Monterey Coal Co. v. Federal Mine Safety & Health Review Commission

743 F.2d 589
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 14, 1984
DocketNo. 83-2651
StatusPublished
Cited by5 cases

This text of 743 F.2d 589 (Monterey Coal Co. v. Federal Mine Safety & Health Review Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Monterey Coal Co. v. Federal Mine Safety & Health Review Commission, 743 F.2d 589 (7th Cir. 1984).

Opinion

CUDAHY, Circuit Judge.

The sole issue in this appeal is whether section 103(f) of the Federal Mine Safety and Health Amendments of 1977, 30 U.S.C. § 813(f), requires mine operators to pay wages to a miner representative accompanying a federal mine inspector conducting a “spot” mine inspection. In United Mine Workers v. Federal Mine Safety and Health Review Commission, 671 F.2d 615 (D.C.Cir.) (“United Mine Workers”), cert. denied, 459 U.S. 927, 103 S.Ct. 239, 74 L.Ed.2d 189 (1982), a divided panel of the Court of Appeals for the District of Columbia Circuit held that section 103(f) does require such “walkaround pay” for spot inspections. Petitioner Monterey Coal Company has invited us to disagree with the District of Columbia Circuit on this issue. We decline the invitation and affirm the decision of the Federal Mine Safety and Health Review Commission.1

I

Under the prior law governing mine safety, section 103(h) of the federal Coal Mine Health and Safety Act of 1969, an authorized representative of miners was entitled to accompany a federal mine inspector on any mine inspection. 30 U.S.C. § 813(h) (1976). In enacting the Mine Safety and Health Act of 1977 (“the Act”), Congress overhauled prior mine safety legislation. Among the Act’s new provisions was section 103(f), 30 U.S.C. § 813(f) (1982). That subsection not only authorizes miner representatives to accompany federal inspectors but also requires mine operators to pay the wages of one miner representative accompanying the inspector. At issue here is the scope of these rights to accompany federal mine inspectors (“participation rights”) and to be paid for the time spent on the inspection (“walkaround pay rights”).

Section 103(a) of the Act, 30 U.S.C. § 813(a), gives the Secretary of Labor the authority to inspect mines frequently for safety-related purposes, and subsection (a) specifically requires the Secretary to inspect in their entirety all underground mines four times a year and all surface mines two times a year. Section 103(f) of the Act, 30 U.S.C. § 813(f), provides that a miner representative must be given an opportunity to accompany a federal mine inspector “during the physical inspection of any coal or other mine made pursuant to the provisions of subsection (a).” Subsection (f) also provides that, where the miner representative is an employee of the mine operator, the representative “shall suffer no loss of pay during the period of his participation in the inspection made under this subsection.” This pay for time spent accompanying mine inspectors is generally known as “walkaround pay,” and we shall use that term.

Petitioner Monterey Coal Company (“Monterey Coal”) argues that a miner representative is entitled to walkaround pay only for the four inspections per year required by subsection (a) for underground mines. The Secretary of Labor and inter-venor United Mine Workers argue that the walkaround pay rights extend to virtually all mine inspections.

The facts here are very simple. On March 23, 1982, an inspector from the federal Mine Safety & Health Administration (“MSHA”) conducted a spot roof control inspection of Monterey No. 1 Mine, an underground coal mine in Carlinville, Illinois.2 [591]*591A miner representative accompanied the inspector during the inspection, but Monterey Coal failed to pay him for the time spent accompanying the inspector. On April 28, 1982, the MSHA cited Monterey Coal for a violation of section 103(f) of the Act. Monterey Coal contested the citation, and the United Mine Workers of America intervened. An administrative law judge upheld the citation and assessed a civil penalty of twenty dollars. Secretary of Labor v. Monterey Coal Co., 5 FMSHRC 1223, 3 MSHC (BNA) 1030 (1983).3 The Commission declined review, and Monterey Coal then petitioned this court for review. See 30 U.S.C. § 816(a)(1).

II

In support of its contention that walka-round pay rights under section 103(f) apply only to the regular inspections mandated by section 103(a), Monterey Coal makes arguments based on the language of section 103(f) and on remarks of one Member of Congress during the floor debate before final passage of the Act. We consider these arguments in turn.

A. Inspections “Pursuant to the Provisions of Subsection (a).”

The sentence of section 103(f) describing the situations in which a miner representa-

five is entitled to accompany the inspector uses the language: “during the physical inspection of any coal or other mine made pursuant to the provisions of subsection (a).” 30 U.S.C. § 813(f).4 The sentence providing walkaround pay rights says that the miner representative shall suffer no loss of pay during “the period of his participation in the inspection made under this subsection.” Id. Monterey Coal focuses on the phrase “pursuant to the provisions of subsection (a)” and argues that that phrase should be given a limiting reading. According to Monterey Coal, the phrase refers, at least for purposes of walkaround pay rights, only to the regular inspections of an entire mine mandated by subsection (a). Invoking the familiar proscription against statutory surplusage, petitioner argues that any broader interpretation would render meaningless the phrase “pursuant to the provisions of subsection (a).” Petitioner contends that Congress deliberately did not use the phrase “any inspection” in section 103(f) because it did not want walkaround pay rights to apply to all mine inspections.

Consideration of this straightforward “surplusage” argument is complicated by the relationship between the miner representative's participation rights and the representative’s right to suffer no loss of pay. [592]*592The phrase which petitioner argues must be read narrowly, inspections “made pursuant to the provisions of subsection (a),” defines the miner representative’s participation rights. The walkaround pay provision merely incorporates this phrase indirectly by saying that the miner representative shall suffer no loss of pay for his “participation in the inspection made under this subsection.” Thus, the scope of walka-round pay rights is, as a textual matter, closely intertwined with, if not identical to, the scope of participation rights.

Petitioner tells us that the scope of the miner representative’s right to accompany the inspector is not an issue here. Petitioner’s Brief at 3. Strictly speaking, petitioner is correct, since the only claimed violation of the Act here is petitioner’s refusal to pay a miner representative who was permitted to accompany an inspector.

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