 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 15, 2019                  Decided May 7, 2019

                         No. 18-1098

        MARSHALL COUNTY COAL COMPANY, ET AL.,
                    PETITIONERS

                               v.

 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
  AND SECRETARY OF LABOR, MINE SAFETY AND HEALTH
                  ADMINISTRATION,
                   RESPONDENTS

UNITED MINE WORKERS OF AMERICA INTERNATIONAL UNION,
                   INTERVENOR


        On Petition for Review of a Decision of the
    Federal Mine Safety and Health Review Commission


     Margaret S. Lopez argued the cause and filed the briefs for
petitioners.

    Emily Toler Scott, Attorney, U.S. Department of Labor,
argued the cause for respondents. With her on the brief was Ali
A. Beydoun, Counsel, Appellate Litigation. John T. Sullivan,
Attorney, Mine Safety and Health Review Commission,
entered an appearance.
                               2
     Laura P. Karr argued the cause and filed the brief for
intervenor United Mine Workers of America International
Union.

   Before: MILLETT and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

   Opinion for the Court filed by Senior Circuit Judge
EDWARDS.

     EDWARDS, Senior Circuit Judge: Section 105(c)(1) of the
Federal Mine Safety and Health Amendments Act of 1977
(“Mine Act” or “Act”) prohibits mine operators from
interfering with miners’ exercise of statutory rights. See 30
U.S.C. § 815(c)(1). This case involves claims by miners that
mine operators interfered with their rights under Section 103(g)
of the Act to raise anonymous complaints with the Mine Safety
and Health Administration (“MSHA”) regarding health and
safety issues. See 30 U.S.C. § 813(g)(1).

     Petitioners are five underground coal mines in West
Virginia and associated corporate entities, including the owner
and operator of the mines, Murray Energy Corporation
(“Murray Energy”). Robert Murray (“Murray”) is the President
and Chief Executive Officer of Murray Energy. At issue are a
series of mandatory “Awareness Meetings” that were held at
each of the five mines. During the meetings, Murray criticized
miners’ use of the Section 103(g) process and instructed miners
that, if they filed such complaints, they must make the same
reports to mine management.

     Several miners and a union representative filed complaints
with the Secretary of Labor (“Secretary”) alleging that
Petitioners had interfered with their rights to file anonymous
complaints pursuant to Section 103(g). The Secretary then filed
                               3
a complaint on behalf of the miners with the Federal Mine
Safety and Health Review Commission (“Commission”). The
Commission, in turn, found that Petitioners had violated
Section 105(c)(1) of the Act by interfering with miners’
Section 103(g) rights. The Commission imposed various
remedies, including a penalty of $20,000 per violation and an
order requiring Murray to personally hold a meeting at each
mine and read a statement regarding the violations. Petitioners
then filed a timely petition for review with this court.

     Petitioners’ primary argument is that the Commission
erred in assessing the Section 105(c)(1) claims because it failed
to consider whether Petitioners’ actions were motivated by an
intention to interfere with the miners’ protected rights. We
decline to decide whether the Commission applied the correct
test of interference under Section 105(c)(1) because Petitioners
failed to raise and preserve the issue during the administrative
proceedings before the Administrative Law Judge (“ALJ”) and
the Commission. In addition, we find that, even under the legal
standard that Petitioners would have us adopt, substantial
evidence in the record clearly supports the Commission’s
finding that Petitioners interfered with miners’ Section 103(g)
rights. Moreover, we find no merit in Petitioners’ challenge to
the assessment of monetary penalties. And, finally, we hold
that Petitioners failed to properly raise and preserve, and thus
forfeited, their claims challenging the order requiring Murray
to read a statement.

     For the reasons explained below, we deny the petition for
review.
                               4
                      I.   BACKGROUND

   A. Statutory Background

     “Congress adopted the Mine Act ‘to protect the health and
safety of the Nation’s . . . miners.’” Wilson v. Fed. Mine Safety
& Health Review Comm’n, 863 F.3d 876, 878 (D.C. Cir. 2017)
(quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 202
(1994)). “To accomplish its goals, the Mine Act charges two
separate agencies with complementary policymaking and
adjudicative functions.” CalPortland Co. v. Fed. Mine Safety
& Health Review Comm’n, 839 F.3d 1153, 1156 (D.C. Cir.
2016) (citation omitted). The Secretary, acting through MSHA,
has “rulemaking, inspection, and enforcement authority,”
while the Commission is “an adjudicatory body[,] independent
of the Secretary,” that reviews challenges to MSHA’s actions.
Wilson, 863 F.3d at 879 (citation omitted).

     Congress recognized that its national mine safety and
health program would be most effective if miners and their
representatives contributed to the enforcement of the Mine Act.
Council of S. Mountains, Inc. v. Fed. Mine Safety & Health
Review Comm’n, 751 F.2d 1418, 1420 (D.C. Cir. 1985). To that
end, the Act establishes a process for filing complaints with
MSHA. See Meredith v. Fed. Mine Safety & Health Review
Comm’n, 177 F.3d 1042, 1056 (D.C. Cir. 1999) (“Believing
miners to be in the best position to detect and report hazards,
the Act created a number of mechanisms through which they
could notify the MSHA of dangerous conditions, including
written complaints, requests for inspection, and the right to
point out hazards.”).

