 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 4, 2017                    Decided July 21, 2017

                       No. 16-1250

                     MICHAEL WILSON,
                       PETITIONER

                             v.

 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION,
                       ET AL.,
                   RESPONDENTS


         On Petition for Review of an Order of the
    Federal Mine Safety and Health Review Commission


     Tony Oppegard argued the cause for petitioner. With him
on the briefs were Wes Addington and Evan B. Smith.

    Donna M. Faraq, Student Counsel, argued the cause for
respondent Jim Browning. With her on the brief were Erica J.
Hashimoto, Director, and Luke Sullivan, Student Counsel.

    Before: ROGERS, MILLETT and PILLARD, Circuit Judges.

    Opinion for the Court by Circuit Judge ROGERS.

    Concurring opinion by Circuit Judge MILLETT.
                               2

     ROGERS, Circuit Judge: The question presented by the
petition is whether the Federal Mine Safety and Health Review
Commission, upon declining to review a decision of an
Administrative Law Judge, see 30 U.S.C. § 823(d)(1), erred in
rejecting Michael Wilson’s complaint of unlawful
“interference” with his rights as a miners’ representative under
the Federal Mine Safety and Health Amendments Act of 1977
(“the Mine Act”), 30 U.S.C. § 815(c)(1). Wilson’s challenge
arises in the context of a Section 105(c) “interference”
allegation by a non-employee representative of miners against
a non-management employee. See 30 U.S.C. § 815(c). He
contends that the Administrative Law Judge erred as a matter of
law in assessing whether “interference” occurred and in
applying the Commission’s summary decision standard. For the
following reasons, we deny the petition.

                               I.

     Congress adopted the Mine Act “to protect the health and
safety of the Nation’s . . . miners.” Thunder Basin Coal Co. v.
Reich, 510 U.S. 200, 202 (1994) (quoting 30 U.S.C. § 801(g)).
The Mine Act charges two separate agencies — the Secretary
of Labor and the Federal Mine Safety and Health Review
Commission — with “complementary policymaking and
adjudicative functions.” Prairie State Generating Co. v. Sec’y
of Labor, 792 F.3d 82, 85 (D.C. Cir. 2015). The Secretary,
acting through the Department of Labor Mine Safety and Health
Administration (“MSHA”), has rulemaking, inspection, and
enforcement authority, and the Secretary’s reasonable
interpretation of the Mine Act is “accorded deference by both
the Commission and this Court.” CalPortland Co. v. Fed. Mine
Safety & Health Review Comm’n, 839 F.3d 1153, 1162 (D.C.
Cir. 2016). The Commission is an adjudicatory body
“independent of the Secretary.” Prairie State, 791 F.3d at
85–86 (citing 30 U.S.C. §§ 815(d), 823).
                                  3

     Section 105(c)(1) of the Mine Act provides that “[n]o
person shall . . . interfere with the exercise of the statutory rights
of any miner [or] representative of miners . . . because of the
exercise by such miner [or] representative . . . of any statutory
right afforded by [the Mine Act].” 30 U.S.C. § 815(c)(1).
Miners’ representatives have the statutory right of access to the
company’s records for purposes of examining whether
hazardous conditions exist or violations of mandatory health
and safety standards have occurred. See 30 U.S.C. §§ 813(h),
863(d)(1), (e), (f); 30 C.F.R. §§ 75.360(b), (h), 75.363(b), (d).
The Secretary has concluded that “interference” occurs when:

          1. A person’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. 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.

