Warrior Met Coal Mining, LLC v. Secretary of Labor and Secretary of Labor v. Warrior Met Coal Mining, LLC

Plain-English summary

The Acting Secretary vacated five contest citations and thirteen related penalty proceedings alleging that Warrior Met denied miners' representatives access to its No. 4 and No. 7 mines during a strike. Warrior Met did not oppose dismissal but asked the Judge first to consolidate those eighteen dockets with a new interference case concerning state-court contempt proceedings and Mine Act walkaround rights, arguing that consolidation would preserve extensive discovery work. The Judge found the interference claim legally and evidentially distinct, noted that existing discovery could still be used if relevant, and held that the Secretary's discretion to vacate the citations was unreviewable. He denied consolidation and dismissed all eighteen dockets.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 813(f), 815(c), and 815(d); 29 C.F.R. § 2700.12
• Outcome: The Acting Secretary's dismissal motion was granted and Warrior Met's consolidation motion was denied.
• Key point: Vacated enforcement cases would not remain on the docket merely to facilitate discovery in a distinct interference proceeding.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9900 / FAX: 202-434-9949

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Warrior Met Coal Mining LLC,
Contestant
v.
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA),
Respondent;
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA),
Petitioner
v.
Warrior Met Coal Mining LLC,
Respondent. |
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CIVIL CONTEST PROCEEDINGS
Docket No. SE 2023-0030 Docket No. SE 2023-0031 Docket No. SE 2023-0032
Mine: No. 4 Mine Mine ID No. 01-01247
Docket No. SE 2023-0028 Docket No. SE 2023-0029
Mine: No. 7 Mine Mine ID No. 01-01401
CIVIL PENALTY PROCEEDINGS
Docket No. SE 2023-0041 A.C. No. 000566006 Docket No. SE 2023-0051 A.C. No. 000567006 Docket No. SE 2023-0056 A.C. No. 000567766 Docket No. SE 2023-0067 A.C. No. 000568866 Docket No. SE 2023-0101 A.C. No. 000570906
Mine: No. 4 Mine Mine ID No. 01-01247
Docket No. SE 2023-0042 A.C. No. 000566007 Docket No. SE 2023-0053 A.C. No. 000567007 Docket No. SE 2023-0057 A.C. No. 000567767 Docket No. SE 2023-0068 A.C. No. 000568867
Docket No. SE 2023-0089 A.C. No. 000570247 Docket No. SE 2023-0098 A.C. No. 000561080 Docket No. SE 2023-0099 A.C. No. 000570907 Docket No. SE 2023-0118 A.C. No. 000571802
Mine: No. 7 Mine Mine ID No. 01-01401 |
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__ORDER GRANTING THE
ACTING SECRETARY’S __

AMENDED MOTION TO
DISMISS AND DENYING WARRIOR MET’S MOTION TO CONSOLIDATE THESE CASES WITH NEWLY FILED
INTERFERENCE CASE

Before: Judge Thomas P. McCarthy

These consolidated contest and
civil penalty proceedings are before me under section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d) (1994). In this matter,
the Acting Secretary has issued five 104(a) citations and thirteen penalty
assessments to Warrior Met Coal Mining LLC (“Respondent”), each alleging a violation
under section 103(f) of the Mine Act. The five citations are currently docketed
as “Contest Proceedings,”[1]
while the thirteen penalty assessments are docketed as “Civil Penalty Proceedings.”[2]
The collective citations issued by the Acting Secretary allege that Respondent violated
the Mine Act on multiple occasions by denying “miners’ representatives” access
to the No. 4 and No. 7 Mines. Respondent denies these allegations and asserts
that the individuals claiming to be miners’ representatives were not properly
designated by an individual or individuals actively working in a coal or other
mine. See 30 U.S.C. § 802(g); see also Cyprus Empire Corp.,
15 FMSHRC 10 (Jan. 25, 1993).

I.
Procedural History

On November 8,
2022, Respondent timely filed two documents titled “Notice of Contest and
Unopposed Request for Expedited Hearing.” The first of these filings concerned
Docket Nos. SE 2023-0028 and -0029, which both involve alleged violations at the
No. 7 Mine. The second filing concerned Docket Nos. SE 2023-0030, -0031, and
-0032, which each relate to alleged violations relating to the No. 4 Mine. On
December 2, 2022, the Secretary of Labor filed Answers to each Notice of
Contest.[3]
The matter was set for hearing on April 24, 2023 in Birmingham, Alabama.

