CCASE:

MAGMA COPPER V. SOL (MSHA)

DDATE:

19790308

TTEXT:
~1

 Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)

 Office of Administrative Law Judges

MAGMA COPPER COMPANY, Application for Review

 APPLICANT

 Docket No. DENV 78-533-M

 v.

 San Manuel Mill

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

 AND

UNITED STEELWORKERS OF AMERICA,

 RESPONDENTS

 DECISION

Appearances: N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills,

 Phoenix, Arizona, for Applicant;

 Michael V. Durkin, Esq., Office of the Solicitor, U.S.

 Department of Labor, for Respondent MSHA.

Before: Administrative Law Judge Lasher

I. Statement of the Case

 Applicant seeks review of Order No. 376821 dated July 26,

1978, which was issued by MSHA inspector Chester A. Pasco. The

order was issued pursuant to section 104(b) of the Federal Mine

Safety and Health Act of 1977(FOOTNOTE 1) citing Applicant with failing

to abate a previously issued citation within the time required.

The citation, which was issued earlier on July 26, 1978, by

Inspector Pasco, cited Applicant for refusing to pay a

representative of the miners for his participation in an

inspection conducted on July 26, 1978.(FOOTNOTE 2)
~2

 The application for review which initiated this proceeding was

timely filed and perfected on August 14, 1978. Applicant

challenges both the order and the citation which latter document

indicates that there were two MSHA inspectors present at the mine

whose intent was to form two parties to expedite the inspection

and that Applicant refused to allow a second representative of

miners to accompany the second MSHA inspector without suffering a

loss in pay.

 A hearing was held in Phoenix, Arizona, on November 13,

1978, at which both parties were represented by counsel.(FOOTNOTE 3)

II. Findings of Fact

 The essential happenings involved in this matter are not in

substantial dispute.

 Magma Copper Company operates a large copper mine and mill

in the vicinity of San Manuel, Arizona. MSHA, successor to MESA,

inspects these operations periodically. The mill, which includes

the crushing facility, even though it is located near the mine

site (Tr. 56), has a mine identification number separate from

that of the mine. The mill consists of a mine crusher, a mill

crusher, a concentrator, a molybdenum plant, and a filter plant.

The mill I.D. number covers several buildings, some of which are

one-quarter mile long and three stories tall.(FOOTNOTE 4)
~3

 On July 26, 1978, inspectors Chester A. Pascoe and Thomas

Aldrette, authorized representatives of the Secretary, arrived

together at the San Manuel Mill to continue an ongoing regular

"entire mine" inspection (Tr. 34-35, 55) of the mill which had

begun the previous week. The inspectors drove to the site in the

same car and coordinated their planned inspection on the way to

the site. They had been orally assigned to conduct this

inspection by their supervisor (Tr. 55). When they arrived at the

mill, a conversation with company officials ensued in which the

inspectors discussed the fact that they were going to continue

the inspection and indicated that they "would like a miners'

representative to accompany each inspector." They were advised

that Applicant would furnish two miners' representatives, but

that only one would suffer no loss of of pay (Tr. 37). Miners'

representatives did not accompany the inspectors the previous

week because the unions had not furnished Applicant with a list

of such representatives (Tr. 37-39, 52).

 Inspectors Pascoe and Aldrette selected Ernest Badia to

accompany them on their inspection (Tr. 51, Ct. Exh. 1). The

inspectors knew that a second representative would have been

selected had they requested one (Tr. 47-48), but they were also

aware that Applicant's position was that so long as one

representative was being paid, no other representative would be

paid for the same period of participation (Tr. 95).

 After the inspectors asked that they be provided two

representatives of miners and that both representatives be paid

for the time spent assisting in the inspections (Tr. 37), Horace

Carter, Assistant Director of Safety and Industrial Hygiene, read

them a portion of section 103(f) of the Act, which stated:

"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" (Tr. 95). Inspector Pascoe then issued the

citation and, subsequently, the order based on the Applicant's

refusal to pay the second representative of miners. They provide

as follows:
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Citation #376720: "A representative of miners was not given the

opportunity to accompany an authorized representative of the

Secretary of Labor on a Safety and Health inspection. The Company

allowed a representative of miners to accompany one MSHA

inspector on the inspection, but refused to allow a

representative of miners the opportunity to accompany second

[sic] MSHA inspector on the same property (same I.D. No.) without

suffering loss of pay. The intent was to form two (2) parties to

expedite the inspection.'

 Order #376821: "Mr. Horace A. Carter, Assistant

 Director of Safety and Hygiene, stated that the

 Company's interpretation of the Act was that they would

 provide one representative of miners for each

 inspection; therefore, they would not provide a second

 representative of miners on the same property (I.D.

 No.) without loss of pay.'

