Wilson v. Federal Mine Safety & Health Review Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 4, 2017 Decided July 21, 2017

No. 16-1250

MICHAEL WILSON,

PETITIONER

v.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION,

ET AL.,

RESPONDENTS

On Petition for Review of an Order of the

Federal Mine Safety and Health Review Commission

Tony Oppegard argued the cause for petitioner. With him

on the briefs were Wes Addington and Evan B. Smith.

Donna M. Faraq, Student Counsel, argued the cause for

respondent Jim Browning. With her on the brief were Erica J.

Hashimoto, Director, and Luke Sullivan, Student Counsel.

Before: ROGERS, MILLETT and PILLARD, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

Concurring opinion by Circuit Judge MILLETT.

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ROGERS, Circuit Judge: The question presented by the

petition is whether the Federal Mine Safety and Health Review

Commission, upon declining to review a decision of an

Administrative Law Judge, see 30 U.S.C. § 823(d)(1), erred in

rejecting Michael Wilson’s complaint of unlawful

“interference” with his rights as a miners’ representative under

the Federal Mine Safety and Health Amendments Act of 1977

(“the Mine Act”), 30 U.S.C. § 815(c)(1). Wilson’s challenge

arises in the context of a Section 105(c) “interference”

allegation by a non-employee representative of miners against

a non-management employee. See 30 U.S.C. § 815(c). He

contends that the Administrative Law Judge erred as a matter of

law in assessing whether “interference” occurred and in

applying the Commission’s summary decision standard. For the

following reasons, we deny the petition.

I.

Congress adopted the Mine Act “to protect the health and

safety of the Nation’s . . . miners.” Thunder Basin Coal Co. v.

Reich, 510 U.S. 200, 202 (1994) (quoting 30 U.S.C. § 801(g)).

The Mine Act charges two separate agencies — the Secretary

of Labor and the Federal Mine Safety and Health Review

Commission — with “complementary policymaking and

adjudicative functions.” Prairie State Generating Co. v. Sec’y

of Labor, 792 F.3d 82, 85 (D.C. Cir. 2015). The Secretary,

acting through the Department of Labor Mine Safety and Health

Administration (“MSHA”), has rulemaking, inspection, and

enforcement authority, and the Secretary’s reasonable

interpretation of the Mine Act is “accorded deference by both

the Commission and this Court.” CalPortland Co. v. Fed. Mine

Safety & Health Review Comm’n, 839 F.3d 1153, 1162 (D.C.

Cir. 2016). The Commission is an adjudicatory body

“independent of the Secretary.” Prairie State, 791 F.3d at

85–86 (citing 30 U.S.C. §§ 815(d), 823).

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Section 105(c)(1) of the Mine Act provides that “[n]o

person shall . . . interfere with the exercise of the statutory rights

of any miner [or] representative of miners . . . because of the

exercise by such miner [or] representative . . . of any statutory

right afforded by [the Mine Act].” 30 U.S.C. § 815(c)(1).

Miners’ representatives have the statutory right of access to the

company’s records for purposes of examining whether

hazardous conditions exist or violations of mandatory health

and safety standards have occurred. See 30 U.S.C. §§ 813(h),

863(d)(1), (e), (f); 30 C.F.R. §§ 75.360(b), (h), 75.363(b), (d).

The Secretary has concluded that “interference” occurs when:

1. A person’s action can be reasonably viewed, from

the perspective of members of the protected class and

under the totality of the circumstances, as tending to

interfere with the exercise of protected rights, and

2. The person fails to justify the action with a

legitimate and substantial reason whose importance

outweighs the harm caused to the exercise of protected

rights.

