Secretary of Labor (MSHA) on behalf of Billy Dale Wise and Leo E. Conner v. Consolidation Coal Company (ALJ decision, June 25, 1985)

Plain-English summary

The Secretary brought discrimination complaints on behalf of miners Billy Dale Wise and Leo E. Conner, who accompanied MSHA inspectors as representatives of miners for part of their shifts at Consolidation Coal's Ireland Mine. They were paid for that time but claimed another $10.62 each in overtime pay for working through a 30-minute lunch period. The judge found that lunch could have been scheduled later in their shifts and that both miners chose not to return to work for the remaining time. He held that they had not shown a loss of pay during their participation in the inspections. He denied the discrimination complaints and dismissed both cases.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 813(f), 815(c)(1).
• Outcome: Both pay-related discrimination complaints denied and dismissed; no additional pay awarded.
• Key point: The judge found no lost pay during the inspection periods because a later lunch break remained available and the miners chose not to complete their shifts.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. CONSOLIDATION COAL
DDATE:
19850625
TTEXT:
~968
Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
DISCRIMINATION PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. WEVA 85-148-D
ON BEHALF OF
MSHA Case No. MORG CD 84-16
BILLY DALE WISE, AND
LEO E. CONNER,
Docket No. WEVA 85-149-D
COMPLAINANTS
MSHA Case No. MORG CD 84-19
v.
Ireland Mine
CONSOLIDATION COAL COMPANY,
RESPONDENT

APPEARANCES: Covette Rooney, Esq., and Linda M. Henry, Esq., U.S. Department of Labor, Office of the
Solicitor, Philadelphia, Pennsylvania, for Complainants;
Karl T. Skrypak, Esq., Consolidation Coal Company, Pittsburgh, Pennsylvania, for
Respondent

DECISION

Before: Judge Melick

These consolidated proceedings are before me upon the complaints of discrimination by the Secretary of Labor on behalf of Billy Dale Wise and Leo E. Conner under the provisions of section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 810 et seq., the "Act." The individual Complainants allege that they suffered discrimination when the Consolidation Coal Company (Consol) failed to pay them overtime for a 30 minute "lunch period" during the time they participated as section 103(f) representatives of miners with inspectors for the Federal Mine Safety and Health Administration (MSHA). (FOOTNOTE.1) Motions to dismiss filed by Consol on the grounds that the complaints had been untimely ~969 filed were denied by an interlocutory decision dated May 17, 1985 (Appendix A).

The essential facts in these cases are not in dispute. The individual Complainants, Billy Wise and Leo Conner, were hourly employees at Consol's Ireland Mine regularly employed as a "Longwall Shear Operator" and as a "Longwall Mechanic", respectively. Both jobs were classified at grade 5 and paid $14.165 an hour in accordance with the National Bituminous Coal Wage Agreement of 1981 (Wage Agreement).

On Monday, July 16, 1984, Mr. Wise participated as a section 103(f) representative of miners in a close-out conference with an MSHA inspector for 5-1/2 hours. At the completion of this conference Mr. Wise chose not to return to work for Consol (though such work was available) but elected to go on "union business" for the remaining 2-1/2 hours of his shift. While on "union business" the individual is not under the direction or control of the mine operator and, in accordance with the Wage Agreement, is not paid by the operator for such business.

On Thursday, July 19, 1984, Mr. Conner similarly participated as a section 103(f) representative of miners during an inspection with an MSHA inspector for 5-1/2 hours. At the completion of this inspection Mr. Conner similarly chose not to return to work but "went home" for the remaining 2-1/2 hours of his shift.

The Complainants herein were paid for the 5 1/2 hours during which they acted as representatives of miners but claim that they are also entitled to an additional $10.62 corresponding to the overtime pay given to those employees who, during a particular shift, work through their 30 minute lunch period. They claim that the failure of Consol to pay this amount constitutes an unlawful loss of pay under section 103(f) of the Act and accordingly claim that this was discriminatory under section 105(c)(1) of the Act.

Section 103(f) provides in part that: "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." The specific issue before me then is whether the Complainants suffered a loss of pay during the stated periods of their participation as representatives of miners.

Under the Wage Agreement each miner is entitled to a paid 30 minute lunch period during the normal 8 hour "collar ~970 to collar" workday. More often than not however, the individual Complainants and other miners elect to work through their 30 minute lunch period for time-and-one-half pay of $10.624. Since it is not disputed that lunch periods under the Wage Agreement may be staggered however, it is apparent that the Complainants could have had their lunch periods scheduled at a time subsequent to the 5-1/2 hours they acted as representatives of miners.

Moreover, since the Complainants chose not to return to work to complete their shifts it cannot be said that they were deprived of either their lunch period or the alternative overtime pay for work through their lunch period. The Complainants therefore cannot prove that they suffered any loss of pay during the period of their participation as section 103(f) representatives of miners even if they chose not to take their 30 minute lunch period during that time.

Accordingly, the charges of discrimination are denied and the cases dismissed.

Gary Melick
Administrative Law Judge

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Footnotes start here:-

~Footnote_one

1 Section 103(f) of the Act provides in part that "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 . . . for the purpose of aiding such inspection and to participate in any pre- or post-inspection conferences held at the mine."