Sherwin Alumina Company, LLC v. Secretary of Labor; Secretary of Labor v. Sherwin Alumina Company, LLC; United Steelworkers, Local 235A, Intervenor
Sherwin Alumina Company, LLC v. Secretary of Labor (FMSHRC CENT 2015-151-RM, et al.): Original lockout walkaround decision superseded
Apply this to your situation
This order from 2015 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current MSHA standards and Commission precedent, with citations.
Plain-English summary
Sherwin Alumina locked out about 450 union-represented miners and barred their designated miners' representative from accompanying MSHA inspections. Judge Thomas P. McCarthy held that locked-out miners who cannot be permanently replaced remain miners for section 103(f) walkaround purposes because they reasonably expect to return and retain a direct interest in mine safety. He affirmed the citation, failure-to-abate order, and $112 penalty. This September 25 release was superseded by an amended October 5 decision after the parties identified that footnote 6 accidentally omitted the word “not” from a sentence describing the Secretary's position on striking miners who are not permanently replaced. The amended decision otherwise preserved the merits ruling.
Decision snapshot
- Governing provision: 30 U.S.C. § 813(f)
- Outcome: The citation and failure-to-abate order were affirmed, but this text was superseded by the corrected decision in cent-2015-185-alj.
- Key point: Use the amended decision for the operative text because the original footnote misstated the Secretary's position by omitting a critical word.
Full text (FMSHRC public release)
FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF
ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA
AVE., N.W., SUITE 520N
WASHINGTON, DC
20004-1710
September 25,
2015
SHERWIN
ALUMINA COMPANY, LLC, : CONTEST PROCEEDINGS
Contestant, :
: Docket
No. CENT 2015-0151-RM
: Citation
No. 8778065; 11/13/2014
v. :
: Docket
No. CENT 2015-0152-RM
SECRETARY
OF LABOR : Order No. 8778066;
11/13/2014
MINE
SAFETY AND HEALTH :
ADMINISTRATION
(MSHA), : Mine: Sherwin Alumina, L.P.
Respondent. : Mine
ID No: 41-00906
:
:
:
SECRETARY
OF LABOR, : CIVIL PENALTY
PROCEEDING
MINE
SAFETY AND HEALTH :
ADMINISTRATION
(MSHA) : Docket No. CENT 2015-0185
Petitioner,
: A.C. No. 41-00906-371548
:
v.
:
:
SHERWIN
ALUMINA COMPANY, LLC, :
Respondent, : Mine:
Sherwin Alumina, L.P.
: Mine
ID: 41-00906
v. :
:
UNITED
STEELWORKERS, LOCAL 235A :
Intervenor. :
DECISION AND ORDER
Appearances: Mary
Kathryn Cobb, Esq., U.S. Department of Labor, Office of the Solicitor, Dallas,
Texas, and Derek Baxter and Philip Mayor, Esq., U.S. Department of Labor, Office
of the Solicitor, Arlington, Virginia (on brief) for the Secretary of Labor
Christopher
V. Bacon, Esq., and Samantha D. Seaton, Esq., Vinson & Elkins LLP, Houston,
Texas for Sherwin Alumina Company, LLC
Susan J. Eckert,
Esq., Santarella & Eckert, LLC, Littleton, Colorado for United
Steelworkers Local 235A
Before: Judge McCarthy
I. Statement of the Case
This
matter is before me upon a Notice of Contest and related Petition for the
Assessment of Civil Penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(d).
This is a case of first impression. The precise issue
presented is whether Sherwin Alumina Company (“Sherwin”) violated section 103(f)
of the Mine Act by refusing to allow the properly designated representative authorized
by miners to accompany MSHA during physical inspection of the mine after
Sherwin locked out and temporarily replaced the miners during an ongoing,
economic labor dispute. That refusal prevented the representative from aiding
inspections and participating in pre-and post-inspection conferences since the
lockout.
Twenty-two years ago, Chairman Holen and Commissioners
Backley, Doyle and Nelson affirmed Administrative Law Judge Morris’ conclusion
that “striking employees … were not miners because they were not working in the
mine at the time of the inspection” and held that “striking employees … were
not entitled to have their previously designated walk-around representative
accompany the MSHA inspector during his inspection of the mine.” Cyprus
Empire Corp., 15 FMSHRC 10, 15 (Jan. 1993). Contestant/Respondent Sherwin
Alumina argues that Cyprus Empire is controlling Commission
precedent, and that under the doctrine of stare decisis, I must dismiss
and vacate the citation and the concomitant failure-to-abate order at issue. Sherwin
Br. 1, 21. Sherwin contends that the locked-out employees who designated their
walkaround representative are no different than the striking employees in Cyprus
Empire, because they are not actively working in a mine and therefore they
are not miners under the plain language of section 3(g) of the Act. Id.
at 8. In Cyprus Empire, the Commission concluded that the “safety
purposes of section 103(f) were not diminished in this instance” because the
striking miners were not working at the time and would be entitled to designate
a walkaround representative once they returned to work. Id., citing Cyprus
Empire, 15 FMSHRC at 14. Similarly, Sherwin argues that once the
locked-out employees return to work, they too will have the right to designate
their own representative. In the meantime, Sherwin argues that the locked-out
miners’ safety is not being compromised, they continue to have access to safety
information through MSHA’s District Office, and MSHA’s District Office has
discretion to review and alter any training that they will receive prior to
returning to work. Id., citing Tr. 139, 140, 156-57; 30 C.F.R. part 48.
Also, to the extent that section 103(f) serves the secondary purpose of
providing information regarding ongoing health and safety conditions to the MSHA
inspector, Sherwin argues that such purpose is better served by offering the inspector
unlimited access to speak with replacement workers actually working in the mine.
Sherwin Br. 8.
The Secretary argues that Cyprus Empire is not
binding, and that the Secretary’s current interpretation of sections 3(g) and
103(f) of the Mine Act must replace the Commission’s prior interpretation in
that case. Sec’y Br. 24, 26, citing National Cable & Telecomm. Ass’n v.
Brand X Internet Servs., 545 U.S. 967, 983-84 (2005) (Brand X)
(permitting agencies to provide authoritative interpretations of ambiguous
statutory language even after a contrary judicial interpretation). The
Secretary emphasizes that only the United Mine Workers (as an intervenor), and
not the Secretary of Labor, advanced the Secretary’s interpretation beyond the
trial level and appealed the judge’s adverse decision in Cyprus Empire to
the Commission. Sec’y Br. 25. Hence, the Commission did not have the benefit of
considering the Secretary’s current interpretation that the statutory
definition of the term “miner” in section 3(g) of the Act, defined to mean “any
individual working in a coal or other mine,” is ambiguous. Accordingly, under Chevron,
the Secretary’s argues that his interpretation of “miner” in the context of
section 103(f) to include employees currently locked out or on strike, who have
not been permanently replaced and reasonably expect to return to work at the
end of the labor dispute, is permissible and entitled to deference. See Sec’y
Br. 7; Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-44 (1984). The Secretary contends that his current
interpretation is consistent with the overall remedial purpose of the Act, the
specific purposes of the walk-around provision, and Commission and judicial
precedent giving a broad interpretation to the walk-around provision so that a locked-out
miner representative can continue to protect the safety and health of miners
who reasonably expect to return to the mine and resume active work. Sec’y Br.
16-24.
Intervenor, United Steelworkers Local 235A (“Steelworkers”),
agrees with the Secretary that the Mine Act’s definition of “miner” under
section 3(g) is ambiguous, and should be interpreted in the context of section
103(f) to include workers who are on strike or locked out, but who reasonably
expect to return to the mine at the end of a labor dispute. Intervenor Br. 8. The
United Steelworkers further asserts that there is no evidence that the
Secretary of Labor improperly issued the section 104(a) Citation and section
104(b) Order at issue in order to affect the balance of power in the labor negotiations
between Sherwin and the Steelworkers. Id. at 12-16. Finally, the Steelworkers
argue that including a locked-out miners’ representative in the inspection
party assists with ensuring, and does not compromise, safety at the mine. Id.
at 20-23.
Early procedural background in this matter
was set forth in my January 21, 2015 Order Consolidating Proceedings and
Denying Motions. Thereafter, a hearing was held in Corpus Christi, Texas on
February 17, 2015. During the hearing, the parties introduced testimony and documentary evidence. Witnesses were
sequestered. The Secretary’s Motion in Limine to exclude evidence of sabotage
was denied. Tr. 16-19. After the hearing, the parties submitted briefs and reply
briefs.
For the reasons set forth below, I find that Cyprus
Empire does not govern disposition of this case because in that matter the
Commission left open the prospect of remaining ambiguity in the statutory
definition of the term “miner” and the Secretary proffered no position to which
the Commission could accord weight. In this case, by contrast, the Secretary persuasively
argues that in the context of Section 103(f), the statutory definition of
“miner” in the phrase “representative authorized by his miners” is ambiguous
and should include locked out miners, who have been temporarily replaced and
reasonably expect to return to work at the end of the labor dispute. Such
miners are still working in a mine, they have just been temporarily prevented
from doing so during the lockout.
My decision is limited to the context of a lockout in
which locked out miners cannot be permanently replaced and may be considered
still working in the mine, albeit locked out. As such, they retain an ongoing
interest in the primary purpose of the Mine Act, to protect the health and
safety of the miners working in, and not permanently replaced from, the mine.
The Secretary obviously plays to a larger audience
when he abandons his pre-hearing “lockout” versus “strike” basis for
distinguishing Cypress Empire and instead argues that both locked out and
striking miners who have not been permanently replaced are still working in the
context of the walk-around provision because they can reasonably expect to
resume active work in the foreseeable future, and help protect the safety of
temporary replacements during the interim labor dispute. Sec’y Br. 30-31. I
decline the Secretary’s invitation to extend his current interpretation to
striking miners, who have not been permanently replaced. In my view, that would
bog the Commission down in resolving intricate and complex labor relations
issues such as temporary versus permanent replacement and the nature of the
underlying walk out, either an economic or unfair labor practice strike, which
mandate different outcomes on the permanent replacement issue under the
National Labor Relations Act.
An economic strike is one neither prohibited by law or
collective-bargaining agreement nor caused or prolonged by an employer unfair
labor practice and generally has an object of enforcing economic demands on the
employer. See e.g., NLRB v. Transport Co. of Texas., 438 F.2d 258, 262
n.6 (5th Cir. 1971). The strike in Cyprus Empire was clearly an economic
strike over the terms of a new collective-bargaining agreement, in which the
strikers could have been, but were not, permanently replaced. Rather, the
operator resumed mining operations with salaried employees. See Cyprus
Empire Corp., 13 FMSHRC 1040, 1044 ¶ 13 (ALJ)(“The hourly employees commenced
the strike on or about May13, 1991, related to the negotiations over a new
collective-bargaining agreement.”). There was no mention of any underlying
unfair labor practice.
The Commission has never addressed an unfair labor
practice strike, where miners striking, at least in part over an unfair labor
practice, cannot be permanently replaced and must be reinstated to existing
positions upon their unconditional offer to return to work even if the employer
has hired permanent replacements. See, e.g., NLRB v. International Van
Lines, 409 U.S. 48, 50 (1972). The nature of an unfair labor practice strike,
however, may turn on protracted litigation of the alleged underlying unfair
labor practice. Further, a strike that is economic at its inception may be
converted into an unfair labor practice strike by the employer’s subsequent
commission of an unfair labor practice. See e.g., Citizens Publ’g &
Printing Co., v. NLRB, 263 F. 3d 224 (3d Cir. 2001) (false statement that
economic strikers had been replaced converted strike to unfair labor practice
strike). Such difficult legal determinations lie exclusively within the technical
expertise of the National Labor Relations Board (NLRB).
Thus, rightly or wrongly, Cypress Empire
controls in the context of an economic strike in which strikers walk off the
job and can be permanently replaced, but are entitled to be placed on a
preferential rehire list.[1]
The Commission is certainly free to revisit Cypress Empire, but this
judge cannot do so.[2]
I can, however, differentiate between an offensive lockout, in which an
operator withholds employment from his miners for the purpose of resisting
their demands or gaining concessions, but may not permanently replace them, and
an economic strike, in which miners voluntarily choose to withhold their
services and may be permanently replaced. Such differentiation is particularly appropriate
here in order to resolve whether a lockout renders the term “miner” ambiguous
in the context of section 103(f)’s walkaround provision. I find that the
statutory phrase “representative authorized by his miners” in section 103(f) is
ambiguous in the context of a lockout, and that the Secretary’s interpretation
is reasonable, consistent with the underlying purpose of the Act and the
purposes of the walk-around provision, and entitled to deference.
