**FEDERAL MINESAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF THE CHIEF ADMINISTRATIVE LAWJUDGE

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

WASHINGTON, DC 20004-1710

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

 

 

**ORDER DENYING THE ACTING SECRETARY’S**

**MOTION FOR SUMMARY DECISION, DENYING THEACTING SECRETARY’S MOTION TO STRIKE WARRIOR MET’S AMENDED ANSWER, AND GRANTINGWARRIOR MET’S MOTION FOR LEAVE TO FILE AMENDED ANSWER**

 

Before:            Judge Thomas P. McCarthy

 

            Thesedockets are before the undersigned upon the Secretary of Labor’s interferencecomplaint filed against Respondent Warrior Met Coal Mining, LLC, for allegedviolations of section 105(c)(1) of the Federal Mine Safety and Health Act of1977, 30 U.S.C. 815(c)(1). 

 

**I.              ****Procedural History**

 

Dockets SE 2023-0146 and SE 2023-0147 wereassigned to the undersigned on April 12, 2023. Prior thereto, the undersigneddisposed of numerous other dockets that pre-dated the assignment of the instantdockets and that arose during an economic strike. In the interest of providinga comprehensive record, a truncated recitation of the procedural history for theprior dockets is included below.

 

*a.    **Prior Dockets*

 

In the prior dockets, the Secretary issuedfive 104(a) citations and thirteen penalty assessments to Warrior Met CoalMining LLC (“Respondent”), each alleging a violation under section 103(f) ofthe Mine Act. The collective citations alleged that Respondent violated theMine Act on multiple occasions by denying “miners’ representatives” access tothe No. 4 and No. 7 Mines. Respondent denied these allegations and assertedthat the individuals claiming to be miners’ representatives were not properlydesignated by an individual or individuals actively working in a coal or othermine. *See*30 U.S.C. § 802(g); *see also**Cyprus Empire Corp.*,15 FMSHRC 10 (Jan. 25, 1993). 

 

On November 8, 2022, Respondent timelyfiled two documents titled “Notice of Contest and Unopposed Request forExpedited Hearing.” The first of these filings concerned Docket Nos. SE2023-0028 and -0029, which both involved alleged violations at the No. 7 Mine. Thesecond filing concerned Docket Nos. SE 2023-0030, -0031, and -0032, which relatedto alleged violations at the No. 4 Mine. On December 2, 2022, the Secretary ofLabor filed Answers to each Notice of Contest.[1]

 

Following these initial submissions, theparties engaged in protracted parleys involving complex discovery that was attimes directly overseen by this administrative tribunal. Both parties engagedin 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 IrrelevantEvidence and Testimony. On January 27, 2023, Respondent filed a Motion forTemporary Reliefrequestingthat the undersigned 

 

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

 

Resp’tApp. for Temp. Relief at 3. Respondent then filed a Motion to Compel on January31, 2023, seeking to require the Acting Secretary to “fully respond to[Respondent’s] Interrogatories and Requests for Production of Documents, and toprovide further testimony.” Resp’t Mot. to Compel at 1.

 

            OnFebruary 2, 2023, my office received 1) Respondent’s Opposition to theSecretary’s Motion in Limine, 2) Respondent’s Motion to Postpone and RescheduleHearing and Related Prehearing Deadlines, and 3) the Secretary’s Opposition toRespondent’s Application for Temporary Relief. On February 7, 2023, theundersigned held a conference call with the parties to discuss outstandingmotions, including Respondent’s Motion to Compel and the Acting Secretary’sMotion in Limine. During the conference call, the parties were encouraged tonarrow and work toward resolution of outstanding discovery issues.  Inaddition, the Secretary was ordered to provide a privilege log consistent withFed. R. Civ. Proc. 26(b)(5)(A)(ii). Further, the undersigned agreed to reviewdisputed documents *in camera* if the parties were unable to resolveredaction or privilege issues through a privilege log or protective order.

 

            OnFebruary 13, 2023, the undersigned issued an Order Denying Respondent’sApplication for Temporary Relief.[2]On February 15, 2023, the Secretary submitted a Response to Respondent’s Motionto Compel. On February 21, 2023, following receipt of the Secretary’s Response,the undersigned held a follow-up conference call to further discuss alldiscovery issues that were outstanding, including the discoverability ofcertain topics, the production of documents by MSHA to Respondent, thesubmission of other documents for *in camera* review, and furtherdepositions of MSHA and United Mine Workers of America (“UMWA”) representatives.[3]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 ActingSecretary was given until March 10, 2023 to file a Sur-Reply. Respondent timelyfiled a Reply on March 10, 2023, and the Acting Secretary submitted a Sur-Replyon March 12, 2023.

