Consolidation Coal Company

Plain-English summary

Charles F. Rose, a miner representative, accompanied an MSHA inspector during a regular underground inspection at Consolidation Coal Company's Pursglove No. 15 Mine. The company required him to return to work after the inspection without a continuous half-hour lunch period. Judge Avram Weisberger held that section 103(f) protects a representative from loss of pay and broadly protects the participation needed for effective inspections. He found that denying the lunch period violated the Act, ordered $10.32 for the March 19, 1986 instance, and required the company to pay further lunch-time amounts, costs, and fees subject to later calculation. A supplemental order later resolved the remaining amounts and stated that this decision was final.

Decision snapshot

• Cited provisions: 30 U.S.C. § 813(f), 30 U.S.C. § 815(c)(1), and 30 U.S.C. § 815(c)(3)
• Outcome: The company was ordered to pay $10.32, provide a continuous half-hour lunch after walk-around duties, and pay further proven lunch-time losses, costs, and fees.
• Key point: Mine operators may not discourage miner participation in inspections by denying a continuous lunch period after the inspection.

Full text (FMSHRC public release)

CCASE:
CHARLES ROSE V. CONSOLIDATION COAL
DDATE:
19870112
TTEXT:

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

CHARLES F. ROSE, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. WEVA 86-379-D
v.
MORG CD 86-11
CONSOLIDATION COAL COMPANY,
RESPONDENT Pursglove No. 15 Mine

                              DECISION

Appearances: William R. Nalitz, Esq., Waynesburg, Pennsylvania,
for Complainant;
Michael R. Peelish, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before: Judge Weisberger

                      Statement of the Case

 This case is before me on the complaint of Charles F. Rose

against Consolidation Coal Company filed on April 9, 1986
alleging discrimination under Section 105(c) of the Federal Mine
Safety and Health Act of 1977 (30 U.S.C. 801 et seq.,
hereinafter referred to as "Act"). On June 13, 1986, the
Secretary advised Complainant that it had determined that a
violation of Section 105(c) did not occur. Rose filed his
complaint with the Commission on July 14, 1986. Pursuant to
notice, the case was scheduled for October 23, 1986, in
Washington, Pennsylvania. At the hearing, the Complainant, who
was unrepresented, requested that the case to be adjourned so
that he might obtain legal representation. This motion was
granted and pursuant to notice the case was heard on November 3,
1986, in Washington, Pennsylvania. Paskel Lee Eddy and Charles F.
Rose testified on behalf of Complainant, and James A. Simpson
testified on behalf of Respondent.

 Complainant and Respondent filed posthearing briefs on

December 8 and December 5, respectively. Reply briefs were to
have been exchanged ten days later but none were filed.

                          Findings of Fact

 1. The Complainant, Charles F. Rose, is an employee of

Respondent, Consolidation Coal Company, at the Respondent's
Pursglove No. 15 Mine.

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2. Complainant's regular job classification is general inside
labor.

 3. Under the terms of the National Bituminous Coal Wage

Agreement of 1984 Complainant is to work an 8 hour day including
30 minutes for lunch.

 4. It has been the custom for many years at Respondent's

mine that the lunch break has been taken between third and fifth
hour of employment (11 a.m to 1 p.m).

 5. It has been customary practice for at least 2 years,

prior to March 1986, that the union representative (hereinafter
called "walk-around") accompanying a Federal Mine Inspector on an
inspection of Respondent's subsurface mine, have his half hour
lunch at the conclusion of the inspection after the inspector
leaves (Tr. 33, 38, 45-46, 65-66).

 6. In March 1986, Respondent made a management decision, as

a result of a reduction in work force, that the "walk-around"
should eat his dinner between the 3rd and 5th hour, and that upon
completion of the inspection the "walk-around" was to return to
work.

 7. On March 19, 1986, Complainant served as a "walk-around"

accompanying a Federal Mine Inspector on his regular inspection
of Respondent's Pursglove No. 15 Mine. He received pay for 8
hours.

