CCASE:

KENTLAND-ELKHORN COAL 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

KENTLAND-ELKHORN COAL Application for Review

 CORPORATION,

 APPLICANT Docket No. PIKE 78-399

 v. Feds Creek No. 1 Mine

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

 AND

UNITED WORKERS OF AMERICA,

 RESPONDENTS

 DECISION

Appearances: C. Lynch Christian III, Esq., Jackson, Kelly, Holt

 and O'Farrell, Charleston, West Virginia, for

 Applicant;

 Leo J. McGinn, Esq., Office of the Solicitor, S

 Department of Labor, for Respondent.

Before: Administrative Law Judge Lasher

I. Statement of the Case

 Applicant seeks review of Order No. 063798, dated June 23,

1978, which was issued by MSHA inspector Vernon E. Hardin. 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 by Inspector Hardin on June 20,

1978, cited Applicant for refusing to pay employee Douglas

Blackburn, the representative of the miners, for his

participation in an electrical inspection at Applicant's

preparation plant on May 23 and May 24, 1978.(FOOTNOTE 2)
~2

The Application for Review which initiated this proceeding was

timely filed on June 28, 1978. Applicant contends that both the

citation and order, each of which charge violations of section

103(f) of the Act, are invalid and seeks to have them

vacated.(FOOTNOTE 3)

 A hearing was held in Princeton, West Virginia, on December

7, 1978, at which both parties were represented by counsel.(FOOTNOTE 4)

Inspector Hardin testified for MSHA and Roger Bartley,

Applicant's safety director, testified for the Applicant.

II Discussion and Findings of Fact

 Applicant contends that it was not in violation of section

103(f) of the Act, since, on May 23 and 24, 1978, it did pay one

of two miners' representatives present for participation in an

inspection. The facts are not in substantial dispute. According

to Inspector Hardin, two separate inspections were being

conducted on the dates
~3

in question: the one he was conducting was a specialized

electrical inspection which was not part of a regular inspection

of the mine which was being conducted independently by a second

MSHA inspector, Aaron Hall. The record amply reveals that these

inspectors did not travel together, did not coordinate their

inspections, and were functioning separately on the dates in

question. According to Inspector Hardin, his electrical

inspection was one which is required to be conducted once

annually by the MSHA manual, whereas the inspection conducted by

Inspector Hall was one of at least four regular inspections

required to be conducted annually by the Secretary of every mine

in its entirety by section 103(a) of the Act. The report of his

inspection filed by Inspector Hardin (Court Exh. 1) indicates

that it was a coal mine safety and health electrical CBA

inspection (Tr. 42). The electrical inspection was not part of

the regular inspection of the entire mine conducted by Inspector

Hall. The evidence clearly indicates, and I conclude, that these

were two separate inspections (Tr. 16-18, 35-42, 48-53).

 Inspector Hall was accompanied by Kenneth Smith, a slate

picker, who was paid for his participation in Inspector Hall's

regular "entire mine" inspection, which would have taken

approximately 1 month to complete. Respondent admits that it

refused to pay another employee, Douglas Blackburn, for his

participation in the 2-day electrical inspection conducted by

Inspector Hardin both at the time the citation was issued and

again when the order of withdrawal was issued.(FOOTNOTE 5)

 Applicant's argument at the hearing that replacing Blackburn

and Smith with less experienced miners might have an adverse

affect on safety has been considered. However, it has no direct

relevance in determining the primary legal issue involved in this

proceeding and that is whether Applicant was required to pay

Blackburn for the time he expended in participating in the

inspection conducted by Inspector Hardin so that Blackburn would

"suffer no loss of pay during the period of such participation"

as required by the Act. Since Inspector Hardin's inspection was a

separate inspection from Inspector Hall's, it would ordinarily be

concluded at this point that both the citation and order were

properly issued and that the relief sought by the application

should be denied.(FOOTNOTE 6)
~4

 Applicant, however, in its brief raised for the first time a

purely legal issue which I find dispositive of this case.

Applicant contends that the provisions of section 103(f) of the

Act granting miner representatives the right to participate in an

inspection with pay is limited to the regular "entire mine"

inspections conducted pursuant to section 103(a) of the Act.(FOOTNOTE 7)

There is no question but that the first sentence of section

103(f) is a general section against which the remaining sentences

must be read and it does expressly limit the types of inspections

in which the operator's and miners' representatives have a

participation right to those "made pursuant to the provisisons of

subsection (a)." On the face of it, this is a restriction--why

else include the quoted language at all? Moreover, Congress'

intent to limit walkaround rights under 103(f) is further

demonstrated by its elimination of such rights for "any

inspection" as previously provided in section 103(h) of the 1969

Act.

