Consolidation Coal Company

Plain-English summary

Richard N. Truex served as a miners' representative at a post-inspection conference at Consolidation Coal Company's McElroy Mine. The company required him to take unpaid "union business" status and then refused to let him return to work after the conference. Judge Gary Melick found that this denied Truex the statutory opportunity to act as an authorized miners' representative and violated the Mine Act's anti-discrimination provision. The judge awarded $99.88 in back pay and interest, and assessed a $600 civil penalty against Consolidation Coal Company.

Decision snapshot

• Cited provisions: 30 U.S.C. § 813(f) and § 815(c)(1), with the complaint brought under § 815(c)(2).
• Outcome: Discrimination was found, $99.88 in back pay and interest was awarded, and a $600 civil penalty was assessed.
• Key point: An operator may not prevent a miners' representative from participating in a post-inspection conference by forcing the representative into unpaid status.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. CONSOLIDATION COAL
DDATE:
19850920
TTEXT:

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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 85-151-D
ON BEHALF OF
RICHARD N. TRUEX, MSHA Case No. MORG CD 85-2
COMPLAINANT
v. McElroy Mine

CONSOLIDATION COAL COMPANY,
RESPONDENT

                            DECISION

Appearances: Howard K. Agran, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Complainant;
Karl T. Skrypak, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania,
for Respondent.

Before: Judge Melick

 This case is before me upon the complaint by the Secretary

of Labor on behalf of Richard N. Truex, pursuant to section
105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. 801 et seq., the "Act." Mr. Truex alleges herein that he
suffered a discriminatory loss of pay in violation of section
105(c)(1) of the Act (FOOTNOTE.1) because of

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his participation as a representative of miners at a
post-inspection conference under section 103(f) of the Act.(FOOTNOTE.2)
A motion to dismiss filed by the Consolidation Coal Company
(Consol) on the grounds that the complaint had been untimely
filed was denied by interlocutory decision dated May 17, 1985
(Appendix A).

 In order for the Complainant to establish a prima facie

violation of section 105(c)(1) of the Act, he must prove by a
preponderance of the evidence that Mr. Truex engaged in an
activity protected by that section and that he suffered
discrimination that was motivated in any part by the protected
activity. Secretary ex rel. David Pasula v. Consolidation Coal
Company, 2 FMSHRC 2786 (1980), rev'd on other grounds sub nom
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d
Cir.1981). See also Boitch v. FMSHRC, 719 F.2d 194 (6th
Cir.1983), and NLRB v. Transportation Management Corporation, 462
U.S. 393 (1983), affirming burden of proof allocations similar
to those in the Pasula case.

 The essential facts in this case are not in dispute. Richard

Truex was, during relevant times, a member of the Union Local
1638 Safety Committee (under the United Mine Workers of America)
chaired by Local President, Richard E. Lipinski. On August 27,
1984, an inspector for the Federal Mine Safety and Health
Administration (MSHA), an authorized representative of the
Secretary, telephoned Consol's Mine Safety Director, Tom Olzer,
to inform him that he would be arriving at the mine at
approximately 9:30 the next morning for what has been agreed was
to be a section 103(f) post-inspection conference. Olzer later
advised Truex of MSHA's plans and, in turn, Truex told Lipinski.
It is not disputed that Lipinski, on behalf of the union, then
asked Truex to act as representative of miners at the conference.

 At 7:50 the next morning Truex told Olzer that he would be

the union representative for the conference. Olzer responded that
since no inspector was then at the mine Truex would have to go to
work with his regular crew on the 8:00 a.m. to 4:00 p.m. shift.
Truex then asked if he could work

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until the MSHA inspector arrived. Olzer responded that Consol's
policy was to obtain miners' representatives from the area an
inspector visits. Truex then asked if he could work in the
"Bottom" so that he could be available for the inspection. Olzer
refused.

 It is not disputed that Truex at this point stated that he

was on "union business" because he believed that he would
otherwise have been unable to attend the post-inspection
conference as the representative of miners. Olzer told him that
if he was on "union business", he would not be permitted to
perform any work that day.(FOOTNOTE.3) It is not disputed that Truex
performed no "union business" that day other than that related
specifically to the section 103(f) post-inspection conference.

 The MSHA inspector arrived around 9:20 a.m. and Truex

accompanied him for the 1 1/2 hour conference. At the conclusion
of the conference Truex asked to go to work for the remainder of
the shift. Olzer refused the request. Consol has paid Truex at
his regular rate of pay for only the 1 1/2 hour conference.
Accordingly he seeks compensation in this case only for the
remaining 6 1/2 hours of the shift he would have worked but for
his assumption of "union business" and the related refusal of
Consol to allow him to return to work.

