Michael Wilson, Justin Greenwell and Brandon Shemwell v. Armstrong Coal Company, Inc. and Brandon Shemwell v. Armstrong Coal Company, Inc. and Justin Greenwell v. Armstrong Coal Company, Inc. (Commission decision, July 12, 2018)

Plain-English summary

Three miners' representatives filed interference complaints against Armstrong Coal. An ALJ found interference in the Wilson, Greenwell, and Shemwell joint case and in Greenwell's separate case, but rejected Shemwell's separate claim, prompting review petitions from Armstrong and Shemwell. After Armstrong and its affiliates entered Chapter 11 bankruptcy, the parties reached a confidential settlement authorized by the bankruptcy court. The Commission approved the agreement, ordered Armstrong to make the confidential monetary payments, and dismissed all three proceedings. Two Commissioners emphasized that discrimination settlements, including confidentiality and non-admission terms, should be reviewed for fairness and the public interest, while finding no public-interest risk here because Armstrong had ceased operations, sealed the mine, and sold its assets.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(c)(3) and 820(k)
• Outcome: The confidential settlement was approved, monetary payments were ordered, and all three discrimination proceedings were dismissed.
• Key point: The Commission may examine private miner-discrimination settlements for public-interest concerns, including confidentiality terms, even when the Secretary is not a party.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

MICHAEL WILSON, JUSTIN GREENWELL:     

and BRANDON SHEMWELL                     :         Docket No. KENT 2015-673-D

:                          

v.                                              
:        

:

ARMSTRONG COAL
COMPANY, INC.     :

:        

:

BRANDON SHEMWELL                              :         Docket No. KENT 2016-96-D

:                          

v.                                              
:        

:

ARMSTRONG COAL
COMPANY, INC.     :

:        

:

JUSTIN GREENWELL                                   :         Docket No. KENT 2016-108-D

:                          

v.                                              
:        

:

ARMSTRONG COAL
COMPANY, INC.     :

BEFORE: Althen, Acting
Chairman; Jordan, Young, and Cohen, Commissioners

DECISION APPROVING SETTLEMENT

BY: Althen, Acting Chairman,
and Jordan, Commissioner

These proceedings
arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (“Mine Act” or “Act”). They involve complaints of interference filed by Michael Wilson, Justin Greenwell, and Brandon Shemwell (“Complainants”) against Armstrong Coal Company (“Armstrong”) pursuant to section 105(c)(3) of the Act. 30 U.S.C. § 815(c)(3).

After
a hearing on the merits, an Administrative Law Judge concluded that Armstrong had interfered with the Complainants’ rights as miners’ representatives with respect to the claims in Docket Nos. KENT 2016-108-D and KENT 2015-673-D, but found no unlawful interference with respect to Shemwell’s claim in Docket No. KENT 2016-96-D. 39 FMSHRC 1072, 1094-96 (May 2017) (ALJ). Armstrong and Shemwell, respectively, filed petitions seeking review of the Judge’s findings. The Commission granted review on June 15, 2017.

On November 1, 2017, Armstrong Energy and its affiliates (including the Respondent) initiated proceedings before the United States Bankruptcy Court for the Eastern District of Missouri (“Bankruptcy Court”) under Chapter 11 of the United States Bankruptcy Code.      11 U.S.C. § 101 et seq. On February 2, 2018, the Bankruptcy Court entered an order confirming Armstrong’s bankruptcy plan and authorizing Armstrong to settle certain outstanding causes of action, including the proceedings at issue.

Accordingly,
the parties have filed a joint motion to approve settlement. Pursuant to the agreement, the terms of the settlement shall be confidential.

Having
reviewed the terms of the proposed settlement agreement, the Commission grants the parties’ joint motion for approval of settlement. [1] Armstrong is hereby ordered to make monetary payments to Complainants in accordance with the terms of the Settlement Agreement. These proceedings are dismissed.

/s/
William I. Althen

William I. Althen, Acting Chairman

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

Commissioners Young and
Cohen, concurring:

We
join our colleagues in approving the settlement, without qualification. We write separately due to the unusual posture of this case.

Typically,
the Secretary is a party in cases brought before us under the Act, and settlement motions presented to the Commission by the Secretary include language excepting proceedings under the Mine Act from terms limiting the operator’s liability. While the Secretary is not a party to this settlement, parties in proceedings brought under section 105(c)(3) should recognize that the Commission has held that we have a duty to review and approve settlements of discrimination cases, including provisions unrelated to penalties. Sec’y of Labor on behalf of Maxey v. Leeco, Inc. , 20 FMSHRC 707 (July 1998).

The
settlement agreement contains, among other provisions, a confidentiality clause.  We note that even though this agreement is not within the scope of section 110(k) of the Act,  30 U.S.C. § 820(k), and the Secretary is not a party to the agreement, the Commission should review settlements of cases brought under section 105(c)(3) under the standard we have established for approval of settlements, i.e. whether the settlement is fair, reasonable, appropriate under the facts, and protects the public interest. American Coal Co . ,   38 FMSHRC 1972, 1982 (Aug. 2016). The Commission thus should especially review non-monetary settlement terms, including non-admission-of-liability clauses and confidentiality clauses, to determine whether they may improperly limit the operation of the Act in contravention of the public interest.

In
the present case, the operator has ceased operations, closed and sealed the mine, entered bankruptcy proceedings and sold the mine’s assets. There is thus not a risk of potential harm to the public interest.

/s/
Michael G. Young

Michael G.
Young, Commissioner

/s/ Robert
F. Cohen, Jr.

Robert F.
Cohen, Jr., Commissioner

[1] Acting Chairman Althen notes his colleagues’
suggestion in their concurrence that the standard for review of a penalty settlement under section 110(k) of the Act, 30 U.S.C. § 820(k), governs a settlement by a miner of his/her own section 105(c)(3) case. A section 105(c)(3) case is litigated by an individual miner at his/her own cost and expense and “in his own behalf.” He wonders, therefore, whether the Commission or a Judge could substitute their judgment concerning whether a settlement is fair and reasonable for the judgment of the complaining miner who wants to settle, thereby requiring him to continue his litigation. Separately, could the Commission or a Judge reject a private settlement as not in the “public interest” and compel a miner to continue his case at his cost and risk of loss? Because these questions are not at issue here, Acting Chairman Althen only expresses a concern. He would suggest full briefing and argumentation of these issues before a Judge or the Commission rejects a settlement because it was not “fair” to the miner who wants it or the settlement of the miner’s action on his own behalf fails to achieve a public interest.