Secretary of Labor o/b/o Beavers v. Kitt Energy Corporation

Plain-English summary

The Secretary brought a discrimination complaint for Ronnie D. Beavers and 25 other miners after Kitt Energy laid off surface miners who lacked the underground training needed for remaining jobs. The ALJ had found discrimination and awarded a civil penalty, back pay, and attorney fees. The Commission held that the Mine Act's training provisions do not create an employment right requiring an operator to make layoff decisions without regard to training qualifications. It reversed the discrimination finding and vacated the penalty, damages, and attorney-fee awards.

Decision snapshot

• Cited provisions: 30 U.S.C. § 815(c), 30 U.S.C. § 825, 30 C.F.R. § 48.2(b), and 30 C.F.R. § 48.22(b)
• Outcome: The ALJ's discrimination finding, civil penalty, damages, and attorney-fee award were vacated.
• Key point: The Mine Act's safety-training requirements do not require training-neutral employment decisions when an operator selects qualified miners for remaining jobs.

Full text (FMSHRC public release)

CCASE:
SOL (RONNIE BEAVERS) AND UMWA V. KITT ENERGY
DDATE:
19880715
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                              July 15, 1988

SECRETARY OF LABOR,
on behalf of RONNIE D.
BEAVERS, et al.

  and

UNITED MINE WORKERS OF AMERICA

  v.                 Docket No. WEVA 85-73-D

KITT ENERGY CORPORATION

Before: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

                DECISION

BY THE COMMISSION:

 This case involves a discrimination complaint brought by

the Secretary of Labor on behalf of Ronnie D. Beavers and 25 other
miners against Kitt Energy Corporation ("Kitt"), pursuant to the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq.
(1982) (the "Mine Act"). The issue presented on review is whether
Kitt violated section 105(c) of the Mine Act, 30 U.S.C. $ 815(c), when
it laid off the complainants who were surface miners, notwithstanding
their seniority in terms of length of service and their technical
ability to perform the remaining underground jobs, solely because
they required additional health and safety training under 30 U.S.C.
$ 825 and 30 C.F.R. Part 48

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before they could perform those jobs. 1/ Administrative Law Judge

1/ Section 115 states in part:

(a) Approved program; regulations

         Each operator of a coal or other mine shall have
a health and safety training program which shall be
approved by the Secretary. The Secretary shall
promulgate regulations with respect to such health and
safety training programs not more than 180 days after
the effective date of the Federal Mine Safety and Health
Amendments Act of 1977. Each training program approved
by the Secretary shall provide as a minimum that--

         (1) new miners having no underground mining
experience shall receive no less than 40 hours of
training if they are to work underground. Such training
shall include instruction in the statutory rights of
miners and their representatives under this [Act], use
of the self-rescue device and use of respiratory devices,
hazard recognition, escapeways, walk around training,
emergency procedures, basic ventilation, basic roof
control, electrical hazards, first aid, and the health and
safety aspects of the task to which he will be assigned;
         (2) new miners having no surface mining experience
shall receive no less than 24 hours of training if they
are to work on the surface. Such training shall include
instruction in the statutory rights of miners and their
representatives under this [Act], use of the self-rescue
device where appropriate and use of respiratory devices
where appropriate, hazard recognition, emergency procedures,
electrical hazards, first aid, walk around training and the
health and safety aspects of the task to which he will be
assigned;
         (3) all miners shall receive no less than eight hours
of refresher training no less frequently than once each
12 months, except that miners already employed on the
effective date of the Federal Mine Safety and Health
Amendments Act of 1977 shall receive this refresher
training no more than 90 days after the date of approval
of the training plan required by this section;
         (4) any miner who is reassigned to a new task in
which he has had no previous work experience shall receive
training in accordance with a training plan approved by the

Page 3

Secretary under this subsection in the safety and health
aspects specific to that task prior to performing that task;
(5) any training required by paragraphs (1), (2)

Page 4

~863
Roy J. Maurer held that the complainants were "miners" within the
meaning of the Act and therefore were entitled to the training
required by the Mine Act and 30 C.F.R. Part 48. The judge concluded
that Kitt, by laying off the complainants, unlawfully interfered with
their statutory rights to training in violation of section 105(c)(1)
of the Act. 2/ 8 FMSHRC 1342 (September 1986)(ALJ). The judge
assessed a

  or (4) shall include a period of training as closely
  related as is practicable to the work in which the
  miner is to be engaged.

 (b) Training compensation

          Any health and safety training provided under
 subsection (a) of this section shall be provided
 during normal working hours. Miners shall be paid at
 their normal rate of compensation while taking such
 training, and new miners shall be paid at their starting
 wage rate when they take the new miner training....

