II. STIPULATIONS

The parties submitted the following joint stipulations:

1. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and its designated Administrative Law Judges pursuant to Sections 105 and 113 of the Federal Mine Safety and Health Act of 1977 (“the Act”).

2. The Upper Big Branch Mine-South (“UBB”) was operated by Performance Coal Company (“Performance”), a former subsidiary of Massey Energy Company.

3. Performance was an “operator” as defined in Section 3(d) of the Act at the coal mine at which the order at issue in this proceeding was issued.

4. The products of the mine at which Citations 4900615, 8431839, 4900439, 4900440, 4900589 and 4900604 were issued entered commerce, or the operation or products thereof affected commerce, within the meaning and scope of Section 4 of the Act.

5. DSC does business in several states and maintains its headquarters in Fairmont, West Virginia.

6. DSC is in the business of providing temporary labor to the mining industry. Such laborers are DSC employees, in that they are hired by and paid by DSC, but mining activities performed by such employees is performed at the client mine to which, at the request of the client mine, the laborers have been assigned for a certain period of time (which can range from days to months, depending on the client mine’s need).

7. DSC provides company training to its employees before placing them at mine sites. In general, this training includes expectations of employees (e.g., showing up on time, working safely, following instructions, accident reporting, etc.), general roof control and ventilation plan theory and the rights of miners to know the contents of the plans, accident prevention, and hazard recognition.

8. DSC had an agreement with Performance to provide such temporary labor to UBB, before and on April 5, 2010.

9. All of the temporary laborers employed by DSC and assigned to UBB were hourly employees. The DSC employees working at UBB before and on April 5, 2010 were David E. Farley, Blake J. Accord, John W. Morris, Owen Thomas Davis, William Campbell, Adam B. Farley, Justin L. Hatcher, Timothy G. Sigmon, James A. Smith, Joshua S. Napper and Jason M. Stanley.

10. Most of the workers supplied to UBB by DSC were inexperienced miners. (i.e., most had fewer than 12 months mining experience).

11. William Campbell worked as a David Stanley employee at UBB from December 7, 2009 until April 9, 2010. At the direction of Performance, Mr. Campbell worked for a time as a fire boss and examined belts at UBB.

12. James Gump was the Director of Operations and Safety for DSC before and on April 5, 2010.

13. DSC did not maintain an independent office or work area at UBB.

14. DSC is responsible for reprimanding, and would reprimand, its employees, including those who were supplied to UBB, if, for example, DSC learned that they had acted in violation of DSC company policies, such as failing to report to work on time or being insubordinate.

15. DSC has in the past submitted 7000-1 accident report forms regarding accidents involving its employees.

16. The daily instruction of DSC employees working at UBB was provided by Performance supervisors.

17. The penalties which have been assessed for Citations 4900615, 8431839, 4900439, 4900440, 4900589 and 4900604 and pursuant to 30 U.S.C. 820 will not affect the ability of DSC to remain in business.

18. The individual or individuals whose signatures appear in Block 22 of Citations 4900615, 8431839, 4900439, 4900440, 4900589 and 4900604 were acting in their official capacity and as an authorized representative for the Secretary of Labor when the citations were issued.

19. True copies of Citations 4900615, 8431839, 4900439, 4900440, 4900589 and 4900604, with any and all modifications and abatements, were served on DSC or its agent as required by the Act.

20. The Citations contained in Exhibit A attached hereto are an authentic copy of Citations 4900615, 8431839, 4900439, 4900440, 4900589 and 4900604, including any and all modifications or abatements.

21. Citations 4900615, 8431839, 4900439, 4900440, 4900589 and 4900604, along with any and all modifications and abatements, may be admitted into evidence, without objection, although Respondent may dispute specific allegations contained within the citations.

III. SUMMARY OF THE PARTIES’ ARGUMENTS

i. DSC’s Motion for Summary Decision

DSC argues that there are no genuine issues of material fact and that it is entitled to summary decision as a matter of law. DSC Mot. 2. Specifically, DSC argues that, “because [it] did not operate the subject mine, . . . [the citations] were unlawfully issued to DSC and must therefore be vacated. DSC Mot. 1-2.

DSC avers that its primary business is “to provide temporary labor to the mining industry[,]” and, as a provider of temporary labor, “DSC has no authority to supervise the work done by the laborers, nor any involvement in making any of the work-related decisions at or concerning a client mine-operator’s mine site.” DSC Mot. 2, 4. While DSC does offer services in addition to temporary labor, such services or resources would only be provided “by contractual agreement for that additional service or resource.” DSC Mot. 5.

Prior to, and on April 5, 2010, DSC had an agreement with Performance for DSC to provide temporary employees to Performance at the UBB mine. DSC Mot. 5. DSC did not provide any other services or resources under the agreement, nor did DSC “have any presence, actual or constructive, at UBB, or have the authority to or exercise any control over any portion or the mine site or the work assignments of miners working at the mine, or training of those miners, directly or indirectly.” DSC Mot. 5. “DSC was never hired by Performance to provide training of any type to DSC employees assigned to work at UBB, or to any other miners working at UBB.” DSC Mot. 6. Moreover, William Campbell, like the other miners assigned to UBB, was a DSC employee assigned to work at UBB as an hourly miner and “DSC had no authority to direct Mr. Campbell’s tasks or control or examine the workplace conditions in which he worked at UBB.” DSC Mot. 5-6.

