Council of Southern Mountains, Inc. v. Federal Mine Safety & Health Review Com'n, 84-1092

Citation751 F.2d 1418
Decision Date15 January 1985
Docket NumberNo. 84-1092,84-1092
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Parties, 53 USLW 2362, 1984-1985 O.S.H.D. ( 27,163 COUNCIL OF the SOUTHERN MOUNTAINS, INC., Petitioner, v. FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION, et al., Respondents.

L. Thomas Galloway, Washington, D.C., for petitioner.

Jack W. Burtch, Jr., Richmond, Va., for respondents, Martin County Coal Corp. James A. Lastowka and L. Joseph Ferrara, Washington, D.C., entered appearances for respondent, Federal Mine Safety & Health Review Com'n.

Before WALD, EDWARDS and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This case presents the question whether a mine operator violates section 105(c)(1) of the Federal Mine Safety and Health Act of 1977 ("Mine Act" or the "Act") when it refuses to allow nonemployee representatives of coal miners to monitor safety training programs on mine property. Section 105(c)(1) prohibits mine operators from discriminating against or otherwise interfering with the exercise of the statutory rights of any miner or representative of miners. Our review of the Mine Act and its legislative history reveals no statutory right of nonemployee representatives to monitor on-site training classes. Consequently, we affirm the decision of the Federal Mine Safety and Health Review Commission that respondent Martin County Coal Corp. ("Martin") did not violate section 105(c)(1) when it refused to permit petitioner Council of the Southern Mountains (the "Council") to attend training sessions.

We recognize that the petitioner has raised an important question concerning whether miners' representatives can effectively exercise rights granted them by the Act and its implementing regulations without a concomitant right to monitor safety training classes. The appropriate way to resolve this issue, however, is for the Council to petition the Secretary of Labor (the "Secretary") for a rulemaking. In this instance it is clear that Congress intended for the Secretary, not the courts, to elaborate the statute and to develop means to effectuate its purposes.

I. BACKGROUND
A. The Mine Act

In 1977, Congress combined protection for all miners previously covered under two separate statutes, the Federal Metal and Nonmetallic Mine Safety Act of 1966, 1 and the Federal Coal Mine Health and Safety Act of 1969, 2 under the Federal Mine Safety and Health Act of 1977, 3 and assigned its administration to the Department of Labor. 4 The Secretary of Labor was given the responsibility of promulgating mandatory health and safety standards, 5 while an independent adjudicatory entity, the Federal Mine Safety and Health Review Commission ("FMSHRC" or the "Commission"), was established to settle, in the first instance, disputes arising under the new Act. 6

This legislation was, in large part, a response to the history of frequent and tragic mining disasters occurring in the United States, such as those at Sunshine Silver Mine, Buffalo Creek, and Blacksville in 1972, at Scotia in 1976, and at Tower City in 1977. In Congress, there was a widely held belief that many mining deaths could have been avoided if the miners had been adequately trained in emergency safety techniques. At the Sunshine Mine, for example, ninety-one miners died of asphyxiation either because they did not know how to use self-rescuers or because of the failure of mine management to provide a secondary escape route. At the Blacksville mine, miners were trapped when a piece of equipment caught fire, and then died because those at the scene of the fire had not been adequately trained in emergency procedures. 7

In an effort to curb mining tragedies, Congress required in section 115 8 of the 1977 Act that all miners receive regular and adequate health and safety training. This section compels mine operators to implement training programs which have been approved by the Secretary. It specifies, inter alia, subjects of instruction and the minimum number of hours of requisite training for miners of different experience levels, and instructs the Secretary to promulgate more detailed regulations regarding these programs. 9

Congress further recognized that if its national mine safety and health program was to be truly effective, miners and their representatives must play an active part in enforcing the Act. 10 In order to promote miner and representative participation, section 105(c)(1) of the Act protects both miners and their representatives from discharge or any other form of interference or discrimination because of the exercise of a statutory right afforded by the Act, 11 including rights related to safety training. 12

