Magma Copper Co. v. Secretary of Labor, AFL-CIO-CL

• Decision Date: 18 May 1981
• Docket Number: I,AFL-CIO-CL,No. 79-7687,79-7687
• Citation: 645 F.2d 694
• Parties: , 1981 O.S.H.D. (CCH) P 25,390 MAGMA COPPER COMPANY, Petitioner, v. SECRETARY OF LABOR, Mine Safety and Health Administration, and Federal Mine Safety and Health Review Commission, Respondents, United Steelworkers of America,ntervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 694

645 F.2d 694

61 A.L.R.Fed. 742, 1981 O.S.H.D. (CCH) P 25,390

MAGMA COPPER COMPANY, Petitioner, v. SECRETARY OF LABOR, Mine Safety and Health Administration, and Federal Mine Safety and Health Review

Commission, Respondents,

United Steelworkers of America, AFL-CIO-CLC, Intervenor.

No. 79-7687.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 18, 1980.

Decided May 18, 1981.

N. Douglas Grimwood, Twitty, Sievwright & Mills, Phoenix, Ariz., for petitioner.

Gary L. Sasso, Cynthia Attwood, Washington, D. C., for respondents.

Petition for Review of Decision of the Federal Mine Safety and Health Review Commission.

Before DUNIWAY and TRASK, Circuit Judges, and JAMESON, ^* District Judge.

DUNIWAY, Circuit Judge:

The issue in this case is whether § 103(f) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 813(f), requires that, when an inspection of a mine is conducted by more than one inspector, each of whom acts separately and inspects a different part of the mine, one representative of miners may accompany each inspector without loss of pay if he is an employee of the mine operator. The Federal Mine Safety and Health Review Commission held that the Act does so provide, and we affirm.

I. Background.

The facts are not in dispute. Magma Copper Company ("Magma") operates a copper mine and mill in San Manuel, Arizona. The milling complex is large, including a receiving bin, a mine crusher, a mill crusher, a concentrator building, a molybdenum plant and a filter plant. One of these buildings is three stories tall and a quarter of a mile long, and the complex as a whole is spread out over an area of several miles. The milling complex is a "mine" subject to the Act. 30 U.S.C. § 802(h).

On July 26, 1978, two inspectors from the Department of Labor arrived at the milling complex in order to continue an "entire mine" or "regular" inspection under § 813(a) of the Act. The inspectors planned to split up, each of them inspecting a different part of the mill, and they asked company officials to provide them with two miners' representatives to participate in the inspection. The company agreed to assign two miners' representatives to the inspection, but took the position that § 813(f) of the Act only requires that one miners' representative receive walkaround pay. Unwilling to ask a miners' representative to suffer loss of a day's wages, the inspectors went forward with the inspection with only one miners' representative. As they had planned, the inspectors formed two inspection parties and examined different and geographically distant sections of the milling complex.

Because of Magma's refusal to pay a second miners' representative for time spent accompanying an inspector, the inspectors issued a citation to Magma under § 814(a). The citation was followed by a withdrawal order under § 814(b). Magma contested the citation and withdrawal order, and the Administrative Law Judge, agreeing with Magma's interpretation of the Act, vacated the citation and order. The Federal Mine Safety and Health Review Commission ("Commission") reversed, holding that "one miners' representative in each inspection party must be paid for time spent accompanying an inspector ... engaged in an inspection of the mine 'in its entirety'...." The Commission reinstated the citation and withdrawal order and Magma petitioned this court for review.

II. The Merits.

Section 813(f) of the Act provides in pertinent part as follows:

Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by his miners shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any ... mine made pursuant to the provisions of subsection (a) of this section, for the purpose of aiding such inspection and to participate in pre- or post-inspection conferences held at the mine.... Such representative of miners who is also an employee of the operator shall suffer no loss of pay during the period of his participation in the inspection made under this subsection. To the extent that the Secretary or authorized representative of the Secretary determines that more than one representative from each party would further aid in the inspection, he can permit each party to have an equal number of such additional representatives. However, only one such representative of miners who is an employee of the operator shall be entitled to suffer no loss of pay during the period of such participation under the provisions of this subsection....