 8. At approximately 3:15 p.m. on March 19, 1986, after the

Complainant completed his "walk-around" duties and the inspector
left, Clyde Owens, Respondent's Safety Director, informed the
Complainant that James A. Simpson, Superintendent, told him to
tell the Complainant to go right to work without a break for
lunch.

 9. Simpson testified, in essence, that during an inspection

underground there are delays waiting for certain activities to
occur or waiting for transportation (Tr. 75, 79). This was
confirmed by Complainant (Tr. 87). Simpson also said in essence
that company personnel accompanying a federal mine inspection eat
during a break in the inspection when they can sit down, or they
grab a sandwich "on the run". However, Simpson also said that the
delays are not predictable, and do not occur at regular
intervals. Both Complainant and Eddy testified as to the
difficulties a "walk-around" would encounter if one would start
to eat during a transportation delay (Tr. 47, 87). Also Eddy
testified that normally during an inspection one would not have a
half hour to eat (Tr. 47). Complainant testified that normally,
in essence, a delay due to switching or "whatever" was 5 to 10
minutes at the most and not a half hour (Tr. 87). Accordingly,
inasmuch as Eddy and Complainant were actually involved as

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"walk-arounds" and thus had personal knowledge of the conditions
during such inspection, I credit more weight to their testimony.
Therefore, I find that it is not possible for a "walk-around" to
have a continuous half hour lunch while engaged as a
"walk-around" underground.

 10. Simpson testified that after the inspector and the

"walk-around" finish the inspection and return to the surface
they may have a sandwich. However, he said that from the time
they exit the mine until the time they start discussing the
inspection from 15 minutes to a half hour elaspes. During this
time they also have to remove the clothes and equipment they wore
in the mine. Accordingly, I find that there is not a continuous
half hour period after the inspection for a "walk-around" to eat
lunch prior to discussing the inspection.

                            Issues

 The general issue in this case is whether Consolidation Coal

Company discriminated against Rose in violation of Section 105(c)
of the Act and, if so, what is the appropriate relief to be
awarded Rose and what are the appropriate civil penalties to be
assessed against Consolidation for such discrimination.

 The specific issue is whether Respondent, by denying

Complainant half hour for lunch upon completion of his
"walk-around" activity beyond the usual time period for lunch,
caused the Complainant to suffer a "loss of pay" during the
period of his "walk-around".
Laws

 Section 105(c)(1) of the Act provides, in essence, in part,

that no person shall in any manner discriminate against, or cause
discrimination against, or otherwise interfere with the exercise
of the statutory rights of any miner or representative of miners
because of the exercise by such miner of any statutory right
afforded by the Act. In essence, Section 103(f) of the Act,
provides that an authorized representative of miners, such as
Rose, is entitled to accompany a MSHA inspector in the course of
his inspection and 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." (Emphasis added.).

                          Discussion

 Respondent in essence argues that the Complainant was not

under the control of the mine management during the
"walk-around", and thus the latter did not cause the Complainant
to suffer a loss of lunch during the "walk-around". Respondent in
this

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connection presented testimony that it did not tell Complainant
he could not eat lunch during a "walk-around". Also, Respondent
argues that Complainant was paid his full wages for the day of
the "walk-around", and thus suffered no "loss of pay".

 Complainant argues that in essence deprivation by Respondent

of a "walk-around's" right to eat lunch for a continuous period
of half hour after a "walk-around" is violative of Section 103(b)
of the Act. For reasons that follow I agree.

 There is not any legislative history of the Act containing

any discussion of the specific issue presented here. However, it
appears that in general Congress intended a broad construction to
be placed on the phrase "shall suffer no loss of pay" (Section
103(f), supra.) In this connection, it is noted that the Senate
Report accompanying S. 717, (S. Rept No. 181, supra, at 28-29,
Leg.Hist. at 616-617), provides with regard to the intent behind
Section 103 that "to encourage such miner participation it is the
Committees intention that the miner who participates in such
inspection and conferences be fully compensated by the operator
for the time thus spent. To provide for other than full
compensation would be inconsistent with purpose of the Act and
would unfairly penalize the miner for assisting the inspector
performing his duties". (Emphasis added).