 

On March 26, 2023, the Acting Secretaryfiled a Motion to Dismiss all of the five Contest Proceedings and five of thethirteen Civil Penalty Proceedings in the exercise of her prosecutorialdiscretion. *See RBK Construction, Inc.*, 15 FMSHRC 2099, (October 1993). Myoffice 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 PenaltyDockets. On April 10, 2023, my office received a second amended version of theActing Secretary’s Motion to Dismiss (“Amended Motion to Dismiss”). That sameday, the Acting Secretary filed a section 105(c)(1) interference complaint withtwo counts. Count One alleged that Respondent interfered with the exercise ofstatutory rights by miners and miners’ representatives at the No. 4 and No. 7mines by refusing to allow properly designated miners’ representatives toaccompany MSHA on inspections, thereby discouraging miners and theirrepresentatives from exercising their rights under section 103(f) and chillingtheir participation in MSHA inspections. Count Two alleged that Respondentinterfered 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 theUMWA and individual picketers in contempt of Alabama Circuit Court for allegedviolations of the Court’s latest injunction, including their attempts toexercise section 103(f) rights, thereby chilling miner and miners’representatives exercise of those rights.

 

Also on April 10, 2023, Respondent filed aMotion to Consolidate the collective Contest and Civil Penalty Proceedings withthe above-captioned Interference Complaints.

 

On April 18, 2023, the undersigned held aconference call with the parties to ascertain their respective positions on thepending motion to consolidate. During that call, the undersigned representedthat he was inclined to grant the Acting Secretary’s Motion to Dismiss, butreserved decision on this matter until Respondent had an opportunity to file awritten response to this motion. On April 20, 2023, the Acting Secretary filedan Opposition to Respondent’s Motion to Consolidate, and Respondent filed aResponse to the Acting Secretary’s Amended Motion to Dismiss. 

 

On April 28, 2023, the undersigned issueda written order granting the Acting Secretary’s Amended Motion to Dismiss andDenying Warrior Met’s Motion to Consolidate the collective Contest and CivilPenalty Proceedings with these interference dockets.

 

*b.    **ActiveInterference Dockets*

 

The Acting Secretary filed an initialInterference Complaint on April 10, 2023, and, as previously stated, thismatter was assigned to the undersigned on April 12, 2023. On April 14, 2023,the Acting Secretary filed an Amended Interference Complaint in Docket Nos. SE2023-0146 and -0147, alleging that Respondent chilled miner and miners’representatives’ exercise of section 103(f) rights when it filed a Motion forContempt in Alabama Circuit Court in response to alleged continued violationsof the Circuit Court’s injunction. In this Amended Complaint, the ActingSecretary alleges that Respondent refused to allow designated miners’representatives to accompany MSHA on inspections on November 4, 2022; November8–9, 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 originalinterference complaint and alleged that in January 2023, the UMWA, FloydConley, Eddie Pinegar, and Keri Bester filed section 105(c) complaints withMSHA alleging interference with statutory rights.  The sole remaining countremained the same as Count Two of the original complaint alleging section105(c)(1) interference by pursuit of state court contempt charges for theexercise of statutory rights under the Mine Act, including section 103(f)walkaround rights.  

 

On May 15, 2023, Respondent filed anAnswer to the Amended Interference Complaint. On May 24, 2023, the Secretaryfiled a Motion for Default Judgement, which was withdrawn on May 25, 2023. 

 

Thereafter, on August 31, 2023, theSecretary filed a Motion for Summary Decision. On September 5, 2023, Respondentfiled an Amended Answer to the Amended InterferenceComplaint. On September 6, 2023, the undersigned conducted a conferencecall with the parties and discussed the arguments set forth in the Secretary’sMotion for Summary Decision and in Respondent’s Amended Answer.[4] Near theconclusion of the call, the undersigned denied the Secretary’s motion forsummary decision, as follows:  

 

[At appx. 3:53 to4:23] “With regard to the motion for summary decision, I am denying thatmotion. Under Section [105(c)(1)], the language of the Act says that ‘becauseof the exercise of any statutory right.’ And, I find a genuine issue of law asto whether, in fact, there is any protected activity in this case. So, thatmotion is denied.”[5]

 

Following the September 6, 2023 conferencecall, the undersigned received the Secretary’s Motion to Strike Respondent’sAmended Answer and Respondent’s Initial Opposition to the Secretary’s Motionfor Summary Decision. On September 8, 2023, Respondent filed a Motion for Leaveto File Amended Answer, which pertains to its answer previously filed onSeptember 5, 2023. On September 10, 2023, the Secretary filed its Opposition toRespondent’s Motion to Amend its Answer.

