Michael Wilson v. Armstrong Coal Company, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

Armstrong Coal replaced a posted list of miners' representatives with a version that omitted every representative's address and telephone number, including Michael Wilson's. Judge Kenneth R. Andrews held that removing the contact information made confidential safety reporting harder and therefore tended to interfere with protected rights. Armstrong offered no legitimate and substantial reason that outweighed that harm, and the Judge found Wilson's filing timely despite MSHA's notice error. He granted summary decision to Wilson and ordered Armstrong to post the decision for 30 days, train management on miners' representatives' rights, and comply with the posting rules at all active operations. The Judge retained jurisdiction because attorney fees, costs, and any civil penalty still had to be resolved.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 40.3 and 40.4; 30 U.S.C. § 815(c)(1)
• Outcome: Wilson received summary decision on interference liability and interim relief, while monetary relief and any civil penalty remained pending.
• Key point: Removing representatives' phone numbers and addresses can interfere with miners' rights by burdening private and confidential reporting of safety concerns.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH

REVIEW COMMISSION

OFFICE OF

ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,

SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:

412-920-7240 / FAX: 412-928-8689

MICHAEL WILSON,

Complainant,

v.

ARMSTRONG COAL COMPANY, INC.,

Respondent.

DISCRIMINATION PROCEEDING

Docket No. KENT 2016-0319-D

MSHA Case No. MADI-CD-2016-02

Mine: Parkway Mine

Mine ID: 15-19358

ORDER GRANTING

COMPLAINANT’S MOTION FOR SUMMARY DECISION

ORDER DENYING

RESPONDENT’S MOTION FOR SUMMARY DECISION

This proceeding is properly before me upon a

Complaint of Interference (“Complaint”) filed by counsel for Michael Wilson

(“Wilson” or “Complainant”) on April 18, 2016, pursuant to section 105(c)(3) of

the Federal Mine Safety and Health Act of 1977 (“the Act” or “Mine Act”). 30

U.S.C. § 815(c)(3). Armstrong Coal Company, Inc., (“Armstrong”) is subject to

the Act and to the jurisdiction of the Federal Mine Safety and Health Review

Commission (“Commission”). The Administrative Law Judge (“ALJ”) has the

authority to review this case and issue a decision.

The Record

Attached as exhibits to the Complaint filed by

Wilson’s counsel on October 29, 2015, were copies of the original

Discrimination Complaint, MSHA Form 2000-123, and Discrimination Report, MSHA

Form 2000-124, (Exhibit A); A letter from MSHA to Wilson dated March 18, 2016,

declining to file a discrimination case with the Commission, with distribution

to Armstrong and to counsels Tony Oppegard and Wes Addington (Exhibit B); and

Mine Citation No. 9045905, issued to Armstrong on October 21, 2015, under 30

CFR §§ 40.4, 40.3 for failure to post a listing of Miners’ Representatives that

included their addresses and telephone numbers (Exhibit C).

On July 26, 2017, Respondent Armstrong, by

counsel, filed a Motion for Summary Disposition pursuant to Commission

Procedural Rule 67, 29 CFR § 2700.67, requesting that the case be dismissed as

a matter of law. (“Armstrong’s Motion”). Attached were five exhibits:

Exhibit 1: Letter

of October 29, 2015, from MSHA to Parkway mine personnel transmitting the

discrimination complaint, with a copy of the Discrimination Report only, MSHA

Form 2000-124;

Exhibit 2: Letter

of February 17, 2016, from MSHA to Michael Wilson declining to file a

discrimination case with the Commission with distribution of a copy only to

Armstrong;

Exhibit 3: Emails

between attorneys on March 15, 2017;

Exhibit 4: A

copy of mine information from the MSHA Mine Data Retrieval System showing the

status of the Parkway mine as abandoned as of April 4, 2017;

Exhibit 5: Affidavit

of Steven James DeMoss dated July 24, 2017.

In early August 2017 the parties in the instant

case, and representatives in several other discrimination cases scheduled for

hearing in the same time frame, requested a continuance based on pending cross-motions

for summary decision, the desirability of settlement discussions, and to

complete discovery in two of the dockets. On August 8, 2017, the scheduled

hearings were continued.

On August 19, 2017, Wilson’s Response in

Opposition to Armstrong Coal’s Motion for Summary Decision (“Wilson’s

Opposition”) was filed. Attached were eight exhibits:

Exhibit 1: Another

copy of the Citation No. 9045905;

Exhibit 2: Responses

of Michael Wilson to Armstrong Coal’s 1 st Request for Admissions,

served via electronic mail on July 10, 2017;

Exhibit 3: Answers

of Michael Wilson to Armstrong Coal’s 1 st set of Interrogatories,

served via electronic mail on July 10, 2017;

Exhibit 4: Responses

of Michael Wilson to Armstrong Coal’s 1 st request for Production of

Documents, served via electronic mail on July 10, 2017;

Exhibit 5: Supplemental

Response of Michael Wilson to Armstrong Coal’s 1 st Request for

Production of Documents served via electronic mail on August 2, 2017;

Exhibit 6: Notice

of Deposition of Michael Wilson;

Exhibit 7: Notice

of Deposition of Steve DeMoss; and

Exhibit 8: Listing

of Armstrong mines from MSHA’s Mine Data Retrieval System as of August 19,

2017.

