were to go to IMSA's website, you wouldn't find the Alcoa Point Comfort Facility listed. [00:23:55] Speaker 01: All existing active mines in the country are listed on the IMSA website. [00:24:00] Speaker 01: And at least since January of this year, [00:24:03] Speaker 01: the Alcoa facility has not been an IMSHA facility. [00:24:06] Speaker 01: So in the event that, you know, this case were to be sent back at this point, [00:24:13] Speaker 01: I don't believe that IMSA would have the jurisdiction to come in, for example, and post a notice. [00:24:17] Speaker 01: And if anybody was going to be training anybody, if anybody was going to be carrying this, doing any safety work, it would be OSHA and not IMSA. [00:24:26] Speaker 01: So I do think that today there really is a question as to whether this court really would have jurisdiction over this case. [00:24:33] Speaker 01: I'm not sure that was the case back in 2017. [00:24:35] Speaker 04: Article III doesn't apply to agencies. [00:24:38] Speaker 04: So is the plant still open now? [00:24:42] Speaker 01: My understanding is that they're trying to sell the plants. [00:24:45] Speaker 01: So there are some people there, but the plant is closed. [00:24:48] Speaker 01: It's not functioning. [00:24:49] Speaker 01: It's not producing. [00:24:50] Speaker 01: The plant has not been producing since 2016. [00:24:53] Speaker 01: And it was not producing at the time that this case was tried. [00:24:57] Speaker 01: But at the time, it was temporarily shuttered. [00:25:00] Speaker 01: And so there was a crew of probably 100 people doing maintenance and things like that. [00:25:05] Speaker 04: The statement by MSHA in January of this year that it was [00:25:12] Speaker 04: activating the mind that was no longer going to be under its jurisdiction. [00:25:15] Speaker 04: Is that some public statement, a record or something that you document that you could send to us? [00:25:20] Speaker 01: No, they actually never did. [00:25:23] Speaker 01: They verbally communicated that to Alcoa and then they removed Alcoa from the IMSHA website. [00:25:28] Speaker 01: But they were simply informed by the inspectors from the San Antonio office that typically inspected that plant that they were no longer going to be inspecting that plant and it was no longer going to be an IMSHA covered plant. [00:25:40] Speaker 01: So it was simply a verbal communication. [00:25:42] Speaker 01: The only proof of it is that it was removed from the website. [00:25:46] Speaker 04: person to whom that verbal communication was made, someone who could submit a declaration to that effect? [00:25:51] Speaker 01: That person could do that, yes. [00:25:53] Speaker 01: That's the current plant manager who's overseeing the plant at this point, yes. [00:26:01] Speaker 04: Okay, and that was you said January 2020, so before the petition for review was filed. [00:26:09] Speaker 01: That is correct. [00:26:14] Speaker 01: And then, I mean, I think, may I briefly address the merits of time that is remaining. [00:26:21] Speaker 01: You know, as we as we pointed out in our brief, I mean, there really is and there was a difference in version of events from Mr. Emmick's perspective and from Mr. McNary's perspective. [00:26:34] Speaker 01: The judge [00:26:35] Speaker 01: the ALJ, in this case, believed Mr. Emmick. [00:26:38] Speaker 01: And he didn't just simply say, I find Mr. Emmick credible, and I did not find Mr. McNary credible. [00:26:44] Speaker 01: He actually offered an analysis as to why he reached those credibility determinants. [00:26:48] Speaker 04: What substantial evidence, I need substantial evidence, is there to support the proposition that Mr. McNary went from being concerned about the miners, as the ALJ specifically found, [00:27:05] Speaker 04: to simply wanting to have some kind of power coup and take over handling of the crisis. [00:27:14] Speaker 04: What substantial evidence is there? [00:27:17] Speaker 04: All I see the ALJ citing is that exchange where he said, you can't tell me what to do. [00:27:23] Speaker 04: And then he said, what, as an employer or as a miner's rep? [00:27:26] Speaker 