DSC argues that it was not an “operator” as defined by the Mine Act. DSC Mot. 6. The Mine Act’s definition of “operator” contemplates production-operators and independent contractors “performing services or construction at such mine.” DSC Mot. 6-7. Performance was the production-operator at UBB, as it was the “only entity with ‘substantial involvement . . . in the mine’s engineering, financial, production, personnel, and health and safety matters.’” DSC Mot. 7 (quoting Berwind Nat’l Resources Corp., 21 FMSHRC 1284, 1293 (Dec. 1999)). DSC “had no involvement with UBB’s operations, other than to provide UBB with temporary mine laborers whose work Performance controlled and supervised.” Further, DSC is not an independent contractor as contemplated by the Act. DSC Mot. 7. DSC argues that it “does not become an independent contractor ‘operator’ merely by virtue of a business relationship with a mine.” DSC Mot. 8. DSC argues that the Secretary’s own policy, set forth in her Program Policy Letter No. P-11-V-05, is that “temporary employment agencies are not Mine Act independent contractors, and thus are not operators under the Mine Act.”[2] DSC Mot. 8.

DSC suggests that “the Commission routinely looks to OSHRC decisions for guidance in analogous situations under the OSH Act.” DSC Mot. 10 n. 5. OSHRC has long recognized that a temporary employment agency cannot be liable for violations committed by its employees at OSHA regulated sites if the employment agency did not create or control the hazardous conditions alleged.” DSC Mot. 10 (citing Manpower Temp. Services, Inc., 5 BNA OSCH 1803 (No. 76-9809, 1977)(ALJ) 1977 WL 6891 (Jan. 1977), aff’d Manpower Temp. Services, Inc., 5 BNA OSHC 1803 (No. 76-980, 1977), 1977 WL 7973 (June 1977)). Here, DSC “ha[d] no authority to inspect, manage, enter, or oversee” the mine site where the subject citations were issued. DSC Mot. 12. Further, “like the employee in Manpower that was assigned to a supervisory position, the fact that Mr. Campbell in particular had his fire boss certification and was, for a period of time, assigned by Performance to conduct examinations at UBB . . . does not make him a supervisor or agent of DSC for purposes of imputing liability to DSC.” DSC Mot. 13

Finally, DSC argues that, even if it is found to be an independent contractor under the Mine Act, it cannot be liable for conditions over which it has no control. DSC Mot. 15 (citing Sec’y of Labor v. National Cement Co. of California, 573 F.3d 788, 795 (D.C. Cir. 2009), Musser Engineering, Inc., 32 FMSHRC 1257, 1276 (Oct. 2010), Berwind Nat’l Resources Corp., 21 FMSHRC 1284, 1293 (Dec. 1999), and Ames Construction, Inc. v. FMSHRC, No. 11-1303, slip op. at 5 (D.C. Cir. April 17, 2012)). Specifically, DSC alleges that it “lacked control over any aspect of UBB, including the work assignments, workplace conditions, and training of the DSC employees assigned to work at the mine[.]” DSC Mot. 17.

ii. Secretary’s Reply to DSC’s Motion

The Secretary responds by arguing that DSC is more than a “temporary employment agency contractor” and its relationship with Performance included an agreement “for DSC to build seals, which is traditional contractor work.” Sec’y Rep. 2, 4. DSC’s own website markets the company as “very diverse” and capable of “all types of infrastructure work[.]” Sec’y Rep. 2.

The Secretary argues that the OSHRC case law relied upon by DSC is not controlling, while the Commission case law, which “DSC’s motion glosses over,” is clear on “how the court should examine whether an entity is an independent contractor and an operator under the Mine Act.” Sec’y Rep. 2-3.

The Secretary disputes a number of the “undisputed facts” included in DSC’s Motion. Namely, the Secretary “cannot agree that temporary manpower is the principle resource provided by DSC.” Sec’y Rep. 3. Moreover, despite DSC’s contrary contention, DSC did exercise control at the mine as evidenced by the DSC employees working at the mine, the presence of DSC’s Director of Operations and Safety underground a half dozen times, and the presence of a DSC agent fire boss and examiner who conducted and controlled examinations. Sec’y Rep. 3, 5. Further, while DSC contends that the training it provided its employees was not intended to satisfy the Part 48 requirements, and that it was not hired by Performance to conduct training of any type, the Secretary argues that DSC did exercise control over training, and it is the inadequacy of that training that forms the basis of the training violations issued here. Sec’y Rep. 4-5

iii. Secretary’s Motion for Partial Summary Decision

The Secretary argues that there are no genuine issues of material fact and that she is entitled to partial summary decision as a matter of law. She further states that the subject citations were properly issued to DSC, who, as an independent contractor and operator under the Act, is liable for the actions of its employees. Sec’y Mot. 1-3, 13-14.

The Secretary argues that, on September 26, 2006 DSC entered into an agreement with Performance to build seals at UBB. Sec’y Mot. 12. That agreement refers to DSC as an independent contractor. Sec’y Mot. 12. That same agreement was amended on June 9, 2008 and certain provisions were replaced, including provisions “pertaining to the Price Schedule, payment, governing law, jury trial waiver and arbitration, and enforcement of judgment.” Sec’y Mot. 12. “All other terms and conditions of the . . . [2006 agreement] remained unchanged and in full force and effect. Sec’y Mot. 13. The Secretary asserts that eleven DSC employees worked at UBB before and on the date of the deadly explosion, and that DSC’s Director of Operations and Safety at the relevant times, James Gump, “traveled underground at UBB a half dozen times.” Sec’y Mot. 13.