McGary v. Marshall Cnty. Coal Co., 38 FMSHRC 2006, 2011
(Aug. 26, 2016); see also Franks v. Emerald Coal Res., LP, 36
FMSHRC 2088, 2108 (Aug. 29, 2014) (Chairman Jordan and
Comm’r Nakamura, separate op.) (citing Sec’y Amicus Br. at
10). The Commission has not settled upon a test for
interference. See McGary, 38 FMSHRC at 2012 n.11; id. at
2028 n.22 (Chairman Jordan and Comm’r Cohen, concurring in
part and dissenting in part).         In Wilson’s case, the
Administrative Law Judge (“ALJ”) applied the Secretary’s test,
Wilson v. Browning, 38 FMSHRC 1161, 1163 (May 18, 2016)
(“Dec.”), and neither party has challenged that test. See Pet’r’s
Br. 27–29; Resp’t’s Br. 15 n.6.
                               4

      Michael Wilson is a former employee of Parkway Mine,
which is located in Muhlenberg County, Kentucky and operated
by Armstrong Coal Company. In February 2014, Wilson began
to serve as a representative of miners. Upon his retirement in
May 2015, he continued to serve as a miners’ representative. In
a discrimination complaint filed with MSHA, Wilson claimed
that on June 13, 2015, Jim Browning, who worked as a miner
for Armstrong Coal at the underground Parkway Mine, violated
Section 105(c) by interfering with his statutory right as a
miners’ representative to inspect the mine’s examination books.
Wilson requested that Browning be fined, required to undergo
training, and ordered to cease and desist from future violations
of the Mine Act. The Secretary, through MSHA, declined to
file a complaint on Wilson’s behalf, and Wilson sued Browning
“in his own behalf before the Commission.” 30 U.S.C.
§ 815(c)(3).

     According to Wilson’s complaint, there was a history of
hostility by Armstrong management and some miners toward
miners’ representatives because of their protected activities and
status as representatives of miners. Compl. ¶ 7. On June 13,
2015, Wilson was at the mine in a bath house reviewing the
company’s preshift/onshift examination reports when Browning
walked up behind him, leaned over him, and “accused [him] of
looking at the preshift/onshift book in order to find a violation
and to have a citation issued against the company.” Compl. ¶¶
8, 9. Browning told Wilson that he “was taking money out of
his (Browning’s) pocket,” and repeatedly told Wilson to go
home, stating that other miners’ representatives at the mine
could perform inspections. Id. ¶ 9. Wilson told Browning it
was his right as a miners’ representative to look at the reports
and he was not leaving. Id. “[A] few minutes” later, the mine
superintendent intervened and escorted Browning out of the
bath house. Id. ¶ 10. Wilson submitted an affidavit from Justin
Greenwell, another miners’ representative, who witnessed “the
                                5

entire event” and stated that Browning “told [Wilson] that he
had a ‘personal vendetta against the company,’ [and] told
[Wilson] numerous times, in a loud voice, to ‘go home.’”
Greenwell Affid. at 1 (Mar. 23, 2016). Browning, an hourly
worker at the mine, in turn, acknowledged that he had been
suspended for the remainder of the day, lost a day’s pay, and
had been told by the mine supervisor not to question Wilson in
the future. See Resp’t Browning’s Answers to Complainant’s
1st Set of Interrogs. Question No. 2; Resp’t’s Resp. to Compl.
of Discrimination ¶ 2.

     The parties filed cross motions for a summary decision, see
FMSHRC Rule 67, 29 C.F.R. § 2700.67(b), with Browning
arguing that his actions did not fall within the scope of Section
105(c) and that what he was alleged to have said to Wilson was
speech protected by the First Amendment to the Constitution.
An ALJ granted Browning’s motion and denied Wilson’s. The
ALJ concluded that although Browning “express[ed] [his]
opinion in an agitated manner that Wilson may have perceived
as threatening,” Dec. at 1165, the record did not support an
interference claim against Browning, id.

