In my last column I talked about a coming shift in the analysis the Federal Mine Safety and Health Review Commission will use when it considers retaliation cases brought by the Secretary of Labor or by miners under § 105(c) of the Mine Act. For those of you that came in late, here’s the deal: until very recently, the miner (or MSHA, if they’re stepping in on the miner’s behalf) would have to prove first, that the miner engaged in activity protected by the Act. Then the miner would have to prove that his employer took adverse action against him (like firing him, or reassigning him to a worse job, things like that). Finally, the miner would have to prove unlawful motivation: that is, that the company took the adverse action because the miner had engaged in protect activity. (There are more details, but you don’t need them for today’s discussion.) We call that the Pasula-Robinette analysis, after the cases in which it was first articulated. A few months back, the U.S. Court of Appeals for the Ninth Circuit chose a different analysis for § 105(c) cases, holding that the company’s retaliatory action is unlawful if it would not have treated the miner the way it did but for the miner’s protected activity. As I told you when we first talked about it, the Ninth Circuit’s decision was undoubtedly going to have an impact on the way the Commission decides § 105(c) cases. I just couldn’t predict what that impact would be. (I know, I know. And here you thought I knew everything there was to know about this sort of thing. Sorry.)

Welp, we still don’t know how this is going to play out. But last month a new § 105(c) case came out of the Commission that muddied the waters even further. That’s the case I want to talk about this month.

Section § 103(f) of the Mine Act says that a representative of miners (you probably know them as “miners’ reps”) is entitled to walk with an MSHA inspector and “shall suffer no loss of pay during the period of his participation in the inspection.” Tara Otten worked as a laborer for Continental Cement at an underground limestone mine in Missouri. Under the mine’s union contract, and as the most senior miner in her classification, she often had the opportunity to step up and work as a mobile equipment operator, for which she would be entitled to a higher rate of pay. She was also a miners’ rep who frequently walked with MSHA for inspections. Initially she received the higher MEO rate while she was doing her walkarounds, but at some point the company’s HR director looked more closely at the union contract and decided that Ms. Otten should only be paid the lower rate she would have gotten if she’d worked as a laborer that day. Ms. Otten filed a complaint with MSHA, and the Secretary sued the company on her behalf, alleging that by paying the lower laborer rate the company was unlawfully interfering with her protected § 103(f) right to walk with MSHA without taking a loss in pay.

The administrative law judge agreed, holding that the company had unquestionably violated § 103(f). His reasoning went one step further, however. The ALJ held that since the § 103(f) violation had been established, and since the Mine Act is a strict liability act (we can talk about that in another column, if you’d like) there was no need for the Secretary or Ms. Otten to prove that the company had been unlawfully motivated for them to win the case. This was effectively a completely new and unprecedented interpretation of the Mine Act, eliminating what until now has always been one element of proof required for a § 105(c) retaliation case.

The case went up to the Commission, which hears appeals from ALJ decisions. A majority of the commissioners agreed with the ALJ, and they affirmed his decision. The Commission found, in effect, that Continental’s crystal-clear violation of § 103(f) was in and of itself enough to establish that it had also violated § 105(c), and it explicitly held that it was therefore unnecessary for the Secretary to prove that the company was unlawfully motivated to reduce Ms. Otten’s reduced pay to discourage her from being a miners’ rep. The Commission noted that the appropriate legal test for motivation is still pending for decision and therefore unresolved, but it totally sidestepped both the longstanding Pasula-Robinette test and the Ninth Circuit’s but-for test and created a new and easy road for miners’ reps alleging unlawful retaliation under § 105(c).

The really interesting thing about the case, though, is the separate opinion written by Commissioner Althen, who both agreed and disagreed with the majority of the Commissioners. Like everyone else, he agreed that the miner had suffered an unlawful loss in pay, in violation of § 103(f). But he took issue with the Commission’s leap (“without meaningful analysis,” he wrote) from a § 103(f) violation to a finding that § 105(c) had also been violated. He pointed out that MSHA could simply have issued a regular § 104 citation to Continental to enforce Ms. Otten’s rights. Then he took a hard look at the language of the Mine Act and argued that § 105(c) absolutely requires proof of unlawful motivation, since the statute prohibits adverse action because the miner had exercised her protected rights. On that basis, he wrote that the but‑for test should have been applied to the case in order to effectuate the Mine Act’s goals. (He actually said, “the Commission should forego whistling Pasula-Robinette in the wind and formally adopt the proper standard.” You’ve got to love that candor, right?)

So not only are we no closer to knowing how the Commission is going to evaluate motivation in future § 105(c) cases; we also have this whole new subset of § 105(c) cases where it is unnecessary for the Secretary or a miner to prove motivation at all. Honestly, I think the Commission looked at the facts of the case and when its collective gut said that Ms. Otten had been wronged, it took the easiest path to getting her pay restored. I also agree with Commissioner Althen, who made clear that while he agreed with the outcome of the case, he didn’t like the shortcut the Commission took to get there. And I worry what could come next, since the Commission has opened the door for the Secretary to come after companies alleging § 105(c) retaliation claims where those companies’ motives may have been pure even when they (maybe even accidentally) violated other Mine Act requirements.