The Secretary states that, consistent with Commission case law, the issue of whether an independent contractor is a statutory operator under the Mine Act turns on (1) “whether the independent contractor has a sufficiently proximate relationship to the extraction process and . . . [(2)] the extent of the independent contractor’s presence at the mine.” Sec’y Mot. 14-15 (citing Otis Elevator Co., 11 FMSHRC 1896 (Oct. 1989); Otis Elevator Co., 11 FMSHRC 1918 (Oct. 1989)). Moreover, she argues, the Act’s definition of operator “‘does not extend only to certain ‘independent contractor[s] performing services . . . at [a] mine; by its terms it extends to ‘any independent contractor performing services . . . at [a] mine.” Sec’y Mot. 15 (citing Otis Elevator Co. v. Sec’y of Labor, 921 F.2d 1285,1290 (D.C. Cir. 1990) (omissions and additions in Secretary’s Motion).

The Secretary argues that the line of Commission and Courts of Appeal cases on this subject “suggest[] that section 3(d) covers any independent contractor performing more than de minimis services at a mine, although no Court has specified what would constitute de minimis services.” Sec’y Mot. 16. While the determination of whether one is independent contractor is “not confined by the terms of [the parties’] contract[,] . . . the contracts are evidence of the parties’ actual relationships.” Sec’y Mot. 16 (citing Bulk Transp. Servs., Inc., 13 FMSHRC 1354 (Sept. 1991)).

The Secretary argues that DSC was “extensively involved” in the extraction process in the form of “[f]irebossing, conducting examinations, correcting hazards, and training,” which “are all essential to ensuring the safety of workers during the mining process, including the extraction of coal.” Sec’y Mot. 17. Given that DSC was the employer of the eleven cited individuals, it had the “authority and influence to play a substantial role in controlling” their activities. Sec’y Mot. 18.

The Secretary argues that the agreement and amendment between DSC and Performance, while not dispositive, is evidence of DSC’s status as an independent contractor. Sec’y Mot. 18. She points to the inclusion of language in the original agreement identifying DSC as a contractor, as well as language indicating that DSC is responsible for the acts of its employees. Sec’y Mot. 18-19. Moreover, she cites specific language regarding the DSC’s responsibility to file all necessary reports and documents required by law, as well as to provide all safety training to DSC’s employees as required by law. Sec’y Mot. 19. Finally, she references language in the agreement regarding DSC being “solely liable” for all “assessments, penalties, or other fines” for violations of law by DSC or its employees. Sec’y Mot. 19.

The Secretary also notes that DSC had an MSHA contractor ID and had been operating as an independent contractor at mines under Mine Act jurisdiction since at least 2001. Sec’y Mot. 19-21 n. 4. The Secretary argues that the work that DSC employees were conducting at UBB “falls within the plain meaning of ‘services’ under the Mine Act.” Sec’y Mot. 20. The dictionary defines “services” as “the performance of any duties or work for another; helpful or professional activity: medical services.” Sec’y Mot. 20 (citing Dictionary.com). She argues that the examinations and other tasks performed by DSC employees at UBB all constitute services. Moreover, the 2006 agreement between DSC and Performance “explicitly describes DSC’s work product as ‘services’ to be provided to Performance in fulfillment of the contract.” Sec’y Mot. 21.

The Secretary, citing Joy Technologies, Inc., v. Sec’y of Labor, 99 F.3d 991, 997 (10^th Cir. 1996), argues that “independent contractor,” as contemplated in the Mine Act, is somewhat different than “independent contractor” as understood by common law. Sec’y Mot. 22. Given the ambiguity of the term, the court should defer to the Secretary’s interpretation that the circumstances of this case “provide reasonable grounds for the Secretary’s judgment that DSC was an independent contractor and, because it was providing services to UBB, an operator under the Mine Act.” Sec’y Mot. 24.[3] The Secretary argues that “DSC cannot contract to avoid duties imposed upon it by the Mine Act” by claiming that “Performance, by exercising some degree of concurrent control over DSC’s employees, was in some sense operating as a subcontractor to DSC.” Sec’y Mot. 24

The Secretary acknowledges that an independent contractor who exercises no control will not be responsible for a violation. Sec’y Mot. 25-26 (citing Musser Engineering, 32 FMSHC 1257 (Oct. 2010), Joy Technologies, Inc., 17 FMSHRC 1303 (1995), aff’d, 99F.3d 991 (10^th Cir. 1996), and Sec’y of Labor v. National Cement Co. of California, 573 F.3d 788 (D.C. Cir. 2009)). However, unlike Musser where the Commission found that the independent contractor did not exercise control, DSC did exercise control in the form of performing the contractual duties underground at the mine. Sec’y. Mot. 26-27. Moreover, the DSC’s presence was further demonstrated by DSC Director of Operations and Safety, James Gump’s being at the mine approximately six times. Sec’y Mot. 27.