30 U.S.C. $ 825(a) & (b).

30 C.F.R. Part 48 implements section 115 of the Act and sets

forth the regulatory training requirements for miners.

2/ Section 105(c)(1) provides in pertinent part:

 Discrimination or interference prohibited;
 complaint; investigation; determination; hearing

         No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any miner,
representative of miners or applicant for employment
in any coal or other mine subject to this [Act] because
such miner, representative of miners or applicant for
employment has filed or made a complaint under or
related to this [Act], including a complaint notifying
the operator or the operator's agent, or the representative
of the miners at the coal or other mine of an alleged danger
or safety or health violation in a coal or other mine ...
or because such miner, representative of miners or applicant
for employment is the subject of medical evaluations and

Page 5

potential transfer under a standard published pursuant to
section [101] ... or because such miner, representative of
miners or applicant for employment has instituted or caused
to be instituted any proceeding under or related to this
[Act] or has testified or is about to testify in any such
proceeding, or because of the exercise by such miner,
representative of miners or applicant for

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civil penalty of $1,000 for the violation of section 105(c)(l),
awarded the complainants back pay, and ordered Kitt to pay attorneys'
fees. 8 FMSHRC at 1355; 9 FMSHRC 93 (January 1987)(ALJ). 3/ Because
we conclude that the judge granted rights to the complainants beyond
the text and intent of section 115, we reverse.

The facts are not in dispute. Kitt owns and operates the

Kitt No. 1 Mine, an underground coal mine located at Philippi,
West Virginia. Both Kitt and the UMWA, the recognized representative
of miners at the mine, are parties to the National Bituminous Coal
Wage Agreement of 1981 (the "Wage Agreement"). On August 29, 1983, as
the result of a legitimate reduction and realignment of the workforce,
Kitt reduced the total underground and surface workforce at the mine
from 565 to 210 miners and the surface workforce from 91 to 59. On
September 6, 1983, Kitt laid off 43 more miners, reducing the total
workforce to 167 miners and the surface workforce to 15.

To determine which employees would be retained in the jobs

remaining after each layoff, Kitt was bound by the Wage Agreement.
Article XVII(b)(1) of the Wage Agreement provides:

         In all cases where the workforce is to be
reduced, employees with the greatest seniority at
the mine shall be retained provided that they have
the ability to perform available work.

"Seniority" is defined in Article XVII(a) of the Wage Agreement

as "length of service and the ability to step into and perform the
work of the job at the time the job is awarded." In deciding whether
a miner had such "ability to step into and perform the work of the
job," Kitt considered whether the miner met the "experienced miner"
definitions of 30 C.F.R. Part 48, 30 C.F.R. $$ 48.2(b) and
48.22(b). 4/ Kitt deter-

  employment on behalf of himself or others of any
  statutory right afforded by this [Act].

30 U.S.C. $ 815(c)(1).

3/ Before the judge, the United Mine Workers of America ("UMWA")
sought and was granted the right to participate in the case as an
intervenor.

4/ 30 C.F.R. $ 48.2(b) defines "experienced [underground] miner"
as:

Page 7

[A] person who is employed as an underground miner, as
defined in paragraph (a)(1) of this section, on the
effective date of these rules: or a person who has
received training acceptable to MSHA from an appropriate
State agency within the preceding 12 months; or a person
who has had at least 12 months experience working in an
underground mine during the preceding 3 years@ or a person
who has received the training for a new miner within the
preceding 12 months as prescribed in $ 48.5 (Training of new

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mined that in order to be retained as an employee and to be
assigned one of the remaining jobs at the mine, a miner was required
to have training or prior experience as defined by the regulations or
to have been employed underground on October 13, 1978, the effective
date of the training regulations (the "Grandfather Provision").

At the time of Kitt's reduction of its workforce, the

complainants were surface miners who sought to be employed in
underground positions remaining at the mine. Of the 26 complainants,
23 did not qualify as "experienced miners" pursuant to 30 C.F.R.
$ 48.2(b) and therefore required safety and health training before
Kitt would consider them eligible to work underground. Because they
lacked the appropriate underground training they were laid off by
Kitt. (Three other complainants qualified as "experienced miners"
by virtue of the Grandfather Provision, but were laid off due to
Kitt's mistaken belief that they were not. qualified.) The parties
stipulated that had Kitt not interpreted the Wage Agreement to require
underground training, the complainants would have been placed in the
jobs that they sought. The parties also agreed that all of the miners
who were retained as Kitt's employees in the underground positions
sought by the complainants qualified as experienced miners in
accordance with Kitt's policy.

