Cyprus Empire Corporation

Plain-English summary

Cyprus Empire operated the Eagle No. 5 underground bituminous coal mine in Colorado. During a strike, the company continued limited mine work with salaried employees and refused to allow Dean Carey, a previously designated UMWA representative of the striking employees, to accompany an MSHA inspector. Judge John J. Morris held that the striking employees were not miners under the Mine Act because they were not working in the mine, so they did not have the section 103(f) walkaround right. He sustained the contests and vacated Citation No. 3410886, Order No. 3410887, and Citation No. 3410889. The Commission later affirmed the decision.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 802(g), 813(f), 814(a), and 814(b); 30 C.F.R. § 40.30
• Outcome: The contests were sustained, and two citations and one withdrawal order were vacated.
• Key point: Section 103(f) walkaround rights apply to miners working in the mine during the inspection, not striking employees who were not working there.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
The Federal Building
Room 280, 1244 Speer Boulevard
Denver, CO 80204

CYPRUS EMPIRE CORPORATION, CONTEST PROCEEDINGS
CONTESTANT
v. Docket No. WEST 91-454-R
SECRETARY OF LABOR, Citation No. 3410886; 6/3/91
MINE SAFETY AND HEALTH
REVIEW ADMINISTRATION, Docket No. WEST 91-455-R
RESPONDENT Citation No. 3410887; 6/3/91

UNITED MINE WORKERS OF Docket No. WEST 91-456-R
AMERICA (UMWA) Citation No. 3410889; 6/4/91
INTERVENOR
Eagle No. 5 Mine 05-01370

                               DECISION

Appearances: R. Henry Moore, Esq., Buchanan Ingersoll Profes-
sional Corporation, Pittsburgh, Pennsylvania,
for Contestant;
Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Respondent;
Robert L. Jennings, Representative of United Mine
Workers of America, Price, Utah,
for Intervernor.

Before: Judge Morris

 This is a contest proceeding arising under the Federal Mine

Safety and Health Act, 30 U.S.C. 801, et seq. (the "Act").

 An expedited hearing on the merits was held in Denver,

Colorado, on June 11, 1991.

 The parties waived receipt of the complete transcript but

filed post-trial briefs and further requested an expedited
decision.

                                 ISSUE

 Whether striking employees who selected Dean Carey to

represent them as a walk-around representative are considered to
be "miners" as defined in 103(f) (Footnote 1) of the Act.

 Enforcement activities: on June 3, 1991, MSHA Inspector

Ervin St. Louis issued Citation No. 3410886 for a violation of
103(f) of the Act. The text of the citation is set forth i
paragraph 5 of the stipulation, infra.

 On the same day, approximately 40 minutes later, the

inspector issued Order No. 3410887. The text of the order is set
forth in paragraph 6 of the stipulation, infra.

 On June 4, 1991, the inspector issued Order No. 3410889. The

text of the order is set forth in paragraph 11 of the
stipulation, infra.

 The inspector later modified the order to state that Order

No. 3410887 had not been modified, vacated, or terminated (with
the exception of a time correction).

                                 STIPULATION

    At the hearing the parties stipulated as follows:

 1. Empire operates Eagle Number 5 Mine, I.D No. 05-01370,

located in Craig, Colorado. It is an underground bituminous coal
mine and is subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977.

 2. The administrative law judge has jurisdiction over these

proceedings under Section 105(a) of the Act.

 3. The citations, orders, and modifications thereto were

properly served by a duly authorized representative of the
Secretary upon an agent of Empire at the dates and places
therein, and may be admitted into evidence for the purpose of
establishing their issuance.

 4. Citation No. 3410886 was issued on June 3, 1991, at 6:05

a.m., pursuant to Section 104(a) of the Act, 30 U.S.C. 814(a),
and alleged a violation of 103(f) of the Federal Mine Safety and
Health Act of 1977.

 5. Under the heading and caption, condition, or practice,

Citation No. 3410886 alleges as follows:

         The representative of the miners requested at the mine
         office the right to accompany an MSHA authorized
         representative of the Secretary during an MSHA Triple A
         inspection. Mine management refused entry to the mine
         property. The miners are on strike and have pickets on
         the road to the mine outside of the mine property. Mine
         management denied the representative of the miners
         entry on mine property to accompany the authorized
         representative during the inspection conference. The
         citation was not designated significant and subtantial
         and the time for abatement was set of 6:45 a.m.

