In Moses v. Whitely Development Corp., 4 FMSHRC 1475 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985), the Commission relied on the “interference” prong of section 105(c) in ruling that an operator’s interrogation and harassment violated that provision. Id. at 1478-79. Although Elias Moses had not engaged in protected activity, he was questioned by his foreman as to whether he had called MSHA after inspectors arrived at the mine to investigate a bulldozer accident. On two subsequent occasions, in front of the other employees, the foreman again accused Moses of reporting the accident to MSHA. Id. at 1476-77. Moses was subsequently laid off and never recalled to work.

            In addition to concluding that the operator had discharged Moses in violation of section 105(c), the Commission also considered whether coercive conversations and harassment alone could constitute a violation of that statutory section. We determined that they could, finding them to be among the “more subtle forms of interference.” Id. at 1478-79. We explained that:

A natural result of such practices may be to instill in the minds of employees fear of reprisal or discrimination. Such actions may not only chill the exercise of protected rights by the directly affected miners, but may also cause other miners, who wish to avoid similar treatment, to refrain from asserting their rights. This result is at odds with the goal of encouraging miner participation in enforcement of the Mine Act.

Id. (footnote omitted). Considering the persistence with which the subject of Moses’ supposed reporting of the accident was raised and the accusatory manner in which it was done, the Commission determined that the conversations constituted prohibited interference under section 105(c)(1). Id.  

            We recognized, however, that:

This is not to say that an operator may never question or comment upon a miner’s exercise of a protected right. Such question or comment may be innocuous or even necessary to address a safety or health problem and, therefore, would not amount to coercive interrogation or harassment. Whether an operator’s actions are proscribed by the Mine Act must be determined by what is said and done, and by the circumstances surrounding the words and actions.

4 FMSHRC at 1479, n.8.                   

            In Secretary of Labor on behalf of Mark Gray v. North Star Mining, Inc., 27 FMSHRC 1 (Jan. 2005), we stated that the issue of whether a management official’s conduct constitutes interference proscribed by the Act “must be determined by what is said and done, and by the circumstances surrounding the words and actions.” Id. at 8 (quoting Moses at 1479 n.8). Gray involved conversations between the assistant superintendent and two miners who had testified before a grand jury about smoking, ventilation and roof support violations at the mine. Id. at 2. Visited at his home and repeatedly asked about the grand jury proceeding, miner Mark Gray told assistant superintendent Brummett that he did not want hard feelings between them because of the testimony. Brummett replied, “No, they ain’t no hard feelings, unless you put the screws to me, then I’ll kill you” and then laughed. Id. The next day, Brummett sought assurances from Gray that Ray Young, the second miner, had not testified against him. Id. at 3. Brummett told Gray that “if anyone had laid the screws to him that he would whip their ass.” Id. Shortly thereafter, Gray left his job at North Star and went to work for another mining company.

            The Judge dismissed Gray’s discrimination complaint, finding that Brummett’s statement to Gray at Gray’s home was just an “exaggerated expression, commonly used between friends,” and that his statement to Gray on the following day was directed at Young, not Gray. Id. at 5. In vacating the decision, the Commission held that the judge examined Brummett’s statements too narrowly, focusing mostly on the supervisor’s intent or motive. Moreover, the fact that Brummett’s “whip ass” statement to Gray at the No. 6 mine was directed at Young, not Gray, was “not determinative of whether, under the circumstances, the statement may have tended to coerce Gray in the exercise of his Mine Act rights.” Id. at 11, n.13. We pointed out that an interference analysis must “take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.” Id. at 9 (quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969)). Moreover, we explained that, unlike the analysis generally referred to as the Pasula-Robinette test, which is more commonly used in analyzing section 105(c) discrimination complaints, see Sec’y of Labor on behalf of Pasula v. Consol. Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981), a miner’s complaint of interference with protected rights does not require proof of an operative’s motive to discriminate. Gray, 27 FMSHRC at 8, n.6.

            In addition, the Commission in Gray, in following the analysis set forth in Moses for evaluating an operator’s statements in an interference case, explained that Moses drew on principles developed under the National Labor Relations Act. We noted in Gray that the National Labor Relations Board had articulated the following test for determining whether a violation of section 8(a)(1) of the NLRA occurred (that section makes it unlawful for an employer “to interfere with, restrain, or coerce employee’s” exercise of protected rights):

[I]nterference, restraint, and coercion under Section 8(a)(1) of the [NLRA] does not turn on the employer’s motive or on whether the coercion succeeded or failed. The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the [NLRA].

Gray, 27 FMSHRC at 9 (quoting American Freightways Co., 124 NLRB 146, 147 (Jul. 1959) (citing 29 U.S.C. § 158(a)(1))).

                                    2.         The Secretary’s proposed test for interference claims

            In his amicus brief in this matter, the Secretary has proposed the following test for evaluating interference claims brought pursuant to section 105(c). He suggests that an interference violation occurs if:

(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

Sec’y Amicus. Br. at 10.

            The Secretary suggests that when each of these interests are significant, the inquiry turns to whether the operator’s actions were sufficiently tailored to advance its business justification without causing unnecessary harm to protected rights. Id. at 20.

            The Secretary’s proposed test is consistent with our prior precedent in this area, reflecting the standard we articulated in Gray, 27 FMSHRC at 9 (analyzing “whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the exercise of [protected] rights”) (citation omitted) and Moses, 4 FMSHRC at 1478-79 (concluding that conduct that would “chill the exercise of protected rights” violates section 105(c). Accordingly, we adopt this standard as the “interference test” in appropriate section 105(c) cases, and apply it to the evidence in the record of this case.    

                        B.        Interference claims of Franks and Hoy

                                    1.          Franks and Hoy’s expectation that they could make a confidential safety complaint

            In order to assess the interference claim, it is critical to understand the need of the miners to make a confidential complaint. After reviewing the record, it is difficult to overstate how important confidentiality was to Franks and Hoy when they chose to make their complaint about inadequate preshift exams to their union safety committeeman. When asked about going to his safety committeeman rather than going directly to the company with a safety complaint, Hoy explained “I thought it would be confidential more with Dave Moore and he would look into the matter deeper.” Tr. 43. Franks testified that he complained to Dave Moore, the safety committeeman, because he had a “fear of retaliation from the company” and that he expected to be protected from that retaliation if he went through Moore. Tr. 52. Franks also indicated that by going to Moore he was trying to avoid getting flack from his fellow miners. Tr. 48. Franks testified that by going to Moore, he “assumed he [Moore] would approach the company with the information that I gave him.” Tr. 47. Hoy also testified that he expected Moore to “check into the matter,” (Tr. 19) and that when he gave the names to Moore “[h]e should have done something about it.” Tr. 39.

            Given the implications of their complaints, it is not surprising that Franks and Hoy sought confidentiality. The complaints they made about the firebosses were serious charges. A preshift examiner is required under law to make thorough examinations of certain areas of the mine and certify in writing that he conducted the exam and noted any hazardous conditions found. As local union president Anthony Swetz testified, a fireboss who does not conduct an adequate exam yet certifies that he did so, is not only subject to discipline by his employer, but also subject to criminal charges brought by government authorities. Tr. 142-43. The firebosses at the Emerald Mine were hourly union employees. Tr. 39.

            Franks and Hoy, in choosing to go to their union safety committeeman - not once, but twice - were taking the initiative in trying to correct what they viewed as a significant safety problem, while at the same time ensuring that their complaint would remain confidential. Again and again the record shows that confidentiality was uppermost in their minds. This puts into stark perspective the potential impact of the very public interrogations that ensued.

            Such concerns about confidentiality because of fear of retaliation are very real and have been recognized by both the courts and Congress. The Seventh Circuit’s discussion of the informer’s privilege in Dole v. Local 1942, Int’l Bhd. of Elec. Workers, 870 F.2d 368, 372 (7th Cir. 1989), is in many respects applicable to miners cooperating in mine safety investigations:

The doctrine of the informer’s privilege is not a recent phenomenon, having its roots in the English common law. . . . The underlying concern of the doctrine is the common-sense notion that individuals who offer their assistance to a government investigation may later be targeted for reprisal from those upset by the investigation. . . . The privilege recognizes the responsibility of citizens to cooperate with law enforcement officials and, by providing anonymity, encourages them to assume this responsibility. With the threat of reprisal real and unprotected against, well-intentioned citizens may hesitate or decline to assist the government in tracking down wrongdoers. The threatened reprisal may be physical, but the privilege also recognizes the subtler forms of retaliation such as blacklisting, economic duress and social ostracism. . . . The most effective means of protection, and by derivation the most effective means of fostering citizen cooperation, is bestowing anonymity on the informant, thus maintaining the status of the informant’s strategic position and also encouraging others similarly situated who have not yet offered their assistance.

Id. at 372.

