Consolidation Coal Company

Plain-English summary

Consolidation Coal Company denied miner Roger Lee Wayne, Sr. the opportunity to participate in a ventilation plan review meeting without losing pay. An Administrative Law Judge found discrimination, ordered reimbursement for lost pay, and assessed a $300 civil penalty. The Commission reversed that decision, holding that the MSHA inspector acted within his discretion to determine that Wayne's participation was not needed because other miner representatives were present. The discrimination complaint was dismissed and the penalty was vacated.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(1) and 813(f); 30 C.F.R. § 75.316
• Outcome: The ALJ's discrimination finding and $300 penalty were reversed, the complaint was dismissed, and the penalty was vacated.
• Key point: The inspector's determination about whether an additional miners' representative was needed controlled in the circumstances of this post-inspection meeting.

Full text (FMSHRC public release)

CCASE:
MSHA (ROGER WAYNE) V. CONSOLIDATION COAL
DDATE:
19890404
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                              April 4, 1989

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of ROGER LEE
WAYNE, SR.

v.            Docket No. WEVA 87-89-D

CONSOLIDATION COAL COMPANY

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

             DECISION

BY: Backley, Doyle, Lastowka and Nelson, Commissioners

 This proceeding concerns a discrimination complaint filed by

the Secretary of Labor on behalf of Roger Lee Wayne, Sr., pursuant
to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. $ 801
et seq. (1982) (the "Mine Act" or "Act"). The complaint alleges
that Consolidation Coal Company ("Consol") violated section 105(c)(1)
of the Mine Act, 30 U.S.C. $ 815(c), when it denied Wayne the
opportunity to participate in a post-inspection conference without
a loss of pay. 1/

1/ Section 105(c)(1) provides:

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

Page 2

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

Page 3

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Commission Administrative Law Judge Avram Weisberger found
that Consol discriminated against Wayne in violation of
section 105(c)(1) and ordered Consol to reimburse Wayne for
pay that Wayne lost as a result of Consol's action. The judge
also assessed Consol a civil penalty of $300 for the violation.
9 FMSHRC 1958 (November 1987)(ALJ). The Commission granted
Consol's petition for discretionary review. For the reasons
that follow, we reverse the judge's decision.

The essential facts are not in dispute. Wayne is a first

class mechanic employed on the day shift at Consol's Ireland Mine,
an underground coal mine located in Moundsville, West Virginia;
he is a member of the United Mine Workers of America ("UMWA" or
"Union"). At the time of the events herein he was a member of the
union safety committee at the Ireland mine.

A mandatory safety standard requires that the Secretary

approve and the operator adopt a ventilation system and methane
and dust control plan suitable to the conditions and mining system
of each underground coal mine. 30 C.F.R. $ 75.316 specifies that
such plan "be reviewed by the operator and the Secretary at least
every 6 months." In preparation for this mandated review, David
Wolfe, an inspector and mine ventilation specialist of the Department
of Labor's Mine Safety and Health Administration ("MSHA"), conducted a
ventilation inspection at the mine from March 3 through March 6, 1986,
in order to determine whether the mine's approved ventilation system
and methane and dust control plan was adequate and suitable under
existing mining conditions. Following the inspection, Wolfe arranged
with Consol's superintendent of mines !or a ventilation plan review
meeting to take place at the mine on March 25, 1986.

On March 24, 1986, Hestel Riggle, Consol's safety engineer,

told Wayne that the ventilation plan review meeting would be held
on the following day. Wayne responded that he would probably go
with Riggle to the meeting "because it was my shift." Tr. 84.
According to Riggle, the next day and prior to the commencement of
the day shift at 8:00 a.m., Wayne informed Riggle that he was to be
the representative of the

  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 potential transfer under a standard

Page 4

published pursuant to section [101] of this [Act]
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
employment on behalf of himself or others of any
statutory right afforded by this [Act].

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

Page 5

~485
miners at the meeting. Riggle told Wayne that if he was needed
as a walkaround, he would be called to the meeting. Tr. 138;
9 FMSHRC at 1960.

On March 25, Inspector Wolfe arrived at the meeting site at

8:40 a.m. Wolfe noted that among those present from Consol in
addition to Riggle were Ray Temley, Mine Foreman; Kye Yavlak, Mine
Engineer; Steve Perkins, Environmental Control Specialist; Albert
Aloio, Assistant Mine Superintendent; and George Carter, Supervisor
of Industrial and Employee Relations. Among those present for the
miners were: David Shreve, UMWA International Safety Representative,
and Bill Wise, Leo Conner, and David Miller, members of the union
safety committee.