 6. The contest of Citation No. 3410886 is docketed at number

WEST 91-454-R. After Citation No. 3410886 was issued, Order No.
3410887 was issued pursuant to Section 104(b) of the act for
failure to abate Citation No. 3410886. Under the heading and
caption, condition, or practice, Order No. 3410887 alleges as
follows:

     Mine management would not allow the representa-
     tive of the miners to accompany the authorized
     representative of the Secretary during the Triple
     A inspection of the mine. Cyprus Empire Corpora-
     tion management refused admittance of the United
     Mine Workers of America, Local 1799, members to
     be present as miners representatives in the course
     of the Triple A regular inspection, and any MSHA
     discussion of actions during this period UMWA
     memberships is on strike.

 7. The miners on the job have elected Mr. Jim Shubin as

their representative.

 8. A subsequent modification was issued, modification number

3, to the order amending the body of the order and putting the
words at the beginning of the second paragraph. The company's
position is that the miners on the job have elected Mr. Jim
Shubin as their representative.

 9. The contest of Order No. 3410887 is docketed at WEST

91-455-R.

 10. Citation No. 3410889 was issued on June 4, 1991,

pursuant to Section 104(b) of the Act for a failure to abate
Citation No. 3410886.

 11. Under the heading and caption, condition, or practice,

Citation No. 3410889 alleges as follows:

         The operator, Cyprus Empire Corporation, continues to
         refuse the miners' representative the right to
         accompany authorized representative of the Secretary
         during the Triple A inspection being conducted at the
         Eagle No. 5 Mine, I.D. 05-01370. The operator continues
         to maintain the mine in operable condition and operates
         the long wall when needed to protect the tailgate and
         the long wall itself from adverse conditions.
    The inspector subsequently issued a modification and added

that Order No. 3410887 had not been modified, vacated, or
terminated (with the exception of the time correction).

 12. The contest of Citation No. 3410889 was docketed at WEST

91-456-R.

 13. On May 12, 1991, the collective bargaining agreement be-

tween Empire and its hourly employees expired. The hourly employees
are represented by the United Mine Workers of America for the purpose
of collective bargaining. There is presently no collective
bargaining agreement in effect. The hourly employees commenced
the strike on or about May 13, 1991, related to the negotiatons
over a new collective bargaining agreement. Thereafter, Empire
resumed mining operations utilizing its salaried employees.

 14. The mining operations include operation of the longwall

mining equipment in order to move the long wall face forward to
avoid adverse mining conditions. Other mining activities include
mine maintenance-type work, including pumping and building of
ventilation control.

 15. The employees working at the Eagle No. 5 Mine on June 3,

1991, selected James A. Shubin as their representative for the
purpose of accompanying MSHA inspector Irvin St. Louis during his
AAA inspection of the Eagle No. 5 mine on those days and all
subsequent days. Mr. Shubin accompanied Mr. St. Louis on his
inspections.

 16. Prior to May 13, 1991, the following hourly employees,

who are members of the United Mine Workers and who worked at the
mine, were designated pursuant to 30 C.F.R. 40.30 as
representative of the employees: Dean Carey, Eugene Vezie, and
Chencho Salazar. Such persons are currently on strike and,
moreover, the persons who designated such persons as their
representatives are currently on strike.

 17. On Monday, June 3, 1991, Inspector St. Louis arrived at

the Eagle No. 5 Mine for the purposes of conducting a regular
quarterly inspection. At that time he indicated that Dean Carey
wished to accompany him as a walk-around.

 18. Empire refused to permit Dean Carey or any other UMW

official or representaive to enter the mine and accompany
Inspector St. Louis during the inspection.

 19. At the time of his inspection on June 3, 1991, Inspector

St. Louis was informed of Empire's position and that
conversations with MSHA's District 9 office had been conducted
previously.

 20. On June 3, 1991, Solicitor Margaret Miller informed

Counsel for Empire, R. Henry Moore, that if Empire contested the
citation, and requested an expedited hearing, MSHA would not
implement Section 110(b) of the Act nor propose a civil penalty
of up to $5,000 for each day that a failure to correct occurred.

                                THE EVIDENCE

 The evidence is uncontroverted: IRVIN ST. LOUIS of Craig,

Colorado, has been an MSHA inspector for 11 years. He is
experienced in mine safety.