     The ALJ looked to “interference” factors on which the
Commission has relied: the positions of the parties; the tone and
setting of the encounter; the duration of the conduct; and whether
the subject was brought up repeatedly. See id. at 1166 (citing
Gray v. N. Star Mining, Inc., 27 FMSHRC 1, 11 (Jan. 12, 2005),
and Multi-Ad Servs., Inc. v. NLRB, 255 F.3d 363, 372 (7th Cir.
2001)). The ALJ first concluded that because “Wilson was not
an employee at the mine and Browning had no authority over
him, [] Browning’s actions should be understood as having less
coercive effect than in comparable cases like Gray where the
[challenged] actions were done by a supervisor.” Id. at 1166.
The ALJ next concluded that although “Browning took an
aggressive tone with Wilson that could have been interpreted as
                                 6

intimidating,” its “effect was mitigated slightly by the fact that
the encounter took place in the bathhouse in front of several
witnesses.” Id. “Finally,” the ALJ concluded that “the
encounter between Wilson and Browning was an isolated
incident” and that “Browning was suspended as a result of his
conduct, and so was unlikely to disturb Wilson again.” Id. The
ALJ noted Wilson had not alleged that any similar incidents
involving Browning had occurred since June 13th, and it “is
unlikely that Wilson views Browning as an ongoing threat that
would dissuade him from working as a miners’ representative.”
Id.

      The ALJ then supplemented this analysis, stating that “[i]n
addition to these factors, it is worth noting that the incident does
not appear to have had an actual effect on Wilson’s exercise of
his rights as a miners’ representative.” Id. The ALJ viewed
Wilson’s persistence in examining the company’s books
notwithstanding Browning’s words and conduct, as “persuasive
evidence that a reasonable miner would not have been dissuaded
from exercising his rights in this situation.” Id. at 1167.

     Wilson petitioned for review by the Commission. When the
Commission declined review, the ALJ’s decision became the
final decision of the Commission pursuant to 30 U.S.C.
§ 823(d)(1). Wilson petitions for review by the court. Id.
§ 816(a)(1).

                                II.

     Wilson contends that the ALJ erred in applying several
factors relevant to the Secretary’s test for when statutory
interference under Section 105(c) occurs. He begins by asserting
that the ALJ failed to “heed the bedrock principle that § 105(c)
of the Mine Act must be liberally construed to effectuate the
safety-enhancing purpose of the law.” Pet’r’s Br. 15. From
                                 7

there, he challenges the ALJ’s application of several factors as
well as the ALJ’s interpretation of relevant precedent, and he
contends more generally that the ALJ misapplied the summary
decision standard by failing to view the facts in the light most
favorable to him. Additionally, Wilson maintains that he was
entitled to a summary decision in view of Browning’s
admissions to a MSHA special investigator that he sought to
discourage Wilson from examining the company’s inspection
books because additional company citations might adversely
affect Browning’s personal finances. Id. at 14 n.12, 15–16.

       The court reviews de novo the Commission’s legal
conclusions in applying the “interference” factors identified in
the Commission’s precedent. See Am. Coal Co. v. Fed. Mine
Safety & Health Review Comm’n, 796 F.3d 18, 23 (D.C. Cir.
2015); see also Prairie State, 792 F.3d at 89. The Commission’s
summary decision rule is modeled on Federal Rule of Civil
Procedure 56. See Sec’y of Labor v. Hanson Aggregates N.Y.,
Inc., 29 FMSHRC 4, 9 (Jan. 17, 2007).

     The Commission has instructed that “rather than considering
only [the respondent’s] intent, the [ALJ] should . . . analyze[] the
totality of circumstances surrounding [the] statements” to
determine whether a violation of Section 105(c) occurred. Gray,
27 FMSHRC at 10. That is what the ALJ did. Looking to the
Multi-Ad factors, which reflect those relied upon by the
Commission in Gray, 27 FMSHRC at 10–11, and viewing the
allegations and record in the light most favorable to Wilson, the
ALJ concluded that Browning’s conduct did not tend to interfere
with the exercise of protected rights by a reasonable miners’
representative. See Dec. at 1165. Wilson challenges the ALJ’s
application of various factors, and with one exception his
challenges are unpersuasive.
                                8