On or about September 7, 1983, MSHA advised Kitt that use of

the training provisions as a basis to lay off miners conflicted with
MSHA's training regulations and that the laid off employees should be
recalled. Kitt disagreed with MSHA's position, but in order to limit
its exposure to potential civil penalties and damages, Kitt abandoned
its policy of laying off surface miners who required underground
health and safety training. On September 13 and 14, 1983, Kitt
recalled the complainants to work and provided them with the necessary
training to permit them to work underground.

Subsequently, the complainants filed a complaint with MSHA

alleging that they had been unlawfully discriminated against when
they were laid off by Kitt. In addition, the UMWA challenged the
experienced miner policy through the arbitration procedure of the
Wage Agreement. On February 24, 1984, the arbitrator held that Kitt's
interpretation of the phrase "ability to step into and perform the
work of the job" to

 miners) of this Subpart A.

30 C.F.R. $ 48.22(b) defines "experienced [surface] miner" as:

Page 9

     [A] person who is employed as a miner, as defined

in paragraph (a)(1) of this section, on the effective
date of these rules: or a person who has received
training acceptable to MSHA from an appropriate State
agency within the preceding 12 months; or a person who
has had at least 12 months' experience working in a surface
mine or surface area of an underground mine during the
preceding 3 years; or a person who has received the training
for a new miner within the preceding 12 months as prescribed
in $ 48.25 (Training of new miners) of this Subpart B.

Page 10

~866
include a requirement that a miner meet the "experienced miner"
definitions of 30 C.F.R. Part 48 did not violate the Wage Agreement.

On January 8, 1985, following an investigation of the

complainants' allegations, the Secretary filed a complaint with the
Commission on the complainants' behalf. The complaint asserted that
by laying off the complainants because they lacked underground
training, Kitt had violated section 105(c) of the Mine Act. The
complaint requested that Kitt be ordered to reimburse the complainants
for all backpay and damages resulting from the layoff. Judge Maurer
decided the case on the basis of stipulated facts and cross-motions
for summary decision. In holding for the complainants, the judge
focused upon the fact that when the complainants were laid off they
were "miners" within the meaning of the Mine Act and therefore were
entitled, in the judge's view, to the training granted by section 115
and Part 48. The judge stated:

The fact that all the employees of Kitt who were
considered for lay off were "miners" within the
meaning of the Act at the time the operator picked
and chose among them based on the federal training
requirements is ... decisive in this case. As
"miners", the complainants ... were entitled to
whatever training was required under section 115.
By laying off these complainants rather than providing
the required training, the operator interfered with
their statutory right to training under section 115.

8 FMSHRC at 1354. 5/

The Commission granted Kitt's petition for discretionary

review. The principal question on review is whether the judge erred
in concluding that the complainant@ enjoyed a statutory and regulatory
right to obtain the training that would have entitled them to
assignment to the remaining underground jobs.

The general principles governing analysis of discrimination

cases under the Mine Act are settled. In order to establish a prima
facie case of prohibited discrimination under section 105(c) of the
Act, the complainant bears the burden of proving (1) that he engaged
in protected activity and (2) that the adverse action complained of
was motivated in any part by that activity. Secretary on behalf of
David Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(October 1980), rev'd on other grounds sub nom@ Consolidation Coal Co.
v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of

Page 11

Thomas Robinette v. United

5/ The judge also found that the three complainants who qualified as
experienced miners under the Grandfather Provision, but who Kitt
mistakenly believed would need training, were unlawfully discriminated
against because they were laid off based upon Kitt's "perceived lack
of federally mandated training" on the part of the miners. 8 FMSHRC
at 1354.

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~867
Castle Coal Co., 3 FMSHRC 803, 817-18 @April 1981). See also
Eastern Assoc. Coal Corp. v. FMSHRC 813 F.2d 639, 642 (4th Cir.
1987), Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59
(D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir.
1983) (specifically approving Commission's Pasula-Robinette test).
Cf. NLRB v. Transportation Management Corp., 462 U.S. 393, 397-413
(1983) (approving nearly identical test under National Labor Relations
Act.)
If the complainant does not establish that he engaged in a
protected activity, the discrimination complaint must fail. The judge
concluded that "[t]he insistence of the complainants on their right to
be provided training ... is activity protected by the Act." 8 FMSHRC
at 1354. Thus, the initial question, and the one dispositive of this
case, is whether under the Mine Act the complainants had a protected
right to the training at issue here.

