PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SECRETARY OF LABOR, on behalf of
Cletis R. Wamsley, Robert A.
Lewis, John B. Taylor, Clark D.
Williamson, and Samuel Coyle,
Petitioner,
                                                           No. 95-1130
v.

MUTUAL MINING, INCORPORATED;
FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION,
Respondents.

MUTUAL MINING, INCORPORATED,
Petitioner,

v.

SECRETARY OF LABOR, on behalf of
Cletis R. Wamsley, Robert A.
                                                           No. 95-1212
Lewis, John B. Taylor, Clark D.
Williamson, and Samuel Coyle;
FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION,
Respondents.

On Petitions for Review of an Order
of the Federal Mine Safety and Health Review Commission.
(93-395-WEVA-D, 93-396-WEVA-D, 93-397-WEVA-D,
93-398-WEVA-D)

Argued: November 3, 1995

Decided: April 3, 1996
Before WILKINSON, Chief Judge, and WIDENER and
WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed in part and reversed in part by published opinion. Chief
Judge Wilkinson wrote the majority opinion, in which Judge Williams
joined. Judge Widener wrote an opinion concurring in all but § III(B)
of the majority opinion.

_________________________________________________________________

COUNSEL

ARGUED: Ellen Leslie Beard, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Petitioner. James Gerard Zissler,
JACKSON & KELLY, Washington, D.C., for Respondents. ON
BRIEF: Thomas S. Williamson, Jr., Solicitor of Labor, Steven J.
Mandel, Deputy Associate Solicitor, UNITED STATES DEPART-
MENT OF LABOR, Washington, D.C., for Petitioner. L. Anthony
George, JACKSON & KELLY, Denver, Colorado, for Respondent
Mutual Mining.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

The Secretary of Labor, on behalf of five miners, and Mutual Min-
ing, Inc. ("Mutual") both petition for review of an order of the Federal
Mine Safety and Health Review Commission. Mutual contends that
the Commission erred when it found that Mutual's discharge of five
miners violated the Federal Mine Safety and Health Act of 1977. 30
U.S.C. § 801 et seq. The Secretary, in turn, challenges the Commis-
sion's decision to deduct unemployment compensation from the
miner's back pay awards. We find that substantial evidence supports
the finding of a violation of the Mine Act. We further find, however,
that the Commission erred when it ordered the deduction of unem-
ployment benefits from the back pay award owed each miner. In sum,
we affirm in part, and reverse in part the Commission's decision.

                    2
I.

In December, 1992, Mutual discharged a number of employees of
its Logan, West Virginia surface mine. Three of those employees --
Robert Lewis, John Taylor and Cletis Wamsley -- constituted the
local union's safety committee at the Logan mine; Taylor served as
its chairman. As part of their duties, Wamsley and Taylor participated
in a safety inspection of the mine on December 17, 1992. After the
inspection, the union safety committee presented a list of safety viola-
tions to mine management. This list included various fire hazards and
numerous problems with pieces of equipment, including fuel leaks,
missing parts, and defective safety alarms. The next day, the union
submitted that same list to the Mine Safety and Health Administration
(MSHA) and requested an inspection of the mine as authorized by the
Mine Act. 30 U.S.C. § 813(g)(1).

The following Monday, December 21st, MSHA commenced an
inspection of the mine. MSHA inspectors provided mine management
with a copy of the complaint giving rise to the inspection, and the
managers commented that the list of alleged safety violations accom-
panying the complaint was identical to the one submitted to them only
days before by the union safety committee. MSHA ultimately issued
numerous citations to Mutual as a result of its inspection.