            Congress has been motivated by such concerns in enacting “whistleblower” statutes. Aware of these kinds of issues in the mining industry, Congress included section 103(g) in its enactment of the Mine Act. Section 103(g) allows a miner to make complaints to the Secretary about violations of the Mine Act or any mandatory health or safety standard, or an imminent danger. 30 U.S.C. § 813(a). The legislative history of the Act emphasized that this provision, which was carried over from the Coal Act, was based on the firm belief “that mine safety and health will generally improve to the extent that miners themselves are aware of mining hazards and play an integral part in the enforcement of the mine safety and health standards.” S. Rep. No. 95-181, at 30 (1977), reprinted in Legis. Hist. at 618. To protect the reporting miner from retaliation, section 103(g) provides that the notice of the complaint provided to the mine operator by the Secretary is not to include the name of the reporting miner nor the names of the individual miners involved in the alleged violations. The importance of maintaining confidentiality was emphasized in the legislative history:

The Committee is aware of the need to protect miners against possible discrimination because they file complaints, and accordingly, the Section requires that the name of the person filing the complaint and the names of any miners referred to in the compliant not appear on the copy of the complaint which is served on the mine operator. While other provisions of the bill carefully protect miners who are discriminated against because they exercise their rights under the Act, the Committee feels that strict confidentiality of complainants under Section [103(g)(1)] is absolutely essential.

Id. at 617.

            This review of the importance of protecting the confidentiality of miners making complaints of others violating the Mine Act provides the backdrop to our analysis of whether a reasonable miner in Franks and Hoy’s position would be reluctant to lodge future safety complaints at the mine, given the actions of the operator. The interrogations that resulted in the suspensions of Franks and Hoy were in fact triggered by a person or persons filing a 103(g) complaint. The complaint alleged, among other things, that the firebosses “only stop at the mandoors to check belts,” that the beltlines “look like a powder keg” and that the mine was “not being inspected properly by State or MSHA.” Jt. Ex. 1.

            As part of his investigation into the section 103(g) complaint, MSHA inspector Thomas Bochna came to the mine, approached Franks, and asked him if he had ever seen a fireboss fail to perform a proper belt examination. Jt. Stip. 14. Franks told him that he knew of an incident, the fireboss responsible, and the date on which it happened. Id.

            Given the importance of confidentiality surrounding a 103(g) complaint, it is astounding that in conducting its interviews, MSHA so publicly revealed Franks and Hoy to both company and union representatives as persons who could identify firebosses who had performed inadequate preshift exams. Our dissenting colleague states that any error MSHA might have made in its handling of the section 103(g) investigation by bringing Franks and Hoy into an interview attended by management cannot be a basis for finding interference by the operator. Slip op. at 52. We reiterate that we are not imputing any discriminatory intent (to MSHA or Emerald) in this analysis; nor do the miners need to prove intent under the interference prong of section 105(c). Rather, as Gray instructs, we must consider the “totality of the circumstances” in ascertaining whether the operator’s conduct interfered with the exercise of statutory rights. 27 FMSHRC at 10. In this case, for better or worse, the circumstances included the fact that MSHA had conducted an investigation in which it made public that Franks and Hoy had knowledge supporting the allegations of inadequate preshift exams.

            Franks and Hoy’s desire for confidentiality was also grounded in their concern about retaliation from fellow miners if it became public that they had accused the examiners of unsafe practices. The firebosses about whom they complained were also union members, (Tr. 42) and this influenced Franks and Hoy’s decision to go their union safety representative. Id. Hoy testified that he expected to receive some protection by going through Moore. Tr. 43.

            Franks and Hoy’s desire for confidentiality was justified, given their description of the reactions of their fellow employees. After Franks was questioned as part of MSHA’s investigation, he explained that when he came back to work he “was receiving a lot of flack from the other workers: they told me not to give the name of the individual.” Tr. 48.

            This incident makes clear that others at the mine knew that Franks had spoken with the MSHA inspectors. This is not surprising, given that the MSHA and management interviews with Franks and Hoy were not conducted in private, but were attended by many other individuals. Slip op. at 3-4.

            Hoy, for his part, was so troubled that he telephoned MSHA Inspector Severini on October 5, the day after he had been summoned to a meeting with management and MSHA officials. Hoy testified that he called MSHA because “I was in the lamp room, and a gentleman came up to me and told me I had a big target on my back for talking to the inspectors.” Tr. 33. Hoy confirmed that this gentleman was an hourly employee. Tr. 34.  

            Franks and Hoy’s wish for confidentiality seemed to be thwarted at every turn, beginning with Franks being called out of the mine to meet with MSHA, Jt. Stips. 15, 16. Given their preference to report their allegations of safety violations through the private channels offered by their union safety committeeman, it is not surprising that they would perceive the repeated interrogations by management (set forth in detail by our colleagues, slip op. at 3-4) as coercive. The constant questioning was additionally problematic to them because Franks and Hoy believed that they did not have to provide the information, due to the existence of the 103(g) complaint. Tr. 19, 20, 39. Indeed, Franks stated explicitly that “I thought I was protected under the 103(g). Tr. 58.

            Unfortunately, the presence of the local union president probably did nothing to assuage their concerns. Although Anthony Swetz gave lip service to his job as looking out for “everybody at the local” (Tr. 150), he specifically testified: “There was a blanket allegation made against 18 firebosses, no specifics, no names, no anything. Several of these firebosses were very concerned: Am I the focus of this investigation? That’s why I was there [at the meetings with MSHA and Hoy and Franks].” Tr. 149-50.                                    

            It is against this singular backdrop – of MSHA’s very public 103(g) investigation, the seven citations MSHA subsequently issued to Emerald, the additional fifteen interviews that management conducted with other miners after the end of the MSHA investigation (after MSHA interviewed 34 miners), perceived pressure from fellow union employees, local union officials representing the interests of the firebosses during the interrogations, and the unwavering expectations of Franks and Hoy that they could make a safety complaint confidentially – that we will examine whether Emerald’s interrogations and suspensions of these miners were coercive. Slip op. at 3-5, 23, 25-26. We emphasize again that for the miners to prevail on their interference claim, proof of the operator’s intent to interfere with the miners’ statutory rights is not required.  

                                    2.         Whether the operator’s actions can be reasonably viewed to interfere with protected activity

            We now turn to the specific discrimination claims of Franks and Hoy under the interference prong of section 105(c). As we discuss below, under the unique circumstances of this case, we conclude that Emerald interfered with the protected right of Franks and Hoy to lodge a safety complaint with their union safety committeeman. The events occurring at this mine coalesced in such a way so that, from the perspective of a miner employed at this mine, the ability to make such a safety complaint without reprisals was compromised.

            The presence of numerous Emerald managers when Franks and Hoy were questioned during the MSHA investigation and later during Emerald’s investigation, undoubtedly created a coercive environment to the meetings. See Stoody Company, 320 NLRB 18, 18-19 (Dec. 1995) (interrogation found coercive when high level supervisor conducted the questioning in his office (“the core of management authority”)) (citation omitted). More than one manager attended most of these sessions. William Schifko, the Emerald Compliance Manager, and Christine Hayhurst, a high-ranking official in the human resources division, attended all of these meetings. The final meeting with Franks and Hoy also included Joseph Pervola, Emerald’s safety manager. Jt. Stips. 46, 49. Although our dissenting colleague notes Hoy’s statement during the October 4 meeting with MSHA that he was comfortable with having everyone in the room, slip op. at 42, Hoy explained in his testimony that he had never been part of a safety hazard investigation before and that he did not know he had the right to object to some of the participants at the meeting. Tr. 41.

            Franks testified that in his first interview with MSHA, the inspector told him everything would be confidential, that he would not be discriminated against and there would be no retaliation from the company. Although Franks acknowledged that he told the inspector he was comfortable with everyone in the room, he testified that “I never participated in a federal investigation before. I figured this was his investigation,” and that he did not know he had any right to object. Tr. 49.

            The persistence of the managers’ questioning, in the face of the miners’ repeated refusal to provide the names of the firebosses, also added to the coercive quality of the questioning. See Moses, 4 FMSHRC at 1479. Emerald’s inquiries continued despite the miners’ prior refusal to provide the names to the MSHA inspectors and the information to management. Franks was interviewed by MSHA and management a total of six times; Hoy was interviewed at least three times. Emerald’s numerous demands that Franks and Hoy reveal the names of the firebosses, when the miners had clearly made their complaints via what they believed was a confidential process, highlights the coercion the miners perceived when repeatedly asked a question they had refused to answer. In fact, Hoy explicitly told Schifko that his questions constituted harassment and that he would be filing a complaint of discrimination under section 105(c). 35 FMSHRC at 1699.

            The consistent responses that Franks and Hoy gave over the course of the nine total interrogations they endured made it obvious that confidentiality was their foremost concern. At no time did they retract their complaints that inadequate preshifts had been conducted. Instead they continued to point out that they had given the requested names and dates to their union safety committeeman. In short, for fear of retaliation, they did not want to be made to publicly “finger” offending union firebosses.

            It is also relevant that the Emerald managers did not try to dispel the coercive effect of their questioning by telling Franks and Hoy why they needed them to reveal the identities of the firebosses and guaranteeing that no adverse action would be taken based on the answers. These are practices the NLRB takes into account when evaluating whether the questioning of an employee is coercive. Johnnie’s Poultry Co., 146 NLRB. 770, 775 (Apr. 1964), enforcement denied on other grounds, 344 F.2d 617, 619 (8th Cir. 1965).