Following these initial submissions, the parties engaged in a protracted parley involving complex discovery that was at times directly overseen by this tribunal. Both parties engaged in written discovery and Respondent conducted depositions of an MSHA District Manager, Assistant District Manager, and Coal Field Office Supervisor. On January 11, 2023, the Acting Secretary submitted a Motion in Limine to Exclude Irrelevant Evidence and Testimony. On January 27, 2023, Respondent filed a Motion for Temporary Relief requesting that the undersigned

consolidate all Petitions for Civil Assessment of Civil Penalties against [Respondent] [Dockets Nos. SE 2023-0041, SE 2023-0042, SE 2023-0051, SE 2023-0053, SE 2023-0056, and SE 2023-0057] and prohibit any future Petitions for Civil Assessment of Civil Penalties against [Respondent] related to the Enforcement Actions or any similar circumstances pending the resolution of this matter.

Resp’t App. for Temp. Relief at 3. Respondent
then filed a Motion to Compel on January 31, 2023, seeking to require the
Acting Secretary to “fully respond to [Respondent’s] Interrogatories and
Requests for Production of Documents, and to provide further testimony.” [Resp’t Mot. to Compel at 1.]

On February 2, 2023, my office
received 1) Respondent’s Opposition to the Secretary’s Motion in Limine, 2)
Respondent’s Motion to Postpone and Reschedule Hearing and Related Prehearing
Deadlines, and 3) the Secretary’s Opposition to Respondent’s Application for
Temporary Relief. On February 7, 2023, the undersigned held a conference call
with the parties to discuss outstanding motions, including Respondent’s Motion
to Compel and the Acting Secretary’s Motion in Limine. During the conference
call, the parties were encouraged to narrow and work toward resolution of
outstanding discovery issues. In addition, the Secretary was ordered to
provide a privilege log consistent with Fed. R. Civ. Proc. 26(b)(5)(A)(ii). Further,
the undersigned agreed to review disputed documents in camera if the
parties were unable to resolve redaction or privilege issues through a
privilege log or protective order.

On February 13, 2023, the
undersigned issued an Order Denying Respondent’s Application for Temporary
Relief. On February 15, 2023, the Secretary submitted a Response to
Respondent’s Motion to Compel. On February 21, 2023, following receipt of the
Secretary’s Response, the undersigned held a follow-up conference call to
further discuss all discovery issues outstanding, including the discoverability
of certain topics, the production of documents by MSHA to Respondent, the
submission of other documents for in camera review, and further
depositions of MSHA and United Mine Workers of America (“UMWA”) representatives.[4]
At the conclusion of this conference call, Respondent was given until March 3,
2023, to file a Reply to the then Acting Secretary’s Opposition, and the Acting
Secretary was given until March 10, 2023, to file a Sur-Reply. Respondent
timely filed a Reply on March 10, 2023, and the Acting Secretary submitted a
Sur-Reply on March 10, 2023.

On March 24, 2023, my office
received a notice of appearance from legal counsel for the UMWA and a Motion to
Revoke Third Party Subpoena Duces Tecum.

On March 26, 2023,
the Acting Secretary filed a Motion to Dismiss all of the five Contest
Proceedings and five of the thirteen Civil Penalty Proceedings in the exercise
of her prosecutorial discretion. See RBK Construction, Inc., 15 FMSHRC
2099, (October 1993). My office received a first amended version of this Motion
to Dismiss on April 2, 2023, which was updated to include all thirteen of the
pertinent Civil Penalty Dockets. On April 10, 2023, my office received a second
amended version of the Acting Secretary’s Motion to Dismiss (“Amended Motion to
Dismiss”).[5]

Also on April 10, 2023, the Acting Secretary filed a section 105(c)(1) interference complaint with two counts. Count One alleged that Respondent interfered with the exercise of statutory rights by miners and miners’ representatives at the No. 4 and No. 7 mines by refusing to allow properly designated miners’ representatives to accompany MSHA on inspections, thereby discouraging miners and their representatives from exercising their rights under section 103(f) and chilling their participation in MSHA inspections. Count Two alleged that Respondent interfered with the exercise of statutory rights by miners and miners’ representatives at the No. 4 and No. 7 mines by filing a motion to hold the UMWA and individual picketers in contempt of Alabama Circuit Court for alleged violations of the Court’s latest injunction, including their attempts to exercise section 103(f) rights, thereby chilling miners and miners’ representatives exercise of those rights.