  On June 3, 1991, Inspector St. Louis intended to conduct an

AAA inspection at Eagle No. 5 Mine. This was the first inspection
since the miners, represented by UMWA, had gone on strike at the
mine.

 On June 3, 1991, the inspector met Dean Carey of the UMWA

and Bill Ivy, Mine Manager. Mr. Carey requested the right to
travel with the inspector, but Mr. Ivy refused. Mr. Ivy stated
that the miners had elected Jim Shubin as the miners' safety
representative. (Footnote 2) On previous occasions, Carey,
Shubin, and Ivy had traveled with the MSHA inspector.

 After some discussion, the inspector wrote a 104(a)

citation. When the Company did not agree to let Mr. Carey travel
with him, a Section 104(b) was issued. (See Exs. S-1, S-2, S-3).

 Mr. Ivy gave no indication the Company would comply and the

original citation remains in effect at the time of the hearing.

    On May 30, 1991, a UMWA picket line had been set up at the

mine.

 Inspector St. Louis conducted his normal inspection on June

3, 4, and 5, 1991.

 DEAN CAREY, a person experienced in mining, is currently on

strike at the Eagle No. 5 Mine.

 Mr. Carey is a bargaining representative of the UMWA and the

chairman of the Mine Safety Committee. He has accompanied federal
inspectors and has been the walk-around representative at the
mine of nine years.

 The entire bargaining unit of the UMWA went on strike at the

mine on May 13. No UMWA member has crossed the picket line.

 Mr. Carey learned from the picket line that Mr. St. Louis

was to conduct an inspection. He requested permission from Mr.
Ivy to accompany the inspector. Mr. Ivy refused the request.

The mine has been a strike four weeks and one day. The last

bargaining session was May 10, 1991. Mr. Carey expects further
bargaining sessions; further, he expects to resume work.

 A strike six years ago lasted 79 days. The striking miners

receive compensation from the union strike fund.

 Mr. Carey wants to do a walk-around inspection to be sure

the mine is safe when the miners return. As a miners'
representative, Mr. Carey can request a Section 103(g)
inspection.

 JOHN CAYLOR, a person experienced in mining and safety,

works for Empire's parent company, Cyprus Coal.

 After the citation and order were issued, Mr. Caylor

contacted William Holgate, MSHA's District 9 manager. He was
attempting to avoid additional failure to abate orders. He
further advised Mr. Holgate that Empire intended to challenge the
citations.

 The company has had good relations with MSHA and, if

possible, he hoped that litigation could be avoided.

 The witness believed there was a principle involved. The

safety of the miners was not at risk since they were not
underground. Further, he felt a failure to abate order would
indicate Empire was a recalcitrant operator. The company wanted
to avoid such an impression.

 Mr. Caylor acknowledged that Mr. Carey had been designated

as a walk-around representative by the UMWA. Mr. Shubin had been
so designated before Inspector St. Louis and Mr. Carey arrived at
the mine office.

 DALE IVY, the mine general manager, has been engaged in

mining since 1969.

 The collective bargaining agreement expired on May 12, 1991.

Since then, coal has been mined on a limited basis, one shift a
day. The salaried workers underground are not members of the
UMWA. The hourly employees have not been replaced.

 The underground workers have rock-dusted, conducted weekly

examinations, and run the longwall once a week to prevent adverse
roof conditions from developing.

 On June 3, Mr. Ivy talked to Inspector St. Louis. He further

read Section 103(f) of the Act and stated that Jim Shubin of

the safety department had accompanied the MSHA inspector. He
further decided Mr. Carey should not accompany the inspector
because the UMWA was on strike. On June 3, and 4, Mr. Shubin in
his walk-around was representing both the miners and the
operator.

 When the citation was issued, Mr. Ivy told the inspector the

company was complying with the Act.

 JERRY TAYLOR, an engineering coordinator for MSHA, processes

all of the requests submitted to MSHA that require approval.

 In Mr. Taylor's opinion, Inspector St. Louis gave the

operator a reasonable time to abate the citation. Abatement could
be accomplished by the company's agreeing to Mr. Carey's request
to accompany the inspector.

 For various reasons, MSHA does not allow a hearing on the

merits before issuing a failure to abate order.

 The paperwork supporting Mr. Shubin as a walk-around

representative was received by MSHA on June 10, 1991.

