United Mine Workers of America on behalf of James Rowe, et al., and Secretary of Labor on behalf of Thomas L. Williams v. Peabody Coal Company

Plain-English summary

These consolidated discrimination complaints challenged Peabody Coal Company's policy of bypassing laid-off miners for recall when they had not obtained relevant health and safety training before rehire. The Commission held that section 115 gives laid-off individuals training rights when they are rehired, not while they remain on layoff, and that section 105(c) did not prohibit Peabody's recall policy. It reversed the findings of discrimination in three dockets, affirmed the dismissal in the class-action docket, and dismissed the complaints. It also vacated the administrative law judge's related award of damages and attorney's fees and assessment of civil penalties.

Decision snapshot

• Cited provisions: 30 U.S.C. § 815(c), 30 U.S.C. § 825, and 30 C.F.R. Part 48
• Outcome: The complaints in KENT 82-105-D, KENT 82-106-D, and LAKE 83-69-D were dismissed, the dismissal in KENT 82-103-D was affirmed, and the related damages, attorney's fees, and civil penalties were vacated.
• Key point: Under this decision, a laid-off individual did not have a statutory right to Mine Act training before rehire, so bypassing the individual for lack of current training did not violate section 105(c).

Full text (FMSHRC public release)

CCASE:
UMWA V. PEABODY COAL
DDATE:
19850930
TTEXT:
FMSHRC-WDC
SEP 30, 1985
United MINE WORKERS
OF AMERICA (UMWA)
on behalf of JAMES ROWE, et al., Docket Nos. KENT 82-103-D
JERRY D. MOORE, LARRY D. KENT 82-105-D
KESSINGER KENT 82-106-D
v.
PEABODY COAL COMPANY

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of THOMAS L.
WILLIAMS Docket No. LAKE 83-69-D
v.
PEABODY COAL COMPANY

Before: Backley, Acting Chairman; Lastowka and Nelson,
Commissioners
DECISION
BY THE COMMISSION:
These consolidated discrimination complaints arise under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (1982). The essential issue presented on review is
whether Peabody Coal Company ("Peabody") violated section 105(c)
of the Mine Act, 30 U.S.C. § 815(c), when it bypassed for rehire
the laid-off complainants, who were otherwise eligible for recall
under pertinent collective bargaining agreement provisions,
because they had not obtained relevant health and safety training
specified in section 115 of the Act, 30 U.S.C. § 825, and
30 C.F.R. Part 48. 1/ The Commission's Chief Administrative Law
Judge concluded that,

1/ Section 115 states in part:
(a) Approved program; regulations
Each operator of a coal or other mine shall have
a health and safety training program which shall be
approved by the Secretary. The Secretary shall
promulgate regulations with respect to such health
and safety training programs not more than 180 days
after the effective date of the Federal Mine Safety
and Health Amendments Act of 1977. Each training

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program approved by the Secretary shall provide as a
minimum that --
(Footnote 1
continued)
~1358
under the circumstances presented, certain of the complainants on
layoff status were "miners" within the meaning of the Mine Act
and that Peabody

Footnote 1/ continued
(1) new miners having no underground mining
experience shall receive no less than 40 hours of
training if they are to work underground. Such
training shall include instruction in the statutory
rights of miners and their representatives under
this [Act], use of the self-rescue device and use of
respiratory devices, hazard recognition, escapeways,
walk around training, emergency procedures, basic
ventilation, basic roof control, electrical hazards,
first aid, and the health and safety aspects of the
task to which he will be assigned;
(2) new miners having no surface mining
experience shall receive no less than 24 hours of
training if they are to work on the surface. Such
training shall include instruction in the statutory
rights of miners and their representatives under this
[Act], use of the self-rescue device where appropriate
and use of respiratory devices where appropriate,
hazard recognition, emergency procedures, electrical
hazards, first aid, walk around training and the health
and safety aspects of the task to which he will be
assigned;
(3) all miners shall receive no less than eight
hours of refresher training no less frequently than
once each 12 months, except that miners already
employed on the effective date of the Federal Mine
Safety and Health Amendments Act of 1977 shall
receive this refresher training no more than 90 days
after the date of approval of the training plan
required by this section;
(4) any miner who is reassigned to a new task in
which he has had no previous work experience shall
receive training in accordance with a training plan
approved by the Secretary under this subsection in the
safety and health aspects specific to that task prior

