United Mine Workers of America v. Federal Mine Safety and Health Review Commission
| Decision Date | 23 February 1982 |
| Docket Number | 79-2536,Nos. 79-2503,79-2518,79-2537 and 80-1021,s. 79-2503 |
| Parties | , 1982 O.S.H.D. (CCH) P 25,931 UNITED MINE WORKERS OF AMERICA, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, Respondent. UNITED MINE WORKERS OF AMERICA, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, Respondent, Helen Mining Company and Kentland-Elkhorn Coal Corporation, Intervenors. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, Respondent, Kentland-Elkhorn Coal Corporation, Intervenor. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, Respondent, Helen Mining Company, Intervenor. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, Respondent, United Mine Workers of America and Allied Chemical Corporation, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Cynthia L. Attwood, Counsel, Dept. of Labor, Washington, D. C., with whom Dennis R. McDaniel, Atty., Dept. of Labor, Washington, D. C., was on the brief, for petitioner Ray Marshall, Secretary of Labor, Dept. of Labor, in Nos. 79-2536, 79-2537, and 80-1021.
Mary Lu Jordan and Harrison Combs, Washington, D. C., were on the brief for petitioner United Mine Workers of America in Nos. 79-2503 and 79-2518 and intervenor United Mine Workers of America in No. 80-1021.
Todd D. Peterson, Washington, D. C., with whom Richard McMillan, Jr., Washington, D. C., was on the brief, for intervenor Helen Mining Co. in Nos. 79-2518 and 79-2537.
Anthony J. Steinmeyer and Marleigh Dover Lang, Attys., Dept. of Justice, Washington, D. C., were on the statement in lieu of brief for respondent Federal Mine Safety and Health Review Commission.
George H. Cohen, Washington, D. C. and Mary Win-O'Brien, Pittsburgh, Pa., were on the brief for amicus curiae United Steelworkers of America, urging that the Commission decisions should be set aside, in Nos. 79-2518, 79-2536, 79-2537, and 80-1021.
C. Lynch Christian, III, was on the brief for intervenor Kentland-Elkhorn Coal Corp. in Nos. 79-2518 and 79-2536.
Lee F. Feinberg, Charleston, W. Va., entered an appearance for intervenor Allied Chemical Corp. in No. 80-1021.
Before TAMM and WALD, Circuit Judges, and HAROLD H. GREENE, * United States District Judge for the District of Columbia.
Opinion for the court filed by District Judge GREENE.
The issue in these consolidated cases 1 is whether under section 103(f) 2 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., miner representatives are entitled to payment of their regular wages for the time they spend accompanying federal officers on certain inspections provided for under the Act.
Section 103(a) of the Act requires the Secretary of Labor periodically to conduct certain mine inspections. 3 No one disputes that miner representatives have a right to be present during these mandatory inspections and that they are entitled to be paid for the time they spend attending them. The controversy here revolves around additional, so-called "spot," inspections conducted by the Labor Department, the question being whether the companies have the duty to provide compensation also for miner representatives' walkaround time with respect to these irregular inspections. 4 The Federal Mine Safety and Health Review Commission answered that question in the negative, and the Secretary of Labor and the United Mine Workers of America petitioned this Court for review. For the reasons stated below, we have concluded that the Commission erred, and we reverse.
The facts are not in dispute. In both Helen Mining Co. and in Allied Chemical Corp., employees of the Department of Labor conducted spot inspections of certain mines to check for excessive release of methane gas. See note 4, supra. A representative of the miners accompanied the inspector in each instance for the entire inspection, but the companies refused to pay these employees their wages for the time spent in these inspections. In Helen Mining Co., the Department of Labor thereupon issued a citation under 104(a) and an order under section 104(b), 5 finding that the Company had violated the Act. 6 The Department also petitioned the Commission for an assessment of a civil penalty under section 110 of the statute. 7 In Allied Chemical, the Secretary filed a complaint with the Commission charging discrimination by the mining company under section 105(c)(1) of the Act. 8
After a hearing, an administrative law judge held in Helen Mining that no violation of section 103(f) had occurred, and he denied the petition, but another ALJ concluded in Allied Chemical that the Act had been violated and issued a cease and desist order. The Commission affirmed in Helen Mining Co. and reversed in Allied Chemical, holding that the statute requires compensation to be paid only in connection with the regular inspections.
