.
DISCIPLINARY PROCEEDING
Docket No. D 2001-1
May 14, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
May 14, 2002
DISCIPLINARY PROCEEDING : Docket No. D 2001-1
BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners
DECISION
BY: Verheggen, Chairman; Jordan, Commissioner
This disciplinary proceeding arises under Commission
Procedural Rule 80.[1] On November 21, 2000, the Commission
received a disciplinary referral under Rule 80(a) from a miner
who filed a discrimination complaint with the Department of
Labor's Mine Safety and Health Administration ("MSHA") and was
temporarily reinstated during the pendency of his case. In the
referral, the miner alleges that "there was unprofessional
conduct on the part of the attorneys handling [his] case,"
including the failure of his counsel to follow up on overtime
pay of over $13,000 to which he believed he was entitled under
the judge's temporary reinstatement order; and that he was
"coerced into making a settlement" of the discrimination case
brought by the Secretary on his behalf. In support of his
allegations, the miner attached to his referral copies of notes
of several phone conversations with counsel in the Solicitor's
Office, and an April 2000 letter from counsel in the
Solicitor's Office to the operator's counsel inquiring about
the status of the miner's overtime pay, which the solicitor
stated was due under the judge's order of temporary
reinstatement, but which had not been paid to the miner.
This is the second of two disciplinary matters arising
from the miner's discrimination case. In D 2000-1, we
considered a disciplinary referral based on a 19-month delay
by MSHA and the Office of the Solicitor of Labor in applying
to the Commission for the miner's temporary reinstatement.
24 FMSHRC 28 (Jan. 2002) ("Disciplinary Proceeding I"). A
majority of Commissioners dismissed the referral in
Disciplinary Proceeding I.
In reaching our conclusion in this matter, we considered
the material submitted by the miner as well as the record of
the Commission's investigation into Disciplinary Proceeding I,
which includes testimony from the Solicitor of Labor,
interviews with the miner, and the record in the underlying
discrimination proceeding. Regarding the miner's allegation
that he was "coerced into making a settlement," we find no
evidence that the miner was subjected to undue pressure or
compelled, against his will, to settle. We also note that
the parties' settlement agreement was approved by a Commission
Administrative Law Judge after a brief hearing. During the
hearing, the judge asked whether the settlement disposed of
any claims the miner might have, and was assured that it did.
In response to the judge's questions, the miner confirmed that
he had read the agreement, discussed it with counsel, and
agreed to it. In his decision approving settlement, the judge
also stated that he confirmed that all the parties understood
and agreed to the settlement agreement. The record of this
proceeding clearly indicates that no coercion occurred.
As for the other allegations made by the miner, even
assuming that the allegations are a true and unbiased
recitation of what occurred, we find no indication that any
individual attorney acted unethically.
Regarding the issue of the miner's overtime pay, in his
decision temporarily reinstating the miner, the judge awarded
the miner his former position with full pay and benefits, which
under Commission case law customarily includes overtime pay.
See Sec'y of Labor on behalf of Franco v. W.A. Morris Sand &
Gravel Inc., 18 FMSHRC 278, 289 (Feb. 1996) (ALJ); Sec'y of
Labor on behalf of Walker v. Dravo Basic Materials Co.,
12 FMSHRC 1127, 1128 (May 1990) (ALJ). As reflected in the
April 2000 letter from the miner's attorney in the Solicitor's
Office to the operator's counsel, the operator failed to
include overtime in the checks it sent to the miner pursuant
to the judge's reinstatement order.
The miner maintains that he contacted the solicitor by
phone to ask about the letter that was sent to the operator's
counsel, and that he was told there had been no response. The
miner recalls the solicitor telling him that he (the solicitor)
had not had the time to follow up on it, and that it would be
better to do so after trial. The miner's case was to have
gone to trial during August 2000, but settled the same day.
A hearing was held during which the judge approved the parties'
settlement agreement. Although the agreement the miner signed
states that "he waives any further claim to payment pursuant
to [the temporary reinstatement order]," the miner insists that
he was not told at any time before settlement that a settlement
agreement would include or cover past-due overtime payments.
In the weeks following settlement, the miner recalls that he
asked attorneys in the Solicitor's Office about the overtime
pay, but was told that under the settlement agreement, he was
not entitled to any such money.
Notwithstanding whether the miner would have been able to
prove entitlement to overtime pay,[2] we cannot overlook the
settlement agreement that the miner signed. The agreement
clearly states that the miner "waives any further claim to
payment pursuant to [the] Order of Temporary Reinstatement."
The agreement also includes a separate Release and Waiver of
All Claims, which contains very comprehensive language in
which the miner releases the operator "from any and all
actions, claims, causes of action, demands, costs and
expenses." Furthermore, as we state above, the judge who
approved this settlement agreement questioned the parties
and satisfied himself that the parties, including the miner,
understood the settlement.
It is difficult to conceive how anyone could read the
releases in the settlement agreement and sign the document if
they felt there was more due to them than the consideration
offered in the agreement, particularly in light of the judge's
questions regarding whether the parties understood the
settlement. If anything, the release ought to have put the
miner on notice that it was his last chance to resolve any
remaining matters, and the judge's questions provided him the
opportunity to raise any lingering concerns.
We will refrain from responding to all of the assertions
made in our colleague's opinion, but feel compelled to speak to
some of the more serious allegations. First, our colleague's
opinion suggests that the mere existence of Disciplinary
Proceeding I (which was based on the 19-month delay in filing
the application for temporary reinstatement) precluded the
ability of attorneys in the Solicitor's Office to objectively
recommend a fair settlement. Our colleague postulates that
attorneys in the Solicitor's Office wanted to settle the case
to avoid a trial where information adverse to their interests
in the disciplinary proceeding might surface. Slip op. at 6-7,
10. This speculative theory is based on the unsupported
assumption that the hearing would somehow have focused on the
Secretary's delay in filing the temporary reinstatement
application, and not on whether the miner was fired in
violation of section 105(c). We choose not to engage in any
such speculation, and refuse to draw any such conclusions.