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to performing that task;
(5) any training required by paragraphs (1), (2)
or (4) shall include a period of training as closely
related as is practicable to the work in which the
miner is to be engaged.
(Footnote 1 continued)
~1359
discriminated against them in contravention of section 105(c) of
the Act by violating their section 115 training rights. 6 FMSHRC
1634, 1645-49 (July 1984)(ALJ). We disagree. For the reasons
that follow, we reverse.
These cases involve four discrimination complaints. Docket
No. LAKE 83-69-D is a complaint of discrimination filed by the
Secretary of Labor on behalf of Thomas L. Williams, who was on
layoff and who had worked previously as a miner for Peabody at
its Sunnyhill No. 9 South Mine. Docket Nos. KENT 82-105-D and
KENT 82-106-D are complaints brought by the United Mine Workers'
of America ("UMWA") under section 105(c)(3) of the Mine Act,
30 U.S.C. § 815(c)(3), on behalf of Jerry D. Moore and Larry D.
Kessinger, who were also on layoff and who had been employed
formerly as miners by Peabody at its Eagle No. 2 Mine. (The
Sunnyhill No. 9 South and the Eagle No. 2 Mines are part of
Peabody's Eastern Division.) Finally, Docket No. KENT 82-103-D is
a complaint of discrimination filed by the UMWA as a class action
on behalf of James Rowe and all laid-off individuals employed
previously as miners in Peabody's Eastern Division.
Prior to July 1981 and the events which gave rise to this
litigation, Peabody provided to its miners, following their
rehire from layoff status, the training required for "new miners"
under the Mine Act and the Secretary of Labor's implementing
regulations. On July 6, 1981, however, Peabody instituted a new
policy requiring laid-off individuals to obtain such training on
their own. Under the new policy, those laid-off individuals who
failed to obtain the training would be bypassed, when reached on
a recall panel, in favor of panel members whose training was
current. The recall panels were established as part of the
National Bituminous Coal Wage Agreement of 1981 ("the
Agreement"), to which Peabody and the UMWA were parties. Article
XVII(d) of the Agreement provided:
Employees who are idle because of a reduction in
the working force shall be placed on a panel from which
they shall be returned to employment on the basis of

Footnote 1/ end
(b) Training compensation

--- Page 4 ---

Any health and safety training provided under
subsection (a) of this section shall be provided
during normal working hours. Miners shall be paid
at their normal rate of compensation while they take
such training, and new miners shall be paid at their
starting wage rate when they take the new miner
training. If such training shall be given at a
location other than the normal place of work, miners
shall also be compensated for the additional costs they
may incur in attending such training sessions.
30 U.S.C. § 825.
30 C.F.R. Part 48 implements section 115 of the Act. Part
48 sets forth the training requirements for miners, as well as
the requirements for the compensation of miners for training and
retraining.
~1360
seniority as outlined in section (a). A panel
member shall be considered for every job which
he has listed on his layoff form as one to which
he wishes to be recalled.
"Seniority" was defined in Article XVII(a) of the Agreement as
"length of service and ability to step into and perform the work
of the job at the time the job is awarded." Under Peabody's new
policy, a laid-off individual who had not obtained the relevant
health and safety training when he was reached for a vacant
position was considered unable to "step into and perform the work
of the job" at the time the job was awarded.
On January 3, 1983, the Department of Labor's Mine Safety
and Health Administration ("MSHA") notified Peabody that it
considered the new recall policy inconsistent with the training
requirements of the Mine Act and 30 C.F.R. Part 48.
Subsequently, MSHA revoked approval of the training plans in
effect at two of Peabody's mines and cited Peabody for violating
the Act and 30 C.F.R. Part 48. Peabody then discontinued its
policy and returned to its prior practice of recalling the most
senior individual on the recall panel and providing training upon
rehire. After the citations were terminated, those individuals
who, as a result of Peabody's policy, had obtained training on
their own time and expense and had been recalled to work, were
compensated by Peabody for their training expenses.
The named complainants in the present discrimination
complaints had worked previously as underground miners and had
sought recall at Peabody's surface facilities. They had not
obtained the surface "new miner" training and, under Peabody's
policy, had been bypassed when reached on the recall panel. The