04: And he said, as a miner's rep. [00:27:28] Speaker 04: All right, so what substantial evidence is there? [00:27:30] Speaker 04: It strikes me as crazy. [00:27:32] Speaker 01: I think there was two facts, though. [00:27:37] Speaker 01: I think the first one is, which Mr. McNary did not admit to, but which Mr. Emig testified in the court believe, which was Mr. Emig got upset because he, Mr. McNary says, I do not have to listen to you. [00:27:51] Speaker 01: I do not have to listen to you in my capacity as an IMSA rep. [00:27:54] Speaker 01: Mr. Emig said, yes, you do. [00:27:56] Speaker 01: He said, no, I don't. [00:27:57] Speaker 04: But he doesn't have to listen to him in his capacity. [00:28:02] Speaker 04: He's not his supervisor as an emissary. [00:28:04] Speaker 01: Not as an emissary. [00:28:07] Speaker 01: But another fact that Mr. Emig testified and also Mr. McNary admitted upon cross-examinations after he was asked by Mr. Delgado to step aside. [00:28:18] Speaker 01: And Mr. Delgado and Mr. Emig and the IMCHA inspector were talking about what was the best strategy to contain this crisis. [00:28:26] Speaker 01: Mr. McNary came back and inserted himself in that conversation and said, he started to complain about being sent on a wild goose chase. [00:28:35] Speaker 04: Here again, he was- There was a complaint about what was happening with the miners being sent in or allowed to go in, but being dressed up. [00:28:44] Speaker 04: by Mr. Emig to go in. [00:28:47] Speaker 04: Mr. Emig was dressing them up looking for duct tape. [00:28:51] Speaker 03: All right. [00:28:52] Speaker 04: All right. [00:28:52] Speaker 04: To send them to at least as a supervisor to allow them to go in there. [00:28:57] Speaker 04: I don't see any evidence of that's insubordination. [00:29:00] Speaker 04: That's this very protected activity. [00:29:03] Speaker 04: I don't know how that's not protected activity. [00:29:06] Speaker 04: Well, I think the miners rep can come in and go, look, I don't know what he's telling you now, but here's what happened. [00:29:13] Speaker 04: He was wanting to get miners dressed to go in there. [00:29:17] Speaker 01: Well, I think the ALJ looked at it all, I think, again, in the totality of the circumstances. [00:29:24] Speaker 04: You know, this ALJ must have had a function where he could say totality of the circumstances as many times as he wanted in that opinion. [00:29:33] Speaker 04: But this opinion, I don't see, [00:29:36] Speaker 04: and these substantial evidence for concluding that Mr. McNary, who was engaged in protected activity in contacting Ms. [00:29:45] Speaker 04: Grone, Ms. [00:29:46] Speaker 04: Grone said it was appropriate for him to contact her, who was concerned about minors either being sent in or allowed to go in. [00:29:55] Speaker 04: Misha itself found that he, Mr. Emig was not, was violating safety rules and how he handled [00:30:04] Speaker 04: this situation and put minors at risk. [00:30:07] Speaker 04: And then he comes in and whatever led to this statement that you're, I'm not going to do what you say as a minors rep, that's not insubordination. [00:30:17] Speaker 04: I see no evidence of insubordination other than this ALJ saying, you know, and trying to invoke these sort of magic words and clear error is a very hard standard. [00:30:26] Speaker 04: Abusive discretion is a very hard standard, but it doesn't mean that we close our eyes to reality. [00:30:33] Speaker 04: And there's nothing to support and subordination in this record. [00:30:36] Speaker 01: Of course, in an interference case, the question before the ALJ is, is or did what Mr. Emig did end up chilling his, his [00:30:50] Speaker 01: his right or his desire to later make complaints. [00:30:55] Speaker 01: And I think that, you know, the fact that Mr. McNary was still, even after he had been asked to step aside, was still extremely confident to come in and interfere in the discussion, was never [00:31:11] Speaker 04: Where do you get that adjective? [00:31:13] Speaker 04: He thinks he's just been told he's gonna be removed as a minors rep. [00:31:16] Speaker 04: He's gonna be