Peabody Coal Company

Plain-English summary

Peabody Coal operated the Martwick underground mine, where MSHA used multiple inspection teams during two quarterly inspection events. Peabody paid one miners' representative for accompanying inspectors but did not pay several other representatives who accompanied separate inspection groups. The Commission affirmed the judge's decision that the unpaid representatives were entitled to compensation because the inspection was divided into separate, nonduplicative parties inspecting different areas or performing distinct functions. The ruling treated the time from assembly of the inspection teams through completion of the face-area inspections as compensable under section 103(f) of the Mine Act.

Decision snapshot

• Cited standards: 30 U.S.C. § 813(f), 30 U.S.C. § 813(a)
• Outcome: The Commission affirmed the finding that Peabody violated section 103(f) by not compensating the additional miners' representatives.
• Key point: Multiple inspection parties can create a right to paid walkaround representatives when they simultaneously inspect separate parts of a mine.

Full text (FMSHRC public release)

May 15, 1992
PEABODY COAL COMPANY

v. Docket No. KENT 91-340-R
KENT 91-341-R
SECRETARY OF LABOR, KENT 91-342-R
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY THE COMMISSION:
This contest proceeding is before the Commission by way of a petition
for review filed by Peabody Coal Co., and involves alleged violations of
section 103(f) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 813(f), (the Mine Act).(Footnote 1) In a decision issued August 21, 1991
Commission

1 Section 103(f), 30 U.S.C. § 813(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 the provisions of
subsection (a), for the purpose of aiding such
inspection and to participate in pre- or postinspection
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 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 the
subsection shall not be a jurisdictional prerequisite
to the enforcement of any provision of this Act.
30 U.S.C. § 813(f).

Administrative Law Judge Gary Melick dismissed Peabody's contest of three
citations issued by the Secretary for the operator's refusal to compensate
certain miners' representatives for time spent accompanying several MSHA
inspectors during a regular quarterly inspection. 13 FMSHRC 1302. For the
reasons that follow, we affirm the judge's decision.
I.
Factual and Procedural Background(Footnote 2)
Peabody owns and operates the Martwick Mine, an underground coal mine in
Muhlenburg County, Kentucky. During March 1991, MSHA conducted a
quarterly
inspection of the mine pursuant to section 103(a) of the Act, 30 U.S.C. §
813(a). Two segments of that regular inspection gave rise to the citations on
review when MSHA conducted what are known as "blitz" inspections of the mine.
On March 7, MSHA sent several inspectors to the No. 4 Unit and on March 19,
MSHA sent several inspectors to the No. 1 Unit of the mine. 13 FMSHRC at
1303; S. Br. 11.
With respect to the March 7, 1991, inspection, A.J. Parks (MSHA
supervisor), William Branson (electrical inspector), Terry Cullen (roof
control specialist), Darold Gamblin (Martwick's regular inspector), and Sam
Martin (inspector) arrived at the mine at 7:10 a.m. Supervisor Parks assigned
each MSHA inspector his duties for the day, and they proceeded to examine the
mine's records. 13 FMSHRC at 1303; Tr. 14-15.
The inspectors entered the mine at approximately 8:30 a.m., accompanied
by: Kentucky state inspector James Hawkins; Peabody representatives Steve
Little and Bob Epley; and miners' representatives Cecil Phillips, Sam Sookey,
Terry Bowman, William Johnson, and Artemaus Birchwell. Cecil Phillips was the
usually designated "walkaround representative" during regular inspections
while the other four miners' representatives -- Sookey, Bowman, Johnson and
Birchwell -- accompanied the MSHA inspectors at the request of the Local
Union. 13 FMSHRC at 1303-1304; Tr. 15, 18.
At approximately 9:00 a.m., the inspection party reached the Four East
Panel of the mine and split up into five groups, each of which included a
walkaround representative. Once the groups were formed, they proceeded as
follows: Group A travelled directly to the face areas of the No. 4 Unit by a
mantrip through the track entry. Upon arriving, this group conducted an

2 This case was submitted for decision below on the basis of two joint
exhibits and a set of stipulations agreed to by the parties at the hearing and

then read into the record. No testimony was taken, nor were the stipulations
reduced to writing. See Hearing Transcript, June 13, 1991, hereafter, "Tr."