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complainants alleged that it was Peabody's responsibility to
provide training after rehire and that, by denying reemployment
because they were not trained, Peabody engaged in discrimination
in violation of section 105(c)(1) of the Act. 2/

2/ Section 105(c)(1) provides:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any miner,
representative of miners or applicant for employment
in any coal or other mine subject to this [Act]
because such miner, representative of miners or
applicant for employment has filed or made a complaint
under or related to this [Act], including a complaint
notifying the operator or the operator's agent, or the
representative of the miners at the coal or other mine
of an alleged danger or safety or health violation in a
(Footnote 2 continued)
~1361
In his decision, the judge agreed with the named
complainants. 3/ The judge found that section 115 of the Mine Act
establishes the right of miners to receive health and safety
training and the corresponding obligation of the operator to
provide and pay for the training. Because the Mine Act and its
legislative history do not address the situation of individuals
on layoff, the judge took account of relevant provisions of the
parties' Agreement dealing with laid-off individuals. He
concluded that, in light of the Agreement, a laid-off individual
was more than just a "preferred job applicant":
[T]he rights accorded a laid off miner under the
collective bargaining Agreement contain indicia of an
ongoing employment relationship sufficient for him to
be considered a miner within the purview of section 115
and 105(c) of the Act.
6 FMSHRC at 1648.

Footnote 2 continued
coal or other mine, or because such miner,
representative of miners or applicant for employment
is the subject of medical evaluations and potential
transfer under a standard published pursuant to
section [101] of this [Act] or because such miner,
representative of miners or applicant for employment
has instituted or caused to be instituted any

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proceeding under or related to this [Act] or has
testified or is about to testify in any such
proceeding, or because of the exercise by such miner,
representative of miners or applicant for employment
on behalf of himself or others of any statutory right
afforded by this [Act].
30 U.S.C. § 815(c)(1).
3/ In the litigation before the judge, the complainants were
divided into three categories: Category I consists of those
individuals who had obtained training on their own time and at
their own expense, and who were recalled to work. Peabody and
the UMWA settled the claims of these miners with the approval of
the judge. Category II complainants, the named complainants, are
those individuals who were bypassed on the recall panel because
the operator determined that they would need additional training
in order to fill the available jobs. Category III, covered by
the class action in Docket No. KENT 82-103-D, consists of those
individuals who, as a result of the operator's policy, had
obtained training on their own time and at their own expense, but
whose names were not reached on the recall panel because of their
relatively shorter length of service.
~1362
Therefore, according to the judge, a laid-off "miner" is entitled
to the protections afforded all "miners" under sections 115 and
105(c) of the Mine Act, including the right to receive training
from the operator. The judge ordered Peabody to reinstate the
named complainants to the jobs that they would have had but for
the discriminatory training policy. In Docket No. KENT 82-103-D,
the judge dismissed the complaint on the grounds that the UMWA
had failed to satisfy requisite criteria for maintaining a class
action. With regard to the Category III complainants, the judge
found that the right to a job was predicated upon being reached
on the recall panel. Therefore, because the Category III
complainants had no right to a job, the judge held that they had
no right to training. 6 FMSHRC at 1649. Given our disposition
of this case, we agree in result with the judge as to the claims
of any individual in Category III. Subsequently, the judge
awarded damages and attorney's fees, and assessed civil penalties
for the violations of section 105(c). 6 FMSHRC 1920 (August
1984)(ALJ).
In Secretary of Labor, on behalf of Bennett, et al. v. Emery
Mining Corp., 5 FMSHRC 1391 (August 1983), pet. for review filed,
No. 83-2017 (10th Cir. August 17, 1983), the Commission examined
the rights granted and the obligations imposed by section 115.
The Commission found that section 115 affords newly hired miners