Accordingly, based on a careful review of the entire
record, including the parties’ post-hearing briefs and my observation of the
demeanor of the witnesses,[3]
I make the following:
II. Findings of Fact
Sherwin operates a large alumina refinery in Gregory,
Texas, which encompasses 1200 acres. The facility utilizes hundreds of valves
and tanks and miles of piping, and usually employs about 2,000 miners. Tr. 10, 96-97.
Of the 2,000 miners operating the plant
in 2014, 450 of the “hourly employees” were represented by the United
Steelworkers Local 235A (“Steelworkers”) under the terms of a collective
bargaining agreement set to expire on October 1, 2014. About 500-600 other miners
were contract workers. Tr. 97, 113; Jt.
Stip. 10; Jt. Ex. 11, Exh. A.
In June of 2013, Joe Guzman was designated by miners
working at Sherwin, as an authorized representative under Section 103(f) of the
Mine Act. Jt. Ex. 19, Stip. No. 12; Jt. Ex 4. Guzman typically accompanied MSHA
inspectors and provided information to inspectors about mine processes and gave
them the names of other miners to be consulted. Tr. 28-29. Guzman also participated
in post-inspection conferences and kept miners apprised of inspection results. Tr.
28-29, 31-32, 104-05. There is no evidence that Guzman ever engaged in
misconduct or sabotage at the Sherwin Mine.
From September 2013 until the hearing, Sherwin
received about 458 citations and about 119 of them were designated significant
and substantial (S&S) violations by MSHA. Tr. 180. Around November 2013, in
response to the large number of S&S citations, Sherwin submitted a
corrective action plan (CAP) to MSHA. Tr. 143. About September 2014, MSHA
gave Sherwin notice that it was a pattern-of-violations (POV) candidate under Section
104(e) of the Mine Act. Tr. 61, 141.
For several months prior to October
2014, Sherwin and the Steelworkers engaged in unsuccessful negotiations over a
successor collective-bargaining agreement. Jt. Ex. 11, Declaration of Paul
English, safety, health, and industrial-hygiene manager, at ¶ 3. During negotiations,
verbal and written hazard complaints to MSHA increased, but only about a
quarter of them were deemed to have any merit. Tr. 80-83, 129. MSHA, the Steelworkers,
and Sherwin management and counsel, met in June 2014 to evaluate the CAP plan. Tr.
- Sherwin’s labor relations counsel at the time, Henry Chajet, from Patton
Boggs (now merged with Jackson Lewis), raised several general allegations of
sabotage with MSHA District Manager, Michael Davis. Tr. 143-44.
Indeed, during the summer of 2014, Sherwin
documented several incidents of suspected sabotage at the facility. Tr. 81,
164, 175. Electrical substation panels and switch house cabinets were loosened
or unscrewed, and machine guarding was missing or taken off and laid on the
floor. Tr. 81, 164, 175. Air was turned off on a pneumatic overflow alarm in
the rod mills. Sherwin purchased a lock to keep the valve open. Tr. 81. Weeks later,
the lock was cut and the alarm turned off again. Tr. 81. To prevent any further
tampering, Sherwin enclosed the valve with steel, and welded the enclosure shut.
Tr. 81.
About mid-June 2014, after an
anonymous complaint to MSHA, a pile of presumed asbestos-containing material (PACM)
was dumped on the powerhouse floor, just one day after the same area had been
examined by MSHA. Tr. 88-90. Also, someone broke into several supervisor offices.
A safety relief valve was bent, and seemed to have been forced into a position
that would not allow it to work properly. Tr. 167. A medical lancet was stuck
into a suction unit in the plant ambulance, resulting in a finger injury to a
miner. Tr. 165. Photographs of a 1999 explosion at the Kaiser Aluminum and
Chemical Corporation Gramercy plant in Louisiana were left in the Sherwin administration
building with a note stating words to the effect that “This could happen to
you.” Tr. 165-66.[4]
Absent security cameras in the mine, which
likely had to be negotiated with the Steelworkers as a change in working
conditions under Section 8(a)(5) of the NLRA, Sherwin was unable to discover who
committed the alleged sabotage. Tr. 176-177. Sherwin reported the incidents to
government agencies, law enforcement, and several MSHA inspectors. Tr. 88, 167,
176-79, 185.
On Friday, October 10, 2014, the Steelworkers
rejected Sherwin’s final offer for a new collective-bargaining agreement. Tr.
- On Saturday, October 11, 2014, Sherwin locked out approximately 450 miners
represented by the Steelworkers in furtherance of its labor dispute with the
Steelworkers. Jt. Stip. No. 11. Joe Guzman, and the two miners who designated him
as their miner representative under section 103(f), were among those miners
locked out by Sherwin. Tr. 55; Jt. Ex. 19, Stip. No. 13.
In anticipation of the lockout, Sherwin
had trained management personnel as field supervisors and hired hourly, temporary
replacement miners, who had done observational training in the plant during the
month prior to the lockout, but performed no hands-on mining. Tr. 184. During
the lockout and in response to picketing, Sherwin hired additional security, and
bussed the temporary replacement workers into the plant. Tr. 42-43.
Two days after the lockout, Sherwin
discovered that about 18 of its 30 hydraulic presses, essential equipment used in
the clarification process, were damaged by water that had been introduced into the
hydraulic systems. Tr. 178. On questioning from the undersigned, Stephen Hoey, Sherwin’s
director of environment, safety and health, acknowledged that either the
pre-lockout miners represented by the Steelworkers or the post-lockout
replacement workers could have committed the alleged sabotage of the presses. Tr.
185.
On October 14, 2014, MSHA inspector
Francisco Velma arrived at the Sherwin Mine to continue a regular inspection. Jt.
Stip. No. 14; Tr. 36. Velma asked Guzman to accompany him, but Sherwin (English)
informed Velma that it would not permit Guzman to enter the mine and assist
Velma because of the lockout. Jt. Stip. No. 15. Sherwin provided Velma with
legal authority (presumably Cyprus Empire) supporting its position. Jt.
Stip. No. 15. Velma conducted the inspection without Guzman and chose not to
cite Sherwin at that time for preventing Guzman’s participation, but Velma did
not provide any future assurances that MSHA would not do so in the future. Jt.
Ex. 19, Stip. No. 15.
On October 20, 2014, MSHA inspector Brett
Barrick informed Sherwin that he wanted Guzman to accompany him on an MSHA
inspection. Jt. Stip. No. 16. English again refused to allow Guzman to serve as
the designated section 103(f) miners’ walkaround representative. English told
Barrick that Sherwin was tired of being asked that question and that if MSHA
persisted, Sherwin would sue MSHA. Tr. 32-33. According to Barrick, English further
told Barrick that Sherwin was excluding Guzman because he “was no longer an
employee of the mine.”[5]
Tr. 33. English did not deny that he made this statement. I credit Barrick’s
testimony regarding the exchange, given English’s rather vague and non-specific
description of this discussion with Barrick, and Sherwin’s failure to proffer
Barrick’s notes. Tr. 47, 84-85.
Barrick completed an inspection
without Guzman and did not issue any 103(f) citation to Sherwin at that time. Jt.
Ex. 19, Stip. No. 16. Barrick credibly testified that he believed that Sherwin
had violated Section 103(f) on this occasion (October 20) by refusing to permit
Guzman to accompany the inspection party, but Barrick did not express this view
to Sherwin because he thought he needed permission from a supervisor to issue such
a citation. Tr. 43-44, 47, 72. Barrick did not provide any assurances to
Sherwin that its continued refusal to permit Guzman to accompany an MSHA
inspector during the lockout would not result in a future citation. Jt. Ex. 19,
Stip. No. 16.
Michael Davis, MSHA’s South Central
District Manager for Metal/Nonmetal Administration, became aware of Sherwin’s
refusal to accord Guzman section 103(f) miner representative status shortly
after Velma’s October 14, 2014 inspection. Tr. 123. Davis opined that Sherwin’s
conduct violated section 103(f) and that a citation should be issued. Tr. 123,
155, 160-61. Davis, however, did not direct Velma or Barrick to issue citations
for the October 14 or 20 incidents because of adverse Commission precedent (Cyprus
Empire) relied on by Sherwin. Tr. 124, 154-55. Rather, Davis spoke with
superiors at MSHA headquarters to determine whether a miners’ representative
appointed by locked-out miners should be permitted to accompany an MSHA
inspector during a lockout, and whether a citation should issue. Tr. 155-56, 160-61.
The Secretary’s interpretation of
Section 103(f) in this lockout context was formalized in a letter drafted at
MSHA headquarters and provided to Davis. Tr. 132-34, 160-61; Jt. Ex. 2. Davis signed
the letter and gave the letter and consonant citation to Barrick to issue to
Sherwin should Sherwin continue to deny Guzman the right to accompany Barrick
during his next inspection during the lockout. Tr. 132-34.
On November 13, 2014, Barrick
returned to the Sherwin mine to perform another inspection. Jt. Ex. 19, Stip.
No. 17; Tr. 34. Barrick met with English and requested that Guzman accompany Barrick
as miners’ representative during the inspection. Tr. 34. Barrick provided
Sherwin with Davis’ letter, which indicated that Sherwin’s refusal to permit
Guzman to accompany the inspection team contravened section 103(f). Tr. 34-35; Jt.
Ex. 19, Stip. No. 18; Jt. Ex. 2. Barrick told English that Sherwin had 30
minutes to comply with his request or he would issue a 104(a) citation under
section 103(f). Tr. 35. English consulted with counsel and informed Barrick
that Sherwin still refused to permit Guzman to accompany the inspection team. Tr.
35.
Barrick then issued Citation No.
8778065. Tr. 35; Jt. Ex. 19, Stip. No. 19; Jt. Ex. 3. That Citation states:
On November 13, 2014 the mine
operator refused to allow the miners’ representative to accompany the Secretary
in inspection of this mine for the purpose of aiding such inspection. This
constitutes a violation of section 103(f) of the Mine Act. The condition has
not been designated as “significant and substantial” because the conduct
violated a provision of the Mine Act rather than a mandatory safety or health
standard. The Secretary respectfully disagrees with the reasoning contained in
the Federal Mine Safety and Health Review Commission decision in the Cyprus
Empire Corporation, 15 FMSHRC10 (Jan. 1993), addressing section 103(f) of the
Act. The Secretary has also determined that this case should not appropriately
apply to the present situation. The interest that underlie the concept of
miners’ representatives remain important during a lockout, as miners’ [sic] who
have been locked out have a continued interest in the health and safety at the
mine and miners’ representatives play a crucial role in safeguarding this
interest.
Jt. Ex. 3.
The violation was designated as non-S&S,
with no likelihood of injury or illness, no lost workdays, and low negligence. Jt.
Ex. 19, Stip. No. 7; Jt. Ex 3. The Secretary proposed a penalty of $112 for the
alleged section 103(f) violation. Jt. Ex. 19, Stip. No. 8.
Thereafter, Barrick notified English
that he would give Sherwin an additional 30 minutes to abate the Citation No.
8778065 by permitting Guzman to accompany Barrick on an inspection, otherwise
Barrick would issue a section 104(b)(1) Order for failure to abate. Tr. 35. Thirty
minutes later, when Sherwin continued to refuse to permit Guzman to accompany the
inspection party, Barrick issued Order No. 8778066. Tr. 35; Jt. Ex. 19, Stip.
No. 19; Jt. Ex. 3, pp. 3-4. That Order states:
The mine operator continues to refuse
the miner’s [sic] representative to accompany the Secretary in inspection of
this mine for the purpose of aiding such inspection. Mitigating circumstances
have not been provided that would justify extension.
Jt. Ex. 3.
The failure to abate order listed no
area affected, which is in accordance with an MSHA Interpretive Bulletin (IB) on
the issue. Jt. Ex. 3; MSHA Interpretive Bulletin, Section 103(f) of the Federal
Mine Safety and Health Act of 1977, 43 Fed. Reg. 17,546, (Apr. 25, 1978) (“However,
actual withdrawal of miners will not ordinarily occur in cases arising
under section 103(f), because section 104(b) also requires the inspector to
determine the extent of the area the mine affected by the violation. In most cases,
the area(s) of the mine affected by an operator’s refusal to permit
participation … under section 103(f) would be a matter of conjecture and could
not be determined [with] sufficient specificity.”).
No failure-to-abate penalties were
assessed by MSHA, although MSHA’s Section 103(f) Interpretive Bulletin states:
“…failure to abate
[section 103(f)] violations subjects an operator to additional civil penalties
for each day during which the failure to abate continues. (section 110(b).) Under
circumstances where an operator refuse[s] to allow participation by a
representative of miners, each day thereafter during which an inspector is
carrying out activities covered by section 103(f) will be considered a day
during which the failure to correct the violation continues, for purposes of
proposing additional civil penalties.”
