{"id":1118496,"date":"2019-05-29T20:46:40","date_gmt":"2019-05-29T20:46:40","guid":{"rendered":"http:\/\/www.mining.com\/?p=990044"},"modified":"2019-05-29T20:46:40","modified_gmt":"2019-05-29T20:46:40","slug":"the-federal-mine-safety-and-health-acts-two-part-interference-test","status":"publish","type":"post","link":"https:\/\/juniorminingnews.com\/?p=1118496","title":{"rendered":"The Federal Mine Safety and Health Act’s two-part interference test"},"content":{"rendered":"

Testing for Interference in MSHA 105(c) Discrimination Cases<\/b><\/span><\/span><\/p>\n

<\/b>The legal basis of interference is in Section 105(c)(1) of the Federal Mine Safety and Health Act (Mine Act) \u2013 \u201cNo person shall discharge or in any manner discriminate against . . . or otherwise interfere with the exercise of the statutory rights of any miner.\u201d The interference test has developed into a two-part evaluation of an operator\u2019s reaction to protected activity or treatment of miners\u2019 rights. The real question is whether MSHA must show if an operator\u2019s actions were motivated by protected activity or were intended to interfere with miners\u2019 rights to establish an interference claim.<\/p>\n

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While recent cases have emphasized the concepts of interference, the Review Commission\u2019s reference to an \u201cinterference test\u201d dates to at least 1982, when the Review Commission discussed interference in\u00a0Moses v. Whitley Development Corp<\/i>. This case involved a claim that an operator interrogated and harassed a miner because it believed he had reported an accident to MSHA.<\/p>\n

The Commission determined that coercive interrogation and harassment over the exercise of protected rights were among the \u201cmore subtle forms of interference\u201d referred to in the legislative history of the Mine Act. The Commission found that a company interferes with a miner\u2019s protected rights when it instills fear of reprisal or chills the exercise of protected activity.The issue of interference in a discrimination case resurfaced in 2005.<\/p>\n

In\u00a0Secretary of Labor on behalf of Gray v. North Star Mining, Inc., et al.<\/i>, a supervisor allegedly threatened a miner after the miner was subpoenaed to testify before a grand jury regarding Mine Act violations. The ALJ determined that the miner and the supervisor were friends and that the threat was essentially a joke. Nonetheless, the Commission stated that operator statements should be evaluated under a test that \u201chas its genesis in section 8(a)(1) of the National Labor Relations Act.\u201d<\/p>\n

The Commission decided that the totality of the circumstances surrounding a supervisor\u2019s statements must be considered. The Commission also concluded that the supervisor\u2019s intent or motive and the effect of a supervisor\u2019s statement is a necessary component in determining whether the company interfered with the miner\u2019s exercise of statutory rights.Following the Review Commission\u2019s decision in the\u00a0Gray<\/i>\u00a0case, MSHA proposed a two-part \u201cinterference test\u201d:<\/p>\n