McGary v. Marshall Cnty. Coal Co., 38 FMSHRC 2006, 2011

(Aug. 26, 2016); see also Franks v. Emerald Coal Res., LP, 36

FMSHRC 2088, 2108 (Aug. 29, 2014) (Chairman Jordan and

Comm’r Nakamura, separate op.) (citing Sec’y Amicus Br. at

10). The Commission has not settled upon a test for

interference. See McGary, 38 FMSHRC at 2012 n.11; id. at

2028 n.22 (Chairman Jordan and Comm’r Cohen, concurring in

part and dissenting in part). In Wilson’s case, the

Administrative Law Judge (“ALJ”) applied the Secretary’s test,

Wilson v. Browning, 38 FMSHRC 1161, 1163 (May 18, 2016)

(“Dec.”), and neither party has challenged that test. See Pet’r’s

Br. 27–29; Resp’t’s Br. 15 n.6.

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Michael Wilson is a former employee of Parkway Mine,

which is located in Muhlenberg County, Kentucky and operated

by Armstrong Coal Company. In February 2014, Wilson began

to serve as a representative of miners. Upon his retirement in

May 2015, he continued to serve as a miners’ representative. In

a discrimination complaint filed with MSHA, Wilson claimed

that on June 13, 2015, Jim Browning, who worked as a miner

for Armstrong Coal at the underground Parkway Mine, violated

Section 105(c) by interfering with his statutory right as a

miners’ representative to inspect the mine’s examination books.

Wilson requested that Browning be fined, required to undergo

training, and ordered to cease and desist from future violations

of the Mine Act. The Secretary, through MSHA, declined to

file a complaint on Wilson’s behalf, and Wilson sued Browning

“in his own behalf before the Commission.” 30 U.S.C.

§ 815(c)(3).

According to Wilson’s complaint, there was a history of

hostility by Armstrong management and some miners toward

miners’ representatives because of their protected activities and

status as representatives of miners. Compl. ¶ 7. On June 13,

2015, Wilson was at the mine in a bath house reviewing the

company’s preshift/onshift examination reports when Browning

walked up behind him, leaned over him, and “accused [him] of

looking at the preshift/onshift book in order to find a violation

and to have a citation issued against the company.” Compl. ¶¶

8, 9. Browning told Wilson that he “was taking money out of

his (Browning’s) pocket,” and repeatedly told Wilson to go

home, stating that other miners’ representatives at the mine

could perform inspections. Id. ¶ 9. Wilson told Browning it

was his right as a miners’ representative to look at the reports

and he was not leaving. Id. “[A] few minutes” later, the mine

superintendent intervened and escorted Browning out of the

bath house. Id. ¶ 10. Wilson submitted an affidavit from Justin

Greenwell, another miners’ representative, who witnessed “the

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entire event” and stated that Browning “told [Wilson] that he

had a ‘personal vendetta against the company,’ [and] told

[Wilson] numerous times, in a loud voice, to ‘go home.’”

Greenwell Affid. at 1 (Mar. 23, 2016). Browning, an hourly

worker at the mine, in turn, acknowledged that he had been

suspended for the remainder of the day, lost a day’s pay, and

had been told by the mine supervisor not to question Wilson in

the future. See Resp’t Browning’s Answers to Complainant’s

1st Set of Interrogs. Question No. 2; Resp’t’s Resp. to Compl.

of Discrimination ¶ 2.

The parties filed cross motions for a summary decision, see

FMSHRC Rule 67, 29 C.F.R. § 2700.67(b), with Browning

arguing that his actions did not fall within the scope of Section

105(c) and that what he was alleged to have said to Wilson was

speech protected by the First Amendment to the Constitution.

An ALJ granted Browning’s motion and denied Wilson’s. The

ALJ concluded that although Browning “express[ed] [his]

opinion in an agitated manner that Wilson may have perceived

as threatening,” Dec. at 1165, the record did not support an

interference claim against Browning, id.

The ALJ looked to “interference” factors on which the

Commission has relied: the positions of the parties; the tone and

setting of the encounter; the duration of the conduct; and whether

the subject was brought up repeatedly. See id. at 1166 (citing

Gray v. N. Star Mining, Inc., 27 FMSHRC 1, 11 (Jan. 12, 2005),

and Multi-Ad Servs., Inc. v. NLRB, 255 F.3d 363, 372 (7th Cir.