 Consol argues that under the National Bituminous Coal Wage

Agreement of 1981 once Mr. Truex declared himself to be on "union
business" he was no longer under its direction or control and
that it therefore had no obligation to pay him for his subsequent
activities. Consol further argues that it did not have to accept
Mr. Truex as a representative of miners on the day in question
but could have complied with section 103(f) of the Act by giving
any one of the approximately 130 miners then working the
opportunity to accompany the inspector during the conference at
issue.

 Section 103(f) of the Act provides, as relevant, that "a

representative authorized by his miners shall be given an
opportunity to accompany the . . . [inspector] . . . during
the physical inspection of any coal . . . mine . . . for the
purpose aiding such inspection and to participate in pre- or
post-inspection conferences held at the mine." [Emphasis added]
Since it is not disputed in this case that the post-inspection
conference which Mr. Truex attended was a

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conference within the meaning of section 103(f) of the Act it is
clear from the above language that it is the miners and not the
mine operator, who authorize or designate a representative for
the purpose of participating in such a conference. There is no
statutory ambiguity on this point and the plain meaning must
prevail.

 Consol nevertheless claims that the failure of Mr. Truex to

have complied with the filing requirements under 30 C.F.R. Part
40 entitled it to deny him the right to participate as a
representative under section 103(f). The same type of claim has,
however, already been rejected by the Commission in a case
brought by this same operator in Consolidation Coal Company v.
Secretary and UMWA, 3 FMSHRC 617 (1981). That decision was not
appealed by Consol. In the case at bar, just as in the cited
case, Consol makes no claim that it lacked a basis for believing
that the purported representative, Mr. Truex, was not in fact an
authorized miner representative. For the reasons stated in the
cited decision the claim at bar is also rejected.

 Within this framework I find that Consol did in fact

discriminate against Mr. Truex in denying him the statutory right
to act as the "authorized" representative of miners under section
103(f) without in effect compelling him to first declare himself
to be on "union business". Pasula, supra. Because Consol thereby
so compelled Mr. Truex to go on "union business" he was denied
the opportunity to return to his regular work shift upon the
completion of his activities as the representative of miners. I
find accordingly that Mr. Truex is entitled to damages under
section 105(c)(1) including wages lost for the remainder of his
work shift and interest.

DAMAGES

 In accordance with the stipulations submitted in this case

Richard Truex is entitled to back pay in the amount of $92.07 for
the 6 1/2 hour period on August 28, 1984, during which he was
unlawfully denied the opportunity to work and interest on that
amount of $7.81.

CIVIL PENALTY

 In light of the clear and unambiguous language of section

103(f) of the Act that the miners representative shall be
"authorized by his miners" and not by the mine operator and the
previous unsuccessful litigation on this issue brought by this
same operator before this Commission I find that Tom Olzer in
this case knew or should have known,

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after he was informed that Mr. Truex was authorized to act as the
representative of miners for the purposes of the subject
conference, that he was violating section 105(c) of the Act when
he denied him that opportunity without, in effect, requiring him
to first assume a non-pay status on "union business". Since Mr.
Olzer as Consol's Mine Safety Director, was an agent of the
operator the violation was the result of operator negligence.
Secretary v. Ace Drilling Company, 2 FMSHRC 790 (1980).

 I find that the violation was also serious in that it could

be expected to have had a chilling effect upon persons willing to
act as representatives of miners thereby seriously diminishing
the effectiveness of section 103(f) and indeed of enforcement
under the Act in general. In assessing a penalty herein I have
also considered that the mine operator is large in size and has a
moderate history of violations. No evidence has been presented to
indicate that Consol has violated section 105(c) within the
previous 2 year period under facts similar to those herein. The
violative condition has not been abated since Mr. Truex has not
been paid for his lost wages. Under all the circumstances I find
a penalty of $600 to be appropriate.

ORDER

 Consolidation Coal Company is hereby ordered to pay Richard

Truex the sum of $99.88 within 30 days of the date of this
decision. Consolidation Coal Company is further ordered to pay to
the Department of Labor a civil penalty of $600 within 30 days of
the date of this decision.

                       Gary Melick
                       Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE:-

~Footnote_one

 1 Section 105(c)(1) of the Act provides in part that "[n]o

person shall . . . discriminate against . . . or cause
discrimination against . . . or otherwise interfere with the
exercise of the statutory rights of any miner . . . in any
. . . mine subject to this Act . . . because of the exercise
of such miner . . . on behalf of himself or others of any
statutory right afforded by this Act."

~Footnote_two

 2 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 pre- or

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post-inspection conferences held at the mine. . . ." That section
also provides that "the representative of mines who is also an
employee of the operator shall suffer no loss of pay during the
period of the participation in the inspection. . . ."

~Footnote_three

 3 "Union business" is an unpaid leave of absence recognized

in the applicable collective bargaining agreement, i.e., Article
XVII section (1) of the National Bituminous Coal Wage Agreement
of 1981.