Riggle asked Inspector Wolfe if a walkaround representative was

needed at the meeting. 2/ Wolfe responded that one was not needed as
the miners already had sufficient representatives. 9 FMSHRC at 1960.

2/ The term "walkaround" is used for convenience in reference to
the rights granted miners' representatives under section 103(f) of
the Mine Act, which provides:

         Subject to regulations issued by the Secretary,
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
made pursuant to the provisions of subsection (a) of this
section, for the purpose of aiding such inspection and to
participate in pre- or post-inspection conferences held at
the mine. Where there is no authorized representative, the
Secretary or his authorized representative shall consult
with a reasonable number of miners concerning matters of
health and safety in such mine. 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. To the extent that
the Secretary or authorized representative of the Secretary
determines that more than one representative from each party
would further aid the inspection, he can permit each party
to have an equal number of such additional representatives.
However, only one such representative of miners who is an
employee of the operator shall be entitled to suffer no
loss of pay during the period of such participation under
the provisions of this subsection. Compliance with this

Page 6

 subsection shall not be a jurisdictional prerequisite to
 the enforcement of any provision of this [Act].

30 U.S.C. $ 813(f).

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~486
Miller then requested of Carter that Wayne attend the meeting as
the designated representative of the miners. 3/ Wolfe said that a
walkaround was not necessary at the meeting because the meeting was
not an inspection. Id. Carter then told Miller that Wayne could be
brought out of the mine but only on "union business." 4/ Miller then
insisted that Wayne be notified to attend the meeting and Wayne was
so notified. Before he could arrive at the meeting site, however,
both sides had requested and obtained from Wolfe a postponement of
the meeting. When Wayne arrived at the meeting site, he was told by
Carter that because he had been called out of the mine on union
business, he could not return to work.

When Consol refused to pay Wayne for the remainder of his

shift, Wayne filed a complaint with the Secretary alleging
discrimination under section 105(c)(1) of the Act. Following an
investigation by MSHA, the Secretary filed with the Commission the
discrimination complaint on Wayne's behalf that is the subject of
the present proceeding. The UMWA intervened in support of Wayne
and after an evidentiary hearing on the merits, the judge issued
his decision finding a violation by Consol of section 105(c).

 The administrative law judge concluded that the ventilation

plan review meeting was a "post-inspection conference" within the
purview of section 103(f) of the Act. 9 FMSHRC at 1962. The
judge further concluded that Wayne was the "authorized representative"
of the miners for participation in the March 25 conference and that
his participation in the conference was protected under section 105(c)
of the Mine Act. The judge noted the parties' stipulation that
the safety committeeman who was on the shift at the time of the
post-inspection conference would be the first choice as the authorized
representative of the miners on that shift; that Wayne, a safety
committeeman, was working on the shift during which the meeting
occurred; and that Miller had requested that Wayne be present at the
meeting as the designated representative of the miners. The judge
concluded that although three other safety committeeman were already
at the meeting, Wayne was the "authorized" representative of miners
within the purview of section 103(f) of the Act. 9 FMSHRC at 1962.

The judge also found that Wayne's loss of pay constituted

an adverse action and that Carter's refusal to allow Wayne to
return to work after the meeting had been postponed was an attempt
to punish Wayne for attempting to exercise his protected right to
attend the meeting. Therefore, the judge held that Consol unlawfully
discriminated against Wayne in violation of section 105(c)(1) of the
Act when it refused to

Page 8

3/ At the hearing, the parties stipulated that a safety committeeman
working on the shift during which an inspection or conference occurred
would be the miners' first choice as the authorized representative of
the miners on that shift. See 9 FMSHRC at 1959. Wise, Conner and
Miller worked on shifts other than the day shift.

4/ The term "union business" refers to a contractual right to an
excused, unpaid leave of absence to participate in union activities.

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~487
allow Wayne to return to work or to pay him. 9 FMSHRC at 1962-63.

