Cyprus Empire Corporation

Plain-English summary

Cyprus Empire's miners went on strike while the company continued operating its mine with management employees. During an MSHA inspection, the company refused to allow a previously designated representative of the striking employees to accompany the inspector. The Commission held that the Mine Act defines a miner as an individual working in a mine, so employees who were not working during the strike were not entitled to exercise the section 103(f) walkaround right. It affirmed the judge's decision vacating two citations and a withdrawal order.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 802(g), 813(f), 814(a), and 814(b)
• Outcome: The Commission affirmed the judge's decision vacating two citations and a withdrawal order.
• Key point: Walkaround rights under section 103(f) belong to miners working in the mine during the inspection, not employees who are on strike and are not working there.

Full text (FMSHRC public release)

January 25, 1993

CYPRUS EMPIRE CORPORATION :
:
v. : Docket Nos. WEST 91-454-R
: WEST 91-455-R
SECRETARY OF LABOR, MINE SAFETY : WEST 91-456-R
& HEALTH ADMINISTRATION (MSHA) :
:
and :
:
UNITED MINE WORKERS OF AMERICA :
:

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

                               DECISION

BY THE COMMISSION:

  This contest 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 sole
issue is whether the striking employees of Cyprus Empire Corporation
("Cyprus") were "miners" within the meaning of the Mine Act, for purposes of
being entitled to have their previously designated walkaround representative
accompany an inspector from the Department of Labor's Mine Safety and Health
Administration ("MSHA") during a mine inspection. Commission Administrative
Law Judge John J. Morris concluded that Cyprus' striking employees were not
miners because they were not working in the mine at the time of the
inspection. Consequently, he vacated two citations and an order of withdrawal
alleging violations of section 103(f) of the Mine Act, 30 U.S.C. 813(f),
which authorizes designated walkaround representatives to accompany
inspectors. Cyprus Empire Corp., 13 FMSHRC 1040 (June 1991)(ALJ). For the
reasons set forth below, we affirm the judge's decision.

                                   I.
                    Factual and Procedural Background

  The collective bargaining agreement between Cyprus and the United Mine

Workers of America ("UMWA") at Cyprus' Eagle No. 5 Mine expired on May 12,
1991. The parties failed to reach a new agreement and the miners, represented
by the UMWA, went on strike the next day. Cyprus halted the production of
coal but continued to operate the mine on a standby basis with management
employees. Cyprus did not hire replacement workers.

  On May 30, 1991, while the strike was ongoing, MSHA Inspector Ervin St.

Louis arrived at the mine to conduct a regular inspection under section 103(a)
of the Mine Act, 30 U.S.C. 813(a). None of the miners' representatives
previously designated by the striking employees were at the mine or in the
picket line on that day and Inspector St. Louis conducted his inspection
without a miners' representative. At that time, he asked the mine manager
whether Cyprus would permit one of the previously designated miners'
representatives to act as a walkaround representative if such a request were
made. Cyprus subsequently informed the MSHA district office that it would
object to a UMWA walkaround representative. Thereafter, the miners then
working at the mine, who were all management employees, selected James A.
Shubin, a company safety inspector, to act as their representative for
walkaround purposes.

  Inspector St. Louis returned to the mine on June 3, 1991, for the second

day of his inspection, accompanied by Dean Carey, a striking employee who had
previously been designated as a miners' representative under 30 C.F.R Part 40,
and informed mine management that Carey wished to accompany him during his
inspection.(Footnote 1) Carey was a bargaining representative of the UMWA
local and chairman of its safety committee, and had been a walkaround
representative at the mine for nine years. All of the employees he
represented were also on strike.

  Mine Manager William Ivy discussed the matter with Inspector St. Louis

and informed him that Cyprus refused to permit Carey or any other UMWA-
designated representative to act as a walkaround representative. Ivy told the
inspector that Shubin had been selected as the representative of the miners
currently working at the mine and that Cyprus would challenge any citations
issued to it as a result of its refusal to allow Carey to act as a
walkaround representative.

  Inspector St. Louis issued to Cyprus a citation under section 104(a) of

the Mine Act, 30 U.S.C. 814(a), alleging a violation of section 103(f) of
the Act.(Footnote 2) Section 103(f), entitled "Participation of
representatives of operators and miners in inspections," states, in pertinent
part:

1 30 C.F.R. Part 40 contains the Secretary's regulations implementing section
103(f) of the Act.

2 The "condition or practice" section of the citation states:

              The representative of the miners requested at the mine
        office the right to accompany an MSHA authorized repre-
        sentative of the Secretary during an MSHA AAA inspection.
        Mine management refused entry to mine property. The miners
        are on strike and have pickets on the road to the mine
        outside of mine property. Mine management denied the
        representative of the miners entry on mine property to
        accompany the authorized representative during pre-
        inspection conference.

Exh. S-1.