2001)). The ALJ first concluded that because “Wilson was not

an employee at the mine and Browning had no authority over

him, [] Browning’s actions should be understood as having less

coercive effect than in comparable cases like Gray where the

[challenged] actions were done by a supervisor.” Id. at 1166.

The ALJ next concluded that although “Browning took an

aggressive tone with Wilson that could have been interpreted as

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intimidating,” its “effect was mitigated slightly by the fact that

the encounter took place in the bathhouse in front of several

witnesses.” Id. “Finally,” the ALJ concluded that “the

encounter between Wilson and Browning was an isolated

incident” and that “Browning was suspended as a result of his

conduct, and so was unlikely to disturb Wilson again.” Id. The

ALJ noted Wilson had not alleged that any similar incidents

involving Browning had occurred since June 13th, and it “is

unlikely that Wilson views Browning as an ongoing threat that

would dissuade him from working as a miners’ representative.”

Id.

The ALJ then supplemented this analysis, stating that “[i]n

addition to these factors, it is worth noting that the incident does

not appear to have had an actual effect on Wilson’s exercise of

his rights as a miners’ representative.” Id. The ALJ viewed

Wilson’s persistence in examining the company’s books

notwithstanding Browning’s words and conduct, as “persuasive

evidence that a reasonable miner would not have been dissuaded

from exercising his rights in this situation.” Id. at 1167.

Wilson petitioned for review by the Commission. When the

Commission declined review, the ALJ’s decision became the

final decision of the Commission pursuant to 30 U.S.C.

§ 823(d)(1). Wilson petitions for review by the court. Id.

§ 816(a)(1).

II.

Wilson contends that the ALJ erred in applying several

factors relevant to the Secretary’s test for when statutory

interference under Section 105(c) occurs. He begins by asserting

that the ALJ failed to “heed the bedrock principle that § 105(c)

of the Mine Act must be liberally construed to effectuate the

safety-enhancing purpose of the law.” Pet’r’s Br. 15. From

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there, he challenges the ALJ’s application of several factors as

well as the ALJ’s interpretation of relevant precedent, and he

contends more generally that the ALJ misapplied the summary

decision standard by failing to view the facts in the light most

favorable to him. Additionally, Wilson maintains that he was

entitled to a summary decision in view of Browning’s

admissions to a MSHA special investigator that he sought to

discourage Wilson from examining the company’s inspection

books because additional company citations might adversely

affect Browning’s personal finances. Id. at 14 n.12, 15–16.

The court reviews de novo the Commission’s legal

conclusions in applying the “interference” factors identified in

the Commission’s precedent. See Am. Coal Co. v. Fed. Mine

Safety & Health Review Comm’n, 796 F.3d 18, 23 (D.C. Cir.

2015); see also Prairie State, 792 F.3d at 89. The Commission’s

summary decision rule is modeled on Federal Rule of Civil

Procedure 56. See Sec’y of Labor v. Hanson Aggregates N.Y.,

Inc., 29 FMSHRC 4, 9 (Jan. 17, 2007).

The Commission has instructed that “rather than considering

only [the respondent’s] intent, the [ALJ] should . . . analyze[] the

totality of circumstances surrounding [the] statements” to

determine whether a violation of Section 105(c) occurred. Gray,

27 FMSHRC at 10. That is what the ALJ did. Looking to the

Multi-Ad factors, which reflect those relied upon by the

Commission in Gray, 27 FMSHRC at 10–11, and viewing the

allegations and record in the light most favorable to Wilson, the

ALJ concluded that Browning’s conduct did not tend to interfere

with the exercise of protected rights by a reasonable miners’

representative. See Dec. at 1165. Wilson challenges the ALJ’s

application of various factors, and with one exception his

challenges are unpersuasive.

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First, Wilson maintains that the ALJ did not take “into

account that [] this was an isolated incident [] precisely because

Wilson took legal action against Browning . . . and/or he was

suspended by Armstrong Coal for his conduct.” Pet’r’s Br.