 On review, Consol raises a number of arguments in support

of its contention that the judge erred in finding that it
unlawfully discriminated against Wayne. Consol argues that the
March 25 meeting was not a "post-inspection conference" within the
meaning of section 103(f) and, therefore, Wayne's participation in
the meeting was not protected activity. Consol also asserts that
section 103(f) confers upon the Secretary and her authorized
representative wide authority and discretion in interpreting and
implementing walkaround rights, and that Inspector Wolfe, acting
within that authority, excluded Wayne from walkaround status when
he determined that the miners were already adequately represented at
the meeting. In this regard, Consol contends that its stipulation
that an on-shift safety committeeman is the miners first choice as the
walkaround representative on that shift does not guarantee walkaround
status to the on-shift safety committeeman. Because Wayne's presence
was determined by the inspector to be superfluous to the other miner
representatives who were also present to aid and participate in the
six-month ventilation meeting, Wayne was not entitled to be paid by
Consol for the remainder of the shift after he exited the mine on
union business. Finally, Consol argues that Wayne's right to go on
union business and Consol's right to refuse to allow him to return to
work or to pay him for the remainder of the shift are controlled by
the 1984 Wage Agreement (the "contract").

 In response, the Secretary and the UMWA contend that the

ventilation review meeting was a "post-inspection conference" under
section 103(f), Wayne was the miners: choice as their authorized
representative for participating in the conference, the presence
at the conference of other members of the union safety committee
did not negate Wayne's right to participate in the March 25 meeting
without a loss in pay, and that none of Inspector Wolfe's actions
can properly deprive Wayne or the miners of their rights.

We conclude the judge erred in finding, under the facts of

this case, that Consol discriminated against Wayne in violation
of section 105(c)(1). In reaching this conclusion, we need not
resolve whether the meeting at issue is a compensable post-inspection
conference. Rather, assuming the applicability of section 103(f) to
a ventilation review meeting, we find that, given Inspector Wolfe's
exercise of his authority under section 103(f), Consol cannot be
found to have violated the Act.

Under the Mine Act, a complaining miner establishes a prima

Page 10

facie case of discrimination by proving he engaged in protected
activity and that the adverse action complained of was motivated
in any part by that activity. Secretary on behalf of 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 Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-818 (April 1981). The
operator may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was not
motivated in any part by protected activity. Robinette, 3 FMSHRC
at 818 n. 20. Thus, to prevail on his complaint, Wayne must first
show that he had a protected right to attend the

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~488
March 25 meeting.

Section 103(f) affords both representatives of operators and

representatives of miners the right to accompany an MSHA inspector
during a "physical inspection of [the] ... mine" and to "participate
in pre- or post-inspection conferences held at the mine." 30 U.S.C.
$ 813(f). We have previously emphasized the important function served
by these rights in enhancing miners' understanding and awareness of
the health and safety requirements of the Act. Emery Mining Corp.,
10 FMSHRC 276, 289 (March 1988), petition for review filed Nos.
88-1655 and 1659 (lOth Cir. April 27, 1988); Secretary on behalf of
Truex v. Consolidation Coal Co., 8 FMSHRC 1293 (September 1986); see
also Magma Copper Co., 1 FMSHRC 1948, 1951-52 (December 1979), aff'd,
Magma Copper Co. v. FMSHRC, 645 F.2d 694 (9th Cir. 1981), cert.
denied, 454 U.S. 940 (1981). We have further recognized that section
103(f) provides miners, rather than mine operators, the right to
designate a representative for section 103(f) inspections and
conferences. Truex, 8 FMSHRC at 1298. Unlike Truex, however, the
controlling question here is not whether the operator has a role to
play in the selection of a miners' representative but the extent of
the role played by the Secretary's Inspector.

The right of a miners' representative to accompany an

inspector is not an unqualified right. Emery, 10 FMSHRC at 289.
Section 103(f) itself expressly provides that the exercise of the
right is "[s]ubject to regulations issued by the Secretary," requires
that a representative "be given an opportunity to accompany" the
inspector, and grants the inspector discretion to permit additional
representatives where he determines that more than one walkaround
representative would aid his inspection. 30 U.S.C. $ 813(f). See
Emery, 10 FMSHRC at 289.

In exercising the authority granted by section 103(f), the

Secretary has recognized that the exercise of the walkaround right
by miners' representatives must be the subject of appropriate
qualification and she has expressly invested MSHA inspectors with
the authority to limit the number of miners' representatives
participating in an inspection, consistent with the primary obligation
to carry out inspections in a thorough, detailed, and orderly manner.
Interpretative Bulletin, 43 Fed. Reg. 17546 (1978). Emery at 289
n. 13. 5/

5/ The Secretary's Interpretative Bulletin setting forth guidelines
for the inspector's interpretation and application of section 113(f),
provides:

Page 12

Considerable discretion must be vested in inspectors
in dealing with the different situations that can occur
during an inspection. While every reasonable effort
will be made in a given situation to provide opportunity
for full participation in an inspection by a representative
of miners, it must be borne in mind that the inspection
itself always takes precedence. The inspector's primary
duty is to carry out a thorough, detailed, and orderly
inspection. The inspector cannot allow inordinate

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~489
Here, it is clear that Inspector Wolfe believed that Wayne's
presence as a walkaround was not required at the meeting because the
miners already were adequately represented by the three union safety
committeemen then present. It is undisputed that Wolfe informed the
representatives of the miners already in attendance, as well as
Consol's representative, of his position. Consol's safety engineer
Riggle testified that had Wolfe stated that he required a walkaround
for the meeting, Consol would have made certain that a walkaround was
available to the inspector, and the parties do not dispute that
Consol's practice is to defer to the MSHA inspector's determination
regarding walkaround. Tr. 144, 154.

 In view of the central role that inspectors play under the

statute and the Secretary's own guidelines with respect to
walkaround representation, we hold that the judge erred when he
found "no relevance" in Wolfe's "comments" that "a 'walkaround' was
not required ... and that the miners were already represented by the
three safety committeemen who were present." 9 FMSHRC at 1962. In
stating to the representatives of the miners and of Consol already
present at the meeting that Wayne's additional presence was not
required, Wolfe exercised the discretionary authority accorded him by
the Act to determine the composition of the group participating in an
inspection. Since three other members of the union safety committee
and one representative of the International UMWA were present at the
meeting, we cannot say that the inspector acted arbitrarily or
capriciously in excluding Wayne.

 We have considered the parties: stipulation that the

safety committeeman working the shift during which an inspection
takes place would be the "first choice" as miners: representative
for an inspection occurring during that shift. The statute, however,
does not limit walkaround participation to only "on-shift" miners.
Instead, this statute requires only that, if an "on-shift"
representative participates

 delays in commencing or conducting an
 inspection because of the unavailability of
 or confusion surrounding the identification
 or selection of a representative of miners.
 Where necessary in order to assure a proper
 inspection, the inspector may limit the number
 of representatives of the operator and miners
 participating in an inspection. The inspector
 can also require individuals asserting conflicting
 claims regarding their status as representatives

Page 14

of miners to reconcile their differences among
themselves and to select a representative. If there
is inordinate delay, or if the parties cannot resolve
conflicting claims, the inspector is not required to
resolve the conflict for the miners and may proceed with
the inspection without the presence of a representative.

43 Fed. Reg. at 17546 (emphasis added).

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~490
as the authorized representative, such representative is to be
compensated by the operator. Here, several representatives of
miners were present to participate at the meeting and the inspector,
acting within his authority, determined that an additional miners'
representative was not needed. In the circumstances of this case,
the inspector's decision controls.

Accordingly, we find that the inspector acted within the

discretion granted him under section 103(f) and the Secretarial
guidelines in determining that Wayne's presence was not required at
the meeting. We further find that in relying upon the inspector's
determination Consol did not violate section 105(c). Therefore,
the judge's decision is reversed, the discrimination complaint is
dismissed, and the penalty assessed by the judge is vacated.

                 Richard V. Backley, Commissioner

                 Joyce A. Doyle, Commissioner

                 James A. Lastowka, Commissioner

                 L. Clair Nelson, Commissioner

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Chairman Ford concurring in result:

I agree with my colleagues in the majority that the decision

of the judge should be reversed, but I would base the reversal on a
more fundamental ground: Mr. Wayne's participation in the ventilation
plan review meeting of March 25, 1986 was not a statutorily protected
activity, the denial of which would constitute a violation of section
105(c) of the Mine Act. 30 U.S.C. 815(c). To the extent that my
colleagues decline to reach the issue of whether a miner or miner
representative's participation in such a review meeting lies within
the "walkaround" right set forth in section 103(f) of the Mine Act,
30 U.S.C. 813(f), I am obliged to file this separate opinion.