            Considering the totality of the circumstances in the case, we conclude that the suspensions of Franks and Hoy undoubtedly will have a profound impact on many, if not most, of the miners’ willingness to make safety complaints in the future. Emerald suspended Franks and Hoy for seven days without pay for the “[f]ailure to provide information you have concerning serious allegations of safety violations.” Jt. Exs. 3 and 4. It would be the brave miner, indeed, who would voluntarily allege safety violations in the future, knowing that he or she might risk suspension (or perhaps discharge) if the information provided was deemed insufficient by the operator. As counsel for Franks and Hoy correctly pointed out, a “reasonable miner . . . would be disinclined to risk such consequences by reporting future [safety problems].” C. Post-Hearing Br. at 27.

            In Multi-Ad Services, Inc., v. National Labor Relations Board, 255 F.3d 363 (7th Cir. 2001), the Seventh Circuit ruled that substantial evidence supported the conclusion that management violated the NLRA by coercively interrogating an employee in a closed-door meeting about interest in forming a union. The Court set forth the following test to determine whether an employee would perceives an employer’s actions as coercive:                           

Factors that ought to be considered in deciding whether a particular inquiry is coercive include the tone, duration, and purpose of the questioning, whether it is repeated, how many workers are involved, the setting, the authority of the person asking the question, and whether the company otherwise had shown hostility to the union. We also consider whether questions about protected activity are accompanied by assurances against reprisal and whether the interrogated worker feels constrained to lie or give noncommittal answers rather than answering truthfully.

Id. at 372 (citation omitted).

            The Court based its finding of coercion on the following: a closed-door meeting was conducted in a manager’s office by two people who had authority to fire the worker being interrogated; they questioned him regarding why he would want to bring a union into the company; they asked about the worker’s own career advancement; they did not assure him that reprisals would not be taken against him, and the meeting was conducted after company managers had expressed uneasiness over union activity. Id.

            As this case illustrates, the inquiry regarding whether interrogations are coercive involves many factors, several of which are present here. To summarize, we find that the operator’s actions (questioning Franks and Hoy and then suspending them) would be viewed by a reasonable miner, under the totality of the circumstances, as tending to interfere with the exercise of protected rights because: repeated interviews took place where numerous workers were questioned; upper level management conducted the interviews; the managers questioning the miners gave no assurances against reprisal, and Franks and Hoy were suspended.

                                    3.         The operator’s need for the requested information

            Under the next step of the Secretary’s suggested interference test, Emerald must justify its actions “with a legitimate and substantial reason.” Its rationale, adamantly and consistently presented both to the judge and to us, is its right – indeed, its responsibility – to investigate safety complaints at the mine.

            We recognize, of course, the right and essential responsibility of mine owners to investigate safety complaints. The Mine Act itself states that “operators of [coal or other] mines with the assistance of the miners have the primary responsibility to prevent the existence of [unsafe and unhealthful] conditions and practices in such mines.” 30 U.S.C. § 801(e). This bedrock principle is vital to miner safety.

            Our decision in Secretary of Labor on behalf of Pack v. Maynard Branch Dredging Company and Roger Kirk, 11 FMSHRC 168 (Feb. 1989), emphasized the need of an operator to require miners to report dangerous conditions. In that case, the Secretary argued that when a miner reports a dangerous condition to MSHA, this “insulates [the miner] from being discharged for failing to also report that condition to his foreman or co-workers.” Id. at 172. We stated that this position failed to consider the operator’s right to require the reporting of dangerous conditions:

While section 2(e) of the Mine Act provides that mine operators have the primary responsibility to prevent unsafe conditions in mines, that section adds that miners are to provide assistance to operators in meeting that responsibility. It would make little sense

to assert that an operator may not receive such assistance because a miner elects instead to report such a condition only to MSHA.

Id. at 173.

            William Schifko, the Emerald compliance manager, explained why he needed the miners to provide the names: “[I]f you are going to make an accusation against somebody, you have got to be able to know the facts, and, I mean, you can’t accuse somebody of something without having some concrete evidence.” Tr. 74. As Christine Hayhurst, Emerald’s human resources supervisor testified, in actions against individuals for violating safety rules “[w]e need facts. We need witnesses to stand up against the facts.” Tr. 107.

                                    4.         Balancing the miners’ need for confidentiality with the                                                  operator’s need for the requested information

            With both of these core concepts in mind – the need for miners to make safety complaints with no fear of reprisal, and the need for mine operators to fully investigate safety complaints – we now turn to a balancing of these important interests.       

            To determine whether Emerald interfered with Franks’ and Hoy’s protected rights, we balance the operator’s right to obtain information about an important safety matter with the rights of Franks and Hoy to make confidential safety complaints. The Secretary articulates this process in his proposed test by suggesting that, for the operator to prevail, its actions must present a “reason whose importance outweighs the harm caused to the exercise of protected rights.” Sec’y Amicus Br. at 10.

            We conclude that the operator’s need to obtain the names of the firebosses and other pertinent information from Franks and Hoy in the circumstances of this case does not outweigh the harm to the miners’ protected rights. We fear that other miners at Emerald’s No. 1 Mine, like Franks, will decide that reporting violations of the Mine Act “[isn’t] worth it.” We are convinced that the manner in which MSHA conducted the section 103(g) interviews, along with the multiple interrogations and the resulting suspensions, created an atmosphere where miners will be extraordinarily reluctant to complain to a safety committeeman or file a section 103(g) complaint with MSHA. This will work to the detriment of the miners’ safety, because some of the most important safety mechanisms created by Congress will have been brought to a halt at this mine.

            We articulated a similar concern in our decision in Secretary of Labor on behalf of Pendley v. Highland Mining Company, 34 FMSHRC 1919 (Aug. 2012). Although we applied the traditional Pasula-Robinette standard in that case, we recognized that some acts by operators are materially adverse to miners when they are “‘harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.’” Id. at 1932 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). We emphasized that the Mine Act “recognizes that retaliatory action does not only affect the targeted miner, but other miners on whom it could have a chilling effect regarding the reporting of safety hazards.” Id. 

            In weighing the concerns at stake here, we must examine what information the operator had already obtained and what additional information it needed to conduct an adequate investigation into the allegations of unsafe practices at the mine. Obviously the identity of the firebosses was critical to this inquiry. In evaluating Emerald’s need to extract this information from Franks and Hoy, however, we are mindful that the operator was not completely handcuffed by their refusal to reveal the firebosses’ identity. Management, by speaking with safety committeeman Dave Moore, could have determined the specific date and shift which Moore had investigated, and thus discovered the identities of the firebosses working those shifts. Furthermore, Shifko testified that Moore told him that he had received a “generic” complaint about inadequate preshift exams and had investigated and found no merit to the complaint.

Tr. 94-95. At that stage of its investigation, the operator could have reviewed the particulars of Moore’s investigation to determine if there was any merit to the allegations. Thus, although Emerald’s investigation was admittedly made more complicated by Franks’ and Hoy’s refusal to name the examiners, the inquiry was not rendered impossible by their reluctance to accuse a fellow miner during the operator’s investigation. Emerald had other avenues for obtaining this information, and this is an important consideration as we compare its need to make Franks and Hoy reveal the names with the long-term ramifications such a demand would have on miners’ safety complaints in the future.

            Thus, although the operator has raised a serious concern, and on a different factual record the operator’s need for information might tip the scales in its favor, here we find that Emerald’s desire to make Franks and Hoy reveal the firebosses’ names did not outweigh the harm caused by the chilling effects of its efforts. In other circumstances, where, for example, the inquiries were held in private, one-on-one meetings, the union protection was undiluted, and there was no background of an MSHA investigation gone awry by being conducted in such a public fashion, an operator might prevail. But that is not the record in this case, nor the circumstances under which Franks and Hoy were forced to navigate after attempting to make a confidential safety complaint.

            Given the particular context in which the events at the Emerald mine unfolded, we conclude that the operator’s actions, if allowed to stand, would have a chilling effect on the miners there, who, we believe, will think carefully before voicing a safety concern to MSHA or a safety committeeman in the future. We believe that the operator’s need to obtain the information was, in this case, outweighed by the potentially chilling effect of the investigations and suspensions that occurred. Consequently, we would affirm the Judge’s decision finding a violation of section 105(c) of the Mine Act.

                                                                                    /s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chairman

                                                                                    /s/ Patrick K. Nakamura

                                                                                    Patrick K. Nakamura, Commissioner 

Commissioner Althen, dissenting:

            The willful refusal of miners to cooperate with a safety investigation is contrary to the fundamental principle of miner participation and assistance in achieving a safe and healthful mining environment. Such conduct imperils rather than empowers miners and is properly subject to discipline.

I.

Governing Legal Principles

A.        Framework for Analysis

            The National Labor Relations Act (NLRA) and the Mine Act protect miners against discrimination by management because of activities protected by the respective laws. They also protect miners against interference with the statutory rights provided by the respective statutes. Therefore, it is appropriate that the National Labor Relations Board and Federal Mine Safety and Health Review Commission should look to one another’s enforcement of such rights for legal principles related to the protection of miners. Sec’y on behalf of Gray v. North Star Mining, Inc., 27 FMSHRC 1, 9 (Jan. 2005); see also Moses v. Whitely Development Corp., 4 FMSHRC 1475 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985). It is equally important to understand that different concepts animate the relationship between management and miners in labor matters versus safety matters.

