Marshall Justice v. Rockwell Mining, LLC

Plain-English summary

Marshall Justice, a non-employee miners' representative, alleged that Rockwell Mining interfered with his rights to inspect the mine map and accompany MSHA inspectors at the Gateway Eagle Mine. Rockwell asked to dismiss the pro se complaint, arguing that Justice had no right to a copy of the map, no right to join inspections on every shift, and no right to the damages he requested. Judge Alan G. Paez treated the request as a motion for summary decision and found genuine factual disputes about alleged threats and hostile confrontations that could have discouraged Justice from exercising his statutory rights. The Judge also found that the operator's notification logs could support either side and that an appropriate non-fee remedy could not yet be ruled out. He denied the motion, allowing the interference proceeding to continue without deciding its merits.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 813(f) and 815(c); 29 C.F.R. § 2700.67(b)
• Outcome: Rockwell Mining's motion to dismiss, treated as a motion for summary decision, was denied.
• Key point: Alleged hostility toward a miners' representative created factual disputes that required further proceedings on mine-map and inspection walkaround rights.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, D.C. 20004

December 14, 2018

MARSHALL JUSTICE,

Complainant,

v.

ROCKWELL
MINING, LLC,

Respondent.

:     DISCRIMINATION PROCEEDING

:

:     Docket No. WEVA 2018-697-D

:     PINE CD 2018-05

:

:

:     Mine: Gateway Eagle Mine

:     Mine ID 46-06618

ORDER DENYING
RESPONDENT’S MOTION TO DISMISS

This discrimination
proceeding is before me pursuant to section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(3). On September
21, 2018, the Federal Mine Safety and Health Review Commission (“Commission”)
received a complaint of interference filed by Marshall Justice (“Complainant”)
against Rockwell Mining, LLC (“Respondent”). In his complaint, Justice alleges
that Rockwell Mining has interfered with his rights as a non-employee miners’
representative to travel on section 103(f) “walkarounds” and to inspect the
mine map. [1] After investigating
these claims, MSHA chose not to bring a section 105(c)(2) claim against
Rockwell Mining. Justice is proceeding pro se. Respondent filed its Motion to
Dismiss on October 22, 2018. Thereafter, on October 29, 2018, Chief
Administrative Law Judge Robert J. Lesnick assigned me this case. On November
1, 2018, the Commission received Justice’s Memorandum of Support of Claims
Marshall Justice Motion to Proceed with 105(c) (hereinafter “Opposition”), in which,
among other things, Justice opposes Rockwell Mining’s Motion to Dismiss in the
course of 113 pages, including exhibits.

The Commission
strongly discourages the disposal of pro se discrimination cases on the face of
the complaint. See Perry v. Phelps Dodge Morenci, Inc. , 19
FMSHRC 1918, 1920 (Nov. 1996) (“In cases brought by pro se complainants,
motions to dismiss for failure to state a claim should rarely be granted. Instead,
in such a case, a judge should ensure that he informs himself of all available
facts relevant to his decision, including the complainant’s version of those
facts”) (citing Haines v. Kerner , 404 U.S. 519, 520 (1972)). I
construe Rockwell Mining’s Motion to Dismiss as a Motion for Summary Decision. [2]
Summary decision is proper only when the entire record demonstrates that “there
is no genuine issue as to any material fact” and that “the moving party is
entitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67(b); see
Mo. Gravel Co. , 3 FMSHRC 2470, 2471 (Nov. 1981). Commission Judges should
not grant motions for summary decision “unless the entire record shows a right
to judgment with such clarity as to leave no room for controversy and
establishes affirmatively that the adverse party cannot prevail under any
circumstances.” KenAmerican Res., Inc. , 38 FMSHRC 1943, 1947 (Aug. 2016)
(quoting Campbell v. Hewitt, Coleman & Assocs., Inc. , 21 F.3d 52, 55
(4th Cir. 1994)); b ut see Scott v. Harris , 550 U.S. 372, 380 (2007)
(holding that there is no genuine issue for trial unless a rational trier of
fact could find for the nonmoving party).