Section 115(a) of the Mine Act provides that "new miners

having no underground mining experience shall receive no less than
40 hours of training if they are to work underground@' The
complainants in this case were "miners" since at the time of the
alleged act of discrimination they fell within the broad definition
contained in section 3(g) of the Mine Act. 6/ Under the Secretary's
regulations implementing section 115(a) of the Mine Act, the
complainants were "new miners having no underground experience"
because they did not have the requisite degree of underground training
or experience set forth in 30 C.F.R. $ 48.2(b) and (c), supra. As a
consequence, under the Mine Act Kitt could not have transferred the
complainants to underground positions without providing them training.
Instead, Kitt laid off complainants in favor of other miners who
already were qualified as experienced underground miners and thus did
not require additional section 115(a) training. We conclude that in
asserting that Kitt's policy in choosing miners for layoff contravened
the Mine Act, complainants claim too broad a statutory right to
operator-provided training.

In Peabody Coal Co., 7 FMSHRC 1357, 1363 (September 1985), and

Jim Walter Resources, 7 FMSHRC 1348, 1354 (September 1985), aff'd sub
nom. Brock v. Peabody Coal Co., 822 F.2d 1134 (D.C. Cir. 1987), the
Commission concluded that mine operator policies to bypass for rehire
laid-off individuals because those individuals lacked current safety
and health training required by the Mine Act did not constitute
discrimination under the Mine Act. The Commission determined that

6/ Section 3(g) of the Act provides:

Page 13

For the purpose of this [Act], the term --

 "miner" means any individual working in a coal or
  other mine.

30 U.S.C. $ 802(g).

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~868
section 115 of the Act grants training rights to "new miners" and
that laid-off individuals do not become entitled to the training
rights of section 115 until they are rehired as miners. Thus, since
there is no statutory right to operator-provided training for those
on lay off status, we concluded that an operator's refusal to rehire a
laid-off individual due to lack of required training does not violate
the Mine Act.

In Peabody and in Jim Walter the Commission stressed that

the Mine Act is a health and safety statute, not an employment
statute. The Commission noted that in enacting section 115
Congress was concerned with preventing "the presence of miners ...
in a dangerous mine environment who have not had ... training in
self-preservation and safety practices." S. Rep. No. 181, 95th Cong.,
1st Sess. 50 (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 637-38
(1978). The Commission determined that the rights of particular
laid-off individuals to recall, including the extent to which an
operator can favor for recall fully trained persons over persons with
greater length of service, properly are within the sphere of
collective bargaining and arbitration. 7 FMSHRC at 1364; 7 FMSHRC
at 1354.

On appeal, the United States Court of Appeals for the

District of Columbia Circuit affirmed the Commission's decision.
Brock v. Peabody Coal Co., supra, 822 F.2d 1134. In its decision
the D.C. Circuit also emphasized that the purpose of section 115 of
the Mine Act and the Secretary's training regulations is to protect
the health and safety of miners. 822 F.2d at 1146. The court
summarized the purpose of sections 115 and 104(g) 7/ as follows:

         Sections 115(a) and 104(g)(1) of the Act therefore
 confer upon a "miner" the right not to "work" or to be
 "employed" in the mines without having first received
 the requisite training. Put more simply, the Act accords
 a miner the right not to be placed in a dangerous
 environment without the benefit of proper safety training.
 In order to protect this central statutory right, Congress
 in 1977 amended section 105(c)(1) and inserted section
 104(g)(2), thereby conferring upon a miner the corollary
 right not to be discharged or otherwise discriminated
 against either when he or she exercises the right by

7/ Section 104(g)(1) of the Act, 30 U.S.C. $ 824(g)(1), requires

Page 15

the Secretary to withdraw from a mine any miner who has not
received the requisite safety training required by section 115 of
the Act. Section 104(g)(2) provides that no miner withdrawn from a
mine pursuant to section 104(g)(1) of the Act shall be discharged
or discriminated against as a result of the withdrawal and further
provides that such miner shall not suffer loss of compensation during
the period necessary for such miner to receive the requisite safety
training required by section 115 of the Act.

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~869
refusing to work without having received the required
training or when the Secretary issues an order
withdrawing that miner from the mine.

822 F.2d at 1147 (footnotes omitted). The court stated that it
could not "infer from the Act that Congress intended
privately-bargained contracts to determine who is or is not a miner
entitled to receive the section 115 safety training." 822 F.2d at
1148. The court concluded by holding that "[n]either the language
Congress employed nor the legislative history supports the Secretary's
contention that Congress intended to require 'training neutral'
hiring." 822 F.2d at 1151.