On August 21, 2017, Armstrong’s Reply to

Wilson’s Response in Opposition to Armstrong’s Motion for Summary Disposition (“Armstrong’s

Reply”) was filed. This was followed on August 22, 2017, by the Sur-Reply of

Michael Wilson (“Sur-Reply”). By email on September 20, 2017, counsel for

Wilson announced the intention to file a cross-motion for summary decision.

Wilson’s Cross-Motion for Summary Decision (“Cross-Motion”)

was filed on October 6, 2017. Attached were the depositions of Steven James

DeMoss (“Dep. DeMoss”) and Michael “Flip” Wilson (“Dep. Wilson”). Also attached

were eleven exhibits; only the following had not been attached to other

filings:

Exhibit 4: Statement

of Interview, Michael “Flip” Wilson, dated November 2, 2015;

Exhibit 5: Armstrong’s

Response to Complainant’s First Set of Interrogatories served electronically on

July 13, 2017;

Exhibit 6: List

of Miners Representatives designated by MSHA Form 2000-238 dated May 19, 2014;

Exhibit 8: List

of Miners Representatives with handwritten notation “Per verification by MSHA

10/16/15”;

Exhibit 9: Representation

of Miners Designation Form of Mike Wilson, MSHA Form 2000-238;

Exhibit 10:

Letter dated October 16, 2015, from MSHA District Manager to Armstrong listing

the names of Miners Representatives for Armstrong Coal Company operations,

including the Parkway Mine; and

Exhibit 11:

Letter dated February 28, 2014, to Armstrong with the determination that Mike

Wilson had been properly and lawfully designated as a miners’ representative at

the Parkway Mine.

Armstrong’s Response to Wilson’s Cross-Motion

for Summary Decision (“Response to Cross-Motion”) was served electronically on

October 16, 2017. Wilson’s Reply to Armstrong’s Response to Cross-Motion for

Summary Decision (“Wilson’s Reply”) was served via electronic mail on October

25, 2017.

Issues

The pleadings and evidence of record raise the

following issues:

·         

Timeliness of responses to discovery requests for admissions;

·         

Timeliness of filing the Complaint of Interference;

·         

Whether the relief sought is moot;

·         

The legal test for interference; and

·         

Whether Respondent interfered with Complaint’s statutory rights

as a Miners’ Representative.

Relief Sought

In the Discrimination Report of October 29, 2015,

Complainant requested:

I want Armstrong

Coal to be fined for violating section 105(c); I want the FMSHRC to issue a

cease and desist order requiring the company to stop interfering with my

statutory rights as a representative of miners; and I want all management

personnel at the Parkway mine to have to take training from MSHA on the

statutory rights of miners’ reps.

Complaint, Exhibit A, P. 2.

In the Complaint of April 18, 2016, filed by

Wilson’s counsel the relief requested was:

1. Find

that the action of Armstrong Coal in removing the addresses and telephone

numbers of the miners’ reps at the Parkway mine, and the company’s failure to

correct this error when it was brought to its attention by Wilson, interfered

with Wilson’s statutory rights as miners’ reps and violated the Mine Act’s

anti-discrimination provision.

2. Order

Armstrong’s mine management to keep current the contact information for all

miners’ reps at the Parkway mine, as required by 30 CFR §40.4.

3. Impose

a civil money penalty against Armstrong for its act of interference found

herein.

4. Order

Armstrong Coal to reimburse Wilson for all expenses incurred in the institution

and litigation of this case, including attorney fees.

5. Order

Armstrong Coal to post the Commission’s decision in this case at the Parkway

mine – and at all of Armstrong’s other mines in western Kentucky – in

conspicuous, unobstructed places where notices to employees are customarily

posted, for a period of 60 consecutive days.

6. Order

any additional relief which may be necessary to make Wilson whole, and such

other relief as the Commission deems just and proper.

Complaint, p. 5.

Subsequently, the Parkway mine was abandoned as

of April 4, 2017. (Armstrong’s Motion, pp. 1, 3-5; Exhibits 4, 5). The relief was

then amended:

·         

That Armstrong post the Court’s decision at all of its other

mines and facilities;

·         

That DeMoss and other Armstrong management personnel be required

to take training in the statutory rights of miner’s reps;

·         

That Armstrong comply with the requirements of 30 CFR §40.4 at

all of its mining entities (this could also be styled as a “cease and desist”

order);

·         

That Armstrong reimburse Wilson for all expenses incurred in the

institution and litigation of this case, including attorney fees; and

·         

That Armstrong pay a civil penalty for its violation of § 105(c)(1).

Wilson’s Response, pp. 6, 7.