This proceeding is
not isolated, as Justice has filed a series of complaints against the operator
of the Gateway Eagle Mine. In July 2016, Justice filed a complaint with the
Mine Safety and Health Administration (“MSHA”) alleging that Rockwell Mining
interfered with his exercise of rights as a miners’ representative and
discriminated against Justice by forcing him to work in unsafe conditions. The
Secretary pursued part of Justice’s interference claim by filing a section
105(c)(2) case against Rockwell Mining in Docket No. WEVA 2018-10-D. At the
same time, Justice filed a complaint under section 105(c)(3) to pursue the
claims the Secretary did not take. Rockwell Mining withdrew its contest in the
Secretary’s case and paid a civil penalty of $3,700.00 on April 13, 2018. Justice’s
separate proceeding, Docket No. WEVA 2018-48-D, remains in dispute and is set
for hearing in January 2019. In that matter, Justice has alleged that Rockwell
Mining violated section 105(d) based on Justice’s refusal to operate a piece of
mining machinery because of safety concerns. Docket No. WEVA 2018-48-D stems from
a complaint filed with MSHA on July 20, 2016. Furthermore, Justice has retained
counsel for Docket No. WEVA 2018-48-D, whereas here he is proceeding pro se.

I.
 BACKGROUND AND FACTUAL ASSERTIONS

When Marshall
Justice was previously employed at the Gateway Eagle Mine, which Rockwell
Mining now operates, two or more of the miners there appointed him as their miners’
representative. (Mot. at 1.) Although Justice is not currently employed at the
mine, he remains a non-employee miners’ representative. As such, Justice enjoys
certain rights under the Mine Act, among them the right to inspect mine maps
and the right to be given the opportunity to accompany MSHA inspectors during
physical inspections at the mine. See 30 U.S.C. § 813(f). In response to
an MSHA interference investigation, Rockwell Mining agreed on March 31, 2017, to
telephone Justice whenever an MSHA inspector is on the premises during the
evening shift. (Mot. Ex. B at 2.) Rockwell Mining’s logs indicate that, from
May 10, 2017, through August 13, 2018, Rockwell Mining telephoned Justice 22
times to alert him to the presence of an MSHA inspector, but Justice came to
the mine only once, on July 12, 2017. (Mot. Ex. H at 1–3.)

On April 10, 2018,
Justice spoke by telephone to shift foreman Frank Javins and made two requests:
(1) to be sent an up-to-date copy of the mine map and (2) to be alerted via
telephone when MSHA inspectors would be present during the day shift. (Opp. at
5.) Rockwell Mining did not send Justice a copy of the mine map and has
declined to telephone him about MSHA inspections during the day shift. (Mot. at
6–7, 10–11.)

Justice alleges that
Rockwell Mining’s policy—that Justice travel on section 103(f) “walkarounds” during
the evening shift only—is in effect to force him to interact with individuals
who have assaulted him or threatened assault. (Opp. at 11.) Furthermore, Justice
has described a history of alleged violent intimidation that discouraged him
from viewing the mine map. ( Id . at 4–5.) Justice states that he
described these incidents to the MSHA investigation team before they declined
to bring a section 105(c)(2) case. ( Id . at 6.)

Consequently, Justice
filed an interference complaint with MSHA on July 6, 2018. By letter dated
August 28, 2018, the Secretary declined to bring section 105(c)(2) charges
against Rockwell Mining. On September 21, 2018, Justice filed his complaint
with the Commission under section 105(c)(3).

II.
 ISSUES

In its motion, Rockwell
Mining argues (1) Rockwell Mining did not interfere with Justice’s right to
inspect the mine map because miners’ representatives do not have the right to
obtain copies of mine maps; (2) Rockwell Mining did not interfere with
Justice’s right to accompany MSHA inspectors (on section 103(f) “walkarounds”)
because any given individual miners’ representative does not have the right to
accompany MSHA inspectors during every shift; and (3) the damages that Justice
seeks are not recoverable.