 What is the extent of this limitation? Applicant places

great emphasis, and I believe properly so, on the remarks of

Congressman Perkins, Manager of the Committee of Conference for

the House of Representatives, in his report to the House. They

follow.

 Mr. Speaker, before concluding my remarks I would like

 to address one aspect of the conference report that

 seems to be somewhat ambiguous.

 Section 103(a) of the conference report provides that

 authorized representatives of the Secretary or the

 Secretary of Health, Education, and Welfare shall make

 frequent inspections and investigations for the purpose
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 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 or with

 any citation, order, or decision issued under this title or other

 requirements of this act. The Secretary shall develop guidelines

 for additional inspections of mines based on criteria including,

 but not limited to, the hazards found in mines subject to this

 act, and his experience under this act and other health and

 safety laws.

 In carrying out the requirements of clauses (3) and (4)

 - concerning imminent dangers or compliance with

 standards - the Secretary shall make inspections of

 each underground coal or other mine in its entirety at

 least four times a year and of each surface coal or

 other mine in its entirety at least two times a year.

 In addition to the regular inspections of each mine in

 its entirety as specified in section 103(a), section

 103(g)(1) provides that whenever a representative of a

 miner, or a miner at a mine where there is no such

 representative, has reasonable grounds to believe that

 a violation or imminent danger exists, such

 representative or miner shall have a right to obtain an

 immediate inspection. Further, section 103(i) provides

 for additional inspections for any mine which liberates

 excessive quantities of methane or other explosive

 gases, or where a methane or gas ignition has resulted

 in death or serious injury, or there exists some other

 especially hazardous condition.

 Section 103(f) provides that a miner's representative

 authorized by the operator's miners shall be given an

 opportunity to accompany the inspector during the

 physical inspection and pre- and post-inspection

 conferences pursuant to the provisions of subsection

 (a). Since the conference report reference is limited

 to the inspections conducted pursuant to section

 103(a), and not to those pursuant to section 103(g)(1)

 or 103(i), the intention of the conference committee is

 to assure that a representative of the miners shall be

 entitled to accompany the Federal inspector, including

 pre- and post-conferences, at no loss of pay only

 during the four regular inspections of each
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 underground mine and two regular inspections of each surface mine

 in its entirety, including pre- and post-inspection conferences.

 The original section 103(a) of the Federal Coal Mine

 Health and Safety Act of 1969 provided that--

 In carrying out the requirements of clauses (3) and (4)

 of this subsection in each underground mine, such

 representatives shall make inspections of the entire

 mine at least four times a year.

 Section 103(a) of the 1969 Act did not include the new

 provisions--

 The Secretary shall develop guidelines for additional

 inspections of mines based on criteria including, but

 not limited to, the hazards found in mines subject to

 the act, and his experience under this act and other

 health and safety laws.

 Section 103(h) of the 1969 act provided generally

 that--

 At the commencement of any inspection * * * the

 authorized representative of the miners at the mine * *

 * shall be given an opportunity to accompany the

 authorized representative of the Secretary on such

 inspection

 Since the conference report does not refer to any

 inspection, as did section 103(h) of the 1969 act, but,

 rather to an inspection of any mine pursuant to

 subsection (a), it is the intent of the committee to

 require an opportunity to accompany the inspector at no

 loss of pay only for the regular inspections mandated

 by subsection (a), and not for the additional

 inspections otherwise required or permitted by the act.

 Beyond these requirements regarding no loss of pay, a

 representative authorized by the miners shall be

 entitled to accompany inspectors during any other

 inspection exclusive of the responsibility for payment

 by the operator." Vol. 123, No. 174, Cong. Rec. H

 11,663 (daily ed. October 27, 1977); Legislative

 History, Committee Print (July, 1978), 1347, 1356-1358.

 [Emphasis supplied.]

 It could, of course, be argued that the Act is not ambiguous

and that Congressman Perkins' remarks should be ignored since

reference to the legislative history is not warranted. Pursuing

this approach, the points of argument would seem to be that:
~7

 1. Section 103(a)(FOOTNOTE 8) does not say "four entire mine inspections

will be conducted annually."

