United Mine Workers of America v. Miller

• Decision Date: 30 March 1982
• Docket Number: No. 15493,15493
• Citation: 170 W.Va. 177,291 S.E.2d 673
• Court: West Virginia Supreme Court
• Parties: UNITED MINE WORKERS OF AMERICA, International Union, and David E. Ward v. Walter MILLER, Director, West Virginia Department of Mines, and James R. Walker.

Page 673

291 S.E.2d 673

170 W.Va. 177

UNITED MINE WORKERS OF AMERICA, International Union, and David E. Ward v. Walter MILLER, Director, West Virginia Department of Mines and James R. Walker.

No. 15493.

Supreme Court of Appeals of West Virginia.

March 30, 1982.

Rehearing Denied May 27, 1982.

Syllabus by the Court

1. "Before this Court may properly issue a writ of mandamus three elements must coexist: (1) the existence of a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on the part of the respondent to do the thing the petitioner seeks to compel; and (3) the absence of another adequate remedy at law." Syllabus Point 3, Cooper v. Gwinn, 171 W.Va. 245, 248 S.E.2d 781 (1981).

2. "It is well established that the word 'shall' in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation." Syllabus Point 1, Nelson v. Public Employees Ins. Board, 171 W.Va. 445, 300 S.E.2d 86 (1982).

3. "While it is true that mandamus is not available where another specific and adequate remedy exists, if such other remedy is not equally as beneficial, convenient, and effective, mandamus will lie." Syllabus Point 4, Cooper v. Gwinn, supra.

4. The Legislature has established a clear and unequivocal public policy that the Department of Mines shall have as its primary purpose "the protection of the safety and health of persons employed within or at the mines of this state." W.Va. Code § 22-1-2 (1981 Replacement Vol.).

5. Withholding compensation from an employee in retaliation for the exercise by the employee of his statutory right to accompany State mine inspectors for the purpose of pointing out health and safety hazards is a form of discrimination prohibited by W.Va. Code § 22-1-21.

6. When a charge of discrimination is brought to the attention of an inspector, the inspector has the duty to note the alleged discriminatory action and if such action is found to constitute a violation, to issue a notice or order as provided in W.Va. Code § 22-1-13. In addition the miner who is the subject of discrimination may also pursue the administrative remedies provided in W.Va. Code § 22-1-21.

7. Under the provisions of W.Va.Code §§ 22-1-13 and 22-1-21 the authorized representative of the miners at the time of an inspection has a clear right to accompany State mine inspectors during an inspection, and to be free from discrimination for pointing out health and safety hazards to the inspector.

8. Under the provisions of W.Va. Code §§ 22-1-2 and 22-1-4 the Director of the West Virginia Department of Mines has a mandatory duty to enforce the provisions of W.Va. Code §§ 22-2-48 and 22-2-70d requiring the control of respirable dust. In determining standards for control of respirable dust the Director should look to applicable federal statutes and regulations which are generally recognized as authoritative on the subject. The procedure adopted by the Director for enforcement of these standards must include the participation of miners or their authorized representatives to insure the integrity of the monitoring process.

9. An inspector who finds a violation during the course of an inspection has a non-discretionary duty to issue a notice or order, which is in writing and signed by the inspector.

10. If during the course of an inspection, the existence of a health or safety hazard is pointed out to an inspector, the inspector must make note thereof on the record, and thereafter make a finding whether or not a violation exists. If the inspector finds that no violation exists and declines to issue an order or citation, he must give his reasons in writing for not doing so.

Daniel F. Hedges, Charleston, for petitioners.

Chauncey H. Browning, Atty. Gen., Nicholas W. Johnson, Deputy Atty. Gen., B. Keith Huffman and Bruce Ray Walker, Asst. Attys. Gen., Charleston, for respondents.

Jackson, Kelly, Holt & O'Farrell and Charles Q. Gage, Charleston, for amicus curiae Amherst Coal Co., Armco, Inc., Belva Coal Co., Inc., Cannelton Industries, Inc., Carbon Fuel Co., Cedar Coal Co., Central Appalachian Coal Co., Consol. Coal Co., Eastern Assoc. Coal Corp., Elkay Mining Co., Imperial Colliery Co., Kitt Energy Corp., Long Branch Energy, Milburn Colliery Co., Monterey Coal Co., New River Co., Old Ben Coal Co., Powellton Co., Robinson-Phillips Coal Co., Royal Coal Co., Slab Fork Coal Co., Southern Appalachian Coal Co., U. S. Steel Min. Co., Inc., Valley Camp Coal Co., Va. Crews Coal Co., Westmoreland Coal Co. and C. N. Wilcher Min., Inc.