43 Fed. Reg. 17547.
Guzman did not file a discrimination
complaint with MSHA alleging that Sherwin’s “interference” with his exercise of
section 103(f) statutory participation rights violated section 105(c). See
id. at 17,547.
On December 12, 2014, Sherwin filed a
timely notice of contest concerning the Citation and Order. Jt. Ex. 5. On
December 22, 2014, the Secretary filed a Motion for Expedited Proceedings. Jt.
Ex. 7. On December 24, 2014, the Secretary filed a Motion for Summary Decision.
Jt. Ex. 10. Sherwin filed Oppositions to both requests. Jt. Exs. 8 and 10. On
January 21, 2015, the undersigned set a hearing date for February 17, 2015, ordered
expedited discovery, and otherwise denied the Secretary’s motion to expedite
proceedings. My January 21, 2015 Order also denied the Secretary’s Motion for
Summary Decision.
On January 23, 2015, after the
undersigned inquired during a conference call about whether the temporary
replacement miners had designated a miners’ representative, some temporary
replacement miners designated Francisco S. Alvarez as their miners’ representative.
Tr. 53, 105, 130-31; Jt. Ex. 19, Stip. No. 20; Jt. Ex. 1. Alvarez is a
management official for CCC Group, a contractor that provides about 100
temporary replacement workers for Sherwin. Tr. 107-109, 113.
Alvarez reports to CCC lead manager,
Steve Whitehouse, who reports to English. Tr. 106-107. English then provides third-hand
feedback about MSHA inspections to the replacement and other non-locked-out
miners. Tr. 99, 108, 111-12. At the time of the hearing, although Alvarez had
accompanied inspection teams, he was “on a learning curve” and generally did
not convey information about MSHA inspections directly to the miners as Guzman
had done. Alvarez did not distribute or post MSHA citations and/or orders at
control stations in the Mine, and did not point out hazards to MSHA inspectors.
Tr. 98-99, 106-08, and 110. Barrick credibly testified and the Act provides
that the representative of miners is supposed to assist MSHA in its inspection
of the Mine to ensure that the miners have a voice in the health and safety of
the Mine. Tr. 29-30.
Neither the locked out miners nor the
temporary replacement miners had the benefit of any representative of miners
from the time of the lockout on October 11, 2014 until Alvarez’s designation on
January 23, 2015. Jt. Ex. 19, Stip. 20; Jt. Ex 1; Tr. 75-76, 105-06. MSHA
records still identify Guzman as a designated miners’ representative. There has
been no termination of his designation as representative of miners pursuant to
30 C.F.R. § 40.5(a) or (b). Tr. 56, 62, 144. Those regulations provide:
§ 40.5 Termination of designation as
representative of miners.
(a) A representative of miners who
becomes unable to comply with the requirements of this part shall file a
statement with the appropriate District Manager terminating his or her
designation.
(b) Mine Safety and Health
Administration shall terminate and remove from its files all designations of
representatives of miners which have been terminated pursuant to paragraph (A)
of this section or which are not in compliance with requirements of this part.
The Mine Safety and Health Administration shall notify the operator of such
termination.
III.
The
Applicable Statutory and Regulatory Framework
As noted, MSHA issued Citation No.
8778065 for an alleged violation of section 103(f) of the Mine Act and issued Order
No. 8778066 for failure to abate that alleged violation. Jt. Ex. 3.
Section
103(f) provides:
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 coal or other mine made pursuant to subsection (a), for the purposes of
aiding such inspection and to participate in pre- or post-inspection conferences
held at the mine. Where there is no authorized miner representative, the
Secretary or his authorized representative shall consult with a reasonable
number of miners concerning matters of health and safety in such 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 that Secretary or authorized
representative of the Secretary determines that more than one representative
from each party would further aid 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. Compliance with this subsection shall not be a
jurisdictional prerequisite to the enforcement of any provision of this Act.
30
U.S.C. § 813(f) (emphasis added).
Section
103(f) grants miners and their representatives the opportunity to participate
in physical inspections and conferences conducted by MSHA inspectors pursuant
to section 103(a) for the purpose of observing or monitoring safety and health
conditions as part of direct safety and health enforcement activity. In
enacting section 103(f), Congress made clear that effective implementation of
the Act depends upon active and orderly participation by miners and
representatives of miners in the physical inspection process, including both
pre and post-inspection conferences. Section 103(f)’s “walk-around provision” promotes
this goal by ensuring that an MSHA inspector will benefit from the assistance
and participation of a representative authorized by an operator’s miners when
conducting inspections and post-inspection conferences. See 29 U.S.C.
113(f); Kerr-McGee Coal Corp. v. FMSHRC, 40 F.3d 1257, 1260 & n.4
(D.C. Cir. 1994); Utah Power & Light Co. v. Sec’y of Labor, 897 F.2d
447, 451-52, 455 (10th Cir. 1990); see also Tr. 29-30, 104-05
(describing how miners’ representative Guzman assisted in inspections and
post-inspection conferences, thus fulfilling this role).
The Senate Reports concerning the 1977
Act indicate that the Act’s walk-around provisions are intended to enhance
miner safety and awareness by assuring that miners are apprised of relevant
inspection results by their representative. S. Rep. No. 95-181, at 26 (1977), as
reprinted in 1977 U.S.C.C.A.N. 3401, 3428, reprinted in Subcommittee
on Labor of the Committee on Human Resources, 95th Cong., 2d Sess. Legislative
History of the Federal Mine Safety and Health Act of 1977 at 616 (Comm. Print
1978) (“Presence of a representative of miners at opening conference
helps miners to know what the concerns and focus of the inspector will be, and
attendance at closing conference will enable miners to be fully apprised of the
results of the inspection. It is the Committee's view that such participation
will enable miners to understand the safety and health requirements of the Act
and will enhance miner safety and health awareness.”).
The
status of walk-around rights provided by section 103(f) is discussed at length
in MSHA’s Interpretive Bulletin (IB) published on April 25, 1978, which notes:
Section 103(f)
provides an opportunity for the miners, through their representatives, to
accompany inspectors during the physical inspection of the mine, for the
purpose of aiding such inspection and to participate in pre-or post-inspection
conferences held at the mine. As the Senate Committee on Human Resources
stated, “If our national mine safety and health program is to be truly
effective, miners will have to play an active part in the enforcement of the
Act.” S. Rep. No. 95-181, 95th Cong., 1st Sess., at 35
(1977).” Several important purposes are served by affording representatives of
miners the opportunity to accompany Mine Safety and Health Administration
(MSHA) inspectors. Participation by miners’ representatives will enhance miner
safety and health awareness and contribute to greater understanding by miners
of the safety and health requirements of the Act. In addition, participation in
the inspection process by representatives of miners will directly aid
inspection itself by providing information through individuals familiar with
day-to-day conditions at the mine site.
43
Fed. Reg. 17546.
The Mine Act, MSHA regulations, and
MSHA’s Interpretive Bulletin are all silent about whether a representative of
striking or locked-out miners may serve as a representative of miners during an
inspection that occurs amid a strike or lockout. Through regulation, the
Secretary of Labor has defined a “representative of miners” as “(1) Any person
or organization which represents two or more miners at a coal or other mine for
purposes of the Act, and (2) Representatives authorized by the miners, miners
or their representative, authorized miner representative, and other similar
terms as they appear in the Act.” 30 C.F.R. § 40.1(b)(1) and (2). Part 40 of
the Code of Federal Regulations contains regulations governing the
Representative of Miners. The regulations contain requirements for the filing
of specified identification data to be posted at each mine, the designation of
persons to exercise the functions of a representative under provisions of the
Mine Act, and the termination of such representatives. 30 C.F.R. §§ 40.2-5;
see also Utah Power, 897 F.2d at 453.
The Preamble to the Part 40 regulations expressly
rejected narrow interpretations of the terms “representative of miners” and broadly
interpreted “representative of miners” to encourage miner participation in the
health and safety of the mine because Congress deemed it vital to have miners
freely participate in health and safety matters at the mines. 43 Fed. Reg. 29,508
(July 7, 1978). The Preamble expressly states:
First, there is no clear statement in
the legislative history of the Mine Act defining who is to be a representative
of miners for a specific purpose, nevertheless, Congress believed it was vital
to have miners freely participate in health and safety matters at the mines. Second,
the frequent use of the term “representative” throughout the Mine Act in
different contexts suggests that a broad definition would be preferable to a
narrow one. Additionally, any attempt to limit the manner in which
representatives are selected would be intrusive into labor/management relations
at the mine and not in keeping with the spirit of miner participation. Finally,
it would be very difficult to put forth a more detailed or restrictive rule
which would be applied to all the varied situations at all mines--large and
small, union, multi-union and nonunion, coal and metal/nonmetal, which would
still be equitable in all situations.
43
Fed. Reg. 29508.
In rejecting the more narrow NLRB
definition of “Representative” based on the “majority rule” concept inherent in
the context of collective bargaining, “which contemplates only one union miner
representative at each mine,” MSHA emphasized the following:
…The purposes of
the Mine Act are better served by allowing multiple representatives to be
designated. This ensures that all miners have the opportunity to exercise their
right to select the representative of their choice for the purpose of
performing the various functions of a representative of miners under the Act
and within the framework of each provision.
Finally, based
on experience under the Federal Coal Mine Health and Safety Act of 1969 and
Part 81, it is reasonable to expect that miners will choose representatives
with a substantial amount of experience, and problems are not anticipated with
this broad interpretation of the term representative of miners. If problems do
arise MSHA will propose appropriate revisions.
43
Fed. Reg. 29508.
I conclude that section 103(f) of the
Mine Act, as reinforced by the Preamble to the Part 40 regulations, authorizes
a broad interpretation of the statutory phrase “representative authorized by
his miners” as set forth in section 103(f) to achieve the statutory purpose
of facilitating the miners’ voice in health and safety matters at a mine.
To properly and broadly interpret the
phrase “representative authorized by his miners” in section 103(f), it is
necessary to examine the statutory definition of the term “miner” under section
3(g) the Act in the context of section 103(f) of the Act. Section 3(g) of the
Act defines “miner” as “any individual working in a coal or other mine.”
30 U.S.C. § 802(g) (emphasis added). Thus, a “representative authorized by his miners”
under section 103(f) is any individual who is properly designated by two or
more individuals “working” in a mine of an operator.
It is undisputed that Guzman was
properly designated by two or more Sherwin miners who were working in the
Sherwin mine at the time of the designation. Jt. Ex. 4. That designation was
never terminated pursuant to MSHA regulation. 30 C.F.R. § 40.5. As further
explained herein, it would be inconsistent with the fundamental purpose of the
Mine Act in protecting miner safety and health to terminate that designation by
operation of law because a mine operator invoked an offensive lockout, thereby
preventing his unionized miners from returning to work, unless their
collective-bargaining representative, who continues to represent locked out miners
with respect to mandatory terms and conditions of employment, including safety
and health issues, capitulated to the operator’s demands in a labor dispute.
The Secretary of Labor has determined
that the Act’s definition of “miner” under section 3(g) in the section 103(f)
context is ambiguous, and should be interpreted broadly to include workers who
are on strike or have been locked out, but who reasonably expect to return to
the mine at the end of the labor dispute. Jt. Exs. 2 and 16; Sec’y Br. 9-10. Intervenor
Steelworkers agrees with the Secretary’s “context-specific” interpretation. Intervenor
Br. 2, 8. Respondent Sherwin disagrees with this interpretation, and posits
that miners entitled to a walkaround representative during an inspection are
only those “actively working in a mine at the present time.” Sherwin Br. 8.
In resolving this dispute, I find that,
for better or for worse, the Commission’s decision in Cyprus Empire
controls in the context of a strike, particularly an economic strike, until
overruled. It does not, however, bind the undersigned in the context of the
instant lockout. Rather, I give Chevron step 2 deference to the
Secretary’s reasonable interpretation that the statutory phrase “representative
authorized by his miners” in the context of the walk-around provision of section
103(f) includes a representative authorized by miners who are locked out by the
operator.[6]
Accordingly, I find that Joe Guzman is a “representative authorized by
[Sherwin] miners,” who continues to represent “two or more miners at a coal or
other mine” pursuant to 30 C.F.R. § 40.1(b)(1) during the lockout for purposes
of section 103(f) walk-around rights. Thus, on November 13, 2014, Respondent
Sherwin violated section 103(f) of the Act by denying Guzman an opportunity to
accompany inspector Barrick, and violated section 104(b) by failing to abate
that violation during a subsequent inspection effort 30 minutes later.
IV.