    Under Section 103(g), a miner or a miner’s representative
who has “reasonable grounds to believe that a violation of this
chapter or a mandatory health or safety standard exists, or an
                               5
imminent danger exists . . . [has] a right to obtain an immediate
inspection by giving notice” of such violation or danger to the
Secretary. 30 U.S.C. § 813(g)(1). The Act protects miners who
file complaints from having their identities disclosed to mine
operators. See id. (requiring the Secretary to give the operator
a copy or notice of the complaint, but “[t]he name of the person
giving such notice and the names of individual miners referred
to therein shall not appear in such copy or notification”).
Congress considered the “strict confidentiality of
complainants” to be “absolutely essential” to protect miners
who exercise their right to make Section 103(g) complaints.
S. Rep. No. 95-181, at 29 (1977). This is because miners have
an interest both in working in a safe environment and in
maintaining good relationships with fellow workers and mine
management. Absent a guarantee of confidentiality, a miner
would be unnecessarily forced to weigh those competing
interests in deciding whether to report a violation or dangerous
condition to MSHA.

     To promote participation in enforcing mine health and
safety, the Act specifically protects miners and their
representatives against retaliation and interference. Section
105(c)(1) states,

    No person shall discharge or in any manner
    discriminate against or cause to be discharged or
    cause discrimination against or otherwise interfere
    with the exercise of the statutory rights of any miner
    [or] representative . . . because such miner [or]
    representative . . . has filed or made a complaint under
    or related to this chapter, . . . or because of the
    exercise by such miner [or] representative . . . of any
    statutory right afforded by this chapter.
                               6
30 U.S.C. § 815(c)(1). To make a prima facie case of
discrimination under Section 105(c)(1), a miner must prove
that he or she was engaged in protected activity and that the
adverse action complained of was motivated in some part by
that activity. Leeco, Inc. v. Hays, 965 F.2d 1081, 1084 (D.C.
Cir. 1992); see also Robinette v. United Castle Coal Co., 3
FMSHRC 803, 817 (1981); Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2799 (1980), rev’d on other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d
Cir. 1981). Although the standard for discrimination claims is
settled, the Commission has yet to reach a consensus on the
proper test for interference.

   B. Factual Background

     In December 2013, a subsidiary of Murray Energy
acquired five underground coal mines in West Virginia: the
Marshall County Mine, Marion County Mine, Harrison County
Mine, Monongalia County Mine, and the Ohio County Mine.
Soon thereafter, MSHA received numerous Section 103(g)
complaints from miners alleging safety hazards and violations.
From December 2013 through July 2014, MSHA conducted
inspections to investigate the complaints, leading to the
issuance of 42 citations and orders.

     In response to these complaints, Murray sent a letter to the
President of the United Mine Workers of America (“UMWA”),
whose local unions represent the hourly production and
maintenance workers at the mines. In the letter, Murray
complained about the “rash of 103(g) complaints” being made
by “disgruntled employees” and union officials who were
“striking back at the Company for reasons other than safety.”
Joint Appendix (“J.A.”) 589. He described a “very high level
of negative findings from MSHA” and claimed that the misuse
of the Section 103(g) complaint process was wasting the
                                7
agency’s and Murray Energy’s resources. Id. (emphasis in
original). After stating that Murray Energy would “never
interfere with a miner’s right to file 103(g) complaints,”
Murray requested that management “be given the opportunity
to also simultaneously be informed [of] safety issues in place
of the 103(g) complaints, or afterwards.” J.A. 589–90
(emphasis in original).

     Then, between April and July 2014, Murray led a series of
“Awareness Meetings” at each of the five mines. The meetings,
which were held during each work shift, were mandatory for
both management and hourly workers. The meetings consisted
of a 77-slide PowerPoint presentation and a speech by Murray.
Each PowerPoint presentation opened with the words
“MUTUAL TRUST” and explained that the purpose of the
meeting was to “communicate the circumstances at [the mine]
surrounding your job and your family livelihood,” “give you
the facts,” and “advise you as to what we must do to assure a
future for our Mine, jobs and livelihoods.” J.A. 482 (emphasis
and capitalization in original); see also J.A. 502, 520, 538, 556.
Many of the underlined terms were displayed in red or yellow.
After a few slides emphasizing the importance of miner safety,
the presentations said, “Now, Let Us Take a Moment to Think
About Your Job Being Suddenly Gone,” and asked, “Do You
Have Another Job To Go To That Pays the Same Wages and
Benefits as the One You Have at [the mine]?” J.A. 485; see
also J.A. 505, 523, 541, 559. The next slide explained, “There
Are No Jobs in This Area That Pay Anywhere Close to What
Is Paid at [the mine]. Further, There Are None With the
Benefits That You Have.” Id. (line spacing altered). A
subsequent slide reiterated, “Where Will you Move To Find a
Job? What Will It Be? There are None Here[.] Certainly None
Paying Your Wages and Benefits[.]” J.A. 486 (line spacing
altered); see also J.A. 506, 524, 542, 560.
                               8
    The PowerPoint presentation also complained about the
impact of government regulation on the coal industry and
miners’ livelihoods. See J.A. 487–89; see also J.A. 507–09,
525–27, 543–45, 561–63. Murray explained that “Only” the
miners could “Save” their jobs, J.A. 489; see also J.A. 509,
527, 545, 563, and went on to berate the miners for low
production rates, inefficiencies, drug and alcohol use, and “Out
of Control” employee absences, J.A. 495–96; see also J.A.
490–94, 510–15, 528–33, 546–51, 564–69.