 

The undersigned isin receipt of a number of other filings from the parties, including 1) Respondent’sMotion to Compel, filed September 20, 2023, and the Secretary’s Responsethereto, filed September 28, 2023; and 2) Respondent’s Motion for Phone Statusand Hearing on Motions, filed October 4, 2023, and the Secretary’s Response inOpposition, filed October 17, 2023. Further, the undersigned is in receipt oftwo October 16, 2023 filings from the United Mine Workers of America (“UMWA”),including 1) a Motion to Revoke Third Party Witness Subpoenas and Notice ofDeposition, and 2) a Motion to Revoke Third Party Subpoena Duces Tecum. Theundersigned will hold a conference call with parties and the UMWA on Tuesday,November 21, 2023, to discuss their respective positions as to theaforementioned filings. Ahearing is currently scheduled to commence on December 18, 2023.

 

**II.           ****TheActing Secretary’s Motion for Summary Decision**

 

TheSecretary argues that the initial pleadings in these matters are sufficient to establish,as a matter of law, that Respondent’s actions were violative of the Mine Act’sinterference provision. *See*30 U.S.C. § 815(c)(1). More specifically,the Secretary submits, in part: 

 

The undisputed material factsestablish that Warrior interfered with walkaround rights. The principal issuein this case is whether Warrior interfered with miners’ rights when it includedin its contempt motion explicit reference to section 103(f) rights, which werenot a subject of the injunctions that Warrior bases the motion on. Warrior hasa right to pursue its state court claims; it has no right to leverage the powerand prestige of the courts to condemn—unnecessarily and extraneously—section103(f) rights. Warrior’s actions—filing a motion seeking to hold persons incontempt for attempts to accompany MSHA during inspections—would be viewed byreasonable miners or miners’ representatives, under the totality of the circumstances,as tending to interfere with the exercise of walkaround rights.

 

Sec’yMot. for Summary Decision at 8.

 

TheSecretary’s motion essentially restates its position initially set forth beforedismissal of the prior dockets when the Secretary opined, as follows: 

 

The question in the interferencecase is not whether striking miners are “miners.” It is whether, from theperspective of a reasonable miner, [Respondent’s] actions tended to interferewith miners’ or miners’ representatives’ exercise of protected rights, andwhether those actions were justified by a legitimate and substantial businessinterest. *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. toConsolidate at 2.

 

Insupport of its request for summary decision, the Secretary identifies thefollowing set of “undisputed facts” that are purportedly sufficient to satisfythe Secretary’s burden of proof: 

 

1.     Warrior and theUnited Mine Workers of America were engaged in a labor dispute arising from thebargained contract between the parties from April 2021 through March 2023. 

2.     During thedispute, Warrior filed in the Circuit Court of Tuscaloosa County, Alabama fiveinjunctions seeking to bar the UMWA and other individuals from various actions(including property damage and business interference). 

3.     During the labordispute, beginning in October 2022, several UMWA members attempted to exercisesection 103(f) rights to accompany MSHA on inspections. 

4.     Warrior refused toallow those UMWA members to accompany MSHA. 

5.     These attemptscontinued through the time Warrior filed a motion for contempt. 

6.     On December 9,2022, Warrior filed a motion in the Circuit Court of Tuscaloosa County, Alabamato hold the UMWA and individual picketers in contempt of court for violationsof the fifth injunction. 

7.     The contemptmotion asserts various reasons for holding individuals in contempt, includingtrespass and damage to equipment, placing jack rocks in the road, holding ademonstration, and intimidation of other workers. 

8.     None of these arethe basis for the Secretary’s interference complaint. 

9.     The motion thenconcludes with a final rationale for contempt: 

Since October 26,2022 and on numerous occasions continuing to the present at both No. 4 Mine andNo. 7 Mine, UMWA agents and employees, usually two at a time, have arrived atvarious entrance gates and informed Warrior managers that they are there toconduct an inspection of the Warrior mine. They claim to beexercising their rights as miners’ representatives under Section 103(f) of theMine Act, whichsays a representative designated by two or more miners shall be given anopportunity to accompany the [Mine Safety and Health Administration] inspectorduring a physical inspection of the mine. These UMWA agents claim to have beendesignated by Warrior miners, but will not provide the names or contactinformation of the alleged designators (i.e., the Warrior miners who chose them).Warrior has responded professionally and consistently that they may not enterthe mine property. The Federal Mine Safety and Health Review Commission (andits ALJ[s]) is the administrative judicial body charged with the interpretationof the Mine Act and it has previously ruled that striking miners are not“miners[]” under the Mine Act and therefore striking miners cannot designaterepresentatives to accompany MSHA inspectors during MSHA’s inspections of themine. Therefore, the UMWA agents are not at the mine lawfully in thesecircumstances and are in direct violation of the Fifth Injunction when theypark at the mine entrance gate and get out of [...] their cars to confront withmine management with these unlawful demands. 