The Secretary argues that it is well-settled that operators are liable for the actions of their employees. Sec’y Mot. 27. Accordingly, DSC is liable for the violations of the eleven employees it had assigned to UBB. Sec’y Mot. 27. This is true of both the lack of training violations, as well as the actions of William Campbell, who was an agent of DSC. Sec’y Mot. 28. The Secretary argues that Campbell, by virtue of his function as a mine examiner who conducted numerous examinations that were crucial to the mine’s operation and were performed while alone and functioning as a supervisor of his own activities, was an agent of DSC. Sec’y Mot. 28-30. In addition, the Secretary points to language in the 2006 Agreement that, among other things, addresses the conduct and control DSC exerted, DSC’s sole responsibility for the acts of its employees, and the fact that neither DSC, its agents, employees, etc. could be treated as agents of or employees of Performance. Sec’y Mot. 30-31. Nevertheless, the Secretary argues that she may cite the production operator, the independent contractor, of both for violations of the Mine Act committed by the independent contractor. Sec’y Mot. 32-33 (citing Speed Mining, Inc., v. FMSHRC, 528 F.3d 310, 314 (4^th Cir. 2008)).

Finally, the Secretary argues that her program policy letter, PPL P09-V-02, addressing temporary employment agency contracting in the context of Part 50 applies only to those reporting obligations under that part of her regulations. Sec’y Mot. 34. To apply the PPL outside of the context of Part 50 would be inconsistent with the purpose of the PPL. Sec’y Mot. 34-35

iv. DSC’s Opposition to the Secretary of Labor’s Motion

DSC agrees that it entered into an Independent Contractor Agreement with Performance in September of 2006 for DSC to construct mine seals at UBB. DSC Opp. 4. DSC further agrees that, during the period of seal construction, it was an independent contractor and an operator according to the Act. DSC Opp. 5. However, DSC argues that it last performed services related to the building of seals at UBB in April of 2007, three years prior to the April 2010 explosion, and that said services were, and are, totally unrelated to the April 2010 explosion at UBB. DSC Opp. 2, 5, 7. While the 2006 Independent Contractor Agreement was amended in 2008, the amendment was, “for all practical purposes, a new agreement – no longer to build seals, but one to supply temporary labor.” DSC Opp. 5. Accordingly, the 2006 contract is irrelevant to the current situation. DSC Opp. 6-8.

Further, as pointed out by the Secretary, “the independent-contractor operator analysis is not ‘confined’ by the terms of a contract.” DSC Opp. 8 (citing Sec’y Mot. 16-17). Rather, “the key to determining whether the independent-contractor operator status attaches is the ‘actual relationship[]’between the purported contractor and the production-operator[.]” DSC Opp. 8 (citing Bulk Transp. Servs., Inc., 13 FMSHRC 1354, 1358 n. 2 (Sept. 1991)(emphasis added)). Accordingly, “the Commission must consider the relationship between DSC and Performance as it existed at the time of the accident[.]” DSC Opp. 8. At the time of the explosion, and in the years leading up to such, DSC’s only connection to UBB “was that certain DSC employees worked at UBB.” DSC Opp. 2.

DSC argues that the temporary labor provided to Performance does not qualify as a “services” as is contemplated by the term “independent contractor” in the Act’s definition of “operator.” DSC Opp. 9. There is no precedent for holding DSC liable as an independent contractor, as “DSC merely provided manpower to perform services that were assigned, directed, and controlled exclusively by Performance.” DSC Opp. 9. Further, unlike the present situation, the cases relied upon by the Secretary “each involves work performed under the direction and supervision of the contractor.” DSC Opp. 9.

DSC further argues that the Secretary’s dismissal of her PPL denies the underlying rationale of the PPL, which is that “work performed by miners from temporary employment agencies is not ‘true contract work’ because the temporary employment agency does not ‘maintain[] supervisory control over its employees.’” DSC Opp. 11-12 (citing DSC Mot. Exs. 2 and 3). DSC also disputes the Secretary’s argument that her interpretation of “independent contractor” is entitled to deference. DSC Opp. 15. DSC notes that the Secretary does not address any ambiguities to which she may be entitled to deference in her interpretation. DSC Opp. 15. Moreover, any deference to her stated position would be in contradiction to her position in the PPL. DSC Opp. 15.

DSC disputes the Secretary’s argument that William Campbell’s activities as a fire boss make him an agent of DSC. DSC Opp. 16. Specifically, DSC argues that, consistent with basic agency law, Performance alone had the legal obligation to examine the mine, and Performance alone assigned Campbell to conduct such examinations. DSC Opp. 16, 17. Thus, Performance alone is the only principal liable for Campbell’s actions as an examiner. DSC Opp. 17. Finally, DSC argues that, even if it were found to be an independent contractor, it would “still not be liable as an operator because the work performed by the miners assigned to Performance was outside its ‘control and supervision.’” DSC Opp. 18

IV. DISCUSSION

Commission Procedural Rule 67 sets forth the grounds for granting summary decision as follows:

A motion for summary decision shall be granted only if the entire record, including the pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows:

(1) That there is no genuine issue as to any material fact; and

(2) That the moving party is entitled to summary decision as a matter of law.

29 C.F.R. § 2700.67. The parties have agreed and I find that there are no genuine issues as to any material fact and that this jurisdictional question can properly be decided based on the record before me.