It is appropriate to begin an analysis of how this dispute

arose by recalling what Inspector Wolfe was doing at the Ireland
Mine in March of 1986. He was there to carry out the Secretary's
responsibilities under 30 C.F.R. 75.316, which requires that coal
mine ventilation plans "be reviewed by the operator and the Secretary
at least every six months" (emphasis added). The regulation is drawn
verbatim from the Mine Act itself. 30 U.S.C. 863(0). There is simply
no regulatory or statutory authority for participation by miners or
their representatives in the development, review and approval of mine
ventilation plans, however appropriate such participation might be. 1/

The question then becomes whether, despite this lack of
authority for miner participation in the plan review and approval
process, there exists an overriding right of participation derived
from section 103(f) of the Mine Act. That section provides the
miners' representative "an opportunity to accompany" the inspector
during the physical inspection of the mine and "to participate in
pre- or post- inspection conferences held at the mine." The
Secretary argues that Inspector Wolfe's ventilation survey conducted
on March 3-6, 1986 and the follow-up review meeting held on
March 25, 1986 both invoke the "walkaround" right of section 103(f).
The Secretary's position on review, however, conflicts with the
delineation of section 103(f) rights set forth in the Department of
Labor's Interpretative Bulletin (Bulletin) issued April 25, 1978,
which is the only official Secretarial pronouncement on the scope
of walkaround participation. 43 Fed. Reg. 17546. 2/

1/ The standard also provides that plans be initially "adopted" by
the operator and "approved" by the Secretary. Numerous ventilation
standards within Part 75, however, do require that records and reports
of ventilation examinations conducted to evaluate the effectiveness of
the ventilation plan must be made available to "interested persons"

Page 17

which would of course include miners. See, e.g., 30 C.F.R. 75.300-4,
75.303, 75.305 and 75.306. Additionally, 30 C.F.R. 75.1203 requires
that a mine map setting forth the ventilation system be kept current
and made available to miners and their representatives.

2/ The Bulletin does not address a miners' representative's
participation in pre-and post-inspection conferences; rather, it
deals with various mine site "activities" giving rise to miners'
participation rights. For purposes of analysis here, however, I am
assuming that if a right to participate in a particular activity
exists, that right extends to any subsequent conference held on mine
property to discuss specifically the consequences of that activity.

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~492
Stating that "the types of activities which give rise to
the [miner's] participation right under section 103(f) are numerous,
but pot unlimited," the Bulletin proceeds to distinguish those
situations where walkaround participation is warranted from those
where it is not. Those activities giving rise to the right of
participation are: (1) "regular inspections", i.e., the four
underground and two surface mine inspections required annually by
the Mine Act; (2) "spot inspections", described as inspections made
for purposes of determining if an imminent danger or a violation
exists; (3) inspections in response to requests from miners or their
representatives, i.e., section 103(g) inspections; (4) inspections at
mines liberating excessive quantities of methane or other explosive
gases, i.e., section 103(i) inspections; and (5) inspections in
conjunction with accident investigations. 43 Fed. Reg. 17547-48.

Conversely, activities that do not invoke the right to
participation include: (1) technical consultations; (2) demonstration
of prototype equipment; (3) education and training services;
(4) safety and health research; (5) general information gathering;
(6) criminal investigations; (7) investigations of discrimination
complaints; (8) investigations into petitions for variances under
section 101(c); and (9) field certification of permissible equipment.
43 Fed. Reg. 17548.

Viewed against the backdrop provided by these distinctions,

I conclude that the activity engaged in by Inspector Wolfe during
his visits to the mine on March 3-6, 1986 was more in the nature of
consultation and information gathering in conjunction with the plan
review and approval process than in the nature of "direct enforcement
activity" described by the Bulletin as "carried out for the purpose
of determining if an imminent danger or a violation exists." 43 Fed.
Reg., 17547-48. 3/

This is not to say that "direct enforcement activity" could

not arise in the course of an activity that would not otherwise
invoke a miner representative's right to participate. In fact,
Inspector Wolfe issued two

3/ Indeed, the inspector's activities throughout March of 1986
are most analogous to those carried out during investigations into
petitions for variance under section 101(c) (number 8 among the list
of activities, supra, that do not give rise to miner participation
rights). In both cases, the operator's past compliance record is
reviewed, whether that review covers compliance with the current
plan or compliance with the standard from which a variance is sought.

Page 19

Likewise, in both cases the review covers proposed changes in the
operator's compliance responsibilities, whether through revisions to
the plan or through the variance being sought. If, as the Secretary
argues and the judge found, the discussion of past compliance and
changes in future compliance responsibilities are the criteria for
determining whether an activity, i.e., the ventilation review meeting,
comes within the "purview of section 103(f)", 9 FMSHRC 1962, I fail
to see why section 101(c) investigations would not also require
walkaround participation.

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~493
citations during the March 3-6 survey though neither one related
to the ventilation standards or the ventilation plan (nor were
the two citations reviewed at the March 25 meeting). The
Bulletin, however, anticipates such circumstances by stating that
while "enforcement action could result from some of those
[non-participation] activities ... [t]he continuing presence of
a representative of the miners in all phases of the activities
would not necessarily aid the activity." 43 Fed. Reg. 17548.

