Stillion v. Quarto Mining Company

Plain-English summary

Roger L. Stillion was a Quarto miner and miners' representative who accompanied MSHA inspectors during an inspection of an independent contractor's equipment at Quarto's underground coal mine. Quarto refused to pay him for the inspection time, even though the inspection followed safety complaints from Quarto employees about the contractor's equipment and work practices. The Commission held that Stillion had a statutory right to participate and be paid because Quarto's miners were exposed to the hazards and he served as their representative. The Commission affirmed the judge's finding that Quarto violated the Mine Act's anti-discrimination provision.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 813(f), 815(c)(1)
• Outcome: The judge's decision finding discrimination and awarding back pay, interest, and attorney's fees was affirmed.
• Key point: An owner-operator must compensate its miners' representative for participating in an inspection of an independent contractor's equipment when the operator's miners are exposed to the resulting hazards.

Full text (FMSHRC public release)

CCASE:
ROGER STILLION V. QUARTO MINING
DDATE:
19900522
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                             May 22, 1990

ROGER L. STILLION

     v.              Docket No. LAKE 88-91-D

QUARTO MINING COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

                DECISION

BY THE COMMISSION:

This proceeding involves a discrimination complaint filed by

Roger L. Stallion, pursuant to the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. 801 et seq. (1988) (the "Mine Act" or "Act").
The complaint alleges that Quarto Mining Co. ("Quarto") violated
section 105(c)(1) of the Mine Act, 30 U.S.C. 815(c)(1), when it denied
Stillion the opportunity to participate in an inspection of the mine
without a loss of pay.1/ Following an evidentiary hearing, Commission
Administrative

1/ 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
  within 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

Page 2

agent, or the representative of miners at the coal
or other mine of an alleged danger or safety or
health violation in a coal or other mine, or because
such miner, representative of miners, 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

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Law Judge William Fauver found that Quarto had unlawfully discriminated
against Stillion in violation of section 105(c)(1), 11 FMSHRC 523 (April
1989)(ALJ), and ordered Quarto to pay Stillion back pay, interest and
attorney's fees. 11 FMSHRC 875 (May 1989)(ALJ). The Commission granted
Quarto's petition for discretionary review. For the reasons that follow,
we affirm the judge's decision.

The events in question took place at Quarto's Powhatan No. 4 Mine,

an underground coal mine located near Clarington, Ohio. In approximately
September 1987, Quarto contracted with A&C COnstruction Co. ("A&C") to
extend a gob pile located on the top of a hill at the mine. Pursuant to
the contract, A&C was responsible for, among other things, removing and
hauling trees, brush, and dirt. In addition, A&C subcontracted some of
the work for hauling dirt. The work required A&C and its subcontractor
to use haulage trucks and A&C to use other heavy equipment, such as back
hoes and bulldozers. It also requires A&C's employees to work in and
around the same area as some of Quarto's employees.

Soon after A&C started the project, Quarto's employees complained to

Ronald Winkler, a union safety committeeman, and to other union officials,
about the manner in which A&C employees were driving their trucks. (The
union was the representative of Quarto's employees for Mine Act purposes.)
Quarto's employees were also concerned about the lack of backup alarms on
the trucks and other of A&C's mobile equipment. The Quarto employees
believed that they were endangered by A&C's work practices and equipment.
Stillion had himself observed several of the complained of conditions.

Winkle discussed the Quarto employees' safety concerns with some of
A&C employees. He also discussed them with John Smith, Quarto's foreman
for maintenance. The Quarto employees' complaints about A&C nevertheless
continued. As a result, Ted Hunt, chairman of the union safety committee,
placed a "Code-A-Phone" call to the Department of Labor's Mine Safety and
Health Administration ("MSHA") requesting that MSHA inspect "all equipment
of contractors" at the Quarto mine. Ex. Rx-1. 2/

On Friday, October 2, 1987, as a result of the Code-A-Phone

 instituted any 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).

Page 4

2/ Code-A-Phone is a toll free "hot line" to the MSHA headquarters in
Arlington, Virginia, that is used to request an inspection of a mine,
to report safety or health problems, or to report possible violations
of the mandatory safety and health standards. MSHA's policy is not to
reveal the source of a Code-A-Phone request or report.

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request, MSHA Inspector Frank Homko arrived at the mine to inspect the
contractor's equipment. 3/ Pursuant to section 103(f) of the Mine Act,
30 U.S.C. 813(f), Hunt served as the walkaround representative for
Quarto's employees during the October 2 inspection. 4/ Percy Hawkins,

3/ The Code-A-Phone inspection of A&C's equipment was conducted pursuant
to section 103(g) of the Act, which states in part:

            Whenever a representative of the miners or a
  miner in the case of a coal or other mine where
  there is no such representative has reasonable grounds
  to believe that a violation of this Act or a mandatory
  health or safety standard exists, or an imminent danger
  exists, such miner or representative shall have a right
  to obtain an immediate inspection by giving notice to
  the Secretary or his authorized representative of such
  violation or danger .... [A] special inspection shall
  be made as soon as possible to determine if such
  violation or danger exists....