The primary issue
before me is whether Rockwell Mining is entitled to summary decision because there
is no genuine issue of material fact about whether Rockwell Mining interfered with
Justice’s rights as a miners’ representative. [3]

III.
 PRINCIPLES OF LAW—ANALYSIS—CONCLUSIONS OF LAW

A.        Principles of Law—Summary
Decision and Section 105(c) Interference

Commission Procedural Rule 67(b) provides that 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) [t]hat there is no genuine issue as to any material
fact; and (2) [t]hat the moving party is entitled to summary decision as a
matter of law.” 29 C.F.R. § 2700.67(b). The Commission has
consistently held that summary decision is an “extraordinary procedure” and
analogizes it to Rule 56 of the Federal Rules of Civil Procedure. Lakeview
Rock Prods., Inc. , 33 FMSHRC 2985, 2987 (Dec. 2011) (citations
omitted). The Supreme Court, as the Commission observes, has determined that
summary judgment is only appropriate “upon proper showings of the lack of a
genuine, triable issue of material fact.” Id . at 2987–88 (citing Celotex
Corp. v. Catrett , 477 U.S. 317, 327 (1986)). The Supreme Court has also
held that both the record and “inferences to be drawn from the underlying
facts” are viewed in the light most favorable to the party opposing the motion.
Id . at 2988 (quoting United States v. Diebold, Inc. , 369
U.S. 654, 655 (1962)).

The Mine Act provides relief not only for
discrimination but also “interference.” Section 105(c) of the Act provides, in
relevant part, that:

[n]o person shall . . . interfere with
the exercise of the statutory rights of any . . . representative of miners . .
. because such . . . representative of miners . . . has filed or made a
complaint under or related to this chapter . . . or because of the exercise by
such . . . representative of miners . . . on behalf of himself or others of any
statutory right afforded by this chapter.

30 U.S.C. § 815(c)(1). The Commission has not settled on the
legal test for assessing claims of interference. See Monongalia County Coal
Co. , 40 FMSHRC 679, 680–81 (June 2017). Several Commission Judges have
applied the Secretary’s two-prong test, which asks, first, whether the alleged
interfering actions reasonably can be viewed as “tending to interfere with the
exercise of protected rights,” and, second, whether the interfering person can
“justify the action with a legitimate and substantial reason whose importance
outweighs the harm caused to the exercise of protected rights.” See, e.g. ,
Pendley v. Highland Mining Co. , 37 FMSHRC 301 (Feb. 2015) (ALJ)
(applying the Secretary’s proposed test for interference). The Commission has
split, however, over whether the Secretary must also demonstrate that the
interfering actions were motivated by animus to the exercise of protected
rights. See Monongalia County Coal , 40 FMSHRC at 708–29. [4]

B.        Analysis

Rockwell Mining argues that, as a matter
of law, Justice is not entitled (1) to a copy of the mine map, (2) to
notification regarding a section 103(f) “walkaround” during day and
evening shifts, and (3) to attorney’s fees or damages for pain and suffering. First,
I will analyze the material facts regarding a claim for interference with a
miners’ representative’s mine map inspection rights and section 103(f) “walkaround”
rights. I will then turn to the damages issue and Justice’s other arguments in
his Opposition.

1.         Mine Map Inspections
and Alleged Violent Threats

Justice complains that Rockwell Mining has not
honored his request for a copy of the mine map. (Compl. at 8.) Rockwell Mining
argues that no statute, regulation, or guidance document confers a right to
miners’ representatives to obtain a copy of the mine map and, accordingly, that
no interference took place. (Mot. at 6–8.)

By statute, a miners’ representative [5]
may inspect the mine map. See 30 U.S.C. § 872(b). The Mine Act also
explicitly permits only the Secretary of Labor and the Secretary of Housing and
Urban Development to request copies of the map, but they must keep them
confidential. See id . In his Opposition, Justice clarifies that
the alleged acts of interference include hostile confrontations while he was
present at the mine as a non-employee miners’ representative. Justice asserts
that employees of Rockwell Mining told him that he could not view any documents
posted at the mine site (Opp. at 4), and that past assaults discouraged Justice
from demanding to view the mine map. ( Id . at 4–5.) In light of this,
Rockwell Mining’s argument appears to be too narrow. If Justice’s assertions
are true, such actions would “interfere with the exercise of the statutory
rights of any . . . representative of miners . . . because of the exercise by
such . . . representative of miners . . . on behalf of himself . . . of any
statutory right afforded by this chapter.” 30 U.S.C. § 815(c)(1). Assertions of
hostility could also support a conclusion that the operator’s interfering
actions were the result of animosity toward Justice’s protected actions as a
miners’ representative. See Monongalia County Coal , 40 FMSHRC at 708–29.
Whether or not a miners’ representative is entitled to a copy of the mine map
under such circumstances, the record, construed in favor of the non-moving
party, contains a genuine dispute of material fact. Accordingly, I conclude
that summary decision against Justice is inappropriate at this stage.

