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Ray v. Mechel Bluestone, Inc.

United States District Court, S.D. West Virginia, Beckley Division

March 13, 2018

MICHAEL RAY, individually and on behalf of all others similarly situated, Plaintiff,

          SAMUEL B. PETSONK (WVSB # 12418), Bren Pomponio (WVSB # 7774) Mountain State Justice, Inc. Class Counsel

          JOHN HUSSELL (WVSB # 6610), Andrew Ellis (WVSB # 10618) John D. (Jody) Wooton, Jr. (WVSB # WOOTON, DAVIS, HUSSELL & ELLIS, PLLC Counsel for Defendants



         Pending before this Court is Plaintiff's Motion to Approve Notice of Final Settlement, Approve Attorney Fees, and Enter Administrative Termination Order. For the reasons set forth herein, the Court APPROVES the final settlement, in accordance with the terms stated in this Order, and ORDERS that the attorney fees and costs are fair and reasonable and that the Plaintiff should be directed to issue notice to the class members of their rights under this Order.


         On May 3, 2016, this Court certified this matter as a class action pursuant to Federal Rule of Civil Procedure 23(b)(3). The parties mediated the case twice with the assistance of the Honorable Omar Aboulhosn, achieving success when they entered a Mediation Agreement on January 20, 2017. (ECF 88). The Parties have agreed to final terms of a Settlement Agreement as follows:

         The parties have agreed to settle this matter pursuant to the following agreed-upon terms:

         1. Defendants agree to pay to Plaintiffs the sum of $300, 000 inclusive of attorney fees, costs, class administration fee, and class representative fee. The settlement sum will be divided as set forth below.

         2. Call-Back List. Within 60 days after notice of this settlement agreement issues, class members may notify the class counsel whether they wish to be placed on a Call-Back List from which they shall be returned to employment on the basis of their seniority at the Double Bonus Mine, as outlined in this Agreement.

a. Seniority. The List Members shall be ranked in accordance with the seniority that they had earned at the Double Bonus Mine prior to their final layoff at that mine.
b. Covered Mines. List Members shall be considered for every full-time job at the next three underground coal mines, inclusive of preparation and refuse facilities serving those mines, at which no collective bargaining agreement is in place at the time of hiring List Members, that the Bluestone Entities control or operate, in McDowell, Wyoming, Mercer, or Raleigh Counties, W.Va. (the “Covered Mines”).
i. The hourly wage rate of such jobs must be equal to or greater than Twenty-Eight Dollars ($28.00) per hour for the first year of a List Member's employment there.
ii. If a Covered Mine ceases operation within a year of hiring a List Member, such mine ceases to be a Covered Mine and the Defendants must honor the call-back obligations under this Agreement at one additional Covered Mine that is next opened by the Bluestone Entities.
iii. Mechel Bluestone, Inc., Bluestone Resources, Inc., Bluestone Industries, Inc., Dynamic Energy, Inc., Gilbert Mine, Inc., JCI Coal Group, LLC, and coal-producing divisions thereof, and wholly owned and controlled coal producing subsidiaries and wholly owned and controlled coal producing affiliates, or other subsidiaries and affiliates wholly owned and controlled by principals of Defendants, shall be treated as one and the same Bluestone Entities for purposes of the Covered Mines and this Agreement.
iv. If a training opportunity is available at a Covered Mine, the Defendants must inform eligible List Members of such opportunity in sufficient time for such List Members to participate in the training.
c. Recall Rights. When a job opportunity exists at the Covered Mines, the Defendants will review the List and shall recall to employment, in the order of their seniority, List Members with the ability to perform the work of such job.
i. Defendants shall inform List Members of call-back opportunities by means of both certified mail and telephone message delivered to the addresses and numbers provided by class counsel or the class members themselves.
ii. A List Member who does not return to work after receiving offers at each of the Covered Mines shall sacrifice his seniority on the list and shall have his name removed from the list.
iii. Any person on the list who secures other employment during the period when no work is available for him at the Covered Mines shall in no way jeopardize his seniority while engaged in such other employment. Upon receipt of notice of a call-back opportunity, List Members will have five business days to accept or reject each such opportunity.

d. Settlement of Disputes Regarding Recall Rights.

i. Disputes arising regarding a List Member's recall rights shall be resolved as follows.
ii. An earnest effort shall be made to settle differences at the earliest practicable time.
iii. At all steps of the dispute process, the party initiating the dispute shall disclose to the List Member and to Class Counsel a full statement of the facts relied upon by them.
iv. If no settlement is reached within 7 days of the nondisputing party receiving notice of the dispute, the parties shall reach mutual agreement on an arbitrator within the following 7 days. At the earliest possible time, but no later than 15 after referral to him, the arbitrator shall conduct a hearing in order to hear testimony, receive evidence and consider arguments.
v. The costs of arbitration shall be borne by the disputing party.
vi. No Class Member may be excluded from the List except for ...

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