     First, Wilson maintains that the ALJ did not take “into
account that [] this was an isolated incident [] precisely because
Wilson took legal action against Browning . . . and/or he was
suspended by Armstrong Coal for his conduct.” Pet’r’s Br.
20–21. In Wilson’s view, the evidence showed that Browning
intended his actions to have a greater effect than they actually
did, and so the ALJ erred in not fully addressing those intentions
in the analysis. But as the Commission has instructed, whether
“interference” occurred does not turn “on the [respondent’s]
motive or on whether the coercion succeeded or failed.” Gray,
27 FMSHRC at 9 (quotation omitted). That Browning may have
intended, absent his employer’s intervention, to continue to
accost Wilson ignores that the Secretary’s test calls for an
objective evaluation of how a reasonable miners’ representative
would view Browning’s conduct, and not whether Browning had
a subjective intention to interfere with Wilson’s statutory rights.
See, e.g., McGary, 38 FMSHRC at 2011. Under the totality of
the circumstances, the ALJ viewed Browning’s intentions in
context, see Gray, 27 FMSHRC at 9–11, and did not err in
considering that, perhaps due to factors beyond Browning’s
control, the encounter lasted only a few minutes. Dec. at 1166.
Similarly, the ALJ did not err in considering that Browning was
“unlikely to disturb Wilson again” given Browning’s discipline
and subsequent suspension. Id. And, to the extent Wilson
suggests that Browning’s admissions to an MSHA special
investigator demonstrate unlawful interference, Pet’r’s Br.
29–30, he misinterprets Commission precedent by placing undue
emphasis on Browning’s intent.

     Second, Wilson maintains that the ALJ erred in considering
Browning’s status as an hourly employee, as opposed to a
manager, because even a manager could not have taken the usual
disciplinary and punitive employment actions against a “non-
employee representative of miners,” such as Wilson. Petr’s’ Br.
21 (emphasis in original). That alone does not render
                                 9

Browning’s position as an hourly employee irrelevant. In the
context of “interference,” the Commission typically considers the
“nature of [the parties’] relationship” and whether the respondent
holds a “supervisory position.” Gray, 27 FMSHRC at 10–11;
see also Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088,
2115 (Aug. 29, 2014) (Chairman Jordan and Comm’r Nakamura,
separate op.). As an hourly employee, Browning had no
authority over mine operations or premises, the miners whom
Wilson represented, or the company’s reports that Wilson was
inspecting, and he was subject to being quickly escorted out of
the mine and disciplined, thereby weakening the force of his
potentially intimidating conduct.

     Third, Wilson objects to the ALJ considering the public
setting of the incident as a “mitigating factor.” Pet’r’s Br. 21–22.
As noted, the ALJ concluded that the effect of Browning’s
aggressive tone was “mitigated slightly by the fact that the
encounter took place in the bathhouse in front of several
witnesses.” Dec. at 1166. Under the totality of the
circumstances, the Commission has observed that a public
interaction with witnesses at the mine could be less intimidating
than one that occurs in private, for example, through “an at-home
telephone call [or] a meeting outside the mine office.” Gray, 27
FMSHRC at 11. Here, that was true because the public nature of
the incident enabled another employee, who was also a miners’
representative, to report the altercation and prompt the mine
supervisor to intervene.

    Fourth, Wilson correctly points out, however, that the ALJ
erred as a matter of law in considering as a factor that Wilson
continued his work as a miners’ representative after Browning
was taken away by his supervisor and suspended for the rest of
the work day. See Pet’r’s Br. 23–24. The ALJ was under the
impression that the actual effect of Browning’s conduct could be
considered so long as that consideration was not dispositive.
                               10