Applicable Law and Regulations

Section 105(c) of the Mine Act provides:

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, representative of miners or applicant for

employment in any coal or other mine subject to this Act because such miner,

representative of miners or applicant for employment has filed or made a complaint

under or related to this Act, including a complaint notifying the operator or

the operator’s agent, or the representative of the miners at the coal or other

mine of an alleged danger or safety or health violation in a coal or other

mine, or because such miner, representative of miners or applicant for employment

is the subject of medical evaluations and potential transfer under a standard

published pursuant to section 101 or because such miner, representative of

miners or applicant for employment has instituted or caused to be instituted

any proceeding under or related to this Act or has testified or is about to

testify in any such proceeding, or because of the exercise by such miner,

representative of miners or applicant for employment on behalf of himself or

others of any statutory right afforded by this Act.

30 U.S.C. § 815(c)(1) ( emphasis added ).

Part 40, Representative of Miners provides, in

pertinent part:

§40.4 Posting at mine.

A copy of the

information provided the operator pursuant to §40.3 of this part shall be posted

upon receipt by the operator on the mine bulletin board and maintained in a

current status.

§40.3 Filing procedures.

(1)    The name, address and

telephone number of the representative of miners.

(5) The names,

addresses, and telephone numbers, of any representative to serve in his

absence.

30 C.F.R. §§ 40.3 (a)(1)(5), 40.4.

Summary Decision Standard

Commission Procedural Rule 67 provides, in

pertinent part:

Grounds . A

motion for summary decision shall be granted only if the entire record,

including the pleadings, depositions, answers to interrogatories, admissions,

and affidavits, shows:

(1)    That there is no

genuine issue as to any material fact; and

(2)    That the moving party

is entitled to summary decision as a matter of law.

29 C.F.R. § 2700.67(b).

A material fact

is defined as “a fact that is significant or essential to the issue or matter

at hand.” Black’s Law Dictionary (9 th ed. 2009, fact ).

The record herein must be considered “in the light most favorable to…the party

opposing the motion.” Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9

(Jan.2007) (citations omitted). Any inferences drawn from the facts contained

in the record must also be viewed in the light most favorable to the party

opposing the motion. Id . “There is a genuine issue of material fact if

the nonmoving party has produced evidence such that a reasonable factfinder

could return a verdict in its favor.” Greenberg v. Bellsouth Telecommunications,

Inc ., 498 F.3d 1258, 1263 (11 th Cir. 2007) (citation omitted).

I. Timeliness of

Response to Discovery Request for Admissions

On June 13, 2016, Respondent served

discovery requests upon attorneys for Complainant, which included requests for

admissions. One request was: “Request No. 2: Admit that you and/or your

attorney(s) received a letter from MSHA dated February 17, 2016 regarding

MSHA’s investigation of your Complaint.” (Armstrong’s Motion, p. 2).

On February 27, 2017, Respondent’

counsel notified, via electronic mail, Complainant’s counsel that the discovery

responses were not received. ( Id .). After receiving no response,

Respondent’s counsel again inquired on March 15, 2017, and Counsel for

Complainant responded: “Sorry for the delay in getting back with you…Somehow

your discovery got misplaced (and forgotten), but I have them now…I will get

our answers/responses to you next week.” ( Id; Exhibit. 3).

Complainant responded to

Respondent’s discovery requests, including the 1 st Request for Admissions,

on July 10, 2017. (Wilson’s Opposition, Exhibit 2; Armstrong’s Motion, p. 2). The

response to Request No. 2 was: “Wilson is without sufficient knowledge to admit

or deny this request for admission. Therefore, it is denied.” (Wilson’s

Opposition, p. 4; Exhibit 2.).

Contentions

Respondent contends that

Complainant failed to timely respond to the requests for admission of June 13,

2016, about the date the first MSHA denial letter was received, and thus

receipt of the February 17, 2016, letter must be deemed admitted as of July 8,

2016, under 29 CFR § 2700.58(b) and Rule 36(a)(3) of the Federal Rules of Civil

Procedure. (Armstrong’s Motion, p. 3; Armstrong’s Reply).

Complainant argues that while its

discovery request answers were untimely, they were served more than two weeks

before Respondent filed its motion for summary decision, that Respondent never

filed a motion to compel, that Respondent was not prejudiced by the delay, and

that depositions were taken after Armstrong’s Motion for Summary Disposition

was filed. (Wilson’s Opposition, p. 4, 5). Complainant also argues the late

discovery response is not an admission under the Commission’s Procedural Rule

58(b), since the Rule also provides that the Judge may order a shorter or

longer time period for responding. (Sur-Reply, pp. 1, 2).

Analysis

The Commission has held that summary

decision is an extraordinary procedure, and the judge should view the record in

the light most favorable to the non-moving party. Energy West Mining Co.,

16 FMSHRC 1414, 1419 (July 1994); Hanson Aggregates New York, Inc. , 29

FMSHRC 4, 9 (Jan. 2007).