Also on April 10, 2023, Respondent filed a Motion to Consolidate the above-captioned collective Contest and Civil Penalty Proceedings with the Interference Complaint, docketed as SE 2023-0146 and -0147. On April 12, 2023, the Chief Judge assigned the interference proceeding to my office.

On April 14, 2023,
the Acting Secretary filed an Amended Interference Complaint in Docket Nos. SE
2023-0146 and -0147, alleging that Respondent chilled miners’ and miners’
representatives’ exercise of section 103(f) rights when it filed a Motion for
Contempt in Alabama Circuit Court in response to alleged continued violations
of the Circuit Court’s injunction. In this Amended Complaint, the Acting
Secretary alleges that Respondent refused to allow designated miners’
representatives to accompany MSHA on inspections on November 4, 2022; November
8–9, 2022; November 14–17, 2022; November 22–23, 2022; November 29, 2022;
December 1–2, 2022; December 5–6, 2022; December 8, 2022; December 15, 2022;
January 11–13, 2023; January 20, 2023; January 26–27, 2023; January 30, 2023;
February 22–23, 2023; March 10, 2023; and March 13, 2023. See Sec’y Am.
Compl., ¶¶ 9–44. The Acting Secretary dropped Count One of the original interference
complaint and alleged that in January 2023, the UMWA, Floyd Conley, Eddie
Pinegar, and Keri Bester filed section 105(c) complaints with MSHA alleging
interference with protected rights. The sole remaining count remained the same
as Count TWO of the original complaint alleging section 105(c)(1) interference
by pursuit of state court contempt charges for the exercise of statutory rights
under the Mine Act, including section 103(f) walkaround rights.

On April 18, 2023, the undersigned held a conference call with the parties to ascertain their respective positions on the pending motions. During that call, the undersigned learned that on about February 16, 2023, the UMWA made an unconditional offer to return to work effective on or about March 2, 2023. In addition, the undersigned represented that I was inclined to grant the Acting Secretary’s Motion to Dismiss, and deny Warrior Met’s Motion to Consolidate, but reserved decision until both parties had an opportunity to file a written response to each other’s respective motions. On April 20, 2023, the Acting Secretary filed an Opposition to Respondent’s Motion to Consolidate, and Respondent filed a Response to the Acting Secretary’s Amended Motion to Dismiss. For the reasons set forth below, I deny Respondent’s Motion to Consolidate, and grant the Acting Secretary’s Amended Motion to Dismiss all of the above-captioned dockets.

II.
Analysis

Although the
procedural history in this case is lengthy, the undersigned must resolve only a
relatively straightforward inquiry – whether to consolidate interference
Dockets SE 2023-0146 and -0147 with the eighteen total dockets that the Acting
Secretary has moved to dismiss. Commission Rule 12 states that “The Commission
and its Judges may at any time, upon their own motion or a party’s motion,
order the consolidation of proceedings that involve similar issues.” 29 C.F.R.
§ 2700.12. The Commission has held that “[a] determination to consolidate lies
in the sound discretion of the trial judge.” Pennsylvania Electric Company,
12 FMSHRC 1562, 1565 (Aug. 1990).

The Acting
Secretary has exercised her unreviewable discretion to vacate the eighteen
above-captioned citations. See RBK Constr., Inc.,
15 FMSHRC 2099. The Acting Secretary contends that there is nothing
for the undersigned to do procedurally except dismiss these cases.

