Secretary of Labor v. Aloe Coal Company

Plain-English summary

Aloe Coal's striking employees designated the United Mine Workers of America as their miners' representative, and a union representative requested an MSHA inspection under section 103(g)(1). The Commission held that striking employees were not miners for purposes of requesting an immediate inspection because they were not working in the mine. It nevertheless held that MSHA had independent authority under section 103(a) to inspect the mine, so the inspection was valid. The Commission affirmed the judge's decision sustaining five citations and the civil penalties because Aloe stipulated that the violations existed and that the proposed penalties were reasonable.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 802(g), 813(a), and 813(g)(1); 30 C.F.R. §§ 40.2(a) and 43.4(c)
• Outcome: The Commission affirmed the citations and the civil penalties.
• Key point: An invalid request for an immediate inspection does not eliminate MSHA's independent authority to inspect a mine under section 103(a).

Full text (FMSHRC public release)

                            January 25, 1993

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. PENN 91-40
: PENN 91-41
ALOE COAL COMPANY :

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners

                                DECISION

BY THE COMMISSION:

  This civil penalty proceeding arises under the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. 801 et seq. (1988)("Mine Act" or "Act"). The
issue presented is whether citations issued by an inspector of the Department
of Labor's Mine Safety and Health Administration ("MSHA") to Aloe Coal Company
("Aloe"), pursuant to an inspection requested under section 103(g)(1) of the
Mine Act,(Footnote 1) are invalid because the inspection was requested by a

1 Section 103(g)(1) states:

               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. Any such
         notice shall be reduced to writing, signed by the
         representative of the miners or by the miner, and a
         copy shall be provided the operator or his agent no
         later than at the time of inspection, except that the
         operator or his agent shall be notified forthwith if
         the complaint indicates that an imminent danger
         exists. The name of the person giving such notice and
         the names of individual miners referred to therein
         shall not appear in such copy or notification. Upon
         receipt of such notification, a

representative of striking employees of Aloe. Commission Administrative Law
Judge Roy J. Maurer concluded that the citations were valid and assessed the
civil penalties proposed by the Secretary. 13 FMSHRC 1181 (July 1991)(ALJ).
We granted Aloe's petition for discretionary review. For the reasons that
follow, we affirm.

                                    I.
                     Factual and Procedural Background

  The salient facts of this case were stipulated by the parties. Aloe

operates a surface coal mine located in Allegheny and Washington Counties,
Pennsylvania. On July 10, 1989, Aloe's miners, represented by the United Mine
Workers of America ("UMWA") for collective bargaining purposes, went on
strike. Aloe continued mining operations with 13 replacement workers and six
union employees who crossed the picket line to return to work. Stip. 3.

  Two of the strikers attempted to designate the UMWA as their miners'

representative on August 17, 1990, and filed their designation with the local
MSHA district manager in accordance with 30 C.F.R. 40.2(a).(Footnote 2)
Stip. 4. Following receipt of a request submitted by UMWA representative Ken
Horcicak, pursuant to section 103(g)(1) of the Mine Act, an MSHA inspector
conducted an inspection of the mine. Stips. 5 & 8. The request for an
inspection stated that employees at the mine were not wearing required safety
equipment, inadequate berms were present along haulage roads, and electrical
equipment was not being properly maintained and inspected. Id. Five
citations were issued alleging violations of safety standards, including
citations relating to the conditions described in the inspection request.
Stip. 1.

  Horcicak's identity as the individual who requested the inspection was

not known to Aloe at the time of the inspection.(Footnote 3) Aloe discovered
at another

        special inspection shall be made as soon as possible
        to determine if such violation or danger exists in
        accordance with the provisions of this title. If the
        Secretary determines that a violation or danger does
        not exist, he shall notify the miner or representative
        of the miners in writing of such determination.

30 U.S.C. 813(g)(1).

  _________
  2     Section 40.2(a) provides:

              A representative of miners shall file with the
        Mine Safety and Health Administration District Manager
        for the district in which the mine is located the
        information required by   40.3 of this part.
        Concurrently, a copy of this information shall be
        provided to the operator of the mine by the
        representative of miners.
  _________
  3     Under 30 C.F.R.   43.4(c), the name of the person making the
  inspection request is not to be given to the operator.