Rochester and Pittsburgh Coal Corporation

Plain-English summary

Rochester and Pittsburgh Coal reduced Leonard Edwards's pay after he exercised his Part 90 option to transfer to less dusty work. The Commission held that the protected regular rate is the rate the miner was actually and regularly receiving immediately before exercising the option, even if the operator believes the earlier rate resulted from a mistake. It rejected the operator's arguments that Edwards acted in bad faith or that the pay rate could be corrected after the option was exercised. The Commission affirmed the judge's finding of a violation of 30 C.F.R. § 90.103(a) and the $78 civil penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 90.103(a)
• Outcome: The ALJ decision finding a pay-rate violation and imposing a $78 penalty was affirmed.
• Key point: Part 90 pay protection uses the miner's actual regular pay immediately before exercising the option, not a rate the operator later says should have applied.

Full text (FMSHRC public release)

CCASE:
MSHA V. ROCHESTER AND PITTSBURGH COAL
DDATE:
19900221
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                            February 21, 1990

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

   v.          Docket No. PENN 88-194-R

ROCHESTER AND PITTSBURGH
COAL CORPORATION

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

             DECISION

BY THE COMMISSION:

At issue in this contest proceeding arising under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982)("Mine Act"),
is whether Rochester and Pittsburgh Coal Corporation ("R&P") violated
30 C.F.R. $ 90.103(a) by failing to compensate a Part 90 miner at not
less than the regular rate of pay received by that miner immediately
before his exercise of the Part 90 option. 1/ Commission Administrative
Law Judge William Fauver held that R&P violated the standard and, based
on the parties' stipulation that the Secretary's petition for civil
penalty be adjudicated in the contest proceeding, the judge imposed a
penalty of $78.00. 10 FMSHRC 1313 (September 1988)(ALJ). For the
reasons that follow, we affirm Judge Fauver's decision.

1/ Section 90.103(a) essentially restates section 203(b)(3) of the
Mine Act, 30 U.S.C. $ 843(b)(3), and provides:

            The operator shall compensate each Part 90 miner
  at not less than the regular rate of pay received by

Page 2

that miner immediately before exercising the option
under $ 90.3 (Part 90 option; notice of eligibility;
exercise of option).

Page 3

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At the time of the events at issue, Leonard Edwards had been
employed at the Greenwich Colliery No. 2 South Mine, an underground coal
mine operated by R&P, for over 15 years. In August 1979, while working
as a longwall shear operator, Edwards was informed by the Department of
Labor's Mine Safety and Health Administration ("MSHA") that a chest X-ray
taken on January 23, 1979, indicated that he had "enough pneumoconiosis"
to render him eligible under the Mine Act for transfer to a less dusty area
of the mine. Exh. G-1. 2/ Edwards testified that he showed the letter to
his section foreman, who requested a copy for R&P's files. Later in 1979,
he began work on the cross-belt at the same rate of pay he had received as
a longwall shear operator. He worked at this latter task until April 1985,
when, as the result of a work force reduction and realignment, he was
scheduled to be transferred to the North Mine as a shear operator. Not
wishing to transfer, Edwards was allowed to remain at the No. 2 South Mine,
and was reclassified as a general laborer with a reduction in rate of pay
from $14.41 to $13.31 per hour. He then gave a copy of the MSHA letter of
August 1979 to John Bobenage, mine superintendent, who authorized that his
rate of pay be restored to $14.41 per hour, effective April 15, 1985.
Exh. OX-2, Tr. 12.

About March 1, 1988, when possible further employee realignment

was rumored, Edwards sent to MSHA his "Exercise of Option to Transfer"
form. 3/ The form bears Edwards' signature and a partly obliterated date
of 4-12-85. Edwards testified that he had signed and dated the

2/ Section 90.3(a), which essentially restates section 203(b)(2) of the
Mine Act, 30 U.S.C. $ 843(b)(2), states:

  Any miner employed at an underground coal mine or
  at a surface work area of an underground coal mine
  who, in the judgment of the Secretary of Health and
  Human Services, has evidence of the development of
  pneumoconiosis based on a chest X-ray, read and
  classified in the manner prescribed by the Secretary
  of Health and Human Services, or based on other medical
  examinations shall be afforded the option to work in
  an area of a mine where the average concentration of
  respirable dust@in the mine atmosphere during each
  shift to which that miner is exposed is continuously
  maintained at or below 1.0 milligrams per cubic meter
  of air. Each of these miners shall be notified in
  writing of eligibility to exercise the option.

3/ Section 90.3(d) states in relevant part:

Page 4

The option to work in a low dust area of the mine may
be exercised for the first time by any [eligible] miner
... by signing and dating the Exercise of Option Form
and mailing the form to the Chief, Division of Health,
Coal Mine Safety and Health....