30 U.S.C. 813(g).

4/ The term "walkaround" is used for convenience in reference to the
rights granted miners' representatives under section 103(f) of the
Mine Act, which 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) of this section, for the purpose of
  aiding such inspection and to participate in pre- or
  post-inspection conferences held at the mine. Where
  there is no authorized 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 or
  authorized representative of the Secretary determines
  that more than one representative from each party

Page 6

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

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Quarto safety inspector, represented Quarto on this inspection.

Inspector Homko, accompanied by Hunt and Hawkins, went to the
gob pile to inspect A&C's equipment. During the inspection, Hunt
elaborated to Homko the concerns of Quarto employees about A&C's
equipment and work practices. The inspection was cut short, however,
due to an accident unrelated to the issues in this case, and Hunt was
paid by Quarto for the time during which he participated in the inspection.
Hunt asked Stillion to act as the miners' walkaround representative when
the inspection resumed, and Stillion agreed.

On Monday, October 5, a different MSHA inspector went to the mine

to investigate the unrelated accident that had occurred on October 2.
(The Code-A-Phone inspection of the contractors' equipment was not
scheduled to resume until October 6). The inspector was asked by Hawkins
if Quarto was responsible for paying a miners' walkaround representative
who participated in an inspection of an independent contractor's work site.
The inspector called the MSHA office and subsequently advised Hawkins
that Quarto was not obligated to compensate such an employee walkaround
representative. (Hawkins later conceded, however, that when posing the
question to the inspector, he had not told the inspector of the particular
safety complaints that had been lodged by Quarto's employees.)

On October 6, MSHA Inspector Gary Gaines resumed the Code-A-Phone

inspection at the mine. Stillion accompanied Gaines during the inspection.
Gaines introduced Stillion to A&C employees as a member of the local union
and as the walkaround representative. Stillion testified that when Gaines
informed A&C employees of their right to participate in the inspection, one
of the employees responded, "we [would] just as soon have somebody from the
mine went because we don't know the laws anyway." Tr. 131.

On October 7 and 8, Gaines continued and concluded the Code-A-Phone
inspection with Stillion accompanying him. Alan Olzer, Quarto's safety
supervisor, acknowledged that, as a result of the inspection, a number of
safety violations were found.

At the conclusion of the inspection, Quarto refused to compensate

Stillion for the time that he had spent accompanying the inspector. 5/

   subsection shall not be a jurisdictional prerequisite
   to the enforcement of any provision of this [Act].

30 U.S.C. 813(f)

5/ Quarto's refusal to pay Stillion reflected a change of company policy.

Page 8

For about 16 years prior to this inspection, employee representatives of
miners who accompanied MSHA's inspectors during inspections of independent
contractors' equipment had been paid by Quarto. After the mine was
acquired by Consolidation Coal Company, the policy was changed. Although
the new policy was in effect when Hunt was paid by Quarto, mine management
was not yet aware of the new policy.

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(Subsequently, the union reimbursed Stillion for his lost wages.) When
Quarto refused to pay Stillion, he filed a complaint with the Secretary
of Labor alleging discrimination in violation of section 105(c)(1) of the
Mine Act. After an investigation by MSHA, Stillion was informed by the
Secretary of her finding that no unlawful discrimination had occurred.
Accordingly, Stillion filed a discrimination complaint on his own behalf
with the Commission under section 105(c)(3) of the Act. 30 U.S.C.
815(c)(3)

Following an evidentiary hearing, the judge issued his decision

finding a violation by Quarto of section 105(c)(1). The judge concluded
that Stillion was entitled to be paid by Quarto under section 103(f) of
the Act. 11 FMSHRC at 527. The judge reasoned that the Code-A-Phone
inspection was the type of inspection subject to the walkaround pay
requirements of section 103(f). 11 FMSHRC at 526 (citing United Mine
Workers of America v. FMSHRC, 617 F.2d 615 (D.C. Cir. 1982), cert denied,
459 U.S. 927 (1982); Interpretative Bulletin, 43 Fed. Reg. 17544-46
(1978)). The judge did not rule, however, on Quarto's contention that an
owner-operator should not be required under section 103(f) to pay one of
its employees for acting as the miners' walkaround representative during
an inspection of an independent contractor's equipment.

On review, Quarto again argues that, as an owner-operator, it was not

required to reimburse Stillion for accompanying an MSHA inspector during
an inspection of A&C's equipment. Quarto notes that section 103(f) states
that "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...." (emphasis added). Quarto notes that
the term "operator," as defined in the Mine Act, specifically includes
independent contractors. 6/ Quarto recognizes that several entities may
meet the statutory definition of "operator" at one mine site. It asserts,
however, that the term "operator" is used in the singular in section
103(f), thus indicating that one operator is liable to pay walkaround
compensation. Quarto submits that because the inspection was aimed at
A&C's equipment, the representative of miners who should suffer no loss
of pay should be an A&C employee, not an employee of Quarto. Quarto notes
that it was A&C, not Quarto, that was cited by the Secretary for safety
violations as a result of the inspection. Therefore, Quarto argues,
Stillion was not entitled to be paid for his participation during the
inspection of A&C's equipment, and Quarto did not unlawfully discriminate
against him by denying him pay.