removed from the whole workplace. [00:31:18] Speaker 04: That's not confident. [00:31:19] Speaker 04: He's worried. [00:31:21] Speaker 04: He's upset and worried. [00:31:22] Speaker 04: And the ALJ was very solicitous of Mr. Emig being upset in this situation. [00:31:27] Speaker 04: But this seems to me exactly the heat of the moment when minor safety is at risk, when the Misha representative is upset and yelling, Mr. Delgado is upset and debating, [00:31:41] Speaker 04: This is exactly what I'm worried about the proposition here that in the heat of a safe and acute safety crisis, it's okay for supervisors to make serious threats against protected activity like they did because it was a stressful situation for the supervisor. [00:32:02] Speaker 04: But that seemed to be the ALJ's rationale that Mr. McMurray should have said, I see you're under a lot of stress. [00:32:07] Speaker 04: Let me just go over here and be quiet. [00:32:09] Speaker 01: But, you know, Mr McNary, you know, shortly after this, you know, this was again something that occurred in a matter of minutes, a very high stress situation. [00:32:17] Speaker 04: Why doesn't that count in favor? [00:32:19] Speaker 01: And Mr. Revick himself admitted that he lost his temper inappropriately, and he did testify to that. [00:32:27] Speaker 01: But within a matter of a short period of time, I'm sorry. [00:32:33] Speaker 04: He admitted he made those threats. [00:32:35] Speaker 01: Yeah, he admitted he made those comments. [00:32:36] Speaker 01: And I think my recollection in his testimony was he wasn't proud that he had made those threats. [00:32:44] Speaker 01: In a matter of moments, Mr McNary was he was part of the investigation, the post accident investigation. [00:32:51] Speaker 01: He went back and wrote down a statement. [00:32:53] Speaker 01: He was part of the investigation post accident investigation. [00:32:57] Speaker 04: You know, the fact that somebody know he wasn't gonna get fired. [00:33:01] Speaker 04: Well, he's not gonna do it while the mission inspector is there on premises. [00:33:07] Speaker 04: But how did he know he wasn't, at that moment, how did he know? [00:33:10] Speaker 04: He certainly didn't act like someone who- Well, that's exactly what we rejected in Wilson. [00:33:18] Speaker 01: Yeah, but in this particular case, he definitely showed confidence to keep on asserting his- He definitely rejected in Wilson. [00:33:27] Speaker 04: Yeah, I think that- Reasonable minor, or minor wrap, we'll just say reasonable minor, [00:33:35] Speaker 04: who's trying to raise safety concerns in the heat of a crisis and is told by someone who's not, as you said, not proud of what he did, that you're gonna be fired, you're gonna be removed from this plant, removed from your position, right when we most need safety voices to be loud. [00:33:56] Speaker 04: Tell me again how that is insubordinate. [00:34:02] Speaker 01: Well, I think I think that he was primarily focusing on, on his, on his, it really, he turned this into a power struggle at a time. [00:34:10] Speaker 04: That's what he had to do. [00:34:12] Speaker 04: Cause Mr. Emig was allowing people to go in. [00:34:16] Speaker 04: If that's what you mean by power. [00:34:17] Speaker 04: I mean, I'm really thinking about future cases, how we could possibly write an opinion. [00:34:21] Speaker 04: It would say it's okay for a supervisor to make the ultimate threat against an employee in the heat of a safety crisis. [00:34:31] Speaker 04: because that person raised safety concerns, engaged in protected activity, and said, you can't tell me not to do that. [00:34:41] Speaker 04: You can't tell me what to do as a minor rep. [00:34:45] Speaker 04: We're going to have a heat of the moment exception. [00:34:48] Speaker 01: Well, I think what you have to do in that particular case is evaluate how long this took place, what happened immediately before, what happened immediately afterwards. [00:35:00] Speaker 01: You know, the fact is, in every workplace, mines and any other type of workplace, people sometimes lose their cool. [00:35:06] Speaker 01: People sometimes say something