Liability under the Mine Act is imposed upon “operators” of mines. See 30 U.S.C. § 814. Section 3(d) of the Act defines “operator” as “any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine.” (Emphasis added). In the case at hand, the Secretary seeks to impose liability upon DSC under the “independent contractor” clause of Section 3(d).[4]

While the Act does not define “independent contractor,” the Secretary’s regulations define an “independent contractor” as an entity “that contracts to perform services or construction at a mine.” 30 C.F.R. § 45.2(c). In Joy Technologies Inc., 17 FMSHRC 1303 (Aug. 1995) aff’d, 99 F.3d 991 (10th Cir. 1996), the Commission held that, in determining whether an entity is an “independent contractor”, the “‘focus is on the actual relationship between the parties, and is not confined to the terms of [the parties’] contracts. . . . [T]he determination of whether a party is a properly designated to be within the scope of section 3(d) of Act is not based on the existence of a contract, nor the terms of such a contract.’” (quoting Bulk Transportation Services, Inc., 13 FMSHRC 1354 (Sept. 1991). Nevertheless, the contract between the parties may be “evidence of the parties’ actual relationships.” Bulk Transp. Servs., Inc., 13 FMSHRC 1354, 1358 n. 2 (Sept. 1991).

In 1989 the Commission addressed the issue of “operator” liability pursuant to the “independent contractor” clause of Section 3(d) in two Otis Elevator Company decisions, Otis Elevator Co., 11 FMSHRC 1896 (Oct. 1989) (hereinafter “Otis I”) and Otis Elevator Co., 11 FMSHRC 1918 (Oct. 1989) (hereinafter “Otis II”). In Otis I the Commission explained that “Section 3(d) [of the 1977] Mine Act expanded the definition of ‘operator’ under . . .[the 1969 Coal Act] to include ‘any independent contractor performing services or construction at such mine.’” 11 FMSHRC at 1900. “[T]he goal of Congress, in expanding the definition of ‘operator’ . . . to include ‘independent contractors,’ was to broaden the enforcement power of the Secretary so as to reach not only owners and lessees but a wide range of independent contractors as well.” Id. at 1900-1901. However, the Commission noted that, in analyzing an independent contractor’s contacts with the mine, “not all independent contractors are operators under the Mine Act, and that ‘there may be a point, at least, at which an independent contractor’s contact with a mine is so infrequent or de minimis that it would be difficult to conclude that services were being performed.’” Id. (quoting National Industrial Sand Ass’n, 601 F.2d 289, 701 (3^rd Cir. 1979)).

First, I find that DSC is an independent contractor performing services at the mine. In its Otis decisions the Commission outlined a two pronged test for determining whether an entity is an “operator” pursuant to the “independent contractor” clause of Section 3(d) of the Mine Act. First, one must examine the subject entity’s “proximity to the extraction process” and second, whether that entity’s work is “sufficiently related” to that process. Otis I, 11 FMSHRC 1896, 1902 (Oct. 1989). In Otis I the Commission determined that the independent contractor, an elevator service contractor, satisfied this prong of the test because its employees “were working in the center of mining activities while servicing equipment essential to the mining process, were exposed to mining hazards, and had a direct effect on the safety of others because of their exclusive control over the safety of the mine elevators[.]” Id.

The second prong of the Otis test requires an examination of “the extent of [the entity’s] presence at the mine.” Otis I, 11 FMSHRC 1896, 1902 (Oct. 1989). In Lang Bros., Inc., 14 FMSHRC 413, 420 (Sept. 1991), the Commission stated that “[a]n independent contractor's presence at a mine may appropriately be measured by the significance of its presence, as well as by the duration or frequency of its presence.”

The undisputed material facts establish that “DSC had an agreement with Performance to provide . . . temporary labor to UBB, before and on April 5, 2010.” Jt. Stip. 8. That agreement is memorialized in the June 2008 document entitled “Amendment No. 1 to Independent Contractor Agreement.” Sec’y Mot. Ex. C (hereinafter the “2008 Amendment”). The language of the 2008 Amendment states that “WHEREAS, Owner and Contactor entered into that certain Independent Contractor Agreement dated September 26, 2006 . . . ; and WHEREAS Owner and Contactor agree to amend the agreement as set forth below.” The September 26, 2006 agreement referenced in the Amendment, Sec’y Mot. Ex. B (hereinafter the “2006 Agreement”), called for DSC to build mine seals at UBB. DSC argues that the 2006 Agreement is irrelevant because after completing the seals in 2007 DSC’s only involvement at the mine was the provision of temporary labor. DSC Opp. 4-9. Instead of drafting a new contract, the parties simply amended, albeit inartfully, the original contract. As the Commission stated in Bulk Transportation Services, 13 FMSHRC 1354 (Sept. 1991), while the “focus [of this analysis] is on the actual relationships between the parties, and is not confined by the terms of their contracts,” the contract between the parties may be “evidence of the parties’ actual relationships.” I find that the 2006 Agreement and 2008 Amendment provide some evidence of an ongoing contractual relationship between the parties.

While DSC asserts, and Secretary does not explicitly dispute, that DSC had not provided seal building services since April of 2007, certain provisions of that agreement remained intact up until April, 2010. Further, I note that, in spite of the alleged ceasing of any services under the 2006 Agreement, the parties clearly had an ongoing contractual relationship for the provision of services.[5] While seal building, as opposed to the provision of temporary labor, may be more easily classified as a traditional contractor service, it does not take away from the fact that that ongoing independent contractor relationship was initiated on September 26, 2006 and continued, albeit modified, at least until April 5, 2010 and that relationship included the provision of services by DSC.