Dec. at 1166–67. But the Secretary’s “interference” test is
objective, and the Commission has instructed that “the relevant
perspective on the issue is that of the reasonable miner [or
miners’ representative],” not the subjective perspective of the
complainant. McGary, 38 FMSHRC at 2017 & n.13 (quotation
omitted); see also Franks, 36 FMSHRC at 2111, 15–16
(Chairman Jordan and Comm’r Nakamura, separate op.); Gray,
27 FMSHRC at 9. This interpretation of “interference” under the
Mine Act has its genesis in Section 8(a)(1) of the National Labor
Relations Act, Franks, 36 FMSHRC at 2107 n.2 (Chairman
Jordan and Comm’r Nakamura, separate op.); Gray, 27
FMSHRC at 9, and the National Labor Relations Board has ruled
that the complainant’s “subjective reaction” to an allegedly
threatening or coercive statement may not be considered in the
Section 8(a)(1) analysis, Sunnyside Home Care Proj., Inc., 308
NLRB 346, 346 n.1 (1992); see also Hanes Hosiery, Inc., 219
NLRB 338, 338 (1975). Like the Board, the Commission applies
an objective standard, and the ALJ here offered no persuasive
reason for departing from that understanding of the interference
test.

     Typically, a court cannot affirm an agency decision on a
ground other than those relied upon by the agency. See, e.g.,
SEC v. Chenery Corp., 318 U.S. 80, 88 (1943). An exception
exists when “there is not the slightest uncertainty as to the
outcome of a proceeding on remand,” and in that circumstance
a court “can affirm an agency decision on grounds other than
those provided in the agency decision.” Grossmont Hosp. Corp.
v. Burwell, 797 F.3d 1079, 1086 (D.C. Cir. 2015) (quoting Manin
v. NTSB, 627 F.3d 1239, 1243 n.1 (D.C. Cir. 2011)).
Importantly, the actual effects of a respondent’s alleged
misconduct is not a Multi-Ad factor. See Multi-Ad Servs., 255
F.3d at 372; Franks, 36 FMSHRC at 2115 (Chairman Jordan and
Comm’r Nakamura, separate op.); Dec. at 1165. Here, the ALJ
applied the Multi-Ad factors and on that basis alone determined
                                11

that the record did not “support[] an interference claim against
Browning.” Dec. at 1165. After weighing the Multi-Ad factors
to conclude that no interference occurred, the ALJ erroneously
considered Wilson’s actual response — but did so only to
reinforce that earlier conclusion.       See id. at 1166–67.
Consequently, were the court to remand the case for further
proceedings, there is not the “slightest uncertainty” that after
omitting consideration of the actual effects of Browning’s
conduct on the performance of Wilson’s inspection work, the
ALJ would redo the same Multi-Ad analysis and once again
conclude that Browning did not interfere with the exercise of
Wilson’s rights.

     Wilson’s remaining challenges to the ALJ’s decision are
unavailing. Fifth, he challenges the ALJ’s understanding of
precedent, focusing on Pendley v. Highland Mining Co., 37
FMSHRC 301 (ALJ Feb. 12, 2015). Wilson views this case to
hold that a non-supervisory miner violates Section 105(c) by
“stand[ing] too close to [the complainant], in an intimidating
manner, for 15–40 and 30–60 seconds, (i.e., a shorter period of
time than Browning hovered over Wilson while yelling at him).”
Pet’r’s Br. 26 n.24. But in Pendley, the ALJ did “not find that
[the respondent’s] conduct alone constituted interference.”
Pendley, 37 FMSHRC at 315. Rather, the “acts or omissions by
mine management,” combined with the miner’s conduct,
constituted interference. Id. The context was different as well.
In Pendley, the parties had engaged in a “multi-year feud, which
resulted in numerous judicial decisions and [the complainant’s]
termination,” id. at 312, with “[a]llegations of discrimination and
conflicts . . . go[ing] as far back as 2005” and including a
“physical altercation,” id. at 312–13. Here the record shows only
a single, “isolated incident” between Wilson and Browning, Dec.
at 1166, even though the two had worked together at the mine for
years. Wilson has not alleged or proffered evidence of a prior
incident, and he does not maintain that management bears any
                                12

responsibility for Browning’s conduct.