   Three PowerPoint slides addressed Section 103(g)
complaints:

    You Must Report Unsafe Situations and Compliance
    Issues to Management so that they Can Be Addressed
    By Management

    103(g) Complaints Relative to the Mine Safety and
    Health Administration (“MSHA”) Are Your Right
    Your Company Will Never Interfere With This In
    Any Way
    But, you Are Also Required To Make the Same
    Report to Management

    There Are High Percentages of Negative Findings
    from MSHA on the 103(g) complaints
    This Indicates That This Right Is Being Used To Get
    Back At Management Regarding Something That
    You Disagree With That Has Nothing To Do With
    Safety
    This Dilutes Company and MSHA Resources
    It Hurts your Company and Job Survival.

J.A. 497; see also J.A. 515–16, 534, 551–52, 569–70.
                                9
   C. Procedural History

       1. The complaint, hearing, and ALJ’s first decision

     Following the Awareness Meetings, several miners and a
union representative filed complaints with the Secretary,
alleging that Petitioners had interfered with their right to make
Section 103(g) complaints. See 30 U.S.C. § 815(c)(2) (giving
miners the right to file a complaint with the Secretary to report
a Section 105(c)(1) violation). The Secretary then filed a
complaint on their behalf with the Commission. The Secretary
requested various forms of relief, including a civil penalty of
$20,000 per violation and an order requiring “the reading by a
Murray Energy corporate officer of a notice to all miners
regarding the Section 105(c) violations.” J.A. 19.

     Shortly before the scheduled hearing before an ALJ,
Petitioners and related mining companies filed a complaint in
federal district court against the UMWA, a local UMWA
chapter, and one of the complainants in this case. The federal
court complaint – which included quotes from the depositions
of several complainants in this case – alleged a breach of the
collective bargaining agreement between the UMWA and coal
mine operators, including Petitioners, based on miners’ filing
Section 103(g) complaints with MSHA without first raising the
issues with mine management. The Secretary moved to cancel
the administrative hearing on the grounds that the witnesses
were intimidated by the lawsuit.

     The ALJ then held a hearing during which no witnesses
were called, and joint stipulations of fact and exhibits were
admitted into the record. During the proceeding, the Secretary
sought to amend the complaint to request that Murray himself
be required to read the notice to all miners. Petitioners objected
that requiring Murray to read the notice was “over the top” and
                               10
stated, “[W]e’ll deal with the amendment. We can answer it.”
J.A. 374. Petitioners, however, did not address the issue in their
post-hearing brief.

     The ALJ subsequently issued a decision finding
Petitioners liable for interference. See McGary v. Marshall Cty.
Coal Co. (McGary I), 37 FMSHRC 2597, 2599 (2015). She
explained that a reasonable miner would have left an
Awareness Meeting thinking that mine management was
hostile to the Section 103(g) complaint process, particularly
with regard to how miners had been exercising their rights. Id.
at 2606. The ALJ also found that a reasonable miner would
have concluded that the mine operators had established a rule
requiring that any Section 103(g) complaint be reported to
management, thereby risking exposure of the miner’s identity
and undermining the Mine Act’s guarantee of anonymity. Id.
at 2606–07. The ALJ additionally found that the announced
policy did not serve the mine operators’ purported goal of being
informed of unsafe conditions. Id. at 2607–08. In making these
findings, the ALJ cited the PowerPoint slides as well as a
recording of Murray’s remarks from one of the meetings. Id. at
2606–07.

      In finding interference under Section 105(c)(1), the ALJ
applied a test proposed by the Secretary and adopted by two
Commissioners in Franks v. Emerald Coal Resources, LP, 36
FMSHRC 2088 (2014), vacated and remanded sub nom.
Emerald Coal Resources, LP v. Hoy, 620 F. App’x 127 (3d Cir.
2015). See McGary I, 37 FMSHRC at 2603. Under the Franks
test, an interference violation occurs if

    (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
                               11

    (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[.]

Franks, 36 FMSHRC at 2108 (opinion of Jordan, Chairman,
and Nakamura, Comm’r). Unlike the test for discrimination
claims under Section 105(c)(1), the Franks test for interference
does not require a finding that the employer was motivated by
miners’ exercise of their protected rights.

     There is nothing in the record to indicate that Petitioners
objected to the ALJ’s application of the Franks test. In a
footnote in their post-hearing brief, Petitioners took issue with
the “questionable” precedential value of Franks, noting that
“only two Commissioners joined in that portion of the decision
that utilized the test.” J.A. 160 n.7. However, Petitioners did
not ask the ALJ to apply an alternative test for interference, and
they accepted Commission precedent as standing for the
proposition that “the motive of an operator in taking any action
is not considered when undertaking analysis of an interference
claim.” J.A. 158 n. 5 (emphasis in original); see also J.A. 159–
60.

     After finding interference, the ALJ ordered Petitioners to
pay a $30,000 civil penalty for each violation, which was
higher than what the Secretary had proposed. McGary I, 37
FMSHRC at 2609–10. The ALJ justified the increase by
concluding that Petitioners had brought the federal court
lawsuit to intimidate the witnesses in this case. Id. Petitioners
were also instructed to post notices explaining miners’ Section
103(g) rights and stating that there is no requirement or
expectation that miners make the same report to management.
Id. at 2609.
                                12

     Finally, the ALJ granted the Secretary’s request that
Murray be required to hold a meeting at each mine and read a
“prepared and approved statement” regarding the violations,
“notifying miners that they are not required to contact
management when making a complaint to MSHA.” Id. The
ALJ concluded that she had the authority to order this reading
under both the Mine Act and this court’s case law under the
National Labor Relations Act (“NLRA”). Id. at 2608.