2.         Section 103(f) “Walkaround”
Rights and Alleged Violent Threats

Justice complains that, for a year before he
filed his complaint, Rockwell Mining has failed to telephone him about section
103(f) “walkarounds” during the day shift. (Compl. at 8.) Rockwell Mining
argues that non-employee miners’ representatives are entitled to notification
of MSHA inspections during one shift only—here, they say Justice can attend the
evening shift because it was the last he worked before leaving employment. (Mot.
at 8–9.) The Mine Act provides that:

[s]ubject to regulations issued by the
Secretary . . . a representative authorized by [the operator’s] miners shall be
given an opportunity to accompany the Secretary or his authorized
representative during the physical inspection of any coal or other mine made
pursuant to the provisions of subsection (a), for the purpose of aiding such
inspection and to participate in pre- or post-inspection conferences held at
the mine.

30 U.S.C. § 813(f). MSHA’s Program Policy Manual (PPM)
states that, when notice of enforcement or investigation activities is given,
notice should also be given to the representative of miners. See  I MSHA,
U.S. Dep’t of Labor,  Program   Policy   Manual , Section
103-5, at 10 (2010).

In his Opposition, Justice
clarifies that the alleged acts of interference included hostile confrontations
while he was present as a miners’ representative at Gateway Eagle Mine. ( See
Opp. at 4, 11.) If true, these actions would constitute interference with a
miners’ representative’s exercise of his 103(f) “walkaround” rights and would
establish motivation by animus to Justice’s exercise of protected rights. See
Monongalia County Coal , 40 FMSHRC at 708–29 (articulating a test for
interference that requires the operator’s animus toward the exercise of
protected rights). Furthermore, such hostile actions could provide context to
the telephone logs created by Rockwell Mining, which show that Justice went to
the mine only once for a section 103(f) “walkaround.” In light of these alleged
threats, the telephone logs could cut both ways: Justice’s absence on section
103(f) “walkarounds” could establish that Rockwell Mining’s agents are hostile
rather than that Justice lacks initiative. Whether or not Justice is entitled
to notification about evening and day shift inspections, Justice should
have the opportunity to present additional evidence about these incidents. A
genuine dispute of material fact precludes summary decision.

3.         Recoverable Damages

Rockwell Mining argues that Justice is not
entitled to the damages he seeks for “pain and suffering and inconvenience” and
that he is not entitled to “all customary lawyer fees and gratuities.” (Mot. at
15.) However, Commission Judges can fashion 105(c) remedies suitable to the
facts of each case. See Sec’y of Labor
on behalf of Rieke v. Akzo Nobel Salt Inc. ,
19 FMSHRC 1254, 1257 (July 1997) (“The Commission enjoys broad
remedial power in fashioning relief for victims of discrimination.”). Justice has requested all “concession(s) available to me
as permitted by [the] Mine Act . . . .” (Compl. at 2.) Justice is not an
attorney, is pro se, and, consequently, cannot avail himself to attorney’s
fees. However, at this stage, I cannot rule out the possibility of another
appropriate remedy for section 105(c) interference.