inappropriate. [00:35:09] Speaker 01: And so the question becomes, you know, does this have an enduring effect on the people that are there? [00:35:16] Speaker 04: Is enduring effect a factor for interference? [00:35:22] Speaker 01: I think it's what would, how would a reasonable miner react to this? [00:35:25] Speaker 01: I mean, this was someone who, you know, the testimony for Mr. Delgado admitted that, you know, this was a company which actually the safety manager, the plant manager was very, they were all very accessible to the miners reps. [00:35:39] Speaker 01: The miners reps frequently engaged in very robust discussions, you know, over safety issues with the miners reps. [00:35:47] Speaker 01: You know, these people were comfortable [00:35:49] Speaker 04: Speaking of Mr. Emmick shouldn't have gotten upset that he contacted had someone contact Ms. [00:35:54] Speaker 04: Growns. [00:35:55] Speaker 01: Well, Mr. But see, that's that's what the judge did not believe. [00:35:58] Speaker 01: The judge did. [00:35:59] Speaker 01: First of all, Mr. Mr. Emmick's testimony was he had already contacted Ms. [00:36:03] Speaker 01: Growness and she was on the way. [00:36:05] Speaker 04: I understand that, which is all the more right. [00:36:07] Speaker 04: I understand. [00:36:08] Speaker 04: It doesn't mean when you're in the A.L.J.' [00:36:10] Speaker 04: 's power play theory here. [00:36:12] Speaker 04: The whole theory was that he was upset. [00:36:18] Speaker 04: Mr. McNary had done it and was trying to bring people in to consult on the process. [00:36:24] Speaker 01: Well, part of Mr. McNary's problem was that the judge actually did not believe he was being completely truthful about what happened. [00:36:34] Speaker 01: And, you know, if someone is not being truthful when they're testifying under oath. [00:36:40] Speaker 04: They said, I credit [00:36:42] Speaker 04: I credit Mr. Emig's version of events, but Mr. Emig's version was that you can't tell me what to do, and they clarified as a minor's rep. [00:36:53] Speaker 01: You know, he also did not believe his testimony about the affidavits that he produced. [00:36:58] Speaker 01: And the testimony is, Mr. Emig's testimony was distinct from Mr. McNary. [00:37:04] Speaker 01: They told a different story. [00:37:06] Speaker 01: Mr. McNary, you know, Mr. Emig did not say he got upset because... I credit Mr. Emig's testimony. [00:37:15] Speaker 04: I still see no substantial evidence of his coordination. [00:37:20] Speaker 04: I'm having trouble identifying it. [00:37:22] Speaker 04: And I'm very worried about this, the ALJ's reasoning that it's the heat of a safety crisis. [00:37:28] Speaker 04: That's when we let supervisors explode with threats of termination. [00:37:34] Speaker 04: that somehow that's what the act allows. [00:37:39] Speaker 01: There again, you're looking at a very, again, a very short period of time. [00:37:43] Speaker 01: And are you know, is that going to have a long term to turn effect? [00:37:46] Speaker 01: What happened? [00:37:47] Speaker 01: Just a short period of time. [00:37:49] Speaker 04: Firing only takes a second. [00:37:53] Speaker 01: He never was fired. [00:37:54] Speaker 01: He was never even at he never even left the area. [00:37:59] Speaker 04: Right, that might well go to your discrimination claim, but I'm talking about interference. [00:38:02] Speaker 01: Well, there's not a discrimination claim because, I mean, he didn't, there wasn't an adverse employment action. [00:38:07] Speaker 01: But I think you do have to, you know, otherwise, you know, just any outburst will support an interference claim. [00:38:16] Speaker 01: And I think you have to look at outburst, even inappropriate outburst in the context. [00:38:21] Speaker 04: This was not just any outburst. [00:38:23] Speaker 04: He was, even by the ALJ's version of that offense, upset [00:38:27] Speaker 04: that higher management had been called in to assess the situation and that he had said, I don't have to do what you tell me to do as minors rep. [00:38:36] Speaker 04: That's not just any, and he was so upset, stressed out that he threatened