Legal
Analysis
A. The Statutory Phrase
“Representative Authorized by His Miners” in Section 103(f) Is Ambiguous
When analyzing the Secretary’s
interpretation of the phrase “representative authorized by his miners” in
section 103(f) of the Mine Act, the Commission applies the two-step approach
set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-44 (1984); Performance Coal Co. v. Fed. Mine Safety &
Health Review Comm’n, 642 F. 3d 234, 238 (D.C. Cir. 2011); Simola, emp.
by United Taconite, LLC, 34 FMSHRC 539, 543-5 (Mar. 2012).
Under
that approach, if the statutory language is plain, the Commission must enforce such
language according to its terms. King v. Burwell, 135 S. Ct. 2480, 2489
(2015); Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251
(2010); Dynamic Energy, Inc., 32 FMSHRC 1168, 1171 (Sept. 2010). On the
other hand, if the statute is silent or ambiguous, the Commission asks whether
MSHA’s interpretation is reasonable and permissible. Chevron, 467 U.S.
at 843-44; Thunder Basin Coal Co., 18 FMSHRC 582, 584 n.2 (Apr. 1996); Joy
Technologies, Inc. v. Sec’y of Labor, 99 F.3d 991, 995 (10th Cir. 1996), cert.
denied, 520 U.S. 1209 (1997). If the Secretary and the Commission have
conflicting, reasonable interpretations of the Mine Act, the Secretary's
interpretations rather than the Commission’s interpretations are entitled to
deference under Chevron. See, e.g., Joy Technologies, supra, 99 F.3d at
995; see also Sec'y of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C.
Cir. 2003); Sec'y of Labor v. Mutual Mining, Inc., 80 F.3d 110, 113-15
(4th Cir. 1996).
Thus, if a statute is ambiguous, and if
the implementing agency's construction is reasonable, Chevron requires a
federal court to accept the agency's construction of the statute, even if the
agency's reading differs from what the court believes is the best statutory
interpretation. National Cable & Telecomm. Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 980 (2005)(Brand X), citing Chevron,
467 U.S. at 843-44, and n. 11. Put differently, a reviewing court or tribunal,
like the Commission, must “accept [the Secretary’ s reasonable] construction of
the [Mine Act], even if the [the Secretary’s] reading differs from what the
[Commission] believes is the best statutory interpretation.” Id. at 980
(2005)(federal agencies can reverse judicial statutory interpretations of
ambiguous statutory interpretations under certain circumstances); cf., Martin
v. OSHRC, 499 U.S. 144, 152-53 (1991)(reviewing court should defer to
Secretary’s interpretation when the Secretary and the Commission furnish
reasonable but conflicting interpretations of ambiguous regulation
promulgated by the Secretary under the Occupational Safety and Health Act).
Similarly, a reviewing court’s or
tribunal’s prior construction of a statute does not trump a new and permissible
agency construction entitled to Chevron deference, absent clear and
unequivocal terms of the statute leaving no room for ambiguity and agency
discretion. See Brand X, 545 U.S. at 982; see also NLRB
v. Iron Workers Local 103 (Higdon Construction Co.), 434 U.S. 335,
351 (1978)(agency’s pre-Chevron resolution of conflicting claims
represented a defensible construction of the statute entitled to considerable
deference even though courts may prefer a different application; moreover, “[a]n
administrative agency is not disqualified from changing its mind, and when it
does, the courts still sit in review of the administrative decision and should
not approach the statutory construction issue de novo, and without
regard to the administrative understanding of the statutes.”).
In short, deference is given to the
Secretary’s interpretation of the Mine Act when that interpretation is reasonable.
Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994)
(citing Chevron, 467 U.S. at 844); Twentymile Coal Co., 36 FMSHRC
2009, 2012 (Aug. 2014). Chevron deference is usually granted to
reasonable statutory interpretations that the Secretary advances on behalf of
MSHA during litigation before the Commission, even though such interpretations
are not promulgated in formal rulemaking. Martin v. OSHRC, 499 U.S. 144,
156-7 (1991); Pattison Sand Co. v. FMSHRC, 688 F.3d 507, 512 (8th Cir.
2012); Olson v. FMSHRC, 381 F.3d 1007, 1011 (10th Cir.
2004; Wamsley v. Mutual Mining, Inc., 80 F.3d 110, 115 (4th Cir. 1996); Sec’y
of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003); but see
North Fork Coal Corp. v. FMSHRC, 691 F.3d 735, 742 (6th Cir. 2012) (only Skidmore
deference is owed positions taken by the Secretary during enforcement actions).
The fact that the Secretary has waited since 1993 to exercise his interpretive
authority and considered judgment on the issues presented in anticipation of
the instant litigation, does not lessen the deference owed. See Mayo Found.
for Med. Educ. & Research v. United States, 562 U.S. 44, 55 (2011).
Finally, even where the Commission has
previously interpreted an ambiguous statutory term or ambiguous statutory terms,
the Secretary of Labor, on behalf of MSHA, “may, consistent with the [Commission’s]
holding, choose a different construction, since the agency remains the
authoritative interpreter (within the limits of reason) . . . .” Brand X,
545 U.S. at 983; see, e.g., Sec’y of Labor v. Nat’l Cement Co. of
Cal., Inc., 573 F.3d 788 (D.C. Cir. 2009). When the Secretary does so, he does
not say that the Commission’s prior interpretation was necessarily wrong, he simply
chooses a different permissible interpretation that is reasonable and
consistent with the purposes of the Act. See Brand X, 545 U.S. at 983. As
further explained below, I find that statutory language “representative
authorized by his miners” in section 103(f) is ambiguous in the context of a
lockout and I give deference to the Secretary’s interpretation under Chevron.
In Cyprus Empire, the United Mine
Workers of America (UMWA) argued that the erstwhile Commission must defer to
the Secretary’s interpretation of the statutory term “miner” in section 3(g) of
the Act as applied to walk-around rights in section 103(f). Cyprus Empire, 15
FMSHRC at 15. In rejecting this argument, the 1993 Commissioners noted that
the Secretary’s analogous construction of the term “miner” was rejected as
unreasonable by the D.C. Circuit in Brock v. Peabody Coal Co., 822 F.2d
1134, 1151 (D.C. Cir. 1987)(Peabody).[7]
Moreover, those Commissioners emphasized that the Secretary did not appeal the
judge’s adverse decision or otherwise participate in the appeal; that “the
wording of the statute sets forth Congress’ intent as to the definition of
miner; and that “[e]ven if there were remaining ambiguity, the Secretary has
presented no position to which the Commission could accord weight.” Cyprus
Empire, 15 FMSHRC at 15. In this case, by contrast, the Secretary has clearly
exercised his informed judgment, after consultation with his client MSHA, to
argue before the Commission that the definition of “miner” under section 3(g)
of the Act is ambiguous in the context of section 103(f), and the terms
“representative authorized by his miners” in section 103(f) should include miners
who have been locked out and reasonably expect to return to work at the end of
the labor dispute.
When deciding whether the statutory
language “representative authorized by his miners” in section 103(f) is plain
or ambiguous, the Commission must examine the text of the language itself, the
specific context in which the words or phrases are used in section 103(f), and
the broader structure of the statute as a whole. Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997); King. v. Burwell, 135 S. Ct. 2480, 2484 (2015).
As Chief Justice Roberts recently noted in upholding the Affordable Care Act tax
credits on federal exchanges:
But often times
the “meaning -- or ambiguity-- of certain words or phrases may only become
evident when placed in context.” Brown & Williamson, 529 U.S. at
- So when deciding whether the language is plain, we must read the words “in
their context and with a view to their place in the overall statutory scheme.” Id.,
at 133 (internal quotation marks omitted). Our duty, after all, is “to construe
statutes, not isolated provisions.” Graham County Soil and Water
Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 290
(2010) (internal quotation marks omitted).
135
S. Ct. at 2489.
The Supreme Court has also recognized
that “… the same words, placed in different contexts, sometimes mean different
things,” and that identical language may convey varying content even when used in
different provisions of the same statute. Yates v. United States, 135
S.Ct. 1074, 1082 (2015) (Ginsburg, J., plurality opinion). Furthermore, the
Court has stated that once a statutory term has an established meaning in some
sections of a statute but not in other sections, the term is ambiguous and each
section must be examined to determine whether context provides further meaning
that would resolve the dispute. Robinson, 519 U.S. at 343-44; see
also Brody Mining LLC, 36 FMSHRC 2027, 2036 (Aug. 2014) appeal
docketed, No. 14-1171 (D.C. Cir. Sept. 2014) (deference accorded
Secretary’s interpretation of ambiguous term “violation” where various statutory
provisions could only refer to conditions alleged to be violations).
I agree with the Secretary that the
present participle “working” as used in section 3(g)’s statutory definition of
“miner” is ambiguous in the section 103(f) context because it connotes both
ongoing activity in which the miner is actively engaged in the present, and
interrupted activity from which the miner may temporarily be absent, but to
which he has a reasonable expectation of returning. See Sec’y Br. 10-11,
citing for comparison, United States v. Hersom, 657 F.3d 77, 79, n.2
(1st Cir. 2011) (adopting analogous reasoning with respect to the present
participle “receiving”). For example, the undersigned might accurately say that
I am working on Monday even though it is the Friday before, as I draft this example.
Certainly, a miner who takes temporary leave is still working at the mine,
although on leave status, and not engaged in work at the present moment. Similarly,
the Fourth Circuit has recognized that miners who designated a union official as
their representative while the mine was closed during investigation of an accident
were “miners [who] currently work at the . . . [m]ine” for purposes of ruling
on a preliminary injunction. Dep’t of Labor v. Wolf Run Mining Co., 452
F.3d 275, 287 (4th Cir. 2006).
In fact, as the Secretary enumerates,
the Mine Act frequently uses the word “miner” to cover individuals who were
working in the mine, but may not be actively working at the time that their
statutory rights or obligations are triggered. Sec’y Br. 12-13, citing, inter
alia, Sections 105(c)(2), 104(g)(1), 111, 115, 201, 203(c) and (d) of the
Mine Act. The Commission in Cyprus Empire recognized that the
statutorily-defined term “miner” must be interpreted in the context of the
particular section in which it arises to effectuate the safety purposes of each
section, but as noted, that Commission interpretation did not have the benefit
of the Secretary’s new and informed judgment in the context of a lockout. 15
FMSHRC at 15; see also KenAmerican Resources, Inc., 35 FMSHRC 1969,
1973 (July 2013) (laid-off worker was “miner” for purposes of section 105(c)(2)’s
anti-discrimination provision distinguishing cases like Peabody where laid-off
workers were not “miners” under other statutory provisions); 35 FMSHRC at 1975 (definition
of “miner” “cannot be applied literally” throughout the Act)(Chairman Jordan,
concurring).
Thus, contrary to Sherwin’s argument,
several provisions of the Mine Act would make little sense if the term
“working,” as used to define “miner,” was confined to times when actual mining
work was presently being performed. Rather, I find that the term “miner” as
used in section 3(g) of the Act is ambiguous, and encompasses times when
workers are temporarily disengaged from the actual act of mining. Accordingly,
I reject Sherwin argument that the plain meaning of the term “miner” in section
103(f) must mean an individual actually working in the mine at the time of the
inspection, i.e., “[t]he term ‘working’ . . . refer[s] ‘to action that is
happening at the time of speaking or a time spoken of.’” Sherwin Br. 10. While
such a strict construction, as adopted by the Commission in Cyprus Empire, may
seem plain when viewed in isolation, the Secretary has determined that such a
reading is untenable in light of the primary purpose of the Mine Act to most
effectively promote miner safety and health. Cf. Department of Revenue of
Oregon v. ACF Industries, Inc., 510 U.S. 332, 343 (1994); see also New
York State Dept of Social Servs. v. Dublino, 413 U.S. 405, 419-420 (1973)
(federal statutes cannot be interpreted to negate their stated purposes). Rather,
as noted, “the fundamental canon of statutory construction [requires] that the
words of a statute must be read in their context and with a view toward their
place in the overall statutory scheme.” Utility Air Regulation Group v. EPA,
134 S.Ct. 2427, 2441 (2014), citing FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000).
Given that the text of the statutory
phrase “representative authorized by his miners” in section 103(f) is ambiguous
as discussed above, the Commission must look to the broader structure of the
Act to determine whether the Secretary’s current interpretation of the statutory
walk-around provision produces a substantive effect that is consistent with the
overall purpose of the Mine Act. Cf., United Sav. Assn. of Tex. v. Timbers
of Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988). Ambiguity
should be resolved by looking to the context and purpose of the walk-around
provision and eschewing a construction that would undermine the purpose of the
provision or lead to absurd results. See, e.g., Sec’y of Labor v. Twentymile
Coal Co., 411 F.3d 256, 261 (D.C. Cir. 2005); Emery Mining Corp v. Sec’y
of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984); Consolidation Coal,
15 FMSHRC 1555, 1557 (Aug. 1993). I conclude that the context and structure of
the statutory walk-around provision within the Mine Act fully supports the
Secretary’s interpretation that the designated representative of locked out
miners shall be given an opportunity to participate in inspections during the
lockout because this interpretation is reasonable, permissible, and advances
the primary purpose of the Act to protect miner safety and health.