On the same day that MSHA inspected the mine, Mutual laid off
twelve employees without warning. All three members of the safety
committee were laid off. Taylor, the chairman, was the most senior
employee discharged. Five miners -- the three members of the safety
committee and Clark Williamson and Samuel Coyle-- complained
to the Secretary that their discharges violated the Mine Act.1

After an investigation, the Secretary filed a complaint with the
Commission alleging that Mutual's discharge of the miners violated
the Mine Act. According to the Secretary, the discharge was in retali-
ation for the union's safety run and the ensuing MSHA inspection,
_________________________________________________________________
1 Mutual subsequently recalled Williamson in January, 1993 and Taylor
and Coyle in April, 1993. A Commission ALJ ordered the immediate
temporary reinstatement of the two remaining miners, Wamsley and
Lewis, in August, 1993. 30 U.S.C. § 815(c)(2).

                    3
both protected activities under the Act. 30 U.S.C.§§ 813(g)(1),
815(c)(1). Mutual denied the allegation, maintaining that the miners
were laid off for legitimate business reasons. A Commission ALJ
agreed with the Secretary. He ordered Mutual to provide back pay to
each of the miners, reduced by the amount of unemployment compen-
sation each had collected, and also assessed a civil penalty of $5000.
Both the Secretary and Mutual petitioned for discretionary review
with the Commission, 30 U.S.C. § 823(d)(2), which the Commission
denied. The Secretary and Mutual then petitioned for review in this
court.2 30 U.S.C. §§ 816(a), (b).

II.

We first address Mutual's contention that the discharge of the min-
ers did not violate the Act. We conclude that substantial evidence sup-
ports the ALJ's ruling that the discharges were unlawful. See 30
U.S.C. § 816(a)(1).

The Mine Act recognizes that mine employees can play an impor-
tant role in accomplishing the health and safety goals embodied in the
Act. Consequently, when miners have a reasonable belief that a viola-
tion of the Act's health or safety standards exists,"such miner or rep-
resentative shall have a right to obtain an immediate inspection by
giving notice to the Secretary . . . of such violation or danger." 30
U.S.C. § 813(g)(1). In order to protect miners who exercise these
rights, an employer cannot "discharge or in any manner discriminate
against . . . [a] miner . . . because such miner . . . has filed or made
a complaint under or related to this chapter." 30 U.S.C. § 815(c)(1).
Protected complaints under the Act include those made to mine opera-
tors or to MSHA itself. Id.

There is ample evidence to support the Commission's conclusion
that the layoffs in this case were in retaliation for activities protected
under the Act. It is undisputed that mine managers knew that the
union's safety run and subsequent complaint triggered MSHA's
December 21st mine inspection. The layoff was unannounced and its
timing, coming only hours after MSHA had started its inspection, was
_________________________________________________________________
2 The Secretary's motion to join Johnny Porter as a respondent/cross-
petitioner in this case is denied.

                    4
suspicious to say the least. Such circumstances raise an inference that
the layoffs were motivated by an unlawful reason. See Donovan v.
Stafford Constr. Co., 732 F.2d 954, 960 (D.C. Cir. 1984). Mutual also
laid off just enough miners to reach Taylor, the chairman of the
union's safety committee and most senior miner discharged, without
clearly violating the seniority provisions of its labor contract. Further-
more, the ALJ found that mine management was hostile to particular
members of the union safety committee, especially Cletis Wamsley,
and the committee's activities in general. Wamsley and the mine
superintendent clashed on a number of occasions, and after listening
to the parties' divergent accounts of the source of this friction, the
ALJ concluded that "some of [the mine superintendent's] hostility
towards Wamsley resulted from differences of opinion over safety
matters." The ALJ also pointed to the mine superintendent's view that
members of the safety committee were "giving him a hard time on
safety matters."

Mutual claims that its discharge was motivated by economic rea-
sons. It declares that just before the layoff it learned that its customer,
Island Creek Coal Company, might drastically reduce its purchases.
As the ALJ found, however, no testimony established a close proxim-
ity between the predicted demand reduction and the hastily executed
December 21st discharge. The evidence, in fact, revealed that any
reduction in demand was simply a return to normal levels from a tem-
porary dramatic increase in demand in the fall of 1992. Because the
same number of employees worked for Mutual prior to the boost in
demand, a return to normal levels would not necessitate the discharge.
Finally, as the ALJ noted, Mutual never offered any documentary evi-
dence of a reduction in demand for its coal.