10.  The contemptmotion is a public filing.

11.  The day after itwas filed, screenshots were shared on Twitter. 

12.  The state courthas yet to rule on that motion as of the date of this filing. 

13.  The UMWA and twoindividuals subsequently filed section 105(c) discrimination complaints withMSHA alleging that Warrior violated section 105(c) when it refused to allowthem to accompany MSHA on inspections. 

14.  Based on thecomplaint[s], MSHA conducted an investigation and gathered publicly availableinformation regarding the parties’ relationship, activities, court filings andsocial media posts in order to determine if any section 105(c) rights wereaffected.

15.  MSHA determinedthat the specific clause in the contempt motion referring to section 103(f)rights constituted interference under section 105(c). 

16.  MSHA determinedthat the public nature of the contempt motion filing and the fact that it wasshared on social media created an atmosphere that suggested miners could bepunished in state court for attempting to exercise their rights.

17.  Warrior has ahistory of violations of the Mine Act over the 15 months preceding the allegedsection 105(c) violation at issue in this case. 

18.  Warrior is a largeoperator; in 2022, it produced 6.3 million tons of coal. 

 

Sec’y Mot. for Summary Decision at3-5.

 

TheSecretary argues that the factual assertions delineated above establish thatRespondent’s actions “reasonably tended to discourage miners from engaging inprotected activities,” and tended to interfere with the exercise of statutory rights.*See Sec'y of Lab. ex rel. Poddey v. Tanglewood Energy, Inc*., 18 FMSHRC1315, 1321 (Aug. 1996); *see also**Marshall Cnty. Coal Co.*, 923F.3d at 202 (D.C. Cir. 2019) (quoting *Moses v. Whitley Dev. Corp*., 4FMSHRC 1475, 1479 n.8 (1982), aff’d, 770 F.2d 168 (6th Cir. 1985)( holding that**“[w]hether an operator’s actions are proscribed by the Mine Act must bedetermined by what is said and done, and by the circumstances surrounding thewords and actions.”).

 

Inits Oppositionto the Secretary’s Motion for Summary Decision, Respondent argues as follows:

 

The Secretary reliesalmost exclusively on her own unverified allegations found in the Secretary’sAmended Complaint – many of which were specifically denied by Warrior in itsAnswer and subsequent Amended Answer. For example, in paragraph 3 of theSecretary’s MSD, she states: “During the labor dispute, beginning in October2022, several UMWA members attempted to exercise section 103(f) rights toaccompany MSHA on inspections.” Of course, contrary to the Secretary’sunsupported representation to the Court, this paragraph is not “undisputed.”Indeed, a central question in this case is whether the UMWA members—whoundisputedly were not lawfully designated as miners’ representatives by“miners” as defined in the Mine Act—were in fact “exercis[ing] section 103(f)rights to accompany MSHA on inspections.” The Commission’s controlling case lawclearly answers that question in the negative. *See Cyprus Empire Corp*.,15 FMSHRC 10 (Jan. 1993) (“The Mine Act’s definition of ‘miner’ is not groundedin the rights of employees under the [National Labor Relations Act] or underprivate collective bargaining agreements. We perceive no statutory warrant inthe Mine Act for treating an operator’s striking employees as ‘miners.’”); *seealso Sherwin Alumina*, 37 FMSHRC 2153 (Sept. 2015) (ALJ McCarthy) (“*CypressEmpire*controls in the context of an economic strike.”). Moreover, theSecretary fails to adequately explain why the United States Supreme Courtdecision in *Bill Johnson’s Restaurants, Inc. v. N.L.R.B.*, 461 U.S. 731(1983) does not prevent the ALJ from deciding the issues presented in this casewhile Warrior’s Fourth Motion for Contempt remains pending before the CircuitCourt for Tuscaloosa County, Alabama.

 

Warrior Opp. toMot. for Summary Decision at 3-4. Respondent further contends that:

 

It iswell-established that Rule 56(c)(1)(A) does not permit a party to rely on thepleadings to establish a fact. *Middlegate Dev., LLP v. Beede*, Case NO.10-0565-WS-C, 2011 U.S. Dist. LEXIS 88327 *43-44 (S.D. Ala. Aug. 9, 2011)(“[H]owever, the Beedes’ only citation for the fact is to “Beede Answer andCounterclaim.” That is not sufficient to satisfy the Beedes’ threshold burden underRule 56 of the Federal Rules of Civil Procedure. As summary judgment movants,the Beedes must support their assertions of undisputed fact by reference not topleadings, but to specific materials in the record.”); *Keever v. First Am.Title Ins. Co.*, Case No. 4:13-cv-00246-HLM, 2014 U.S. Dist. LEXIS 186782,*6-7 (N.D. Ga. May 21, 2014), *aff'd*, 605 App'x 953 (11th Cir. 2015)(holding that plaintiff could not cite only unsubstantiated allegations in thecomplaint in support of a summary judgment motion). The Secretary’s failure toprovide actual evidence in support of a Motion for Summary Decision is alonegrounds for denial of that Motion. 