Commission Procedural Rule 58(b)

governs requests for admission in §105(c) proceedings. 29 C.F.R. § 2700.58(b). Rule

58(b) does not state that requests for admission are deemed admitted if there

is not a timely response. In fact, Rule 58(b) provides that a judge may order a

shorter or longer period of time for response. Thus, it is within the judge’s

discretion to determine when a party may respond. Id. This provision of

the Rule gives Commission ALJs flexibility in making determinations on the

basis of fairness; the Commission’s Procedural Rule is adequate on its own. Here,

neither party requested leave of the court to shorten or lengthen the time for

this discovery. Instead, after the Complainant’s response, Respondent moved for

summary disposition, depositions were taken, and the above-listed pleadings

were filed. It is unnecessary to look to the Federal Rules of Civil Procedure

to fill in a perceived “gap” in Commission Rule 58(b). Since either party may

petition the Court for a shorter or longer time for a response, and as a result

a date certain could be established by an order of the Court, there is no need

for a “deemed” admitted provision in the Rule. Accordingly, no admission

regarding receipt of the letter of February 17, 2016, will be deemed by

Complainant’s late response to the request for admissions.

II. Timeliness of

Filing the Complaint of Interference

The Discrimination Complaint of October 29, 2015,

MSHA Form 2000-123, Section E, contained this instruction:

If you desire that a

copy of all correspondence addressed to you from MSHA be provided to a

representative (e.g. Union representative, attorney, etc.) please give his/her

name and address to the right.

To the right of this instruction were listed the names,

addresses and telephone numbers of Wilson’s co-counsel, Tony Oppegard, Esq.,

and Wes Addington, Esq. (Complaint, Exhibit A, p. 1).

The same day, MSHA by letter

notified Legal Counsel at the Parkway Mine of Discrimination Complaint Case

Number MADI-CD-2016-02 . (Armstrong’s Motion, Exhibit 1, p. 1). Attached

to this letter was Form 2000-124, the Complaint Report signed by attorney Tony Oppegard

on behalf of Michael Wilson. ( Id., p.2).

On February 17, 2016, MSHA sent a

form letter to Wilson that contained the following notices:

Based on a review of

the information gathered during the investigation, MSHA does not believe that

there is sufficient evidence to establish by a preponderance of the evidence

that a violation of Section 105(c) occurred. For that reason, the Secretary of

Labor will not file a discrimination case with the Federal Mine Safety and

Health Review Commission (“Commission”) in this matter.

However, you

continue to have the right to file a discrimination case on your own behalf

with the Commission. If you decide to file your own case, you must do so within

30 days of this letter by sending a discrimination complaint to the Commission…

A copy of this letter was sent to Armstrong Coal Company.

(Armstrong’s Motion, Exhibit 2). Wilson was without sufficient knowledge to

admit or deny whether he or his attorney(s) received the February 17, 2016,

letter. (Wilson’s Opposition, Exhibit 2, p.1).

On March 18, 2016, a second form letter

was sent to Wilson containing the same information as the letter of February

17, 2016, as set forth above. Copies of this letter were sent to Armstrong Coal

Company, Tony Oppegard, Esq., and Wes Addington, Esq. (Complaint, Exhibit B). This

letter was received by Wilson’s attorney on March 21, 2016. (Wilson’s

Opposition, Exhibit 3, p. 4).

On April 18, 2016, Wilson, through counsel,

filed his Complaint of Interference. (Complaint, pp. 1-5.).

Contentions

Respondent contends Wilson’s

complaint was untimely filed on April 18, 2016, approximately 60 days after the

MSHA letter of February 17, 2016, declining to prosecute this case. (Armstrong’s

Motion, pp. 1-2).

Complainant argues his filing was

timely because a second MSHA negative determination letter was sent dated March

18, 2016, and this letter was received by his attorney on March 21, 2016.

(Wilson’s Opposition, p. 4; Exhibit 3, p. 4).

Analysis

The failure of MSHA to provide proper notice of

the Secretary’s negative Section 105(c) determination to Wilson’s attorney by

the February letter was a mistake. This was most likely an inadvertent

administrative error, since the Discrimination Complaint of October 29, 2015,

clearly listed Wilson’s co-counsel in Section E of the form as the attorneys to

receive a copy of “all correspondence addressed to you from MSHA”. Wilson’s

attorney was first notified of MSHA’s negative 105(c) determination when he

received the March 18, 2016 letter on March 21, 2016. Responding to this

notice, the Complaint of Interference was filed on April 18, 2016. This is

within the 30 day time limit for filing under Section105(c)(3). Thus, in

viewing the facts in a light most favorable to Complainant, the complaint was

timely filed.

Assuming arguendo that the

first, February 17, 2016, letter controls as the date of notice, the factual

circumstances nevertheless establish that the 30 day delay in filing was

excusable. The Act’s legislative history instructs that the time limits are not

jurisdictional. S. Rep. No. 95-181, 37 (1977), reprinted in Senate

Subcomm. on Labor, Comm. On Human Res., Legis. Hist. of the Fed. Mine Safety

and Health Act of 1977 at 37 (1978). The Commission interprets the 105(c)

time limitations as non-jurisdictional and subject to equitable tolling, and

this interpretation has been upheld by the Tenth Circuit Court of Appeals .