Although Respondent
does not oppose the dismissal, it argues that dismissal should only come after
consolidating the above-captioned proceedings with the newly filed interference
proceeding. In its Response to the [Acting] Secretary’s Amended Motion to
Dismiss, Respondent argues that its proposed consolidation-then-dismissal framework
would allow the parties to avoid a recapitulation of the complex discovery that
took place in these cases, and will therefore “greatly promote judicial economy
and avoid duplicative discovery disputes.” Resp’t Resp. to Sec’y Am. Mot. to
Dismiss at 1-2. Respondent also contends that “whether striking employees
constitute miners under the Mine Act such that they can validly designate
miners’ representatives is a central issue in the Interference Proceeding just
as it was in these Contest Proceedings. Id. at 3 (internal quotations
omitted). Respondent further contends that, because similar legal and
procedural issues may arise again during the course of these newly filed
interference proceedings, the

[Parties
(and the Court) may be forced to largely duplicate their significant efforts in
discovery because the Acting Secretary seeks a complete, unconditional
dismissal of the Contest Proceedings.] [Respondent] will be compelled to issue
an entirely new set of written discovery requests, re-notice all depositions,
re-issue third-party subpoenas, and endure the inevitable objections, motions
in limine, and dilatory tactics of the Acting Secretary. (“. . .”)

Because [Respondent] and the Acting Secretary (with significant assistance from the Court) have already engaged in extensive discovery on topics that are certain to arise again, [Respondent] respectfully requests the Court consolidate these cases prior to dismissing the Contest-Proceeding dockets. This will prevent the Parties from duplicating efforts in discovery, which could again require the Court’s intervention to resolve discovery issues already addressed in the Contest Proceedings. Accordingly, the interests of judicial economy favor consolidation prior to dismissal.

Resp’t Resp. to Sec’y Am. Mot. to Dismiss at 4.

The Acting Secretary opposes Respondent’s arguments concerning consolidation, instead arguing that

The question in
the interference case is not whether striking miners are “miners.” It is whether,
from the perspective of a reasonable miner, [Respondent’s] actions tended to
interfere with miners’ or miners’ representatives’ exercise of protected
rights, and whether those actions were justified by a legitimate and
substantial business interest. See 30 U.S.C. 815(c)(1); [Marshall
Cnty. Coal Co. v. Fed. Mine Safety & Health Rev. Comm’n, 923 F.3d 192,
201-204 (D.C. Cir. 2019).]That analysis focuses on any reasonable miner or
miners’ representative, not on any particular one. Wilson v. Fed. Mine
Safety & Health Rev. Comm’n, 863 F.3d 876, 882 (D.C. Cir. 2017).

Sec’y Opp’n to Resp’t Mot. to Consolidate at 2.

I agree with the
Acting Secretary’s reasoning essentially for the reasons set forth in her
Opposition. It appears that the relevant question in the interference complaint
is not limited only to whether striking miners are “miners” as defined
in the Mine Act, but also, as the Acting Secretary puts it, “how a reasonable
miner or miners’ representative—regardless of whether any particular person was
on strike—would be affected by Respondent’s actions.” Sec’y Opp’n to Resp’t
Mot. to Consolidate at 2. I also agree with the Acting Secretary’s assessment
that the discrete issues in the contest and penalty cases and in the recently
filed interference case are different. Certainly, there will be some overlap
between the facts at issue in these cases and the interference case, as they
collectively relate to Respondent’s alleged conduct towards striking workers during
the strike at the No. 4 and No. 7 mines. However, there is now an unconditional
offer to return to work and the Acting Secretary asserts that she will rely on
new witnesses and different evidence in the interference matter; introduce new
evidence that will purportedly show that Respondent “filed a motion in state
court seeking to hold persons in contempt of court for exercising their
statutory [walkaround] right to accompany MSHA;” and submit state court filings
that are “unique to the interference issue and were not offered in the contest
and penalty proceedings.” Sec’y Opp’n to Resp’t Mot. to Consolidate at 2-3.

Finally, I agree
with the Acting Secretary’s position that discovery in the interference case
will not necessarily be duplicative of that conducted in these contest and
civil penalty cases. Generally, section 105(c) complaints occur when an operator
has allegedly denied or interfered with statutory rights such as walkaround
rights or used other legal proceedings to interfere with statutory rights. See
Marshall Cnty. Coal Co., 923 F.3d at 201-204. Although Respondent claims
that the “Parties (and this tribunal) may be forced to largely duplicate their
significant efforts in discovery because the Acting Secretary seeks a complete,
unconditional dismissal of the Contest Proceedings,” the discovery in the
contest and penalty cases concerned citations for alleged violations of section
103(f), whereas the interference case will concern Respondent’s alleged violations
of section 105(c). See 30 U.S.C. § 815(c)(2). What is necessary to prove
a violation of 105(c) is different from what is relevant to prove a violation of
section 103(f), particularly since the Secretary dropped Count One of the
original interference complaint.