 Furthermore, similarly, the courts, based upon the

legislative history, have placed a broad interpretation on the
rights granted by Section 103(f), supra. Thus, in United Mine
Workers of America, etc. v. Federal Mine Safety and Health
Commission, 671 F.2d 615 (D.C.Cir.1982), the Court was faced with
the issue as to whether under Section 103(f), supra, a miner has
the right to pay when accompanying an inspector on a "spot"
inspection. The court held that, pursuant to Section 103(f),
supra, a miner shall not suffer any loss of pay while
accompanying an inspector on a "spot" inspection as well as a
regular inspection. In its decision, the Court reviewed the
legislative history of Section 103(f), supra, and noted that it
was the express intention of the Senate Committee on Human
Resources, as contained in the Report on S.717 (S. Rept No. 181,
95th Cong. 1st Sess 28-29 (1977), as reprinted in Legislative
History of the Federal Mine Safety and Health Act at 616-617)
"that a Miner participating in a "walk-around" inspection receive
"full compensation." (671 F.2d, supra at 625). The Court further
opined that both miner participation and full compensation were
considered by the committee to constitute important tools in the
effort to increase miners' awareness of the hazards they face and
the measures they can take to achieve a safe and healthy working
environment. (671 F.2d, supra, at 625).

 Further, the Court in United Mine Workers, supra, at 625

related that Senator Helms had introduced an amendment to S.717,

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the Senate version of the Act, that would have stricken any
reference to a miner being paid while accompanying an inspector
on an inspection. (See Leg.Hist., supra). The Court, (671 F.2d,
supra at 625), noted however that Sentor Javits successfully
opposed the amendment, giving, among others, the following
reasons:

         First, greater miner participation in health and safety
     matters, we believe is essential in order to increase
     miner awareness of the safety and health problems in
     the mine, and secondly, it is hardly to be expected
     that a miner who is not in business for himself, should
     do this if his activities remain uncompensated.

• • • • • • • • *

      But we cannot expect miners to engage in the
      safety-related activities if they are going to do
      without any compensation on their own time. If miners
      are going to accompany inspectors, they are going to
      learn a lot about mine safety, and that will be helpful
      to other employees and to the mine operator. We want to
      encourage that because we want to avoid, not incur,
      accidents. So paying the worker his compensation while he
      makes the rounds is entirely proper.

      In addition, if the worker is along he knows a lot
      about the premises upon which he works and, therefore,
      the inspection can be much more thorough. We want to
      encourage that because we want to avoid, not incur,
      accidents. So paying the worker his compensation while
      he makes the rounds is entirely proper.

  Essentially, the same legislative history was cited with
  approval in Monterery Coal Company v. Federal Mine Safety and
  Health Review Commission 743 F.2d 589 (7th Cir.1984), in which
  the court also held that Section 103(f) of the Act requires that
  a miner should be paid by an operator where the former
  participates in a "spot" inspection. (See also Consolidated Coal
  Company v. Federal Mine Safety and Health Review Commission, 740
  F.2d 271 (3rd Cir1984).

  Similarly, in Magma Copper Company v. Secretary of Labor
  (645 F.2d 694 (9th Cir1981, cert. denied 454 U.S. 94), the Court
  held that where several inspectors are present, it is within
  purview of Section 103(f), supra that one respresentative of the
  miners may accompany each inspector without loss of pay. In
  reaching this conclusion, the Court, at 698, cited with approval
  the legislative history of the Act, as set forth, in the Senate
  Report 95-81, (reprinted in Legislative History at 623,) to the
  effect that if the Mine Safety and Health Program is to be truely
  effective miners will have to play an active part in the
  enforcement of the Act.