        2. Review by the Commission

     Petitioners sought review by the Commission, claiming
that the record did not support the ALJ’s finding of
interference. Petitioners also asserted that mine operators may
permissibly require their workers to report safety concerns to
management. And they raised evidentiary challenges to the
ALJ’s findings relating to Petitioners’ action in federal district
court and the recording of Murray’s remarks at one of the
Awareness Meetings. Petitioners argued that the penalty
“singl[ing] out” Murray to read the statement was “improper”
because the recording was inadmissible. J.A. 226. Petitioners
made no objection to the ALJ’s application of the Franks test
except to note, in their reply brief, that the case lacked
precedential value. And Petitioners not only failed to propose
any alternative to the Franks test, but they also continued to
assert that proof of an operator’s motive is not essential for
interference claims.

     Regarding remedies, Petitioners first claimed that the ALJ
improperly considered their federal court action in justifying
an increase in the assessed monetary penalty. As to the reading
requirement, Petitioners simply pointed out that “there is no
indication as to who will ‘prepare’ or ‘approve’ the statements
to be read.” J.A. 194, 227. Petitioners did not object to a reading
                               13
requirement, however. Rather, in their reply brief, Petitioners
merely requested that Murray’s statement be identical to the
notices posted at each of the mines, claiming that any additions
by the Secretary “would allow for extraneous material which
was not included in the ALJ’s decision to be injected into the
statement.” J.A. 338.

      The Commission upheld the ALJ’s determination that
Petitioners impermissibly interfered with the rights of miners
to make anonymous Section 103(g) complaints. McGary v.
Marshall Cty. Coal Co. (McGary II), 38 FMSHRC 2006, 2027
(2016); id. at 2028 (Jordan, Chairman, and Cohen, Comm’r,
concurring in part and dissenting in part). With regard to the
test for interference claims, Chairman Jordan and
Commissioner Nakamura affirmed the ALJ’s application of the
Franks test. Id. at 2012 n.11; id. at 2028 n.22 (Jordan,
Chairman, and Cohen, Comm’r, concurring in part and
dissenting in part). Commissioner Cohen also upheld the ALJ’s
reliance on Franks because Petitioners did not challenge the
test before the ALJ and the issue was not briefed. Id. at 2028 n.
22 (Jordan, Chairman, and Cohen, Comm’r, concurring in part
and dissenting in part). Commissioners Young and Althen
found it unnecessary to settle upon a final, specific test because
the result would be the same under the test set out by an ALJ
in Pepin v. Empire Iron Range Mining Partnership, 38
FMSHRC 1435 (2016), which, unlike Franks, requires a
finding that any alleged interference was motivated by the
exercise of protected rights. McGary II, 38 FMSHRC at
2012 n.11. The Commission declined to address Petitioners’
evidentiary challenge to the recording of Murray’s remarks,
concluding that the PowerPoint slides alone constituted
substantial evidence supporting the finding of interference.
Id. at 2019.
                               14
     The Commission vacated the monetary penalties imposed
by the ALJ and remanded the case for a reassessment that did
not take into account Petitioners’ federal court lawsuit. Id. at
2025–26. The ALJ was also instructed to clarify the details of
Murray’s “prepared and approved” statement. Id. at 2026.

       3. Proceedings following remand

     Before the ALJ on remand, Petitioners argued that there
were no reasonable grounds for increasing the monetary
penalties. Regarding the “content of a statement to be read” by
Murray, J.A. 349, Petitioners asked the ALJ to reject the
Secretary’s request to draft a statement that would include
language beyond what was in the notices posted at the mines.
The Secretary wanted Murray to address the negative tone that
he used at the Awareness Meetings and admit liability, but
Petitioners objected that such additions “would simply be
punitive . . . and be outside the scope of the remanded issue
regarding who should ‘prepare and approve’ the statement.”
J.A. 350–51. In a footnote in their brief to the ALJ, Petitioners

    wish[ed] to note for the record that compelling a
    reading of a statement by an individual implicates
    First Amendment protections, and that if the Secretary
    seeks to include further material or content, such
    content could potentially constitute compelled
    speech, if the reading of a statement authored solely
    by the government and ordered to be read by an
    individual does not already implicate such concerns.

J.A. 351 n.6.

    After reviewing the parties’ positions, the ALJ assessed a
penalty of $20,000 per violation. McGary v. Marshall Cty.
Coal Co. (McGary III), 38 FMSHRC 2694, 2698 (2016).
                               15
Regarding Murray’s statement, the ALJ explained that “the
original order required that it be approved by all parties,” but
“the parties have not been able to agree on such language.” Id.
at 2699. Rejecting the parties’ proposals, the ALJ instructed
Murray to state that Petitioners violated the Mine Act; that the
Commission ordered him to read the notice; that the policy
announced at the Awareness Meetings is rescinded; and that
miners are not required to contact management when making a
complaint to MSHA. Id. The statement also included a
summary of miners’ rights under Sections 103(g) and 105(c).
Id. at 2699–700.

