BHP Copper, Inc.

Plain-English summary

After a fatal ground fall at BHP's San Manuel Mine, MSHA sought an injured miner's contact information so it could interview him during its investigation. BHP declined to provide the information without the miner's consent, and the ALJ dismissed the citation. The Commission held that Mine Act section 103(a) could reasonably require an operator to provide information needed for an expeditious accident investigation, reversed the ALJ, and remanded for a penalty assessment. Commissioner Riley concurred in part and dissented in part, and Commissioners Verheggen and Beatty dissented.

Decision snapshot

• Governing provision: 30 U.S.C. § 813(a)
• Outcome: The ALJ's dismissal was reversed, and the case was remanded for imposition of an appropriate penalty.
• Key point: Section 103(a) may require an operator to provide employee contact information needed for an MSHA accident investigation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

            1730  K  STREET  NW,  6TH  FLOOR

                WASHINGTON,  D.C.   20006


                      July 30, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 98-189-RM
:
BHP COPPER, INC. :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners

                        DECISION

BY: Jordan, Chairman; Marks and Beatty, Commissioners

 This contest proceeding brought under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994)
("Mine Act" or "Act"), involves a citation issued by the
Department of Labor's Mine Safety and Health Administration
("MSHA") against BHP Copper Inc. ("BHP"). The citation charged
BHP with violating section 103(a) of the Mine Act,[1] 30 U.S.C.
§ 813(a). Administrative Law Judge Richard Manning granted
BHP's motion for summary judgment and dismissed the citation.
20 FMSHRC 634 (June 1998) (ALJ). Following the judge's
decision, the Commission granted sua sponte review, pursuant
to section 113(d)(2)(B) of the Act, 30 U.S.C.
§ 823(d)(2)(B).[2] For the reasons that follow, we reverse
the judge's determination.

                            I.

           Factual and Procedural Background[3]

 On March 4, 1998, a fall of ground at BHP's San Manuel

Mine in Arizona resulted in the death of one miner and
serious injury to a second, Ronald Byrd, who was hospitalized
following the accident. 20 FMSHRC at 634-35. On March 5,
MSHA supervisor Richard Laufenberg and Inspector Arthur Ellis
came to the mine to begin their investigation into the accident
and made a physical inspection of the accident site. Id. at

635. On March 6, the MSHA representatives interviewed a number
     of BHP employees and reviewed BHP documents relating to the
     accident. Id. However, they were unable to interview Byrd,
     the miner injured in the accident, because he was hospitalized.
     Id. Consequently, they intended to contact Byrd's family and
     interview him in the hospital. S. Cross Mot. for Partial Summ.
     Dec., Laufenberg Decl. § 4 [hereinafter "Laufenberg Decl."].
     When BHP representatives informed Laufenberg that Byrd was
     going to be released from the hospital that day, Laufenberg
     asked for Byrd's home address and telephone number. 20 FMSHRC
     at 635. BHP's counsel responded that BHP considered its
     employees' telephone numbers and addresses confidential and
     that it would not provide that information. Id. No one from
     BHP offered to contact Byrd to ascertain whether he would
     consent to BHP's supplying MSHA his telephone number and
     address.[4] Id.; Laufenberg Decl. § 7. However, Ward Lucas,
     BHP safety manager at the San Manuel Mine, told Laufenberg
     that he thought that Byrd lived in Superior, Arizona. 20
     FMSHRC at 636.

     On March 7, Ellis and Laufenberg again met with BHP
     officials, who did not disclose Byrd's address or telephone
     number or indicate that anyone had sought to obtain his
     consent to release the information. Laufenberg Decl. § 8.
     Following the meeting, Laufenberg traveled to Superior,
     Arizona to attempt to locate Byrd. 20 FMSHRC at 636.
     Laufenberg was unable to locate Byrd's telephone number in
     the telephone book for Superior. Id. He asked a local police
     officer for help in locating him, but to no avail. Id. He
     then contacted BHP Safety Manager Lucas at his home and told
     him that he was having difficulty locating Byrd. Id. Lucas
     responded that Byrd might be staying with relatives. Id.
     Laufenberg told Lucas that he would try calling persons
     listed in the telephone book with the surname "Byrd," but that
     if he was unsuccessful he would turn the matter over to the
     Solicitor's office. Id. Although Lucas did not offer to
     provide the telephone number or address, he told Laufenberg
     to call him back if the could not locate Byrd.[5] Id. After
     Laufenberg spoke with Lucas, he called a "Robert Byrd" listed
     in the telephone book. Id. Robert Byrd was a relative of
     Ronald Byrd and was able to supply the necessary information
     so that Laufenberg could contact him. Id.

     On March 12, MSHA issued a citation charging BHP with
     a violation of section 103(a) of the Act. Id. at 634. The
     citation stated that BHP impeded MSHA's accident
     investigation by withholding the address and telephone
     number of Ronald Byrd, whom MSHA needed to interview because
     he was an essential witness in the investigation. Id.

