United Mine Workers of America v. Scott

• Decision Date: 05 April 1984
• Docket Number: No. 16126,16126
• Citation: 315 S.E.2d 614,173 W.Va. 356
• Parties: UNITED MINE WORKERS OF AMERICA, etc., et al. v. Mark SCOTT, etc., et al.
• Court: West Virginia Supreme Court

Page 614

315 S.E.2d 614

173 W.Va. 356

UNITED MINE WORKERS OF AMERICA, etc., et al. v. Mark SCOTT, etc., et al.

No. 16126.

Supreme Court of Appeals of West Virginia.

April 5, 1984.

[173 W.Va. 358] Syllabus by the Court

1. "A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

2. "A writ of mandamus will issue to require the discharge by a public official of a non-discretionary duty." Syl. pt. 4, Glover v. Sims, 121 W.Va. 407, 3 S.E.2d 612 (1939).

3. "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." Syl. pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969).

4. "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, [173 W.Va. 359] and effective, mandamus will lie." Syl. pt. 4, Cooper v. Gwinn, 298 S.E.2d 781 (W.Va.1981).

5. After the Board of Coal Mine Health and Safety has completed its review of a coal mine fatality pursuant to West Virginia Code § 22-2A-4(e) (1981 Replacement Vol.), the Director of the Department of Mines, as Chairman of the Board of Coal Mine Health and Safety, has a mandatory duty to bring the issue of whether the promulgation of rules and regulations by the Board could assist in preventing the recurrence of such fatality to a formal vote.

6. After the Board of Coal Mine Health and Safety has completed its annual review of the major causes of coal mining injuries during the previous calendar year pursuant to West Virginia Code § 22-2A-4(e) (1981 Replacement Vol.), the Director of the Department of Mines, as Chairman of the Board of Coal Mine Health and Safety, has a mandatory duty to bring the issue of whether the promulgation of rules and regulations by the Board could assist in preventing the recurrence of such injuries to a formal vote.

7. Under West Virginia Code § 22-2A-4(e) (1981 Replacement Vol.), the Director of the Department of Mines, as Chairman of the Board of Coal Mine Health and Safety, has a mandatory duty to provide the Board with all available reports regarding all coal mine fatalities within sixty days of each fatality. The Board of Coal Mine Health and Safety then has a mandatory duty under West Virginia Code § 22-2A-4(e) (1981 Replacement Vol.) to promptly review such reports, and to promulgate such rules and regulations as are necessary to prevent the recurrence of the specific type of coal mining fatality reviewed within one hundred twenty days of the date of such review, unless a majority of the quorum present determines that no possible rule or regulation can be promulgated which could assist in preventing the recurrence of the specific type of fatality reviewed.

8. Under West Virginia Code § 22-2A-4(e) (1981 Replacement Vol.), the Board of Coal Mine Health and Safety has a mandatory duty to conduct an annual review, between the first day of January and the first day of July, of the major causes of coal mining injuries during the previous calendar year, and to promulgate such rules and regulations during this six month time period as are necessary to prevent the recurrence of the major causes of coal mining injuries reviewed, unless a majority of the quorum present determines that no possible rule or regulation can be promulgated which could assist in preventing the recurrence of the major causes of injuries reviewed.

9. Under West Virginia Code § 22-2A-4(c)(7) (1981 Replacement Vol.), the Board of Coal Mine Health and Safety has a mandatory duty to publish, within a reasonable time, its reasons, in the form of findings of fact and conclusions of law, for 10. Under West Virginia Code § 22-2A-3(f) (1983 Supp.), the Board of Coal Mine Health and Safety may act officially only through the formal vote of a majority of the quorum present; committees and subcommittees of Board members may not be created to obstruct the Health and Safety Administrator of the Board in the performance of his mandatory duties under West Virginia Code §§ 22-2A-4a(a)(2), (3), and (6) (1983 Supp.).

determining that no possible rule or regulation can be promulgated which could assist in preventing the recurrence of the specific type of fatality or major cause of injury reviewed.

11. Under West Virginia Code §§ 22-2-28a and 22-2A-4(a) (1981 Replacement Vol.), the Board of Coal Mine Health and Safety has a mandatory duty to promulgate rules and regulations necessary to effectuate the legislative mandate that underground mining equipment conform to the height of the seam being mined.