     Nor is there any merit to Wilson’s sixth challenge that the
ALJ misapplied the summary decision standard by characterizing
the incident as an “altercation” rather than viewing the evidence
in the light most favorable to him. Pet’r’s Br. 22 n.20. In ruling
on the cross-motions for summary decision, the ALJ assumed as
true Wilson’s description of the incident, namely that Browning
“walked up behind Wilson” and began to yell “angrily” in an
“agitated manner that Wilson may have perceived as
threatening.” Dec. at 1165. Wholly consistent with Wilson’s
account, as opposed to Browning’s account, see, e.g., Resp. to
Complainant’s Summary J. Mot. at 7; Browning Affid. at 1–2
(Apr. 29, 2016), the ALJ described a scene where Browning is
the sole aggressor in a verbal incident in a public place, followed
by prompt supervisory intervention, leading to Browning’s
suspension and docking of his pay. Wilson concedes that there
have been no similar events since the single, brief incident in
June 2015, Pet’r’s Br. 20–21, and the record offers no basis to
conclude Browning would risk further suspension and loss of
pay by repeating his aggressive behavior towards Wilson.
Indeed, Browning’s own statements suggest to the contrary. See,
e.g., Browning Affid. at 2; MSHA Special Investigator’s
Interview of Browning, Tr. 15–16 (July 13, 2015). Under the
totality of circumstances, upon applying the Secretary’s test and
viewing the evidence in the light most favorable to Wilson, the
ALJ properly applied the summary decision standard in
concluding that Browning’s conduct did not rise to the level of
Section 105(c) interference.

    Finally, because the court is affirming the decision that,
under the Secretary’s test, Browning’s conduct did not constitute
Section 105(c) interference, the court has no occasion to reach
Browning’s contention that the Mine Act does not provide for a
private right of action against non-management miners. See
                              13

Resp’t’s Br. 26–38 (citing inter alia, Meredith v. Fed. Mine
Safety & Health Review Comm’n, 177 F.3d 1042 (D.C. Cir.
1999)). Similarly, the court has no occasion to consider
Browning’s alternative defense that “the First Amendment
precludes [] finding” him liable under the Mine Act. See Resp’t
Br. 38.

    Accordingly, we deny the petition for review.
MILLETT, Circuit Judge, concurring:

     I join the opinion for the court as far as it goes. I write
separately only to note that, in my view, constitutional
avoidance concerns contribute measurably to my conclusion
that “there is not the slightest uncertainty as to the outcome of
[the] proceeding on remand,” Manin v. National Trans. Safety
Bd., 627 F.3d 1239, 1243 n.1 (D.C. Cir. 2011) (internal
quotation marks and citation omitted).

     This case involves statements made by a miner to a
miners’ representative. In the analogous context of labor law,
statements made regarding unionization or union activity are
protected as long as they do not include a threat of reprisal or
force or a promise of benefit. See NLRB v. Gissel Packing Co.,
395 U.S. 575, 616–617 (1968); US Airways, Inc. v. National
Mediation Bd., 177 F.3d 985, 991–994 (D.C. Cir. 1999); 29
U.S.C. § 158(c).

     Statements made by a miner to a miners’ representative
very likely merit similar constitutional protection in the narrow
circumstances presented here. Wilson has not alleged that
Browning’s statements contained any actual or implied threat
(or promise). And Browning is an hourly employee with no
authority to affect Wilson’s or any other employee’s work as a
representative, or access to the mine, miners, or mine records.
Nor does Wilson allege that Browning’s outburst was made on
behalf of or was encouraged by management or union officials.
Cf. Gissel Packing, 395 U.S. at 617 (analysis of speech’s
protected content must “take into account the economic
dependency of the employees on their employers” and the
consequent tendency of employees “to pick up intended
implications of the latter that might be more readily dismissed
by a more disinterested ear”). Browning was just a miner
acting entirely on his own initiative and with no power other
than the power of persuasion. And all he did was forcefully
express to Wilson, a miners’ representative, his personal
                              2
opinion that Wilson was not responsibly fulfilling his
representative role.

     The substantial constitutional concerns associated with an
attempt to punish such conduct, combined with the other
factors identified in the court’s opinion, convince me that
nothing could change on remand.
