United Mine Workers of America on behalf of Mark A. Franks and Ronald M. Hoy v. Emerald Coal Resources, LP

Plain-English summary

After a divided Commission ruling and a Third Circuit remand, an ALJ found that Emerald Coal unlawfully interfered with miners Mark Franks and Ronald Hoy and assessed $40,000. By the time the parties settled, Emerald's mine had closed, Emerald and its parent were in bankruptcy, and all other remedies had been completed: backpay was paid, notices were posted, and reprimands were removed from personnel files. The Commission held that those changed business-size circumstances justified reducing the civil penalty to $20,000 and approved the settlement.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(3), 820(i), and 820(k); 29 C.F.R. § 2700.31
• Outcome: The settlement was approved and Emerald was ordered to pay a $20,000 civil penalty.
• Key point: Mine closure, bankruptcy, and completed make-whole remedies supported reducing the remaining penalty by half.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

UNITED MINE WORKERS OF AMERICA   :     

(UMWA), on behalf of MARK
A. FRANKS :

:

v.                                        
 :  PENN 2012-250-D

:

:

EMERALD COAL RESOURCES, LP            :

:

UNITED MINE WORKERS OF AMERICA   :     

(UMWA), on behalf of RONALD
M. HOY  :

:                                                           

v.                                              
 :        PENN 2012-251-D

:

:                                                                               

EMERALD COAL RESOURCES, LP            :

:

SECRETARY OF LABOR                  :

MINE SAFETY AND HEALTH                
 :

ADMINISTRATION (MSHA)             
 :

:                                                           

v.                                              
 :        PENN 2013-305

:        PENN 2013-306

:

EMERALD COAL RESOURCES, LP            :

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

DECISION APPROVING SETTLEMENT

BY: THE COMMISSION

These cases arise
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(2012) (“Mine Act”). They involve complaints of discrimination and interference
filed by the United Mine Workers of America (“UMWA”) on behalf of Mark A.
Franks and Ronald M. Hoy pursuant to section 105(c)(3) of the Mine Act. 30
U.S.C. § 815(c)(3). After a hearing on the merits, an Administrative Law Judge
concluded that Franks and Hoy demonstrated that they had been discriminated
against as a result of their participation in activities protected by the Mine
Act and in violation of section 105(c). 35 FMSHRC 1696 (June 2013) (ALJ).[1]

Emerald
then petitioned the Commission for review of the Judge’s decision, which the
Commission granted. On review, a majority of the Commission affirmed the
Judge’s decision in result. 36 FMSHRC
2088 (Aug. 2014). Emerald then appealed the decision to the United States Court
of Appeals for the Third Circuit. For the reasons articulated below, the Third
Circuit vacated the Commission’s decision and remanded the cases to the
Commission for further analysis.[2]

The
Commission’s decision to affirm the Judge’s decision, in result, was a split
decision.

Commissioners Young and Cohen
voted to affirm on the grounds that substantial evidence supported the Judge’s
conclusion that Emerald discriminated against Franks and Hoy in
violation of section 105(c) of the Mine Act. Id. at 2089-2103. Chairman
Jordan and Commissioner Nakamura voted to affirm the Judge’s decision in result
after concluding that Emerald interfered with the protected statutory
rights of the miners in violation of section 105(c). Id. at 2104-2119.  Commissioner
Althen voted to vacate the decision of the Judge. Id. at 2120-2144.

The Third Circuit
concluded that the two opinions affirming the Judge’s decision presented
“conflicting rationales” to support the finding that Emerald violated section
105(c) of the Mine Act, and therefore, the Commission failed to provide a
majority rationale that was “amenable to review.” Emerald Coal Res. LP, v.
Hoy, 620 Fed. Appx. 127, 129, 132 (3rd Cir. 2015) (citation omitted). However,
the Court further concluded that because “four of five [Commissioners] agreed
that the Mine Act was violated and relief was appropriate, [it] believe[d] the
agency should have a chance to explain its reasoning.” Id. at 133. Therefore,
the Court vacated and remanded the Commission’s decision, noting that it was
not expressing an “opinion as to how the Commission may decide the
discrimination or interference issues or

whether it should remand the
case to the [Judge] to conduct the interference analysis in the first instance
. . . .” Id.