12. Although the Board of Coal Mine Health and Safety may promulgate procedural rules and regulations to aid and assist in expediting its promulgation of health and safety rules and regulations, any procedural rule or regulation that either conflicts with a legislatively mandated procedural rule or otherwise obstructs or delays the promulgation of health and safety rules and regulations is invalid.

Michael H. Holland, General Counsel, UMWA, Washington, D.C., Daniel F. Hedges, Charleston, for appellants.

Chauncey H. Browning, Atty. Gen., James F. Wallington, B. Keith Huffman, Asst. Attys. Gen., Charleston, for appellees.

McGRAW, Justice:

The petitioners in this original mandamus proceeding are the United Mine Workers of America by its international officers: Richard L. Trumka, president; Cecil E. Roberts, vice-president; and John J. Banovic, secretary-treasurer; and William "Bolts" Willis and Terry Osborne, members of the West Virginia Board of Coal Mine Health and Safety. The respondents are Mark Scott, Administrator of the Board of Coal Mine Health and Safety; Walter Miller, Director of the West Virginia Department of Mines and Chairman of the Board of Coal Mine Health and Safety; and, the Board of Coal Mine Health and Safety. Three major areas of concern involving the operation of the Board of Coal Mine Health and Safety are at issue: (1) the promulgation of regulations in response to mining fatalities and injuries; (2) the promulgation of regulations governing the conformance of equipment to coal seams; and (3) the promulgation of procedural rules. ¹ Following a brief discussion of the structure and function of the West Virginia Board of Coal Mine Health and Safety, the appropriateness of mandamus in this case and each of the three major areas of concern will be addressed.

Prior to 1977, coal mine health and safety regulation in West Virginia was accomplished through a combination of statutory law, inspector rulings, and statewide enforcement directives by the Director of the Department of Mines. One consequence of this piecemeal approach was that "[d]uring The original Board of Coal Mine Health and Safety consisted of seven members: the Director of the Department of Mines, three management representatives, and three labor representatives. West Virginia Code §§ 22-2A-3(a) and (b) (1981 Replacement Vol.). It was granted broad rule-making authority through its exemption from compliance with the West Virginia Administrative Procedure Act in its promulgation of rules and regulations. West Virginia Code § 22-2A-4(c) (1981 Replacement Vol.). The basic statutory rule-making procedure governing Board operations was a more expeditious notice and comment process. West Virginia Code §§ 22-2A-4(c)(4)-(8) (1981 Replacement Vol.). The original Board existed from 1977 until the end of the fiscal year in 1982. Over this period, the respondents indicate that thirty-two sets of regulations were proposed by the Board, and twenty-four were adopted in final form and published in the state register.

each session of the legislature, coal mine health and safety standards [were] proposed which require[d] knowledge and comprehension of scientific and technical data related to coal mining." West Virginia Code § 22-2A-1(a)(3) (1981 Replacement Vol.). This situation, in turn, resulted in a growing sense of legislative impotence arising from the "highly specialized, technical and complex" nature of the coal mining industry. West Virginia Code § 22-2A-1(a)(2) (1981 Replacement Vol.). Therefore, the Legislature came to the conclusion that, "The formulation of appropriate regulations and practices to improve health and safety and provide increased protection of miners can be accomplished more effectively by persons who have experience and competence in coal mining and coal mine health and safety." West Virginia Code § 22-2A-1(a)(4) (1981 Replacement Vol.). Thus, in 1977, in vindication of its declaration that " 'the first priority and concern of all in the coal mining industry must be the health and safety of its most precious resource--the miner,' " the Legislature created the Board of Coal Mine Health and Safety, charged with "promulgating rules and regulations in those areas specifically directed ... and those necessary to prevent fatal accidents and injuries." West Virginia Code § 22-2A-1(a)(1) (1981 Replacement Vol.), quoting Federal [173 W.Va. 361] Coal Mine Health and Safety Act of 1969, § 2(a), 30 U.S.C. § 801(a) (1976); 1977 W.Va. Acts ch. 121; West Virginia Code § 22-2A-4(a) (1981 Replacement Vol.).

In 1980, the Legislature amended Chapter 22, Article 2A, of the Code, to include requirements that the Director of the Department of Mines "within sixty days of a coal mining fatality or fatalities provide the board with all available reports regarding such fatality or fatalities" and that "[w]ithin one hundred twenty days of [a] review of each such fatality, the board shall promulgate such rules and regulations as are necessary to prevent the recurrence of such fatality...." ²...