him with termination. [00:38:43] Speaker 04: That's not just any outburst. [00:38:44] Speaker 04: We have to wait, let's be clear here. [00:38:45] Speaker 04: All right, that's not just any outburst. [00:38:48] Speaker 04: That is absent characterization is insubordination. [00:38:52] Speaker 04: That is a signature violation of the rights to engage in protected activity. [00:38:57] Speaker 04: It's only by trying to re-characterize everything as ALJ did of insubordination, that's what's critical, as far as I'm concerned, that you're able to say that's anything other than the poster child for retaliation for projected activity. [00:39:17] Speaker 04: And so that's why I keep asking about what other evidence there was to support insubordination. [00:39:22] Speaker 04: But I don't mean to beat a dead horse here. [00:39:25] Speaker 04: I think I understand your answer at this point. [00:39:29] Speaker 03: All right, anything further? [00:39:31] Speaker 01: No, does the court want us to submit an affidavit from the plant manager regarding the closure? [00:39:40] Speaker 04: I would like to see it if it's okay with my colleagues. [00:39:43] Speaker 04: Good. [00:39:45] Speaker 03: All right, fine, thank you. [00:39:47] Speaker 01: Fine with me. [00:39:50] Speaker 03: All right. [00:39:51] Speaker 03: So, all right, council for petitioner, anything further? [00:39:55] Speaker 00: Yes, Judge, we'd like to make three quick points if we could. [00:39:58] Speaker 00: Number one, on the merits of the case, Mr. Bacon said that Mr. McNary had reinserted himself back into the conversation. [00:40:08] Speaker 00: This is when he said he just threatened me, speaking of Emig. [00:40:13] Speaker 00: We just want to point out that if he, in fact, reinserted himself, it was already after Mr. Emig had threatened him, had committed the violation, in our view, of 105C. [00:40:26] Speaker 00: In our brief, our initial brief on page 16, footnote 16, we cited the case of Secretary of Labor on behalf of Dunmire and Estill versus Northern Coal Company. [00:40:40] Speaker 00: where the commission said that the key to evaluating communication issues between management and miners is what the plain meaning of the words would convey to any reasonable miner. [00:40:51] Speaker 00: I should have cited another case there if the court would allow me to cite it now. [00:40:58] Speaker 00: There is a case, Secretary of Labor on behalf of Gray versus North Star Mining and Abramett, 21 FMSHRC1, [00:41:09] Speaker 00: 2005 case. [00:41:12] Speaker 00: And in that case, the commission said that when there's communication, if there's a threat from a supervisor to a minor, the issue is not what the supervisor intended, but how it was perceived by the minor. [00:41:27] Speaker 00: That's what the court has to look at. [00:41:29] Speaker 00: The final point I wanted to make going to the issue about standing is that. [00:41:40] Speaker 00: 27 FMS HRC 1, page 1, 2005. [00:41:47] Speaker 00: And the third point was going back to the standing issue. [00:42:00] Speaker 00: Posting might be difficult at this point because if the plant is shut down, but we do believe that posting Alcoa World Illumina still exists. [00:42:12] Speaker 00: Of course, we just looking at Dun and Bradstreet, they said that they have about 1000 employees at this time expected sales in 2020 of a billion dollars. [00:42:25] Speaker 00: And I believe the number was 132 associated companies in their corporate family. [00:42:32] Speaker 00: And we believe that a cease and desist order and a training order could go to management of Alcoa, not just people at this plant. [00:42:41] Speaker 00: Also, Mr. Emmett could be ordered to undergo management training. [00:42:47] Speaker 00: I don't know, and Mr. Bacon may, whether or not he is still employed by Alcoa World Illumina. [00:42:53] Speaker 00: The point I'm making is that Alcoa World Illumina still exists, even if the point comfort plant or Mr. McNary were to shut down. [00:43:05] Speaker 03: All right, fine. [00:43:06] Speaker 03: We will take the case under advisement. [00:43:08] Speaker 03: Thank you very much, Council.