On
remand to the Commission, a majority of the Commissioners voted to remand the proceedings
to the Judge “to conduct the interference analysis in the first instance”
consistent with the decision of the Third Circuit. 38 FMSHRC 226, 228 (Feb.
2016).

On April 11, 2016,
the Judge issued her decision on remand. She concluded that Emerald unlawfully interfered
with the complainants’ rights under the Mine Act and assessed a total civil

penalty of $40,000. She also reiterated
the provisions of her previous order described in footnote 1, supra. 38
FMSHRC ­­­__, slip op. at 11-13, No. PENN 2013-305 et al (Apr. 11, 2016).

On April 29,
2016, the parties filed a joint petition for discretionary review.  The parties
also announced that they had reached a settlement, and requested approval of
their settlement agreement. The Commission has granted the petition for
discretionary review in a separate Direction for Review, and now disposes of
the cases.

The parties’
joint request for approval of settlement was filed in accordance with section

110(k) of the Mine Act, 30
U.S.C. § 820(k), which provides, in relevant part, that “[n]o proposed penalty
which has been contested before the Commission under section 105(a) shall be
compromised, mitigated, or settled except with the approval of the Commission.”
Commission Procedural Rule 31 provides that a “proposed penalty that has been contested
before the Commission may be settled only with the approval of the Commission
upon motion.” 29 C.F.R. § 2700.31(a). The movant is required to provide “facts
in support of the penalty agreed to by the parties.” 29 C.F.R. §§
2700.31(b)(1), (c)(1).

The parties
represent that Emerald’s mine has ceased production of coal and is now closed. The
parties further represent that Emerald and its parent company, Alpha Natural
Resources, Inc., have filed for bankruptcy. Additionally, the parties represent
that Emerald previously performed all the remedial actions ordered by the Judge:
Emerald has provided backpay to the miners, posted the decision and notice at
the mine, and removed the reprimands from the complainants’ personnel records. The
parties now propose that Emerald pay a reduced civil penalty in the amount of
$20,000 in satisfaction of the violations of the Mine Act. The parties
represent that Emerald has assured the Secretary that the penalty agreed upon
in settlement will be paid in the ordinary course of business, pursuant to an
Order of the Bankruptcy Court.

The Secretary
represents that he has determined that a total penalty of $20,000, rather than
the $40,000 ordered by the Judge, is appropriate in light of the facts that the
Emerald Mine is now closed, that Emerald and its parent company are now in
bankruptcy, and that all other remedies directed by the Judge, including backpay,
have been fully performed.

The parties’
joint request for approval of settlement is granted. We determine that the
parties have justified that a reduction of the penalty is appropriate given the
change in the size of the operator’s business. See 30 U.S.C. § 820(i) (“In
assessing civil monetary penalties, the Commission shall consider . . . the
appropriateness of such penalty to the size of the business

charged. . . .”). Emerald
Coal is ordered to pay the civil penalty of $20,000 within 30 days of the
issuance of this order.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chairman

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen Jr., Commissioner   

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

[1]
The Judge ordered Emerald to take the following
remedial actions: (1) provide backpay to Franks in the amount of $1,168.68 plus
interest and backpay to Hoy in the amount of $1,963.93 plus interest; (2) post
the decision at the mine site and provide notice to miners of their rights
under section 105(c); (3) remove all reference to the reprimand from the
personnel files of Franks and Hoy. 35 FMSHRC at 1707.

[2]
As a result of the Commission’s decision that
Emerald violated the Mine Act, the Secretary of Labor subsequently filed
petitions for assessment of civil penalty pursuant to sections 105 and 110 of
the Mine Act. The proposed penalties were $20,000 each, for a total penalty of
$40,000. The parties filed joint stipulations addressing the penalty criteria,
and the Judge assessed the total penalty of $40,000. Unpublished Order (October
29, 2014) (Docket No. PENN 2013-305 et al.).

Emerald petitioned the
Commission for review of the Judge’s civil penalty decision. However, no two
Commissioners voted to grant the petition. Emerald then appealed the Judge’s
decision to the Third Circuit. The Third Circuit consolidated the civil penalty
cases with the other captioned matters.