Mutual also maintained that the December 21st discharge was part
of a long-planned realignment of employees from the day shift to the
night shift in order to increase productivity. The ALJ observed, how-
ever, that if the discharge was part of a realignment, most of the
workers should have been quickly recalled in their new "realigned"
capacities, but this did not occur. The ALJ further found that "[g]iven
the number of discussions Mutual Mining management had . . . con-
cerning the realignment, I do not believe that on December 21, 1992,
that they gained surprising new information which caused them to
institute a lay-off instead."

                     5
Mutual's version of events was simply rejected by the fact-finder
in favor of the Secretary's. The "possibility of drawing two inconsis-
tent conclusions from the evidence does not prevent an administrative
agency's finding from being supported by substantial evidence."
Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966). The
decision in this case has such support, and we decline to disturb it.

III.

We next address the Secretary's claim. The ALJ, adhering to the
Commission's decision in Meek v. Essroc Corp. , 15 F.M.S.H.R.C.
606, 616-18 (1993), directed that the back pay award be reduced by
the amount of unemployment compensation received by each miner.
The Secretary argues that unemployment compensation should not be
deducted from back pay awards. He asserts that deference is owed to
his view, not that of the Commission, on the deductibility of benefits
and that, in any event, his view of the Act is the sounder one.

A.

The Secretary and the Commission thus flatly disagree on the ques-
tion before us. Determining which interpretation is owed deference
requires a close examination of the Act. Under the"split-
enforcement" arrangement envisioned by the Act, the Secretary and
the Commission perform distinct regulatory responsibilities. See
Johnson, The Split-Enforcement Model: Some Conclusions from the
OSHA and MSHA Experiences, 39 Admin. L. Rev. 315 (1987). The
Act charges the Secretary with the development and enforcement of
health and safety standards "for the protection of life and prevention
of injuries in coal or other mines." 30 U.S.C.§ 811(a). The Secretary
develops these standards by rulemaking, id., and enforces them by
conducting inspections, issuing citations and proposing civil penalties
for violations, 30 U.S.C. §§ 813, 814(a), 815(a), 820(a). If a party
contests the Secretary's actions, the Commission adjudicates the
claims and "issue[s] an order, based on findings of fact, affirming,
modifying, or vacating the Secretary's citation, order, or proposed
penalty, or directing other appropriate relief." 30 U.S.C. § 815(d).

Only one of these two administrative actors can retain the ability
to render authoritative interpretations of the Act. The nature of the

                     6
functions that the Secretary and the Commission perform under the
Act -- rulemaking and enforcement authority rest with the Secretary,
and adjudicatory authority rests with the Commission-- has led
courts to conclude that "when the Secretary and the Commission dis-
agree on the interpretation of ambiguous provisions of the Mine Act,
and both present plausible readings of the legislative text, this court
owes deference to the Secretary's interpretation." Secretary of Labor
v. Cannelton Indus., Inc., 867 F.2d 1432, 1433 (D.C. Cir. 1989); see
also Secretary of Labor v. Western Fuels-Utah, Inc. , 900 F.2d 318,
321 (D.C. Cir. 1990). The history of the Act supports this conclusion.
As the Senate report observed: "Since the Secretary of Labor is
charged with responsibility for implementing this Act . . . the Secre-
tary's interpretations of the law and regulations shall be given weight
by both the Commission and the courts." S. Rep. No. 181, 95th Cong.,
1st Sess. 49 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3448.