 

Warrior Opp. toMot. for Summary Decision at 3, n. 2.

 

Thelegal standards governing disposition of a motion for summary decision withinCommission proceedings are relatively straightforward. Commission Rule 67(b),29 C.F.R. § 2700.67(b), provides that: “[a] motion for summary decision shallbe granted only if the entire record, including the pleadings, depositions,answers to interrogatories, and affidavits, shows: 1) that there is no genuineissue as to any material fact; and 2) that the moving party is entitled tosummary decision as a matter of law.” 29 C.F.R. § 2700.67(b); *see also**MissouriGravel Co.*, 3 FMSHRC 2470, 2471 (Nov. 1981) (“[A] party must move forsummary decision and it may be entered only when there is no genuine issue asto any material fact and when the party in whose favor it is entered isentitled to it as a matter of law.”). The Commission has long held that:

 

Summary decisionis an extraordinary procedure. If used improperly it denies litigants theirright to be heard. Under our rules, a party must move for summary decision andit may be entered only when there is no genuine issue as to any material factand when the party in whose favor it is entered is entitled to it as a matterof law.

 

*MissouriGravel Co.*,3 FMSHRC 2470, 2471 (Nov. 1981) (footnote omitted). It “is authorized only‘upon proper showings of the lack of a genuine, triable issue of materialfact.’” *Energy W. Mining Co.*, 16 FMSHRC 1414, 1419 (July 1994) (*quotingCelotex Corp. v. Catrett*, 477 U.S. 317, 327 (1986)).[6]

Amotion shall be accompanied by a memorandum of points and authorities and astatement of material facts specifying each material fact as to which the partycontends there is no genuine issue, and be supported by reference toaccompanying affidavits or other verified documents. 29 C.F.R. § 2700.67(c).  Anopposition shall include a memorandum of points and authorities and may besupported by affidavits or other verified documents. The opposition shall alsoinclude a separate concise statement of each genuine issue of material factsupported by reference to any accompanying affidavits or other verified documents.Material facts identified as not in issue by the moving party shall be deemedadmitted unless controverted by the statement in opposition. If a party doesnot respond in opposition, summary decision, if appropriate, shall be enteredfor the moving party. 29 C.F.R. § 2700.67(d).  

 

Whenconsidering a motion for summary decision, the judge must draw all “justifiableinferences” from the evidence in favor of the non-moving party. Fed. R. Civ. P. 56; *Celotex Corp. v.Catrett*, 477 U.S. 317, 327 (1986). The judge should only grant a summarydecision “upon proper showings of the lack of a genuine, triable issue ofmaterial fact.” *Energy West Mining Co.*, 16 FMSHRC 1414, 1419 (July1994) (quoting *Missouri Gravel Co.*, 3 FMSHRC 2470, 2471 (Nov. 1981) and *CelotexCorp. v. Catrett*, 477 U.S. 317, 327 (1986)); see also *Lakeview RockProds., Inc.*, 33 FMSHRC 2985, 2987-88 (Dec. 2011) (reiterating theCommission's summary decision rules). In reviewing a record on summarydecision, a judge must evaluate the evidence in the light most favorable to theparty opposing the motion. *Hanson Aggregates New York, Inc.*, 29 FMSHRC4, 9 (Jan. 2007); see also *Poller v. Columbia Broadcasting Sys., Inc.*,368 U.S. 464, 473 (1962); *United States v. Diebold, Inc.*,369 U.S. 654, 655 (1962)).

 

            Here,the Secretary attempts to dictate a set of “undisputed facts” alleged tosupport her request for summary decision. ‘Undisputed Fact 3’ avers that“During the labor dispute, beginning in October 2022, several UMWA members attemptedto exercise section 103(f) rights to accompany MSHA on inspections.” Sec’y Mot.for Summary Decision at 3.  During disposition of the prior dockets, andthroughout the course of these subsequent interference proceedings, Respondenthas opposed the contention that UMWA members’ repeated efforts to accompanyMSHA on routine inspections constituted protected attempts to exercise section103(f) walkaround rights. *See*Sec’y Mot. for Summary Decision at 3. Indeed,Respondent contends that “a central question in this case is whether the UMWAmembers—who undisputedly were not lawfully designated as miners’representatives by ‘miners’ as defined in the Mine Act—were in fact‘exercis[ing] section 103(f) rights to accompany MSHA on inspections.’” WarriorOpp. to Mot. for Summary Decision at 3-4. Whether the UMWA members wereproperly designated and thus empowered to exercise section 103(f) rights thuspresents a genuine issue of material fact that might affect the Secretary’sability to carry her ultimate burden to establish that Respondent interfered withthe exercise of the statutory rights of any miner or miners’ representativebecause of the exercise by such miner or representative of miners, on behalf ofhimself or others, of any statutory right afforded by the Act. As noted, at thesummary decision stage, an inference must be drawn in Respondent’s favor that theUMWA members at issue here *were not*properly designated as miners’representatives. *See, generally, MClass Mining, LLC*, 41 FMSHRC at 582; *seealso*30 U.S.C. § 813(f). As the Secretary has thus not met her burden toestablish the lack of a genuine, triable issue of material fact, taking theextraordinary step of granting summary decision in her favor would beinappropriate.  *See generally,**Energy W. Mining Co.*, 16 FMSHRC at1419.