              Subject to regulations issued by the Secretary,
        a representative of the operator and a representative
        authorized by his miners shall be given the
        opportunity to accompany the Secretary or his
        authorized representative during the physical
        inspection of any coal or other mine pursuant to the
        provisions of subsection (a) of this section, 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
        representative shall consult with a reasonable number
        of miners concerning matters of health and safety in
        such mine.

30 U.S.C. 813(f).

  Within an hour after issuance of this citation, Inspector St. Louis

issued to Cyprus an order of withdrawal under section 104(b) of the Mine Act,
30 U.S.C. 814(b), for failure to abate the citation.(Footnote 3) After
issuing this order, St. Louis inspected the mine accompanied only by Shubin.

  The inspection continued the next day. When Cyprus again refused to

admit Carey, the inspector issued another section 104(a) citation for a
violation of section 104(b) of the Act. Inspector St. Louis completed his
inspection accompanied only by Shubin.

   Cyprus filed notices of contest of the citations and order and an

expedited hearing was held before Judge Morris on June 11, 1991. The UMWA
intervened in the proceeding. Following an evidentiary hearing, the judge
found that Cyprus had not violated section 103(f) of the Mine Act and vacated
the citations and the order of withdrawal. 13 FMSHRC at 1049. The judge
noted that the term "miner" is defined in section 3(g) of the Mine Act, 30
U.S.C. 802(g), as "any individual working in a coal or other mine" and that
it is uncontroverted that "no union miners had worked underground since the
strike had begun." 13 FMSHRC at 1047.

  The judge found that Cyprus' striking employees were not "working in a

coal or other mine." 13 FMSHRC at 1049. He concluded that, because the
Commission and Courts of Appeal have not "gone beyond the plain meaning of the
statutory words in section 3(g)," Cyprus' striking employees did not qualify
as miners under section 103(f). Id. The judge vacated the two citations and
the order. The Commission granted the UMWA's petition for discretionary
review. The Secretary did not seek review of Judge Morris' decision.

3 Inspector St. Louis did not order the actual withdrawal of miners. The
order stated that it was "a nonclosure order" that did not affect any area of
the mine. Exh. S-2.

                                  II.
                         Disposition of Issues

        On review, the UMWA argues that the Commission should construe the

term miner broadly to include employees who are on strike. Specifically, the
UMWA contends that the strikers' previously designated walkaround
representative should be entitled to accompany an MSHA inspector on an
inspection during the strike. The UMWA maintains that, since strikers remain
the employees of an operator, they should, by analogy, remain the miners of
the operator. For the reasons stated below, we reject the UMWA's arguments
and affirm the judge.

   The "primary dispositive source of information [about the meaning of

statutory terms] is the wording of the statute itself." Wyoming Fuel, 14
FMSHRC 1282, 1286 (August 1992). Neither party disputes that only miners are
entitled to designate a walkaround representative to accompany an MSHA
inspector. Miner is defined in the Act as "any individual working in a coal
or other mine." 30 U.S.C. 802(g). The legislative histories of the Federal
Coal Mine Health and Safety Act of 1969, 30 U.S.C. 801 et seq.
(1976)(amended 1977), and the Mine Act provide no background to the language
of this definition. Under the definition, an individual need not be an
employee of an operator to qualify as a miner under the Mine Act. Likewise,
an individual who is employed by a mine operator is not necessarily a miner
under the Act unless he or she is working in a mine, as that term is defined
in section 3(h). Thus, a person's status as a miner is determined not by the
fact that he is employed by an operator, but rather by whether, as the statute
provides, he works in a mine.

  While the issue in this case is one of first impression, the Commission,

as noted by the judge, has previously examined the term "miner" in the
context of training rights under section 115 of the Act, 30 U.S.C. 825.
Finding the section 3(g) definition of "miner" determinative, the Commission
held that, for section 115 purposes, job applicants and former miners on
layoff did not qualify as "miners" under the Act and, hence, were not entitled
to training rights under section 115. Emery Mining Corp., 5 FMSHRC 1391
(August 1983), aff'd in part, rev'd in part, 783 F.2d 155 (10th Cir. 1986)(job
applicants); UMWA on behalf of James Rowe et al., etc. v. Peabody Coal Co., 7
FMSHRC 1357 (September 1985), Secretary on behalf of I.B. Acton, et al. v. Jim
Walter Resources, 7 FMSHRC 1348 (September 1985), aff'd sub nom. Brock v.
Peabody Coal Co., 822 F.2d 1134 (D.C. Cir. 1987) Secretary on behalf of Jerry
Dale Aleshire et al. v. Westmoreland Coal Co., 11 FMSHRC 960 (June
1989)(individuals on laidoff ).

  In Peabody, the Commission reasoned:

              Underlying our holding is our belief that the
        Mine Act is not an employment statute. The Act's
        concerns are the health and the safety of the nation's
        miners.
              *     *     *     *     *     *

        We are not prepared to interpret the rights and
        obligations mandated by the Act through interpretation
        of a private contractual agreement unless required to
        do so by the Act itself. See Local Union No. 781,
        District 17, United Mine Workers of America v. Eastern
        Associated Coal Corp., 3 FMSHRC 1175, 1179 (May 1981).