     Thereafter, BHP filed a notice of contest challenging
     MSHA's citation, and the matter was assigned to an
     administrative law judge. Stating that the essential facts
     were not in dispute, BHP filed a motion for summary decision.
     The Secretary opposed BHP's motion, arguing that there were
     disputed issues of fact. In the alternative, the Secretary
     filed a cross motion for summary decision. The judge
     concluded that there was no genuine issue of material fact
     and that summary decision in favor of BHP was appropriate.
     20 FMSHRC at 638. The judge noted that neither the Act nor
     the Secretary's regulations (30 C.F.R. Part 50) required
     mine operators to maintain a list of employees with
     addresses and phone numbers. Id. Thus, the issue, as the
     judge analyzed it, was whether section 103(a),[6] when read
     with section 103(h),[7] requires mine operators to
     immediately provide MSHA with the names and telephone
     numbers of its employees, who are potential witnesses to a
     fatal accident, without their consent. Id. at 638.
     The judge concluded that BHP did not impede MSHA's
     investigation in violation of section 103(a) when it refused
     to provide MSHA with the address and telephone number of
     Byrd without first obtaining his consent. Id. at 638-39.

     In support of his conclusion, the judge reasoned that,
     while the Secretary's right to inspect mines without a search
     warrant has been broadly construed, the Secretary does not
     have broad authority to search an operator's business
     records without his consent. Id. at 639. "MSHA cannot
     require mine operators to immediately provide confidential
     information from mine personnel files under the warrantless
     inspection authority of section 103(a) in the absence of
     compelling circumstances." Id. Rather, the judge held that
     a mine operator has the "right" to protect the privacy of
     its employees and to require that the miner consent before
     confidential information is disclosed. Id. The judge
     noted that Inspector Laufenberg did not ask BHP to attempt
     to obtain Byrd's consent to release his address and
     telephone number. Id. at 640. The judge further found that
     BHP's refusal to provide the information did not impede the
     investigation, noting that MSHA obtained the information
     through other means in about 24 hours. Id. at 640-41. The
     judge vacated the citation and dismissed the proceeding.
     Id. at 641.

                            II.
     
                        Disposition
     

     A. Adequacy of Direction for Review and BHP's Motion
     to Strike

     Initially, BHP argues that the Commission's sua sponte
     direction for review was impermissibly vague because "the
     Commission simply restates the question that had been put
     before [the judge] below." BHP Br. at 5. BHP argues that
     the Commission failed to specify the legal or policy error
     that was the basis for its review under the Act, 30 U.S.C.
     § 823(d)(2)(B). Id. at 5-8. In response, the Secretary argues
     the Commission's direction for review is not vague, noting
     that the judge's decision adequately framed the legal issues
     on review. S. Resp. Br. at 2-4.

     BHP previously filed a motion to dismiss the direction
     for review on the same grounds that it now presents in its
     brief. The Commission denied that motion by Order, dated
     September 2, 1998. We see no reason to overturn that order.
     We note that the Direction for Review stated that review was
     ordered because the judge's decision may be contrary to law
     or presents a novel question of policy. The direction
     further stated that review is directed on "the issue of
     whether an operator impeded an accident investigation in
     violation of section 103 of the Mine Act, 30 U.S.C. § 813,
     when it refused to release the address and telephone number
     of an injured miner, who also was a witness in the
     investigation." Order dated July 22, 1998. We agree with
     the Secretary that the direction for review, particularly
     when read against the backdrop of the judge's decision, more
     than adequately informs the parties of the issues before
     the Commission.

     BHP also filed a motion to strike portions of the
     Secretary's opening brief. Specifically, BHP asserts that
     the Secretary's brief raised "a host of new arguments, and
     references a variety of new evidence and expert testimony."
     BHP Mot. to Strike at 1-2; see also BHP Suppl. Mot. to Strike
     at 2.

     In Beech Fork Processing, Inc., 14 FMSHRC 1316, 1319-21
     (Aug. 1992), the Commission refused to consider a new theory
     (a presumption regarding an S&S designation of a violation,
     rather than application of the record facts under the
     Commission's test in Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984)),
     not previously presented to the administrative law judge. In
     rejecting consideration of the Secretary's new theory, the
     Commission stated that a matter raised on review must have been
     at least "implicitly" raised below or "intertwined" with an
     issue tried before the judge in order to be considered on
     appeal. Id. at 1321.

     The Secretary's arguments made to the judge and the
     Commission address the meaning and interpretation of section
     103(a). While the points raised by the Secretary before the
     Commission are not identical to those raised before the judge,
     they are "sufficiently related" to those raised in support of
     the Secretary's interpretation of section 103(a) that the
     Commission can consider them. Keystone Coal Mining Corp.,
     16 FMSHRC 6, 10 n.7 (Jan. 1994). None of these arguments are
     comparable to the novelty of the legal theory raised for the
     first time on appeal in Beech Fork. Accordingly, we deny
     BHP's motion to strike the Secretary's legal arguments
     regarding section 103(a).[8]

     In its Supplemental Motion to Strike, BHP also requests
     that the Commission strike from the record the Secretary's
     statement that BHP possessed Byrd's home telephone and
     address. BHP Suppl. Mot. to Strike at 2-3. However, BHP's
     request to strike is at odds with Lucas' declaration in which
     he stated that he obtained Byrd's address and telephone number
     from the person at BHP who handled its industrial claims but
     that Laufenberg never called him back. Lucas Decl. § 7.
     Therefore, we deny the motion to strike that statement.
     Lastly, as to BHP's motion to strike the secondary materials
     cited in the Secretary's brief (BHP Mot. to Strike at 2,
     9-10), we have disposed of the legal issues in the case
     without resort to those materials. It is therefore
     unnecessary to rule on this aspect of BHP's motion to
     strike. Southern Ohio Coal Co., 12 FMSHRC 1498, 1502 n.7
     (Aug. 1990).