     Petitioners again appealed to the Commission, contending
that the ALJ’s assessment of monetary penalties was improper
under the Mine Act. See 30 U.S.C. § 820(i) (enumerating six
factors the Commission is required to consider when assessing
civil monetary penalties). They also argued that the
requirement of a personal reading was punitive rather than
remedial in nature, in violation of the Mine Act and this court’s
case law under the NLRA. Petitioners also asserted that, “[t]o
the extent that the statement contains editorial comments which
may be contrary to views held by Mr. Murray, and is not a mere
statement of the law, such portions of the statement could be
viewed as compelled speech.” J.A. 368.

     The Commission declined to review Petitioners’ objection
to the monetary penalties. See McGary v. Marshall Cty. Coal
Co. (McGary IV), 40 FMSHRC 261, 264 (2018); see also 30
U.S.C. § 823(d)(2)(A)(i) (“Review by the Commission shall
not be a matter of right but of the sound discretion of the
Commission.”). As to the order requiring Murray to read the
prepared statement, the Commission held that Petitioners had
forfeited their arguments by failing to raise them in the prior
proceedings. See McGary IV, 40 FMSHRC at 269.
                               16
     Petitioners now seek review in this court, where they
challenge the legality of the Franks test for interference claims,
the Commission’s finding of interference, the assessment of
monetary penalties, and the order instructing Murray to read
the prepared statement.

                         II. ANALYSIS

   A. Standard of Review

     “We review the legal determinations of the Commission
and its ALJs de novo and factual findings for substantial
evidentiary support.” Prairie State Generating Co. v. Sec’y of
Labor, 792 F.3d 82, 89 (D.C. Cir. 2015). Under the substantial
evidence standard of review, which is “highly deferential,” this
court “may not reject reasonable findings and conclusions,
even if we would have weighed the evidence differently.”
Cumberland Coal Res., LP v. Fed. Mine Safety & Health
Review Comm’n, 717 F.3d 1020, 1028 (D.C. Cir. 2013)
(citation omitted). Thus, the question is “whether a theoretical
reasonable factfinder could have reached the conclusions
actually reached by the Commission and the ALJ.” Id. (citation
omitted); see also Biestek v. Berryhill, 139 S. Ct. 1148,
1154 (2019).

   B. Substantial Evidence Supports the Finding of
      Interference Under Section 105(c)(1)

    On the record before us, and for the reasons given by the
Commission, it is quite clear that Petitioners violated Section
105(c)(1).

     We begin with the first prong of the Franks test and find
no error in the Commission’s determination that the Awareness
Meetings could be reasonably viewed, from the perspective of
                                  17
the miners and under the totality of the circumstances, as
tending to interfere with the miners’ exercise of Section 103(g)
rights. See McGary II, 38 FMSHRC at 2015–19; McGary I, 37
FMSHRC at 2605–07. Petitioners raise three challenges to this
finding, all of which lack merit.

     First, because the purported theme was “mutual trust,”
Petitioners contend that their PowerPoint presentations cannot
reasonably be interpreted to reflect an attempt to interfere with
miners’ rights. According to Petitioners, they merely sought to
promote cooperation between miners and management. To
support this claim, they point out that only 3 of the 77
PowerPoint slides addressed Section 103(g) complaints and
that these slides expressly recognized the miners’ rights to file
complaints with MSHA. These arguments fail.

     Under our deferential standard of review, we decline to
disturb the Commission’s eminently reasonable findings,
which properly considered the totality of the circumstances.
See Wilson v. Fed. Mine Safety & Health Review Comm’n, 863
F.3d 876, 881 (D.C. Cir. 2017) (“The Commission has
instructed that . . . [‘]the [ALJ] should . . . analyze[ ] the totality
of circumstances surrounding [the] statements’ to determine
whether a violation of Section 105(c) occurred.” (alterations in
original) (quoting Gray v. N. Star Mining, Inc., 27 FMSHRC
1, 10 (2005))); Moses v. Whitley Dev. Corp., 4 FMSHRC 1475,
1479 n.8 (1982), aff’d, 770 F.2d 168 (6th Cir. 1985) (per
curiam) (“Whether an operator’s actions are proscribed by the
Mine Act must be determined by what is said and done, and by
the circumstances surrounding the words and actions.”).

     While it is true that several of the PowerPoint slides
referred to cooperation and “mutual trust,” the general tenor of
the meetings, along with statements on the slides, was
intimidating and threatening. Miners were repeatedly told that
                              18
their jobs, futures, and family livelihoods were at risk. The
miners were berated for absenteeism and low productivity,
among other things, and reminded of how much worse off they
would be if the mines were to close in an area where there is no
comparable alternative employment. When Petitioners’
presentation turned to Section 103(g), the slides conveyed
management’s belief that frivolous complaints were being used
to get back at the mine operators, diluting MSHA resources,
hurting the company, and jeopardizing the survival of the
miners’ jobs. As the Commission explained, “Tying the
survival of employment opportunities at the mine to use of the
section 103(g) process only when it is vindicated by the issue
of a citation by MSHA would tend to discourage a reasonable
miner from making a section 103(g) complaint in the first
instance.” McGary II, 38 FMSHRC at 2018. Under the totality
of the circumstances, a reasonable miner could have concluded
that management was interfering with the Section 103(g)
complaint process.