To the contrary, we find that the record before us belies
Commissioner Beatty's suggestion that the attorneys in the
Solicitor's office rushed to settlement to avoid a trial that
would reveal information harmful to them. Conversations about
settling the discrimination case occurred many months before
the case actually settled in August 2000, and before the
Disciplinary Referral was filed on May 17, 2000. In fact, the
judge himself, in his April 12, 2000 Prehearing Order, directed
the parties "to confer for the purpose of discussing
settlement."
Commissioner Beatty also asserts that the attorneys in the
Solicitor's Office pressured the miner to settle the case.
However, the notes submitted by the miner reveal no undue
pressure or improper conduct. Indeed, they depict dialogue
typical of the kind that occurs between a lawyer and client on
the subject of settlement. In one conversation, which according
to the miner's notes occurred about three weeks before the case
settled, the lawyer asked the miner what he would accept to
settle the case. The miner responded with a figure. The lawyer
explained the problems of proof he expected to confront at
trial and proposed a lower figure, suggesting the employer
would be more inclined to consider this to be a reasonable
offer. The miner agreed to the figure and the case ultimately
settled for this amount.[3]
Finally, our colleague implies that an attorney from the
Solicitor's office might have pressured the miner into
accepting the settlement by suggesting that a hearing on the
miner's 105(c) complaint might lead to the resurrection of the
110(c) investigation of the miner. We find this assertion
completely unfounded and without record support. According
to the miner's notes, one of the attorneys did mention that
the operator could argue that the miner should be held
personally liable for the safety violations that led MSHA to
investigate the miner under section 110(c). However, the
attorney was simply repeating what the operator had argued at
the temporary reinstatement hearing. In any event, the miner's
notes state that one of the other attorneys from the
Solicitor's Office had previously assured the miner that MSHA
had already decided not to bring a 110(c) charge against him,
and that he had been "let off the hook."
In light of the foregoing considerations, we thus conclude
that assignment of this matter to an administrative law judge
for further proceedings is unwarranted. Accordingly, this
disciplinary referral is terminated.
Theodore F. Verheggen, Chairman
Mary Lu Jordan, Commissioner
**FOOTNOTES**
[1]: Commission Procedural Rule 80 provides in part:
(b) Grounds. Disciplinary proceedings may
be instituted against anyone who is
practicing or has practiced before the
Commission on grounds that such person has
engaged in unethical or unprofessional
conduct. . . . (c) Disciplinary proceedings
shall be subject to the following procedures:
(1) Disciplinary referral. . . . [A] person
having knowledge of circumstances that may
warrant disciplinary proceedings against an
individual . . . shall forward to the
Commission for action such information . . .
(2) Inquiry by the Commission. The
Commission shall conduct an inquiry
concerning a disciplinary referral and shall
determine whether disciplinary proceedings
are warranted.
29 C.F.R. � 2700.80.
[2]: Our colleague contends the miner's unrebutted
testimony at the temporary reinstatement hearing proved his
entitlement to 20 hours a week overtime. Slip op. at 14-15 &
n.14. We disagree. Pleadings filed on behalf of the miner,
both before and after that hearing (including the
discrimination complaint an a declaration by the Solicitor
representing the miner), allege entitlement to only half
as much overtime. Moreover, due to the necessarily truncated
nature of temporary reinstatement proceedings, parties must
not be expected to conduct a preliminary adjudication
of the merits of a discrimination claim. Sec'y of Labor
on behalf of Price v. Jim Walter Resources, Inc., 9 FMSHRC
1305, 1306 (Aug. 1987) ("[t]he scope of a temporary
reinstatement hearing is narrow, being limited to a
determination by the judge as to whether a miner's
discrimination complaint is frivolously brought"), aff'd,
920 F.2d 738 (11th Cir. 1990). To expect parties to go
into a temporary reinstatement proceeding, ready to
litigate not only the entitlement to reinstatement but also
the dollar amount of damages at issue should a violation
ultimately be found, would unduly burden the proceeding.
[3]: Commissioner Beatty also makes the serious charge
that attorneys in the Solicitor's Office refused to relay the
miner's settlement offer. Slip op. at 12-13. Our colleague
cites nothing in the record to support this assertion,
and we have found none. The miner's notes describe a
conversation in which one of the attorneys reacts to the
miner's settlement proposal with skepticism, but says
nothing about refusing to convey it. The notes also reflect
a subsequent conversation that same day between the
miner and another attorney. The attorney expressed concern
that the offer was so high that it would stymie
settlement discussions. The miner told him he would
consider a lower figure and call him back.
Commissioner Beatty, dissenting:
I respectfully dissent from my colleagues' decision to
dismiss this proceeding without further investigating the
complaint made by the miner regarding the quality of the
representation he was provided by the Solicitor's Office with
respect to settlement of his discrimination complaint and
economic reinstatement pending resolution of his complaint.
The background of this proceeding must be fully considered
to understand the gravity of the miner's complaint. Much of
that factual background is set forth in the opinions of the
Commission in Disciplinary Proceeding, 24 FMSHRC 28 (Jan. 2002)
("Disciplinary Proceeding I"). In short, despite the Mine Act's
requirement that the Secretary of Labor act expeditiously on a
discharged miner's request for temporary reinstatement under
section 105(c), the Secretary did not act on the miner's request
for temporary reinstatement for 19 months.[1] Upon the
application's eventual filing, a Commission administrative law
judge ordered the operator to reinstate the miner and the
Commission quickly affirmed that order. The miner did not
return to work, but instead the parties agreed to economic
reinstatement which, according to the judge's order, was
supposed to return the miner to the same economic position he
was in before his termination.
In light of the 19-month delay in the filing of the
application - a period of time so contrary to the intent of
the Mine Act's temporary reinstatement provision that it stands
as a monument to the Secretary's failure to comprehend the
purpose of the remedy - I became concerned that Department of
Labor attorneys may have been involved in failing to timely
act upon the miner's reinstatement application. Consequently,
I filed a disciplinary referral with the Commission on May 17,
2000, which eventually resulted in Disciplinary Proceeding I.
