Secretary of Labor, Mine Safety and Health Admin., on Behalf of Bushnell v. Cannelton Industries, Inc.
| Decision Date | 14 February 1989 |
| Docket Number | No. 88-1229,88-1229 |
| Citation | 867 F.2d 1432 |
| Parties | , 57 USLW 2502, 1989 O.S.H.D. (CCH) P 28,428 SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION, on Behalf of John W. BUSHNELL, Petitioner, v. CANNELTON INDUSTRIES, INC., and Federal Mine Safety and Health Review Commission, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Jeffrey A. Hennemuth, Attorney, U.S. Dept. of Labor, with whom George R. Salem, Allen H. Feldman, and Steven J. Mandel, Attorneys, U.S. Dept. of Labor, Washington, D.C., were on the brief, for petitioner.
Dennis D. Clark, Attorney, U.S. Dept. of Labor, Washington, D.C., also entered an appearance, for petitioner.
Larry W. Blalock, Charleston, W. Va., for respondents.
L. Joseph Ferrara, Attorney, Federal Mine Safety and Health Review Com'n Before RUTH BADER GINSBURG and SILBERMAN, Circuit Judges, and GIBSON, * Senior Circuit Judge.
Washington, D.C., also entered an appearance, for respondents.
Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
The Secretary of Labor and the Mine Safety and Health Administration (Secretary), on behalf of veteran coal miner John W. Bushnell, seeks review of a Federal Mine Safety and Health Review Commission (FMSHRC or Commission) decision rejecting the Secretary's conjoint interpretations of 30 C.F.R. Sec. 90.103 and section 101(a) of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. Sec. 811(a). In a complaint filed with the Commission, the Secretary alleged that Cannelton Industries, Inc. (Cannelton), Bushnell's employer, had failed to accord Bushnell the prescribed compensation protection when it transferred him and reduced his pay as part of a company-wide work force reduction and realignment. The Commission held that the regulations and the Mine Act protect a miner against pay reductions only upon his transfer to a low-dust work area after exhibiting evidence of pneumoconiosis (black lung disease), and not upon subsequent transfers for other reasons.
We hold that when the Secretary and the Commission disagree on the interpretation of ambiguous provisions of the Mine Act, and both present plausible readings of the legislative text, this court owes deference to the Secretary's interpretation. In Bushnell's case, we conclude, the Commission failed to extend due deference to the Secretary's interpretation. Accordingly, we grant the Secretary's petition for review and reverse the Commission's decision.
Section 101(a) of the Mine Act, 30 U.S.C. Sec. 811(a), directs the Secretary, by rule, to "develop, promulgate, and revise as may be appropriate, improved mandatory health or safety standards for the protection of life and prevention of injuries in coal or other mines." Section 101(a)(7) specifically provides:
Where appropriate, the mandatory standard shall provide that where a determination is made that a miner may suffer material impairment of health or functional capacity by reason of exposure to the hazard covered by such mandatory standard, that miner shall be removed from such exposure and reassigned. Any miner transferred as a result of such exposure shall continue to receive compensation for such work at no less than the regular rate of pay for miners in the classification such miner held immediately prior to his transfer. In the event of the transfer of a miner pursuant to the preceding sentence, increases in wages of the transferred miner shall be based upon the new work classification.
Id. Sec. 811(a)(7).
The Mine Act also prescribes a series of "interim mandatory health standards applicable to all underground coal mines until superseded in whole or in part by improved mandatory health standards promulgated by the Secretary." Id. Sec. 841(a). These interim provisions--drawn from the Coal Act, which was superseded by the Mine Act in 1977--include standards to protect miners who exhibit evidence of pneumoconiosis. Section 203(b), in particular, provides that such a miner shall be afforded the option of transferring to work with lower dust exposure. Id. Sec. 843(b)(1). Upon exercising the option, section 203(b)(3) provides, in harmony with section 101(a)(7), that the miner "shall receive compensation for such work at not less than the regular rate of pay received by him immediately prior to his transfer." Id. Sec. 843(b)(3).
Pursuant to Mine Act section 101(a), in 1980, the Secretary promulgated an improved mandatory health standard, 30 C.F.R. Part 90, to protect miners "who have evidence of the development of pneumoconiosis." 45 Fed.Reg. 80,760 (1980) (final rule). Under the improved standard, a miner who shows signs of pneumoconiosis must be notified in writing of his eligibility to elect "Part 90 miner" status. 30 C.F.R. Secs. 90.2, 90.3(a). If the miner elects that status, the operator must maintain the average concentration of respirable dust in the miner's work area at or below one milligram per cubic meter of air. Id. Sec. 90.100. "Whenever a Part 90 miner is transferred in order to meet the respirable dust standard ... the operator shall transfer the miner to an existing position at the same coal mine on the same shift or shift rotation" unless "the miner agrees in writing" to a transfer of a different character. Id. Sec. 90.102(a). "Any Part 90 miner who is transferred to a position at the same or another coal mine shall remain a Part 90 miner entitled to full [Part 90] rights at the new work assignment." Id. Sec. 90.3(c).