     Second, Petitioners insist that the Awareness Meetings did
not create a “new” work rule requiring miners to report Section
103(g) complaints because the applicable collective bargaining
agreement already required miners to report dangerous
conditions to management. But requiring miners to report
hazardous conditions is not equivalent to requiring miners who
file Section 103(g) complaints to make “the same” report to
management. This is because miners also have the right to
report non-hazardous conditions to MSHA. See 30 U.S.C.
§ 813(g)(1) (allowing miners to report “a violation of this
chapter or a mandatory health or safety standard . . . or an
imminent danger” (emphasis added)). Furthermore, miners
may opt to file a report with MSHA without simultaneously
reporting their MSHA complaints to management. The critical
point here is that, at the Awareness Meetings, Murray indicated
to the miners that their continued employment was in jeopardy
                                 19
because of their putative overuse of the Section 103(g) process.
The overall effect of the Awareness Meetings was to
discourage miners from filing complaints pursuant to their
rights under the Act.

     Third, Petitioners claim that the Awareness Meetings
could not have established a new policy because safety rules
can be implemented only through the procedure required by the
collective bargaining agreement. According to Petitioners, the
named complainants in this case would not have believed that
Murray was announcing a new rule because they are
experienced union officials with substantial knowledge of this
rulemaking procedure.

      The ALJ properly rejected this argument on the ground
that, under Franks, “the relevant perspective on the issue is that
of a reasonable miner,” and “a reasonable miner would have
thought that a statement made by the CEO of the company at
an all-staff mandatory meeting constituted binding company
policy.” McGary I, 37 FMSHRC at 2607; see also Wilson, 863
F.3d at 882 (“[T]he Secretary’s interference test is objective,
and the Commission has instructed that the relevant perspective
on the issue is that of the reasonable miner . . . not the subjective
perspective of the complainant.” (citation omitted)). The slides
stated that miners were “Required To Make the Same Report
to Management,” with “Required” displayed in red. E.g., J.A.
497. Given the choice between cooperating with management
and losing his job, a reasonable miner could have felt pressured
to comply with the announced policy. As the Commission
explained, it would be “unreasonable” to assume that the
average miner “would be so confident in his or her
understanding of the applicable [collective bargaining
agreement] that the miner would ignore the clear statements
made in the slide presentation given by the company’s CEO.”
McGary II, 38 FMSHRC at 2017; see also Wilson, 863 F.3d at
                               20
882 (“In the context of interference, the Commission typically
considers the nature of the parties’ relationship and whether the
respondent holds a supervisory position.” (alterations and
citation omitted)).

     Turning to the second prong of Franks, the Commission
reasonably concluded that Petitioners failed to justify the
policy with a legitimate and substantial reason whose
importance outweighed the harm caused. See McGary II, 38
FMSHRC at 2019–21. While Petitioners have a legitimate
interest in knowing about dangerous conditions at the mines,
the Awareness Meetings were not aimed at encouraging miners
to report hazards to management. On the contrary, as the
Commission found, the general tenor of the PowerPoint slides
and Murray’s attitude toward the Section 103(g) process would
have dissuaded miners from making complaints. Moreover,
Petitioners’ announced policy did not require miners to report
all safety and health hazards to management, but rather only
those that miners reported to MSHA. And, crucially, at no point
in the presentation did Murray explain how the company
planned to protect the miners’ rights to anonymity under
Section 103(g) while requiring them to make the “same”
reports to management.

     We are not persuaded by Petitioners’ argument that Pack
v. Maynard Branch Dredging Co., 11 FMSHRC 168 (1989),
aff’d, 896 F.2d 599 (D.C. Cir. 1990), dictates a different result.
In Pack, a mine operator was not held liable for discrimination
under Section 105(c)(1) after firing a worker who had failed to
report improperly-stored explosives, where the company had a
policy requiring employees to report dangerous conditions to
management. Id. at 168–69. The Commission explained that
the complainant was a security guard whose “essential duty”
was reporting security breaches. Id. at 173; see also id.
(“Pack’s failure to perform the essence of his job, that of
                               21
reporting security breaches, exposed other miners to the risk of
injury, and it was that breach that cost him his job.”). The
Commission also stressed that the company’s “policy only
required employees to report dangerous conditions to the
company, and contained no instructions or prohibitions as to
employees’ actions vis-a-vis MSHA.” Id. In contrast, the
Awareness Meetings specifically addressed the MSHA
complaint process, stating that miners must make the same
report to management, and generally discouraged miners from
filing complaints with the agency. The chilling effect of
Petitioners’ presentations and the failure to protect miner
anonymity clearly outweighed any legitimate business interest
the policy would have achieved.

   C. We Decline to Decide Whether the Franks Test is
      the Proper Test for Interference Claims

     It is beyond dispute that the Commission’s finding of
interference in this case was supported by substantial evidence
under any applicable test construing Section 105(c)(1).
Petitioners argue that Franks is not a valid test for interference
claims because it fails to adhere to the plain language of Section
105(c)(1), which, according to Petitioners, requires proof of an
operator’s motivation to interfere with protected rights. In
asking this court to account for motive, Petitioners cite a test
applied by an ALJ in Pepin v. Empire Iron Range Mining
Partnership, 38 FMSHRC 1435 (2016), under which

    the Secretary must show that (1) the [mine operator’s]
    actions 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 that
    (2) such actions were motivated by the exercise of
    protected rights.
                                22

Id. at 1453–54 (footnote omitted).

     Even assuming that Petitioners preserved this objection,
and without passing on the validity of the test set forth in Pepin,
Petitioners cannot possibly prevail given the substantial
evidence that the Awareness Meetings were motivated by the
miners’ exercise of Section 103(g) rights. Both the ALJ and the
Commission rejected Petitioners’ argument that the sole
purpose of the presentations was to promote cooperation
between miners and management. Substantial evidence
supports their determinations.