B. The Secretary’s
Interpretation is Consistent with the Overall Purpose of the Mine Act to
Protect Miner Safety and Health and the Specific Purposes of Section 103(f) by Ensuring
the Rights of Locked-Out Miners to Aid MSHA’s Inspection and Participate in
Pre-and Post-Inspection Conferences
The Mine Act’s overall purpose is to
protect the health and safety of the mining industry’s most precious resource,
the miner. Peabody, 822 F.2d at 1146, citing section 2(a) of the Act, 30
U.S.C. § 801(a). Thus, the Mine Act must be interpreted to achieve the
overarching goal of protecting the safety and health of miners. See United
Mine Workers of Am. v. Dep’t of Interior, 562 F.2d 1260, 1265 (D.C. Cir.
1977) (“Should a conflict develop between a statutory interpretation that would
promote safety and an interpretation that would serve another purpose at a
possible compromise to safety, the first should be preferred.”)
Section 103(f) plays a critical role in
the overall enforcement scheme of the Act and the Commission will not restrict
103(f) rights, absent a clear indication in the statutory language or
legislative history, or appropriate limitation imposed by regulation. SCP Investments,
LLC, 31 FMSHRC 821, 827 (Aug. 2009) (opinion of Commissioners Young and
Cohen); Consolidation Coal Co., 3 FMSHRC 617, 618 (Mar. 1981). As
explained above, the definition of “miner,” as set forth in the statutory
phrase “representative authorized by his miners” in section 103(f), is
ambiguous as applied to locked-out miners. The Secretary’s interpretation that
the phrase “representative authorized by his miners” should include a
representative authorized by locked out miners is favored and entitled to
deference. This is because that interpretation is fully protective of mine
safety and health and best advances the overall purpose of the Act to protect
miners, and the specific purposes of section 103(f) in furtherance of that overall
statutory goal.
A fundamental purpose of the walk-around
rights set forth in section 103(f) is to encourage miner awareness of health
and safety concerns. Kerr-McGee, 40 F.3d at 1260, 1264 & n.13; Consolidation
Coal, 3 FMSHRC 617, 618 (Mar. 1981); S. Rep. No. 95-181, at 28; MSHA
Interpretive Bulletin, 43 Fed. Reg. 17,546, (Apr. 25, 1978). As inspector
Barrick testified, this is the most important aspect of the miners’ representative
function. Tr. 29. This fundamental purpose of section 103(f) is advanced by
permitting the authorized representative of locked-out miners to participate in
physical inspections and pre- and post-inspection conferences under section
103(f). The reason is manifest. Participation by a miners’ representative in
physical inspections and pre and post-inspection conferences permits
dissemination of knowledge concerning safety and health hazards or conditions
to other miners throughout the mine, particularly the locked-out miners, who
have a reasonable expectation of returning. Locked-out miners have an actual
and continuing interest in staying abreast of existing, continuing, developing,
or abating safety and health issues at the mine where they reasonably expect to
return and resume the inherently dangerous work of mining. See Performance
Coal Co., WEVA 2010-1909, Unpublished Order at 11, (Dec. 17, 2010) (ALJ) (miners
who were employed at time of Upper Big Branch explosion and thereafter were
involuntarily relocated to a sister mine have an ongoing interest in the safety
of the mine where they were working and will return to work).[8]
Although lockouts may last for an
extended period of time,[9]
locked-out miners cannot be permanently replaced and have a reasonable
expectation or returning to work after the conclusion of the lockout because
the operator may only hire temporary replacement miners during a lockout, not permanent
replacement workers that are permissible in the economic-strike context, such
as Cyprus Empire. See e.g., Ancor Concepts, 323 NLRB 742, 744 (1997)
(use of permanent replacements is inconsistent with a declared lawful lockout
in support of bargaining position) enforcement denied on other grounds,
166 F.3d. 55 (2d Cir. 1999); Harter Equipment, Inc., 280 NLRB 597
(1986)(absent specific proof of antiunion motivation, employer did not violate
Section 8(a)(3) and (1) by hiring temporary replacements during offensive
lockout), aff’d sub nom. Operating Engineers Local 825 v. NLRB, 829 F.2d
458 (3d Cir. 1987)(employer's hiring of temporary
employees was not unfair labor practice, where employer intended to return
regular employees to work at conclusion of dispute, employer was in financial
straits, and employer did not have hostile motive); cf., Harter
Equipment, Inc., 293 NLRB 647 (1989) (only locked out "employees"
in bargaining unit at time of lockout, and not temporary replacements, are
eligible to vote in subsequent decertification election). Accordingly,
the locked-out miners legally are still “working” at the Sherwin Mine, much
like a miner on vacation or sick leave, albeit they will not return to work until
the end of the lockout. Given the locked-out miners’ reasonable expectation of
returning to the Mine at the conclusion of the lockout, they retain an interest
in the health and safety of the Mine and should be allowed to have a
representative of miners participate in section 103(f) walk-around activities
because such participation serves the statutory purposes set forth in section
103(f) of ensuring the rights of miners to assist MSHA in inspections and pre-
and post-inspection conferences to maintain the health and safety of all miners
working in the mine.
As noted, the Preamble to the Part 40
regulations authorizes a broad interpretation of the phrase “representative authorized
by his miners” in section 103(f) to achieve the statutory purpose of
facilitating the miners’ voice in health and safety matters at a mine. 43 Fed.
Reg. 29,508 (July 7, 1978). The Secretary’s interpretation that section 103(f)
covers a miners’ representative designated by locked-out miners, who cannot be permanently
replaced and reasonably expect to return to work, is reasonable because it
furthers the specific and primary “purposes of aiding [MSHA’s] inspection and
to participate in pre- or post-inspection conferences held at the mine.” See
30 U.S.C. § 813(f); Thunder Basin Coal Co. v. FMSHRC, 56 F.3d 1275, 1278
(10th Cir. 1995); Kerr-McGee, 40 F.3d at 1263; 43 Fed. Reg. 17,546 (Apr.
25, 1978); cf., KenAmerican Resources, 35 FMSHRC at 1973 (July
2013) (majority panel held that laid-off worker was “miner” for purposes of
section 105(c)(2)’s anti-discrimination provision, distinguishing cases like Peabody
where laid-off workers were not “miners” under other statutory provisions)
(Chairman Jordan, concurring).
Another purpose of the walk-around
provision is to assure miners that inspectors will uncover violations and
hazards. 115 Cong. Rec. S27,287-88 (Sept. 26, 1969), reprinted in Subcommittee
on Labor of the Committee on Labor and Public Welfare, 94th Cong., 1st Sess..
Legislative History of the Federal Coal Mine Health and Safety Act of 1969, at
393 (Comm. Print 1975) (statement
of Sen. Metcalf introducing walk-around provision amendment in Coal Mine Health
and Safety Act of 1969) (“[I]t might well happen that that miner working in
that mine would help the inspector by calling attention to certain safety
violations. He is familiar with the operation of the mine, and he would be able
to represent his fellow union members or his fellow mine workers to reveal
safety violations.”). Participation in inspections and conferences by locked-out
miners’ representatives, who reasonably expect to return to work at the
conclusion of the lockout, helps promote this purpose because such
representatives, as demonstrated in this case, have site-specific knowledge and
expertise to aid the Secretary in ensuring mine safety and health during a
physical inspection. After all, “… it is reasonable to expect that miners will
choose representatives with a substantial amount of experience ….” 43 Fed. Reg.
29,508. Such a representative will aid MSHA inspectors in their efforts to
protect both the current safety of temporary replacement miners and the future
safety of the locked-out miners when they return to work.
Based on the record evidence presented in
this case, it is likely that inspection participation by the representative of
the locked-out miners will enhance mine safety and health more effectively than
participation by a representative designated by temporary replacement miners,
who will typically lack equivalent site-specific experience and technical
knowledge, at least at the outset of the labor dispute. As explained below, the
record in this case suggests that the representative designated by the
temporary replacement workers at the outset of the lockout typically will be on
a significant “learning curve,” and therefore will be less qualified to
identify hazards and assist the inspector by providing site-specific technical
knowledge about the mine’s production processes. It is significant that the
temporary workers did not participate in mining or actively engage with the
mine environment before the lockout began, and instead only observed the locked-out
workers. Tr. 184.
On the other hand, the record
establishes that since his designation, Guzman had significant mine-specific
experience and familiarity with the hazardous processes of refining alumina under
pressure using corrosive chemicals and caustic liquids. Tr. 28-29, 40, 104-05,
- Specifically, inspector Barrick testified that the miners’ representative,
usually Guzman unless another representative was substituting, would travel
with an inspector “to help us by providing information, typically on technical
or process-type questions that we might have. Also, he could identify other
miners in the area for us. And, of course, his most important job … is to take
that … information back to his … miners and let them know what … he observed
during an inspection.” Tr. 29. In fact, Paul English, Respondent’s safety,
health and industrial hygiene manager, testified that Guzman would answer an
inspector’s questions about mine processes or how equipment worked, provide an
opinion about possible allegations, and point out dangers or hazards to an
inspector. Tr. 104-105. English confirmed that Guzman actively participated in
post-inspection conferences by expressing agreement or disagreement with
citations. Tr. 105. English also testified that Guzman would report inspection
results back to the miners and that Guzman was a full-time miners’
representative pursuant to the corrective action plan (CAP). Tr. 108.
When asked why he would consult a
miners’ representative like Guzman about processes or technical issues, inspector
Barrick testified that “[a] lot of times that miner may have performed that
work. He has …, at times, a better understanding of the processes than
sometimes operational folks will” because he has “a working knowledge of … some
of the processes. And if he doesn’t, he knows those that do, and we can get
those people. ” Tr. 29. Inspector Barrick further testified, “[w]hen we’re
evaluating conditions, we want all the facts; we want as much information as we
can possibly get about what we’re dealing with at that time.” Tr. 29-30. Barrick
further explained, “… Sherwin is a very complex process; there’s a lot there to
learn; there’s a lot there to understand. So again, the more people we could
involve, you know, in that process of trying to garner the right information
and make evaluations, and if, indeed we needed to, you know, issue citations,
that we … try to do that in a fair manner.” Tr. 30. Barrick also credibly
testified that the miners’ representative plays a very useful role at closeout
conferences, particularly through input regarding the appropriate level of
abatement to get at the root cause[s] for cited conditions. Tr. 30-31.
Although
English attempted to paint a picture that temporary replacement miners’ representative,
Francisco Alvarez, a management official with replacement contractor CCC Group,
performed the same or comparable miners’ representative role as Guzman at the
time of the hearing, I discredit this effort. Tr. 106. Alvarez, the new,
post-lockout miners’ representative for replacement miners, lacked the same or
comparable site-specific technical and process knowledge as Guzman since
English conceded that Alvarez was “on a learning curve.” Tr. 106. In fact, for
105 days during numerous inspections after the commencement of the lockout, no
miners’ representative was given the opportunity to accompany MSHA inspectors
until Alvarez was eventually designated on January 23, 2015, after inquiry from
the undersigned. This factual scenario is antithetical to the encouragement of
miner participation in the health and safety of the mine, which Congress deemed
so vital to effective safety and health enforcement. See 43 Fed. Reg. 29508.
When CCC Group manager Alvarez was
eventually designated as the replacement miners’ representative, he did not
report inspection results back directly to miners as Guzman had done. Tr. 29,
- Rather, such information was filtered through English and other Sherwin
and CCC management before reaching miners. Tr. 108. Nor did Alvarez point out
hazards to an MSHA inspector, as Guzman had done. Tr. 105, 109-10. Further, when
English was asked whether English had ever pointed out a hazard to an
inspector, English evaded the question. Tr. 105. I find on this record that
Alvarez’s representative role was not comparable to Guzman’s representative
role, and because Sherwin excluded Guzman from participating in physical
inspections and conferences during the lockout, the purposes of section 103(f)
were flouted for more than 3 months.