Tellingly, and as pointed out by the Secretary, while DSC may have stopped building seals in April of 2007, there is no indication that the 2006 Agreement was at any point terminated. The fact that DSC and Performance chose to amend the 2008 Agreement is clear evidence of the acknowledgement that an independent contractor relationship continued to exist between the parties. However, I agree with DSC that the nature of the relationship changed after the completion of the seals in April, 2007. The scope of work included in the original contract provided that DSC would supply labor and supervision necessary to build the mine seals at UBB and that UBB would provide all tools and safety equipment for the workers. The agreement between the parties was changed after the seals were installed and thereafter, DSC provided temporary labor to UBB. This finding is supported by the affidavit filed by James Gump, the Director of Operations and Safety for David Stanley Consultants, LLC. Gump asserts in his supplemental declaration that the intent of the parties in entering into the amended contract was to set forth a rate of pay for the various employees and to change the relationship of the parties to that of DSC providing only temporary workers to the mine. DSC Opp. Ex. 1. There is no “scope of work” included in the amendment but it does include a list, dated September 4, 2008 setting forth the agreed upon billing rate for each classification of employee. Sec’y Mot. Ex. C. The amendment is simply unclear and, while I find that there was a contractual relationship between DSC and Performance, I cannot find that various portions of the original contract remained in effect after September, 2008. The terms of the amended agreement, specifically the duties ascribed to DSC are not clear.

In both his statement to MSHA and in his affidavit, Gump explains that DSC recruited employees for many mines, including the various Massey mines. DSC Mot. Ex. 1; Sec’y Mot. Ex. D. Gump does not explain the terms of the agreement, and he specifically does not address whether DSC expected to indemnify Performance for penalties assessed as a result of the actions of its employee, which was something that was addressed in the original 2006 Agreement with Performance. However, Gump’s statements do indicate that the miners remained employees of DSC and were not employees of UBB. Although somewhat contrary to his statement to MSHA, Gump explained in his affidavit that DSC hires only individuals who have had new miner training. DSC Mot. Ex. 1. Applicants for employment must show all documents and certifications as to their experience and positions. Gump further explained that while DSC conducted an initial training, about one hour in duration, it covered items such as information on “mining and miner responsibilities” as well as attendance at work, and an overview of mine plans. DSC also covers hazard recognition and reporting accidents. The training took place at the Massey Marfork training facility. DSC does not conduct training for any particular mine, unless otherwise contracted to do so, and, according to Gump, did not conduct training for miners sent to UBB. However, in his statement, Gump acknowledges that DSC employs at least two trainers, and it does provide refresher training to miners who are being assigned to work at UBB. The refresher training is a requirement of UBB. Sec’y Mot. Ex. D.pg 30. However, Massey conducted most training for miners sent to its mines. DSC Mot. Ex. 1, p. 3; Sec’y Mot. Ex. D, p. 13-14, 17-18.

DSC primarily provides new hire miners to UBB at the request of Massey. The mine provides all safety equipment for each worker, including a SCSR. Once the miner is placed with UBB, they attend annual refresher training according to the mine’s schedule. Sec’y Mot. Ex. D, p. 18. Additionally, once the individual is assigned to a mine, “all decisions regarding where and when that individual must show up for work and what work tasks that individual must perform at the mine, are made by the client mine operator.” DSC Mot. Ex. 1 ¶ 4. However, according to Gump, DSC has a mine ID and does report any accidents in which employees sent by DSC are involved. Sec’y Mot. Ex. D, p. 34. In reporting accidents, DSC uses both the mine ID and DSC’s contractor ID in filling out the report. DSC gives each employee a handbook with DSC policies and a safety handbook. Moreover, DSC disciplines the employees when necessary, including for failure to timely show up for work and insubordination. DSC provides verifications for miners to show that they are experienced using their time cards and is responsible for providing the paychecks to the employees placed in a mine.

A company whose only function is to hire the miner, send them to the mine, and process the payroll may result in a different finding. However, DSC does more than simply hire, assign, and pay workers. As described above, DSC disciplines employees even after placed in the mine, trains certain miners, and reports accidents that include its employees. In addition, the trainers at DSC use the Massey training facilities, attend certain trainings and visit the mine location on occasion. Therefore, I find that the employees of DSC are intimately connected to the extraction process. While DSC’s involvement in the actual work of its miners may be limited, it is nevertheless sufficiently connected to the extraction process.

In addition to the training and discipline of miners who are assigned to work underground, the DSC employees are proximately involved in the extraction process for other reasons. One such employee, William Campbell, was a fire boss and examined belts at UBB. Jt. Stip. 11. That same miner was subject to reprimand, employment rules, and accident reporting by DSC. Mr. Campbell, among other things, was tasked with the responsibility of examining the belts. Moreover, while examining the belts, he was constantly exposed to mining hazards. Accordingly, his activities as a DSC employee, even if they were at the direction of Performance, were sufficiently proximate to the extraction process.