4.         Other Arguments by
Justice

In his Opposition,
Justice makes several other arguments, which I feel compelled to construe as
opposing Rockwell Mining’s motion. For example, he asks for the Court to “dispense”
with or “void” certain exhibits or arguments in Rockwell’s Motion. (Opp. at 1, 2,
4, 6.) However, Commission Judges may admit “[r]elevant evidence,
including hearsay evidence, that is not unduly repetitious or cumulative . . .
.” 29 C.F.R. § 2700.63(a). He asks the Court to order MSHA to produce documents
(Opp. at 6), but MSHA is not a party to this proceeding. [6]
Justice asks the Court to examine maps of Gateway Eagle Mine—which he believes
may contain “violation[s] or imminent dangers”—for “security risks.” (Opp. at 9).
In his numerous arguments, it is sometimes difficult to tell what Justice is
requesting, and some requests seem unrelated to Rockwell Mining’s motion. Accordingly,
I construe Justice’s various arguments not to be motions but simply statements
in opposition to Rockwell’s motion to dismiss. Justice is reminded that “[w]ritten
motions shall be set forth in a document separate from other pleadings.” 29
C.F.R. § 2700.10(b).

C.        Conclusion

The standard for summary decision under Commission
precedent is not whether the non-moving party is likely to prevail but whether the non-moving party can “prevail under any
circumstances.” KenAmerican Res., Inc. , 38 FMSHRC at 1947 (quoting Campbell ,
21 F.3d at 55). The presence of a “genuine issue as to any material
fact” means that Justice could prevail. See 29 C.F.R. §
2700.67(b). Justice makes several allegations which, when I draw all inferences
in his favor, create a genuine dispute of material fact as to whether Rockwell
Mining interfered with his Mine Act rights as a miners’ representative. Summary
decision is therefore premature.

IV.
 ORDER

In light of the
foregoing, it is hereby ORDERED that Respondent’s Motion to Dismiss is DENIED .

/s/
Alan G. Paez

Alan
G. Paez

Administrative
Law Judge

Distribution: (Via Electronic Mail & U.S. Mail)

Marshall J. Justice, 255 Third Street West,
Madison, WV 25130-1045

(U.S. Mail Only)

Jonathan R. Ellis, Esq., Steptoe & Johnson PLLC, P.O.
Box 1588, Charleston, WV

25326-1588

([email protected])

/nsd

[1]
On July 6, 2018, Justice submitted the following complaint to MSHA: “Frank
Javins refused to provide [the] mine map as requested by Complainant. Respondent
has failed to notify Complainant, who is a miner’s representative for Mine No.
4606618 under the Mine Act, with [the] mandatory opportunity to exercise his
walkaround rights on MSHA inspections conducted during the day shift repeatedly
during the past year, and including several times as indicated on the attached
inspection records, during the 30 days prior to the filing of this Complaint[.]
Complainant seeks cessation of these Mine Act violations, and award of costs
& fees.” (Compl. at 8.)

[2] The Commission’s
procedural rules do not expressly contemplate a motion to dismiss for failure
to state a claim, but Commission Judges addressing such motions have looked to
Federal Rules of Civil Procedure 12(b)(6) and treated such motions as motions
for summary decision. See, e.g. , Sec’y on behalf of Chaparro
v. Comunidad Argricola Bianci, Inc. , 32 FMSHRC 1517, 1518 (Oct. 2010)
(ALJ); see also 29 C.F.R. § 2700.1(b) (“the Commission and its Judges
shall be guided so far as practicable by the Federal Rules of Civil Procedure”).

[3] Some of the
arguments in Justice’s Opposition could be construed as a cross-motion for
summary decision in his favor. However, the arguments in the Opposition
essentially recapitulate those in the Complaint, and, for this reason, I
decline to evaluate those arguments as though Justice were arguing his entitlement
to a decision without a hearing as a matter of law.

[4] In this order,
I need not decide between the tests because the complaint survives the more
stringent test.

[5]
A miners’
representative is “[a]ny person or organization which represents two or more
miners at a coal or other mine for the purposes of the Act . . . .” 30 C.F.R. §
40.1(b)(1). See also Utah Power & Light Co. v. Sec’y of Labor , 897
F.2d 447, 455 (10th Cir. 1990) (confirming that any person or organization
representing two or more miners is a miners’ representative under 30   C.F.R. §
40.1(b)). Rockwell Mining does not dispute that two or more miners appointed
Justice as their miners’ representative. (Mot. at 1.)

[6]
A party
may choose to submit a written Freedom of Information Act (“FOIA”) request
either to the National MSHA FOIA Officer or to an MSHA FOIA Coordinator.