Secretary of Labor v. Aloe Coal Company (Commission decision, January 25, 1993)

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

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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).

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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.
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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.