Cannelton Industries, Inc.

Plain-English summary

Cannelton Industries transferred Part 90 miner John W. Bushnell from dispatcher to general inside laborer, changed his occupation code, and reduced his hourly pay from $113.28 to $104.78. Judge William Fauver held that the Part 90 pay-protection rule required the company to retain Bushnell's regular rate after the transfer and that the reduction interfered with a protected Mine Act right. The judge ordered Cannelton to pay $161.14 in lost wages plus interest and assessed a $25 civil penalty.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 90.103, 90.2, and 90.12; 30 U.S.C. § 815(c)(1)
• Outcome: The discrimination violation was found, $161.14 in lost wages plus interest was awarded, and a $25 penalty was assessed.
• Key point: A Part 90 miner is entitled to retain the regular pay rate received immediately before a transfer that changes the miner's occupation code.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. CANNELTON
DDATE:
19861021
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
ADMINISTRAION, ON BEHALF OF Docket No. WEVA 85-273-D
JOHN W. BUSHNELL, HOPE CD 85-1
COMPLAINANT
Pocahontas # 3 and #4 Mines
v.

CANNELTON INDUSTRIES, INC.,
RESPONDENT

                            DECISION

Appearances: Jonathan M. Kronheim, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
VA, for Complainant;
Larry W. Blalock, Esq., and Michael J. Bommarito,
Esq., Jackson, Kelly, Holt & O'Farrell, Charleston,
WV, for Respondent.

Before: Judge Fauver

 This action was brought by the Secretary of Labor under

105(c)(1) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. 801, et. seq., to recover lost pay alleged to be due
John W. Bushnell for reduction of his pay rate after a transfer
while he was a Part 90 employee. The Secretary also seeks a civil
penalty for the alleged violation of that section.

 On July 17, 1986, the parties' motion to submit this case on

a stipulated record and briefs without a hearing was granted.

 On September 23, 1986, after receipt of the parties' briefs,

my secretary called the attorneys for the parties and asked the
following question at my request:

      Please see if you can stipulate whether or not Mr. John
      Bushnell, at any time after notice of his Part 90
      status in 1972 and before September 17, 1984, was
      transferred as a result of exposure to respirable dust.

 The attorneys' reply is a letter from counsel for Respondent

dated September 29, 1986, in which counsel states that

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counsel for the Secretary stipulates to the facts stated in the
letter. Accordingly, that letter is incorporated as a stipulation
in the record.

                       FINDINGS OF FACT

 The pertinent facts are set forth in stipulations submitted

by the parties on July 15, 1986, and September 29, 1986. In
brief, John W. Bushnell was an employee of the Respondent for
approximately 17 years. Respondent was informed of Mr. Bushnell's
Part 90 status in 1972. He transferred to a less dusty job in
January 1980, by exercising his Part 90 rights. He remained a
Part 90 miner at all times pertinent to this action. On September
16, 1984, Mr. Bushnell was employed as a dispatcher, earning
$113.28 for an eight hour shift. On September 17, 1984, Mr.
Bushnell was transferred from his dispatcher position to that of
general inside laborer, as a result of a realignment of the
Respondent's work force due to economic conditions. Mr.
Bushnell's occupation code was changed from code 365 to code 116
and his pay reduced to $104.78 for an eight hour shift. Mr.
Bushnell was laid off on October 1, 1984, for economic reasons.
Mr. Bushnell suffered a loss of wages of $161.14 as a result of
the reduction of his pay rate in connection with his transfer
from dispatcher to general inside laborer. The Secretary seeks to
recover $161.14 in lost pay plus interest thereon, and proposes a
civil penalty in the range of $100 to $150 for Respondent's
failure to maintain Mr. Bushnell's pay rate when he was
transferred.

                           OPINION

 The Secretary's regulations, at 30 CFR   90.103, provide in

pertinent part that:

     (b) Whenever a Part 90 miner is transferred, the
     operator shall compensate the miner at not less than
     the regular rate of pay received by that miner
     immediately before the transfer.

 The regulations, at 30 CFR 90.2, define "transfer" as "any

change in the occupation code of a Part 90 miner." Thus, whenever
a Part 90 miner has a change in his occupation code, the
regulation require that he be paid at not less than the regular
rate of pay received prior to the change.

 The preamble to 30 CFR 90.103, states that the Part 90

regulations were promulgated by the Secretary out of a concern
that a large percentage of miners eligible for the Part 90
program were not participating. After receiving testimony and
written comments, the Secretary attributed this lack of
participation to significant economic sacrifices that

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miners were forced to make on entering the program. For this
reason the Part 90 rules provided eligible miners with additional
economic protection, including a guarantee against reduction in
pay resulting from a transfer.(FOOTNOTE 1) The Secretary's reasoning
demonstrates an intent to safeguard the health of Part 90 miners,
consistent with their protection provided by the Act. The
regulations are therefore reasonably related to the purposes of
the Act and should be sustained as valid. Mourning v. Family
Publications Service, Inc., 411 U.S. 356, 369 (1973); United Mine
Workers v. Kleppe, 561 F2d 1258, 1263 (7th Cir.1977).

 John Bushnell was an eligible Part 90 miner when his

occupational code was changed without retention of the rate of
pay he received prior to the change. Such action is contrary to
the plain language of the regulation, which establishes a Part 90
miner's right to such pay retention, and constitutes interference
with a protected right. It is therefore discriminatory pursuant
to 105(c)(1) of the Act, in the same manner that failure to
compensate a Part 90 miner at his previous rate after a transfer
to a less dusty environment would be discriminatory.(FOOTNOTE 2)

 I therefore hold that John W. Bushnell was unlawfully

discriminated against by Respondent for engaging in the exercise
of rights protected by 105(c)(1) of the Act.

                            ORDER

WHEREFORE IT IS ORDERED that:

 1. Respondent shall pay to John W. Bushnell $161.14 in lost

wages resulting from the cut in pay that occurred because of his
transfer. Interest shall be added to the back pay retroactively
and shall accrue until the date of payment. The interest shall be
computed in accordance with the Commission's rulings concerning
interest. Payment shall be made within 30 days of this Order.

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2. Respondent is ASSESSED a civil penalty of $25 for the
violation found above, and shall pay such penalty within 30 days
of the date of this Order.

                       William Fauver
                       Administrative Law Judge

1 See 30 CFR 90.12, 90.103 and 45 Fed.Reg. 80761, 80763,
80766 (1980).

2 The rights of Part 90 miners are specifically designated
for protection under 105(c)(1) of the Act. "No person shall
. . . interfere with the exercise of the statutory rights of a
miner . . . because such miner . . . is the subject of
medical evaluations and potential transfer under a standard
published pursuant to Section 101 . . . . " 30 U.S.C. 815(c)(1).