The question here is whether the limitation in the final sentence quoted above "However, only one such representative of miners ... shall be entitled to suffer no loss of pay ..." means that when one inspector or one inspection party is accompanied by more than one miners' representative only one representative is entitled to walkaround pay, or whether it means that in all circumstances, even where there is more than one inspection party, only one miner shall be paid.

In an Interpretative Bulletin issued in April, 1978, 43 Fed.Reg. 17546 (April 25, 1978), some months before the inspection of the Magma facility, the Department of Labor stated its view that the limiting sentence applies only to the situation where one inspector or one inspection party is accompanied by more than one miners' representative. The Department reasoned that this is the natural way to interpret the limitation; the limiting sentence "directly follows a provision authorizing an inspector to allow more than one representative of miners to accompany him." Id. at 17549. The Department also said that to extend the limitation to a case in which "it is necessary to send several inspectors in order to most effectively or efficiently conduct inspection activity" Id. would be both illogical and contrary to the policies of the Act:

... the occasions when several inspectors are at a mine frequently include inspections of larger mines or mines with special problems requiring concentrated attention. It is precisely in those mines that participation by miners' representatives will ordinarily be most helpful. Moreover, the total time required to complete an inspection of a mine would be shorter if more inspectors are involved and they are inspecting different areas the mine. Thus ... the total outlay in wages ... would be approximately the same, whether there is a single inspector accompanied by a single paid representative of miners for a longer period of time or several inspectors each accompanied by a paid representative of miners for a proportionately shorter period of time. Id.

Finally, the Department said that to restrict the right to walkaround pay because of the Department's decision to send an inspection team of several inspectors rather than a single inspector for a greater period of time, would be to sacrifice "the fundamental purpose" of § 813(f) "to encourage participation by miners in inspections through their representatives." Id. at 17548.

The Interpretative Bulletin states further that in situations where there are several inspectors who are proceeding together as a group on inspection activity, the limitation on the number of paid representatives would apply. "Only one representative accompanying the single group of inspectors would be entitled to suffer no loss of pay." Id. at 17549. Thus the bulletin restricts the ruling to cases in which there is more than one inspector, each carrying out a separate part of the inspection, so that the cost to the operator will usually be no more than if there were but one inspector who did the whole job, accompanied by but one representative of miners.

The Commission concurred in the Department's interpretation of the section in light of the policies of the Act. We agree.

At the outset, we note that the Department's interpretative bulletin "is entitled to deference unless it can be said not to be a reasoned and supportable interpretation of the Act." Whirlpool Corp. v. Marshall, 1980, 445 U.S. 1, 11, 100 S.Ct. 883, 890, 63 L.Ed.2d 154. Montana Power Co. v. EPA, 9 Cir., 1979, 608 F.2d 334, 344-345, 350; Cf. Irvington Moore, et al. v. Occupational Safety and Health Review Commission 9 Cir., 1977, 556 F.2d 431, 434 ("Since in this case the Secretary's interpretation of his own regulations has been affirmed by the Commission, this interpretation must be accorded substantial weight.") We note also that "safety legislation is to be liberally construed to effectuate the congressional purpose," Whirlpool Corp., supra, 445 U.S. at 13, 100 S.Ct. at 891, and that "in cases involving conflict between rules of construction, the courts will strive to adopt that construction which best effectuates the legislative purpose." Reich v. Webb, 9 Cir., 1964, 336 F.2d 153, 157. See Brennan v. Keyser, 9 Cir., 1974, 507 F.2d 472, 477 ("Exceptions to humanitarian and remedial legislation must be narrowly construed.").

The language of the statute supports the Department's construction of it. It is not disputed that an inspector is the "authorized representative" of the Secretary. If we substitute "inspector" for "Secretary or his authorized representative," the statute, § 813(f), will read:

... a representative authorized by (the operator's) miners shall be given an...