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Consolidation Coal Co. v. Federal Mine Safety and Health Review Commission

August 13, 1984

CONSOLIDATION COAL COMPANY, PETITIONER,
v.
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, RESPONDENT, AND RAYMOND J. DONOVAN, SECRETARY OF LABOR, RESPONDENT, UNITED MINE WORKERS OF AMERICA, INTERVENOR



Author: Weis

Before WEIS and BECKER, Circuit Judges, and OLIVER, District Judge.*fn*

Opinion OF THE COURT

WEIS, Circuit Judge.

In this appeal, the owner of a coal mine contests its obligation to pay a miner's representative for his time spent in accompanying a federal official on a sport inspection. We conclude that the statutory entitlement to "walkaround pay" applies to both regular and spot inspections. Accordingly, we will deny the owner's petition for review of a penalty for failure to compensate a miner representative.

In March, 1982, a federal mine inspector conducted a spot inspection at Consolidation Coal's Westland No. 2 Mine, an underground bituminous coal facility in Washington, Pennsylvania. Miner representative L. Zuzik accompanied the inspector on his tour of the mine. After having learned that the company failed to pay Mr. Zuzik for the time spent on the inspection, another inspector from the Mine Safety and Health Administration issued a citation for a violation of subsection 103(f) of the Federal Mine Safety & Health Act of 1977, 30 U.S.C. § 801 et seq. (1982).

The parties submitted the matter to an ALJ on stipulated facts. He entered a decision against the company, directing payment to Mr. Zuzik and assessing a penalty of $100, an increase of the $48 penalty sought by the Administration. The Federal Mine Safety & Health Review Commission declined to exercise its review function, and the order became final.

On petition to this court, the company contends that the Act's allowance of compensation to the miner representative applies to only "regular" and not "spot" inspections. The company also contests the increase in the penalty beyond the amount sought by the Secretary. The Secretary of Labor argues that in United Mine Workers of America v. Federal Mine Safety & Health Review Commission, 217 U.S. App. D.C. 109, 671 F.2d 615 (D.C. Cir.), cert. denied, 459 U.S. 927, 103 S. Ct. 239, 74 L. Ed. 2d 189 (1982), the Court of Appeals for the District of Columbia Circuit correctly interpreted the Act as requiring payment of compensation to miner representatives on all inspections.

In 1977 Congress, primarily concerned about safety in the nation's mines, substantially revised legislation affecting miners. See 30 U.S.C. § 801 et seq. As part of the overall plan, section 103 of the Act provides that the Secretary should make frequent inspections each year for the purpose of:

"(1) obtaining, utilizing, and disseminating information relating to health and safety conditions, the causes of accidents, and the causes of diseases and physical impairments originating in such mines:

(2) gathering information with respect to mandatory health or safety standards;

(3) determining whether an imminent danger exists; and

(4) determining whether there is compliance with the mandatory health or safety standards."

30 U.S.C. § 813(a).

For the purposes of carrying out (3) and (4), the Secretary's representative is to inspect each underground mine "in its entirety at least four times a year." The subsection goes on to say that the Secretary "shall develop guidelines for additional inspections . . . based on criteria including . . . hazards found in mines . . . and his experience." Subsection (a) also provides that, for the purposes ...


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