            *      *   *    *    *     *
              We recognize that under the National Labor Relations
        Act and the Railway Labor Act, statutes governing labor-
        management relations, laid-off employees in general and
        laid-off employees with a right to reinstatement based upon
        seniority have been held to be entitled to certain rights
        granted by those acts.... However, these [principles] arise
        under statutes whose very purpose is the governance of labor-
        management relations.... The entirely discrete purpose of the
        Mine Act, and the nature of the rights granted by section 115,
        prevent us from transferring this reasoning to the Mine Act.

7 FMSHRC at 1364-65. These same general principles apply in this case.

  There is no dispute that, for purposes of the National Labor Relations

Act, 29 U.S.C. 151 et seq. (1988) ("NLRA"), the strikers in this case were
"employees" of Cyprus at the time of the inspection. Section 2(3) of the
NLRA, 29 U.S.C. 152(3), defines the term "employee" to include "any
individual whose work has ceased as a consequence of, or in connection with,
any current labor dispute or because of any unfair labor practice." In the
Mine Act, however, which is the proper focus of our inquiry, Congress chose to
define miners as individuals who work in a mine, rather than as employees of
an operator. The Mine Act's definition of "miner" is not grounded in the
rights of employees under the NLRA or under private collective bargaining
agreements. See Peabody, 7 FMSHRC at 1364-65. We perceive no statutory
warrant in the Mine Act for treating an operator's striking employees as
"miners."

  The courts also have analyzed the Mine Act's definition of miner in the

context of training rights. In National Industrial Sand Ass'n v. Marshall,
601 F.2d 689, 704 (3rd Cir. 1979), a case involving challenges by operators to
the Secretary's training regulations, the court stated that "the statute looks
to whether one works in a mine, not whether one is an employee or nonemployee
or whether one is involved in extraction or nonextraction activities."
(emphasis in original). In Peabody, the D.C. Circuit, in affirming the
Commission, held that laid-off individuals are not miners for purposes of the
training rights granted under section 115 of the Act because such individuals
are not working in a mine, exposed to the hazards of mining, or employed by a
mine operator. 822 F.2d at 1147-49. Finally, in Emery Mining, the court held
that individuals who had obtained safety training at their own expense in
order to be eligible for employment by the operator were not entitled to
compensation for such training because they were not miners as defined in the
Act. 783 F.2d at 157-59. These decisions are consistent with the result we
reach herein.

  The UMWA argues that the Commission must defer to the Secretary's

interpretation of the term "miner" as applied to walkaround rights. The
Secretary's analogous construction of the term "miner," however, was rejected
as unreasonable by the Peabody court. 822 F.2d at 1151. Moreover, the
Secretary has not appealed the judge's adverse decision in the present case or
otherwise participated in this appeal. She may well have abandoned her
position that striking miners have the right under section 103(f) to designate
a walkaround representative. In any event, the wording of the statute sets
forth Congress' intent as to the definition of "miner." Even if there were
remaining ambiguity, the Secretary has presented no position to which the
Commission could accord weight.

  Contrary to the contentions of the UMWA (UMWA Br. at 4-5), the right of

miners to refuse to work in the face of hazardous conditions, as set forth in
section 105(c) of the Act, 30 U.S.C. 815(c), and to file for compensation
under section 111, 30 U.S.C. 821, will not be affected by our affirmance of
the judge's decision. Miners do not lose their status as miners by exercising
their right under the Mine Act to refuse to work in the face of hazardous
conditions or their right to compensation when they are withdrawn from the
mine by order of the Secretary. These are rights specifically provided under
the Mine Act. The term "miner" must be interpreted in the context of the
particular Mine Act section in which it appears in order to effectuate the
safety purposes of each section. Furthermore, the safety purposes of section
103(f) were not dimished in this instance because the striking employees were
not exposed to the hazards of mining and, thus, did not require a walkaround
representative. Those miners who were working in the mine at the time were
represented by their chosen walkaround representative. When striking
employees return to work, they once again have the right to designate a
walkaround representative. If they believe that violations or imminent
dangers exist, their representative can "obtain an immediate inspection by
giving notice to the Secretary or his representative of such violation[s] or
danger[s]" under section 103(g)(1), 30 U.S.C. 813(g)(1).

  In conclusion, we hold that the striking employees of Cyprus were not

entitled to have their previously designated walkaround representative
accompany the MSHA inspector during his inspection of the mine.

                                 III.
                              Conclusion

  For the foregoing reasons, we affirm the judge's decision.


                                Arlene Holen, Chairman


                                Richard V. Backley, Commissioner



                                Joyce A. Doyle, Commissioner


                                L. Clair Nelson, Commissioner