The Part 90 regulation centrally at issue in this case provides in pertinent part:
(a) The operator shall compensate each Part 90 miner at not less than the regular rate of pay received by that miner immediately before exercising the [Part 90] option....
(b) Whenever a Part 90 miner is transferred, the operator shall compensate the miner at not less than the regular rate of pay received by that miner immediately before the transfer.
Id. Sec. 90.103. Subsection (d) adds that "the operator shall pay each Part 90 miner the actual wage increases that accrue to the classification to which the miner is assigned." Id. Sec. 90.103(d).
Section 105(c)(1) of the Mine Act, 30 U.S.C. Sec. 815(c)(1), provides:
No person shall ... discriminate against ... or otherwise interfere with the exercise of the statutory rights of any miner ... because such miner ... is the subject of medical evaluations and potential transfer under a standard published pursuant to section 811 of this title ... or because of the exercise by such miner ... of any statutory right afforded by this chapter.
Any miner who believes that he has been "interfered with, or otherwise discriminated against by any person in violation of this subsection" may file a complaint with the Secretary; if the Secretary "determines that the provisions of this subsection have been violated," she shall immediately file a complaint with the Commission and propose an order granting appropriate relief. Id. Sec. 815(c)(2).
Bushnell, a Cannelton employee for some seventeen years, was first informed that he was eligible for transfer to a less dusty job in 1972. Stipulations, Joint Appendix (J.A.) at 4. According to a September 29, 1986 stipulation, submitted by counsel for Cannelton, J.A. at 6, and incorporated into the Administrative Law Judge's record, Secretary of Labor v. Cannelton Indus., Inc., 8 F.M.S.H.R.C. 1607, 1608 (A.L.J.1986), Bushnell exercised his Part 90 right to transfer in or around June 1980. 1 The parties stipulate that from September 3, 1980 until September 16, 1984, Bushnell worked as a dispatcher; as of September 16, 1984, his compensation was $133.28 for an eight-hour shift. Stipulations, J.A. at 4. On September 17, 1984, Bushnell was reassigned to "general inside laborer" work as part of a general realignment due to adverse economic conditions. Id. In this position, he was paid $104.78 for an eight-hour shift. Id. at 5. On October 1, 1984, the mines were closed, and all remaining employees, including Bushnell, were laid off. As a result of his transfer from dispatcher to general inside laborer, Bushnell suffered a wage loss of $161.14. Id.
On November 9, 1984, Bushnell filed a complaint with the Secretary under section 105(c)(2) of the Mine Act. Following an On February 26, 1988, the Commission reversed, vacated the back pay award and the civil penalty, and dismissed the complaint. 10 F.M.S.H.R.C. at 152, 160 (Rev.Comm'n 1988). The Commission held that Cannelton's failure to maintain Bushnell's rate of pay upon his transfer for reasons unrelated to dust exposure did not violate the Mine Act or Part 90. Id. at 153. The contrary view, advanced by the Secretary and adopted by the ALJ, the Commission concluded, "reaches beyond the language and intent of the Mine Act and of the Secretary's own regulations." Id. at 157. 4 Contesting the Commission's judgment, the Secretary petitions this court for review.
investigation, the Secretary, on August 21, 1985, filed a complaint with the Commission. On July 17, 1986, the Administrative Law Judge (ALJ) granted the parties' motion to submit the case on fact stipulations and briefs without a hearing. In a decision dated October 21, 1986, the ALJ held that Cannelton had unlawfully cut Bushnell's pay when it reassigned him to a general inside laborer position. 8 F.M.S.H.R.C. at 1609. 2 The ALJ's order directed Cannelton to pay Bushnell $161.12 in lost wages, with interest, and assessed a civil penalty of $25 pursuant to section 110 of the Mine Act. 3 Id. at 1609-10
The legislative history of the Mine Act indicates that "the Secretary's interpretations of the law and regulations shall be given weight by both the Commission and the courts." S.REP. NO. 181, 95th Cong., 1st Sess. 49 (1977), reprinted in 1977 U.S.Code Cong. & Admin.News 3401, 3448; see Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1552 & n. 9 (D.C.Cir.1984) (...
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