Steven Brown for United Steelworkers of America, District 38, Subdistrict 7 v. Sunshine Mining Company

Plain-English summary

Contract miners at Sunshine Mining's Kellogg operation claimed they should receive incentive-rate pay while attending mandatory MSHA safety training. Sunshine maintained that miners were entitled only to the applicable wage-table rate. Judge John J. Morris concluded that the Commission had no jurisdiction to decide the wage dispute and that the collective bargaining agreement required the parties to use its grievance and arbitration process. He dismissed the case.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 48.2(d) and 48.10; 30 U.S.C. § 815(b)
• Outcome: The compensation proceeding was dismissed for lack of Commission jurisdiction.
• Key point: A wage dispute over training compensation arising under a collective bargaining agreement must proceed through the agreement's grievance and arbitration process, not the Commission.

Full text (FMSHRC public release)

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

STEVEN BROWN FOR UNITED COMPENSATION PROCEEDING
STEELWORKERS OF AMERICA,
DISTRICT 38, SUBDISTRICT 7, Docket No. WEST 91-196-CM
APPLICANTS
Sunshine Mine
v.

SUNSHINE MINING COMPANY,
RESPONDENT

                          DECISION

Before: Judge Morris

 Complainants seek relief under the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. 801 et seq. (the "Act").

    The complaint states as follows:

         Contract miners at the Kellogg operation are paid on an
         agreed to incentive basis in relation to the work done.
         This rate usually exceeds the hourly rate of a grade 7
         miner. In completing the required MSHA safety training,
         these miners are deprived of the opportunity to earn
         contract rate. The employer insists that they are only
         required to pay these miners the days pay rate of grade
         7 for time spent in MSHA safety training. The Union
         does not agree. Since the normal rate of pay for the
         miners in question is based on their contract, they
         should receive compensation at that rate when training.

 In support of their position Complainants submitted (Exhibit

B), an employment agreement between the United Steel Workers of
America and Sunshine.

 Complainants state that "Gypo" miners at Sunshine are paid

by a complicated incentive system. Basically the system is based
on the amount of work done by the individual miner. "Gypo miners
are disciplined by the Company for failure to meet what the
Company considers the reasonable incentive production level."

 The crux of Complainants' case is that the normal rate of

pay for a "Gypo" miner is his incentive rate of pay. Therefore,
the miners should be paid at the incentive rate when undergoing
mandatory health and safety training.

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In addition to the captioned case, Complainants have also filed a
grievance under the terms of their employment contract with
Sunshine.

 In support of their position, Complainants further rely on

Section 115(b)1 of the Mine Act as well as 30 C.F.R. Part
48,2 relating to the training and retraining of miners.

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Sunshine asserts miners are paid their normal rate of pay for
mandatory health and safety training. The operator claims no
incentive pay is earned or due for time spent in such training.

 Specifically, Sunshine claims there is only one rate of pay

which is the rate set by the labor management agreement. The
agreement states as follows:

                      ARTICLE IV

           Classification and Rates of Pay

      4.1 All job classifications of work coming under the
      jurisdiction of the Union and the rates of pay
      applicable thereto shall be set forth in schedule "A"
      which is attached hereto and by reference made a part
      hereof. The said schedule "A" shall set forth all
      classifications coming under the terms of this
      Agreement and explains other forms of compensation such
      as profit sharing and common stock distribution.
      (emphasis added).

      Schedule "A" to the agreement states:

      The "wage rates" for classifications of employees
      represented by the United Steelworkers of America at
      the Kellogg Operations will be the rates shown on the
      Wage Table. (emphasis added).

 Sunshine further relies on the Grievance and Arbitration

portion of collective bargaining agreement which provides as
follows:

                      ARTICLE XV

               Grievance and Arbitration

      Any question or dispute concerning compliance by the
      Company with, or interpretation or application of this
      Agreement, memoranda or supplemental agreements
      concerning wages, hours and other terms and conditions
      of employment, shall be treated as a claimed grievance
      in the sequence outlined as grievance procedure until
      settled. Should an agreed settlement be lacking

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at the final stage of the grievance procedure, said claimed
grievance may then be referred by the grievant's representative
to arbitration. The arbitrator's decisions made within the scope
of the submission and authority of the arbitrator shall be final
and binding on all parties.

 Inasmuch as no issue of fact was involved, the Judge

requested the parties to submit authorities in support of their
positions. After review, the Judge indicated he would enter a
decision in the matter.

                         Discussion

 There are no MSHA enforcement documents involved in this

case. Further, I am unable to find any portion of the Mine Act
that vests jurisdiction in the Commission to determine the issues
presented here.

 Further, it appears the Union seems to have a determination

of what constitutes the "normal rate of compensation" under the
collective bargaining agreement.

 The Union's claim is over "wages, hours and other terms and

conditions of employment." Under those circumstances, the parties
must honor the arbitration provisions. Such provisions will be
enforced by the courts. Sams v. United Food & Commercial Workers
Union 835 F.2d 848 (11th Cir. 1988); Hillard v. Dobelman, 774
F.2d 886 (8th Cir. 1985).

 The Judge raised the issue of the Commission's jurisdiction

and Complainants state they don't know how the issue arrived
before the Commission. In particular, Complainants state they
filed a complaint with the MSHA Field Office in Coeur d'Alene,
Idaho.

 Complainants position may be well taken. Section 48.32

outlines an appeals procedure from a decision by MSHA's District
Manager.

 Since the Mine Act fails to vest jurisdiction in the

Commission, this case is DISMISSED.

                               John J. Morris
                               Administrative Law Judge

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FOOTNOTES START HERE

    1. The cited portion of the Act reads as follows:

      "(b) Any health and safety training provided under

subsection (a) shall be provided during normal working hours.
Miners shall be paid at their normal rate of compensation while
they take such training, and new miners shall be paid at their
starting wage rate when they take the new miner training. If such
training shall be given at a location other than the normal place
of work, miners shall also be compensated for the additional

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costs they may incur in attending such training sessions.

 2. Complainants rely on the following regulations:

      30 C.F.R.   48.10
      Training shall be conducted during normal working

hours; miners attending such training shall receive the rate of
pay as provided in 48.2(d) (Definition of normal working hours)
of this subpart A.

      30 C.F.R.   48.2(d)
      (d) "Normal working hours" means a period of time

during which a miner is otherwise scheduled to work. This
definition does not preclude scheduling training classes on the
sixth or seventh working day if such a work schedule has been
established for a sufficient period of time to be accepted as the
operator's common practice. Miners shall be paid at a rate of pay
which shall correspond to the rate of pay they would have
received had they been performing their normal work tasks.