**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

 

 
| 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.                                                                                                                                                   |   |   | 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 Reliefrequesting 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 (Oct. 1993). 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

abreu.jean.c@dol.gov

miller.daniel.p@dol.gov

spainstaton.nicole.a@dol.gov

 

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

maltz.susannah.m@dol.gov

grover.jason@dol.gov

 

DavidSmith

JohnB. Holmes, III

W.Brock Phillips

MAYNARDCOOPER & GALE, PC

1901Sixth Ave North

1700Regions/Harbert Plaza

Birmingham,AL 35203

dsmith@maynardcooper.com

jholmes@maynardcooper.com

bphillips@maynardcooper.com

 

/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.