     B. Violation of Section 103(a)

     The Secretary contends that sections 103(a) and (h) of
     the Act obligate a mine operator to provide the address and
     telephone number of a miner where that information is
     necessary to enable MSHA to conduct an effective accident
     investigation in a timely manner. S. Br. at 5-8, 10; S. Resp.
     Br. at 1. The Secretary asserts that, if section 103(h)
     cannot be read to create such an obligation, then section
     103(a), which grants MSHA a broad investigatory mandate,
     should be read to create the obligation because locating
     and interviewing miner witnesses is an essential part of
     an accident investigation. S. Br. at 7, 14. The Secretary
     further argues that it would be impossible to include in her
     regulations every type of information that could be the
     subject of a mine accident investigation. S. Resp. Br. at
     4-5; see id. at 10-14. The Secretary relies on Chevron USA
     Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
     837 (1984), to support her position.

     BHP contends that Chevron deference is due only to duly
     promulgated regulations and published statements of policy,
     not to arguments made in litigation. BHP Resp. Br. at 5-7;
     BHP Reply Br. at 2-6. BHP asserts that nothing in the Act
     or regulations requires that mine operators maintain records
     with miner addresses and telephone numbers and, therefore,
     there is no obligation to supply them on demand. BHP Br. at
     9; BHP Resp. Br. at 4, 7-14; BHP Reply Br. at 6-9. BHP
     further contends that the Secretary may not have access,
     without a search warrant, to any information that an operator
     is not required by regulation to maintain. BHP Br. at 9-10;
     BHP Resp. Br. 13-14 & nn.15, 17. BHP argues that the
     Secretary was required by the Act to seek injunctive relief,
     pursuant to section 108 of the Mine Act, 30 U.S.C. § 818,
     in order to obtain the requested information.[9] BHP Br.,
     Ex. 2 at 6-8.

     The Secretary responds that she was not required to
     resort to the injunctive relief provisions of the Act prior
     to issuing a citation for an operator's refusal to provide
     the requested information. S. Resp. Br. at 14-18. The
     Secretary challenges BHP's arguments that a mine operator
     has a legal duty to protect information in employee personnel
     files and that a miner's right to privacy and confidentiality
     can outweigh MSHA's right to conduct a mine accident
     investigation. S. Br. at 20-29 & n.9. Finally, the Secretary
     argues that the judge ignored Mine Act policy favoring a
     miner's right to participate in investigations in weighing
     the miner's right to privacy in not having his home address
     disclosed. Id. at 18-19. The Secretary therefore concludes
     that BHP's refusal to turn over the requested information or
     to even request the miner's permission to release the
     information unlawfully impeded MSHA's ability to investigate
     the accident. Id. at 30-32.

     The first inquiry in statutory construction is "whether
     Congress has directly spoken to the precise question at
     issue." Chevron, 467 U.S. at 842; Thunder Basin Coal Co.,
     18 FMSHRC 582, 584 (Apr. 1996). If a statute is clear and
     unambiguous, effect must be given to its language. See
     Chevron, 467 U.S. at 842-43; accord Local Union No. 1261,
     UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990).[10] If,
     however, the statute is ambiguous or silent on a point in
     question, a second inquiry, commonly referred to as a
     "Chevron II" analysis, is required to determine whether an
     agency's interpretation of a statute is a reasonable one.
     See Chevron, 467 U.S. at 843-44; Thunder Basin, 18 FMSHRC at
     584 n.2; Keystone, 16 FMSHRC at 13. Deference is accorded
     to "an agency's interpretation of the statute it is charged
     with administering when that interpretation is reasonable."
     Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C.
     Cir. 1994) (citing Chevron, 467 U.S. at 844). The agency's
     interpretation of the statute is entitled to affirmance as
     long as that interpretation is one of the permissible
     interpretations the agency could have selected. See Joy
     Technologies, Inc. v. Secretary of Labor, 99 F.3d 991, 995
     (10th Cir. 1996), cert. denied, 520 U.S. 1209 (1997), citing
     Chevron, 467 U.S. at 843; Thunder Basin Coal Co. v. FMSHRC,
     56 F.3d 1275, 1277 (10th Cir. 1995).[11]

     Although it is not apparent from the plain language of
     section 103(a) of the Act, we agree with the Secretary that
     section 103(a) can be reasonably interpreted to require a
     mine operator to disclose information such as that sought
     here that enables MSHA to conduct an accident investigation
     in an expeditious manner. See Chevron, 467 U.S. at 842-
     43.[12] Section 103(a) provides, inter alia, that the
     Secretary is authorized to conduct inspections and
     investigations to "obtain[], utiliz[e], and disseminat[e]
     information relating to health and safety conditions, [and]
     the causes of accidents." 30 U.S.C. § 813(a). To that end,
     the Secretary's Program Policy Manual provides that an
     operator may not interfere, directly or indirectly, with
     MSHA's right to inspect or investigate. I MSHA, U.S. Dept.
     of Labor, Program Policy Manual, I.103-1 (1996).
     Information that allows MSHA to identify and contact
     witnesses to mine accidents is absolutely essential to
     MSHA's ability to conduct a thorough and effective
     investigation. In this connection, the Program Policy
     Manual also provides, "[b]ecause observations can be
     distorted with time and because conditions can change, all
     witnesses to the accident should be interviewed as soon as
     possible." Id. at I.103-4a (1988). In addition, the MSHA
     Handbook Series (No. I-1 July 1988), Investigation of Mining
     Accidents, emphasizes the importance of witness statements
     (id. at 12-13), and provides for interviews of witnesses who
     are injured or hospitalized because of their involvement in
     an accident (id. at 35-36).