 

            Furthermore,the Secretary’s case, in her own words, turns on a determination of “how areasonable miner or miners’ representative—regardless of whether any particularperson was on strike—would be affected by Respondent’s actions.” Sec’y Opp’n toResp’t Mot. to Consolidate at 2.  The Secretary alleges that “Warrior’s specificidentification of the attempted exercise of Mine Act rights as part of thecontemptible behavior is interference.” Sec’y Mot. for Summary Decision at 8,n. 2; see also alleged “Undisputed Fact 15” above (“MSHA determined that thespecific clause in the contempt motion referring to section 103(f) rightsconstituted interference under section 105(c).” In the clause MSHA relies on,Respondent states: “They [ i.e., UMWA agents and employees] claim to beexercising their rights as miners’ representatives under Section 103(f) of theMine Act ....” Sec’y Mot. for Summary Decision at 4. AtUndisputed Fact 16, MSHA also determined that the public nature of the contemptmotion filing and the fact that it was shared on social media created anatmosphere that suggested miners could be punished in state court forattempting to exercise their rights.  Sec’y Mot. for Summary Decision at 5.  

 

Despite MSHA’s arguments, I find summaryjudgment inappropriate.  The language of section 105(c)(1) speaks to interference with the exerciseof the statutory rights of any miner or miner representative because of theexercise by such miner or representative of miners, on behalf of himself orothers, of any statutory right afforded by the Act.  If there is no exercise ofa statutory right and only the attempted exercise of purported walkaroundrights that have not been recognized as protected activity by the Commission,there is a genuine issue of law as to whether there can be any interferencebecause of the exercise of any statutory right under the Act.  

 

            Insum, I find the Secretary’s motion insufficient to establish the absence of anygenuine issue of material fact, or to mollify this tribunal’s concerns as tothe existence of the requisite protected activity to support a finding ofinterference.  Accordingly, the Secretary’s Motion for Summary Decision is **DENIED.**

 

**III.         ****Respondent’sMotion to Amend its Answer**

** **

On September 5, 2023, the undersignedreceived Respondent’s Amended Answer to the Amended Interference Complaint. Respondentdid not request formal leave to file its amended answer, but rather filed amotion on September 8, 2023, seeking retrospective leave to file its amendedanswer. On September 6, 2023, the undersigned received the Secretary’s Motionto Strike Respondent’s Amended Answer. On September 10, 2023, the undersignedreceived the Secretary’s Opposition to Respondent’s Motion to Amend its Answer.

 

TheCommission has no specific rule regarding amendment of pleadings. CommissionRule 29 C.F.R § 2700.1(b), however, states that “[o]n any procedural questionnot regulated by the Act, these Procedural Rules, or the AdministrativeProcedures Act . . . the Commission and its judges shall be guided so far aspracticable by the Federal Rules of Civil Procedure.” Federal Rule of CivilProcedure 15 allows a party to amend a pleading once as a matter of coursewithin 21 days after serving it (or 21 days after service of a responsivepleading, or Rule 12(b), (e) or (f) motion). Fed. R. Civ. P. 15(a)(1)(A),(B); *seealso*29 C.F.R. 2700.1(b) (the Commission incorporates the Federal Rules ofCivil Procedure, so far as practicable, on any procedural question notregulated by the Mine Act, the Commission’s Procedural Rules, or theAdministrative Procedure Act). In all other cases, a party may amend pleadingsonly with the opposing party’s consent or leave of the court; the court should freelygive leave where justice so requires. Fed. R. Civ. P. 15(a)(2). The Commissionhas required a liberal application of Rule 15(a), explaining that “amendmentsare to be liberally granted unless the moving party has been guilty of badfaith, has acted for the purpose of delay, or where the trial of the issue willbe unduly delayed. *See Wyoming Fuel*, 14 FMSHRC 1282, 1290 (Aug. 1992),citing *Cyprus Empire Corp*., 12 FMSHRC 911, 916 (May 1990).