 We recognize that the complainants in the instant case, unlike

the complainants in Peabody, were "miners" at the time the alleged
act of discrimination occurred. This distinction, however, does not
require a different result because in the crucial and controlling
respect, this case and Peabody @re the same. In both cases, the
operator chose for placement in underground mining positions persons
who by training or experience fully met the training requirements of
section 115 of the Act and the Secretary's implementing regulations.
In placing trained miners underground the operator did not violate
the language of the Mine Act or the safety and health objectives of
the training requirements. To the contrary, the Act's purpose was
fulfilled. In addition, no miner was discharged or otherwise
discriminated against either because of a refusal to work without
having the required training or because of a withdrawal from the mine
pursuant to an order issued by the Secretary under section 104(g) of
the Act due to a lack of training. See 822 F.2d at 1147. In sum,
the Secretary's argument that section 115 of the Mine Act mandates
that "training neutral" employment decisions be made by mine operators
is just as wide of the mark in the present situation as it was in
Peabody, and must be rejected here for the same reasons.

 In order to reach the result argued for by the Secretary and

the UMWA, we would be required to go beyond the Act and examine the
Wage Agreement. It is not the Commission's province, however, to
interpret the rights and obligations mandated by the Act through an
interpretation of a private contractual agreement unless required to
do so by the Act itself. Peabody, supra, 7 FMSHRC at 1364. In
holding that the complainants as miners" had the right to whatever
training was required to continue their employment, the judge
misperceived the proper focus of section 115. To require an operator
to train miners for underground work so that they, rather than other
miners, would have the opportunity for continued employment would

Page 17

transform section 115 from a health and safety provision to an
employment provision. This type of employment issue is appropriately
resolved through the collective bargaining and grievance and
arbitration process. Indeed, the issue of the validity of Kitt's
experienced miner policy was pursued through the contractual grievance
process and Kitt's position was upheld. Stip. 9. 8/

8/ The Secretary argues that Kitt's use of the experienced miner
policy to determine whom to retain as employees "will always bar
miners from being awarded jobs if training is required" and will
prevent training rights from ever "com[ing] into play." S. Br. 14.
On the

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Finally, we are left with the UMWA's argument that when
enacting section 115 Congress could not have intended that miners
who would not otherwise have been laid off would lose their
employment as the result of the application of the Mine Act's training
requirements. Whatever one might speculate as the intention of
Congress in this respect, the fact is that neither the language of
the Mine Act nor the legislative history support the assertion of the
complainants. 9/ If there is a problem, it lies within the Act
itself, and any remedy is through the collective bargaining process
or, as Judge Ruth Bader Ginsburg stressed in her concurring opinion in
Peabody, through legislative amendment by Congress. Peabody, 822 F.2d
at 1152-53.

Contrary, training rights always "come into play" when the experienced
miner policy is invoked. All miners chosen by Kitt to work had the
necessary health and safety training.

We also reject the Secretary's argument purporting to be

based on Wygant v. Jackson Board of Education, 476 U.S. 267 reh'g
denied, 478 U.S. 1014 (1986), that Kitt's experienced miner policy
unlawfully interferes with the complainants' property interest in
and expectation of continued employment. Supp. Br. Sec. 2-6. That
argument does not consider the fact that the Mine Act is not an
employment statute. Moreover, in Wygant the Court was careful
to note the difference between unconstitutional and permissible
infringements upon a worker's property interest in a job.

9/ The conclusion that Kitt did not violate the Act makes it
unnecessary for us to address two additional issues raised in
Kitt's petition for discretionary review, i.e@, that the judge
erred in assessing a civil penalty for the violation of section
105(c) and in awarding attorneys' fees to counsel for the UMWA.
We note, however, that the Secretary failed to include in the
discrimination complaint a proposal for a specific civil penalty
for the alleged violation of section 105(c). Commission Procedural
Rule 42(b), 29 C.F.R. $ 2700.42(b), requires such a proposal. See
also Secretary on behalf of Milton Bailey v. Arkansas Carbona Co.
and Michael Walker, 5 FMSHRC 2042, 2044 (December 1983).

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Accordingly, we reverse the conclusion of the judge that Kitt
discriminated against the complainants by violating their statutory
rights with regard to training. The judge's assessment of a civil
penalty and the judge's award of damages and attorneys' fees are
vacated.

Distribution

David M. Smith, Esq.
Maynard, Cooper, Frierson & Gale, P.C.
Twelfth Floor, Watts Bldg.
Birmingham, AL 35203

Linda L. Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Bronius K. Taoras, Esq.
Kitt Energy Corp.
Standard Oil Bldg., 7-D
200 Public Square
Cleveland, Ohio 44114

Mary Lu Jordan, Esq.
UMWA
900 15th Street N.W.
Washington, D.C. 20005