Secretary of Labor v. Consolidation Coal Company

Plain-English summary

Consolidation Coal prevented miners' representatives from accompanying an MSHA inspector into an underground bleeder system because company supervisors believed the area was too dangerous. Judge Roy J. Maurer held that the Mine Act's walkaround right could not be restricted on that basis by the operator. He affirmed the citation for denying the miners' representatives the opportunity to accompany the inspector and assessed the proposed $1,000 civil penalty. The Commission later affirmed the judge's decision.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 813(f), 813(a), 817(a), 820(i), and 823
• Outcome: Citation No. 3108715 was affirmed and a $1,000 civil penalty was ordered.
• Subsequent review: The Commission affirmed this decision in weva-92-922-commission.
• Key point: An operator's good-faith belief that an area is dangerous does not by itself permit the operator to deny a miners' representative the statutory walkaround opportunity.

Full text (FMSHRC public release)

      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

             OFFICE OF ADMINISTRATIVE LAW JUDGES
                    2 SKYLINE, 10th FLOOR
                     5203 LEESBURG PIKE
                FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 92-922
Petitioner : A.C. No. 46-01453-04008
v. : Humphrey No. 7 Mine
CONSOLIDATION COAL COMPANY, :
Respondent :

                            DECISION

Appearances: Charles M. Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
Daniel E. Rogers, Esq., Consol, Inc., Pittsburgh,
Pennsylvania, for Respondent.

Before: Judge Maurer

                    Statement of the Case

 In this case, the Secretary of Labor (Secretary) seeks a

civil penalty of $1,000 for an alleged violation of section
103(f) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 813(f) (Footnote 1) which authorizes designated walkaround
representatives to accompany inspectors during their inspection
of the mine.

1 Section 103(f) states:
"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), 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 miner
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 subsection shall not be a jurisdictional prerequisite to
the enforcement of any provision of this Act."

 Inspector Thomas W. May issued to the respondent section

104(a) Citation No. 3108715 which charges the following:

      The operator did not give the representative,
 authorized by the miners, the opportunity to accompany an
 authorized representative of the Secretary. On day
 shift and afternoon shift on 01-13-92, the miner
 representative was not permitted to accompany me on my
 physical inspection of the Northwest bleeder system.
 On day shift John Higgins, General Superintendent,
 would not permit Sam Woody, the miner representative
 the opportunity to accompany me into the bleeder
 system. On afternoon shift Ron Weaver, Superintendent,
 would not permit Richard Matthews, the miner
 representative the opportunity to accompany me into the
 bleeder system. On afternoon shift I was accompanied
 by Rick Pauley, representative of the operator.

 Pursuant to notice, a hearing was held on the alleged

violation in Morgantown, West Virginia, on December 17, 1992.
Both parties have filed posthearing letter-briefs, which I have
duly considered in making the following decision.

                      Stipulations

 The parties stipulated to the following, which I accepted

(Tr. 7-9):

      1. Consolidation Coal Company is the owner and
 operator of the coal mine at which the citation in this
 proceeding was issued.

      2. Operations of Consolidation Coal are subject to
 the jurisdiction of the Federal Mine Safety and Health Act
 of 1977.

      3. This case is under the jurisdiction of the Federal
 Mine Safety and Health Review Commission and its designated
 Administrative Law Judges pursuant to sections 105 and 113
 of the Mine Act.

      4. The individual whose signature appears in block 22
 of the citation at issue in this case was acting in his
 official capacity and as an authorized representative of the
 Secretary of Labor when the citation was issued.

      5. True copies of the citation at issue in this case
 were served on the Respondent or its agent as required by
 the Mine Act.

      6. The total proposed penalty for the citation contested
 by Consolidation Coal Company in this case will not affect
 the Respondent's ability to continue in business.

      7. For the purposes of assessing any penalty that may
 be assessed in this case, Consolidation Coal Company is a
 large coal mine operator with an average history of
 violations.

      8. The citation contained in Exhibit A attached to the
 Secretary's petition is an authentic copy of the citation at
 issue in this case with all appropriate modifications for
 abatements.