     The legislative history of the Mine Act supports a broad
     interpretation of the Secretary's power to investigate mine
     accidents and to obtain assistance from the operator. The
     Senate Report explicitly articulates the Secretary's
     responsibility "to determine the cause of the accident and
     thereby prevent the future occurrence of a similar
     accident." S. Rep. No. 181, 95th Cong., 1st Sess. 29
     (1977), reprinted in Senate Subcommittee on Labor, Committee
     on Human Resources, 95th Cong., 2d Sess., Legislative
     History of the Federal Mine Safety and Health Act of 1977,
     at 617 (1978) ("Legis. Hist."). The Senate Report also
     emphasized the importance of the Secretary's investigative
     power, stating: "Section [103](a) authorizes the Secretary
     . . . to enter upon, or through any mine for the purpose of
     making any inspection or investigation under this Act. This
     is intended to be an absolute right of entry without need to
     obtain a warrant." Legis. Hist. at 615. In addition, the
     Conference Report provides in regard to present section
     103(j):[13] "Both the Senate bill and the House amendment
     contained substantially similar provisions, . . . requiring
     operators to take steps to assist in the investigation of
     accidents." Legis. Hist. at 1325. While that statement
     pertains to another provision in section 103 dealing with
     the investigation of accidents and the preservation of
     evidence, Congressional intent to require operator
     assistance under section 103 in the investigation of mine
     accidents is clear.

     Commission precedent also supports the Secretary's
     position regarding access to accident witnesses. In U. S.
     Steel Corp., 6 FMSHRC 1423 (June 1984), the Commission
     considered whether an operator violated section 103(a) when
     it restricted access to an accident scene and insisted on
     the presence of corporate counsel during an investigative
     interview of one of its foremen. In ruling that the
     operator violated the Act when it denied access to the MSHA
     investigator (who was at the mine conducting a regular
     inspection), we held that section 103(a) conferred broad
     authority on MSHA to conduct mine inspections. Id. at 1430-
     31. We also concluded that the operator violated section
     103(a) when it insisted that its attorney be present during
     MSHA's interview of a foreman pursuant to an accident
     investigation, and then failed to produce the attorney or
     specify when he or she would be available. We held that
     this impeded the accident investigation in violation of
     section 103(a). Id. at 1433.

     Unless the Secretary's right to be on mine property
     and investigate accidents is a hollow one, it must carry
     with it the right to interview witnesses. In the present
     proceeding, MSHA was lawfully at the mine site, pursuant to
     section 103(a)(1), to conduct an accident investigation.
     BHP's blanket refusal to provide Byrd's telephone number and
     home address, coupled with its failure to contact Byrd to
     get his permission to release the information (Traweek Decl.
     § 5; Lucas Decl. §§ 4-5), had the effect of unreasonably
     delaying the accident investigation. As a result of BHP's
     conduct, MSHA experienced a delay of at least one day in
     obtaining sufficient information to contact Byrd. 20 FMSHRC
     at 640-41; see Laufenberg Decl. §§ 5, 9-12. BHP's actions
     in denying MSHA the information necessary for it to contact
     an eyewitness to a fatal accident impeded the investigation
     and therefore violated the Mine Act.

     We are not persuaded by BHP's argument that, during
     an investigation, section 103(a) only requires an operator
     to supply MSHA with information that it is required by
     regulation to maintain. Nothing in section 103(a) or any
     other provision of the Mine Act limits the Secretary's
     investigative powers to such information. Moreover, it
     would be contrary to the purposes and policies of the Mine
     Act to interpret the Act in a manner that encumbers the
     Secretary's ability to effectively and expeditiously
     investigate accidents.

     In opposing the Secretary's interpretation of section
     103(a), BHP relies on Donovan v. Dewey, 452 U.S 594 (1981),
     to argue that the Mine Act does not grant the Secretary
     authority to demand employee addresses and telephone numbers
     without utilizing the injunction provisions of section 108.
     BHP Br., Ex. 2 at 6-9. Contrary to BHP's argument, the
     Secretary's decision to proceed against it with a citation
     and penalty, instead of an injunction under section 108, is
     proper. In the Dewey case, the Secretary had successfully
     sought injunctive relief requiring an operator, Waukesha
     Lime and Stone Company, to permit entry to MSHA inspectors
     without a warrant. Subsequently, in Waukesha Lime & Stone
     Co., 3 FMSHRC 1702 (July 1981), the Commission held that,
     even though the Supreme Court in Dewey had upheld the
     validity of warrantless inspections at Waukesha under the
     injunctive relief section of the Mine Act, the Commission
     was still required to determine whether the operator's
     refusal to permit an inspection was a violation of the Act
     for which a penalty must be imposed. Id. at 1703. The

     Commission rejected the argument that the Secretary's
     exclusive remedy was under section 108(a) and held that dual
     remedies exist. Id. at 1704; see also Tracey & Partners, 11
     FMSHRC 1457, 1462 n.3 (Aug. 1989).[14]