6/ Section 3(d) of the Act states:

  "operator" means any owner, lessee, or other person

Page 10

  who operates controls, or supervises a coal or other
  mine or any independent contractor performing services
  or construction at such time.

30 U.S.C. 802(d).

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We do not agree. Given the particular circumstances of this case,
we affirm the judge's conclusion that Quarto was required to pay Stillion
for his participation in the inspection at issue.

We first note that Stillion's participation in the inspection at

issue meets the literal requirements for compensation under section 103(f).
Quarto operates, controls, and supervises the Powhatan No. 4 Mine.
30 U.S.C. 802(g). During the time in question, Stillion was a miners'
representative within the purview of section 103(f). 30 U.S.C. 813(f).
Stillion accompanied Inspection Gaines during an inspection occurring at
Quarto's mine which inspection was of the type triggering the right to
walkaround compensation under section 103(f).

Furthermore, that Stillion's participation in the inspection

furthered the purpose of the walkaround pay provision is clear. "The
walkaround pay provision and the participation right are both aimed
at the protection of the health and safety of miners - the single
overriding purpose of the legislation." Magma Copper Co. v. Secretary
of Labor, 645 F.2d 694, 698 (9th Cir. 1981). As the Senate Committee
that by-and-large drafted the Mine Act stated, paid participation in
inspections by the miners' representative "will enable miners to
understand the safety and health requirements of the Act and will
enhance mine safety and health awareness." Senate Committee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative History
of the Federal Mine Safety and Health Act of 1977 at 616-17 (1978). In
addition, Congress recognized that paid participation by representatives
of miners would, because of the representatives' particular knowledge of
the conditions at the mine, make the inspection "much more thorough."
Id. at 1054. Thus, the right of paid participation by the miners'
representative provides MSHA's inspectors needed familiarity with the
specific working conditions in a particular mine.

Stillion's participation in the inspection of A&C's equipment met

these goals. As the judge found, the inspection of A&C's equipment on
October 6, 7 and 8 arose out of the concern of Quarto's employees for their
own safety. 11 FMSHRC at 525. Quarto's miners, who complained about the
safety hazards associated with the use and maintenance of A&C's equipment,
believed that they themselves were endangered by the use of the equipment.
Their complaints led to the request for an inspection. Stillion, who had
been a safety committeeman for five years, was familiar with the mine and
had personally observed the suspect equipment being operated in a manner
that he considered unsafe for Quarto's miners. Under these circumstances,
Stillion had a right to participate in the inspection and a right to
compensation from Quarto.

Page 12

Quarto's argument that it should not be held liable for compensating

its employee who participated in an inspection that resulted in citations
being issued to A&C is inapposite in these circumstances. Hence, Quarto's
own employees were exposed to the hazards created by A&C's equipment.
Although A&C was appropriately cited for the violations, since it was
in the best position to abate the hazards complained of, that does not
defeat the walkaround rights of Stillion, who served as the sole miners'
representative on the inspection and who represented Quarto miners exposed
to the hazards created by A&C's

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equipment.

Quarto warns that this conclusion is at odds with the purpose of

the walkaround provision. It suggests that to uphold a right to
compensation here means that an employee of an independent contractor
could request an inspection of any part of an owner-operator's mine and
be paid for participating in any resulting inspection. Quarto suggests,
as an example, that a truck driver employed by A&C could request,
participate in and be paid for taking part in an inspection of Quarto's
preparation plant. See Quarto Br. 12-13. That is not, however, the
case we are deciding today. Rather, we are deciding only that, where
an owner-operator's employees are endangered by the activities of an
independent contractor at the owner-operator's mine, a representative
of the owner operator's employees who serves as the sole miners'
representative during an inspection of the contractor's operation is
entitled to compensation pursuant to Section 103(f). Of course, any
interpretation of section 103(f) that is inconsistent with its provisions
and does not effectuate its purpose would not be upheld. See Magma Copper
Co., FMSHRC 1948, 1951-52 (December 1979); aff'd Magma Copper Co. v.
Secretary of Labor, 645 F.2d 694 (9th Cir. 1981), cert. denied, 454 U.S.
940 (1981).

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For the reasons explained above, we conclude that in the
circumstances of the present case Stillion had a right to walkaround
pay under section 103(f). 7/

Accordingly, for the reasons stated above, we affirm the judge's

decision.

7/ Quarto appears to suggest that if the Commission concludes that it
was required to compensate Stillion, it should nonetheless not be held
liable for a violation of section 105(c) because it acted in good faith.
Quarto Br. 19. The basis for Quarto's "good faith belief" appears to
be the statement by the MSHA inspector that payment was not required.
An operator's reliance on an incorrect legal opinion or theory does not
defeat effectuation of a miner's statutory rights. Cf. Emery Mining
Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir, 1984).