                       Discussion

 On the morning of January 13, 1992, Inspector May informed

Mr. Robert Smith, who works in Consolidation's Safety Department
and Mr. Sam Woody, the miner's representative, that he was going
to go back into the northwest bleeder system to inspect the Brock
Four Bleeder Fan. He also informed them both at this time that
they had the right to travel with him or not, as they chose.

 This area had not been inspected for 8 months because the

company had requested and been given a waiver to examine that
area with the proviso that they take their air and gas readings
on the surface. Prior to the issuance of this waiver, the area
had been the subject of a weekly examination.

 Mr. Woody was willing to go, but Mr. Higgins, the general

superintendent, told Inspector May that the company
representative and the miner's representative, Sam Woody would
not be traveling with him to the fan. He told the inspector that
he could go anywhere in the mine he wanted to, but that he
(Higgins) was not going to permit company employees to go back
there. Higgins felt that the area was too dangerous; it had not
been inspected in 8 months and he was not going to allow company
personnel to go into that area. He informed the inspector that
his men would stop at the six northwest cut-through.

 Inspector May testified that he then told Mr. Higgins that

under the Mine Act, the miner's representative had the right to
travel with him and assist him in his inspection. Higgins again
stated that the miner's representative, in this situation, Sam
Woody, was a company employee and his responsibility if he were
to get injured. He reiterated that he was not going to permit
it.

 Subsequently, Inspector May, accompanied by Smith and Woody

arrived at the man door at the six northwest cut-through.
Inspector May proceeded into the bleeder system alone. Smith and
Woody remained on the outby side of the man door at the cut-
through. Inspector May remained in the bleeder system for
approximately an hour. As a result of his inspection, he issued
a section 107(a) order because of methane concentrations. That
order is not the subject of this proceeding, but I understand it
was later vacated as part of a settlement negotiation.

 There was a second inspection of the area that day by

Inspector May, to terminate the order. He arrived at the mine
about 8:30 p.m. At this time John Webber was the Safety
Department representative and Richard Matthews the miner's
representative. On this occasion, Mr. Ron Weaver, the
superintendent of the Bowers Portal stopped him and informed him
that Webber and Matthews would not be going into that area with
him, but that a shift foreman, Rick Pauley would travel with him
back to the bleeder. Inspector May advised Weaver of the right
of the miner's representative under the Act to travel with the
inspector and assist in the inspection. Weaver repeated that
Matthews would not be going with him, and he didn't. The
inspector, accompanied by Foreman Pauley carried out the
termination inspection, leaving Webber and Matthews behind at
the man door at the six northwest cut-through.

 In this case, respondent maintains that it was their

corporate duty to protect their employees from potential harm and
that they did have a reasonable basis for considering going back
into that bleeder system to be too dangerous.

 Upon reflection, I am not going to get into the issue of

whether or not it was too dangerous or dangerous at all for that
matter to inspect the northwest bleeder system as Inspector May
insisted on doing on the day in question. The Commission has
emphasized repeatedly that the walkaround rights granted miners'
representatives by section 103(f) of the Mine Act are a vitally
important statutory right granted to miners and their
representatives by the Act. And I can find no authority, nor has
respondent been able to cite me any, for the proposition that the
opportunity to engage in walkaround can be restricted by the
operator based on potential danger to the employee/miner's
representative. Accordingly, I am going to affirm the citation at
bar.

                  Civil Penalty Assessment

 Taking into consideration all of the civil penalty

assessment criteria found in section 110(i) of the Act, I
conclude and find that the petitioner's proposed civil penalty
assessment of $1000 for the violation in question is reasonable,
and it will be so ordered.

                            ORDER

 Based on the above findings of fact and conclusions of law,

IT IS ORDERED:

  1.   Citation No. 3108715 IS AFFIRMED.

 2. Respondent, Consolidation Coal Company shall within

30 days of the date of this decision pay the sum of $1,000 as a
civil penalty for the violation found herein.

                            Roy J. Maurer
                            Administrative Law Judge

Distribution:

Charles M. Jackson, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)

Daniel E. Rogers, Esq., Consol, Inc., Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)

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