 

Respondent’smotion to amend its answer presents several new defenses. First, Respondentsubmits that, under *Bill Johnson’s Restaurants, Inc. v. NLRB*, 461 U.S.731 (1983), the Commission cannot enjoin or interfere with state courtproceedings, or any arguments advanced in those proceedings. *See*WarriorAmended Ans. at 6-7. Second, Respondent submits that, under the U.S. SupremeCourt’s decision in *Bill Johnson’s*, the substance of the state lawclaims are reserved for the state court to adjudicate. *Id.*Third, Respondentsubmits that that the Secretary’s amended complaint must be dismissed forfailure to state a claim on which relief can be granted. *Id.* Fourth, Respondentasserts that the Secretary’s proposed remedy violates the First Amendment byseeking to enjoin speech made truthfully within a state court proceeding. *Id*. 

 

            Asan initial matter, the undersigned admonishes Respondent for its failure torequest leave *before*filing its amended answer. As the Secretary hasaccurately observed, Respondent’s motion to amend its answer was filedapproximately four months following the filing of its initial answer, and fivemonths after the Secretary filed its amended interference complaint. *See*Sec’yMot. to Strike at 2. Therefore, the 21-day period in which Respondent wasentitled to amend its answer as a matter of course has long since passed, andthe proper course of action would have been for Respondent to request eitherconsent to amend its answer from the Secretary or leave from this tribunal inadvance of filing its amended answer, rather than seeking forgiveness after thefact for its failure to abide by the appropriate procedural standards.*See*Fed. R. Civ. P. 15(a)(1)(A),(B); *see also*29 C.F.R. 2700.1(b).

 

Theundersigned disagrees, however, with the Secretary’s assertion that allowingRespondent to amend its answer through the exercise of leave of this tribunalwould somehow run afoul of party presentation principles. *See*Sec’y Mot.to Strike at 2-3. In her Motion to Strike, the Secretary states: 

 

Warrior offers these defenses expost facto, after having the benefit of listening to the judge discuss BillJohnson’s, following an unrecorded status conference call during which thejudge raised the case and questioned the Secretary as to its applicability.  Thisraises party presentation issues; courts “rely on parties to frame the issuesfor decision and assign to [themselves] the role of neutral arbiter of mattersthe parties present.” *Hopedale Mining, LLC*, 42 FMSHRC 589, 593 (Aug.2020) (quoting *U.S. v. Sineneng-Smith*, 590 U.S. ___, 140 S.Ct. 1575,1579 (2020)). Warrior must frame its own issues rather than poaching a framingfrom the Court; likewise, the role of the Court is to evaluate the facts andlaw presented, not to sua sponte furnish a party with defenses or frame theissues prior to the parties’ presenting arguments.

 

Theimport of a U.S. Supreme Court decision represents mandatory legal authority,where and when applicable. I reject the Secretary’s suggestion that thistribunal has somehow overstepped its adjudicatory responsibilities by askingthe parties to address the possible limitations imposed by a U.S. Supreme Courtcase that *the Secretary herself*has identified in her Motion for SummaryDecision (*see*Sec’y Mot. for Summary Decision at 8, n. 2.).  I concludethat it is a judge’s unique responsibility to review potentially controllinglegal authority and inquire whether it applies to the facts at hand in aparticular case. Requesting the parties’ respective positions as to potentiallycontrolling Supreme Court case law is not ‘furnishing’ a legal defense; rather,it is one of the core responsibilities of this tribunal.

 

Theundersigned agrees with the Secretary’s observation that Respondent could haveidentified its position concerning the *Bill Johnson’s*holdings in itsOpposition to the Secretary’s Motion for Summary Decision. *See*Sec’yMot. to Strike at 2. The fact that Respondent chose not to do so, however, doesnot establish that it would be contrary to the interests of justice to allowRespondent to raise these issues now by amending its answer, especially in theabsence of evidence that Respondent has been guilty of bad faith or acted forthe purpose of delay. *See Wyoming Fuel*, 14 FMSHRC at 1290, citing *CyprusEmpire Corp*., 12 FMSHRC at 916. Moreover, Respondent correctly notes thatgranting its request for leave to file its amended answer would not alter anydeadlines or otherwise impact the scope of discovery in this proceeding, norwould the Secretary suffer any identifiable prejudice as a result of Respondentbeing afforded leave to amend its Answer. *See*Warrior Mot. for Leave toAmend at 2.  Therefore, the undersigned interprets Rule 15(a) liberally, and will**GRANT**Respondent’s request to amend its Answer to the AmendedInterference Complaint.