      Following Petitioners’ acquisition of the mines, workers
reported dozens of safety issues to MSHA, leading to numerous
citations. The Awareness Meetings laid bare Murray’s
resentment of those complaints. Murray explicitly criticized the
volume of confidential Section 103(g) complaints. At oral
argument, counsel for Petitioners took the position that Murray
was prompted to hold the Awareness Meetings because miners
were filing Section 103(g) complaints that, in Petitioners’ view,
had no safety merit, see Oral Argument at 10:34–12:33, and
were “being used to get back at management,” e.g., J.A. 497
(formatting omitted). But the Mine Act protects miners who
file complaints when they have “reasonable grounds to
believe” a violation exists, 30 U.S.C. § 813(g)(1), even if the
miner is ultimately incorrect. Furthermore, Petitioners’ policy
applied across the board to all Section 103(g) filings, not just
ones claimed to be wholly meritless or pretextual. And to the
extent that there was no safety merit to the complaints,
Petitioners had no safety interest in having the miners report
their complaints to management. The record makes it clear that
Petitioners, in stating that the way miners had made complaints
threatened their job survival, “were trying to intimidate miners
from using section 103(g).” McGary II, 38 FMSHRC at 2021.
                               23
As the ALJ explained, “While Murray stated that he had no
intention to interfere with miners’ rights, the statement had
little force when considered in the context of the rest of
Murray’s speech.” McGary I, 37 FMSHRC at 2606.
Accordingly, both the ALJ and the Commission reasonably
described Murray’s statements as “calculated to discourage
miners from using the MSHA complaint process.” Id. at 2608;
McGary II, 38 FMSHRC at 2021.

     Because the Awareness Meetings were motivated by the
filing of Section 103(g) complaints, the facts of this case do not
require us to review the Franks test for interference claims. See
McGary II, 38 FMSHRC at 2012 n.11 (Althen and Young,
Comm’rs) (finding it unnecessary to settle upon a test for
interference in this case because applying Franks or Pepin
would yield the same result).

      Moreover, in the proceedings below, Petitioners never
objected to the Franks test as failing to account for the
operator’s motive. See id. at 2028 n.22 (Cohen, Comm’r)
(applying Franks because Petitioners did not challenge it in the
proceedings before the ALJ and the issue was not briefed).
Under the Mine Act, if a party fails to bring a challenge before
the ALJ, it is forfeited before the Commission except for good
cause shown. See 30 U.S.C. § 823(d)(2)(A)(iii). And “[n]o
objection that has not been urged before the Commission shall
be considered by the court, unless the failure or neglect to urge
such objection shall be excused because of extraordinary
circumstances.” Id. § 816(a)(1). These statutory requirements
“ensure that the Commission has the first opportunity to correct
its own errors” and “advance the efficient disposition of
litigation.” Jones Bros., Inc. v. Sec’y of Labor, 898 F.3d 669,
673 (6th Cir. 2018).
                               24
     In a footnote in their post-hearing brief to the ALJ, and in
their reply brief before the Commission, Petitioners called into
question Franks’ precedential value. See J.A. 160 n.7, 321–23.
But at no point did they ask the Commission to apply a test
other than Franks to account for motive. On the contrary,
Petitioners repeatedly asserted that proof of an operator’s intent
is not necessary to establish interference under Commission
precedent. See J.A. 158–60, 189, 216–17, 336. Without a
consistent, clearly-articulated position by Petitioners, we
decline to address their belated challenge to the Franks test.

    For these reasons, we uphold the Commission’s
conclusion that Petitioners violated Section 105(c)(1) of the
Mine Act by interfering with miners’ rights to make
anonymous complaints to MSHA under Section 103(g).

   D. The ALJ Properly Considered the Statutory
      Criteria for Monetary Penalties

     Petitioners take issue with the ALJ’s assessment of
$20,000 per violation and the Commission’s failure to review
it. Under the Mine Act, the Commission is required to consider
six factors before imposing monetary penalties:

    the operator’s history of previous violations, the
    appropriateness of such penalty to the size of the
    business of the operator charged, whether the operator
    was negligent, the effect on the operator’s ability to
    continue in business, the gravity of the violation, and
    the demonstrated good faith of the person charged in
    attempting to achieve rapid compliance after
    notification of a violation.

30 U.S.C. § 820(i).
                              25
      According to Petitioners, the ALJ did not properly address
all six factors and overlooked mitigating evidence, including
the lack of previous interference violations at the mines; the
absence of any attempt to enforce the reporting policy;
evidence relevant to good-faith abatement of the violation;
their compliance with the notice-posting requirement that the
ALJ ordered in her initial decision; and their good-faith basis
for requesting that miners report safety issues. These
arguments are unpersuasive.

