On June 11, 2015, an administrative law judge with the Federal Mine Safety & Health Review Commission issued a decision that is favorable to miners with black lung who would like to work in less dusty conditions. The decision says that miners with black lung are protected against reductions in pay during the process of seeking Part 90 status, even if the company’s did not know that the miner was seeking Part 90 status when it cut his pay. As a result, coal companies can be absolutely liable and must back up and pay a miner for any loss in pay while he was pursuing his Part 90 rights, regardless of the company’s motivations.
(Disclosure: I represent the claimant Scott McGlothlin and briefed the case before the Commission ALJ.)
The decision in McGlothlin v. Dominion Coal Corp. (decision here) involved what is known as “Part 90” status. Part 90 of the mine safety regulations gives miners who NIOSH says have pneumoconiosis with the right to be transferred to a less dusty part of the mine without having their pay reduced. This protection was a part of the 1969 Coal Act and, along with the black lung benefits system, was meant to help reduce the incidence and severity of black lung.
McGlothlin involved the question of what happens when the company reduces the miner’s rate of pay during the period between (1) when the miner has an x-ray done for NIOSH purposes, and (2) when NIOSH issues its determination that the miner has pneumoconiosis and has the right to be a Part 90 miner.
McGlothlin held that even if the company did not know that the miner was pursuing Part 90 status, the company is absolutely liable for the reduction in pay if the miner becomes a Part 90 miner.
As Judge Feldman emphasized, the anti-discrimination provision at § 105(c) of the Mine Act says:
Judge Feldman then explained:
The company’s main defense was its asserted lack of knowledge that Mr. McGlothlin was pursuing Part 90 status at the time it reduced his pay.
However, Judge Feldman held consistent with Commission precedent that proof of knowledge or discriminatory motive is not required for actions brought under the Mine Act’s interference prong. Instead Judge Feldman applied the Secretary’s proposed two-prong test from UMWA v. Emerald Coal Resources, LP, 36 FMSHRC 2088 (Commission 2014).
[T]he Commission has adopted a two-prong test for section 105( c )( 1) interference cases:
(1) Whether a mine operator’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) Whether 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.
See Emerald Coal, 36 FMSHRC at 2108 (separate opinion) (emphasis added).
Obviously, with respect to the first criteria, McGlothlin is a member of the protected class of prospective Part 90 miners that section 105(c)(l) seeks to protect. To give effect to Dominion’s pay reduction during the period when McGlothlin was undergoing medical evaluation to determine his eligibility for Part 90 would eviscerate, contrary to legislative intent, the protections afforded to miners with pneumoconiosis under Part 90.
With respect to the second criteria, absent a discriminatory motive, a mine operator is always free to exercise its business judgment with respect to the reassignment of miners to different occupations within any area of the mine. However, when the reassigned miner is entitled to Part 90 pay protection, a mine operator is absolutely liable to compensate that miner at no less than the regular rate of pay received by that miner immediately before his Part 90 pay protection rights vested. In this case, McGlothlin’s Part 90 pay protection became effective as of April 30, 2013, when NIOSH began its x-ray evaluation to determine the extent of McGlothlin’s respiratory condition.
Accordingly, Judge Feldman granted summary decision in favor of Mr. McGlothlin, finding Dominion Coal liable for interfering with his rights under the Mine Act.
Because damages have not been calculated yet, Judge Feldman’s decision is not final and is still subject to appeal.
McGlothlin is a significant win for coal miners who are interested in Part 90 status. It provides an additional economic incentive for miners interested in reducing their exposure to coal-mine dust. It also ensures that they are protected while NIOSH follows its process for seeking a consensus opinion about the extent of the miner’s black lung.
McGlothlin also provides an additional disincentive for coal companies to interfere with Part 90 miners’ rights. Because the Mine Act allows for attorneys’ fees for attorneys who represents miners in discrimination cases, the company can be liable not only for the miner’s lost wages and benefits, but also for the cost of bringing the action and for civil penalties.
This is the latest in a string of cases that show the power of the interference prong of § 105(c) of the Mine Act. Because the interference theory focuses on the effect of company actions on miners’ rights rather than on the company’s motivations (as a discrimination theory does), cases turn less on who knew what when and more on the scope of rights under the Mine Act.
McGlothlin is a noteworthy case for black lung advocates. It clarifies the protections for miners who are interested in Part 90 status and should encourage more miners to use their rights to work in less dusty conditions without having their pay reduced. Hopefully, consistent with the goals of the 1969 Coal Act, this will prevent these miners’ black lung from progressing to a severe form and allow them to live longer, healthier lives.
Scott McGlothlin is represented by Tony Oppegard and two attorneys from Appalachian Citizens’ Law Center, Wes Addington and me.
Dominion Coal Corp. is represented by David Hardy and Scott Wickline of Hardy Pence PLLC.