MINE SAFETY CASES - NEWS YOU CAN USE FROM RECENT COURT

AND COMMISSION DECISIONS

presented by Timothy M. Biddle

Crowell & Moring LLP

Washington, D.C.

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The Federal Mine Safetyand Health Review Commission

• Special Court that hears most kinds of Mine SafetyAct disputes

• Exclusive Jurisidiction

• Offices in Washington, D.C. and Denver

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Commission Decision Makers

• Ten Administrative Law Judges– Nine based in D.C.; one in Denver – Hold hearings nationwide– Issue written decisions– Decisions subject to review by Commissioners

• Five Commissioners– Appointed by President; confirmed by Senate– All based in D.C. – Discretionary review of ALJ decisions– Commission decisions issued in writing– Right to appeal to U.S. Court of Appeals

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Commission Caseload

• Cases Pending– ALJ Cases: 2300– Commission Cases: 7

• Average Time For Decisions– ALJ Cases: 7 months– Commission Cases: 9 months

• Commission and ALJ Decisions– Published by GPO– On internet at www.fmshrc.gov

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• Intergency Agreement• MSHA inspects mills

– Cement plants are mills

• Mills defined– But cement plant didn’t meet definition of mill

Definition of mill doesn’t matter for cement plants. All cement plants under MSHA.

Watkins Engineers & Constructors,

24 FMSHRC 669 (July 2002)

Recent Decisions

MSHA/OSHA Jurisdiction

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• Company argued lack of notice about application of guarding standard

• Commission: Use “reasonably prudent person” test• Nine factors in test

Case remanded to ALJ for application of factors.

Alan Lee Good, 23 FMSHRC 995 (Sept. 2001)

Recent Decisions

Interpretation of Broadly-Worded Standards

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• Contractors that perform construction or services at mine are operators subject to Mine Safety Act. §3(d)

• Does this mean anyone who comes on mine property? • No. Must be direct connection with mining operations.

“Minimal contact” by contractor is not enough for MSHA jurisdiction.

Northern Ill. Steel Supply Co., v. Sec’y of Labor, 294 F.3d. 844 (7th Cir. 2002)

Recent Decisions

Independent Contractors

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• Law prohibits discharge or discrimination against miner in retaliation for exercise of rights

• Valid defense: adverse action taken against miner for legitimate reason

But defense fails if supervisor provoked miner conduct that triggered adverse action.

Sec’y of Labor o/b/o Bernardyn v. Reading Anthracite Co.,

23 FMSHRC 924 (Sept. 2001)

Recent Decisions

Discrimination Claims

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• If company discharged miner in violation of anti-discrimination provision of law, miner is entitled to back pay.

• Exception: No back pay for miner who couldn’t have worked at mine because of injury.

But if operator conduct caused miner disability, miner entitled to back pay.

Dolan v. F.E. Erection Co., 23 FMSHRC 235 (Mar. 2001)

Recent Decisions

Discrimination Remedies – Back Pay Awards

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• Claimants in discrimination cases must make a reasonable effort to mitigate their economic loss.

Reasonable effort means to search for

work, even if claimant has enrolled in school.

Sec’y of Labor o/b/o Noakes v. Gabel Stone Co.,

3 FMSHRC 1222 (Nov. 2001)

Recent Decisions

Discrimination Remedies – Back Pay Awards

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• If MSHA believes a complaint of discriminatory discharge was “not frivolous,” MSHA must seek temporary reinstatement.

• If Company challenges: MSHA must prove that claim is “not frivolous.

“Not frivolous” test only requires minimal proof that protected conduct was connected to discharge; Company can justify discharge at later hearing on merits. Drummond Co., Inc. v. FMSHRC, No. 02-14394

(11th Cir May 9, 2003) (unpub.).

Recent Decisions

Discrimination Remedies – Temporary Reinstatement

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• After citation or order issued, MSHA must propose a civil penalty “within a reasonable time.” §105(a) of the Act.

• Company has 30 days to contest a proposed

penalty; if contested, MSHA has 45 days to file a Petition at the Commission.

(continued . . .)

Recent Decisions

Civil Penalty Case Deadlines

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• If MSHA files Petition late, penalty case may be dismissed if – MSHA does not have reasonable excuse; or,– Company is prejudiced by the late-filing.

In determining prejudice ALJ must consider time that passed after citation or order was issued until penalty was proposed.

Cactus Canyon Quarries of Texas, Inc.,

24 FMSHRC 262 (Mar. 2002)

Recent Decisions

Civil Penalty Case Deadlines

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• Proposed assessments become “final” and must be paid unless company contests them within 30 days. • If Company pleads “deadline passed because of

mistake,” Commission will evaluate excuse.

Good story, supported by affidavits, usually works Phelps Dodge Sierrita, Inc.,

24 FMSHRC 661 (July 2002)

Recent Decisions

Civil Penalty Case Deadlines