As to the second prong of the Otis test, I find that DSC and its DSC’s employees had an extensive presence at the mine. There is no dispute that the eleven individuals were “employed by DSC” and were working at UBB. Jt. Stip. 11. Mr. Campbell had been working at the mine for approximately four months at the time of the explosion. Jt. Stip. 11. The ten other DSC employees were working at UBB “before and on April 5, 2010.” Jt. Stip. 9. In Joy Technologies Inc., 17 FMSHRC 1303, 1308 (Aug. 1995) the Commission found that substantial evidence supported the ALJ’s finding that an independent contractor spending six days at the mine over a two and a half month period, along with an expectation that such contact would continue, satisfied the second prong of the Otis test. See also Lang Bros., Inc., 14 FMSHRC 413 (Sept. 1991) (sufficient presence found when contractor was present seven to ten days on a non-continuing basis) and Otis I, 11 FMSHRC 1896 (Oct. 1989) (sufficient presence found when contractor was present six hours per month). I find that the extended presence of Mr. Campbell, combined with the presence of the ten other DSC employees, amount to a sufficient and significant presence at the mine. In addition, the use of the Massey training facility by DSC, along with Gump’s visits to the mine demonstrate a continued presence at the mine. Accordingly, I find that the Secretary has satisfied the second prong of the Otis test and that DSC is an independent contractor.

The Mine Act creates liability for operators who are independent contractors performing services at the mine. DSC argues that it does not provide services and, therefore, is not an independent contractor. I disagree. The Commission noted that, in analyzing an independent contractor’s contacts with the mine, “not all independent contractors are operators under the Mine Act, and that ‘there may be a point, at least, at which an independent contractor’s contact with a mine is so infrequent or de minimis that it would be difficult to conclude that services were being performed.’” Id. (quoting National Industrial Sand Ass’n, 601 F.2d 289, 701 (3^rd Cir. 1979)). Neither the Act nor the Secretary’s regulations define “performing services.” “In the absence of a statutory or regulatory definition of a term, the Commission applies the ordinary meaning of that term.” Twentymile Coal Co., 30 FMSHRC 736, 750 (Aug. 2008). The dictionary defines the singular form of “services” as “the work performed by one that serves.” Webster's New Collegiate Dictionary 1051 (1979). The term “services” is broad. DSC supplied employees, provided information to those employees, hired and placed those employees with the mine, and could discipline those employees if needed. The actions of DSC in providing employees and all that entails demonstrate that it did provide a service to UBB.

Next, section 3(d) covers any independent contractor performing more than de minimis services at a mine. As a result, I must determine whether the DSC contact was so infrequent or de minimis that it would be difficult to conclude that services were being performed. Northern Illinois Steel Supply Co. v. Secretary of Labor, 294 F.3d 844, 848-49 (7th Cir. 2002), Musser Engineering, Inc., 32 FMSHRC 1257, 1276 (Oct. 2010). In Musser, the Commission determined that the services provided by Musser were extensive in time and substantial in content. Musser’s activities included “engineering support, mapping, and surveying services” that were performed to meet the operational needs of the mine. Musser had no office at the mine, but did provide employees who performed activities both at the mine and at the Musser office. The activities provided by those employees were found to be adequate to determine that Musser provided services to the mine. The Circuit Court of Appeals did find that services were de minimis in Northern Illinois, Id. but characterized the contractor as a vendor who provided supplies once or twice a week. DSC’s contact is far greater. Accordingly, the services provided by DSC in this case were not de minimis.

I note that much of DSC’s argument in this case is premised upon its claimed status as a temporary employment agency and what it perceives as the law’s insulating treatment of such entities with regard to the employment agency’s liability for the actions of its employees at their respective placements. However, the supporting case law submitted by DSC in its motion, DSC Mot. 10-15, is not controlling. It is well settled that the jurisdictional reach of the Mine Act is broad. Based on the controlling Commission case law discussed above, to restrict the reach of Mine Act jurisdiction in this instance would not serve to effectuate the goal of Congress when it expanded the definition of “operator” to include a “wide range of independent contractors.” Otis I, 11 FMSHRC at 1900-1901.^{^[6]}

With regard to DSC’s argument that the Secretary’s PPL formally sets forth a policy “that temporary employment agencies are not Mine Act independent contractors, and thus are not operators under the Mine Act[,]” the PPL states under the “purpose” heading that it is issued to “clarify that miners obtained through a temporary employment agency contractor are “miners for purposes of reporting under 30 C.F.R. Part 50.” It goes on to explain that when a temporary employment agency provides miners, it is the mine operator who is responsible for reporting any accident, injuries, illnesses, production and hours worked by these employees. It then discusses the definition of “miner”. The PPL acknowledges that mines often hire employees through employment agencies and the miners hired through an agency work alongside those hired directly by the mine. The PPL explains that “when a temporary employment agency or other contractor supplies miners to the operator, the mine operator supervises these miners.” Because the mine supervises the miners, the mine must complete MSHA required reporting for those miners. I cannot agree that the PPL has the meaning and intent that DSC asserts. Instead, it is a clarification that the company who supervises a miner must report any accidents or injuries. Accordingly, I reject DSC’s argument that the PPL sets forth a policy that temporary employment agencies are not Mine Act independent contractors. In any event, UBB and DSC chose not to follow the policy set forth in the PPL and it was DSC, not UBB, who reported accidents at the mine in which DSC employees were involved.