I
further find, consistent with the appropriate broad interpretation of the
statutory phrase “representative authorized by his miners” in section 103(f),
that “[t]he purposes of the Mine Act are better served by allowing multiple
representatives to be designated” in the context of a lockout because “[t]his
ensures that all miners have the opportunity to exercise their right to select
the representative of their choice for the purpose of performing” section
103(f) representative-of-miner functions. See 43 Fed. Reg. 29508. Thus, Guzman
must or “shall be given an opportunity
to
accompany the Secretary or his authorized representative during the physical
inspection” of the Sherwin mine during the lockout, and Alvarez must or shall
be given the same opportunity. In the words of section 103(f), “[t]o the extent
that the Secretary or authorized representative of the Secretary determines
that more than one representative from each party would further aid 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….” 30
U.S.C. § 813(f). Sherwin’s attempt to cabin MSHA’s section 103(f) discretion and
“to limit the manner in which representatives are selected would be intrusive
into labor/management relations at the mine, and not in keeping with the spirit
of miner participation.” 43 Fed. Reg. 29508.
During a lockout, the designated miners’
representative cannot effectively keep involuntarily locked-out miners apprised
of the dynamic, ongoing, and constantly evolving safety and health conditions
prevalent at the mine, absent participation in physical inspections and
conferences. It may be too late to wait until the lockout concludes to bring
the specialized knowledge or concerns of the locked-out miners’ representative
to bear on the physical conditions, hazards, or dangers prevailing at the mine
during the lockout because decisions regarding such mine safety issues may be
finalized by the time locked-out miners resume active work. For example, citations
were written during post-lockout inspections from which Guzman was excluded. Tr.
- Therefore, Guzman could neither assist MSHA to understand the alleged
violations and uncover additional hazards, nor keep the locked-out miners
informed about such conditions to which they may be exposed when they return to
work. Furthermore, Sherwin faced the prospect of being placed in POV status and
challenging such notice and any subsequent section 104(e) withdrawal order
during the lockout. Tr. 61, 141. The locked-out miners’ representative should
be allowed to participate in inspections and conferences related to such POV
proceedings, if any, since the locked-out miners reasonably expect to resume
work at the Mine.
Sherwin argues that inspectors can speak
to other miners during the lockout. Sherwin Br. 4. Sherwin also argues that the
locked out miners have not been precluded from staying abreast of safety issues
and citations during the lockout because they can access MSHA’s website and
submit Freedom of Information Act (FOIA) requests. Further, Sherwin asserts that
the locked-out miners are required to receive part 48 training prior to their
return, including training on any new safety procedures and concerns that have
arisen during the lockout. Sherwin Br. 4-5; Tr. 140; 30 C.F.R. part 48. All
that may be true, but Sherwin is essentially substituting its own view of
safety and health policy for the expert view of the Secretary of Labor (see Sec’y
Reply Br. 5,) and Sherwin’s reasonable-alternative-means argument is no
substitute for Congress’s decision that a properly designated miners’
representative be granted the opportunity to invoke the statutory right to
accompany inspectors during physical inspections and to participate in pre-and
post-inspection conferences.
Nor, as the Secretary points out, is it sufficient
to rely on the ability of the miners’ representative to request a hazard
inspection under section 103(g) when the lockout ends. Sec’y Br. 18-19; but
see Cyprus Empire, 15 FMSHRC at 15 (economic strikers, subject to permanent
replacement, were not entitled to a section 103(f) walk-around representative
during the strike because they were not presently exposed to hazards and could
request an inspection under section 103(g) if they returned to work). A
section 103(g) hazard inspection focuses on an imminent danger or particular
violation of a mandatory health or safety standard. 30 U.S.C. § 813(g)(1) (“a
special inspection shall be made as soon as possible to determine if such
violation or danger exists”). The special inspection may be needed during the
lockout and the locked-out miners’ representative should be there at MSHA’s
discretion for the limited purpose of assisting such inspection. If the
locked-out miners’ representative is unable to participate and assist in regular
inspections and conferences during the lockout, he or she may be unaware upon
return to work of subtle or dynamic changes in the mine environment likely to
cause hazards, or unaware of particular conditions likely to create hazards. Indeed,
hazards themselves may go unnoticed before they worsen and increase danger. Such
danger is particularly acute at a large alumina refinery that encompasses 1200
acres, and utilizes hundreds of valves, tanks, and miles of piping (Tr. 96),
and Sherwin’s contrary interpretation of section 103(f) does not promote the
safety and health purposes of the statute. The Gramercy explosion at the Kaiser
alumina refinery referred to in the record by Sherwin, grounds this concern in
reality. Tr. 165-66; see supra, n. 4.
Consequently, actual participation by
the locked out miners’ representative in inspections and conferences during the
lockout is crucial to maximizing mine safety and health during the lockout. As
the Secretary persuasively argues on brief:
“… subsequent
review by the [locked out] miners of a cold record of citations is no
replacement for the robust, eye-witness experience the representative has when
accompanying the inspection team and seeing for him or herself how conditions
are evolving. Any suggestion that miners can simply get up to speed on how
conditions at the mine have changed during their temporary absence by reviewing
such records ignores the reality that most people learn and retain information
better by witnessing live events than by reviewing notes. Furthermore, not
every evolving condition that impacts miner health and safety will be something
that leads to a citation. Only by accompanying the inspection team will the
miners’ representative stay apprised of conditions that may yet evolve into
health or safety hazards.
Sec’y
Br. 18.
The fact that replacement miners and
returning locked-out miners must undergo training before commencing work, and that
MSHA is able to speak to other miners during the lockout, is weak justification
for excluding a locked-out miners’ representative from participating in
physical inspections and pre- and post-inspection conferences. As the Secretary
again persuasively argues on brief, “[t]elling miners what has happened at a
mine after the fact is no replacement for their having had a voice in the
dialogue in the first place.” Sec’y Reply Br. 5. Furthermore, as explained
herein, MSHA need not choose from amongst sources of information or between
designated representatives. Rather, MSHA has discretion to broadly gather
information from as many sources as possible. Thus, an experienced locked-out
miners’ representative, such as Guzman, and an inexperienced temporary
replacement miners’ representative, such as Alvarez, should both be given the
opportunity to participate in physical inspections and conferences during the
lockout, at MSHA’s discretion. Sherwin must give each representative the
requisite training to fulfill their statutory responsibilities.[10]
The broad discretion conferred on the authorized
MSHA inspector when determining the statutory participation right during the
particular inspection at issue is aptly captured in the following passage from
MSHA’s Interpretive Bulletin concerning section 103(f) of the Mine Act.
Considerable discretion
must be vested in inspectors in dealing with the different situations that can
occur during an inspection. While every reasonable effort will be made in a
given situation to provide opportunity for full participation in an inspection
by a representative of miners, it must be borne in mind that the inspection
itself always takes precedence. The inspector’s primary duty is to carry out a
thorough, detailed, and orderly inspection. The inspector cannot allow
inordinate delays in commencing or conducting an inspection because of the
unavailability of or confusion surrounding the identification or selection of a
representative of miners. Where necessary in order to assure a proper
inspection, the inspector may limit the number of representatives of the operator
and miners participating in an inspection. The inspector can also require
individuals asserting conflicting claims regarding their status as
representatives of miners to reconcile their differences among themselves and
to select a representative. If there is inordinate delay, or if the parties
cannot resolve conflicting claims, the inspector is not required to resolve the
conflict for the miners and may proceed with the inspection without the
presence of a representative.
43
Fed. Reg. 17546. In this case, Sherwin unlawfully removed such discretion from
inspector Barrick when it denied Guzman section 103(f) rights, as requested by Barrick
on November 13, 2014.
Respondent’s additional argument that
the safety interests of the temporary replacement workers have been protected
during the lockout, and that the interests of the locked-out employees will be
protected when they eventually return to work is unconvincing and falls short
of the requisite, broad interpretation of section 103(f) favoring a
representative for each group of miners, whose interests may not always align. Sherwin’s
argument ignores the fact that no miners’ representative participated in
inspections after the lockout for over three months. Fortunately, no accident
occurred during this period when the plant was operated with replacement
workers, who were primarily newly trained miners, with no previous mining
experience. Tr. 58-59; compare Tr. 165-66 and n. 9 (referring to
Gramercy explosion).
Furthermore, it is arguable in a labor
dispute context, such as a lockout, that temporary replacement workers may
be less concerned about appointing an aggressive advocate to represent their
safety interests and may be more easily intimidated because of their temporary
status than a permanent, albeit locked-out, miners’ representative. Even if the
temporary replacement workers are concerned with advocating on safety issues,
they likely lack the site-specific knowledge possessed by permanent workers, as
discussed above. Furthermore, the Mine Act is concerned about the safety of all
miners, both permanent and temporary alike, and temporary replacement miners are
entitled to benefit from the knowledge possessed by locked-out miners and their
representative, even if the interests of the two groups do not always align in
the labor relations context.
Finally, as noted above, only after
inquiry from the undersigned during a pre-hearing conference call, did the temporary
replacement workers eventually designate a member of the replacement contractor’s
management team to serve as a representative of miners and report through another
manager to Sherwin’s safety and health manager, who filtered the message back
to the rank and file miners. Tr. 107 -08. In effect, two management representatives
purported to “aid” the MSHA inspectors to uncover hazards during lockout
inspections, although neither ever apparently pointed out a hazard, while
management excluded Guzman, the miners’ representative from the locked-out rank
and file, who often pointed out hazards. Surely, section 103(f) was not
designed to malfunction this way.
I discount Sherwin’s attempt to claim that
safety has improved because miners represented by the Steelworkers were locked
out, and that the temporary replacement workers’ commitment to safety has
resulted in a noticeable improvement in Sherwin’s safety record. Sherwin Br.
- English testified that since the replacement workers began mining there has
been an increased emphasis on safety, the overall health of the facility has
improved, and he has received several compliments from various inspectors
regarding the replacement workers. Tr. 86-87. In the absence of any concrete
data provided by Sherwin, I must weigh English’s testimony against inspector
Barrick’s testimony regarding the underlying impetus for any apparent
improvement in safety.
Inspector Barrick testified that mine
safety had been improving during the year prior to the lockout due to several
factors. Barrick had seen improvement in 2014, after Sherwin developed a
corrective action plan (CAP) in September 2013 and re-evaluated workplace
examination requirements in conjunction with discussions with the MSHA district
office. Tr. 38-39. As noted, the Mine had been informed that it was a POV
candidate under section 104(e) because of its pattern of significant and
substantial violations, primarily involving housekeeping matters such as
guarding issues, electrical issues, and safe access issues. Tr. 40, 61, 141. After
the lockout, MSHA changed its historical wall-to-wall inspection procedure to
have an inspector present almost every day to intensify evaluation of small
areas. Tr. 39. Sherwin was legally obligated to provide the temporary
replacement miners with comprehensive training prior to their temporary
employment, which it did. Tr. 140, 184; 30 C.F.R. part 48. Although Barrick
acknowledged that the replacement workers had done a good job addressing
housekeeping issues, most of the replacements were new miners with no previous
mining experience. Tr. 58-60. In these circumstances, I reject any argument by
Sherwin that mine safety improved because of the lockout and the exclusion of
Guzman in contravention of section 103(f) of the Mine Act.
I also reject Sherwin’s arguments that the
Secretary’s interpretation conflicts with federal labor policy under the NLRA. Sherwin
Br. 19-20. Specifically, Sherwin argues that the Secretary’s interpretation purportedly
requires an operator to compensate a locked-out miners’ representative in contravention
of a non-precedential Advice memorandum from the NLRB’s Office of General
Counsel. Sherwin Br. 19-20, citing Brighton Corp., 1984 WL 47445 (Feb.
29, 1984) (Advice Memorandum in Case 13-CA-23492). Sherwin further argues that
the Secretary’s interpretation forces Sherwin to allow a locked-out miners’ representative
to enter onto Sherwin’s private property, and undermines Sherwin’s ability to
use an offensive lockout to exert lawful economic pressure during a labor
dispute. Sherwin Br. 19-20.
Sherwin’s arguments lack merit. As the
Secretary persuasively rejoins on reply brief, section 103(f) does not require
that a miner’s representative receive pay; rather, it only requires that the
miners’ representative “suffer no loss of pay during the period of his
participation in the inspection.” Sec’y Reply Br. 6, citing 30 U.S.C. §
813(f). Since a locked-out miner is not entitled to be paid wages and fringe
benefits during the lockout, even under the NLRB “authority” relied on by
Sherwin itself, Sherwin need not pay the locked-out miners’ representative for
performing section 103(f) functions during the lockout because such a miner will
not suffer a loss of pay while locked out. Cf. Sec’y Reply Br.
- Further, Sherwin need only pay the temporary replacement representative, not
the locked out representative, even though both participate in the inspection,
because section 103(f) explicitly provides that “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.” 30 U.S.C. § 813(f).
Sherwin also argues, this time without citation
to any NLRA authority, that the Secretary’s interpretation forces Sherwin to
allow locked-out employees to enter its mine, thereby effectively interfering
with its lawful right to use the lockout as an economic weapon. Sherwin Br. 20.