electrical inspection of the unit. Group B travelled to the face areas by a
separate mantrip through the track entry. They inspected the roof and faces.
Group C did a walk-through inspection of the 4,200 foot return entry and
arrived at the face areas of the unit at approximately 11:30 a.m. Group D did
a walk-through inspection of the 4,200 foot belt entry and arrived at the face
areas at about 11:30 a.m. Group E did a walk-through inspection of the 4200
foot intake entry and also arrived at the face areas at approximately 11:30
a.m., where they took rock dust samples in seven different locations.
13 FMSHRC at 1303-1304; Tr. 15-16.
From 11:30 a.m. until 12:00 noon, "the various inspectors all identified
above assisted in completing the inspection of the unit." Tr. 16.
Thereafter, all the participants rendezvoused at the end of the track entry
and left the mine together, arriving at the surface at about 12:45 p.m. From
12:45 p.m. until 1:45 p.m., the inspectors wrote those citations that had not
been issued underground and delivered them to the Peabody representatives.
Inspector Branson discussed his own findings with Peabody and left the mine at
1:45 p.m. At that point the remaining inspectors held a close-out conference
with Peabody representatives and all five miners' representatives. The
conference adjourned at 2:00 p.m., and Cullen and Martin left the mine. Parks
and Gamblin left at 2:30 p.m. 13 FMSHRC at 1305; Tr. 16-17.
On March 19, 1991, a similar scenario took place when MSHA
representatives Parks, Gamblin, and Branson were joined by Ted Smith and Mike
Whitfield, also of MSHA. The group arrived at the mine at 7:15 a.m. to
inspect the No. 1 Unit. Once again, in addition to the regular walkaround
representative, Phillips, the Local Union requested that miners'
representatives Sookey, Bowman and Birchwell be added to the inspection party.
Peabody's representatives were again Little and Epley. 13 FMSHRC at 1304;
Tr. 18-19. The inspection party entered the mine together at 8:30 a.m.,
arrived at the First Northwest Main at 8:45 a.m., and split up into four
groups, each of which included a walkaround representative.
Group A travelled directly to the face areas of the No. 1 Unit through
the track entry where they commenced an electrical inspection at about 9:00
a.m. Group B did a walk-through inspection of the 3,300 foot return entry
arriving at the face areas of the unit at approximately 9:30 a.m. Group C
walked the 3,300 foot belt entry also arriving at approximately 9:30 a.m.
Group D walked the 3,300 foot intake entry and arrived at the face areas at
approximately 9:35 a.m. 3 FMSHRC at 1304-1305. According to the
stipulations, "various inspectors identified above conducted an inspection of
the unit which lasted until approximately 12:45 p.m." Tr. 20. During that
period a ventilation problem arose, and miners' representatives Phillips and
Sookey were assigned to correct it. Sookey devoted 30 to 40 minutes to that
task. 13 FMSHRC at 1305.

The entire group again rendezvoused at the end of the track entry,
travelled out of the mine, and arrived on the surface at 1:10 p.m. As he had
done on the previous occasion, Inspector Branson immediately discussed his
findings with the Peabody representatives and left the mine at 1:15 p.m.
After writing their citations, the remaining MSHA inspectors held a close-out
conference from 1:30 p.m. until 1:45 p.m., with Peabody representatives and