 It is MSHA's view that Mr. Shubin does not represent the

miners. He represents the operator since he was chosen by
salaried management employees and not miners.

  MSHA's policy manual and publications do not address

situations where the miners are on strike. At the time of the
hearing, the striking employees are not doing anything at the
mine.

                              DISCUSSION

 The issue, as set forth above, can be simply restated: Are

striking employees entitled to walk-around rights under Section
103(f) of the Act?

 There is no exact precedent controlling in this factual

situation but several cases have considered closely related
issues.

 As a threshold matter: Section 3(g) of the Act defines a

"miner" as ". . . any individual working in a coal or other
mine." It is further uncontroverted that no union miners had
worked underground since the strike had begun.

 In Westmoreland Coal Company, 11 FMSHRC 960 (1989), the

Commission reviewed the issue of whether individuals who obtained

training at their own expense during a layoff were entitled to
reimbursement. The Commission held that individuals in a layoff
status are not miners. 11 FMSHRC at 964.

 In Emery Mining Corporation v. Secretary of Labor, 783 F.2d

155 (C.A. 10 1986), the operator refused to compensate its miner
employees for training they received before they were hired. In
ruling that the company's policy did not violate the Act, the
Court noted that none of the Complainants therein were miners or
employed by the operator at the time they took the training. If
they were not "miners," they were not entitled to compensation,
783 F.2d at 159.

 In Brock on behalf of Williams v. Peabody Coal Company, 822

F.2d 1134 (D.C. Cir. 1987), the operator, in rehiring laid-off
employees, passed over some individuals at the top of the list
because they had not received safety training. In ruling against
the Secretary's position, the Court determined that the miners
were on layoff and not working in a coal mine. In sum,
individuals in layoff status are not miners. See also the recent
final decision of Commission Judge Avram Weisberger involving
miners on strike in Aloe Coal Company, 12 FMSHRC 2113 (October
1990).

 In support of their positions, the Secretary and the

Intervenor rely on an oral order of Commission Judge James A.
Broderick in Clinchfield Coal Company, (Footnote 3) Va 89-67-R.

 In Clinchfield the operator was contesting an MSHA closure

order. Over the operator's objections, Judge Broderick permitted
the UMWA to intervene as a representative of miners under Section
3(g) of the Act.

 By way of analogy, Judge Broderick observed that, under the

Labor Management Act, striking employees are nevertheless treated
as employees and are entitled to the protection afforded by the
Labor Act.

  The Judge further observed in Clinchfield that the UMWA and

the company were engaged in bargaining efforts. In addition, a
settlement of the strike could result in miners' returning to
work.

 Judge Broderick distinguished those cases involving

individual rights, claims for compensation, and training
provisions. He indicated such cases are essentially different
from those situations where miners are entitled to participate in
challenges to closure orders.

 Judge Broderick's statement as to "training provisions"

appears to be a reference to Emery Mining Corporation, supra.
However, the training of miners can be just as critical as
walk-around rights under Section 103(f) of the Act.

 On the basis of Clinchfield, the Secretary presents a strong

argument to distinguish five established cases. However, the
Commission and the Appellate Court have not gone beyond the plain
meaning of the statutory words in Section 3(g).

 In short, the miners involved in this case were "not working

in a coal or other mine." Hence, they do not qualify as miners
under Section 103(f).

    For the foregoing reasons, I enter the following:

                                    ORDER

 1. The contest of Citation No. 3410886 is SUSTAINED and the

citation is VACATED.

 2. The contest of Order No. 3410887 is SUSTAINED and the

order is VACATED.

 3. The contest of Order No. 3410889 is SUSTAINED and the

order is VACATED.

                                     John J. Morris
                                     Administrative Law Judge

 1. Section 103(f) of the Act provides as follows:
      "(f) 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), 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 miner
representative, the Secretary or his authorized repesentative
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
would further aid the inspection, he can permit each party to
have the 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 subsection shall not be
a jurisdictional prerequisite to the enforcement of any provision
of this Act.

 2. Mr. Shubin is a safety inspector for Empire.

 3. Judge Broderick's decision, published at 11 FMSHRC 1568

(1989), does not discuss his prior oral order. Further, the
Commission in its review did not discuss the issue, 11 FMSHRC
2120 (1989). The reference to the rights of the striking miners
arises from a transcript containing Judge Broderick's order. The
transcript was attached to Petitioner's brief.