Congress enumerated certain statutory rights which miners' representatives acquired under the Act. 13 For example, a miners' representative can obtain an immediate federal inspection of a mine when she or he has reasonable grounds to believe that there has been a violation of the Act or of a mandatory health and safety standard, 14 including a violation of training program standards. A miners' representative also has the right to accompany the Secretary or the Secretary's representative on specified inspections of the mine. 15 The Act allows interested persons, including representatives, to inspect certificates of miners' completion of mandatory training programs at the mine site. 16 However, Congress did not expressly provide for the on-site monitoring of training programs. Rather, Congress left the details of designing and supervising the training programs to the Secretary of Labor.

B. History of this Action

The Council describes itself as a grassroots citizen's organization which, since 1913, has worked to improve health and safety conditions in the Appalachian coal mines. 17 The petitioner is registered with the Mine Safety and Health Administration ("MSHA") as the representative, 18 for purposes of the Act, 19 of miners at the Martin County Coal mines 1-C and 1-S in Martin County, Kentucky. As the miners' representative, the Council has taken an active interest in the development and implementation of safety training programs at these mines. At issue here is the Council's desire to monitor training classes at Martin to ensure that miners receive adequate safety instruction as mandated by the Mine Act.

It is unnecessary to review in detail the somewhat complicated history of the Council's requests of Martin that it be allowed to monitor safety training classes. 20 It suffices to note here that Martin repeatedly refused permission for the Council to enter mine property for that purpose 21 and that, as a consequence, the Council initiated the instant proceeding, alleging that this refusal constituted interference with its exercise of a right granted by the Act, in violation of section 105(c)(1).

The Administrative Law Judge ("ALJ") who first heard the case ruled in the Council's favor. His interpretation of section 115 led him "to find that nonemployee miners' representatives ... have an implied right" to observe safety instruction. 22 The ALJ considered the requirement in section 115(a)(1) that miners be instructed in their statutory rights and in those of their representatives, and also the indication in section 115(b) that training may sometimes be conducted at a location other than the normal place of work, and from these provisions he inferred a statutory right of representatives to monitor safety instruction. 23 On this basis, the ALJ held that Martin violated section 105(c)(1) of the Act by refusing to allow the Council to monitor training sessions. 24

On discretionary review, the FMSHRC reversed the ALJ. 25 Observing that "[n]either the Mine Act nor its legislative history--nor, for that matter, the Secretary's extensive regulations implementing section 115 of the Act--refers to a right of miners' representatives to monitor training classes," 26 the Commission held that Martin's refusal to allow the Council to monitor safety instruction did not violate section 105(c)(1) of the Act. The Council appeals the FMSHRC's decision to this court.

II. ANALYSIS

A mine operator does not violate section 105(c)(1) unless it discriminates against or otherwise interferes with the exercise of the statutory rights of miners or their representatives. 27 It is clear, therefore, that unless the Council has a statutory right to enter mine property for the purpose of monitoring safety instruction, Martin's refusal to accede to the Council's demands for access cannot violate section 105(c)(1).

Our review of the statute and its legislative history, like the Commission's, yields no indication that Congress intended to confer such a right on miners' representatives. Section 115 requires mine operators to offer their miners adequate safety and health training and commands the Secretary to promptly promulgate regulations concerning these training programs. As the Commission held, this portion of the statute does not compel "a monitoring right for non-employee miners' representatives on mine property," 28 nor does any other section of the Act. Although the legislative history demonstrates a strong congressional concern over the problem of poorly trained miners, 29 it contains no suggestion that Congress considered the monitoring issue. 30 Consequently, we are constrained to hold that the Mine Act does not provide non-employee miners' representatives with a statutory right to monitor on-site safety training and, therefore, that Martin County Coal did not violate section 105(c)(1) by refusing to allow the Council to observe safety instruction conducted on mine property. 31

In its briefs and at oral argument, the petitioner contended that other explicit rights given to miners' representatives by the Act and the training program regulations issued by the Secretary, 32 such as a representative's right under section 103(g) to...

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