See generally, American Ship Building, 380 U.S. 300, 311 (1965)(employer
does not violate section 8(a)(1) or 8(a)(3) of the NLRA after a bargaining
impasse has been reached by temporarily laying off or locking out employees for
the sole purpose of bringing economic pressure to bear in support of a legitimate
bargaining position); Harter Equipment, supra, 280 NLRB at 597, aff’d
sub nom. Operating Engineers Local 825 v. NLRB, 829 F.2d 458 (3d
Cir. 1987).
The Secretary counters:
It is unclear how permitting a miners’
representative to enter a mine for the exclusive purpose of joining a
(supervised) inspection team noticeably diminishes an operator’s ability to use
“the tools that the NLRB has allowed employers and unions to use.” Id. [citing
Sherwin Br. 20] Even though the Secretary’s interpretation has the
effect of allowing a union member to enter a mine when he would not otherwise
be able to, the same was true in Utah Power & Light and Kerr
McGee, which permitted union representatives who are not “miners” to serve
as miners’ representatives. As those cases hold, the solution is not to
invalidate the Secretary’s interpretation, but to permit the operator to
protest if the miners’ representative engages in any (mis)conduct that goes
beyond his or her role as an advocate for miners’ safety.
Sec’y
Reply Br. 6.
I once again find myself in full
agreement with the Secretary of Labor. As the Steelworkers persuasively argue
on brief, there is no evidence that the Secretary improperly issued the
Citation and Order at issue to affect the balance of power in the ongoing labor
dispute or negotiations between Sherwin and the Steelworkers. Steelworkers Br.
12-15. In fact, I permitted Sherwin to pursue such inquiry at trial over
objection from the Secretary and the Steelworkers. Tr. 15. Had there been
proof that this was the Secretary’s actual motivation and not advancement of
miner safety and health, the Secretary would arguably have been acting ultra
vires. Tr. 15-19; Compare NLRB v. Insurance Agents (Prudential
Insurance Co.), 361 U.S. 477 (1960)(economic weapons are “part and parcel”
of peaceful resolution of collective-bargaining disputes and NLRB exceeded its
power by attempting to regulate the choice of economic weapons to equalize
disparity in bargaining power).
Furthermore, Sherwin’s poorly
articulated reliance on its private property rights under NLRA precedent to
trump the statutory rights of an employee miners’ representative to
represent the interest of locked-out miners, and advance the purposes of mine
safety and health under section 103(f) during a labor dispute, is not
persuasive for several reasons. First and foremost, under the Mine Act, such
property rights yield to a warrantless MSHA inspection. Donovan v. Dewey,
452 U.S. 594, 602 (1981). The miners’ representative participates in an
inspection party solely to aid that inspection. 30 U.S.C. §
813(f). In the pervasively
regulated mining industry, the warrantless intrusion of an MSHA inspector and representative
“aides” to ensure miner safety and health trumps private property rights. Donovan
v. Dewey, 452 U.S. at 599-600; compare Utah Power & Light Co. v.
Sec’y of Labor, 897 F.2d 447, 450 (10th Cir. 1990)(even nonemployee union
representative entitled to exercise walkaround rights under section103(f)). Sherwin
has advanced no compelling reason why this result should not hold true for an
employee miners’ representative like Guzman during a lockout.
As shown above, Respondent’s arguments
rely heavily on issues directly related to the National Labor Relations Act
(NLRA). For the reasons discussed supra, there are adequate and independent
logical and Mine Act bases for rejecting Respondent’s labor law claims. However,
even if I address Respondent’s inchoate arguments under the NLRA, I see no
reason why Guzman’s walkaround rights should be limited. Rather, allowing Guzman
to participate in the inspection party during a lockout is compatible with the NLRA.
By its plain terms, the NLRA confers
statutory rights on employees, not unions or nonemployee organizers. Lechmere,
Inc. v. NLRB, 502 U.S. 522, 532 (1992). There, the Supreme Court stated:
Thus, while "[n]o restriction may
be placed on the employees' right to discuss self-organization among
themselves, unless the employer can demonstrate that a restriction is
necessary to maintain production or discipline," citing NLRB v. Babcock
& Wilcox Co., 351 U.S. 105, 113 (1956) (citing
Republic Aviation Corp. v. NLRB, 324 U. S. 793, 803 (1945)), "no
such obligation is owed nonemployee organizers," 351 U. S. at 113.
Lechmere,
502
U.S. at 533. Thus,
under the NLRA, as opposed to the Mine Act, an employer need not be compelled
to allow nonemployees (usually union organizers) onto its property,
except in the rare instance where “the inaccessibility of employees makes
ineffective the reasonable attempts by nonemployees to communicate with them
through the usual channels.” Id. at 537, citing Babcock, 351 U.S. at 112 (1956). Significantly,
in Lechmere, the Court reiterated Babcock's admonition that
accommodation between employees' statutory rights and employers'
property rights "must be obtained with as little destruction of one as is
consistent with the maintenance of the other." Id. at 534, citing
Babcock, 351 U. S. at 112.
In the Mine Act section 103(f)
context, the statutory right of a miners’ representative to be given an
opportunity to
accompany the inspector to aid the inspection and to participate in pre- or post-inspection
conferences held at the mine during a lockout can be maintained with little
destruction of the employer’s property interests, which already must yield to a
warrantless inspection. In this case, Guzman, the miners’ representative for
the locked-out miners, is still an employee, who cannot be permanently replaced,
and is exercising a statutory right at the discretion of the MSHA inspector under
section 103(f) in furtherance of the overall purpose of the Mine Act to ensure
miner safety and health.
Finally, Sherwin has failed to establish
that the exclusion of Guzman as a miners’ representative during a post-lockout
inspection is necessary to maintain production or discipline. Cf., NLRB v.
Babcock & Wilcox Co., 351 U.S. at 113, citing Republic
Aviation Corp. v. NLRB, 324 U. S. at 803. Although given a
full opportunity to create a factual record, Sherwin failed to offer any
evidence that Guzman, or any other miner represented by the Steelworkers, engaged
in sabotage. Further, Sherwin has not cited a single instance where a miners’
representative has engaged in sabotage, an act that is made less likely by the
fact that miners’ representatives usually join inspection teams that include an
MSHA inspector and an operator’s representative(s). As noted, the Secretary’s implementing
regulations and MSHA’s Interpretive Bulletin concerning section 103(f) of the
Mine Act give MSHA inspectors’ broad discretion and control over proper inspection
procedures in order to promote safety and avoid worksite disruptions. This is
sufficient to counter Sherwin’s unsubstantiated concern about abuse during
inspections or conferences by locked-out miners’ representatives. Cf., In
the Matter of Establishment Inspection of Caterpillar Inc., 55 F.3d 334,
339-40 (7th Cir. 1995).[11]
Furthermore, as the Secretary highlights
on reply brief, “courts have held that ‘[w]hile . . . walk-around rights may be
abused by nonemployee representatives, the potential for abuse does not require
a construction of the Act that would exclude nonemployee representatives from
exercising walk-around rights altogether. The solution is for the operator to
take action against individual instances of abuse when it discovers them.’” Sec’y
Reply Br. 4, quoting Utah Power & Light Co. v. Sec’y of Labor,
897 F.2d 447, 450 (10th Cir. 1990); see also Thunder Basin Coal Co. v.
FMSHRC, 56 F.3d 1275, 1278 (10th Cir. 1995) (same); Kerr-McGee Coal
Corp. v. FMSHRC, 40 F.3d 1257, 1264 & n.12 (similar); see also
Kerr-McGee Coal Corp. v. Sec’y of Labor, 15 FMSHRC 352, 361 (Mar. 1993). Here,
Sherwin failed to establish any pre-lockout misconduct by Guzman in his role as
miners’ representative, and Sherwin deprived itself of the opportunity to take post-lockout
disciplinary action against Guzman for any misconduct because Sherwin unlawfully
excluded Guzman from the inspection party.
Finally, the Secretary’s statutory interpretation
in this case, at least in the context of a lockout, is consistent with
Commission and judicial precedent giving a broad interpretation to the
walk-around provision to permit miners to designate non-miner, third parties as
walk-around representatives in order to effectuate the safety purposes of the Mine
Act. See Thunder Basin, 56 F.3d at 1280 (deferring to the Secretary’s
interpretation that the Act permits a nonemployee union agent to serve as a
miners’ representative); Utah Power & Light, 897 F.2d at 450
(concluding that section 103(f) “confers upon the miners the right to authorize
a representative for walk-around purposes without any limitation on the
employment status of the representative”); Kerr-McGee, 40 F.3d at 1263 (granting
deference to Secretary’s interpretation allowing non-elected labor organization
to serve as miners’ representative at non-unionized mine because “in view of
Congress’ clear concern about miners’ safety, the Secretary’s broad
interpretation of the term is consistent with congressional objectives.”). These
cases demonstrate the validity and consistency of the policy concerns
supporting the Secretary’s current and reasonable interpretation of the Mine
Act during a lockout.
In short, the Secretary’s interpretation
recognizes the “important role section 103(f) plays in the overall enforcement
scheme,” Consolidation Coal, 3 FMSHRC at 618, as well as the key
position that both miners and miners’ representatives serve in furthering the
“general health and safety purposes of the Mine Act,” Thunder Basin, 56
F.3d at 1278. As explained herein, the Secretary’s interpretation in the
context of a lockout is permissible and fully consistent with the Mine Act’s overarching
purpose to protect miner safety and health at all times, and with the specific purposes
of the walk-around provision in furtherance of that primary statutory objective.
Accordingly, I affirm the 104(a) Citation and 104(b) Order, as written, and I
affirm the proposed penalty of $112.
V.
Civil
Penalty
The Act requires
that when evaluating a civil monetary penalty the Commission shall consider six
statutory penalty criteria: 1) the operator’s history of previous violations;
2) the appropriateness of the penalty to the size of the business; 3) the
operator’s negligence; 4) the operator’s ability to stay in business; 5) the
gravity of the violation; and 6) any good faith compliance after notice of the
violation. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000). The
Commission is not required to give equal weight to each of the criteria, but
must provide an explanation for a substantial divergence from the proposed
penalty under the criteria. Spartan Mining Co., 30 FMSHRC 699. 723 (Aug.
2008).
Here, the
Secretary provided a proposed assessment of $112. The Commission has frequently
recognized that section 110(i) of the Mine Act confers upon the Commission the
authority to assess all civil penalties provided under the Act. See Wade
Sand & Gravel Company, Docket No. SE 2013-120-M, slip op. (Sep. 16,
2015); and Mining & Property Specialists, 33 FMSHRC 2961, 2963 (Dec.
2011). Neither the Judge nor the Commission is bound by the proposed
assessment. 29 C.F.R. § 2700.30(b); Wade Sand & Gravel Company, supra;
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984)
(“[Neither] the ALJ nor the Commission is bound by the Secretary's proposed
penalties… we find no basis upon which to conclude that [MSHA's Part 100
Penalty regulations] also govern the Commission.”). However, while the
Secretary’s proposed penalty is not binding, the Commission has recognized that
substantial deviations from the Secretary's proposed assessments must be
adequately explained using the section 110(i) criteria. Performance Coal Co.,
2013 WL 4140438, *2 (Aug. 2, 2013); Spartan Mining Co., 30 FMSHRC supra;
Cantera Green, 22 FMSHRC 616, 620-21 (May 2000).
In light of the
Commission authority described above, I take pains to ensure that my penalty
assessments are as transparent as possible. As I discussed in my final Big
Ridge decision, in an effort to avoid the appearance of arbitrariness, I
look to the Secretary’s assessment formula as a reference point. Big Ridge
Inc., 36 FMSHRC 1677, 1681-82 (July 19, 2014) (ALJ). This formula is not binding,
but operates as a lodestar, since factors involved in a violation, such as the
level of negligence, may fall on a continuum rather than fit neatly into one of
five gradations. Further, unique aggravating or mitigating circumstances may
call for higher or lower penalties, and will be taken into account under my
independent analysis of the criteria set forth in section 110(i) of the Mine
Act and Commission precedent. Here, I find that the penalty proposed by the
Secretary of $112 is consistent with the statutory criteria in section 110(i)
of the Mine Act. 30 U.S.C. § 820(i). Accordingly, I assess a $112 civil penalty
against Respondent. If Sherwin continues to refuse to abate the violation, MSHA
may assess daily failure-to-abate penalties. See 30 U.S.C. § 820 (b)(1), 30
U.S.C. § 813(f), and Interpretive Bulletin 43 Fed. Reg. 17,547, supra.