The Secretary's role of rulemaking and enforcement explains this
deference to the Secretary's interpretations of the Act. In order to pro-
mulgate health and safety standards in the first instance, the Secretary
must evaluate a wide variety of information regarding the operation
of the mining industry. And in enforcing these standards -- through,
for instance, periodic inspections of mines and issuance of citations
-- the Secretary comes into constant contact with the daily operations
of the mines. See Martin v. OSHRC, 499 U.S. 144, 152 (1991). In
short, developing rules and enforcing them endow the Secretary with
the "historical familiarity and policymaking expertise," id. at 153, that
are the basis for judicial deference to agencies. In Martin, which
involved a split enforcement scheme under the Occupational Safety
and Health Act of 1970 (OSH Act) similar to that in the Mine Act,
the Supreme Court concluded that the Secretary's"power to render
authoritative interpretations," id. at 152, of OSH Act regulations was
a "`necessary adjunct' of the Secretary's powers to promulgate and to
enforce national health and safety standards." Id. We do no more than
follow Martin's teachings here.

The Commission, of course, performs an essential role under the
split-enforcement regime established by the Act. With respect to the
provisions at issue here, the Commission independently adjudicates
claims brought by the Secretary, 30 U.S.C. § 815(c)(2), and orders
appropriate relief, including the award of back pay. Id. But these

                     7
duties, like the Commission's other duties, are adjudicatory in nature.
See Thunder Basin Coal Co. v. Reich, 114 S.Ct. 771, 780 (1994)
(FMSHRC is "independent commission established exclusively to
adjudicate Mine Act disputes.") Consistent with this adjudicatory
role, the Commission's findings of fact, if supported by substantial
evidence, are conclusive. 30 U.S.C. § 816(a)(1). But because the
Commission adjudicates only a select number of cases and does not
promulgate rules under the Act, it is not equipped with the same "his-
torical familiarity and policymaking expertise" as the Secretary. As
the Supreme Court concluded with respect to an analogous adjudica-
tory body, the Commission operates as a "neutral arbiter," Martin,
499 U.S. at 155, that possesses "nonpolicymaking adjudicatory pow-
ers." Id. at 154.3

An across-the-board rule setting the terms of back pay awards is a
question upon which the Secretary's view is entitled to deference.
While the Act empowers the Commission to impose back pay, Meek's
rule reaches beyond an exercise of adjudicatory discretion. The Com-
mission has decreed that in every case, no matter the nature of the cir-
cumstances, unemployment compensation shall be deducted from
back pay awards. 15 F.M.S.H.R.C. at 618. Such a broad policy turns
on the meaning of ambiguous statutory terms and implicates the over-
all purpose of the Act to improve mine health and safety. The inter-
pretation of the Act that the Secretary presented to the Commission,
Secretary of Labor ex. rel. Nantz v. Nally & Hamilton Enterprises,
Inc., 16 F.M.S.H.R.C. 2208, 2216-20 (1994), though not embodied in
a promulgated rule, was an exercise of authority delegated to the Sec-
retary by Congress. Martin, 499 U.S. at 156-7. Accordingly, the Com-
mission should have deferred to the Secretary's interpretation of the
_________________________________________________________________
3 It is true that the Commission exercises discretionary jurisdiction over
Commission ALJ decisions that raise a "substantial question of law, pol-
icy or discretion." 30 U.S.C. § 823(d)(2)(A)(ii)(IV). But to say that the
Commission reviews cases involving questions of policy is not to say
that it is the final arbiter of such policies. Nor is it to say that the Com-
mission's interpretation of the statute trumps a reasonable interpretation
put forth by the Secretary. The Commission's jurisdiction is fully consis-
tent with the deference that it, and this court, owe to the Secretary's rea-
sonable interpretations of the Act. Energy West Mining Co. v. FMSHRC,
40 F.3d 457, 463-64 (D.C. Cir. 1994).

                    8
Act if it found that interpretation to be a reasonable one. Cannelton
Indus., 867 F.2d at 1435, 1439; Donovan v. Carolina Stalite Co., 734
F.2d 1547, 1552 (D.C. Cir. 1984).

B.

The deference to be accorded to the Secretary is in no sense unlim-
ited. Both the Commission and this court have the adjudicatory
responsibility to determine whether the Secretary's interpretations are
in accord with the Act. Exercising that responsibility here, we hold
that the Secretary's view that unemployment compensation should not
be deducted from back pay awards reflects a permissible reading of
the Act.