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form in April 1985 but had decided not to send it to MSHA. He subsequently
scratched over that date when he actually mailed the form in March 1988.
He testified that on Monday, March 14, 1988, he informed Bill Garay, an
R&P foreman, that he was invoking his Part 90 rights. On that same date,
R&P also received MSHA's notification, dated March 10, 1988, of Edwards'
exercise of option. R&P informed MSHA by letter of March 18 that Edwards,
as a Part 90 miner, would be assigned "outby the face area" and would be
sampled for respirable dust as required. Exh. OX-4, G-6. Edwards'
regular rate of pay was reduced from $15.81 to $14.75 per hour effective
March 16, 1988. Exh. OX-3.

Acting on a complaint by Edwards, MSHA issued a section 104(a)

citation to R&P on April 21, 1988, alleging a violation of 30 C.F.R.
$ 90.103(a) for reducing the regular rate of pay received by Edwards
immediately before exercise of his Part 90 option. Exh. G-4. R&P
contested the citation, and a hearing was held before Judge Fauver on
June 7, 1988.

 John Bobenage, superintendent of the No. 2 Mine during 1985,

testified that his restoration of Edwards' higher rate of pay in April
1985 was based on Edwards' assertion, confirmed by his supervisor, that
he was a Part 90 miner. Tr. 46-52. Donald Marino, manager of labor
relations for R&P, testified that he was not aware until early March 1988
(but prior to receiving MSHA's notice of Edwards' Part 90 status) that
Edwards was not a Part 90 miner. Marino further stated that Edwards had
been mistakenly overpaid at a higher rate since April 1985, based on R&P's
"false assumptions" as to Edwards' Part 90 status. Tr. 56.74.

Michael Kaschak, responsible for R&P's respirable dust sampling of

Part 90 miners at the Greenwich mines, stated that he had been aware since
1985 that Edwards was not a Part 90 miner. He testified that he had not
discussed the matter with R&P officials until March 6 and 7, 1988, when
he informed William Garay, mine foreman, and Richard Endler, mine
superintendent since July 1987, that Edwards was not a Part 90 miner.
Tr. 92. Garay testified that he had questioned Edwards' rate of pay in
January 1987. Tr. 109. Endler testified that, following discussions
with R&P management officials, he concluded, on March 10 or 11, 1988, that,
since Edwards was not a Part 90 miner, his rate of pay for the preceding
three years was a mistake and should be reduced. He signed the pay rate
change authorization form on March 16, 1988. Tr. 115-17, Exh. OX-3.

In his decision, Judge Fauver found that in April 1985, when Edwards

produced a copy of the 1979 MSHA letter, R&P restored his pay cut since
"[b]oth Edwards and mine management apparently assumed that Edwards was a
Part 90 miner in April 1985." 10 FMSHRC at 1314. He further determined

Page 6

that Edwards' pay-rate cut on March 15, 1988, occurred after he had
exercised his Part 90 transfer option and after R&P had been notified by
both Edwards and MSHA of that exercise of option. Id. Citing Matala v.
Consolidation Coal Co., 647 F.2d 427, 430 (4th Cir. 1981), and Mullins v.
Andrus, 664 F.2d 297, 305 310 (D.C. Cir. 1980), the judge held that the
"regular rate of pay, as used in Part 90, is the rate that the miner was
actually and regularly being

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paid immediately before the exercise of the Part 90 option, and not the
rate to which he had a right, or "should have been" receiving. 10 FMSHRC
at 1316. Accordingly, he concluded that when a miner becomes a Part 90
miner, the operator may not go back several years from that date to change
the miner's rate of pay to one the operator decides the miner "should have
been" receiving immediately before he became a Part 90 miner. To permit
such retroactive changes, the judge concluded, "would have a chilling
effect on the exercise of Part 90 rights." 10 FMSHRC at 1316. In the
instant case, since R&P received MSHA's notice of Edwards' Part 90 status
on March 14, 1988, the judge determined that R&P violated section 90.103(a)
by reducing his regular rate of pay on March 15, 1988. 10 FMSHRC at 1317.

 On review, R&P argues that by falsely claiming Part 90 status in

April 1985, Edwards attempted to abuse the intent of the Mine Act and,
under a "bad faith" exception recognized by the court in Mullins, supra, is
not entitled to the regular rate of pay received by him immediately prior
to transfer. Alternatively, lacking a showing of bad faith, R&P argues
that it is entitled to correct Edwards' regular rate of pay because it
resulted from a mistake. 4/ We disagree.