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Also, the Commission's Judges, have, on occasion, provided a
broad interpretation to Section 103(f), supra, so as not to
discourage participation in "walk-around" inspections which would
be contrary to the clear intent of Congress. Thus, in Secretary
of Labor, Mine Safety and Health Administration, on behalf of
Timithy P. Scott v. Consolidation Coal Company, 2 FMSHRC 1056,
the miner was paid on the basis of a grade three rate scraper
operator for the time spent in "walk-around" activities. On the
day of the inspection, the miner was told that he was to perform
removal work, at higher level of pay, (grade five). However the
miner began his "walk-around" prior to the actual commencement of
such work. Judge Melick found that the miner must be compensated
in a amount equivalent to grade five rate pay so as not to be
unfairly penalized in performing his "walk-around" duties as a
representative of miners. In Secretary of Labor, Mine Safety and
Health Administration v. Virginia Pocahontas, 3 FMSHRC 1493
(1981), former Commission Judge Steffey, held, in essence that
the language of Section 103(f) supra requires that a miner, who
accompanies an inspector on a shift other than his own regular
shift, must be provided with work on that shift after the
inspection is completed.

 Thus from all the above it can be seen that Congress, in

enacting Section 103(f), supra, clearly intended it to encourage
"walk-arounds" and prohibit acts that would tend to discourage
miners from participating in "walk-arounds". It is thus manifest
that the broad intent behind Section 103(f), supra, would be
thwarted by allowing any act which might have a tendency to
discourage miners' participation in "walk-arounds". As such, it
is concluded that Respondent's action herein violates Section
103(f), supra.

 At the hearing and in a posthearing brief Complainant has

requested that relief be extended to all occasions subject to
March 19, 1986, when Complainant served as a "walk-around" and
was denied by Respondent the opportunity to have lunch upon
conclusion of the inspection. This relief has been opposed by
Respondent. Inasmuch as Complainant has established that
Respondent violated Section 103(f), supra on March 19, 1986, in
the interest of justice, Complainant shall be allowed to
establish if additional similar actions by Respondent have
subsequently occurred. This will achieve the purpose of granting
Complainant's full relief, (see Section 105(c)(3) of the Act).
This should not unduly burden Respondent, as at the hearing on
November 3, 1986, Respondent had the opportunity and did present
its case, i.e., that its actions in not providing Complainant a
lunch after a "walk-around" did not violate Section 103(f),
supra. It would appear that the facts adduced by Respondent at
the hearing would apply equally to all subsequent similar
actions.

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Conclusions of Law

 Complainant and Respondent are subject to Section 105 of the

Act, the latter as miner and the former as mine operator. I have
jurisdiction to hear and decide this case. Respondent has
violated Section 103(f) of the Act by not providing the
Complainant with a continuous half hour for lunch upon the
completion of his duties as a "walk-around."

                             Relief

  It is ORDERED that:

 (1) Respondent pay Complainant $10.32 within 10 days of this

decision.

 (2) Respondent shall desist from not providing Complainant a

continuous half hour for lunch upon completion of his
"walk-around" duties.

 (3) Respondent shall pay costs and expenses including

attorneys fees reasonably incurred by Complainant in connection
with the institution and prosecution of this proceeding.

 (4) For each instance subject to March 19, 1986 until the

date of this decision, Respondent shall pay Complainant, his
usual rate of pay for each half hour of lunch time Respondent
failed to provide Complainant upon completion of his duties as
"walk-around".

 (5) Counsel are directed to confer and attempt to agree on

the amounts due under paragraphs 3 and 4 above, and if they can
agree to submit a statement to me within 20 days of this
decision. If they can not agree, Complainant shall within 30 days
of this decision file a detailed statement of the amount claimed,
and Respondent shall submit a reply thereto within 30 days
thereafter. If there are significant and substantial issues of
fact raised in these statements, a supplemental hearing might be
held.

 This decision shall not be final until I have issued a

supplemental decision on the amounts due under paragraphs 3 and
4.

 (6) Respondent shall post a copy of this decision on a

bulletin board at the surface mine which is available to all
employees and it shall remain there for a period of at least 60
days.

                    Avram Weisberger
                    Administrative Law Judge