VI. ORDER
For the reasons set forth above, I AFFIRM
Citation No. 8778065 and Order No. 8778066, as
written. It is ORDERED that the operator provide Joe Guzman with any
training that he needs since the lockout to perform his miners’ representative
functions under section 103(f) of the Mine Act. It is further ORDERED that
the operator pay a civil penalty of $112 within 30 days of this decision.[12]
/s/ Thomas P.
McCarthy
Thomas P. McCarthy
Administrative
Law Judge
Distribution:
Mary
Kathryn Cobb, Esq., U.S. Department of Labor, Office of the Solicitor, 525
Griffin Street, Suite 501, Dallas, Texas, 75202 and Derek Baxter, Esq., and
Philip Mayor, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th
Street, Suite 500, Arlington, Virginia, 22202-5450 (on brief)
Christopher
V. Bacon, Esq., and Samantha D. Seaton, Esq., Vinson & Elkins LLP, 1001
Fannin Street, Suite 2500, Houston, Texas 77002
Susan
J. Eckert, Esq., Santarella & Eckert, LLC, 7050 Puma Trail, Littleton,
Colorado 80125
[1] NLRB v.
Mackay Radio & Telegraph Co., 304 U.S. 333 (1938)(economic strikers may
be permanently replaced and denied a request for reinstatement until vacancy
arises); Laidlaw Corp., 171 NLRB 1366 (1968), enforced, 414 F.2d 99
(7th Cir. 1969), cert. denied, 397 U.S. 920 (1970)(economic
strikers, who unconditionally apply for reinstatement when their jobs are
filled by permanent replacements, remain employees, and are entitled to full
reinstatement upon the departure of replacements, unless they have acquired
regular and substantially equivalent employment or employer can establish that
failure to offer full reinstatement was for legitimate and substantial business
justifications).
[2] Cypress
Empire may be criticized for a simplistic failure to reconcile the
reasonable expectation of reinstatement rights under federal employment
statutes such as the National Labor Relations Act (NLRA) with the entirely
discrete yet compatible purpose of the Mine Act to protect the health and
safety of miners. In any event, as explained herein, locked out miners, cannot
be permanently replaced, are entitled to reinstatement at the conclusion of the
labor dispute, and have specialized and experiential knowledge of health and
safety concerns at the mine, which knowledge augments the protection of both
replacement workers and miners entitled to return to work after resolution of a
labor dispute. As the Supreme Court has recognized, “[w]hen two statutes
complement each other, it would show disregard for the congressional design to
hold that Congress nonetheless intended one federal statute to preclude the
operation of the other.” POM Wonderful LLC v. Coca-Cola Co., 134 S.Ct.
2228, 2238 (2014) (citing J.E.M. Ag. Supply, Inc. V. Pioneer Hi-Bred Int’l,
Inc., 534 U.S. 124, 144 (2001) (“[W]e can plainly regard each statute as
effective because of its different requirements and protections”). See also,
Wyeth v. Levine, 555 U.S. 563, 578-579 (2009). Compare Sure-Tan, Inc. v.
NLRB, 467 U.S. 883, 892-93 (1984) (“[c]ounterintuitive though it may be, we
do not find any conflict between application of the NLRA to undocumented aliens
and the mandate of the Immigration and Nationality Act (INA)” since enforcement
of the NLRA with respect to undocumented alien employees is compatible with the
policies of the INA). For the reasons explained herein, given the ambiguity of
the statutory term “miner” as one who works in a mine, one could perceive
statutory warrant in the Mine Act for treating an operator’s locked out
employees as “miners,” particularly in the context of section 103(f) dealing
with a “representative authorized by his miners.”
[3] In resolving
conflicts in testimony, I have taken into consideration the demeanor of the
witnesses, their interests in this matter, the inherent probability of their
testimony in light of other events, corroboration or lack of corroboration for
testimony given, experience and credentials, and consistency, or lack thereof,
within the testimony of witnesses and between the testimony of witnesses.
[4] Sherwin opened
the door to this tragic accident at trial. Tr. 165-66. I take judicial notice that
this 1999 explosion injured 29 miners, blinded one, and occurred during a
lockout of the United Steelworkers when the Kaiser Aluminum plant was being
operated by temporary replacement workers. MSHA later produced a public report
regarding this disaster. See MSHA, Report of Investigation, http://www.msha.gov/disasterhistory/gramercy/
report/reportdept.htm.
Under Commission precedent, judicial
notice can be taken of the existence or truth of a fact or other extra-record
information that is not the subject of testimony but is commonly known, or can
safely be assumed, to be true. Union Oil, 11 FMSHRC 289, 300 n.8 (Mar.
1989). Also, the Commission has recognized that the existence and content of
MSHA public documents are subject to judicial notice. Brody Mining, LLC,
36 FMSHRC 2027, 2030 n. 4 (Aug. 2014) (Inspector General Report); Black
Diamond Constr. Inc., 21 FMSHRC 1188, 1202 n. 3 (Nov. 1999) (MSHA
handbook); Jim Walter Resources, 7 FMSHRC 1348, 1355 n. 7 (Sept. 1985)(
MSHA policy memorandum).
This disaster occurred about 6 years
after Cyprus Empire was decided by the Commission. Perhaps that’s why
the Secretary of Labor now asks the Commission to re-examine Cyprus Empire.
[5] English’s
statement was not accurate. Guzman remains an employee of Sherwin, but he had
been locked out and was not actively engaged in mining because of the lockout.
[6] The Secretary’s
proffered interpretation of “representative authorized by his miners” is
admittedly broader than a representative selected by locked-out miners. As
discussed supra, the Secretary also argues that striking miners who are
permanently replaced should likewise be considered working miners and entitled
to have their designated representative participate in inspections and
conferences. The instant matter, however, deals only with locked-out, not
striking miners, and the deference afforded to the Secretary is therefore limited
to the facts presented here. It is unnecessary to reach the issue of whether
the Secretary’s broader interpretation is also entitled to deference.
[7] In Peabody,
the D.C. Circuit affirmed the Commission’s holding that laid-off individuals were
not miners for purposes of the training rights granted under section 115 of the
Act because they were not working in a mine, exposed to the hazards of mining, or
employed by a mine operator. Peabody, 822 F.2d at 1147-49 (emphasis
added). The laid off miners in Peabody were contractually entitled
under the collective-bargaining agreement to be placed on a panel for recall on
the basis of “seniority,” which was contractually defined as “length of service
and the ability to step into and perform the work of the job at the time it was
awarded.” Id. at 1139. The operators passed over some miners at the top
of the recall list because they lacked the necessary training or work
experience to qualify as “experienced miners” and therefore could not begin
working without first receiving “new miner training.” Id. The court
majority concluded that the laid-off individuals did not, in failing to obtain
safety training, exercise any right granted a miner by section 115(a) of the
Mine Act. Accordingly, the Secretary’s position that the operators refused to
employ them because of the exercise of a statutory right thereby engaging in
prohibited discrimination, was not a reasonable interpretation of sections
105(c)(1) and 115(a) of the Act. Id. at 1151.
In her concurrence, then Judge Ruth
Bader Ginsburg astutely observed that one need not exclude laid-off miners from
the section 3(g) definition of "miner” for all statutory purposes, nor did
she read the majority opinion to make so sweeping a disposition, and she
rejected the Secretary's position solely on the language and structure of
section 115 of the Act dealing with training rights. Id., (Ginsburg
concurring). Judge Ginsburg concluded that the word “miner” as employed in
section 115 could not reasonably be read to encompass persons laid-off because
the training provisions were directed to miners on the job and could not
comprehensively be read to accommodate miners “who stand and wait.” Id.
at 1152.
[8] In Performance
Coal, the judge found that “[t]he purpose of . . . section 103(f) is to
allow miners the opportunity to be involved in the safety and health of the
mine where they are employed,” and it would “circumvent the purpose of the
statute” to deny the miners a representative at the closed mine. Performance
Coal Co., WEVA 2010-1909, Unpublished Order at 11, (Dec. 17, 2010) (ALJ). The
judge persuasively reasoned that the “miners who were employed at the Mine at
the time of the accident have an ongoing interest in the safety of the mine
where they were working and will potentially return to work. This safety
interest is at the heart of the statute and regulations.” Id. The judge further
concluded that the operator’s “narrow reading” of section 103(f) would permit
mines “to unilaterally prevent” miners’ involvement in safety oversight. Id.
Similarly here, Sherwin’s interpretation
of the phrase “representative authorized by his miners” to exclude a
lawfully designated, but locked-out representative, unilaterally prevents
miners’ involvement in safety oversight. In fact, as noted herein, there was no
miners’ representative permitted to participate in inspections for three months
after the lockout, until Alvarez was eventually designated after inquiry from
the undersigned. By contrast, as in Performance Coal, the Secretary’s
interpretation of the phrase “representative authorized by his miners” fosters
the overarching safety interest at the heart of the statute and regulations by
ensuring that an operator cannot use a lockout to unilaterally preclude miners,
through their designated representative, from participating in inspections and
conferences to help ensure a safe mine environment where they reasonably expect
to return to work.
[9] For example, a
lockout lasted for two years (1991-92) at the Ravenswood Aluminum plant in West
Virginia, chronicled by Kate Bronfenbrenner and Tom Juravich in Ravenswood: The
Steelworkers Victory and the Revival of American Labor (1999), and a
lockout lasted for two years at the Kaiser Aluminum refinery in Gramercy,
Louisiana, during which a tragic explosion injured 29 miners on July 5, 1999. MSHA,
Report of Investigation, http://www.msha.gov/disasterhistory/gramercy/ report/reportdept.htm.
[10]
Under 30
C.F.R. §48.3, operators must have an approved training plan that covers,
inter alia, experienced miner training (30 C.F.R. §48.6) and annual
refresher training (30 C.F.R. §48.8). Operators may receive citations for
failure to properly conduct these trainings. See e.g., Emery Mining Corp.,
5 FMSHRC 1400 (Aug. 1983)(Commission held a civil penalty was appropriate when
miners did not receive annual refresher training for 15 months in violation of
30 C.F.R. §48.8); Sally Ann Coal Company, Inc., 37 FMSHRC 246
(Feb. 2015)(ALJ Harner)(citation under 30 C.F.R. §48.6 affirmed). As shown herein,
unlike laid-off miners seeking to invoke training rights under section 115 of
the Act, locked-out miners’ representatives like Guzman remain “miners” for the
purposes of the section 103(f) of the Act during the course of the lockout. Further,
a miners’ representative, who works at the mine and regularly assists an MSHA
inspector during inspections, would be “regularly exposed to mine hazards,” and
therefore be a “miner” for training purposes under 30 C.F.R. §48.2. But for
Respondent’s unlawful exclusion of Guzman as the designated miners’
representative under section 103(f) of the Act, Guzman presumably would not
have experienced any lapse of training requirements after the lockout began. Accordingly,
to the extent that any training of Guzman’s has lapsed, Respondent is
responsible for retraining him.
[11] Although
interpreting a differently worded statute, it is instructive that the Seventh
Circuit and the Occupational Safety and Health Review Commission (OHSRC) have
rejected similar concerns with respect to strikers invoking the walk-around
provision set forth in the Occupational Safety and Health Act. That provision,
29 U.S.C. § 657(e), states:
“[s]ubject to
regulations issued by the Secretary, a representative of the employer and a
representative authorized by his employees shall be given an opportunity to
accompany the Secretary or his authorized representative during the physical
inspection of any workplace under subsection (a) of this section for the purpose
of aiding such inspection. Where there is no authorized employee
representative, the Secretary or his authorized representative shall consult
with a reasonable number of employees concerning matters of health and safety
in the workplace.”
Although the
OSHA walk-around provision applies to “employees” without reference to whether
they are “working,” the Secretary has consistently determined that strikers are
still employees who must be allowed to accompany OSHA inspectors to aid their
inspections and ensure that inspection procedures are unaffected by labor
disputes. See In re: Establishment Inspection of Caterpillar Inc., 55
F.3d 334, 338-39 (7th Cir. 1995); Rockford Drop Forge Co. v. Donovan,
672 F.2d 626, 631-32 (7th Cir. 1982). In Caterpillar, the Seventh
Circuit, recognized that “[t]he purpose of the [Occupational Safety and Health
Act is to inspect for safety hazards and violations of OSHA regulations,” and declined
to “force employees to choose between exercising their National Labor Relations
Act right to strike and their OSHA right to accompany inspections.” Caterpillar
Inc., 55 F.3d at 340, (citing Marshall v. Barlow’s Inc., 436 U.S.
307, 309 (1978)). Similarly, as the Seventh Circuit in Rockford Drop
recognized, “[s]urely [striking] employees like these should not be
disenfranchised from preserving the safety of the workplace where they hope to
return.” Rockford Drop, 672 F.2d at 632.
[12] Payment should
be sent to: Mine Safety & Health Administration, U.S. Department of Labor,
Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
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