The Secretary contends that the record fails to show bad faith on

Edwards' part. The Secretary asserts that, absent such a showing, the
miner is entitled, upon transfer, to the same rate of pay as he actually
and regularly received prior to transfer. She further asserts that her
interpretation is consistent with section 203(b)(3) of the Act, the
underlying purpose of Part 90, and the interpretation of those provisions
by the courts. Sec's br. at pp. 7, 8.

The term "regular rate of pay," as used in section 203(b)(3) of

the Mine Act and in section 90.103(a) (n.1 supra), has been clearly defined
by the District of Columbia and Fourth Circuit Courts of Appeals. Mullins
defines that term as "the rate at which the transferring miner was actually
and regularly compensated when the transfer occurred, irrespective of job
classification." 664 F.2d 297. See also, Matala, supra, 647 F.2d at 429.

R&P first contends that these decisions do not control because
Edwards abused the intent of the Act in falsely claiming Part 90 status.
R&P notes that Mullins recognizes an exception to the Mine Act's pay rate
maintenance protection in cases of bad faith, "when a miner attempts to
abuse the intent of the Act...." 664 F.2d at 310 n. 113.

The express intent of the relevant sections of the Mine Act and the

Part 90 regulations is to afford the option of transfer to a less dusty
area of the mine, at no less than the regular rate of pay received
immediately before the transfer, to any miner who shows evidence of the

Page 8

4/ R&P also argues that Edwards had subsequent X-rays in 1983 or 1984 and
in 1988, the results of which are unknown to the operator and which might
indicate that the initial X-ray was misread or that his condition has
improved. We agree with the Secretary that this argument is entirely
speculative, lacking any evidence of record to support it.

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development of pneumoconiosis. The record demonstrates that, in August
1979, Edwards had been informed by MSHA that he had a sufficient degree
of pneumoconiosis to be eligible for Part 90 rights and needed only to
send in the exercise of option form to MSHA. Why, after signing and
dating the form in 1985, Edwards did not send it to MSHA@ or why the mine
superintendent personally approved Edwards' status as a Part 90 miner
based solely on the MSHA letter of eligibility, is not explained in the
record. We agree that had Edwards falsely claimed Part 90 medical
eligibility, the "bad faith" exception carved out in Mullins might well
apply. However, the evidence of record indicates that, at most, this is a
case of technical non-compliance with Part 90 procedures rather than abuse
of the intent of the Act, or bad faith, on Edwards' part. We believe the
record supports the judge's conclusion that Edwards' pay restoration in
April 1985 resulted from a mistaken assumption by both parties that Edwards
was a Part 90 miner.

We next address R&P's argument that it should be allowed to correct a

Part 90 miner's rate of pay that was calculated erroneously. The Secretary
contends that this case does not involve the correction of a clerical error
but represents an attempt to decrease Edwards' pay rate only after he had
exercised his option. In our view, this case is distinguished from that of
a newly discovered, recently occurring inadvertent clerical error. Edwards
had been compensated at the rate of pay, now questioned, for almost three
years prior to March 1988. His restoration to that rate of pay had
previously been questioned but then personally approved, in April 1985, by
the mine superintendent. The person responsible for R&P's Part 90 sampling
program had known since 1985 that Edwards was not a Part 90 miner, and
Edwards' supervisor had questioned his pay status as early as January 1987.
R&P, therefore, was in the position to correct this situation at any time
during the three- year period prior to March 1988.

 Instead, by reducing Edwards' rate of pay only after he had exercised

his part 90 option, R&P finds itself diametrically opposite the consistent
judicial and Secretarial interpretation of the pay-rate protection
provisions of the Mine Act and Part 90. Recently, the D.C. Circuit has
reaffirmed a liberal view of the transfer and pay rate protections of the
Mine Act and Part 90 in Secretary v. Cannelton Industries, Inc., 867 F.2d
1432 (D.C. Cir. 1989). In its decision, the court emphasized that the
Secretary's interpretation of the Mine Act is entitled to deference,
stating:

  Confronting diverse readings of the statutory text, we are

obliged to defer to the Secretary's miner-protective construction of the
Mine Act so long as it is reasonable.

Page 10

867 F.2d at 1437.

In the instant case, we find the Secretary's interpretation of

section 90.103(a) reasonable, and consistent with the judicial precedent
set out in Mullins and Matala, supra. Accordingly, we hold that
substantial evidence supports the conclusion that R&P violated 30 C.F.R.
$ 90.103(a) when it reduced the regular rate of pay being received by

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Edwards immediately prior to the exercise of his Part 90 option.

For the foregoing reasons, the judge's decision is affirmed.

Distribution

Joseph A. Yuhas, Esq.
Rochester & Pittsburgh Coal Co.
P.0. Box 367
Ebensburg, Pennsylvania 15931

Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041