            The premise of the NLRA is that miners and management are adversaries with respect to wages, hours, and terms and conditions of employment. Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 317 (1965) (“Having protected employee organization in countervailance to the employers’ bargaining power, and having established a system of collective bargaining whereby the newly coequal adversaries might resolve their disputes, the [NLRA] also contemplated resort to economic weapons should more peaceful measures not avail.”); Tearing Down the Wall: The Need for Revision of NLRA § 8(A)(2) to Permit Management-Labor Participation Committees to Function in the Workplace, 26 Tex. Tech L. Rev. 1391, 1398 (1995) (“The NLRA is structured on an adversarial model of labor relations that views the interests of management and labor as mutually exclusive.”); David Rabban, Distinguishing Excluded Managers From Covered Professionals Under the NLRA, 89 Colum. L. Rev. 1775, 1778 (1989) (“Labor relations and labor law in the United States have been shaped by underlying assumptions about organizational hierarchies and adversarial relationships between management and labor in the industrial work place. The . . . [NLRA] posits a fundamental dividing line between labor and management.”).

            The Mine Act is based upon a wholly different vision of the relationship between miners and mine management regarding the safety and health of the workforce. Congress foresaw the desirability of, and need for, cooperation between management and miners on safety and health. It provided for an active role for miners in assisting in the achievement of safe and healthful work environments.

            Section 2(e) of the Mine Act provides that “the operators of such mines with the assistance of miners have the primary responsibility to prevent the existence of such [unsafe and unhealthful] conditions and practices in such mines . . . .” 30 U.S.C. § 801(e) (emphasis added). Miner participation in safety and health matters was of such concern that the Senate report on the Mine Act explicitly recognized the importance of active participation by miners in the “joint” task of providing a safe and healthful workplace.

[T]he Committee recognizes that creation and maintenance of a safe and healthful working environment is not the task of the operator alone. If the purposes of this legislation are to be achieved, the effort must be a joint one, involving the miner and his representatives as well as the operator.

S. Rep. No. 95-181, at 18 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 606 (1978).

            Indeed, the Senate Committee recognized the need for, and explicitly endorsed, disciplinary actions as appropriate to effectuate the safety purposes of the Act:

Operators have the final responsibilities for affording safe and healthful workplaces for miners, and therefore, have the responsibility for developing and enforcing through appropriate disciplinary measures, effective safety programs that could prevent employees from engaging in unsafe and unhealthful activity.

Id. (emphasis added).

            In construing the protections afforded miners under section 105(c), the Commission has emphasized that participation of miners in safety is a goal of the Mine Act, finding the “Mine Act was drafted to encourage miners to assist in and participate in its enforcement.” Sec’y on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2789 (Oct. 1980), rev’d on other grounds 663 F.2d 1211 (3d Cir. 1981).

            The Commission has not merely endorsed cooperation and participation by miners. It has accepted the directive of the Senate Report and made disciplining miners an integral part of operators’ duties under the Mine Act. For example, to comply with 30 C.F.R. § 77.1710(g) regarding fall protection, an operator not only must provide fall protection and train employees to wear safety belts but also must show that it has “engaged in sufficiently specific and diligent enforcement of the safety belt requirement to discharge its obligation under the standard.” Sw. Ill. Coal Corp., 7 FMSHRC 610, 612 (May 1985); Austin Power, Inc., 9 FMSHRC 2015, 2020 (Dec. 1987) (“the Commission concluded that section 77.1710(g) mandates that an operator establish a program requiring the wearing of safety belts and lines where dangers of falling exist and enforce the requirement diligently.”).

            Thus, the Commission has demanded that operators discipline employees for choosing not to protect themselves. It would be odd if management is required to discipline miners for choosing not to protect themselves but must allow miners to decide not to protect fellow miners by choosing not to participate fully and honestly in a safety investigation.

            Enforcement of discipline in the context of a refusal to answer questions in a safety investigation accords not only with the purposes of the Mine Act but also clear and commanding Commission case law. Secretary on behalf of Pack v. Maynard Branch Dredging Co., 11 FMSHRC 168 (Feb. 1989), aff’d, 896 F.2d 599 (D.C. Cir. 1990), is on point. In Pack, the Commission upheld the discharge of a security guard who failed (as opposed to refused) to inform the operator of a safety violation during his shift and then reported it directly to MSHA. The Commission spoke broadly about the duty of employees to the safety of themselves and other workers, holding:

It is beyond dispute that a mine operator has the right to hire individuals whose job duties include the reporting of dangerous conditions. The Mine Act itself recognizes the importance of such an arrangement. While section 2(e) of the Mine Act provides that mine operators have the primary responsibility to prevent unsafe conditions in mines, that section adds that miners are to provide assistance to operators in meeting that responsibility. It would make little sense to assert that an operator may not receive such assistance because a miner elects instead to report such a condition only to MSHA. . . . [I]t would prohibit an operator from disciplining a pre-shift examiner who, rather than reporting dangerous conditions to the operator, chose instead to report to MSHA, while the miners on the incoming shift entered the mine unaware of the dangers. We do not believe this is what anti-discrimination provisions of the Mine Act contemplated.

Id. at 173.

            Obviously, if a safety investigation is a pretense for interference with statutory rights or a means to discriminate against a miner because of protected activity the action is unlawful. However, in situations where an investigation is warranted and legitimate, the assistance of miners in reporting unsafe conditions or practices and responding to questions about reports of unsafe working conditions fulfills the basic tenet of Congress that miners assist and participate in achieving a safe and healthful workplace. Perforce, if miners may be required to report dangerous conditions, they may be required to provide information to management about the conditions once they have reported them.

            2.         Proof of Unlawful Discrimination

            A complainant alleging discrimination under the Mine Act establishes a prima facie case of prohibited discrimination by presenting evidence sufficient to support a conclusion that the individual engaged in protected activity and that the adverse action complained of was motivated in any part by that activity. See Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Pasula, 2 FMSHRC at 2799; Sec’y on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The operator may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no part motivated by protected activity. See Robinette, 3 FMSHRC at 818 n.20. If the operator cannot rebut the prima facie case in this manner, it nevertheless may defend affirmatively by proving that it also was motivated by the miner’s unprotected activity and would have taken the adverse action for the unprotected activity alone. Id. at 817-18 (citing Pasula, 2 FMSHRC at 2799-800); see also E. Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-Robinette test).

            Of course, circumstantial evidence may support a claimed violation of section 105(c). In Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-11 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983), the Commission identified several indicia of discriminatory intent, including: (1) knowledge of the protected activity; (2) hostility or animus towards protected activity; (3) coincidence in time between the protected activity and the adverse action; and (4) disparate treatment of the complainant. 3 FMSHRC at 2510. Further, the Commission may find the proffered reason may be a pretext provided the claimant establishes “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate [the discipline], or (3) that they were insufficient to motivate discharge.” Turner v. Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1073 (May 2011) (emphasis in original).

            Regarding inferences, the Commission has emphasized that inferences drawn by the Judge are “permissible provided they are inherently reasonable and there is a logical and rational connection between the evidentiary facts and the ultimate fact inferred.” Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984); accord Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2153 (Nov. 1989). Black’s Law Dictionary defines “inference” as “a conclusion reached by considering other facts and deducing a logical consequence from them.” Black’s Law Dictionary 897 (10th ed. 2014) (emphasis added). Inferences must be based upon findings of fact followed by a logical and rational conclusion and may not be spun out of speculation or be piled one on another to an inferred result that collapses under the weight of its own insubstantial structure.

            3.         Proof of Unlawful Interference with Statutory Rights

            A causal connection also must be proven to sustain a violation of section 105(c) of the Mine Act for interference with a statutory right. In that respect, section 105(c)(1) provides:

No person shall . . . interfere with the exercise of statutory rights of any miner . . . because such miner . . . has filed or made a complaint under or related  to this chapter, including a complaint notifying the operator or the operator’s agent, or the representative of the miners at the coal or other mine of an alleged danger or safety or health violation, . . . .

            Consequently, in an interference claim, the Commission asks a question similar to a discrimination case. Has the operator interfered with the exercise of a statutory right to make a complaint and, if so, was such interference caused by the miner having engaged in protected activity? However, a somewhat different standard is applied. The Commission stated in Moses, 4 FMSHRC at 1478-79, that:

We find that among the “more subtle forms of interference” are coercive interrogation and harassment over the exercise of protected rights. A natural result of such practices may be to instill in the minds of employees fear of reprisal or discrimination. Such actions may not only chill the exercise of protected rights by the directly affected miners, but may also cause other miners, who wish to avoid similar treatment, to refrain from asserting their rights. This result is at odds with the goal of encouraging miner participation in enforcement of the Mine Act.