 The citation was issued at 11:05 a.m. and it required that

abatement be completed by 12:30 p.m. The inspectors then went to

lunch. After they returned, Mr. Carter indicated that his

position had not changed. Consequently, Inspector Pascoe issued

the order of withdrawal.

 Ernest Badia, the representative of the miners who was

provided with pay, accompanied Pascoe. However, a representative

of the miners with pay was not provided to Inspector Aldretti.

Pascoe and Aldretti examined separate parts of the mine (mill) as

planned and their inspections took them a distance of 7 miles

apart. The inspections took approximately 2 hours. The inspectors

saw each other again when they subsequently returned to the

safety engineer's office to do their paper work. There was no

connection between the activities of the two inspectors during

the full period of their respective inspecting (Tr. 37, 40-45,

47).

 Inspector Pascoe did not request that a second

representative be asked whether he desired to walk around without

pay in order to justify the order of withdrawal because the

second representative would have to stand the loss of a day's

wages (Tr. 61).

 The regular inspection in question took approximately 6 days

(Tr. 62) off and on during the period July 19 - August 1, 1978

(Tr. 57, 58).

III. Discussion

 The Applicant maintains that while the Act grants

representatives of miners the right to volunteer for walk-around

activities, it limits the number of representatives who shall be

paid for such activities to one. Applicant contends that it was

not in violation of section 103(f) of the Act, since it did pay

one of the two miners' representatives for participation in the

inspection conducted on July 26, 1978.
~5

 MSHA contends that one representative should be paid for

accompanying each inspector conducting an inspection, and, that

there is no limitation on the number of inspectors (Tr. 99).

MSHA's position in this connection is more fully set forth in

Interpretative Bulletin No. 1, issued April 1, 1978, 43 FR 17546

at 17549:(FOOTNOTE 5)

 [T]here are also occasions when there is more than one

 inspector at a mine, such as when the mine is so large

 that it is necessary to send several inspectors in

 order to most effectively or efficiently conduct

 inspection activity. Inspectors may also arrive to

 conduct special "spot inspections" at a mine where a

 "regular inspection" of the mine is already in

 progress. There are also situations when several

 inspectors are dispatched to a mine at which there are

 special safety and health problems needing concentrated

 attention. Where more than one inspector is on the mine

 property at the same time, the inspectors frequently go

 to different areas of the mine, and for all practical

 purposes, they could be inspecting different mines.

 Under such circumstances, if representatives of miners

 are accompanying each inspector, one such

 representative accompanying each inspector is protected

 against loss of pay. If, regardless of the number of

 inspectors engaged in inspection activity at a mine,

 one and only one representative of miners were

 protected against loss of pay, an anomaly would result

 in that the decision to send several inspectors, rather

 than a single inspector, to a mine would adversely

 impact the protection against loss of pay, thereby

 eroding the participation right itself. The manner in

 which inspectors were assigned would thus determine the

 scope of a statutory right.

 Insofar as the precise issue in this case is concerned,

section 103(f) of the Act is not vague or ambiguous. It consists

of five sentences which are examined separately below.
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 1. "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 the pre- or post-inspection

conferences held at the mine."

 This sentence is preliminary and of general application. It

requires that an authorized miner representative (singular) be

given the opportunity (a) to accompany the "Secretary or his

authorized representative"--not every given inspector--during the

physical inspection of a mine, and (b) to participate in any

conferences held before or after the inspection.

 The phrases "the physical inspection" and "such inspection"

refer to one inspection. The purpose of allowing accompaniment by

operator and miner representatives is clearly specified as

"aiding the inspection," not aiding the inspector. Furthermore,

the inspection referred to must be one "made pursuant to the

provisions of subsection (a)." In my decision in another case of

first impression, Kentland-Elkhorn Coal Corporation v. Secretary

of Labor, Docket No. PIKE 78-399, issued simultaneously herewith,

I have concluded that the quoted clause was intended to be

restrictive, and that during the legislative history of the Act,

Congress clearly expressed its intent to limit accompaniment with

no loss of pay to the regular "entire mine" inspections described

in the third sentence of section 103(a).

 2. "Where there is no authorized miner representative,

 the Secretary or his authorized miner representative

 shall consult with a reasonable number of miners

 concerning matters of health and safety in such mine."

 This second sentence applies only where there is no

authorized miner representative (union) at the mine. In such a

special situation, consultation by the Secretary, acting through

an inspector, with a reasonable number of miners is required.

 3. "Such representative of miners(FOOTNOTE 6) who is also an

 employee of the operator shall suffer no loss of pay

 during the period of his participation in the

 inspection(FOOTNOTE 7) made under this subsection."
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 This third sentence requires that the miner representative,

whether appointed by a union, or otherwise selected where there

is no union, if he is an employee,(FOOTNOTE 8) shall be paid at his

regular rate of pay for the period of time he participates in the

inspection.(FOOTNOTE 9)

 4. "To the extent that the Secretary or authorized

 representative of the Secretary determines that more

 than one repsentative from each party would further aid

 the inspection, he can permit each party to have an

 equal number of such additional representatives."