In short, the
undersigned finds insufficient evidence currently before me to conclude that
the matters at issue in the interference cases are sufficiently similar to those
at issue in the contest and civil penalty cases as to warrant consolidation. See
29 C.F.R. § 2700.12; see also Pennsylvania Electric Company, 12
FMSHRC at 1565. More importantly, the Acting Secretary has exercised her
unreviewable discretion to dismiss the contest and civil penalty proceedings. See
RBK Constr., Inc., 15 FMSHRC 2099. Respondent does not oppose that
dismissal, it merely seeks to delay it. I see no good reason to watch these
cases languish on the Commission’s docket when the Acting Secretary’s
unreviewable discretion to dismiss these proceedings essentially makes
resolution of these matters moot. Respondent may use any discovery already
obtained in these matters as evidence, if relevant, in the interference proceeding,
and may pursue additional discovery in that proceeding.

Accordingly, [I deny Respondent’s motion to consolidate, and grant the
Acting Secretary’s Amended Motion to Dismiss.]

ORDERS

For the reasons discussed
above, the Acting Secretary’s Amended Motion to Dismiss is **GRANTED. **

Further, Warrior
Met’s Motion to Consolidate is **DENIED. **

/s/
Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution:

Jean C. Abreu

Daniel P. Miller

Nicole A. Spain

U.S. Department of Labor, Office of the Solicitor

61 Forsyth Street, S.W., Room 7T10

Atlanta, GA 30303

Susannah M. Maltz

Jason S. Grover

U.S. Department of Labor, Office of the Solicitor

Division of Mine Safety & Health

201 12th Street South, Suite 401

Arlington, VA 22202

David Smith

John B. Holmes, III

W. Brock Phillips

MAYNARD COOPER & GALE, PC

1901 Sixth Ave North

1700 Regions/Harbert Plaza

Birmingham, AL 35203

/cbb

[1] The “Contest
Proceedings” are before this tribunal as Docket Nos. SE 2023-0028, -0029, -0030,
-0031, and -0032.

[2] The “Civil
Penalty Proceedings” are before this tribunal as Docket Nos. SE 2023-0041, -0042,
-0051, -0053, -0056, -0057, -0067, -0068, -0089, -0098, -0099, -0101, and -0118.

[3] The Secretary and,
after March 11, 2023, the Acting Secretary, submitted Civil Penalty Petitions
on the following dates:

· January 6, 2023, for SE 2023-0041 and -0042;

· January 17, 2023, for SE 2023-0056 and -0057;

· January 19, 2023, for SE 2023-0051 and -0053;

· February 21, 2023, for SE 2023-0067 and -0068;

· March 2, 2023, for SE 2023-0089;

· March 21, 2023, for SE 2023-0098, -0099, and -0101; and

· April 3, 2023, for SE 2023-0118.

Respondent submitted Answers to eight of the thirteen Civil Penalty Petitions, which were received on:

· February 6, 2023, for SE 2023-0041 and -0042;

· February 15, 2023, for SE 2023-0051, -0053, -0056, and -0057; and

· March 23, 2023, for SE 2023-0067 and -0068.

[4] With regard to Respondent’s
discovery requests seeking the identity of striking miners who designated UWMA
representatives, the undersigned found that MSHA was not obligated to disclose
the names of the designating miners. Wolf Run Mining, 446 F. Supp. 651,
655-56 (N.N. W. Va. 2006). Accordingly, with regard to that issue, the
undersigned granted the Secretary’s Motion in Limine and denied Warrior Met’s Motion
to Compel. Given the parties’ representation that they were working towards a settlement
of the above matters, the undersigned found it unnecessary to definitively rule
on other outstanding discovery or evidentiary issues at that time.

[5] Specifically, the
Acting Secretary moves to vacate all contest and civil penalty proceedings in
the above-captioned matter.