            In his amicus brief, the Secretary states that his test for interference “echoes” Moses but is drawn from cases by the National Labor Relations Board for violations of section 8(a)(1) of the NLRA. Asserting entitlement to deference, the Secretary contends that the test for an “interference” violation should be whether:

(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.

Sec’y Amicus Br. at 10.

            Because the Commission frequently emphasizes the need to look to the totality of the evidence, there appears to be no, or only a virtually indecipherable, difference between the test for interference established by the Commission and the first step of the Secretary’s test. The Secretary’s test does contain a second articulated step of a justification that requires weighing any harm caused to protected rights against a legitimate and substantial reason for the inquiry. However, the Commission certainly did not intend in Moses to dismiss the possibility of finding an overarching purpose from the imposition of discipline as compared to any chilling effect.

            The Secretary correctly emphasized the need for the Commission’s Judges and the Commission itself to review the totality of the evidence lest we be tempted to apply the four indicia of discrimination articulated in Chacon without considering that, looking at the totality of the evidence, facts may cut against discrimination. Therefore, in cases under section 105(c), the Judges and Commission must review the totality of the evidence.

            4.         Substantial Evidence

            In considering the presence of substantial evidence, we review the totality of the evidence. We must affirm a Judge’s finding of fact if it is supported by substantial evidence. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support [the Judge’s] conclusion.” Consolidation Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938). In assessing whether a finding is supported by substantial evidence, the record as a whole must be considered including evidence in the record that “fairly detracts” from the finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison, 305 U.S. at 229).

II.

Appropriate Disposition of this Case

A.        Substantial Evidence Does Not Support a Finding that the Operator Discriminated Against Franks and Hoy Because of Protected Activity.

            Review of the Judge’s discussion of the Chacon factors and the totality of the record demonstrates substantial evidence does not support the Judge’s decision that protected activity motivated the one week suspensions of Franks and Hoy. Moreover, if it were possible to find such motivation, the operator successfully asserted an affirmative defense.

            1.         The Judge’s Decision

            The Judge does not find that a willful refusal to answer questions in a safety investigation is protected. Instead, apparently assuming that such a refusal would warrant discipline, the Judge finds the operator’s assertion that it disciplined the miners for their refusal to respond was a pretext. The Judge finds that the real reason for the discipline was “for making a safety complaint and participating in the 103(g) investigation.” 35 FMSHRC at 1705.

            There is no dispute that Franks and Hoy willfully refused to identify the firebosses with respect to whom they claimed to have direct evidence of dangerous malfeasance. Further, there is no direct evidence that the operator discriminated against Franks or Hoy on the basis of protected activity. Therefore, as the Judge realized, a case against the operator could only be built upon reasonable inferences drawn from circumstances showing the asserted reason for discipline was a pretext.

            Consequently, the operator may be found to have violated section 105(c) only if substantial evidence supports a finding that circumstantial evidence permits an inherently reasonable inference that the discipline was at least partly motivated by protected activity – that is, protected activity rather than Franks and Hoy’s outright and repeated refusal to identify wrongdoers. See Turner, 33 FMSHRC at 1073. Further, there must be a logical and rational connection between evidentiary facts and that ultimate inferred fact. Mid-Continent, 6 FMSHRC at 1138. The Judge below considered the four Chacon factors before ultimately basing an inference of pretext upon one finding of disputed fact.

                        a.         Timing

            The Judge correctly finds the suspension was close in time to protected activity – namely, volunteering information to the inspector conducting the 103(g) inspection and complaining that belt inspections had not been conducted. However, the timing factor obviously is insignificant in this case because the protected activity and unprotected activity occurred virtually simultaneously.

            In their first meetings with MSHA, Franks and Hoy engaged in protected activity by vocalizing their complaint. Immediately thereafter, in the same meeting, they engaged in unprotected activity by refusing to name the firebosses with respect to whom they claimed actual knowledge of malfeasance.

            There is no significance to the fact that the discipline was close in time to the protected discussions with MSHA because the reason asserted for the discipline occurred essentially at the very same moment. Thus, from a timing perspective, the discipline makes sense for the unprotected refusal to provide names of the alleged malefactors. In the same meeting, Franks and Hoy crossed a line between protected and unprotected activity. They were then disciplined for the unprotected activity. See Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981), rvg. Pasula, 2 FMSHRC 2786 (Oct. 1980). The timing of the discipline does not support a finding of a violation.

                        b.        Hostility and Harassment

            The Judge found the operator showed “hostility” towards Franks and Hoy by interviewing them on several occasions and “harassing” them. The Judge does not cite any evidence in support of that conclusion, except by finding hostility and harassment in management meetings twice with Hoy and three times with Franks.

            Hoy was first interviewed by MSHA, not the operator, on October 4. Jt. Stip. 31. Operator and union representatives were present. MSHA asked Hoy if he was comfortable with having everyone in the room, and he responded affirmatively. Tr. 31. Hoy did not recall whether the MSHA representative told him that he could talk to him confidentially. However, Hoy did recall that the MSHA representative gave him his office and cell telephone numbers – numbers that Hoy later used. Tr. 31, 41. There is no evidence in the record that a management representative spoke during that meeting.

            MSHA asked Hoy to name the firebosses with respect to whom he claimed to have personal knowledge and documentary evidence of malfeasance. Hoy refused to name any firebosses and refused to produce any records. Jt. Stip. 35.

            The operator interviewed Hoy twice – on October 20 and November 9. On October 20, he was interviewed by William Schifko, Emerald’s compliance manager, and Christine Hayhurst, a human resources supervisor. Hoy was accompanied by two union representatives – Messrs. Swetz and Scott. Thus, there were two management representatives and two union representatives present. Jt. Stip. 42. On November 9, Hoy again met with operator representatives and was again accompanied by a union representative. Jt. Stip. 48.

            The record does not reflect the length of these meetings or much of what was actually said. The record does show that, just as Hoy had refused to provide the names of the firebosses to MSHA, he refused to provide their names to the operator and refused to give a date of any unperformed belt examination. Jt. Stips. 42, 48.

            The record does not reflect any harassing or hostile statements by any manager in the meetings. Nor does the record contain testimony by Hoy that he felt hostility or harassment at the meetings. Obviously, a finding that the mere fact of a safety investigation is per se hostile or harassing would be wholly at odds with the Mine Act’s presumption of participation and assistance by miners in safety and health matters.

            The same pattern applies to the interviews of Franks, except he was interviewed three times. He also was interviewed by compliance manager Schifko and human resources supervisor Hayhurst and was assisted by union representatives at every meeting. Indeed, in his complaint, Franks expressly notes that, with respect to the October 24 meeting, union representative “Scott attended at Franks’[] request.” Compl. of Discrim., Ex. A, at 5, ¶ 16. Like Hoy, Franks did not testify that he ever expressed any discomfort with the meetings. Again, there is no evidence in the record of hostility or harassment or insulting statements by a manager.

            Although Franks and Hoy voluntarily complained of malfeasant firebosses and the same complaint had been made in the 103(g) complaint, the record does not reflect that the 103(g) complaint itself, including who may have filed it, was raised at any of the meetings, including the MSHA interview. Thus, there is no evidence that Franks or Hoy were “grilled” by management, threatened by them, yelled at, or in any other way harassed or treated with hostility.

            Going further, the record does not reveal that Franks or Hoy provided management with a reason for refusing to give the names. At the hearing, after they had obtained first-rate professional representation, they asserted the reason they refused to answer was they thought they were protected by 103(g). However, there is no evidence that they ever asserted such a reason during their meetings with MSHA or the operator.

            Summed up, the Judge found hostility and harassment but there is no evidence, none, of any hostile statements or actions other than the Judge’s conclusory finding of harassment from two and three brief interviews, respectively, by appropriate managers with Franks and Hoy accompanied by their union representatives. From the record, therefore, it is only possible to discern a professional approach towards seeking important safety cooperation needed by the operator. There quite simply is no record evidence of hostility, let alone substantial evidence, of such treatment.

                        c.         Disparate Treatment

            The Judge found that Franks and Hoy suffered disparate treatment as compared to other miners. The theory is that Franks and Hoy, who complained about firebosses were disciplined, whereas other miners who did not complain about firebosses were not disciplined.

            No weight may be placed on this patently irrelevant observation. There is no allegation by Franks or Hoy or other evidence that any other miner refused to cooperate with the investigation. Thus, the record does not suggest any refusal to answer questions by those employees. There is no evidence the other miners were uncooperative in any way or refused to answer any question.

            Because the other miners did not engage in conduct similar to the refusals of Franks and Hoy, there was no basis for disciplining cooperating miners. The Judge engages in wholly unsupported speculation that the reason for different treatment was that Franks and Hoy said they had evidence of misconduct by firebosses when the logical reason is that the others cooperated whereas Franks and Hoy refused. Different treatment of miners who conduct themselves in different ways – some cooperating with the investigation and others not cooperating – does not support an inference of discrimination. If anything, it supports an inference that the disciplining of Franks and Hoy was based upon their refusal of cooperation.

                        d.        Knowledge of the Protected Activity

            Knowledge, the last of the four indicia of Chacon, is usually considered in the context of knowledge of the protected activity. If an operator does not know of the protected activity, it could not have been discriminating against the miner on the basis of that activity. In this respect, such knowledge is as irrelevant to this case as timing. The operator gained knowledge of the protected activity and unprotected refusal to cooperate at virtually the same moment.