 This gives the Secretary, acting through an inspector,

discretion to allow each party more than one representative to

accompany him on the inspection (singular) provided the number is

equal.

 5. "However, only one such representative of miners who

 is an employee of the operator shall be entitled to

 suffer no loss in pay during the period of such

 participation under the provisions of this subsection."

 This expressly limits the pay provision to one miner

representative/employee per inspection regardless of the number

of inspectors conducting the inspection, and regardless of the

number of operator's and miners' representatives accompanying

them. The language is plain and admits of no more than one

meaning. The word "However," clearly links this provision with

the preceding sentence and both should be read together. Thus, if

the Secretary permits accompaniment by more than one

representative, only one is entitled to suffer no loss of pay.

 Congress could not have expressed the limitation of the

"pay" provision of 103(f) more clearly. This is not some

inadvertent ambiguity which has found its way into the statute.

It is a strongly-worded clear-cut restriction constituting an

integral part of this new statutory provision first introduced

into the mine safety scheme by the 1977 Act. While Congress

sought to encourage miner participation in regular inspections,

it also drew a distinct line as to how many mine

representative/employees would be paid for their time of

participation in the inspection. Its plain meaning is that it

provides inspection participation rights without loss of pay to

one miner representative/employee per regular inspection--not per

inspector. Contrary to MSHA's contention, I do not find this

reading to result in an absurdity, nor am I inclined to follow

MSHA's Interpretative Bulletin where it directly contradicts the

Act. I have found
~8

the legislative history to be of little value in deciding this

issue. In the parts thereof pointed to by the parties as support

for their positions, the Congressional source being quoted was

not directly addressing the question with which we are concerned.

To draw inferences favorable to one party or the other from some

word or phrase idly dropped in the context of remarks directed to

some other issue or subject matter is not warranted. This,

indeed, is a case for applying the canon of construction of the

wag who said, when the legislative history is doubtful, go to the

statute. March v. United States, 506 F.2d 1306, 1314 (D.C. Cir.,

1974).

 It is clear from the record that on July 26, 1978, the two

inspectors were conducting but one regular inspection of the mine

(mill). Applicant, by agreeing to pay one miners' representative

for his participation therein was in compliance with section

103(f) of the Act. I find merit in the application.

IV. Conclusions of Law

 Where a single regular "entire mine" inspection is being

conducted pursuant to section 103(a) of the Act by two or more

inspectors, only one representative of miners is entitled to

participate in the inspection without loss of pay even though the

group conducting the inspection is divided into two or more

parties to simultaneously inspect different areas of the mine.

 ORDER

 All proposed findings of fact and conclusions of law

submitted by the parties not expressly incorporated in this

decision are rejected.

 The citation and order which are the subject of this

proceeding are vacated.

 Michael A. Lasher Jr.,

 Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

FOOTNOTES START HERE

~FOOTNOTE_ONE

 1. 83 Stat. 742, 30 U.S.C. | 801 et seq., herein the Act.

~FOOTNOTE_TWO

 2. Both the citation and order charge a violation of section

103(f) of the Act which provides:

 "(f) 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."

~FOOTNOTE_THREE

 3. The United Steelworkers of America, having failed to

timely respond to the prehearing order issued October 17, 1978,

was dropped as a party at the hearing (Tr. 3-9).

~FOOTNOTE_FOUR

 4. Prior to March 9, 1978, the responsibility for regulating

health and safety standards in the metal and nonmetal mining

industry belonged to the Mining Enforcement and Safety

Administration (MESA). Mine operators were issued mine

identification numbers to identify the function which was being

regulated (Tr. 46, 91). In large operations, MESA assigned

separate numbers to parts of the operation which had an

integrated function or operated in a functionally related manner

(Tr. 47). I conclude that the mill and its related facilities

covered by the same I.D. number are a mine as defined in section

102(b)(3) of the Act.

~FOOTNOTE_FIVE

 5. This Interpretative Bulletin, which I find to be

inconsistent with the governing legislation, insofar as it seeks

to construe and implement the Act involved, is to be

distinguished from legislative-type regulations duly promulgated

in compliance with the rulemaking provisions of the

Administrative Procedure Act. Morton v. Ruiz, 415 U.S. 199, 39

L.Ed.2d 270, 94 S. Ct. 1055 (1974).

~FOOTNOTE_SIX

 6. Singular.

~FOOTNOTE_SEVEN

 7. Singular.

~FOOTNOTE_EIGHT

 8. By inference, a miners' representative can be selected

who is not an employee.

~FOOTNOTE_NINE

 9. Since the word "inspection" used here is not qualified by

the word "physical" as in the first sentence, I conclude that it

includes both the physical inspection and the pre- and
post-inspection conferences.