Peabody Coal Company (ALJ decision, July 8, 1985)

Plain-English summary

MSHA cited Peabody Coal Company after four night shift miners at its surface mine attended annual refresher training during the day shift. The rule required training during normal working hours, and Peabody argued that moving employees between shifts was a common practice at the mine. On stipulated facts, the judge found that only a few miners had changed shifts for reasons other than training before the cited date, too few to establish a common practice. He upheld the citation and assessed a $20 civil penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 48.30(a).
• Outcome: Citation affirmed; $20 penalty assessed.
• Key point: Occasional shift changes did not establish a common practice that permitted scheduling these night shift miners' training on the day shift.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. PEABODY COAL
DDATE:
19850708
TTEXT:
~1039
Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No: KENT 85-67
PETITIONER
A.O. No: 15-03987-03507

v. River Queen Surface Mine

PEABODY COAL COMPANY,
RESPONDENT

SUMMARY DECISION AND ORDER

Before: Judge Maurer

STATEMENT OF THE CASE

This case concerns the petition for civil penalty filed by the Secretary of Labor pursuant to 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801, et seq., the "Act", for a violation of the regulatory standard at 30 C.F.R. 48.30. The case is before me on stipulated facts for a ruling on Cross Motions for Summary Decision, filed pursuant to 29 C.F.R. 2700.64.

Citation No. 2337820 was issued on August 24, 1984 by MSHA Inspector Hubert Sparks pursuant to 104(a) of the Act, and the "condition or practice" cited is described as follows:

A violation of this section exists in that employees regularly working on the third shift (12 midnight to 8 A.M.) were required to receive annual refresher training on the first shift (8 A.M. to 4 P.M.) on March 30, 1984. The River Queen Mine does not rotate or cross-shift employees as a normal practice.

APPLICABLE REGULATORY PROVISIONS

The cited regulatory standard, 30 C.F.R. 48.30(a) reads as follows: "Training shall be conducted during normal working hours; miners attending such training shall receive the rate of pay as provided in 48.22(d) (Definition of normal working hours) of this Subpart B." ~1040
Section 48.22(d) referred to above provides as follows:

"Normal working hours" means a period of time during which a miner is otherwise scheduled to work. This definition does not preclude scheduling training classes on the sixth or seventh working day if such a work schedule has been established for a sufficient period of time to be accepted as the operator's common practice. Miners shall be paid at a rate of pay which shall correspond to the rate of pay they would have received had they been performing their normal work tasks.

STIPULATIONS

1. Peabody Coal Company owns and operates the River Queen surface coal mine located in Muhlenberg County, Kentucky.

2. River Queen surface mine is subject to the Federal Mine Safety and Health Act of 1977.

3. The Federal Mine Safety and Health Review Commission has jurisdiction over this proceeding.

4. River Queen surface mine operates daily, the times for said shifts being: 1st shift--8:00 A.M. to 4:00 P.M.; 2nd shift--4:00 P.M. to 12:00 P.M.; 3rd shift--12:00 A.M. to 8:00 A.M.

5. In August, 1984, the total numbers of miners working each shift were as follows: 1st shift--169; 2nd shift--124; 3rd shift--66; stagger--4.

6. Management at River Queen surface mine does cross shift employees; cross shifting is the practice of changing a previously scheduled work shift during the week.

7. From January 1, 1984 to August 24, 1984, the following employees were cross shifted for reasons other than training:

Name Normal Shift Shift Worked Date

Wm. Bartlett 2nd 1st 03/12/84 Jerry Bean 2nd 3rd 01/14/84 Bill Whitaker 2nd 1st 08/16-21/84 Mike Thorpe 2nd 1st 08/13-19/84 Rick Allen 3rd 2nd 01/24/84 Bill Drake 2nd 3rd 08/84 Bill Johnson 2nd 1st 01/26/84
~1041
Harold Frost 3rd 1st 02/23-3/5/84
Lee Stone 3rd 1st All 1984
Welby Sellers 2nd 1st All 1984
D. Stevens 3rd 1st 08/19/84
B. Fleming 1st 3rd 08/19/84
B. Larkins 3rd 2nd 05/20/84
G. Baggett 3rd 2nd 05/06/84
L. Browning 2nd 1st 08/19/84
D. Stevens 3rd 2nd 07/01/84
G. Stewart 1st 3rd 06/17/84
W. Munday 2nd 1st 05/27/84

8. On August 24, 1984, MSHA Inspector Hubert Sparks issued a
   104(a) citation to Peabody Coal Company alleging a violation of 30 C.F.R. Section 48.30 at River Queen surface mine in that employees working on the third shift were required to receive annual refresher training on first shift on March 30, 1984.

   9. In fact, four (4) third shift employees were required to
      receive annual refresher training on first shift on March 30, 1984.

   10. Payment of the penalty assessed by the Mine Safety and
       Health Administration for the citation involved in this case would not affect the ability of Peabody Coal Company to remain in business.

                           ISSUE
       

   The question presented is whether or not Peabody Coal
   Company had a "common practice" of cross-shifting at the River Queen Surface Mine on March 30, 1984, the date of the alleged violation.

                  DISCUSSION AND FINDINGS
   

   The facts in this case are not in dispute. Four third shift
   employees were admittedly cross-shifted for purposes of obtaining required annual refresher training on the first shift on March 30, 1984. Peabody maintains that the operator has the right to cross-shift miners for the purpose of obtaining this required training if cross-shifting is a common practice at the mine. There is some support for this position. See, e.g., Consolidation Coal Company, 4 FMSHRC 578 (1982) (ALJ). However, the threshold question is whether such a common practice existed at this mine in March 1984. "Common practice" to the undersigned administrative law judge means that which is generally done, the prevalent practice.
   ~1042
   While it is acknowledged that Peabody did cross-shift workers
   before March 1984 for purposes other than training, the issue is whether this was of such frequent and ordinary occurrence so as to rise to the status of a "common practice". I conclude that it did not. In the three months prior to March 30, 1984, three second shift employees out of 124 worked one day each on a different shift and two third shift employees out of 66 worked a different shift during that period--one man for one day and the other for approximately two weeks. No first shift employee of which there were 169 was cross-shifted during this time period. In making this finding, I am cognizant of the fact that two workers were stipulated to have been cross-shifted for the entire period of time covered by the stipulation, i.e., January 1 to August 24, 1984, but I find that this amounts to a de facto change of shift rather than cross-shifting. Accordingly, I find as a fact that of 363 miners working at this mine, only five were cross-shifted during the three-month period prior to March 30, 1984. Therefore, I find that Peabody Coal Company did not have a "common practice" of cross-shifting miners at the River Queen Surface Mine for reasons other than training on, or during the three months prior to, March 30, 1984.

   In view of the foregoing findings, I conclude that the
   petitioner here has established a violation of 30 C.F.R. 48.30(a) inasmuch as the required training was not conducted during normal working hours, and the citation is therefore AFFIRMED.

   Further, considering the criteria in section 110(i) of the
   Act, I conclude that a penalty of $20, as proposed, is appropriate.

                           ORDER
   

   Respondent IS ORDERED to pay the $20 civil penalty
   assessment within thirty (30) days of the date of this decision.

                         Roy J. Maurer
                         Administrative Law Judge