McGRAW, Justice:

This is an original proceeding in mandamus. The petitioners are the United Mine Workers of America (UMWA), a voluntary association and international union representing mine workers throughout West Virginia, and David E. Ward, an authorized representative of miners employed at the Harewood mine in Fayette County, operated by Armco, Incorporated. Petitioner Ward is also a safety committeeman and president of local 7113 of the UMWA. The respondents are Walter Miller, Director of the West Virginia Department of Mines, and James K. Walker, an inspector for the West Virginia Department of Mines.

On or about February 11, 1982, respondent Walker conducted a general inspection of the Harewood mine. Accompanying the respondent during the inspection were two Armco management employees and petitioner Ward. The inspection lasted approximately eight hours, from eight in the morning until four in the afternoon. During the course of the inspection petitioner Ward pointed out a number of conditions he considered violations of State mining laws. At the conclusion of the inspection respondent Walker issued ten notices of violations, and also issued a withdrawal order for a section of the mine that was found to pose an imminent danger.

Petitioner Ward, however, alleges that there were eighteen violations which he pointed out and which were observed by respondent Walker, for which the respondent inspector refused to issue notices, although the inspector did orally direct Armco to correct some of these violations. At one point during the inspection petitioner Ward complained to the inspector of the large amount of dust present in the air, noting that the dust was so thick "it was difficult to even see the buggy lights down the entry when they were running." The record shows that the inspector's response was, "It won't explode."

After the inspection was completed management personnel indicated that they were going to dock petitioner Ward's pay for the time he spent accompanying the inspector. The petitioner brought this to the attention of the inspector and asked if he would take any action in response to Armco's docking of his pay. The inspector replied that he would not. Consequently, petitioner Ward was docked one full day's pay by Armco.

Subsequently, the petitioners commenced proceedings in this Court. They contend that the Director of the Department of Mines has failed to perform his statutory duty to enforce the laws related to health and safety in coal mines in West Virginia. They seek a writ of mandamus ordering the respondents to (1) take the necessary action that will assure that the authorized representatives of miners are not penalized by their employers for exercising their statutory right to accompany department mine inspectors during coal mine examinations; (2) take such action as is necessary to assure enforcement of safety laws requiring that coal mines be free from excessive levels of respirable dust; and (3) require inspectors to note all violations of law found during the course of an inspection. We find merit in the petitioners' contentions and grant the writ.

I.

The threshold issue we must address in this proceeding is whether mandamus is an appropriate remedy for the relief sought by the petitioners. As a general rule "[b]efore this Court may properly issue a writ of mandamus three elements must coexist: (1) the existence of a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on the part of the respondent to do the thing the petitioner seeks to compel; and (3) the absence of another adequate remedy at law." Syllabus Point 3, Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981).

The respondents argue that mandamus is an inappropriate remedy here because the statutes do not establish a clear legal right on the part of the petitioners for the requested relief, nor a clear legal duty on the part of the respondents to take the action they seek to compel. The respondents further contend that the petitioners possess other adequate remedies which preclude the issuance of the writ.

All of the claims of the petitioners are founded upon the alleged failure of the Director of the Department of Mines and department inspectors to enforce the West Virginia mine safety and health laws contained in Chapter 22 of the West Virginia Code. It is clear that the respondents have the duty to enforce these statutes. W.Va. Code § 22-1-4 (1981 Replacement Vol.) provides that "[t]he director of the department of mines ... shall have the power and duty to ... supervise and direct the execution and enforcement of the provisions of [Chapter 22]." (Emphasis added). "It is well established that the word 'shall' in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation." Syllabus Point 1, Nelson v. Public Employees Ins. Board, 171 W.Va. 445, 300 S.E.2d 86, (1982).

The crucial issue involved in each of the petitioners' claims is therefore whether the particular statutes upon which they rely provide for the performance of the acts they seek to compel. If the statutes do so provide, then it is clear from the provisions of W.Va. Code § 22-1-4 that the respondents have a non-discretionary duty to enforce those provisions. Mandamus lies to require the discharge by a public officer of a...