     In Dewey, the Supreme Court upheld the Secretary's
     authority to periodically inspect mines, pursuant to section
     103(a) of the Mine Act, without obtaining a search warrant.
     452 U.S. at 602. In approving the Secretary's authority to
     engage in warrantless inspections of mines, the Court noted
     in particular the strong federal interest in improving the
     health and safety of mines, which a warrant requirement
     might impede, and the pervasive federal regulatory scheme
     with which mine operators must comply. Id. at 602-603. We
     recognize, as did the Court in Dewey, that the bounds of the
     Secretary's authority are not without limits, and that
     section 103 provides the "certainty and regularity of its
     application" that is a substitute for a warrant. Id. at
     603. In this regard, section 103(a) limits the Secretary's
     investigatory authority to "obtaining, utilizing, and
     disseminating information relating to . . . the causes of
     accidents." 30 U.S.C. § 813(a). The telephone number and
     home address of a miner witness sought in the instant
     proceeding falls well within those bounds. By its nature,
     the scope of an accident investigation will be broader than
     a quarterly inspection. However, it is still the case that
     "the standards with which a mine operator is required to
     comply are all specifically set forth in the Act or in Title
     30 of the Code of Federal Regulations." Dewey, 452 U.S. at
     604. Those standards govern the general course of MSHA's
     investigation and the issuance of citations. Thus, as the
     Court further stated in Dewey: "The discretion of
     Government officials to determine what facilities to search
     and what violations to search for is . . . directly
     curtailed by the regulatory scheme." Id. at 605.[15]

     BHP further defends its refusal to supply Byrd's home
     address and telephone on the basis of its claim that the
     Secretary's interpretation and application of section 103(a)
     impinges on employee privacy and confidentiality. We
     conclude that, in the circumstances present here, concerns
     about employee privacy and confidentiality do not insulate
     BHP from providing a home address and telephone number for
     an employee who was essential to MSHA's investigation of a
     fatal accident.

     In addressing the constitutional right of privacy,[16]
     "[t]he Supreme Court has limited the . . . right . . . to
     interferences with `a person's most basic decisions about
     family and parenthood . . . as well as bodily
     integrity.'" California v. FCC, 75 F.3d 1350, 1361 (9th
     Cir. 1996) (citations omitted), cert. denied, 517 U.S. 1216
     (1996), quoting Planned Parenthood v. Casey, 505 U.S. 833,
     849 (1992). However, it is generally accepted that "[a]
     phone number is not among the select privacy interests
     protected by a federal constitutional right to privacy."
     Id. The result is no different for an unpublished telephone
     number. See id. at 1362. Similarly, an individual's name
     and address is a matter of public record in motor vehicle
     registration and licensing records and therefore not
     encompassed within the right of privacy because there is no
     expectation of confidentiality. Condon v. Reno, 155 F.3d
     453, 464-465 (4th Cir. 1998).

     BHP has not cited any authority contrary to these
     principles. Instead, it cites to cases arising under the
     Privacy Act, 5 U.S.C. § 552a (1988 ed.) and the Freedom of
     Information Act ("FOIA"), 5 U.S.C. § 552 (1997). However,
     these laws apply only to the dissemination of information by
     federal agencies. Thus, neither these statutes nor the
     cases litigated under them are determinative of the
     propriety of BHP's refusal as a private sector employer to
     release the telephone numbers and home address of one of its
     employees to MSHA during an investigation under the Mine
     Act.[17]

     Consequently, BHP's reliance on Department of Defense v.
     FLRA, 510 U.S. 487 (1994), is misplaced. In that case, the
     Court held that FOIA did not require the agencies to divulge
     addresses, and that, accordingly, the Privacy Act prohibited
     their release. Id. at 502. However, the Court's decision
     was in large part based on "the negligible FOIA-related
     public interest in disclosure" in that case. Id. In
     contrast, as we have made clear, there is a compelling
     interest in MSHA's ability to conduct a thorough
     investigation of a mine accident. In short, BHP has not
     persuaded us that its employees have a right to
     confidentiality or privacy[18] with respect to their phone
     number or home address that trumps the broad wording of
     section 103(a).

     We conclude that, on the record before us, the judge
     erred in concluding that BHP's refusal to disclose an
     employee's address and telephone number did not violate
     section 103(a). While in this case MSHA was ultimately able
     to obtain Byrd's whereabouts through a relative,
     investigations into fatal accidents should not turn on such
     circumstances when an operator can supply the needed
     information.[19]

                            III.
     
                         Conclusion
     

     For the foregoing reasons, we reverse the judge's
     decision and remand the proceeding to the judge for
     imposition of an appropriate penalty.

                                Mary Lu Jordan, Chairman
     
                                Marc Lincoln Marks, 
                                  Commissioner
     
                                Robert H. Beatty, Jr.,
                                  Commissioner
     

FOOTNOTES

 [1]:   Section 103(a) of the Mine Act provides, in

pertinent part:

           Authorized    representatives   of   the
      Secretary   .   .  .  shall   make   frequent
      inspections  and investigations  in  coal  or
      other mines each  year for the purpose of (1)
      obtaining,   utilizing,   and   disseminating
      information relating  to  health  and  safety
      conditions, the causes of accidents, and  the
      causes  of  diseases and physical impairments
      originating in  such  mines,  .  .  . and (4)
      determining whether there is compliance  with
      the  mandatory  health or safety standards or
      with any citation,  order, or decision issued
      under  this  title or other  requirements  of
      this Act. . .  .   For  the purpose of making
      any  inspection or investigation  under  this
      Act, .  .  . any authorized representative of
      the Secretary  .  .  .  shall have a right of
      entry to, upon, or through  any coal or other
      mine.