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two separate, related rights: the right to receive after hire the
safety training specified in that provision and the right to be
compensated for such training. 5 FMSHRC at 1394-96. As a
corollary to these rights, the Commission further concluded that
section 115 imposes upon operators the duty to provide new miners
with the required training. Id. The Commission determined also
that section 105(c) prohibits denial of, or interference with,
these rights. 5 FMSHRC at 1395-96.
In Emery, the operator had refused to hire job applicants
who had not obtained the health and safety training specified in
section 115 on their own time and at their own expense. The
operator also refused to reimburse those whom it hired for their
expenses in obtaining such training. The Commission found that
Emery's policy requiring job applicants to obtain training on
their own, as a qualification for employment, did not violate
section 105(c) of the Act. The Commission held, however, that
Emery's failure to reimburse those whom it subsequently hired for
their prehire training expenses while relying on that training to
satisfy its own statutory obligation to provide training for new
miners, violated the Act. 5 FMSHRC at 1396. Central to the
holding in Emery was the recognition that section 115 neither
dictates whom an operator should hire, nor refers to
qualifications for hire. As stated in Emery, "[I]n the Mine Act
Congress did not restrict a mine operator's prerogative of
setting pre-employment qualifications based on experience or
training." 5 FMSHRC at 1395-96. On the other hand, it was
recognized that the operator's statutory obligation to provide
and bear the cost of training for new miners could not be
circumvented by relying on newly hired miners' prehire training,
obtained as a result of that operator's hiring policies, while
refusing to reimburse new miners for the expense of such
training.
In the present case, the complainants are individuals who
have been laid off by Peabody and who worked previously for the
operator as miners.
~1363
The parties agree that the layoffs resulted from bona fide
business objectives. There is no suggestion that Peabody's
motivation for the layoffs was retaliatory. Peabody's policy
with respect to hiring laid-off individuals was similar to
Emery's policy with respect to hiring new job applicants. Both
operators conditioned employment upon the prospective employee
first acquiring his own training. However, unlike Emery, Peabody
reimbursed the employees it hired for the expense of the
training.

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We conclude that Peabody's policy requiring laid-off
individuals to obtain training prior to rehire does not violate
the Act. 4/ As the judge noted, the Act and its legislative
history do not address the rights of laid-off individuals or the
obligations of operators with regard to the recall of laid-off
individuals. Section 115 contains no priorities with respect to
the recall of former employees. Moreover, nothing in the
legislative history indicates that Congress intended section 115
to dictate to operators whom they must recall--any more than it
dictates whom they must hire.
Section 115 grants training rights to "new miners" and
"miners." We conclude that, consistent with the rationale
underlying Emery, under the Mine Act it is upon being rehired
that laid-off individuals become entitled to the rights granted
by section 115. At that point they once again become "miners"
within the meaning of section 115 and as defined by section 3(g)
of the Act. 5/ There being no statutory right to training for
those on layoff status, refusal to rehire for lack of required
training does not violate section 105(c). This result is
consonant with the holding in Emery. 6/
Our holding does not mean that an operator is without
obligations regarding the training of previously laid-off
individuals after they have been rehired. As in Emery, we
conclude that section 115 requires

4/ Our decision is consistent with the administrative law judges'
decisions in United Mine Workers of America, on behalf of Delmar
Shepard v. Peabody Coal Company, 4 FMSHRC 1338 (July 1982)(ALJ)
and Secretary of Labor,(MSHA) on behalf of I.B. Acton et al. and
UMWA v. Jim Walter Resources, Inc , 6 FMSHRC 2450 (October
1984)(ALJ).
5/ Section 3(g) of the Act provides:
For the purpose of this Act, the term --

"miner" means any individual working in a coal or other
mine....
30 U.S.C. § 802(g).
6/ Our decision is based on the statute. There is no relevant
training regulation bearing directly on the issue, for none of
the Secretary's otherwise extensive safety training regulations
at 30 C.F.R. Part 48 addresses the subject of laid-off
individuals. Cf. Emery, 5 FMSHRC at 1398.
~1364 that an operator, if it relies upon the prehire training of those
whom it rehires to satisfy its statutory training obligations
with respect to "new miners," must reimburse the miners for the