Olson v. Fed. Mine Safety & Health Review Comm’n, 381 F.3d 1007, 1012

(10 th Cir. 2004). A failure to meet these filing time limitations

does not result in a dismissal absent material legal prejudice. Secretary of

Labor on behalf of Nantz v. Nally & Hamilton Enters. , 16 FMSHRC 2208,

2214-15 (Nov. 1994) citing Secretary of Labor on behalf of Hale v. 4-A Coal

Co. , 8 FMSHRC 905, 908 (June 1986). The decision to permit or reject an untimely

105(c) filing is determined on a case-by-case basis, “taking into account the

unique circumstances of each situation.” Morgan v. Arch of Illinois ,

21 FMSHRC 1381, 1386 (Dec. 1999) citing Hollis v. Consolidation Coal Co., 6

FMSHRC 21, 24 (Jan. 1984).

The Section 105(c)(3) filing period

can be equitably tolled when there are “justifiable circumstances” for a late

filing that do not cause prejudice. Morgan , at 1386 . Justifiable

circumstances have been found in instances of “ignorance, mistake, inadvertence,

and excusable neglect.” Perry v. Phelps Dodge Morenci, Inc. , 18 FMSHRC

1918, 1921-22 (Nov. 1996). However, if even if there is an adequate excuse for

late filing, material legal prejudice may require dismissal. Perry , 18

FMSHRC at 1921-22 citing Hale, at 908. Material legal prejudice must

“affect issues necessary to a meaningful opportunity to defend,” and can

include “tangible evidence that has since disappeared, faded memories, or

missing witnesses.” Farmer v. Island Creek Coal Co. , 13 FMSHRC 1226,

1231 (May 1991); Schulte v. Lizza Indus., Inc. , 6 FMSHRC 8, 13 (Jan.

1984).

Since the claimed filing delay was

due to an administrative error, even if the letter of February 17, 2016, controls

the date of notice, there were justifiable circumstances for such late filing. MSHA’s

administrative error was a circumstance that did justify the delay in filing

the discrimination complaint. While Wilson did not know whether his attorney

received the February letter, the fact remains that MSHA did not send notice of

the negative determination to Wilson’s attorney until the second letter was

sent in March. If the February letter had been distributed as required by the

names and addresses entered in the complaint form, then the 30 day limit would

have been tolled as Respondent contends. But there was a failure of proper,

written notice to Wilson’s legal representative until the second, March letter

was sent, apparently to correct the error of omission of the first, February

letter. If the 30 day limit were considered tolled, a delay of only 30 days is

nevertheless considered negligible. And, material legal prejudice by this short

delay has not been established by Respondent. No facts have been alleged

showing that witnesses cannot appear, evidence no longer exists, or that this

short delay has prejudiced Respondent’s meaningful opportunity to defend.

I find dismissal of the Complaint

of Interference on the basis of untimely filing is not warranted.

III. Whether the

relief sought is moot

The status of the Parkway Mine was

changed to abandoned on April 4, 2017. (Armstrong’s Motion, Exhibit 4). After that

date, there were no Miners’ Representatives for that mine, and no regulatory

postings on the bulletin board. ( Id ., Exhibit 5).

Contentions

Respondent contends that this

matter is moot because the Parkway mine has been abandoned, there is no

bulletin board, Complainant is no longer a Miners’ Representative at the mine,

Complainant and a number of former Parkway employees are no longer employed by

Armstrong, and the non-S&S citation has been paid. (Armstrong’s Motion, p.

4; Exhibits 1, 4, 5).

Complainant argues that Armstrong Coal is still

in operation, and Steve DeMoss (“DeMoss”) who was named in Wilson’s original

complaint is still employed as Manager of Safety at Armstrong’s Kronos mine.

(Wilson’s Opposition, p.6; Complaint, Exhibit A). Armstrong has five active

operations, and the relief sought can still be ordered. (Wilson’s Opposition,

pp. 6, 7; Exhibit 8). Further, upon a finding of interference, the case must be

referred to the Secretary of Labor for imposition of a civil penalty. (Id.,

p. 7).

Analysis

So long as any relief could potentially be

granted, this matter will not be considered moot. Armstrong has other active

coal operations, including the Kronos mine where DeMoss is employed as Safety

Manager. There is no evidence that postings could not be accomplished at the

active coal sites. Costs and attorney fees are capable of being determined. Indeed,

Respondent admits that the possibility of a civil penalty and attorney’s

fees remains in this matter. (Armstrong’s Reply, p. 2). Dismissal on the basis

that no relief could be granted is not warranted.

IV. Test for

Interference

The Commission has not settled on a single test

for interference violations. However, a two-part test was endorsed by two

Commissioners. Under this 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

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.

United Mine Workers of America obo Mark A. Franks and

Ronald M. Hoy v. Emerald Coal Resources, LP, 36 FMSHRC 2088, 2108 (Aug.

2014). This Franks test has been applied by the undersigned and other

Commission judges in interference cases. Lawrence Pendley v. Highland Mining

Co. & James Creighton, 37 FMSHRC 301 (Feb. 12, 2015)(ALJ Andrews); Scott

D. McGlothlin v. Dominion Coal Corp. , 37 FMSHRC 1256 (Jun. 11, 2015)(ALJ); Sec’y

of Labor obo Greathouse et. al. v. Ohio County Coal, 37 FMSHRC 2892 (Dec.