 

 

 

**ORDER**

** **

For the reasons discussed above, theActing Secretary’s Motion for Summary Decision is **DENIED;**

 

Further, the Acting Secretary’s Motion toStrike Respondent’s Amended Answer is **DENIED**;

** **

Finally, Respondent’s Motion for Leave toFile Amended Answer is **GRANTED**.

 

 

 

 

                                                                                    /s/Thomas P. McCarthy

                                                                                    ThomasP. McCarthy

                                                                                    AdministrativeLaw Judge

 

 

Distribution:

 

SusannahM. Maltz

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

Divisionof Mine Safety & Health

20112th Street South, Suite 401

Arlington,VA 22202

maltz.susannah.m@dol.gov

 

DavidSmith

JohnB. Holmes, III

W.Brock Phillips

MAYNARDCOOPER & GALE, PC

1901Sixth Ave North

1700Regions/Harbert Plaza

Birmingham,AL 35203

dsmith@maynardcooper.com

jholmes@maynardcooper.com

bphillips@maynardcooper.com

 

HillPickens

UnitedMine Workers of America

18354Quantico Gateway Dr., Suite 200

Triangle,VA 22172

hpickens@umwa.org

 

MarkJ. Murphy

MOONEY,GREEN, SAINDON, MURPHY & WELCH, P.C.

1920L. Street, NW, Suite 400

Washington,DC 20035

mmurphy@mooneygreen.com

 

 

/cbb

----

[1]The Secretary and, after March 11, 2023, the ActingSecretary, 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.

 

Respondentsubmitted Answers to eight of the thirteen Civil Penalty Petitions, which werereceived 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.

 

[2] In its Application for TemporaryRelief, Respondent argued that the miners’ representatives at issue in thiscase were not properly designated by striking employees, who do not meet theCommission’s definition of “miners” under *Cyprus Empire Corp*., 15 FMSHRC10 (Jan. 1993). Respondent averred that the Secretary issued a new civilpenalty each time Respondent declined entry to the person designated as aminers’ representative by the striking employees.  Forrelief, Respondent requested that the undersigned consolidate all Petitions forAssessment of Civil Penalties against Respondent. At the time the Applicationfor Temporary Relief was filed, the applicable Dockets Nos. were SE 2023-0041,SE 2023-0042, SE 2023-0051, SE 2023-0053, SE 2023-0056, and SE 2023-0057. Respondentalso requested that the undersigned prohibit any future Civil PenaltyAssessments against Respondent relating to these underlying matters. *See*Resp’tApp. for Temp. Relief at 3. 

 

The undersigneddenied Warrior Met’s application for temporary relief from the issuance offurther 104(a) citations, for three reasons. First, the Mine Act only allowstemporary relief to be granted from “order[s],” not from citations. *See*30 U.S.C. § 815(b)(2). Second, the relevant provision of the Mine Actexplicitly precludes the Commission from granting temporary relief from “acitation issued under subsection (a) . . . of section 104.” *Id.*; *seealso* 29 C.F.R. § 2700.46(a). Finally, the Commission does not have theauthority to stop the Secretary from proposing penalties. *See generally, Am.Coal Co. v. FMSHRC*, 933 F.3d 723, 724 (D.C. Cir. 2019). 

 

[3] With regard toRespondent’s discovery requests seeking the identity of striking miners whodesignated the UWMA representatives, the undersigned found that MSHA was notobligated 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 thatissue, the undersigned granted the Secretary’s Motion in Limine and deniedWarrior Met’s Motion to Compel. Given the parties’ representation that theywere working towards a settlement of the above matters, the undersigned foundit unnecessary to definitively rule on other outstanding discovery orevidentiary issues at that time. 

 

[4] In addition tothe previously referenced calls on April 18 and September 6, 2023, the undersignedalso conducted a conference call on July 31, 2023 to ascertain the proceduralstatus of the two interference dockets as of that date.

[5] In denying theSecretary’s Motion for Summary Decision, the undersigned inadvertently citedSection 105(c)(3) rather than 105(c)(1).

[6]Summary judgment is proper only if there is noreasonably contestable issues of fact that are potentially outcomedeterminative.  *See e.g., Wallace v. SMC Pneumatics, Inc*., 103 F.3d1394, 1396 (7th Cir. 1997). This standard mirrors the standard for a directedverdict under Federal Rule of Civil Procedure 50(a). Under that standard, thetrial judge must direct a verdict if, under the governing law, there can be butone reasonable conclusion as to the verdict. If reasonable minds could differas to the import of the evidence, however, a verdict should not be directed. See*Anderson v. Liberty Lobby, Inc.*, 477 U.S. 242, 250-251 (1986), citing *Bradyv. Southern R. Co.*, 320 U.S. 476, 479‐480 (1943) and *Wilkerson v.McCarthy*, 336 U.S. 53, 62 (1949).