the four miners' representatives in attendance. Smith and Whitfield left the
mine at 1:45 p.m., and Parks and Gamblin, at 3:00 p.m. 13 FMSHRC at 1305,
Tr. 21.
Following the March 7, 1991, inspection, Peabody paid miners'
representative Phillips for the time spent accompanying the MSHA inspectors
but did not pay miners' representatives Johnson, Birchwell, Bowman or Sookey.
Following the March 19, 1991, inspection, Peabody again paid Phillips for the
time spent accompanying the MSHA inspectors but did not pay Birchwell,
Bowman
or Sookey. 13 FMSHRC 1303, 1307; Tr. 21-22. On April 15, 1991, MSHA issued
a
citation alleging a violation of section 103(f) for Peabody's failure to
compensate miners' representative Sookey "for time spent in the capacity of
Miner Representative while traveling with an authorized representative of
[the] Secretary" on March 7, 1991, and March 19, 1991. 13 FMSHRC at 1307.
Similar citations were issued on April 16, 1991, with regard to Peabody's
failure to compensate miners' representatives Johnson and Birchwell, and on
April 17, 1991, for failure to compensate miners' representative Bowman. Id.
After summarizing the facts, the judge concluded: "It is not disputed
that during the course of both the underground inspections, each team operated
separate and apart, with no overlapping responsibilities or duplication of
inspection efforts." 13 FMSHRC at 1305. The judge then cited Magma Copper
Company v. Secretary and FMSHRC, 645 F.2d 694 (9th Cir. 1981), for the
proposition that, whenever an inspection is conducted by more than one MSHA
inspector and each acts separately and inspects a different part of the mine,
a representative of the miners, who is also an employee of the operator, is
entitled to accompany each inspector without loss of pay. Id.
Applying Magma to the instant case the judge found that although each
inspection at the Martwick mine took place within a single mine unit, "each
inspector was performing a separate and distinct inspection function." He
further found that, "because of stoppings between the entries travelled by the
inspection teams, most of the teams were also separated physically."
13 FMSHRC at 1306. Accordingly, the judge held that the circumstances in the
Martwick mine fell "within the ambit of the Magma decision," and that Peabody
had violated section 103(f) by not compensating all of the miners'
representatives who accompanied the MSHA inspectors during the two
inspections. 13 FMSHRC at 1305-1306.
II.

Disposition of Issues
Peabody argues on review that this case presents a matter of first
impression: the scope and construction of the Magma decision, supra, in the
context of "blitz" inspections conducted at underground coal mines. The
operator asserts that the circumstances in the Martwick mine are
distinguishable from those in Magma. In the Magma case, Peabody argues, two
inspectors were indeed inspecting separate areas of a mine. Their inspections
of a huge milling complex took them as many as six or seven miles apart and
they did not see each other until they returned to the mine office to complete
their paperwork. Under those circumstances, Peabody agrees the Secretary was
justified in requiring a paid walkaround representative for each inspector.

Peabody asserts, in contrast, that Unit 1 and Unit 4 are each a single
area or a single part of the mine. Therefore, under Magma, the MSHA
contingents deployed on March 7, 1991, and March 19, 1991, were each a single
inspection party entitled to only one paid walkaround representative during
the course of the inspection. The operator argues that under the judge's
interpretation of Magma, "a mine operator would be required to pay walkaround
pay on virtually any occasion on which multiple inspectors inspect an
underground coal mine." Pet. 5.
The Secretary rejoins that the judge correctly applied Magma here, given
that the MSHA inspectors at the Martwick Mine on March 7, 1991, and March 19,
1991, were inspecting "different parts of the mine and perform[ing] separate
and distinct inspection functions." Br. 9. She further contends that
utilizing multiple inspectors and multiple miners' representatives reduces the
amount of time needed to complete inspections at larger mines. Therefore, the
Secretary contends, the total outlay of walkaround wages is approximately the
same as it would be if only one inspector and one miners' representative were
assigned to the same areas.
The Secretary argues that Peabody's attempt to distinguish the facts
presented in Magma from the facts presented here, "exalts form over
substance." Br. 11. The Secretary first points out that Peabody stipulated
that the separate inspection groups performed separate functions (Tr. 27) and
refers to joint exhibits showing the separate routes travelled by the
respective groups through Units 1 and 4 of the mine. The Secretary contends
that, given the "unique character of each entry, the individual areas of
expertise of the different inspectors, and the division of the general
inspection party along different paths to perform separate and distinct
inspection functions in the mine," including a paid walkaround representative
in each group was justified under the circumstances. Br. 14. The Secretary
concedes that the areas covered in the Martwick Mine "may not have been as
physically separate as those in Magma," but asserts nevertheless that "the
same basic principles established in Magma are applicable here." Br. 14-15.
In Magma, the principal case dealing with compensation for multiple
walkaround representatives, two MSHA inspectors arrived at the mine to inspect

separate areas of the operator's extensive milling complex. Magma agreed to
the inspector's requests that each be accompanied by a walkaround
representative, but insisted that it would compensate only one of the
representatives for time spent accompanying the inspector. Only one
walkaround representative participated in the inspection, but Magma was cited
for refusing to pay a miners' representative to accompany the second
inspector. In deciding the matter on review, the Commission first reviewed
the legislative purpose of section 103(f) in light of MSHA's customary
inspection practices:
The language of section 103(f) conveys the impression
that Congress expected that one inspection party will
visit all parts of the mine and one paid miners'
representative will therefore fully participate in the
inspection. The walkaround pay limitation appears
designed to minimize the operator's economic burden by