30, 2015)(ALJ).

One Commission judge has found that the word because

in section 105(c)(1) of the Act requires the complainant to prove the

interference alleged was motivated by the exercise of protected rights. Sec’y

of Labor obo Mindy S. Pepin v. Empire Iron Mining Partnership , 38 FMSHRC

1435, 1450-51, n. 11 (Jun. 6, 2016)(ALJ). Since under this view a motivational

intent must be shown, the second part of the test was changed to:

2)       Such

actions were motivated by the exercise of protected rights.

Id . at 1453-54.

Contentions

Respondent contends that the factual issue turns

on both what was done and why it was done, and there are no facts established

about the motive behind the removal of the phone numbers and addresses of the

Miners’ Representatives. (Armstrong’s Response, pp. 1-3). Also, since neither

DeMoss nor Wilson was told why the contact information was removed, Complainant

has not identified a factual intent or motivation on the part of anyone at

Armstrong. ( Id ., pp.2, 3). Further, to prove interference in this case,

the Pepin test must also be used. (Armstrong’s Response, pp. 6, 7).

Complainant argues a Miners’ Representative

need not prove a company’s motivation for interfering with his statutory rights

in order to prevail in an interference proceeding under the Mine Act, citing Secretary

of Labor o/b/o Gray v. North Star Mining & Brummett, 27 FMSHRC 1 (Jan. 2005).

Complainant, in effect, argues for application of the Franks test.

(Wilson’s Reply, pp. 5, 6).

Analysis

In his cogent analysis of the two tests, Judge

Lewis explained that the motivational requirement was in conflict with the

first prong of both the Franks test and the Pepin test:

The phrase “tending

to interfere” indicates that the employer’s conduct is inclined to interfere

with future miner conduct. However, the second prong in Pepin requires a

predicate exercise of protected rights that the conduct be in reaction to. If

a mine operator is interfering with a miner’s statutory rights, why should the

Complainant who is in a worse position to make a showing of the operator’s

motivations be required to show why the operator is acting in such a manner?

Instead, the operator should be required to show why the interference with a

miner’s statutory rights was due to “a legitimate and substantial reason whose

importance outweighs the harm cause[d] to the exercise of protected rights,” as

required by the Franks test. If it cannot, then the conduct should be

prohibited under Section 105(c).

Wilson, Greenwell & Shemwell v. Armstrong Coal

Company, Inc ., 39 FMSHRC 1072, 1093 (May 9, 2017)(ALJ Lewis)( emphasis

added ) [1] .

I agree with this analysis. Further,

the Commission has held that the totality of circumstances must be analyzed,

not just the intent or motive in the alleged violative behavior. Interference

under the Act in this case does not turn on the operator’s motive, but whether

its conduct reasonably tended to interfere with the statutory rights of the

Miner’s Representatives. Sec’y of Labor o/b/o Gray v. North Star Mining

& Brummett, 27 FMSHRC 1, 9, 10 (Jan. 2005) citing American

Freightways Co ., 124 NLRB 146, 147 (1959). The future miner conduct under

the facts and circumstances in this case is the ability to easily make a

telephone contact, in private, with a Miners’ Representative. In order to

interfere with the right of a miner to communicate with one of the Miners’

Representatives, the burden is properly on the operator to justify making a discussion

between a miner and one of the representatives, like Wilson, more difficult. I

find that under all of the facts and circumstances in the instant case, it is

the operator’s conduct that is important. The operator’s motive for the

conduct is relevant only in so far as there is a claim of a legitimate and

substantial reason whose importance outweighs the harm caused to the protected

rights of the Miners’ Representatives, as contemplated by step two of Franks .

No argument of a reason meeting this test is advanced here; and, the person

most likely to have knowledge of intent, Safety Director Rick Brothers

(“Brothers”), DeMoss’s boss, was not deposed. [2]

I will again apply the Franks test.

V. Interference

Prior to October 16, 2015, a list dated May 19,

2014, in the upper right hand corner and entitled “Miners Representatives

designated by MSHA Form 2008-238”, that included the names, addresses and telephone

numbers of each Miners’ Representative was posted behind glass on the bulletin

board in the bathhouse at the Parkway mine. (Cross-Motion, Exhibit 6; Dep.

DeMoss, pp. 29-33; Dep. Wilson, pp. 25-28). DeMoss took a photo of this list.

(Dep. DeMoss, pp. 24, 25).

The name, address and telephone number of Mike

Wilson, Complainant, was included in the list dated May 19, 2014.

(Cross-Motion, Exhibit 6). Wilson had been properly designated a Miners’ Representative

at the Parkway mine. (Cross-Motion, Exhibits 4, 6, 9, 10, 11; Dep. DeMoss, pp.

58, 59, 67). He was a non-employee Miners’ Representative until the Parkway

mine closed. (Dep. Wilson, pp. 11-13, 53).