            Here, the entire weight of the decision rests upon the Judge’s conclusion that the operator knew or could/should have known the identities of the allegedly malfeasant firebosses. Without explaining her view, the Judge summarily concludes it was not necessary to insist that Franks and Hoy provide the identities. Thus, the Judge finds two or three interviews by the operator to be inherently hostile, harassing, and discriminatory. Essentially, the Judge’s entire finding of discrimination is based upon this one unexplained finding.

            Assuming the Judge is correct that the names were or should have been known by the operator, simply knowing the names of the firebosses is not sufficient to permit an authoritative response by the operator to the misconduct by the firebosses. It is vitally important that the only witnesses claiming actual, direct knowledge of the malfeasance step up to the plate. Disciplinary action could not be taken against any fireboss without the cooperation of Franks and Hoy – that is, without their willingness to name the firebosses.

            The testimony is indisputable that the operator disciplines miners for failing to make proper examinations. The operator discharged a foreman and an hourly employee for not making proper examinations. Tr. 82, 141. Indeed, the discharge of the foreman for an insufficient examination arose out of a complaint by an hourly worker. Tr. 82. Additionally, as the Judge surely understands and as the local union president testified, hearsay evidence would not support a disciplinary action against firebosses, especially when they would be represented by the union in a grievance proceeding. Tr. 140. Thus, more than sufficient evidence was produced showing a legitimate reason for the direct witnesses to identify malfeasant firebosses. The Judge erroneously failed to consider or discuss that evidence and simply dismissed any need for Franks and Hoy to cooperate.

            Finally, the Judge also found the operator failed to acknowledge the “right” of Franks and Hoy to make their complaint through their union representative rather than directly to management. 35 FMSHRC at 1704. Again, the Judge is incorrect. The operator agreed that safety complaints may be made directly to management or through a union representative. So far as it goes, that was fine. However, the initial expression of a complaint had little or nothing to do with the safety investigation that necessarily follows such a complaint.

            Even presuming Franks and Hoy complained to the union representative, gave him the names, and he gave the names to management, a follow-up investigation was inevitably necessary, after MSHA brought Franks and Hoy to the attention of the operator. The Commission has instructed MSHA to examine for failures of the operator’s supervision, training, or disciplining of miners. S. Ohio Coal Co., 4 FMSHRC 1459, 1464 (Aug. 1982) (“[W]here a rank-and-file employee has violated the Act, the operator’s supervision, training, and disciplining of its employees must be examined to determine if the operator has taken reasonable steps to prevent the rank-and-file miner’s violative conduct.”).

            An operator cannot let allegations of failures to conduct belt examinations go uninvestigated and unpunished. Yet, it could not discipline the firebosses without direct evidence of the malfeasance. It was necessary for the operator to have direct evidence of the malfeasance to take action and the only persons claiming to have such evidence were Franks and Hoy. It cannot rationally be inferred that the necessary follow-up investigation by management to a claim of serious malfeasance, conducted in an appropriate manner through two and three interviews, respectively, by appropriate personnel with union representatives present is hostile, harassing, and discriminatory.

            It is apparent, therefore, that even without considering the totality of the evidence, there is insufficient evidence that an inference of discrimination is inherently reasonable through a logical and rational connection between the evidentiary facts and the ultimate facts inferred. When considered in the context of the totality of the evidence, the Judge’s finding of discrimination completely collapses.

            2.         The Totality of the Evidence

            The Judge ignored a host of factors cutting against an inference of discrimination. The entirety of the record undercuts the brief and conclusory basis cited by the Judge for inferring discrimination.

            It is true that MSHA was conducting its investigation pursuant to a section 103(g) complaint. However, miners Franks and Hoy voluntarily told MSHA of their complaint. Whether they did not request anonymity or were not offered that opportunity by MSHA, the fact is that MSHA informed the operator of their identities and complaint. There is no evidence that the operator sought them out. Nor is there any evidence that, after the meeting called by MSHA, the operator made any inquiry of Franks or Hoy relating to the 103(g) complaint.

            Further, upon Franks and Hoy saying they were comfortable with the presence of operator representatives, it was MSHA that permitted the operator to attend its interviews of the miners. The operator took no action whatsoever to discover the identity of any complaining miners. They were presented by MSHA with the names of Franks and Hoy. That disclosure by MSHA and MSHA’s handling of the meeting cannot be held against the operator as evidence of a discriminatory motive or improper action by the operator.

            Although MSHA could not or, in any event, did not act upon Franks and Hoy’s complaint after they refused to identify any offending firebosses, the operator had a right, or even a duty, to

continue the investigation. If an operator failed to investigate miners’ allegations to MSHA of neglect by a fireboss and, subsequently, a belt fire caused serious or fatal injuries to miners, a regulatory typhoon properly would engulf the operator. An investigation conducted by the operator into voluntary charges of serious safety misconduct was necessary and does not comport with the Judge’s finding that the actions of the operator were a pretext to disciplining Franks and Hoy.

            Certainly, when Franks and Hoy complained of their concern about firebosses to a union committeeman, MSHA, or the operator, they were engaged in protected activity. Further, as MSHA and the operator interviewed them about their complaints they were protected. However, they crossed an important, outcome determinative line from protected to unprotected activity when they refused to assist in the operator’s investigation by refusing to name malfeasant firebosses. This crossing is demonstrated, albeit in different circumstances, in Consolidation Coal Co. v. Marshall. There, the United States Court of Appeals for the Third Circuit reversed a Commission decision. The miner had crossed the line from protected to unprotected activity when he decided to turn off a mining machine and announce that no one was going to operate the machine. The court found “[t]he ‘real’ reason for his dismissal was that he turned off the continuous miner machine. This activity was not protected by the Mine Act.” 663 F.2d at 1221.

            Similarly, here, the totality of the evidence demonstrates that the real reason Franks and Hoy were suspended was that they refused to identify non-performing firebosses. In the Third Circuit case, the miner arbitrarily decided to attempt to shut down the operation; Franks and Hoy decided that they would arbitrarily refuse to provide the critically important information to support their complaint. Just as the miner in the Third Circuit case crossed the line from protected to unprotected activity when he attempted to shut down the operation, Franks and Hoy crossed the line from protected to unprotected activity when, having volunteered safety information, they refused to protect themselves and their fellow miners by cooperating with the operator’s investigation.

            MSHA interviewed approximately 35 miners in its 103(g) investigation. Tr. 73. In addition to attending many of those interviews, the operator interviewed an additional 15 or so miners with respect to Franks and Hoy’s allegations after MSHA abandoned the investigation upon Franks and Hoy’s refusal to cooperate. Tr. 76. Such extensive interviews simply do not comport with the notion of using Franks and Hoy’s refusal to answer as a pretext to impose discipline.

            Further, contrary to the Judge’s statement about hostility, the evidence regarding the interviews, such as it exists, is that they were conducted by appropriate personnel (the compliance manager and a senior human resources manager) without acrimony and in the presence of the miners’ union representatives. In other words, the interviews were conducted in a wholly appropriate manner with the miners’ rights to representation observed. Those actions are also inconsistent with hostility, harassment, or discrimination.

            Additionally, the evidence demonstrates that the decision whether to impose discipline and what discipline to impose was made in a professional and dispassionate manner. When asked how the decision was reached, the senior human resource professional described a meeting of senior managers to consider discipline (Tr. 104) and then explained how they arrived at a seven-day suspension:

Well, been doing this for about 24 years. The [other meeting participants] probably a lot longer. We took into the consideration what the infraction was, that, you know, a message has to be sent that safety is very serious, so we didn’t feel we could sweep it under the rug when allegations of that nature were made. Through talking with everyone, we were at three days to termination, and we came up with seven days.

Tr. 104-105.

            Finally, and most telling of all, at every point in the investigation, Franks and Hoy could have avoided discipline by disclosing the names of firebosses whom they said were failing to perform the important belt inspections. Franks and Hoy brought themselves into the investigation by voluntarily and openly making the complaints to MSHA. They were willing, they claimed, to give the names of the firebosses to the union and for the union to disclose the names of the firebosses to the operator. MSHA brought them to the attention of management and then walked away when Franks and Hoy refused to cooperate. It is incredibly far-fetched to find that the operator somehow seized upon Franks and Hoy’s refusal to cooperate as a pretext to “set up” discipline. MSHA brought them to the attention of the operator and at any moment, Franks and Hoy could have given the name of the firebosses to MSHA or the operator and avoided discipline.

            Indeed, it appears that Franks and Hoy never even gave MSHA or the operator a reason for refusing to do so. Their complaint refers to Franks’ initial meeting with MSHA Supervisor Severin and states: “Schifko asked Franks why he would not provide a name or date and Franks responded that he could not do so at that time.” Compl. of Discrim., Ex. A, at 4, ¶ 10.

            The pertinent question here is: if Franks and Hoy had already provided the names and knew the operator had the names, why did they refuse to give the names thereby avoiding discipline? Their refusal to provide the names amounts to no more than saying “we don’t want to.” They gave management virtually nothing to work with in terms of justifying or excusing their lack of cooperation.