Granting appropriate deference to the Secretary as an

interpreter of the enabling statute, I find no basis in her
Interpretive Bulletin for considering the mine plan review and
approval process as an activity giving rise to section 103(f)
participation rights for miners or their representatives. Indeed,
the Bulletin taken as a whole supports an opposite view. Nor am I
persuaded by the case law advanced by the Secretary in support of
her position. In Southern Ohio Coal Co., 8 FMSHRC 295 (March 1986)
miner participation at a post-inspection conference was specifically
authorized by 30 C.F.R. 100.6 which granted "all parties" the
opportunity to review each citation and order issued during a
regular quarterly inspection. Id. 296. In Secretary on behalf of
Truex v. Consolidation Coal Co., 8 FMSHRC 1293 (March 1988) the
operator stipulated that a miner representative's attendance at a
conference called to discuss a hearing conservation program was
subject to the walkaround requirements of section 103(f). Here,
there is neither regulatory authority nor an admission by the operator
establishing that the ventilation plan review meeting of March 25,
1986 was subject to the walkaround rights of section 103(f).

In the final analysis the dispute in this case appears to

have arisen from the inevitable blurring of miner's rights set
forth separately in the Mine Act and in the National Bituminous
Coal Agreement of 1984 and in their respective predecessors.
Custom and practice at the Ireland Mine have obviously led to some
confusion as to where statutory rights terminate and wage agreement
rights commence. 4/ As this Commission has often stated, however,
"the Mine Act is not an employment statute." United Mine Workers of
America on behalf of James Rowe et al. v. Peabody Coal Co., 7 FMSHRC
1357, 1364 (1985) aff'd 822 F.2d 1134 (D.C. Cir. 1987). Great care
must therefore be taken by the Secretary and the Commission to keep
statutory and contractual rights separate and distinct. Here,
regardless of what rights of participation may or may not lie in
contract, it is clear to me that neither the Mine Act nor, in
particular, standard 30 C.F.R. 75.316 grants miners or their
representatives rights to participate in the review and approval

Page 21

of mine ventilation plans. If the Secretary believes that

4/ See, for instance, Article III, section (d)(7) of the wage
agreement guaranteeing pay for certain safety committee activities
and Article III, section (h) setting forth miners' rights to receive
in advance and to comment upon various plans required to be developed
and approved under the Mine Act. In fact, the latter provision was
invoked by safety committeeman Miller when he requested a 10 day
postponement of the March 25, 1986 meeting to allow the union to
consider an MSH, proposed change in the ventilation plan. Tr. 107,

109. Although the plan was ultimately approved, the rescheduled
     meeting was never held. Tr. 55.

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~494
such participation is both vital and appropriate (and sound
arguments can be marshalled to support that belief) her recourse
is to the rulemaking provisions of section 101 of the Act, not to
the discrimination provisions of section 105(c). 5/

For the reasons set forth above I would reverse the decision

of the judge and dismiss the complaint.

                   Ford B. Chairman

5/ In fact, it should be noted that the scope of miner
participation in the development, approval and periodic review
of mine plans is a specific consideration in the Secretary's
ongoing rulemaking activities. The Secretary's relatively recent
revision of her roof control standards does not provide for the
participation of miners or their representatives in the development
of roof control plans nor in the approval and review process.
Plans are to be "developed" by the operators, "approved" by the
MSHA District Managers, and "reviewed" every six months by the
Secretary's authorized representatives. 30 C.F.R. 75.220, 75.222
and 75.223. See 53 F.R. 2375, 2378-80 (January 27, 1988). Miner
involvement is limited to access to approved plans and instruction
in their provisions prior to implementation. Id. In her preamble
to the standards, however, the Secretary deferred the issue of miner
participation in the plan approval process to her pending rulemaking
proceedings on ventilation standards. 53 F.R. 2370. In turn, the
Secretary's proposed rule on ventilation provides the miners'
representative an opportunity to provide written comments on the mine
operator.s proposed plan and to meet with the District Manager to
discuss the plan. The proposal is silent, however, with respect to
walkaround rights. 53 F.R. 2354, 2404, 2421 (January 27, 1988).

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~495
Distribution

Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Thomas M. Myers, Esq.
United Mine Workers of America
56000 Dilles Bottom
Shadyside, Ohio 43947

Michael Peelish, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241

Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041