{"id":5100,"date":"2023-06-16T21:17:12","date_gmt":"2023-06-16T21:17:12","guid":{"rendered":"https:\/\/northamericanmining.com\/?p=5100"},"modified":"2023-06-16T21:22:00","modified_gmt":"2023-06-16T21:22:00","slug":"waitwhat-a-potentially-dangerous-development-in-105c-retaliation-cases","status":"publish","type":"post","link":"https:\/\/northamericanmining.com\/index.php\/2023\/06\/16\/waitwhat-a-potentially-dangerous-development-in-105c-retaliation-cases\/","title":{"rendered":"Wait\u2026What? A Potentially Dangerous Development in \u00a7 105(c) Retaliation Cases\u00a0"},"content":{"rendered":"\n

By Willa B. Perlmutter<\/em><\/p>\n\n\n\n

In my last column, I talked about a coming shift in the analysis the Federal Mine Safety and Health Review Commission will use when it considers retaliation cases brought by the Secretary of Labor or by miners under \u00a7 105(c) of the Mine Act. <\/p>\n\n\n\n

For those of you that missed that column, here\u2019s the deal: until very recently, the miner (or MSHA, if they\u2019re stepping in on the miner\u2019s behalf) would have to prove first that the miner engaged in activity protected by the Act. Then, the miner would have to prove that his employer took adverse action against them (like firing them, or reassigning them to a worse job, things like that). <\/p>\n\n\n\n

Finally, the miner would have to prove unlawful motivation: that is, that the company took the adverse action because the miner had engaged in protected activity. (There are more details, but you don\u2019t need them for today\u2019s discussion.) We call that the Pasula-Robinette analysis, after the cases in which it was first articulated. <\/p>\n\n\n\n

A few months back, the U.S. Court of Appeals for the Ninth Circuit chose a different analysis for \u00a7 105(c) cases, holding that the company\u2019s retaliatory action is unlawful if it would not have treated the miner the way it did but for the miner\u2019s protected activity. As I told you when we first talked about it, the Ninth Circuit\u2019s decision was undoubtedly going to have an impact on the way the Commission decides \u00a7 105(c) cases. I just couldn\u2019t predict what that impact would be. <\/p>\n\n\n\n

(I know, I know. And here you thought I knew everything there was to know about this sort of thing. Sorry.)<\/p>\n\n\n\n

Welp, we still don\u2019t know how this is going to play out, but last month a new \u00a7 105(c) case came out of the Commission that muddied the waters even further. <\/p>\n\n\n\n

That\u2019s the case I want to talk about this month.<\/p>\n\n\n\n

Section \u00a7 103(f) of the Mine Act says that a representative of miners (you probably know them as \u201cminers\u2019 reps\u201d) is entitled to walk with an MSHA inspector and \u201cshall suffer no loss of pay during the period of his participation in the inspection.\u201d <\/p>\n\n\n\n

Tara Otten worked as a laborer for Continental Cement at an underground limestone mine in Missouri. Under the mine\u2019s union contract, and as the most senior miner in her classification, she often had the opportunity to step up and work as a mobile equipment operator, for which she would be entitled to a higher rate of pay. She was also a miners\u2019 rep who frequently walked with MSHA for inspections. <\/p>\n\n\n\n

Initially, she received the higher MEO rate while she was doing her walkarounds, but at some point, the company\u2019s HR director looked more closely at the union contract and decided that Otten should only be paid the lower rate she would have gotten if she\u2019d worked as a laborer that day.<\/p>\n\n\n\n

Otten filed a complaint with MSHA, and the Secretary sued the company on her behalf, alleging that by paying the lower laborer rate the company was unlawfully interfering with her protected \u00a7 103(f) right to walk with MSHA without taking a loss in pay.<\/p>\n\n\n\n

The administrative law judge agreed, holding that the company had unquestionably violated \u00a7 103(f). His reasoning went one step further, however. The ALJ held that since the \u00a7 103(f) violation had been established, and since the Mine Act is a strict liability act (we can talk about that in another column, if you\u2019d like) there was no need for the Secretary or Otten to prove that the company had been unlawfully motivated for them to win the case. <\/p>\n\n\n\n

This was effectively a completely new and unprecedented interpretation of the Mine Act, eliminating what until now has always been one element of proof required for a \u00a7 105(c) retaliation case.<\/p>\n\n\n\n