            For all these reasons, the totality of the evidence leads to the conclusion that the miners were suspended for, and only for, their willful refusal to cooperate in a necessary safety investigation – that is, they refused to identify to management one or more firebosses whom they said they personally observed failing to perform his/her/their duties. When they refused to cooperate with a safety investigation with respect to which they claimed to be the only witnesses with actual knowledge of the offenses, they crossed an important, outcome determinative line between protected activity and unprotected activity.

B.        The Evidence Does Not Support a Finding of, or Remand for Consideration of, Interference with Statutory Rights.

            The Judge below did not enter any finding regarding Franks and Hoy’s claims of interference with statutory rights in violation of section 105(c) and, thus, did not adjudicate that claim. For that reason, the parties paid little attention to the issue of interference in their briefs. However, Franks and Hoy did reserve the issue in their brief to the Commission and asked for a remand to permit the Judge to consider the issue. C. Br. at 34.

            Thereafter, the Secretary appeared before the Commission via a late-filed, lengthy amicus brief to take the position that Franks and Hoy had advanced colorable claims of interference that should be adjudicated (Sec’y Mot. at 5) and to set forth the Secretary’s view of the basic elements of a cause of action for unjustified interference. Sec’y Mot. for Leave to File an Amicus Curiae Br. at 3 ¶¶ 5-6. The Secretary supported a remand for a review of “colorable” claims of interference.

            The Secretary also asserted that the appropriate test of interference with statutory rights under section 105(c) should be borrowed from the NLRB and provides that the Commission should find impermissible interference if:

(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.

Sec’y Amicus Br. at 10. Despite the failure of the Judge to rule upon the issue, the record demonstrates that a reasonable Judge could not find substantial evidence supporting interference with statutory rights because of Franks and Hoy’s refusal to cooperate.

            The first step in analysis is identification of the rights with which the operator assertedly interfered. Although Franks and Hoy and the Secretary naturally word their designation of rights slightly differently, they essentially identify the same alleged rights with respect to which they assert the operator may have interfered. These are:

1. The right to file 103(g) safety complaints and/or other anonymous safety complaints and maintain anonymity throughout the investigation process. Sec’y Amicus Br. at 32; C. Br. at 34.

2. The right to be protected from coercive questioning by advance notice of rights, identifying specifically the rights applied by the NLRB in Johnnie’s Poultry, 146 NLRB 770, 775 (Apr. 1964), such as voluntariness. Sec’y Amicus Br. at 33-34; C. Br. at 34-35.

            At the outset it is notable there is a high, perhaps insuperable, barrier to the Secretary’s and Franks and Hoy’s argument that rights of the workforce might have been wrongfully chilled. Anthony Swetz, President of United Mine Workers of America, Local Union representing the miners at the operation, testified at the hearing as the representative of the miners at the operation. Tr. 6.

            Testifying in his capacity as the official representative of the miners at the operation, Swetz stated:

Q. And let me ask you -- we will sort of cut to chase. These two individuals were suspended for seven days?

A. Correct.

Q. Do you disagree with that action by the company?

A. No.

Q. Why not?

A. I look at it, it's everyone there’s responsibility is for everybody’s safety in that mine. During this very serious allegation, we take this very seriously. Our local, myself, and the safety committee have zero tolerance for any type of unsafe activity, especially of this nature.

Tr. 138.

            Swetz emphasized the danger of unexamined belts and the lack of any tolerance for failures in that area. Tr. 138-40. From the local union’s testimony, it appears the miners recognized their most important right is the right to a safe and healthful workplace and that assistance and cooperation by miners is vital to assuring that right. Obviously, however, as the Judge, the Secretary, and Chairman Jordan and Commissioner Nakamura ignore this testimony, they do not accept the union’s testimony.

            Therefore, it is necessary to consider fully the Secretary and Franks and Hoy’s arguments for a remand and my colleagues’ decision to affirm the Judge in result. The Secretary’s arguments, which capture Franks and Hoy’s arguments, are fully described in the Secretary’s amicus brief. The Secretary’s first assertion is “the background of how the company’s internal investigation came about could have created a coercive setting that would deter miners from making future Section 103(g) complaints.” Sec’y Amicus Br. at 32. This appears intended to support a notion that any investigation by the operator may have chilled the miners’ willingness to make anonymous complaints via section 103(g) or by speaking directly with MSHA.

            The obvious error is that the operator had nothing whatsoever to do with “how the company’s internal investigation came about.” MSHA brought Franks and Hoy into the investigation and brought them to the operator. The operator’s colloquies with Franks and Hoy did not begin with an operator investigation. Franks and Hoy voluntarily complained to MSHA outside the presence of the operator that they had personal knowledge of firebosses not performing necessary examinations. It was MSHA that then brought the operator into the investigation through meetings with Franks and Hoy. Jt. Stips. 15, 16, 33.

            There is no evidence that the operator sought to find out the identity of the 103(g) complainant(s). Indeed, no evidence whatsoever has been produced suggesting inquiries by the operator at any time on that topic. No evidence is cited in the record that the operator directly or indirectly, explicitly or implicitly, expressed or had a suspicion that Franks and Hoy had filed the 103(g) complaint. No evidence in the record is cited to show that the 103(g) complaint played any role in the operator’s interviews – no evidence of any kind about a mention of 103(g) or that any miner utilized his or her 103(g) right. The operator’s interviews sprang entirely out of the voluntary statements of Franks and Hoy at meetings convened by MSHA.

            It is ironic that the Secretary cites actions attributable to MSHA as grounds for finding interference by the operator with statutory rights. Disclosure by MSHA of Franks’ and Hoy’s identities is the sole genesis of the operator’s necessary investigation. If MSHA erred in its handling of its investigation by bringing Franks and Hoy into an interview also attended by management personnel, such error rests with MSHA. MSHA simply walked away from the investigation when Franks and Hoy refused to name wrongdoers. The operator, charged by law with preserving safety compliant mining conditions, simply could not ignore the complaints. This was not a “business” decision by the operator to continue the investigation but instead recognition of its obligation to provide a workplace compliant with standards of safety.

            Second, the Secretary suggests that elements of coercion may have been present in two ways, asserting:

            (1) “Emerald Coal managers asked miners directly whether they had information about the firebossing allegation contained in the anonymous hazard complaint.” Sec’y Amicus Br. at 33. A complaint about firebossing was made in a 103(g) complaint. However, the operator’s questions to the miners were about the information the miners volunteered to MSHA that they had personal knowledge and documentary evidence of misconduct – the information that MSHA turned over to the operator. No one knows who filed the 103(g) complaint but everyone knows that the operator’s interaction with Franks and Hoy began with MSHA introduction of them to the operator as part of the MSHA investigation.

            At the risk of repetition, the transcript does not contain any evidence that the operator ever said anything about the 103(g) complaint to the miners. The Commission has found: “[i]t would make little sense to assert that an operator may not receive [cooperation regarding a safety hazard] because a miner elects instead to report such a condition only to MSHA.” Pack, 11 FMSHRC at 173. A finding that the operator’s investigation of a condition reported in a 103(g) complaint is interference with the rights of miners effectively would bar operators from undertaking potentially life-saving investigations, and is at odds with the purpose of the Mine Act and an operator’s duties under it.

            Of course, such an investigation cannot be used by an operator in an effort to discover the identity of a 103(g) complainant, but no evidence of such purpose has been cited here. When MSHA presented the operator with witnesses claiming direct knowledge of potential lethal misconduct, the operator could not ignore it.

            (2) Because 45 other miners did not provide any evidence of failures by firebosses, the Secretary argues: “the responses that miners gave during the company interviews could suggest that a coercive dynamic was at play.” Sec’y Amicus Br. at 33. The Secretary conjures a “suggestion” of coercion out of an investigation that included interviews by MSHA of approximately 30 to 35 miners and operator interviews with 14 additional miners. One can easily imagine what the Secretary’s argument would have been if the operator had not interviewed other miners – the Secretary would contend that interference (and perhaps even discrimination) was proven by the “focus” on Franks and Hoy – that is, other potential witnesses were not interviewed.

            A finding of interference cannot be premised upon a chain of unsupported speculation including an implication by the Secretary that other miners lied during the interviews. Here, the Secretary unacceptably speculates that (a) because two miners say they saw firebosses skip inspections, (b) it must be true, so (c) other miners must also have witnessed it, and so (d) other miners lied during their interviews, and (e) such lying must have been coerced by someone and, (f) that someone must be the operator notwithstanding the Secretary’s voicing of suspicion that the local union supported the firebosses. Findings of violations must be based upon a preponderance of the evidence, not rank and unsupported speculation.