20–21. In Wilson’s view, the evidence showed that Browning

intended his actions to have a greater effect than they actually

did, and so the ALJ erred in not fully addressing those intentions

in the analysis. But as the Commission has instructed, whether

“interference” occurred does not turn “on the [respondent’s]

motive or on whether the coercion succeeded or failed.” Gray,

27 FMSHRC at 9 (quotation omitted). That Browning may have

intended, absent his employer’s intervention, to continue to

accost Wilson ignores that the Secretary’s test calls for an

objective evaluation of how a reasonable miners’ representative

would view Browning’s conduct, and not whether Browning had

a subjective intention to interfere with Wilson’s statutory rights.

See, e.g., McGary, 38 FMSHRC at 2011. Under the totality of

the circumstances, the ALJ viewed Browning’s intentions in

context, see Gray, 27 FMSHRC at 9–11, and did not err in

considering that, perhaps due to factors beyond Browning’s

control, the encounter lasted only a few minutes. Dec. at 1166.

Similarly, the ALJ did not err in considering that Browning was

“unlikely to disturb Wilson again” given Browning’s discipline

and subsequent suspension. Id. And, to the extent Wilson

suggests that Browning’s admissions to an MSHA special

investigator demonstrate unlawful interference, Pet’r’s Br.

29–30, he misinterprets Commission precedent by placing undue

emphasis on Browning’s intent.

Second, Wilson maintains that the ALJ erred in considering

Browning’s status as an hourly employee, as opposed to a

manager, because even a manager could not have taken the usual

disciplinary and punitive employment actions against a “non-

employee representative of miners,” such as Wilson. Petr’s’ Br.

21 (emphasis in original). That alone does not render

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Browning’s position as an hourly employee irrelevant. In the

context of “interference,” the Commission typically considers the

“nature of [the parties’] relationship” and whether the respondent

holds a “supervisory position.” Gray, 27 FMSHRC at 10–11;

see also Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088,

2115 (Aug. 29, 2014) (Chairman Jordan and Comm’r Nakamura,

separate op.). As an hourly employee, Browning had no

authority over mine operations or premises, the miners whom

Wilson represented, or the company’s reports that Wilson was

inspecting, and he was subject to being quickly escorted out of

the mine and disciplined, thereby weakening the force of his

potentially intimidating conduct.

Third, Wilson objects to the ALJ considering the public

setting of the incident as a “mitigating factor.” Pet’r’s Br. 21–22.

As noted, the ALJ concluded that the effect of Browning’s

aggressive tone was “mitigated slightly by the fact that the

encounter took place in the bathhouse in front of several

witnesses.” Dec. at 1166. Under the totality of the

circumstances, the Commission has observed that a public

interaction with witnesses at the mine could be less intimidating

than one that occurs in private, for example, through “an at-home

telephone call [or] a meeting outside the mine office.” Gray, 27

FMSHRC at 11. Here, that was true because the public nature of

the incident enabled another employee, who was also a miners’

representative, to report the altercation and prompt the mine

supervisor to intervene.

Fourth, Wilson correctly points out, however, that the ALJ

erred as a matter of law in considering as a factor that Wilson

continued his work as a miners’ representative after Browning

was taken away by his supervisor and suspended for the rest of

the work day. See Pet’r’s Br. 23–24. The ALJ was under the

impression that the actual effect of Browning’s conduct could be

considered so long as that consideration was not dispositive.