It is important to note that my referral to the Commission was
pending for nearly 3 months before the scheduled hearing date
on the merits of the miner's discrimination complaint, August
15, 2000.
Ironically, on the day of the hearing, the miner, at the
Secretary's insistence, settled his case with the operator.
Approximately 3 months later, the miner filed a disciplinary
referral with the Commission, taking issue with the
representation he was provided by the Solicitor's Office
attorneys in connection with the settlement agreement, and,
more importantly, the terms of the settlement agreement as
they related to the money he was owed as part of his temporary
economic reinstatement.
In response to the disciplinary referrals, the former
Solicitor of Labor, Henry Solano, appeared before the
Commission to discuss both the miner's disciplinary referral
and Disciplinary Proceeding I. During our meeting the Solicitor
attempted to explain away the first 12 months of the 19-month
delay because of a potential conflict of interest. According
to the Solicitor, his agency made a decision to forego
pursuing temporary reinstatement for the miner because of an
alleged investigation by MSHA for possible 110(c) charges
against the miner. He opined that while MSHA was investigating
the miner for a potential 110(c) charge, the case presented a
potential "conflict of interest" between the Solicitor's
obligation to represent its client, MSHA, and their statutory
obligation to pursue temporary reinstatement for the miner.[2]
Because the majority in Disciplinary Proceeding I refused to
conduct a complete investigation into Salono's explanation, no
one outside the Department of Labor, including the miner,
knows why or how the investigation could have resulted in a
delay of an entire year.
It is only after a year had elapsed that MSHA decided
to forward the case to the regional Solicitor's Office to
process the miner's discrimination case, its section 110(c)
investigation of the miner having apparently concluded without
the filing of charges against him. Disciplinary Proceeding I,
24 FMSHRC at 31. Notwithstanding the previous 12-month delay,
the Solicitor's Office held the case an additional 7 months
before acting on the miner's temporary reinstatement
application. Salono again attempted to explain away this
delay by suggesting that his office needed to conduct an
additional investigation into the miner's complaint because
they were concerned about the strength of the case.
The factual background of this case makes it unlike any
case that has ever come before the Commission. In spite of the
Solicitor's Office slothful lawyering during the 19 months that
led up to the miner's temporary reinstatement,[3] my colleagues
in the majority now choose to treat the miner's post-settlement
complaints as if he was any other litigant before the
Commission, merely expressing the normal after-the-fact
"buyer's remorse." In my opinion, when the circumstances in
which the miner was put by the Department of Labor are fully
considered, the majority's decision to summarily dismiss this
proceeding without seriously examining the allegations does a
grave disservice to the mining community that looks to the
Commission as an objective evaluator of cases involving the
Secretary.
Before addressing the specific allegations made by the
miner and the inadequacy of the majority's response in light
of the attention those allegations merit, I cannot leave
unremarked upon the extremely truncated nature of the
Commission's "investigation" of the miner's disciplinary
referral. In reaching its decision, the majority had before
it for consideration a very limited amount of the information
relevant to the miner's allegations. Quite conspicuous by
its absence is the most probative information in the case:
the recollections of the three Solicitor's Office attorneys
directly involved in the settlement. During our investigation,
I attempted to fill that glaring hole in the record by
preparing a short set of specific interrogatories that I
suggested we submit to the three attorneys. An abridged
version of those questions is attached as Appendix A. As
the record in this case reflects, we never received any of
the information sought because the majority simply refused
my attempts to submit these questions to the Solicitor's
Office.
As a result of the majority's decision to limit our
investigation into the miner's disciplinary referral, we are
without any first-hand account of how and why the Solicitor's
Office attorneys came to strongly recommend settlement of the
miner's case, and what steps they took to quickly effectuate
the settlement agreement that is now the subject of controversy.
The majority's decision to dismiss this matter without a
complete look at what occurred, in my opinion, does nothing to
exonerate those involved in representing the miner, as a
dismissal of a proceeding properly conducted normally would.[4]
A. The Questions Surrounding the Miner's Agreement to
Settle the Cases
The miner, in his letter referral, alleges he was "coerced"
into settling his cases. In this case, the Commission should
have simply followed the same practice it historically has
followed when reviewing disciplinary referrals against
individuals in the private sector, that is, to establish what it
expects of those practicing before us, and conduct an objective
inquiry into the matter designed to gather the facts necessary
to establish whether the person met the expected standard. See,
e.g., Disciplinary Proceeding, 22 FMSHRC 1289, 1289-90 (Nov.
2000) (dismissing disciplinary referral because allegations,
even if true, did not support disciplinary proceeding); see
also In the Matter of Connie Prater, 22 FMSHRC 733, 738-39
(June 2000) (ALJ) (at Commission's direction, examining
practitioner's conduct at issue and whether it violated
Commission's disciplinary rules).
In this proceeding, a case not involving the private
sector but instead involving the conduct of attorneys in the
Solicitor's Office, the majority has decided to do neither. My
colleagues do not bother to discuss what it expected of the
Solicitor's Office attorneys in recommending that the miner
settle his cases, or the allegations raised by the miner
concerning how the Solicitor's Office effectuated the
settlement. Instead, the majority, citing the notes provided
by the miner and the Commission's limited investigation in
the first disciplinary proceeding, as well as the miner's
acquiescence to the settlement before the judge, concludes
that there was no "coercion" because there is "no evidence
that the miner was subjected to undue pressure or compelled,
against his will, to settle." Slip op. at 2.