 2. It does say--expressly in its first sentence--that the

Secretary shall make frequent inspections (entire mine or

otherwise) for various purposes and--expressly in the third

sentence-that at least four entire mine inspections annually will

be made for the purpose of determining if imminent danger or

violations exist.

 3. The 103(f) limitation to inspections made pursuant to

"the provisions (plural) of subsection (a)" cannot simply ignore

the first sentence of 103(a) and confine itself to the third

sentence.

 I am unable to adopt the above rationale for the reason that

Congress, by tacking on to its grant of accompaniment rights the

phrase "* * * during the physical inspection * * * made pursuant

to * * * subsection (a)" must have had something in mind other

than blanket coverage of all inspections. This phrase becomes a

meaningless appendage if--via confinement to the general opening

sentence
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of section 103(a)--it is construed to cover all inspections. The

only specific kind of inspection mentioned in 103(a) is the

regular inspection mandated in the third sentence thereof. As

categories of inspection go, the regular is the most important

kind--of an entire mine, conducted at least quarterly, for the

purpose of finding violations and seeking out imminent dangers.

 The widely-quoted admonition of Justice Murphy in Harrison

v. Northern Trust Co., 317 U.S. 476, 87 L.Ed. 407, 65 S. Ct. 361

(1943), is particularly applicable here. After first noting that

the court below had refused to examine the legislative history of

section 807 of the Revenue Act of 1932 on the ground that it was

unambiguous, Justice Murphy made this observation:

 But words are inexact tools at best, and for that

 reason there is wisely no rule of law forbidding resort

 to explanatory legislative history no matter how clear

 the words may appear on superficial examination. * * *

 So, accepting the Circuit Court's interpretation of

 Illinois law as to the incidence of the tax, we think

 it should have considered the legislative history of 

 807 to determine in just what sense Congress used the

 words "payable out of'.

 Similarly, the purpose to be achieved here is to secure that

construction of the Act which gives effect to the Congressional

purpose. For this reason, considerable weight must be given the

statement of Congressman Perkins. At the outset of his remarks,

he noted that indeed there was an "ambiguity." His

statement--made on behalf of the Committee, not just

himself--reveals that the ambiguity referred to is precisely that

with which we are dealing. In explaining the ambiguity, he

pointed his remarks directly to the legal question under

discussion, the meaning of the phrase "physical inspection * * *

made pursuant to the provisions of subsection (a)." This is not

the situation which occurs so frequently when reference to the

legislative history is sought--where we are asked to draw

inferences from some indiscriminately dropped word or phrase

uttered by a speaker focused on an issue extraneous to the one

under discussion. It is a relevant, unequivocal statement by the

Conference Committee of Congressional intent made at the most

significant stage of the legislative process. It cannot be

ignored.(FOOTNOTE 9)
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 I conclude that the clearly expressed intent of Congress is to

require accompaniment with no loss of pay only for the so-called

regular entire mine inspections mandated by subsection 103(a).

Relying thereon, I also find that the section 103(f) phrase

"physical inspection * * * made pursuant to the provisions of

subsection (a) * * *" "refers to the inspections expressly

referred to in the third sentence of section 103(a) of the Act,

that is, the regular inspections which the Secretary, in carrying

out his responsibility to determine either if an imminent danger

exists or if there is compliance, must conduct of a mine in its

entirety at least four times a year.

 In the instant case, a miner representative/employee was

permitted accompaniment on the regular inspection of the entire

mine conducted by Inspector Hall on May 23 and 24, 1978, without

loss of pay. I conclude that accompaniment by a miner

representative/employee without loss of pay on Inspector Hardin's

electrical inspection on the same 2 days was not required by

section 103(f) of the Act. There is merit in the application.

 ORDER

 All proposed findings of fact and conclusions of law

submitted by the parties not expressly incorporated in this

decision are rejected.
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 The relief sought in the application herein is GRANTED. Order No.

063798 dated June 23, 1978, and Citation No. 063792 dated June

20, 1978, are VACATED.

 Michael A. Lasher, Jr., Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

FOOTNOTES START HERE

~FOOTNOTE_ONE

 1. 30 U.S.C. 801 et seq.

~FOOTNOTE_TWO

 2. The citation charged 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. In paragraph 7 of the application, Applicant alleges that

on May 23 and 24, 1978, two MSHA inspectors were present at the

Feds Creek No. 1 Mine and preparation plant; that each inspector

was accompanied on his inspection by a representative of the

miners; and that one of these representatives suffered no loss of

pay as a result of his partipation in the inspection.