 [2]: Following  the  Commission's direction of review,

BHP filed a petition for writ of mandamus from the United
States Court of Appeals for the Ninth Circuit in which it
requested, inter alia, that the court order the Commission
to vacate its direction of review. The court denied BHP's
petition in an order dated September 8, 1998.

 [3]: Because the case was decided on a motion for

summary decision, the facts, as found by the judge, were
taken from the affidavits submitted by BHP and the
Secretary. Where there were conflicts in testimony, the
judge stated that he accepted the account provided by the
Secretary, the party against whom summary decision was
granted. 20 FMSHRC at 635, 638.

 [4]: The judge noted in his decision that there  was

disputed testimony about whether there was an offer to
contact Byrd at the meeting on March 6. 20 FMSHRC at 635.
BHP's corporate safety manager, Warren Traweek, stated in his
affidavit that BHP offered to contact Byrd to see whether
he would consent to BHP giving his telephone number and
address to MSHA. BHP Mot. for Summ. Dec., Ex. D § 5
[hereinafter Traweek Decl.].

 [5]: Lucas stated in his declaration that he told

Laufenberg that he did not have Byrd's telephone number and
address but that he would try and find it. BHP Mot. for Summ.
Dec., Ex. E § 6 [hereinafter "Lucas Decl."]. He further stated
that he then contacted BHP offices and obtained the information
but that Laufenberg never called back. Id. at § 7.

 [6]: The judge specifically quoted the  language of

section 103(a)(4), which governs the Secretary's right to
conduct inspections at mines to determine whether there are
violations of standards, instead of section 103(a)(1), which
specifies the Secretary's right to conduct investigations to
obtain information relating to the causes of accidents. 20
FMSHRC at 635; see 30 U.S.C. § 813(a).

 [7]: Section 103(h), 30 U.S.C. § 813(h), provides:

      In   addition   to   such  records   as   are
      specifically  required  by  this  Act,  every
      operator  of  a  coal  or  other  mine  shall
      establish  and maintain  such  records,  make
      such reports,  and  provide such information,
      as the Secretary or the  Secretary of Health,
      Education, and Welfare may reasonably require
      from time to time to enable  him  to  perform
      his  functions under this Act.  The Secretary
      or the  Secretary  of  Health, Education, and
      Welfare  is authorized to  compile,  analyze,
      and publish,  either  in  summary or detailed
      form,   such   reports   or  information   so
      obtained.   Except  to  the extent  otherwise
      specifically  provided  by   this   Act,  all
      records,   information,   reports,  findings,
      citations,  notices,  orders,   or  decisions
      required or issued pursuant to or  under this
      Act  may be published from time to time,  may
      be released  to  any  interested  person, and
      shall    be   made   available   for   public
      inspection.

 [8]: We do not reach the Secretary's additional argument

that the scope of review for sua sponte review pursuant to
section 113(d)(2)(B) is different than the scope of review
for a direction for review pursuant to section 113(d)(2)(A).
S. Resp. to Mot. to Strike at 2-8.

 [9]: BHP argues  in  its  motion  to  strike  that  the

Secretary improperly raised on review the issue of resort to
injunctive relief pursuant to section 108. BHP Suppl. Mot.
to Strike at 3-4. However, the Secretary made this argument
in response to a point made by BHP in its opening brief.
S. Resp. Br. at 14-18. Accordingly, BHP has waived any
objection to the Commission's consideration of the argument.
More significantly, the judge considered section 108(a) and
its injunctive relief provisions in his decision (20 FMSHRC
at 639), and it is therefore appropriate for the parties to
address it. See Morton Int'l, Inc., 18 FMSHRC 533, 536 n.5
(Apr. 1996).

 [10]: The examination to determine whether there is such

a clear Congressional intent is commonly referred to as a
"Chevron I" analysis. See Thunder Basin, 18 FMSHRC at 584;
Keystone Coal Mining Corp., 16 FMSHRC 6, 13 (Jan. 1994).

 [11]:  BHP's argues that Chevron deference is due only

to "statutory interpretations embodied in the agency's duly
promulgated, long-standing regulations and published policy
statements." BHP Resp. Br. at 5 (emphasis omitted). Under
analogous circumstances, however, the Secretary's litigation
position has been found to be entitled to deference under
the Occupational Safety and Health Act. Martin v. OSHRC,
499 U.S. 144, 156-57 (1991).

 [12]: Because we base our holding on section 103(a),

we do not address the Secretary's alternative argument that
section 103(h) obligated BHP to disclose the miner's address
and telephone number.

 [13]: Section  103(j),  30  U.S.C.  § 813(j), provides

in relevant part that, in the event of a mine accident the
operator "shall notify the Secretary thereof and shall take
appropriate measures to prevent the destruction of any
evidence which would assist in investigating the cause or
causes thereof."