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Dec. at 1166–67. But the Secretary’s “interference” test is

objective, and the Commission has instructed that “the relevant

perspective on the issue is that of the reasonable miner [or

miners’ representative],” not the subjective perspective of the

complainant. McGary, 38 FMSHRC at 2017 & n.13 (quotation

omitted); see also Franks, 36 FMSHRC at 2111, 15–16

(Chairman Jordan and Comm’r Nakamura, separate op.); Gray,

27 FMSHRC at 9. This interpretation of “interference” under the

Mine Act has its genesis in Section 8(a)(1) of the National Labor

Relations Act, Franks, 36 FMSHRC at 2107 n.2 (Chairman

Jordan and Comm’r Nakamura, separate op.); Gray, 27

FMSHRC at 9, and the National Labor Relations Board has ruled

that the complainant’s “subjective reaction” to an allegedly

threatening or coercive statement may not be considered in the

Section 8(a)(1) analysis, Sunnyside Home Care Proj., Inc., 308

NLRB 346, 346 n.1 (1992); see also Hanes Hosiery, Inc., 219

NLRB 338, 338 (1975). Like the Board, the Commission applies

an objective standard, and the ALJ here offered no persuasive

reason for departing from that understanding of the interference

test.

Typically, a court cannot affirm an agency decision on a

ground other than those relied upon by the agency. See, e.g.,

SEC v. Chenery Corp., 318 U.S. 80, 88 (1943). An exception

exists when “there is not the slightest uncertainty as to the

outcome of a proceeding on remand,” and in that circumstance

a court “can affirm an agency decision on grounds other than

those provided in the agency decision.” Grossmont Hosp. Corp.

v. Burwell, 797 F.3d 1079, 1086 (D.C. Cir. 2015) (quoting Manin

v. NTSB, 627 F.3d 1239, 1243 n.1 (D.C. Cir. 2011)).

Importantly, the actual effects of a respondent’s alleged

misconduct is not a Multi-Ad factor. See Multi-Ad Servs., 255

F.3d at 372; Franks, 36 FMSHRC at 2115 (Chairman Jordan and

Comm’r Nakamura, separate op.); Dec. at 1165. Here, the ALJ

applied the Multi-Ad factors and on that basis alone determined

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that the record did not “support[] an interference claim against

Browning.” Dec. at 1165. After weighing the Multi-Ad factors

to conclude that no interference occurred, the ALJ erroneously

considered Wilson’s actual response — but did so only to

reinforce that earlier conclusion. See id. at 1166–67.

Consequently, were the court to remand the case for further

proceedings, there is not the “slightest uncertainty” that after

omitting consideration of the actual effects of Browning’s

conduct on the performance of Wilson’s inspection work, the

ALJ would redo the same Multi-Ad analysis and once again

conclude that Browning did not interfere with the exercise of

Wilson’s rights.

Wilson’s remaining challenges to the ALJ’s decision are

unavailing. Fifth, he challenges the ALJ’s understanding of

precedent, focusing on Pendley v. Highland Mining Co., 37

FMSHRC 301 (ALJ Feb. 12, 2015). Wilson views this case to

hold that a non-supervisory miner violates Section 105(c) by

“stand[ing] too close to [the complainant], in an intimidating

manner, for 15–40 and 30–60 seconds, (i.e., a shorter period of

time than Browning hovered over Wilson while yelling at him).”

Pet’r’s Br. 26 n.24. But in Pendley, the ALJ did “not find that

[the respondent’s] conduct alone constituted interference.”

Pendley, 37 FMSHRC at 315. Rather, the “acts or omissions by

mine management,” combined with the miner’s conduct,

constituted interference. Id. The context was different as well.

In Pendley, the parties had engaged in a “multi-year feud, which

resulted in numerous judicial decisions and [the complainant’s]

termination,” id. at 312, with “[a]llegations of discrimination and

conflicts . . . go[ing] as far back as 2005” and including a

“physical altercation,” id. at 312–13. Here the record shows only

a single, “isolated incident” between Wilson and Browning, Dec.

at 1166, even though the two had worked together at the mine for

years. Wilson has not alleged or proffered evidence of a prior

incident, and he does not maintain that management bears any

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responsibility for Browning’s conduct.