            Third, Franks and Hoy, with the support of the Secretary assert that the interviews of them should be deemed coercive because they were not advised of, or given by, the operator a “right” to choose not to be interviewed. Hinging their argument on labor law, they apparently argue that the interrogation of a miner about a critical danger to safety is inherently coercive and that such coercion may be avoided only by advising miners that cooperation with the operator on an important safety matters is discretionary. Incredibly, the Secretary charged with securing mine safety actually supports Franks and Hoy’s argument, essentially suggesting a per se rule that reporting of safety hazards and participation in safety interviews must be voluntary and the operator must advise the miner of such voluntariness in advance:

[I]t does not appear from the record that Emerald Coal took steps to minimize the potential chilling effect of its questioning on hazard reporting to MSHA. It did not inform miners that cooperation with the company investigation was voluntary, nor did it appear to provide a way for miners to anonymously provide feedback regarding the firebossing allegations contained in the hazard complaint.

Sec’y Amicus Br. at 34.

            In support of his position, the Secretary cites a decision of the Sixth Circuit approving a decision of the NLRB finding an employer committed an unfair labor practice by instituting a rule the effect of which would be to require employees to cooperate in management’s investigation of unfair labor practice charges against it. Beverly Health & Rehab. Servs. v. NLRB, 297 F.3d 468, 478 (6th Cir. 2002), enforcing 332 NLRB 347, 349 (2000). The Secretary ignores Commission case law and, even more importantly, the profound differences between the animating spirit of the NLRA and the Mine Act.

            In Pack, the Commission rejected an argument by the Secretary that a rule requiring miners to report unsafe conditions “chilled” their statutory rights. The Commission upheld the discharge of a miner even though the miner had reported the danger to MSHA. Concurring in part and dissenting in part, Commissioner Backley strongly remonstrated:

Elsewhere the Secretary states, “even where a miner believes that an imminent danger exists Section 103(g) does not require the miner to report that condition to the operator . . . .” Sec. Br. at 7.

I find the Secretary’s position on this issue to be perverse. The Secretary apparently condones the manner in which Mr. Pack acquitted himself – leaving the mine knowing that a dangerous condition existed, yet failing to warn oncoming fellow workers. In her zeal to find a way to prevail in this case, the Secretary seems to be willing to turn a blind eye toward the fundamental goal of the

Act – to ensure that every miner does all that he can to make the work environment safe.

Pack, 11 FMSHRC at 174.

            In Swift v. Consolidation Coal Co., 16 FMSHRC 201 (Feb. 1994), the Commission considered whether a safety program requiring the reporting of injuries was unlawful. The Commission found the reporting of injuries was a protected activity. But, it also held that requiring the reporting of injuries did not interfere with miners’ rights. Finding the program lawful, the Commission hearkened back to Commissioner Backley’s opinion in Pack, and held:

In Secretary on behalf of Pack v. Maynard Branch Dredging Co., 11 FMSHRC 168, 172 (February 1989), aff’d, 896 F.2d 599 (D.C. Cir. 1990), the Commission rejected a similar argument as to the chilling of reporting, raised against a company policy that required employees to report dangerous conditions to the company. The Secretary asserted that such a policy would intimidate miners from exercising their rights under sections 103(g) or 105(c) of the Act. Id. at 172-73. The Commission held that the operator was entitled to initiate such a policy that called for miner participation in the maintenance of safety. Id. As Commissioner Backley stated in Pack, a “fundamental goal of the Act [is] to ensure that every miner does all that he can to make the work environment safe.” Id. at 174 (concurring in part and dissenting in part).

Id. at 208.

            Apparently in the same spirit of zealousness, the Secretary again fails to appreciate the fundamental difference between the NLRA and the Mine Act. The NLRA protects the right of employees to take concerted action for their benefit against an inferentially adverse employer. In Beverly Health, cited by the Secretary, the Sixth Circuit upheld an NLRB order against an employer rule requiring an employee to answer the employer’s questions related to unfair labor practice charges against that very employer. There is no semblance of applicability of such a principle under the NLRA to requiring a miner under the Mine Act to report safety hazards or to aid in an investigation into claims of acts of malfeasance that could result in a mine explosion. It remains perverse for the Secretary to assert what would amount to a per se rule that miners’ cooperation in reporting safety hazards and cooperating with safety investigations must be voluntary.

            Having rejected the Secretary’s arguments, it is imperative to discuss the thoughtful opinion of Chairman Jordan and Commissioner Nakamura. It appears they find three “interferers” in this case – the local union or workforce, MSHA, and the operator. Reading their opinion, one may feel some sympathy for Franks and Hoy whom Chairman Jordan and Commissioner Nakamura find were classically put between a rock and hard place – that is, between intimidation by fellow miners and the demand for cooperation by management. Moreover, Chairman Jordan and Commissioner Nakamura appear to find the operator least culpable of the three interferers – the actions by MSHA were neglectful and actions by the union or workforce were intentional. Chairman Jordan and Commissioner Nakamura reiterate that they do not impute any discriminatory intent to the operator or MSHA. Slip op. at 26.

            Their opinion premises operator interference upon a duty to understand and accept the difficult position of Franks and Hoy. They essentially find that the operator interfered with the miners’ rights by failing to realize and accommodate that, if Franks and Hoy were required to do their duty and cooperate on safety, other members of the local union, fearing they also might someday have to do their duty, would not make confidential safety complaints. I have some differences with a few specific points in their opinion. But, their basic position gives reason to pause. Expression by miners of safety concerns are an important part of their duty to assist and participate in achieving compliance with the Mine Act. Therefore, as my colleagues correctly observe, actions by management that chill the willingness of miners to present safety concerns raise issues under section 105(c), even if such result is not intended.

            However, on the basis on the totality of the evidence and especially given the seriousness of the allegations against firebosses, I would find that the operator’s investigation did not violate section 105(c) under either prior Commission case law or the test espoused by the Secretary. Thus, I would not find a section 105(c) violation.

            First, errors by MSHA and naked intimidation by co-workers is an unsuitable basis to find the operator chilled the reporting of safety complaints at the mine. To do so would be capitulation to thuggish behavior that seriously endangers miners and, unchecked, will continue to inevitable tragic results – an unacceptable public policy.

            Second, such a finding would place operators whose workers adopt clannish characteristics in a legally untenable position. They cannot effectively investigate and take action upon safety complaints, anonymous or volunteered, directed at individuals if they do not have and cannot obtain admissible evidence on the culpability of the allegedly malfeasant miner. But, unlike MSHA, they should not and cannot ignore or just walk away from such claims risking a tragic consequence for the workforce.

            Further, I do not find the operator’s action could or will significantly chill the atmosphere for safety complaints aimed at other workers beyond its apparently nearly frozen state. Because Franks and Hoy’s fears, and consequent desire for confidentiality, arose from the possible need to identify other union workers, the operator’s action only could affect complaints involving allegations of specific misconduct by other hourly employees.

            Regarding that narrow subset of complaints, it is clear there was and will be, until the culture of the mine changes, a desire for anonymity regarding such complaints. The operator’s actions in this matter, however, will not increase the desire for anonymity but only may heighten somewhat the care a miner may take in protecting that anonymity. On the other hand, this case involves claims that deliberate misconduct by firebosses endangered the very lives of miners. Weighing any slight increase in vigilance for their anonymity by complaining miners against a vitally important effort to get information that could prevent a mine disaster, I cannot find a case of interference. This is not a “business justification” defense; it is a business and moral imperative.

            Congress recognized that operators need the cooperation of miners to fulfill the operators’ duty to provide safe and healthful working conditions. Such cooperation is an integral part of protecting the lives of miners. Although liability rests with the operator, safety is a “joint” task.

            We must understand that, for operators to fulfill their primary obligation to safety and health, they need from time-to-time to demand cooperation from miners through reporting unsafe conditions and assisting with discovering unsafe working conditions and those responsible for them. When a miner with expressed knowledge of unsafe conditions or practices, especially when the alleged practice threatens a tragic disaster, arbitrarily refuses to identify those responsible for the practices in response to management questioning, the miner should be disciplined.

CONCLUSION

            I am in the unenviable position of a one-person minority. Nonetheless, I find some solace in the opinions of the Commission issued today.

            The majority of the Commission has rejected the Judge’s finding of discrimination. Given the lack of substantial evidence of a motive to discriminate on the basis of protected activities that is an appropriate result.

            Chairman Jordan and Commissioner Nakamura’s opinion appears to be based upon the unique and specific facts of this case. Therefore, I do not see disturbance to management policies related to reporting safety or health hazards or injuries. Nor should it affect the necessary cooperation between miners and management on matters of safety and health.

            Third, the postulate that a coercive dynamic began with a misplaced loyalty to, or a fear of, other miners (individually or through the local union) to protect malfeasant firebosses is a call to action. The mining community will benefit if the entire community (MSHA, management, unions, training programs, and schools) recognizes and acts on the need to train current and prospective miners that solidarity is shown through performing jobs safely and through willingly reporting those few miners who endanger the safety and health of their brothers and sisters. Miners must not fear retaliation from their co-workers for reporting safety failures of other miners any more than fearing retaliation by an operator.

            Perhaps, therefore, this case may spur action to increase miners’ awareness of their duties to one another and, through that awareness, increase the joint efforts of labor and management to achieve safe and healthful working conditions — a goal sought by Congress and all persons interested in the welfare of our nation’s miners.

                                                                                    /s/ William I. Althen

                                                                                    William I. Althen, Commissioner