 [14]: The "procedural safeguards provided in the Act

that allow the operator to raise privacy concerns prior to
the imposition of sanctions," which BHP states are necessary
to make the Secretary's inspection authority constitutional
(BHP Br. at 12), are present regardless of whether the
Secretary proceeds under section 108 or by issuing a
citation under section 104(a). An operator who has been
issued a citation can contest it, along with any proposed
penalty, before an administrative law judge, as BHP did
here, subject to discretionary review by the Commission and
an automatic right of review by the court of appeals. See
Dewey, 452 U.S. at 597 & n.3 and 604-05.

 [15]: BHP relies on Sewell Coal Co., 1 FMSHRC 864 (July

1979) (ALJ), to support its argument that MSHA cannot obtain
information concerning employees that neither the Mine Act
or regulations require it to keep. At issue in Sewell was
the Secretary's right to review employee personnel files to
verify the mine operator's accident, illness and injury
reporting under Part 50. Id. at 865. The judge concluded
"that the Mine Safety and Health Act does not authorize
wholesale warrantless, nonconsensual searches of files and
records in a mine office." Id. at 872. This case, in
contrast, presents a limited request for information that
would have assisted MSHA in making expeditious contact with
an eyewitness to a fatal accident. MSHA is not requiring
BHP or any other mine operator to maintain records or
disclose information that would establish a violation of
the Mine Act or the regulations. Compare Sewell, 1 FMSHRC
at 873. Consequently, our holding is fact-specific and we
do not address disclosure of other information not at
issue in this case. We also note that Sewell, which predates
Dewey, was not reviewed by the Commission and, therefore,
is not binding precedent. Commission Procedural Rule 72,
29 C.F.R. § 2700.72.

 [16]: In addressing the individual's constitutional

right of privacy, although not free from doubt, there
appears to be sufficient authority to support BHP's
standing to assert the right of privacy of its employees, as
it did in the instant proceeding. See United States v.
Westinghouse Electric Corp., 638 F.2d 570, 574 (1980); see
also NLRB v. British Auto Parts, Inc., 266 F. Supp. 368,
373 (C.D. Cal. 1966), aff'd 405 F.2d 1182 (9th Cir. 1968)
(assuming without deciding that an employer had standing
to raise the constitutional rights of its employees).

 [17]: We find more analogous and persuasive case law

under the National Labor Relations Act, involving private
sector employers. When employees file a petition requesting
an election to vote on union representation (see generally
29 U.S.C. § 159(e)), the National Labor Relations Board
("NLRB") requires an employer to supply a list of the
employees in the bargaining unit in which a union election
will occur and their home addresses. The NLRB, in turn,
supplies that list to the petitioning union. See Excelsior
Underwear, Inc., 156 NLRB 1236 (1966). In NLRB v.
British Auto Parts, 266 F. Supp. at 373, an employer
challenged the disclosure of its employees' names and
addresses to the NLRB on the grounds that it violated the
employees' right of privacy. The court rejected this
challenge, reasoning that the NLRB's Excelsior rule, which
mandated access to the electorate by all participants in an
NLRB-conducted election, did not disclose employees' beliefs
or associations, and did not require employees who were
visited by union members at their homes to allow them in.
Id. The court also dismissed the employer's argument that
there was an implied right of confidentiality in the
information. Id. at 374.

 [18]: In addition to the federal constitutional right

of privacy, an individual may have a common law tort action
for damages suffered as a result of an improper invasion of
privacy. Concerning this common law right of privacy, the
"mere publication of a person's address, no matter what the
circumstances, could not constitute an invasion of
his privacy." Philip E. Hassman, Annotation, Privacy -
Publication of Address as well as Name of Person as
Invasion of Privacy, 84 A.L.R. 3d 1159, 1160 (1978). A
plaintiff with an unlisted telephone number failed to
make out a case of invasion of privacy where he sued the
telephone company that released his address. Montinieri v.
Southern New England Tel. Co., 398 A.2d 1180 (Conn. 1978),
cited in 1 A.L.R. 4th, 209, 215-216; see Charles C. Marvel,
Annotation, Telephone Company's Liability for the
Disclosure of Number or Address of Subscriber Holding
Unlisted Number, 1 A.L.R. 4th 218 (1980). Finally, BHP has
not cited any case in which an employee brought an action
against an employer for release of information similar
to that which was sought here.

 [19]:   Contrary  to  our  dissenting  colleague's
      suggestion  (slip  op. at 15), we do not find
      that the record supports  that MSHA's attempt
      to obtain the address and telephone number of
      a   witness   to   a   fatal   accident   was
      "confrontational."  Nor do we agree  that the
      requested   information  was  an  "ancillary"
      issue (slip op. at 15), since the information
      was necessary  to  locate a key witness in an
      accident investigation.

 Commissioner Riley, concurring in part and dissenting

in part:

 I agree with my  colleagues  on  the  analysis  and
 interpretation of section 103(a).  However, based on
 the facts of this case even taken in  a  light  most 
 favorable to the Secretary, I cannot agree that the 
 Secretary established that BHP impeded or interfered 
 with MSHA's investigation.  The delay in obtaining 
 the  information  necessary  to  contact  Byrd  was 
 insubstantial. Moreover, like the judge, 20 FMSHRC at
 641, I note that MSHA could  easily  have  contacted 
 Byrd's union representative to locate him. Nor is it
 apparent that MSHA, working with information provided
 by BHP, could not have expeditiously used other sources
 of information, including the Internet and state 
 drivers' license data bases, to locate Byrd without 
 having to travel to Superior, Arizona or waiting 24 
 hours. Thus, I would affirm the judge in result.