Nor is there any merit to Wilson’s sixth challenge that the

ALJ misapplied the summary decision standard by characterizing

the incident as an “altercation” rather than viewing the evidence

in the light most favorable to him. Pet’r’s Br. 22 n.20. In ruling

on the cross-motions for summary decision, the ALJ assumed as

true Wilson’s description of the incident, namely that Browning

“walked up behind Wilson” and began to yell “angrily” in an

“agitated manner that Wilson may have perceived as

threatening.” Dec. at 1165. Wholly consistent with Wilson’s

account, as opposed to Browning’s account, see, e.g., Resp. to

Complainant’s Summary J. Mot. at 7; Browning Affid. at 1–2

(Apr. 29, 2016), the ALJ described a scene where Browning is

the sole aggressor in a verbal incident in a public place, followed

by prompt supervisory intervention, leading to Browning’s

suspension and docking of his pay. Wilson concedes that there

have been no similar events since the single, brief incident in

June 2015, Pet’r’s Br. 20–21, and the record offers no basis to

conclude Browning would risk further suspension and loss of

pay by repeating his aggressive behavior towards Wilson.

Indeed, Browning’s own statements suggest to the contrary. See,

e.g., Browning Affid. at 2; MSHA Special Investigator’s

Interview of Browning, Tr. 15–16 (July 13, 2015). Under the

totality of circumstances, upon applying the Secretary’s test and

viewing the evidence in the light most favorable to Wilson, the

ALJ properly applied the summary decision standard in

concluding that Browning’s conduct did not rise to the level of

Section 105(c) interference.

Finally, because the court is affirming the decision that,

under the Secretary’s test, Browning’s conduct did not constitute

Section 105(c) interference, the court has no occasion to reach

Browning’s contention that the Mine Act does not provide for a

private right of action against non-management miners. See

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Resp’t’s Br. 26–38 (citing inter alia, Meredith v. Fed. Mine

Safety & Health Review Comm’n, 177 F.3d 1042 (D.C. Cir.

1999)). Similarly, the court has no occasion to consider

Browning’s alternative defense that “the First Amendment

precludes [] finding” him liable under the Mine Act. See Resp’t

Br. 38.

Accordingly, we deny the petition for review.

MILLETT, Circuit Judge, concurring:

I join the opinion for the court as far as it goes. I write

separately only to note that, in my view, constitutional

avoidance concerns contribute measurably to my conclusion

that “there is not the slightest uncertainty as to the outcome of

[the] proceeding on remand,” Manin v. National Trans. Safety

Bd., 627 F.3d 1239, 1243 n.1 (D.C. Cir. 2011) (internal

quotation marks and citation omitted).

This case involves statements made by a miner to a

miners’ representative. In the analogous context of labor law,

statements made regarding unionization or union activity are

protected as long as they do not include a threat of reprisal or

force or a promise of benefit. See NLRB v. Gissel Packing Co.,

395 U.S. 575, 616–617 (1968); US Airways, Inc. v. National

Mediation Bd., 177 F.3d 985, 991–994 (D.C. Cir. 1999); 29

U.S.C. § 158(c).

Statements made by a miner to a miners’ representative

very likely merit similar constitutional protection in the narrow

circumstances presented here. Wilson has not alleged that

Browning’s statements contained any actual or implied threat

(or promise). And Browning is an hourly employee with no

authority to affect Wilson’s or any other employee’s work as a

representative, or access to the mine, miners, or mine records.

Nor does Wilson allege that Browning’s outburst was made on

behalf of or was encouraged by management or union officials.

Cf. Gissel Packing, 395 U.S. at 617 (analysis of speech’s

protected content must “take into account the economic

dependency of the employees on their employers” and the

consequent tendency of employees “to pick up intended

implications of the latter that might be more readily dismissed

by a more disinterested ear”). Browning was just a miner

acting entirely on his own initiative and with no power other

than the power of persuasion. And all he did was forcefully

express to Wilson, a miners’ representative, his personal

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opinion that Wilson was not responsibly fulfilling his

representative role.

The substantial constitutional concerns associated with an

attempt to punish such conduct, combined with the other

factors identified in the court’s opinion, convince me that

nothing could change on remand.