On July 18, in Hopkins County Coal, LLC v. Perez, the U.S. Court of Appeals for the Sixth Circuit issued an opinion upholding two citations and an order issued to a mine operator, Hopkins County Coal, for its refusal to turn over certain personnel records requested by the Mine Safety and Health Administration (MSHA) during a § 105(c) discrimination complaint investigation. The mine operator challenged the request for the records on several grounds, arguing that the Secretary of Labor overstepped his authority because the records were not among those that the Mine Act requires operators to keep and also that neither the miner nor MSHA had ever told the mine operator what the factual basis was for the miner’s discrimination case.
Here are the facts. In 2009, miner Kenny Gatlin was fired by the mine operator for insubordination after he refused to do a pre-shift exam on a mine belt. He turned around and filed a § 105(c) discrimination complaint against his former employer, but his complaint did not specifically allege that he had engaged in protected activity, one of the key requirements for a successful discrimination claim under the Mine Act. Even though the miner had not set out facts that would support his case, MSHA opened an investigation. Despite at least two clear requests from the mine operator, MSHA would not tell the mine operator what it believed might have been Gatlin’s protected activity. The MSHA special investigator asked to interview five members of management about Gatlin’s claim, but they would not consent to interviews. Then the inspector requested a number of documents from the mine operator.
After initially refusing to turn over the documents, the mine operator produced everything except for two sets of records: Gatlin’s personnel file and the personnel files of all employees at the mine who had been disciplined for behavior like the behavior that led to Gatlin’s termination. MSHA cited the mine under § 103(a) and § 103(h) of the Mine Act for failing to produce the files, and then issued a withdrawal order under § 104(b) for failing to abate the citation within the deadline set by the inspector. Finally, MSHA issued a second citation for continuing to operate in the face of the withdrawal order.
The mine operator contested the paper, all of which was upheld – first by an administrative law judge (ALJ), and subsequently by the Federal Mine Safety and Health Review Commission (Commission). The mine operator appealed the Commission’s decision to the U.S. Court of Appeals for the Sixth Circuit, which affirmed the ALJ and the Commission and upheld the citations and the order.
The Sixth Circuit reached two important conclusions of law in holding against the mining company. First, it found that the Secretary had the right to obtain the requested documents from the mine operator, even though the personnel records were not records that the Mine Act requires mine operators to keep. The Court held that § 103(h) of the Mine Act gives the Secretary the right to obtain the information he reasonably needs “to enable him to perform his functions” under the Act. Since investigating discrimination complaints is one of the Secretary’s “functions,” the Court reasoned, the mine operator was required to turn over the requested personnel records.
The Court also found that even though MSHA would never tell the mine operator what, exactly, was the basis for the discrimination claim, the mine operator still should have turned over the documents. The mine operator argued that because the Secretary hadn’t decided whether the miner had engaged in protected activity, he exceeded his authority by demanding the records before he had a reasonable belief that they were necessary to the investigation. The mine operator also argued – fairly, one would think – that it couldn’t judge the legality of the Secretary’s document request until it knew more about the miner’s claims. The Sixth Circuit rejected both those arguments, holding that a miner claiming discrimination does not need to come up with a perfectly crafted statement of his claim before the Secretary takes up the investigation, and that the Secretary is entitled to review documents as he investigates even a poorly articulated case. (Ironically, the Secretary ultimately decided that Gatlin’s claims were without merit and declined to pursue them further on his behalf.)
This case is bad news for mine operators, because it gives the Secretary one more legal precedent to cite when he is trying to obtain non-required documents from mine operators. There are some rays of hope, though. First, the decision is only binding on mine operators in the Sixth Circuit (in other words, in Kentucky, Michigan, Ohio and Tennessee) – although the Commission tends to accept and adopt rulings from any U.S. Court of Appeals, regardless of where the Court is located. Second, the Court’s opinion has not been recommended for official publication, which diminishes somewhat its precedential effect. Also, Judge Raymond Kethledge wrote a well reasoned dissent in the case, which mine operators can refer to when the issue arises in other courts. And finally, the Sixth Circuit itself limited the scope of its ruling to the facts of this particular case, writing: “we do not hold that mine operators must blindly comply with every administrative request to inspect private company records, no matter how hobbled the operator is in determining the legal validity of the request. Nor do we hold that every request for private company documents by the MSHA comports with the Fourth Amendment merely because a vague discrimination complaint was filed by a miner.”
If you have any questions about this decision, or about how best to protect company documents from a request from MSHA, please don’t hesitate to give us a shout. We’d be happy to help.