The Act is silent on whether unemployment compensation should
be deducted from back pay awards. But the Act makes clear that its
"first priority . . . must be the health and safety of its most precious
resource--the miner." 30 U.S.C. § 801(a). It charges the Secretary
with the development and promulgation of "improved mandatory
health or safety standards for the protection of life and prevention of
injuries in coal or other mines." 30 U.S.C. § 811(a).

It is in light of the purpose and structure of the Mine Act that we
find the Secretary's view of the terms of back pay awards reasonable.
At the outset, we note that either the Secretary's or the Commission's
across-the-board rule may provide a "windfall" to one party. If unem-
ployment compensation is not deducted from a back pay award, a
miner would be overcompensated if he were allowed to recover both
unemployment benefits and back pay for the same period of unem-
ployment. Under the Commission's rule, on the other hand, a com-
pany that has concededly violated the anti-discrimination provisions
of the Act is not required to fully compensate the miner for the period
of unlawful unemployment. In fact, the state unemployment compen-
sation system, which was not designed to "discharge any liability or
obligation of [the employer], but to carry out a policy of social better-
ment for the benefit of the entire state," NLRB v. Gullett Gin Co., 340
U.S. 361, 364 (1951), pays part of the lost wages otherwise owed by
the employer.

We need not decide which of these views is the correct one; our
role is simply to determine if the Secretary's view is reasonable under

                     9
the Act. The Supreme Court itself found a similar policy reasonable
in Gullett Gin. Most importantly, the Secretary's interpretation effec-
tuates the health and safety goals of the Act. Miners play a key role
in implementing these goals. They are at the site of often remote
mines and serve as early warning systems in reporting health and
safety concerns and potential violations of the Act. 30 U.S.C.
§§ 801(d), (e). Miners are permitted to accompany the Secretary on
mine inspections, 30 U.S.C. § 813(f), and to obtain an immediate
mine inspection by the Secretary if the miner reasonably believes a
violation of the Act exists. 30 U.S.C. § 813(g)(1). Protecting from
retaliation those miners who report health and safety problems is thus
crucial to the Act's scheme. In this context, it was permissible for the
Secretary to conclude that a policy of non-deductibility would serve
the important goal of discouraging violations of the Act.

The fact that the Act provides for mandatory civil fines for those
who violate it does not alter our conclusion that the Secretary's inter-
pretation is a reasonable one. 30 U.S.C. §§ 820(a), (i). Civil fines are
a general enforcement mechanism under the Act and do not preclude
the availability of back pay awards, which serve different purposes.
S. Rep. No. 181, at 35, reprinted in 1977 U.S.C.C.A.N. at 3435. In
this connection, the Secretary argues that civil fines are often so nom-
inal that they fail to deter violations of the Act, and that state laws
providing for recoupment of benefits for periods covered by back pay
awards make any "windfall" to the miner an illusory one. See W. Va.
Code § 21A-10-21; Board of Educ. v. Wirt , 453 S.E.2d 402, 413 n.16
(W. Va. 1994). We have no need to assess the empirical validity of
these assertions. It is sufficient that the Secretary's reading of the
Mine Act is a reasonable one.

IV.

For the foregoing reasons, we affirm the Commission's decision
with respect to Mutual Mining's violation of the anti-discrimination
provisions of the Mine Act. We reverse, however, that portion of the
Commission's decision that directs the Secretary to deduct unemploy-
ment compensation from the back pay awards due the five discharged
miners.

AFFIRMED IN PART, REVERSED IN PART

                    10
WIDENER, Circuit Judge, concurring:

I concur in the result and in all of the opinion except Part III-B, in
which part I do not concur.

I concur in upholding the Secretary's construction of the statute
rather than the Commission's only because of the decision of the
court in Martin v. OSHRC, 499 U.S. 144 (1991).

                     11
