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.