Leaving aside for now how incomplete the record is in
support of the majority's factual conclusion, the question of
whether this, or any, disciplinary proceeding should be
dismissed does not hinge on whether the evidence supports the
exact terminology chosen by the person making the referral,
especially when that person is not even a practitioner before
the Commission. Rather, we should look to our own disciplinary
rules, which require that "[i]ndividuals practicing before the
Commission and Commission Judges shall conform to the standards
of ethical conduct required of practitioners in the courts of
the United States." 29 C.F.R. � 2700.80(a). The majority,
inexplicably, has failed to so in this case.[5]
Looking to the American Bar Association's ("ABA") Model
Rules of Professional Conduct as a general guide to the
"standards of ethical conduct required of practitioners in the
courts of the United States,"[6] see 29 C.F.R. � 2700.80(a), a
number of the Model Rules govern what transpired between the
miner and the Solicitor's Office attorneys with respect to the
settlement. For instance, a lawyer is expected to explain a
matter to a client in a manner sufficient to permit the client
to make an informed decision. ABA Model Rule 1.4(b). Also,
according to ABA Model Rule 2.1, the lawyer is required to
exercise independent professional judgment and render candid
advice, drawing upon not only the law but other factors that
may be relevant to the client's situation.
Of course, because the Commission has failed to conduct a
complete investigation into the miner's allegations, we do not
have the information necessary to draw any reasoned conclusions
regarding the extent to which, if at all, these or other ethical
guidelines were actually violated. What we do have is evidence
that should have raised a red flag with the majority that a
thorough investigation was warranted. Most significantly, there
is no disputing that the Solicitor's Office found itself in an
awkward position here, representing a miner in a discrimination
case when it had failed to act on his temporary reinstatement
application for 19 months. This fact alone should have been a
cause for concern to the majority because the Solicitor's Office
continually recommended settlement while its actions were under
review in Disciplinary Proceeding I for that extended delay.[7]
In an effort to provide further guidance with respect to
the independent professional judgment an attorney is required
to exercise, ABA Model Rule 1.7 recites extensive requirements
designed to prevent representational conflicts from arising,
both between the interests of the attorney and the client and
between the different clients of the attorney.[8] Here, both
types of conflict were arguably present. First, settlement of
the miner's case eliminated the need for a trial on the merits
of the miner's discrimination complaint, at which one of the
primary issues may have been the reasons for the 19-month
temporary reinstatement application delay also at issue in
Disciplinary Proceeding I.[9] As mentioned, the first 12
months of delay was attributed to MSHA, which, like the miner,
was a client of the Solicitor's Office.
In addition, the other 7 months of delay was attributable
to the Solicitor's Office itself. In defending itself in
Disciplinary Proceeding I, the Solicitor's Office took the
position that the delay was the result of the weakness of
the miner's case. Of course, settlement of the miner's
discrimination case before trial prevented that claim from
being tested.
Despite the fact that both MSHA, a client of the
Solicitor's Office, as well as individual attorneys in that
office, stood to be in a better position in Disciplinary
Proceeding I from settlement of the miner's case, to my
knowledge none of the safeguards in Model Rule 1.7 that should
have protected the miner's interests in light of the conflicts
faced by his attorney, the Solicitor's Office, were in place
at any point during which settlement was being considered. In
addition, the Solicitor's Office did not mention the
Disciplinary Proceeding I and the settlement's relation to it
to the judge who approved the settlement agreement, and it is
unrealistic to expect the miner to have ever recognized the
import of the issue. Thus, a case that was delayed for a year
by the Solicitor's Office, allegedly because of concerns that
it faced a conflict in its dual representation of the miner
and the Secretary, was nevertheless settled by the Solicitor's
Office in the face of a direct conflict of interest. In my
opinion, nothing shines a brighter light on the credibility of
the Solicitor's Office's reason for the delay in bringing the
miner's case than the realization that, in spite of the fact
that the Solicitor's Office's was the subject of an
investigation for ethical violations in its representation of
the miner, Solicitor's Office attorneys not only continued to
represent the miner, but also counseled the miner to settle
the case before trial.
The majority's willingness to dismiss the miner's
complaints regarding the validity of the settlement in this
case leaves us to ponder two important questions: if the
miner's discrimination case had been heard by a judge on the
merits, or if the Commission would have conducted a complete
investigation into the attorneys' involvement, what would we
have learned about the validity of the Solicitor's excuse that
MSHA took 12 months to conduct a 110(c) investigation, and
more importantly what was the true strength of the miner's
discrimination case against his employer? In my view, answers
to these questions would have laid the groundwork for a
significantly different outcome in this case, and the
disciplinary referral tossed out by the majority in
Disciplinary Proceeding I.
The majority has also dismissed the referral without
giving objective consideration to the miner's notes that
reflect various conversations he had with the Solicitor's
Office attorneys. Specifically the miner's notes reflect
that:
(1) Despite making the miner wait 19 months
before filing his temporary reinstatement
application, in the conversation informing
the miner of the reinstatement ordered by the
judge, the Solicitor's Office trial attorney
immediately raised the prospect of settling
the case, months before trial and even before
the commencement of discovery, as the
complaint had not yet been filed;
(2) Less than 2 weeks later, the same
attorney raised the possibility that the
Secretary could drop the case;
(3) The attorney later informed the miner
that the judge did not seem sympathetic to
the miner's position, and to get around that
they would need to make it very clear that
the operator's witnesses were "bad actors;"
(4) Within days after the filing of the
original disciplinary referral, the trial
attorney requested the miner to specify a
compromise back pay figure. However, the
attorney did not relay to the operator the
miner's offer to accept approximately 75% of
his estimated lost earnings, despite the
miner's request that the attorney do so.
Instead, another Solicitor's Office attorney
called the miner that same day to persuade
him to accept "a figure a lot lower." The
miner was told by still another Solicitor's
Office attorney that, having experience in
many cases like the miner's, such cases
settle for $15,000 or $20,000, and the lower
figure is what eventually made its way into
the settlement agreement.
The majority opines that the dialogue that occurred
between the miner and the Solicitor's Office attorneys was
typical of the kind that occurs between lawyer and client on
the subject of settlement. Slip op. at 4. I disagree. The
miner's notes reflect that he requested that the trial attorney
make a settlement offer of $50,000, yet there is no record
evidence of the operator being provided with that offer, or any
other amount that it rejected as excessive. Moreover, even
if the figure suggested by the miner may have been deemed
excessive by the operator if it had been forwarded, my
colleagues' unquestioning treatment of the handling of the
matter by the Solicitor's Office is hardly appropriate. The
significantly lower $15,000 figure the Solicitor's Office
encouraged the miner to offer to settle the case for was
accepted by the operator. The wisdom of choosing that figure
as an opening offer, which is what apparently occurred, speaks
for itself in light of the operator's acceptance of it.