~FOOTNOTE_FOUR

 4. The United Mine Workers of America, upon motion of

applicant, was dropped as a party by my order entered on the

record at the hearing since the UMWA had not responded to my

prehearing order and had made no appearance at the hearing.

~FOOTNOTE_FIVE

 5. Applicant did pay Blackburn after the order of withdrawal

was issued and the order was then terminated by Inspector Hardin
at 8:50 a.m. on June 23, 1978.

~FOOTNOTE_SIX

 6. This is a case of first impression. I have held in

another matter, MSHA v. Magma Copper Company, Docket No. DENV

78-533-M, issued simultaneously herewith, that the right of a

miner representative/employee to participate in an inspection

without loss of pay granted by section 103(f) of the Act is

expressly limited to one representative per inspection--not per

inspector.

~FOOTNOTE_SEVEN

 7. More specifically, in its posthearing brief at page 15,

Applicant makes the following contention:

 "B. Order No. 063798 was improperly issued because

section 103(f) of the Act provides miner representatives the

right to participate in inspections at no loss of pay only where

the inspection is conducted pursuant to section 103(a) of the

Act. Inspector Hardin's electrical inspection was not conducted

pursuant to section 103(a).

 The plain language and legislative history of section

103(f) of the Act establish that the right to participate in

inspections at no loss of pay exists only for a limited type of

inspection. Specifically, section 103(f) limits walkaround rights

with no loss of pay to "physical inspection[s] of any coal or

other mine made pursuant to the provisions of subsection (a)" of

section 103 of the Act. Section 103(a) provides for at least four

annual "inspections of each underground coal or other mine in its

entirety." These four annual inspections of an entire mine are

identified in the MSHA Citation and Order Manual (A-1) by the

code letters AAA, and are distinguished therein from all other

types of inspections."

~FOOTNOTE_EIGHT

 8. Section 103(a) provides:

 "Authorized representatives of the Secretary or the

Secretary of Health, Education, and Welfare shall make frequent

inspections and investigations in coal or other mines 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 or with

any citation, order, or decision issued under this title or othe

requirements of this Act. In carrying out the requirements of

this subsection, no advance notice of an inspection shall be

provided to any person, except that in carrying out the

requirements of clauses (1) and (2) of this subsection, the

Secretary of Health, Education, and Welfare may give advance

notice of inspections. In carrying out the requirements of

clauses (3) and (4) of this subsection, the Secretary shall make

inspections of each underground coal or other mine in its
entirety at least four times a year, and of each surface coal or

other mine in its entirety at least two times a year. The

Secretary shall develop guidelines for additional inspections of

mines based on criteria including, but not limited to, the

hazards found in mines subject to this Act, and his experience

under this Act and other health and safety laws. For the purpose

of making any inspection or investigation under this Act, the

Secretary, or the Secretary of Health, Education, and Welfare,

with respect to fulfilling his responsibilities under this Act,

or any authorized representative of the Secretary or the

Secretary of Health, Education, and Welfare, shall have a right

of entry to, upon, or through any coal or other mine."

~FOOTNOTE_NINE

 9. See also Cass v. U.S., 417 U.S. 72, 40 L.Ed.2d 668, 94 S.

Ct. 2167 (1974), where the Court again declined to "ignore the

clearly relevant" legislative history of a problem Act. I am

aware that the Respondent's Interpretative Bulletin, 43 F.R.

17546, April 25, 1978, at page 17547, directly contradicts the

Conference Committee's indication of the types of inspections

covered. The Bulletin covers all inspections mentioned in both

the first and third sentences of section 103(a), while the

Committee intended that only the regular inspections mandated by

the third be covered. While an agency interpretation is usually

entitled to great weight, in this instance the Respondent appears

to have leapt the chasm between what the law is and what it ought

to be. In my decision in MSHA v. Magma Copper Company, supra, I

noted that the Bulletin is to be distinguished from regulations

promulgated in compliance with the Administrative Procedure Act.

In divining the Congressional intent underlying section 103(f) in

the specific respect involved here, I believe the only objective

approach is to accept the clearly relevant interpretative aid of

the legislative history rather than the construction urged by the

enforcement agency. Congress has anticipated the question posed

in this proceeding and answered it.