The case went up to the Commission, which hears appeals from ALJ decisions. A majority of the commissioners agreed with the ALJ, and they affirmed his decision. The Commission found, in effect, that Continental\u2019s crystal-clear violation of \u00a7 103(f) was in and of itself enough to establish that it had also violated \u00a7 105(c), and it explicitly held that it was therefore unnecessary for the Secretary to prove that the company was unlawfully motivated to reduce Otten\u2019s reduced pay to discourage her from being a miners\u2019 rep. <\/p>\n\n\n\n

The Commission noted that the appropriate legal test for motivation is still pending for decision and therefore unresolved, but it totally sidestepped both the longstanding Pasula-Robinette test and the Ninth Circuit\u2019s but-for test and created a new and easy road for miners\u2019 reps alleging unlawful retaliation under \u00a7 105(c). <\/p>\n\n\n\n

The really interesting thing about the case, though, is the separate opinion written by Commissioner Althen, who both agreed and disagreed with the majority of the commissioners. Like everyone else, he agreed that the miner had suffered an unlawful loss in pay, in violation of \u00a7 103(f). But he took issue with the Commission\u2019s leap (\u201cwithout meaningful analysis,\u201d he wrote) from a \u00a7 103(f) violation to a finding that \u00a7 105(c) had also been violated. <\/p>\n\n\n\n

He pointed out that MSHA could simply have issued a regular \u00a7 104 citation to Continental to enforce Otten\u2019s rights. Then he took a hard look at the language of the Mine Act and argued that \u00a7 105(c) absolutely requires proof of unlawful motivation, since the statute prohibits adverse action because the miner had exercised her protected rights. <\/p>\n\n\n\n

On that basis, he wrote that the butfor test should have been applied to the case in order to effectuate the Mine Act\u2019s goals. <\/p>\n\n\n\n

(He actually said, \u201cthe Commission should forego whistling Pasula-Robinette in the wind and formally adopt the proper standard.\u201d You\u2019ve got to love that candor, right?)<\/p>\n\n\n\n

So, not only are we no closer to knowing how the Commission is going to evaluate motivation in future \u00a7 105(c) cases, we also have this whole new subset of \u00a7 105(c) cases where it is unnecessary for the Secretary or a miner to prove motivation at all. <\/p>\n\n\n\n

Honestly, I think the Commission looked at the facts of the case and when its collective gut said that Otten had been wronged, it took the easiest path to getting her pay restored. I also agree with Commissioner Althen, who made clear that while he agreed with the outcome of the case, he didn\u2019t like the shortcut the Commission took to get there. And I worry what could come next, since the Commission has opened the door for the Secretary to come after companies alleging \u00a7 105(c) retaliation claims where those companies\u2019 motives may have been pure even when they (maybe even accidentally) violated other Mine Act requirements.<\/p>\n\n\n\n

Willa Perlmutter<\/strong>
Willa Perlmutter is chair of Stoel Rives\u2019 OSHA group and co-chair of the firm\u2019s mining group. She can be reached at willa.perlmutter@stoel.com.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

By Willa B. Perlmutter In my last column, I talked about a coming shift in the analysis the Federal Mine Safety and Health Review Commission will use when it considers retaliation cases brought by the Secretary of Labor or by miners under \u00a7 105(c) of the Mine Act.  For those of you that missed that column, here\u2019s the deal: until…<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_themeisle_gutenberg_block_has_review":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[6],"tags":[2140,1092,2141],"coauthors":[1649],"class_list":["post-5100","post","type-post","status-publish","format-standard","hentry","category-law","tag-continental-cement","tag-mine-act","tag-underground-limestone-mine"],"aioseo_notices":[],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/northamericanmining.com\/index.php\/wp-json\/wp\/v2\/posts\/5100","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/northamericanmining.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/northamericanmining.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/northamericanmining.com\/index.php\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/northamericanmining.com\/index.php\/wp-json\/wp\/v2\/comments?post=5100"}],"version-history":[{"count":1,"href":"https:\/\/northamericanmining.com\/index.php\/wp-json\/wp\/v2\/posts\/5100\/revisions"}],"predecessor-version":[{"id":5101,"href":"https:\/\/northamericanmining.com\/index.php\/wp-json\/wp\/v2\/posts\/5100\/revisions\/5101"}],"wp:attachment":[{"href":"https:\/\/northamericanmining.com\/index.php\/wp-json\/wp\/v2\/media?parent=5100"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/northamericanmining.com\/index.php\/wp-json\/wp\/v2\/categories?post=5100"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/northamericanmining.com\/index.php\/wp-json\/wp\/v2\/tags?post=5100"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/northamericanmining.com\/index.php\/wp-json\/wp\/v2\/coauthors?post=5100"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}