In addition to his notes, the miner reported to the
Commission that he was told by one Solicitor's Office attorney
that the judge sent a "clear signal" at the miner's
reinstatement hearing that "unless there is a ton of new
evidence" they would have a "steep uphill battle" prevailing
at trial on his discrimination claim.[10] The miner describes
the pressure as coming to a head on the day of the
discrimination hearing, to such an extent that he felt
"bulldozed" into agreeing to settle his cases.
As the foregoing shows, the miner is alleging that the
Solicitor's Office attorneys did not base their settlement
recommendations solely on their estimates of the strength of
the miner's discrimination case.[11] I am especially concerned
about the miner's allegation that the third Solicitor's Office
attorney indicated that, at trial, the operator could urge
that section 110(c) charges be pursued against the miner, and
the judge would permit into evidence support for that
proposition.[12] I am aware of no precedent which would
permit such to occur. The miner, on the other hand, who was
not an attorney, could not be expected to know this.
It is important to recognize that the facts contained in
this decision are only the miner's version of what occurred in
this case as we do not have any accounting of the settlement
negotiations from the attorneys involved. It is just as
important to recognize, again, that we do not have those
accounts because the majority has steadfastly denied my
attempts to seek information from the Solicitor's Office
regarding their attorneys' involvement in the case. In my
opinion, this single fact stands as a true testament of the
validity of the majority's decision to dismiss the miner's
referral without first ascertaining those attorneys' versions
of the events surrounding the settlement negotiations.
Simply stated, this proceeding should not have been
dismissed by the majority with so many questions left
unanswered. There is no excuse for the majority's reluctance
to submit a series of short questions, such as those set forth
in Appendix A, to the three attorneys involved requesting, at
a minimum, some response to allegations raised by the miner.
Without this information, the majority's conclusion about the
conduct of the Solicitor's Office attorneys simply lacks the
necessary evidentiary support expected of Commission decisions.
Under the Mine Act, the Commission's factual conclusions must
be supported by substantial evidence on the record as a whole
to be upheld on review. 30 U.S.C. � 816(a)(1). Here, the
majority's decision to stop the inquiry into the miner's
referral before developing the entire record not only deprives
the miner of his right to have his complaint completely
investigated, but also calls into question the Commission's
willingness to enforce its disciplinary rules against
individuals in the Solicitor's Office.
B. The Overtime Pay Issue
Regardless of how the majority views the miner's
allegations regarding the Solicitor's Office attorneys' efforts
to bring about a settlement of the case prior to the hearing,
it is hard to understand the majority's acceptance of the
attorneys' conduct with respect to the overtime pay owed the
miner during his economic reinstatement. However, similar to
its treatment of the miner's coercion allegation, the majority
treats his complaints regarding the overtime pay issue as if
he was any other miner appearing before the Commission
complaining about the terms of a settlement into which he
entered. And, just as we saw in Disciplinary I, the majority
has again refused to conduct a complete inquiry into the
allegations raised in the miner's disciplinary referral in
spite of the fact that many unanswered factual questions cry
out for a continued inquiry into this matter.
As the record indicates, and the majority acknowledges,
within weeks of his economic reinstatement the miner alerted
the Solicitor's Office attorney representing him that the
payments he was receiving from the operator did not include
any overtime pay.[13] The miner's unrebutted testimony at
the reinstatement hearing was that he was working 20 hours
of overtime per week at the time of his discharge.
Consequently, in a letter dated April 14, 2000, his attorney
wrote the operator's counsel citing that, under Commission
law, the miner was due overtime pay. Even though the
settlement agreement would not be entered into for another
4 months, the Commission has no further evidence that the
miner's attorney did anything more to pursue the overtime
issue with the operator. Further, there is no evidence
that the attorney ever raised the overtime issue with the
judge.[14]
According to the miner, he was provided with a number
of excuses for the Solicitor's Office failing to address the
overtime issue. For example, when he raised the issue with
the trial attorney in June 2000, after the April 14, 2000
letter, the trial attorney responded that he had been too
busy to deal with the matter. The attorney opined that it
may be best to raise the issue with the judge after the
hearing on the miner's discrimination complaint.
Next, the miner alleges that, approximately a week before
the settlement was reached, he again raised the overtime issue
with his counsel, but was told it was not important at that
time. There is no evidence in our limited record that the
issue was ever raised as part of the settlement discussions.
The miner further contends that, after the settlement, he
asked another Solicitor's Office attorney about the overtime
pay, as he thought it remained a live issue notwithstanding the
settlement. At that point he received an acknowledgment from
that attorney that the issue had been forgotten during the
settlement agreement discussions. The miner steadfastly
contends that he was never told, prior to the settlement, that
the agreement would include or cover any money for the past
due overtime payments.
For my colleagues in the majority, the terms of the
settlement agreement are enough to dispose of the miner's claim
that he did not realize that the agreement included his
outstanding claim to overtime payment during his economic
reinstatement. Slip op. at 3. The majority finds that because
the language of the settlement releases the operator from
further claims under the reinstatement order, and contains
comprehensive language ending the litigation, "[i]t is difficult
to conceive how anyone could read these releases in the
settlement agreement and sign the document if they felt there
was more due to them." Id.
I find several things troubling about the majority's
approach on this issue. First, the majority treats the issue
before us as one of contract, as if the miner were seeking
further compensation from the operator. As he is not, resort
to the terms of the agreement hardly disposes of the miner's
claim that he received poor representation in entering into an
agreement by which he forfeited his right to the overtime pay
due him.
Secondly, the terms of the settlement agreement are not
as clear on the overtime issue as the majority apparently
views them. As the majority acknowledges, the miner waived
"further claim to payment pursuant to" the temporary
reinstatement order. Id. In the miner's eyes, his claim to
overtime pay was not a "further" claim to payment, as in a
new one; rather, it was an existing claim, made months
previous. Buttressing the miner's belief was what he had
been told by the Solicitor's Office attorney with whom he
discussed the issue: that it was best addressed after the
upcoming hearing.
