.
BHP COPPER COMPANY, INC.
June 23, 1998
WEST 98-189-RM

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268

                          June 23, 1998

BHP COPPER COMPANY, INC.,    :  CONTEST PROCEEDING
               Contestant    :
                             :  Docket No. WEST 98-189-RM
        v.                   :  Citation No. 7922328; 3/13/98
                             :
SECRETARY OF LABOR,          :  San Manuel Mine
  MINE SAFETY AND HEALTH     :  ID No. 02-00151
  ADMINISTRATION (MSHA),     :
               Respondent    :

   DECISION GRANTING CONTESTANT'S MOTION FOR SUMMARY DECISION

     This contest proceeding was brought by BHP Copper, Inc.,
("BHP") under Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C.  815(d) (the "Mine Act" or "Act").
BHP contests Citation No. 7922328, issued on March 12, 1998,
alleging a violation of section 103(a) of the Mine Act.  The
condition or practice section of the citation states:

     The operator impeded MSHA's investigation into a March 4,
1998, fatal accident by withholding vital information requested
by the MSHA accident investigation team.  At a meeting at 9:00 am
on March 6, 1998, between MSHA and operator representatives,
the MSHA accident investigation team requested the address
and telephone number of Ronald Byrd, an employee of BHP
Copper and a miner at the San Manual Mine, who had been
injured in the accident.  Ronald Byrd was an essential
witness in the accident investigation, and the MSHA accident
investigation team needed to contact him for an interview.  The
mine operator refused to provide MSHA with this information.
Operator representatives at the meeting included Ward Lucas,
Safety Manager, BHP Copper; Warren Traweek, Manager Safety,
Health & Security, North American Division, BHP Copper; and
Mark Savit of Patton Boggs, legal counsel for BHP Copper.
Section 103(a) of the Mine Act provides, in pertinent part:

     Authorized representatives of the Secretary ... shall
make frequent inspections and investigations in coal or other
mines each year for the purpose of ... (4) determining whether
there is compliance with the mandatory health or safety
standards or with any citation, order, or decision issued under
this title or other requirements of this Act ....  For the
purpose of making any inspection or investigation under this
Act, the Secretary ... or any authorized representative
of the Secretary ... shall have a right of entry to, upon, or
through any coal or other mine.

     BHP filed a motion for summary decision under 29 C.F.R. 
2700.67.  BHP contends that there are no genuine issues of
material fact and that it is entitled to summary decision as a
matter of law.  The Secretary opposes BHP's motion.  She contends
that there are material facts in dispute and that, on the basis
of facts not in dispute, BHP is not entitled to summary decision.
The Secretary also filed a cross-motion for summary decision on
the fact of violation based on the undisputed facts in this case.

                    I.  THE UNDISPUTED FACTS

     These undisputed facts are taken from the affidavits
submitted by the parties.  In instances where there are conflicts
in testimony, I accept the account submitted by the Secretary.
In some instances, I summarize the conflict below.

     On March 4, 1998, there was a fall of ground at the San
Manual Mine that killed a miner and injured a second miner.  On
March 5, 1998, MSHA supervisor Richard Laufenberg and Inspector
Arthur Ellis arrived at the mine to begin an investigation into
the accident.  The MSHA representatives conducted a physical
inspection of the accident site on that date.

     On March 6, 1998, the MSHA representatives interviewed a
number of BHP employees and reviewed BHP documents.  The MSHA
representatives were unable to interview Ronald Byrd, the
employee who was injured in the accident, because he was not at
the mine.  MSHA Inspector Laufenberg asked BHP representatives
about Mr. Byrd's medical condition.  BHP representatives informed
MSHA that it was BHP's understanding that Mr. Byrd was being
released from the hospital that day.  Mr. Laufenberg asked for
Mr. Byrd's address and telephone number.  Mr. Savit, who was
present at the mine, advised Mr. Laufenberg that BHP considered
the telephone numbers and addresses of its employees to be
confidential and that BHP would not provide this information.
Inspector Laufenberg does not recall that anyone from BHP offered
to call Mr. Byrd to obtain his consent.  Warren Traweek, BHP's
manager of Safety, Health, and Security, recalls that BHP made an
offer to contact Mr. Byrd to determine if he would consent to BHP
providing MSHA with his address and phone number.  Mr. Traweek
does not recall whether MSHA representatives responded to this
offer.
     During these discussions, BHP representatives indicated that
they believed that Mr. Byrd lived in Superior, Arizona. On
Saturday March 7, Inspector Laufenberg traveled to Superior to
attempt to locate Mr. Byrd.  Ronald Byrd was not listed in the
phone book and the police department did not have any information
about him.  Inspector Laufenberg called Ward Lucas, the manager
of safety for the San Manuel Mine, at his home to inform him that
he could not locate Mr. Byrd in Superior.  Lucas told Laufenberg
that Byrd may be staying with relatives.  Laufenberg advised
Lucas that he would try calling persons listed in the phone book
with the surname "Byrd," but that if he was unsuccessful, he
would turn the matter over to the Solicitor's office.  Laufenberg
testified that Lucas replied that if he could not find Byrd to
"call him back."  Laufenberg testified that Lucas did not offer
to find or provide the requested address and phone number.  Lucas
testified that when Laufenberg asked him if he had Byrd's address
or phone number, he replied that he did not have that information
but that he would try to get it for him.  Mr. Lucas testified
that he obtained this information that day, but that Inspector
Laufenberg never called him back.