requiring him to pay only one miner who is in that one
inspection party. However, several inspectors are
often sent into large mines to expedite inspection of
the entire mine. Providing walkaround pay only to one
miners' representative when several inspection parties
are inspecting the entire mine would make the right to
walkaround pay dependent on the number of inspectors
sent to the mine.
1 FMSHRC at 1951. Accordingly, the Commission held that "when the inspection
is divided into two or more parties to simultaneously inspect different parts
of a mine ... one miners' representative in each inspection party must be paid
for time spent accompanying [the] inspector ..." 1 FMSHRC 1948.
The United States Court of Appeals for the Ninth Circuit affirmed the
Commission's decision, holding that "where an inspection of a mine is
conducted by more than one inspector, each of whom acts separately and
inspects a different part of the mine, one representative of miners may
accompany each inspector without loss of pay if he is an employee of the mine
operator." 645 F.2d at 695. The Court also cited an Interpretive Bulletin
for section 103(f), which states that when multiple inspectors inspect
different areas of a mine, each is entitled to a walkaround representative and
each representative is entitled to participate without loss of pay. 43 FR
17546, 17549 (April 25, 1978).
The citations in this case address the compensability of time spent by
miners' representatives in the March 7 and March 19, 1991, inspections from
the time the inspection teams were assembled up to the time when the teams
completed their inspections of the face areas of the two units.(Footnote 3)
The citation issued with respect to Peabody's failure to compensate
miners' representative Sookey, which mirrors the citations issued with respect
to the other uncompensated representatives, states:

A violation of 103(f) of the 1977 Act has occurred
because Sam Sookey has evidence (pay record) that he
suffered loss of pay on March 7 and 19 for time spent
in the capacity of Miner Representative while
traveling with an authorized representative of
Secretary of Labor, (MSHA), during inspection.
13 FMSHRC at 1307.
Peabody challenges the citations on the basis that Units 1 and 4 of the
Martwick Mine are each an indivisible "area of the mine" analogous to each
area of the milling complex for which a paid walkaround was required in the

3 On review, the parties also limit their discussion to the inspections
themselves. We therefore leave to another case the extent to which a mine
operator may be liable for compensation to miners' representatives who
participate in post-inspection conferences following multiple-party
inspections.

Magma decision. Accordingly, the operator argues, it was liable for compensation
to only one walkaround representative for all of Unit 4 on March 7, and
to only one such representative for all of Unit 1 on March 19, 1991. We
disagree.
Insofar as the inspections of the respective entries in the two units
were concerned, the inspectors and their miner escorts were as physically
separated from each other as were the inspection teams at Magma's milling
complex. Therefore, that portion of the inspections falls within the ambit of
Magma.
As to the inspection activity at the face areas of the two units
following the walk-through inspections of the entries, the record evidence is
spare, essentially limited to the following stipulations: "the various
inspectors ... assisted in completing the inspection of the [No. 4] unit" (Tr.
16), and "various inspectors ... conducted an inspection of the [No. 1]
unit..." (Tr. 20). Furthermore, on the basis of an admission by Peabody that
"each inspector performed a different and specific function during the course
of these inspections," (Tr. 20), the judge concluded that "[i]t is not
disputed that during the course of both of the underground inspections each
team operated separate and apart with no overlapping responsibilities or
duplication of inspection efforts." 13 FMSHRC at 1305. Moreover, Peabody did
not challenge the judge's conclusion on this issue in its petition for review.
We therefore conclude, on the basis of the record in this case, that the
activity of the various inspectors at the face areas was separate and
nonduplicative, and we deem the face inspection activity also to fall within
the parameters of Magma.
In summary, we conclude from the record before us that the walkaround
activity specified in the citations, i.e., "travelling with an authorized
representative of [the] Secretary of Labor during inspection," 13 FMSHRC at

1307, was compensable time spent by each of the miners representatives who
participated from the point at which the inspection teams were assembled until
they completed their inspections of the face areas in Units No. 1 and No. 4.

Accordingly, as explained above, we affirm the judge's decision that
Peabody violated section 103(f) of the Mine Act.
Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
Arlene Holen, Commissioner
L. Clair Nelson, Commissioner