Instead of a hearing on the merits on the day scheduled,
however, the judge heard the parties' motion to settle the
case. I do not believe that the miner, as a layman, should
have been expected to comprehend that what was occurring that
day was nullifying what the attorney had told him previously
regarding how it would be more appropriate to raise the
overtime pay issue at some later time. The majority
Commissioners, though, disagree.
Conspicuously absent from the majority's analysis is any
discussion of whether the Solicitor's Office even attempted to
explain to the miner the ramifications of the settlement
agreement with respect to his outstanding claim for economic
reinstatement overtime pay. The disciplinary rules set forth
the standards of communication expected of a lawyer advising
a client.[15] Consequently, the terms of the settlement
agreement are not by themselves dispositive of the issue
before us.
My colleagues and I clearly disagree on the issue of
whether the miner really understood the legal mumbo-jumbo in
the settlement agreement and release, and how that language
ultimately effected his right to a post-settlement recovery
of the overtime compensation he was entitled to. But, if we
simply take a common sense approach to this issue and review
the numbers involved, we see strong evidence that it was
unlikely the miner actually understood he was waiving his
right to payment for overtime regardless of his decision to
sign the agreement.
For example, during the Commission's cursory investigation,
the miner provided his estimate of the overtime compensation he
believes he was entitled to receive, based on the 20 hour per
weeks of overtime the Solicitor's Office used in its letter to
the operator. The miner calculated that over the course of his
6-month economic reinstatement he was entitled to $13,260 in
overtime pay. While standing alone this is a significant sum,
it becomes much more so when viewed in light of the total
amount the miner received from the settlement: $15,000. It is
important to remember that the miner was out of work for a
total of 19 months before his application for temporary
reinstatement was processed by the Secretary. During this time
period, assuming a typical 40 hour work week, the miner would
have logged approximately 3040 work hours. If we deduct the
overtime pay the miner and the Solicitor's Office alleged the
miner was entitled to ($13,260) from the total settlement
($15,000), we find that the miner then would have settled the
case for $1,740, or 57 cents for each hour of labor he would
have provided ($1,740 divided by 3040 hours).
In spite of these alarming figures, the majority maintains
that this miner was fully aware of the compensatory terms of
the agreement he was signing. Given all that this particular
miner has been through, it is startling to me that the majority
would suggest that he knowingly agreed to a settlement amount
that paid him pennies on the dollar for his labor. It seems
just as likely to me that because of the confusing nature of
the proceedings,[16] and representations made by the solicitors,
the miner truly believed that the overtime issue would survive
the settlement.[17] As I have stated before, "I have confidence
that miners understand, better than anyone else, the value of
their labor when it comes to negotiating a back pay award."
Sec'y of Labor on behalf of Maxey v. Leeco, Inc., 20 FMSHRC 707,
711 (July 1998) (Commissioner Beatty, dissenting).
Again, the foregoing account is all based on the miner's
version of events. I am certain that the attorneys from the
Solicitor's Office who were involved in this matter would add
much to our understanding of this controversy if given the
opportunity. The majority, however, has steadfastly refused to
seek information from them regarding their recollections.
Here, the majority once again misses the forest for the
trees, and, in the process, avoids addressing the ultimate
issues the miner's disciplinary referral poses. As the
decisions in Disciplinary Proceeding I make plain, this miner
was uniquely situated, given his treatment by the Secretary's
representatives. Moreover, as discussed previously, the issue
of how well informed the miner was when he decided to settle
his cases is open to a very serious debate. In my view, it
is hardly appropriate for the majority to look to the terms
of a settlement agreement, especially one which resulted from
such controversial circumstances, as the only source of
resolving the miner's overtime pay dispute. It is especially
inexcusable to do so after foregoing the opportunity to fully
investigate the Secretary's crafting of the settlement
agreement.
Again, the ABA Model Rules of Professional Conduct provide
several standards that may be relevant to the allegations made
by the miner regarding the overtime pay issue. Rule 1.1
requires a lawyer to "provide competent representation to a
client." This rule specifies that competent representation
"requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation." Rule
1.3 instructs attorneys to "act with reasonable diligence and
promptness in representing a client." Clearly, these standards
are potentially implicated by the miner's allegations, both
with respect to the Solicitor's Office apparent failure to
follow up on the April 14, 2000 letter to the operator's
attorney concerning the miner's entitlement to overtime pay as
part of his temporary economic reinstatement, and if the
Solicitor's Office failed to raise the overtime issue during
the course of negotiations to settle the discrimination
case. Also open to question under these standards is the
trial attorney's alleged statement to the miner that it would
be better to raise the overtime issue with the judge after
the trial.
At a minimum, read against these standards, the miner's
allegations raise the issue of whether the involved Solicitor's
Office attorneys breached ethical standards by failing to
provide the miner with a reasonable explanation of the
consequences of entering into the settlement agreement. This
would of course include his waiver of any potential entitlement
to overtime pay as part of the temporary reinstatement
previously ordered by the judge.
**FOOTNOTES**
[1]: As I outlined in my dissenting opinion in
Disciplinary Proceeding I, the miner's discrimination complaint
against the operator here was clearly not frivolous, thus
satisfying the extremely low standard necessary for the
Secretary to seek immediate temporary reinstatement on
behalf of the miner. 24 FMSHRC at 36, 46.
[2]: As I stated in Disciplinary Proceeding I, the
"conflict of interest" excuse was simply one of the ever-
changing explanations offered by the Solicitor's Office of
how and why it took 19 months to file a temporary reinstatement
application. It should be noted that previous explanations
included: a lengthy investigation of the miner's allegations,
requests for additional information by the district and the
Solicitor's Office, a delay in forwarding the case to the
regional Solicitor's Office, and a 7-month delay in reviewing
and filing the temporary reinstatement application by the
regional office. We were also informed by the Solicitor that
regardless of how dilatory his office was in filing a temporary
reinstatement application, it was an exercise of prosecutorial
discretion and therefore not subject to the Commission's
disciplinary rules. Finally, the Solicitor offered the conflict
of interest explanation that provided the impetus for my
colleagues' decision to dismiss the disciplinary referral
in Disciplinary Proceeding I. 24 FMSHRC at 41-43.