     After the telephone conversation between Laufenberg and
Lucas, the inspector called a Robert Byrd listed in the phone
book.  Robert Byrd was a relative of Ronald Byrd and he provided
the inspector with the necessary information.

              II.  SUMMARY OF THE PARTIES ARGUMENTS

     A.  BHP

     BHP states that the essential facts in this case are not in
dispute and that it is ripe for decision.  It argues that section
103(a) of the Mine Act does not require mine operators to provide
information to MSHA unless such information is required to be
kept and made available to the Secretary in the Mine Act or the
Secretary's regulations.  BHP contends that the Secretary
requires operators to keep certain categories of records and
information which must be made available to MSHA inspectors.
Section 103(d) specifically grants the Secretary this authority
when there are accidents at a mine.  BHP argues that it was
obligated under the Mine Act was to provide access to the mine
site and to records and information that are required to be kept
under the Mine Act or the Secretary's regulations.

     In this case, MSHA demanded that BHP search its personnel
records to find the information it wanted.  BHP states that this
type of search is beyond the warrantless search authority granted
the Secretary under section 103(a).  Section 103 does not
authorize the nonconsensual warrantless search of files and
records in a mine office.

     BHP maintains that the information sought by MSHA is the
private information of the employee and that it was within its
right to withhold this information.  BHP contends MSHA must
permit the company to seek an employee's consent before
disclosing private information about the employee.  It believes
that it could be subject to civil liability if it releases
private employee information without the consent of the employee.
     BHP also argues that the Secretary may not impose sanctions
in this case because it did not first file a civil action under
section 108 of the Mine Act.  BHP contends that MSHA must obtain
an injunction or other appropriate order from the District Court
before it can obtain sanctions for refusal to comply with a
warrantless search.

     BHP contends that its refusal to provide the personal
information did not impede MSHA's investigation because MSHA has
multiple methods to compel production.  For example, MSHA could
have used the powers in section 103(b) of the Mine Act to issue a
subpoena for the subject information.  MSHA could also have
sought this information from other sources, such as Mr. Byrd's
union representatives, the United Steelworkers.

     Finally, BHP notes that during an interview of a BHP
employee on March 6, the employee refused to provide his address
and phone number to MSHA.  The MSHA representatives told the
employee that it was within his right to withhold this
information.  BHP argues that if an employee has the right to
refuse to provide this information, his employer cannot take that
right away from him by providing the information without the
employee's consent.

     B.  Secretary of Labor

     The Secretary contends that material facts are in dispute
which prevent summary decision in BHP's favor.  She contends that
BHP did not offer to provide the address and telephone number of
Mr. Byrd if it were able to obtain his consent.  She also
disagrees with Mr. Lucas's statement that he told Inspector
Laufenberg during the March 7 telephone call that he would try to
find Byrd's telephone number.

     The Secretary argues that the uncontested facts show that
she is entitled to summary decision.  The facts reveal that BHP
unreasonably withheld vital information during an investigation
thereby interfering with and obstructing an investigation into a
fatal accident in violation of MSHA's right of entry under
section 103(a).  This refusal to provide information delayed
MSHA's investigation by one day.  This conduct effectively
frustrated the investigation and denied the Secretary the full
right of entry granted under section 103(a).  She disagrees with
BHP's position concerning its obligations to provide information
during an MSHA investigation.

     The Secretary argues that any "professed derivative privacy
interest" in Mr. Byrd's address and phone number is outweighed by
the needs of the investigation.  She maintains that her "strong
public policy and humanitarian interests" supersede BHP's
"flimsy" concern for the privacy interests of Mr. Byrd.  Because
immediate recollections are the best recollections, MSHA must
conduct a swift investigation.  BHP should not be allowed to
stand in Mr. Byrd's shoes because he had "developed a potentially
adverse interest" to BHP as a result of his injuries.