On October 16, 2015, a modified list of Miners’

Representatives was posted behind glass in the bathhouse by DeMoss on the

instruction of Brothers; this new list had no addresses or telephone numbers

for any of the Miners’ Representatives, including Wilson. [3]

(Cross-Motion, Exhibit 5, Response to No. 8; Dep. DeMoss, pp. 13, 14, 21, 32,

36, 43, 45-47, 49).

The new list with no addresses or telephone

numbers was posted for about 6 days, from October 16, 2015 to October 21, 2015.

(Dep. DeMoss, pp. 36, 44-47, 49-51).

On or about October 20, 2015 Wilson noticed that

the list behind glass in the bathhouse had been replaced with a list with all

the Miners’ Representatives’ names, except the addresses and telephone numbers

were gone. (Dep. Wilson, pp. 27, 28). Wilson called the MSHA hotline and

reported that the addresses and phone numbers were off the paper. (Dep. Wilson,

pp. 33, 34).

Wilson testified he remembered

telling Chad Baldwin that as many as five people working at the mines had been

calling him early in the morning and at night before the list was changed.

(Dep. Wilson, pp. 35-37). Wilson had also told Brothers that miners at the mine

called him and reported safety and health issues to him. ( Id., pp.

57-59; Complaint, p. 4, No.15). Wilson believed Brothers made the decision to

put up the new list because of what Wilson had told him about people calling. ( Id.,

pp. 60-62).

On October 21, 2015, Citation No. 9045905 was

issued at 1510 hours for a violation of 30 CFR §§ 40.4, 40.3 since the listing

of Miners’ Representatives posted on the mine bulletin board did not include

the addresses and telephone numbers of the Miners’ Representatives. (Complaint,

Exhibit C; Armstrong’s Motion, Exhibit 5, No. 4; Wilson’s Response, Exhibit 1).

The Citation was abated at 1520 hours by DeMoss when he updated and reposted

the prior list with the addresses and telephone numbers of the representatives.

( Id.; Dep. DeMoss, pp. 39, 53-56; Dep. Wilson, pp. 43, 44; Cross-Motion,

Exhibits 7, 8).

The updated list was no longer dated May 19,

2014; in the upper right hand corner was handwritten “Per verification by MSHA

10/16/15”. (Cross-Motion, Exhibit 8; Dep. DeMoss, pp. 53-56).

Armstrong has five active coal operations in the

state of Kentucky. (Wilson’s Response, Exhibit 8). Since January 2017 DeMoss

has been Safety Manager at Armstrong’s Kronos mine. (Armstrong’s Motion,

Exhibit 5, No. 1; Dep. DeMoss, p. 15).

Contentions

Respondent contends the primary factual issue

turns on what was done and why it was done. Therefore, both tests for

interference must be considered, or the legal analysis would be incomplete and

Complainant would not be entitled to summary decision as a matter of law.

(Armstrong’s Response, pp. 1, 5).

Complainant argues operators are required to

post contact information of Miners’ Representatives so other miners will know

how to contact a representative about matters that affect their health and

safety. Therefore, the removal of the contact information tended to interfere

with the Complainant’s statutory rights as a Miners’ Representative. Also, the

company has not and cannot justify its removal action with a legitimate and

substantial reason whose importance outweighs the harm caused to Complainant’s

protected rights. (Cross-Motion, pp. 14, 15). Further, a Miners’ Representative

need not prove a company’s motive for interfering with his statutory rights to

prevail under Section 105(c)(1). (Wilson’s Reply, p. 3).

Analysis

It was Brothers who provided the new list of Miners’

Representatives to DeMoss and instructed DeMoss to post this list with the

names of the representatives but with none of their addresses or telephone

numbers. The list that had been on the bulletin board behind glass in the

bathhouse did have the address and telephone number for each of the

representatives. The actions of Brothers and DeMoss constituted the removal of

contact information important to the health and safety of miners. Viewed from

the perspective of both the Miners’ Representatives and other miners the

absence of this information, in particular the telephone numbers, did tend to

interfere with the exercise of their protected right to report safety and

health concerns freely and confidentially.

Consider, for example, the

alternative presented to a miner who wished to report a safety concern. This miner

would need to find a Miners’ Representative, most likely at the mine site, and

personally convey the concern. This might, or might not, take place out of

“earshot” of other miners or supervisory personnel. Another alternative would

be for a miner to find and approach Wilson or another representative at their

address. Either alternative would place an unreasonable burden on the miner

with a safety concern to report, and potentially expose the miner to risk of

reprisal. Even to require a miner to search for an address or telephone number in

order to be able to privately report a safety concern imposes a burden. When

compared with simply noting a telephone number and making a call at any time

and in confidence to a Miners’ Representative, it becomes clear that removing

the contact information was an act of interference under the first prong of the

Franks test.

Respondent has not established an important

reason justifying the removal of the contact information. Any such reason must

be “legitimate and substantial” and outweigh the burden imposed on miners with

safety and health concerns but with no readily available, private and

confidential method of making a report to a Miners’ Representative. The one

person who could shed light on the removal reason, Brothers, was not deposed;

therefore, the reason why the violative action was taken remains unknown, and

is perhaps not ascertainable.