[3]: In Disciplinary Proceeding I, my colleagues in the
majority described the delay in the filing of the temporary
reinstatement application, as, inter alia, "unacceptable,
inexcusable, and wholly avoidable," and based in part on the
Solicitor's Office failure to properly implement the
discrimination provisions of the Mine Act. Disciplinary
Proceeding I, 24 FMSHRC at 31.
[4]: I emphasize at the outset that I have no opinion on
the propriety of the conduct of the Solicitor's Office
attorneys involved in the settlement. There simply is not a
sufficient record on which to base any opinion, positive
or negative. Consequently, I believe the majority does a
disservice to these individuals in giving such plainly limited
consideration to the miner's complaints.
[5]: As discussed in Disciplinary Proceeding I, the
Solicitor has claimed that no attorney-client relationship
exists between the Solicitor and a miner in a
discrimination case. 24 FMSHRC at 34. However, the Commission
pointed out that the Solicitor had failed to inform the
miner in this case of that position, so the Solicitor's Office
would not be permitted to escape the duties the attorney-
client relationship imposes upon the attorney. Id. at 31-35.
Included in those duties are the ethical obligations that
govern the attorney-client relationship. See, e.g., American
Bar Association Model Rules of Professional Conduct 1.1 to
1.17 (2001) ("ABA Model Rules"). Clearly, permitting an
attorney to appear before the Commission "on behalf of a
miner," as Solicitor's Office attorneys do in discrimination
cases, without having to adhere to the ethical obligations
imposed upon attorneys, would result in a huge loophole in
the Commission's disciplinary rules.
[6]: Reference to the Model Rules is also appropriate
because the Commission is without information as to the
states the involved attorneys are admitted in, and the
fact that the miner lived on one state while the attorneys
were based in one or more other states.
[7]: That the Solicitor's Office began actively
promoting settlement some 3 months before I filed the original
disciplinary referral hardly absolves it of a conflict, the
majority's suggestion to the contrary notwithstanding. Slip
op. at 4. It surely became apparent to the Solicitor's Office
well before that time that, as long as the miner's case
remained unresolved, it would reflect poorly upon the
Solicitor's Office.
[8]: ABA Model Rule 1.7 states that:
(a) A lawyer shall not represent a client if
the representation of that client will be
directly adverse to another client, unless:
(1) the lawyer reasonably believes
the representation will not
adversely affect the relationship
with the other client; and
(2) each client consents after
consultation.
(b) A lawyer shall not represent a client if
the representation of that client may be
materially limited by the lawyer's
responsibilities to another client or to a
third person, or by the lawyer's own
interests, unless:
(1) the lawyer reasonably believes
the representation will not be
adversely affected; and
(2) the client consents after
consultation. When representation
of multiple clients in a single
matter is undertaken, the
consultation shall include
explanation of the implications of
the common representation and the
advantages and risks involved.
(Emphasis added).
[9]: Amazingly, the majority questions whether the issue
of the Secretary's delay in filing for temporary reinstatement,
and bringing the miner's discrimination case, would have
been an issue at the scheduled hearing. Slip op. at 4. I
believe the operator's 40-page motion for summary decision,
which was almost entirely based on the Secretary's failure to
bring the case in a timely manner, and was pending at the
time of settlement, provides more than sufficient grounds
to suggest that the operator was not going to drop the
issue. The operator clearly would have continued arguing
that the delay prejudiced its ability to defend against
the miner's claims. Interestingly, in another MSHA Western
District case, with even less of a delay, the Secretary
eventually bowed to such a defense. See United Metro
Materials, 24 FMSHRC 140, 141 (Feb. 2002) (vacating
direction of review that Commission had issued sua sponte
upon Secretary's subsequent vacation of citation, leaving
standing judge's decision dismissing proceeding on ground
that Secretary unreasonably delayed 14 months in proposing
a penalty).
[10]: However, a review of the transcript of the
hearing, as well as the judge's subsequent decision,
reveals no such signal. At a minimum, the Commission
should have requested the attorney to provide his version of
the events.
[11]: A number of the statements appear to be without
support under Mine Act precedent or usual trial procedures.
[12]: The majority claims this to be "unfounded and
without record support." Slip op. at 4. My colleagues
are mistaken. According to the miner's notes, which are a
matter of public record, he was clearly left with the
impression from the conversation that section 110(c)
charges against him remained a live issue. The majority also
supports its decision to terminate the proceedings by cherry-
picking the record to find an earlier conversation in which
another of the Solicitor's Office attorneys had assured the
miner that MSHA would not bring section 110(c) charges.
Id. Unlike the majority, I will not impute to the miner the
sophistication necessary to discern which of the Solicitor's
Office attorneys was more accurate.
[13]: As the majority states (slip op. at 2), the
judge awarded the miner his former position at the same
pay and benefits, which under Commission law includes overtime
pay.
[14]: The majority clearly errs when it suggests that
the miner would have to "prove" his entitlement to overtime
pay. Slip op. at 3. Evidence on the issue of overtime
pay was submitted by the Secretary through the miner's
testimony at the reinstatement hearing, and was not rebutted
by the operator. Consequently, under the terms of the judge's
order and Commission case law cited by the majority (slip op.
at 2), the miner was plainly entitled to overtime pay
as part of his economic reinstatement. The only question
was whether the Solicitor's Office would see fit to advance
his claim to it, beyond of course the letter the Solicitor's
Office sent to the operator setting forth the exact same
explanation why the miner was due 20 hours of overtime per
week. In light of the foregoing, I simply cannot understand
why my colleagues in the majority, who affirmed the judge's
decision temporarily reinstating the miner at the same
pay and benefits, now find it necessary to cull the record
for other evidence that the miner was due 10 hours of
overtime pay per week, not 20. See slip op. at 3 n.2.