     The Secretary maintains that she is not required to resort
to section 108 of the Mine Act before imposing a penalty for a
violation of section 103(a).  She contends that the Commission
has long recognized this right.

                  III.  ANALYSIS OF THE ISSUES

     A motion for summary decision can be granted only if the
entire record shows that "there is no genuine issue as to any
material fact" and "the moving party is entitled to summary
decision as a matter of law."  29 C.F.R.  2700.67(b).  I find
that there are no genuine issues as to any material fact.  For
purposes of considering the parties' motions, I accept the facts
as set forth in the declaration of MSHA Supervisor Laufenberg.  I
also find that BHP is entitled to summary decision as a matter of
law, as set forth below.

     The briefs filed by the parties make broad and sweeping
arguments concerning their interpretation of the law and MSHA's
policies.  I confine my decision to those issues that are
necessary to resolve this case.  Many of the arguments made by
the parties go beyond what is before me in this case.

     BHP refused to provide MSHA with the name and address of Mr.
Byrd without first obtaining his consent.  His address and
telephone number were not within the personal knowledge of the
BHP officials present during the MSHA investigation.  To obtain
the information requested, BHP would have been required to
retrieve his personnel file.  Neither the Mine Act nor the
Secretary's regulations require mine operations to keep a list of
its employees with addresses and phone numbers or to make such
information available to MSHA inspectors.

     Section 103(d) requires operators to investigate accidents
and to make available to the Secretary records of such accident
investigations.  Section 103(h) requires operators to "establish
and maintain such records, and make such reports, and provide
such information, as the Secretary ... may reasonably require
from time to time to perform his functions under this Act."  This
requirement is in addition to any records that are specifically
required to be kept under the Act.

     The Secretary's regulations concerning accidents and records
are in 30 C.F.R. Part 50.  These regulations contain detailed
requirements concerning the information that must be gathered by
mine operators and provided to MSHA following accidents.  Nothing
in the regulations requires that operators provide MSHA with the
addresses and telephone numbers of miners.

     The broad issue is whether section 103(a) when read with
section 103(h) requires mine operators to immediately provide
MSHA with the names and telephone numbers of its employees
without the consent of the employees, when such employees are
potential witnesses to a fatal accident.  In the context of this
case, the issue is whether BHP impeded MSHA's investigation of
the accident in violation of section 103(a) of the Act as alleged
in the citation when it refused to provide MSHA with the address
and telephone number of Mr. Byrd, without first obtaining his
consent.  I hold that BHP did not impede MSHA's investigation by
its actions and that it did not violate section 103(a).

     The declaration of Mr. Laufenberg reveals that at about 1
p.m. on March 6, he asked Mr. Lucas about the status of Mr. Byrd.
Mr. Lucas replied that Byrd was being released from the hospital.
Mr. Laufenberg asked for his home address and telephone number.
Mr. Savit told Laufenberg that BHP considered this information
confidential and that the BHP would not provide this information.
Laufenberg then asked for the name of the city in which Mr. Byrd
lived and Lucas replied that he thought that he lived in
Superior.  Laufenberg does not recall Lucas or Savit offering to
contact Byrd to obtain his permission to release his phone
number.  No BHP representatives provided Laufenberg with the
address or phone number of Byrd or indicated that they had
contacted Byrd to obtain his consent.

     When Laufenberg was unable to make contact with Byrd in
Superior, he called Lucas at home.  Lucas told Laufenberg that
Byrd may be staying with relatives but he did not state that he
would attempt to obtain Byrd's address and phone number.  Lucas
simply told Laufenberg that if he could not find Byrd, he could
call Lucas back.

     I hold that BHP was within its right to refuse to
immediately provide the information requested without obtaining
Mr. Byrd's consent.  The Secretary's right to inspect mines
without a search warrant has been broadly construed and approved
by the courts.  The Secretary does not have broad authority to
search an operator's business records without the operator's
consent.  See e.g. Sewell Coal Co., 1 FMSHRC 864 (July
1979)(ALJ).  In effect, MSHA Inspector Laufenberg asked BHP to
search the company's personnel files to obtain the requested
information.  A mine operator has a legitimate right and perhaps
a legal duty to protect private information contained in the
personnel files of its employees.  The fact that MSHA only
requested information for one employee as opposed to many
employees does not change the result.  MSHA cannot require mine
operators to immediately provide confidential information from
mine employee personnel files under the warrantless inspection
authority of section 103(a) in the absence of compelling
circumstances.  The mine operator has a right to require that the
miner consent before such information is provided or to require
the Secretary to follow the procedures of section 108 of the Act.
The Supreme Court, in upholding warrantless searches of mines by
MSHA, held that section 108(a) "provides an adequate forum for
the mineowner to show that a specific search is outside the
federal regulatory authority, or to seek from the district court
an order accommodating any unusual privacy interest that the
mineowner might have."  Donovan v. Dewey, 452 U.S. 594, 604-05
(1981).[1]