                               James C. Riley, 
                                 Commissioner

 Commissioner Verheggen, dissenting:

 I agree with my colleague Commissioner Riley that, for

the reasons stated in his decision, the Secretary failed to
prove that BHP materially impeded her investigation. See Jim
Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987) ("In an
enforcement action before the Commission, the Secretary bears
the burden of proving any alleged violation"); Wyoming Fuel
Co., 14 FMSHRC 1282, 1294 (Aug. 1992). I therefore join
with Commissioner Riley in affirming the judge in result.

 But I do not join Commissioner Riley  and the  rest of

my colleagues in their decision that the Secretary's
interpretation of section 103(a) is correct. In light of my
disposition of this case, I need not, and do not, reach the
merits of this issue. I note with regret, however, that the
majority has neglected to place any limits on the ruling it
announces today. I fear that this may be a case where bad
facts make bad law.

 I believe that we should encourage through our decisions

the consensual exchange of information between MSHA and
operators, especially when the information has anything to do
with an accident at a mine. In this case, I fault MSHA for
failing to attempt to obtain information on Byrd's whereabouts
in a less confrontational manner[1] - for example, by asking
BHP to help arrange a meeting with Byrd.[2] The judge
noted that Inspector Laufenberg "[did] not recall [BHP's
representatives] offering to contact Byrd to obtain his
permission to release his phone number." 20 FMSHRC at 639.
But I also fail to find anything in the record to suggest
that MSHA made any such request - and the agency, after all,
was supposedly in the best position to make such a request
initially. MSHA's job was to obtain information regarding a
fatal accident, not to take a stand on an ancillary issue
such as this.

 I also fault BHP for failing to offer "to contact Byrd

to obtain his permission to release his phone number." Id.
Given the lack of any privacy interest in addresses and phone
numbers (slip op. at 11), which I regard as a matter of common
sense given the ease with which such information can be
obtained over the Internet or elsewhere, I find BHP's conduct
in this case unfortunate. I fully appreciate the need for
operators to proceed with caution in their dealings with
MSHA during accident investigations because the operators
and their agents face potential section 104 or 110(c)
liability. But here, BHP's confrontational actions go beyond
any reasonable degree of caution.

 From this scenario, today's decision would have better

served the interests of the consensual exchange of information
by assigning blame where it belongs - on both parties - for
allowing this dispute to grow far out of proportion. Instead,
the majority makes the broad pronouncement that "section
103(a) can be reasonably interpreted to require a mine
operator to disclose information such as that sought here
that enables MSHA to conduct an accident investigation in an
expeditious manner." Slip op. at 7-8. The Mine Act places
strict limits on how the Secretary may obtain information that
is not required to be kept under the Act. See, e.g., 30 U.S.C.
§§ 813(b) and 818(a).[3] I believe that we must adjudicate
disputes over where these limits lie with far greater care
than that shown by the majority today.

 Having found the need to reach the ultimate issue here,

despite the evidentiary weaknesses of the Secretary's case,
the majority ought to have at least limited the scope of its
decision to addresses and phone numbers. I fear that by
failing to do so, the majority has invited the Secretary to
push the limits of the Mine Act further by demanding, for
instance, warrantless access under section 103(a) to
disciplinary and medical records contained in personnel
files - and no one can deny that enormous privacy interests
surround such information.[4]

                          Theodore F. Verheggen, 
                            Commissioner

Distribution

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Mark Savit, Esq.
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C. 20037

Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

FOOTNOTES

 [1]:  Confrontational, that is, insofar as a citation

was issued and a litigation pursued over information
that was obtained quickly from other sources with relative
ease.

 [2]:  Ironically, even had BHP immediately acceded to

MSHA's request, it is not at all certain that the inspectors
would have found Byrd any quicker because apparently, he may
have been staying with relatives. 20 FMSHRC at 636. It also
appears that BHP may have needed some time to obtain the
information MSHA requested. See Lucas Decl. at § 7. Indeed,
I find the majority's statement that "[a]s a result of BHP's
conduct, MSHA experienced a delay of at least one day in
obtaining sufficient information to contact Byrd" (slip op.
at 9) an overstatement that is unsupported by the record.

 [3]:  I hope that in the  wake  of  this  dispute, the

Secretary will move to amend her accident report regulation
under which operators must investigate mine accidents and
report the results of their investigations to MSHA. See 30
C.F.R. § 50.11(b). Section 50.11 provides that any such report
must include "[t]he name, occupation, and experience of any
miner involved" in the accident. The Secretary should amend
this regulation to say "name and contact information" instead,
under which provision BHP would have been obligated to provide
to MSHA the information at issue here.

 [4]:   I  also  find  the majority's reliance on U.S.

Steel Corp., 6 FMSHRC 1423 (June 1984), misplaced. This case
arose over a disagreement concerning the ability of MSHA to
obtain information without a warrant which the operator
maintained in its personnel files. The U.S. Steel case, on
the other hand, involved an operator denying MSHA physical
entry to an area of its mine, as well as stalling MSHA's
investigation by insisting on a right to counsel, then
failing to supply such counsel in a timely fashion. I fail
to see how any two cases could be any more different.