To what end? The issue before us is whether the miner was
adequately represented in his pursuit to recover any
overtime pay during his economic reinstatement.
[15]: According to ABA Model Rule 1.4(a), a lawyer is
to keep a client "reasonably informed about the status of a
matter and promptly comply with reasonable requests for
information." Moreover, Model Rule 1.4(b) goes on to require
a lawyer to "explain a matter to the extent reasonably
necessary to permit a client to make informed decisions
regarding the representation."
[16]: The discrimination proceeding involved two
separately docketed cases, with a docket number for the
discrimination case, and a docket number for the temporary
reinstatement application.
[17]: As the majority recognizes, the miner's
recollection was that the solicitor told him it would be
better to follow up on the overtime issue after the trial.
Slip op. at 2. The miner further alleges that approximately
a week before the settlement was reached he again raised the
overtime issue with his counsel, but was told it was not
important at that time.
Of course, the Commission cannot consider these issues
without gathering the relevant facts, and that the majority
refuses to do. Consequently, the full story behind the
treatment of the overtime pay dispute by the Solicitor's Office
will never be known. If all of the facts were known, it may
become apparent that the attorneys from that office handled
the dispute appropriately. However, given how the miner's case
was handled during the preceding two years by the Department
of Labor and its representatives, I, unlike the majority, am
not inclined to blithely assume that was the case.
For the foregoing reasons, I respectfully dissent.
Robert H. Beatty, Jr., Commissioner
APPENDIX A
Questions for All Three Solicitor's Office Attorneys
1. Describe your efforts to pursue the miner's entitlement
to overtime pay as part of his temporary economic
reinstatement following the April 14, 2000 letter to the
operator's attorney concerning this issue. If no such
efforts were undertaken, please explain why not.
2. Describe the content of any and all conversations you had
with the miner concerning his entitlement to overtime pay
as part of his temporary economic reinstatement by the
operator during the period following the issuance of the
judge's temporary reinstatement order.
3. Was it your understanding that the miner was entitled to
receive some amount of overtime pay as part of his
temporary economic reinstatement by the operator? If so,
approximately how many hours of overtime pay per week was
the miner entitled to? Describe with particularity the
basis for this assessment.
4. Was the issue of the miner's entitlement to overtime pay
as part of his temporary economic reinstatement discussed
with the operator's counsel in the course of negotiations
to settle the miner's discrimination complaint? If so,
describe each instance in which the issue was raised, by
whom, and the response by opposing counsel.
5. Describe the entire course of negotiations with the
operator's counsel to settle the miner's discrimination
complaint? Include a description of how many
meetings/conversations were held to negotiate the
settlement, the miner's initial settlement proposal, the
operator's response, and any subsequent proposals and
counter-proposals.
6. Did the miner waive his entitlement to overtime pay as
part of his temporary economic reinstatement as a result
of the settlement reached with the operator in the
discrimination case? If so, please describe with
particularity the basis for your understanding that the
miner had so waived his entitlement to overtime pay.
7. Did you or any other attorney in the Solicitor's Office
ever explain to the miner that he was waiving his right
to overtime pay as part of his temporary economic
reinstatement as a result of the settlement reached with
the operator in the discrimination case? If so, describe
with particularity the substance of any such conversation
with the miner. If not, please explain why this issue
was not discussed with the miner.
8. Did the miner ever raise the question of his entitlement
to overtime pay as part of his temporary economic
reinstatement by the operator during the negotiation of
the settlement agreement with the operator, or
subsequently? If so, describe the circumstances of each
instance when this question was raised by the miner, and
how you responded to him.
9. What was your overall assessment of the strength of the
miner's discrimination case against the operator?
Describe with particularity the basis for your assessment.
10. What is your overall assessment of the fairness of the
settlement reached with the operator in the miner's
discrimination case? Describe with particularity the
basis for your assessment, and how it would be influenced
by the fact that the miner was entitled to a significant
amount of overtime pay as part of his temporary economic
reinstatement by the operator.
For Trial Attorney:
1. Did you ever advise the miner to the effect that, at the
temporary reinstatement hearing, the judge sent a clear
signal that a considerable amount of new evidence would
be required to enable the miner to prevail on his
discrimination complaint and/or that the miner would have
a steep uphill battle to win his case? If so, describe
with particularity the basis for that advice, and describe
the miner's response.
2. Did you ever advise the miner that it would be better to
pursue the issue of his entitlement to overtime pay as
part of his temporary economic reinstatement following
the trial in his discrimination case? If so, describe
with particularity the circumstances under which that
advice was given to the miner, and your basis for doing
so.
3. Did you ever advise the miner that the lack of follow-up
on the issue of his entitlement to overtime pay as part
of his temporary economic reinstatement was not "that
important of an issue"? If so, describe with
particularity the circumstances under which that
statement was made to the miner, and describe the
miner's response.
4. Did you ever advise the miner that an initial settlement
demand of $50,000 would be excessive, and would probably
not even prompt a response from the operator? If so,
describe with particularity the basis for that advice,
and describe the miner's response.
For Other Two Solicitor's Office Attorneys:
1. Did you ever advise the miner that an initial settlement
demand of $50,000 would be excessive, and would probably
not even prompt a response from the operator? If so,
describe with particularity the basis for that advice,
and describe the miner's response.
1 Did you ever advise the miner that the issue of his
potential liability under section 110(c) of the Mine Act
could be raised by the operator as a defense in the trial
of his discrimination case and/or was a significant
impediment to prevailing in the discrimination case? If
so, describe with particularity the basis for that advice,
and describe the miner's response.
2 Did you ever advise the miner to the effect that
discrimination cases similar to his usually settle for
somewhere around $15,000 or $20,000? If so, describe
with particularity the basis for that advice, and describe
the miner's response. Did you ever suggest to the miner
that an initial offer to A&K to settle his case for about
$15,000 would be appropriate? If so, describe with
particularity the basis for that advice, and describe the
miner's response.
Distribution
Edward Clair, Esq.
Associate Solicitor
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209