The Kentland-Elkhorn case, the third of these consolidated actions, involved a specialized electrical spot inspection. 9 There, the company refused to pay a miner who accompanied the inspector during the two-day inspection for his walkaround time, and a citation and order were issued under section 104 on account of that refusal. The mining company applied to the Commission for review of the Secretary's enforcement action. The ALJ, after hearing, concluded that section 103(f) applied only to regular inspections, and he vacated the citation and order. The Commission affirmed, citing its previous decision in Helen Mining Co.
The scope of a miner representative's right to participate in mine inspections, and his right to do so without loss of pay, are governed exclusively by subsections (a) and (f) of section 103 of the Act.
Under subsection (a), the Secretary is required to determine, among other things, whether an imminent danger exists within a mine, and whether there is compliance with the mandatory health or safety standards and with any outstanding citations, orders, or decisions. 10 To that end, he must make "frequent inspections" and, more specifically, he is required to "make inspections of each underground coal or other mine in its entirety at least four times a year, and of each surface coal or other mine in its entirety at least two times a year." See note 3, supra. Subsection (f), in turn, entitles a miner representative to accompany the federal mine inspector "during the physical inspection of any ... mine made pursuant to the provisions of subsection (a)," and it further provides that any "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." See note 2, supra.
This statutory language is susceptible of three possible interpretations, and each of these alternatives has been embraced by one or more of the parties to this controversy.
The mine operators contended below that the only inspections made "pursuant to the provisions of subsection (a)" are the regular inspections required by the specific language of the third sentence of subsection (a). If that construction is correct, the participation of miners in inspections, and the right to be compensated therefor, is limited to these mandatory regular inspections. In the view of the operators, when the Secretary conducts other inspections, including the spot or the electrical inspections at issue here, there is no right of either participation or payment. 11
The approach taken by the Department of Labor, both in its Interpretive Bulletin (see note 6, supra) and before this Court, is that any inspection furthering the purposes outlined in subsection (a) is made "pursuant to" the provisions of that subsection, and that the miners are therefore entitled to participate in all such inspections and to do so without loss of pay.
The Commission found the statute not to favor clearly either of these two approaches. 12 To resolve the ambiguity, it searched the legislative history and it there found support for a third alternative: that while the miners have a right to participate in all mine inspections, they are entitled to be paid only for their participation in the regular, mandatory inspections. 13 We will consider first whether the Commission's conclusion can be sustained.
In reaching its decision, the Commission relied exclusively upon a statement by Representative Carl Perkins-a principal sponsor of the 1977 Mine Act, the chairman of the House Committee on Education and Labor during its consideration, and chief conferee for the House when the statute was in conference committee. Congressman Perkins stated on the floor of the House following the adoption by the House-Senate conferees that
(I)t is the intent of the committee to require an opportunity to accompany the inspector at no loss of pay only for the inspections mandated by subsection (a), and not for the additional inspections otherwise required or permitted by the act. Beyond these requirements regarding no loss of pay, a representative authorized by the miners shall be entitled to accompany inspectors during any other inspection exclusive of the responsibility for payment by the operator. 14
The Commission found
(t)he thrust of Mr. Perkins' statement (to be) that it was the intention of the Senate and House conferees to preserve the right under the 1969 Act to accompany inspector on all inspections, but to accord a walkaround pay right only for regular inspections. 15
In the opinion of the Commission, Congressman Perkins' statement is the "best guide" to the legislative intent on this...
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