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expense of their training. Failure to do so would circumvent the
intent and mandate of section 115(b) that operators provide and
pay for new miners' training. In the present case, Peabody has
fulfilled this obligation.
Underlying our holding is our belief that the Mine Act is not
an employment statute. The Act's concerns are the health and the
safety of the nation's miners. In enacting § 115 Congress was
intent upon preventing "the presence of miners ... in a dangerous
mine environment who have not had ... training in self
preservation and safety practices." S. Rep. No. 181, 95th Cong.,
1st Sess. 50 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at
637-38 (1978)("Legis. Hist."). Those individuals employed at a
mine are to be trained before they begin work so that once they
begin work accidents are less likely to occur. See National
Indus. Sand Ass'n v. Marshall, 601 F.2d 689, 710 (3d Cir. 1979).
Peabody's policy of hiring individuals who have maintained their
trained status is consistent with this objective and with section
115 as written.
The ALJ looked beyond the Mine Act to the parties' private
collective bargaining agreement in order to interpret section

115. We are not prepared to interpret the rights and obligations
     mandated by the Act through interpretation of a private
     contractual agreement unless required to do so by the Act itself.
     See Local Union No. 781, Dist. 17, UMWA v. Eastern Assoc. Coal
     Corp., 3 FMSHRC 1175, 1179 (May 1981). Here, nothing mandates
     that we go beyond the Act and the legislative history to
     determine whether laid-off individuals are entitled to section 115
     safety training. The rights of laid-off individuals to recall
     and the extent to which an operator agrees to limit its right to
     select the persons it will recall, are the province of collective
     bargaining and arbitration. Essentially, the dispute between
     Peabody and the complainants is of a private, contractual nature.
     The issues raised in such a dispute are appropriately resolved
     by the grievance-arbitration process. See Local Union 5869,
     District 17, United Mine Workers of America v. Youngstown Mines
     Corp., 1 FMSHRC 990, 994 (August 1979). Indeed, prior to this
     matter reaching the Commission, the issue of the validity of
     Peabody's recall policy under the applicable bargaining agreement
     was arbitrated several times, and Peabody's policy was upheld. 7/
     We recognize that under the National Labor Relations Act and
     the Railway Labor Act, statutes governing labor-management
     relations, laid-off employees in general and laid-off employees
     with a right to reinstatement based upon seniority have been held

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to be entitled to certain rights granted by those acts. See,
e.g., Kustom Electronics, Inc. v. NLRB, 590 F.2d 817, 821-22
(10th Cir. 1978); Nashville, C.& St. L. Ry. v. Railway Employees'
Department of American Federation of Labor, 93 F.2d 340, 343-44
(6th Cir. 1937). For example, the courts have found laid-off
employees' interest in negotiations affecting wages, hours, and
other conditions of employment

7/ See e.g., Peabody Coal Co. and UMWA, District 23, Local Union
9800, ARB No. 78-23-81-274, at 5-6 (March 17, 1981); Peabody Coal
Co. and UMWA, District 6, Local Union 1340, ARB. No. 81-6-83-637,
at 17-20 (March 29, 1983).
~1365
to be such that the laid-off employees are entitled to
participate in bargaining unit representation elections.
However, these cases arise under statutes whose very purpose is
the governance of labor-management relations. The cited cases
deal with rights central to that purpose--participation in the
collective bargaining process. The entirely discrete purpose of
the Mine Act, and the nature of the rights granted by section
115, prevent us from transferring this reasoning to the Mine Act.
On the bases explained above, we reverse the conclusion of
the administrative law judge that Peabody discriminated against
the named complainants in Docket Nos. KENT 82-105-D,
KENT 82-106-D, and LAKE 83-69-D, by violating their asserted
statutory rights with regard to training, and we dismiss the
complaints. Because we conclude that Peabody's policy of
bypassing laid-off individuals whose training was not current
does not contravene the Act, we affirm the judge's dismissal of
the complaint in Docket No. KENT 82-103-D without reaching the
question of whether the judge properly concluded that the UMWA
had failed to meet certain requisites for a valid class action.
Finally, the judge's order awarding damages and attorney's fees,
and assessing civil penalties is vacated. 8/
Richard V. Backley, Acting Chairman
James A. Lastowka, Commissioner
L. Clair Nelson, Commissioner

8/ Pursuant to section 113(c) of the Mine Act, 30 U.S.C.
§ 823(c), we have designated ourselves as a panel of three
members to exercise the powers of the Commission.
~1366
Distribution
Philip G. Sunderland, Esq.
Terris & Sunderland

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1121 12th St., N.W.
Washington, D.C. 20005
Cynthia L. Attwood, Esq.
Associate Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Mary Lu Jordan, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W.
Washington, D.C. 20006