     If Mr. Byrd were at the mine on the day of MSHA's
investigation, MSHA could not require him to provide his address
and telephone number and MSHA could not compel him to submit to
an interview.  BHP should not be required to waive Mr. Byrd's
rights without legal process.  I hold that BHP had the right to
protect the privacy of its employees.  I do not agree with the
Secretary's position that this privacy right is outweighed by the
"needs of the investigation" or that BHP's concerns are "flimsy."
MSHA can obtain the information it needs without interfering with
the rights of miners.  The Secretary's authority under section
103(h) to require operators to provide "such information" as MSHA
"may reasonably require" is not without limits.  It was not
unreasonable for BHP to refuse a request for personal information
about Mr. Byrd without his consent.

     It is important to understand that when Inspector Laufenberg
was told that this information was confidential, he did not ask
BHP to attempt to obtain Mr. Byrd's consent.  Indeed, he did not
bring up the issue again until he called Mr. Lucas the next day.
During that conversation, Lucas told Laufenberg to call him back
if he was unable to locate Byrd.  The Secretary emphasizes that
BHP did not obtain the consent of Mr. Byrd to release his address
and telephone number.  It is not the obligation of a operator to
volunteer information during an MSHA accident investigation.  An
operator must cooperate, but it cannot be cited for the failure
to voluntarily provide information.  If Inspector Laufenberg
formally requested BHP, orally or in writing, to obtain the
consent of Mr. Byrd and BHP failed to timely respond to the
request or otherwise interfered in Mr. Byrd's right to consent,
there may have been a violation of section 103(a) for failure to
cooperate with the investigation.  That is not the case here,
however, because Inspector Laufenberg did not follow up on his
request.

     I find that BHP's refusal to provide the information
requested did not impede the investigation.  The Secretary cites
a number of Commission cases to support its position, but these
cases do not involve a refusal to provide information personal to
a miner.  In U. S. Steel Corp., 6 FMSHRC 1423, 1433 (June 1984),
the operator would not permit MSHA to interview a foreman unless
an operator attorney were present.  In its decision, the
Commission assumed that the operator had the right to have an
attorney present.  The facts reveal that when the operator
requested that its attorney be present during the interview, the
MSHA inspector told the mine's safety supervisor that
arrangements should be made to provide an attorney as soon as
possible.  Id.  The safety supervisor indicated that he would let
MSHA know when an attorney would be available, but he did not
propose a specific date.  Two days later, the inspector returned
to the mine and was informed by the safety supervisor that he had
not heard back from company headquarters.  The Commission
affirmed the judge's finding of a violation of section 103(a) on
the basis that the safety supervisor's "failure to specify a date
certain when an attorney would be present, combined with the
failure to produce an attorney, had the effect of unreasonably
delaying the accident investigation."  Id.

     This case is distinguishable from U.S. Steel.  Inspector
Laufenberg did not ask BHP representatives to attempt to obtain
the consent of Mr. Byrd to provide his address and telephone
number.  In addition, MSHA obtained the information it requested
through other means in about 24 hours.  MSHA may have been able
to get the information even more quickly through Mr. Byrd's
Steelworkers representatives.  BHP was not the only source for
this information and, contrary to the argument of the Secretary,
BHP did not "force" Inspector Laufenberg to travel to Superior.
Finally, Mr. Lucas's statement to Inspector Laufenberg to call
him back if Laufenberg was unable to locate Mr. Byrd shows that
BHP was attempting to cooperate with MSHA.  I conclude that BHP's
action in not immediately providing the telephone number or
address of Mr. Byrd without his consent did not have "the effect
of unreasonably delaying the accident investigation."  6 FMSHRC
at 1433.

                           IV.  ORDER

     For the reasons set forth above, the motion for summary
decision filed by BHP Copper Company, Inc., is GRANTED; the
Secretary's cross-motion for partial summary decision is DENIED;
Citation No. 7922328, issued March 13, 1998, is VACATED; and this
proceeding is DISMISSED.

                                 Richard W. Manning
                                 Administrative Law Judge

Distribution:

Mark M. Savit, Esq., Patton Boggs, 2550 M Street, NW, Washington,
DC 20037-1350

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203-1954

/RWM

     [1]  I do not reach the issue concerning whether the
Secretary is required to seek an injunction under section 108
before she can impose a penalty for a violation of section
103(a).