     The ALJ acknowledged that the mines had no history of
interference violations. McGary III, 38 FMSHRC at 2698.
With respect to good-faith abatement, she further noted that
Petitioners had not investigated or disciplined any miners for
violating the reporting requirement. Id. But there was no
evidence that Petitioners had taken any steps to rescind the
policy. Id. Moreover, the ALJ found the gravity of the violation
particularly significant because Murray, the company’s CEO,
announced the policy during meetings that all miners were
required to attend; and the messages conveyed in the
presentations reasonably could have been, and likely were,
understood as threats to the miners’ employment. Id.
Additionally, the ALJ determined Petitioners were negligent in
the intimidating and threatening manner in which the policy
was presented. Id. And, for the reasons stated above, any good-
faith basis Petitioners may have had for requesting that miners
inform management about safety issues did not outweigh the
harm caused by the Awareness Meetings. There is no doubt
that the ALJ’s assessment of penalties was proper under 30
U.S.C. § 820(i). See Cordero Mining LLC v. Sec’y of Labor,
699 F.3d 1232, 1238–39 (10th Cir. 2012) (upholding a penalty
where the ALJ considered each of the six statutory factors,
while choosing to focus on certain ones, and substantial
evidence supported the factual findings).
                                26
     Petitioners also claim that the Commission erred in failing
to review the ALJ’s decision, but this argument is misguided.
Under the Act, “[r]eview by the Commission shall not be a
matter of right but of the sound discretion of the Commission.”
30 U.S.C. § 823(d)(2)(A)(i); see also id. § 823(d)(2)(B)
(“[T]he Commission may in its discretion . . . order the case
before it for review but only upon the ground that the decision
may be contrary to law or Commission policy, or that a novel
question of policy has been presented.”). If the Commission
declines review, the ALJ’s decision becomes the final decision
of the Commission 40 days after its issuance. Id. § 823(d)(1).
This court has jurisdiction over final orders. See id. § 816(a)(1).
In these circumstances, we review the ALJ’s decision as the
final order of the Commission, not the Commission’s refusal to
grant review.

    E. Petitioners Forfeited Their Challenges to the
       Personal Reading Requirement

     Before this court, Petitioners make two challenges to the
order requiring Murray to read the ALJ’s prepared statement to
all miners. They argue that this remedy constitutes
government-compelled speech, compromising Murray’s First
Amendment rights. And, relying on this court’s case law under
the NLRA, they claim that the Commission lacks the authority
under the Mine Act to order the reading of a prepared statement
because that remedy is punitive rather than remedial. However,
Petitioners forfeited these objections by failing to raise them in
the first proceeding before the ALJ, in their first appeal to the
Commission, and again when the case was remanded to the
ALJ. See 30 U.S.C. § 823(d)(2)(A)(iii); id. § 816(a)(1).

      Petitioners could have objected to the reading during the
initial proceeding before the ALJ, as the Secretary’s complaint
requested that a company official be required to read a notice
                               27
regarding the violations. When the Secretary requested at the
hearing that Murray himself be ordered to read the statement,
counsel for Petitioners vaguely protested that the remedy was
“over the top,” J.A. 374, but then entirely failed to address the
issue in their post-hearing brief.

     In their first petition for discretionary review, Petitioners
did not challenge the conclusion by the ALJ that, based on this
court’s NLRA precedent, she had authority under the Mine Act
to order Murray to read a statement to all miners. See
McGary I, 37 FMSHRC at 2608. They objected only to the
ALJ’s failure to indicate who would prepare and approve it.
Their sole First Amendment claim concerned the ALJ’s
consideration of Petitioners’ federal court lawsuit and did not
mention the reading requirement. Then, in their opening brief
to the Commission, Petitioners made no additional arguments
concerning the personal reading except to note that it was
“improper” because the recording of Murray’s remarks at an
Awareness Meeting was improperly admitted into evidence.
J.A. 226. In their reply brief, Petitioners simply asked that
Murray’s statement be identical to the notices posted at the
mines.

     Petitioners again failed to raise their constitutional and
statutory challenges after the case was remanded to the ALJ.
Asking that Murray be ordered to read only the notice that had
already been posted at the mines, they explained that “any
additional language inserted by the Secretary would have the
aim of being punitive” and thereby “go beyond the remedial
aim of the Mine Act.” J.A. 349–50. But at no point did they
address any of this court’s case law under the NLRA – on
which the ALJ relied in her first decision – to object to the
allegedly punitive nature of the remedy. Moreover, their
argument focused on the possibility that the Secretary would
dictate the substance of Murray’s statement, but the ALJ
                               28
mooted that concern by rejecting the Secretary’s proposal and
drafting her own statement. See McGary III, 38 FMSHRC at
2699–700. In a footnote, Petitioners mentioned that a
compelled reading “implicates First Amendment protections”
and “could potentially constitute compelled speech.” J.A. 351
n.6. But this was hardly sufficient to put the ALJ on notice that
Petitioners were raising a new constitutional argument. See
CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (“A
footnote is no place to make a substantive legal argument on
appeal; hiding an argument there and then articulating it in only
a conclusory fashion results in forfeiture.”).

     We also reject Petitioners’ contention that the ALJ’s
second decision “announced an entirely new remedy
implicating a new set of constitutional and statutory
considerations.” Pet’rs’ Br. 44. Petitioners’ belated argument
to this court that the Mine Act does not allow the Commission
to order a compelled reading could easily have been raised as
soon as the reading remedy was proposed. And to the extent
Petitioners were concerned that a statement drafted by the
Commission would constitute compelled speech in violation of
the First Amendment, they could have raised this argument
when they initially objected to the lack of clarity as to who
would prepare and approve the statement. Petitioners had
ample opportunity in the proceedings before the ALJ and the
Commission to raise the constitutional and statutory challenges
that they now press before this court, but failed to do so.

                      III. CONCLUSION

     For the reasons set forth above, we deny the petition for
review.

                                                    So ordered.