I find that by removing the contact information

for the Miners’ Representatives, including Wilson’s, Respondent did interfere

with the statutory rights of Wilson and the other Miners’ Representatives.

Respondent relies on the second prong of the Pepin

test to require proof of the motivation of the operator in removing the contact

information. If the motivation for the removal of the contact information was

the exercise of protected rights, such as presented here in the potential

expression of safety and health concerns by a miner to a Miners’ Representative,

then the second prong of the Pepin test could be satisfied and

interference established. However, Complainant Wilson is in a much worse

position to discover motivation on the part of the operator, especially where

the management official who most likely knows the reason for the removal

apparently could not be deposed. This would mean, as Judge Lewis pointed out,

the requirement of a predicate exercise of protected rights that was reacted to

by removing the addresses and telephone numbers of the Miners’ Representatives.

See, Wilson, et. al., v. Armstrong , Supra.

It is noteworthy that Wilson testified before

the list was changed he told Baldwin people had been calling him at night and

early in the morning; he also told Brothers miners had been calling him. Wilson

testified to his belief Brothers took the phone numbers and addresses down

because of what he had told Brothers. DeMoss testified he did not know why the

list was changed, he was just following instructions. Brothers would be the

person able to contradict Wilson’s testimony, but he was not deposed,

reportedly due to a memory deficit. Wilson’s testimony that he told Brothers

and Baldwin about the calls he was receiving and Wilson’s belief that Brothers

removed the contact information on purpose because people had been calling him is

evidence that protected rights were responded to by the violative act of

removing the contact information for all listed Miners’ Representatives at the

Parkway mine. While I have applied the Franks test in this case, there

is evidence that the second prong of the Pepin test is also satisfied.

Based on review of the entire

record and the applicable law, I find there is no dispute of material fact and

that Armstrong violated Section 105(c) of the Mine Act by interfering with

Wilson’s statutory rights as a Miners’ Representative. I further find relief

can be granted and this matter is not moot, the delay in discovery responses is

not cause for dismissal, and the Complaint of Interference was timely filed. Therefore,

Complainant is entitled to summary decision as a matter of law.

ORDER

Respondent’s Motion for Summary

Disposition is DENIED and Wilson’s Cross-Motion for Summary Decision is GRANTED .

It is further ORDERED that Armstrong will

immediately:

1)       Post

the Court’s decision at all of its active coal operations and facilities, at

places where notices to employees are customarily posted for a period of 30

days;

2)       Require

Armstrong management personnel at its active operations and facilities to take

training in the statutory rights of Miners’ Representatives; and

3)       Comply

with the requirements of 30 CFR §§ 40.4 and 40.3 at all of its active coal

operations and facilities.

The undersigned ALJ retains

jurisdiction of this matter until all of the specific remedies to which Wilson

is entitled are resolved and finalized. Accordingly, this decision will

not become final until an order granting any further specific relief,

including costs and attorney’s fees, as well as any civil penalty to be

assessed, has been entered.

Accordingly, the parties are ORDERED

TO CONFER within 21 days of the date of this decision for the

purpose of arriving at an agreement on the specific actions and monetary

amounts that will constitute the complete relief to be ordered in this case. If

an agreement is reached, it shall be submitted within 30 days of

the date of this decision.

If an agreement cannot be

reached, the parties are FURTHER ORDERED to submit their respective

positions, concerning those issues on which they cannot agree, with supporting

arguments, case citations and references to the record, within 30 days

of the date of this decision. For those areas of further, specific relief and

any penalty amount on which the parties disagree, they shall submit specific

proposed dollar amounts for each category of relief. In the rare event of

factual disputes requiring an evidentiary hearing, the parties should submit a

joint request.

Pursuant to Commission Rule 44(b), 29

C.F.R. § 2700.44(b), a copy of this decision will be sent to the Office of the

Regional Solicitor having responsibility for the area in which the Parkway Mine

was located so that the Secretary may take the actions required by the rule.

/s/

Kenneth R. Andrews

Kenneth R. Andrews

Administrative Law Judge

Distribution: (Certified Mail)

Marco M. Rajkovich, Jr., Esq., Rajkovich, Williams,

Kilpatrick & True, PLLC, 3151 Beaumont Centre Cir., Suite 375, Lexington,

KY 40513

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522

Wes Addington, Esq., Appalachian Citizens Law Center, 317

Main Street, Whitesburg, KY 418858

Copy to: (First Class Mail)

Office of the Regional Solicitor, Castner Knott Building,

618 Church Street, Suite 230, Nashville, TN 37219-2440

[1] Currently on

review before the Commission.

[2]

Brothers

was not deposed because in another case scheduled to be heard in the same time

frame as the instant case, Brothers claimed an unspecified medical condition

resulting in virtually no recollection of his employment with Armstrong.

(Cross-Motion, pp. 2, 3).

[3] A photocopy or

photograph of this list is not of record. (Dep. DeMoss, p. 49; but see

Dep. Wilson, p. 43).