Having found that DSC is an independent contractor providing services, I must analyze the issue of potential liability for the citations that were issued. In order to impute liability to a contractor who performs services, that independent contractor must “exercise supervision or control” over the area or persons who were cited. The Commission has recognized that, while strict liability under the Act “‘means liability without fault[;] [i]t does not mean liability for things that occur outside one's control or supervision.” Ames Const., Inc., 33 FMSHRC 1607, 1611 (quoting Sec'y of Labor v. National Cement Co. of Cal., Inc., 573 F.3d 788, 795 (D.C. Cir. 2009) (citation omitted)), aff’d, 676 F.3d 1109 (D.C. Cir. 2012), see also Joy Technologies Inc., 17 FMSHRC 1303, 1309 (Aug. 1995) (Noting the limitations in holding an independent contractor liable for matters over which it and its employees have no control) and Musser Engineering, 32 FMSHRC 1257 (Oct. 2010). Recently in Musser, the Commission addressed the issue of supervision and control and in doing so looked first to the specific violation and then to whether Musser was in a position to prevent errors. Consequently, the Commission determined that Musser’s role in preparing a map was insufficient to bring it within the parameters of the specific standard involved in that case.

In the instant matter, I find that, DSC did not exercise supervision over the day to day instruction of the miners, did not assign work tasks, did not supervise the daily work and did not maintain an independent office or work area at UBB. Jt. Stips. 13 and 16. The eleven DSC employees were working underground at the mine and, once they entered the mine, they were subject to the sole supervision and control of the mine operator, UBB. Jt. Stip. 16; DSC Mot. Ex. 1, p. 1-2, 4-6. DSC had no authority to direct the work force or be in a position to understand what tasks they were assigned daily. While the cited individuals, who were performing their contractually obligated labor duties at the mine, were DSC employees, DSC had no control over those miners or the tasks they were assigned to once they entered the mine. Sec’y Mot. Ex. D, p. 32. Accordingly, DSC cannot be held liable for the actions of Mr. Campbell and his alleged failure to conduct adequate examinations and correct hazards observed during those examinations as alleged in Citation Nos. 4900615, 8431839, and 4900604.[7] DSC would have no way in which to observe Campbell’s actions or determine if he was adequately performing his assigned tasks. Moreover, given that DSC had no knowledge of or control over what tasks its miners were assigned by UBB personnel, it cannot be held liable for Citation No. 4900440 and its alleged failure to task train those miners. DSC had no means to alter the work tasks or assignments, had no way of preventing any action, and had no manner in which to correct or direct the work of the persons assigned at UBB. Like Musser, DSC was in no position to prevent errors on the part of the workers. Nor was DSC in a position to know when task training was needed or required.

However, while I find that DSC had no control over the actions of the miners once they entered the mine, there is evidence to establish that DSC had some control and supervision over other non-task specific training that was cited in Citation Nos. 4900589 and 4900439. DSC stipulated and Gump testified regarding the administration of training, including mining specific safety training, as well as hazard recognition training, to the miners it assigned to UBB. Jt. Stip. 7; Sec’y Mot. Ex. D, p. 18, 20. Certainly, the administration of mine safety training, including hazard recognition training, is evidence enough that DSC retained at least some control in the context of the types of training discussed in Citation Nos. 4900589 and 4900439; supervisory first-aid and experienced miner training. DSC claims that it had no authority to train its own employees. DSC Mot. 5. However, this claim is in direct conflict with DSC management’s own acknowledgement, Sec’y Mot. Ex. D p. 19-20, and the parties’ stipulation, Jt. Stip. 7, that DSC did in fact provide training. Further, as mentioned above, DSC provides annual refresher training to prospective employees at UBB, and, as explained by Gump in his sworn statement, he used the Massey training facilities, has observed the training conducted by Massey, and must understand the training that each employee has had prior to placement. Sec’y Mot. Ex. D p. 18-22, 30. DSC, in its position as the employer of the miners, had some responsibility to assure that they are adequately trained. I find that, given DSC’s closeness to Massey, both physically in the training facility, and in working to place miners, DSC exercises control and supervision as to training. While its control does not extend to task training, it does extend to the other training areas cited by the Secretary.

Accordingly, I find that DSC may properly be cited for the training violations alleged in Citation Nos. 4900589 and 4900439. However, given its lack of control or supervision over the miners once they enter the mine, DSC may not be cited for the alleged examination and task specific training violations over which it had no control or supervision.

V. ORDER

DSC’s Motion for Summary Decision is GRANTED IN PART and DENIED IN PART. The Secretary’s Motion for Partial Summary Decision is GRANTED IN PART and DENIED IN PART. Citation Nos. 4900615, 8431839, 4900604, and 4900440 are VACATED. The citations that remain have not addressed the issues related to the gravity, negligence and other penalty criteria. Therefore, the parties are ORDERED to contact the court within fifteen days to schedule a conference call to discuss how the case will proceed from this point.

/s/ Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

Distribution:

Pollyanna E.F. Hampton, Office of the Solicitor, U.S. Dept. of Labor, 1100 Wilson Blvd., 22^nd Floor, Arlington, VA 22209-2247

Daniel W. Wolff, Crowell & Moring, LLP, 1001 Pennsylvania Avenue NW, Washington, DC 20004-2595

[1] Citation No. 4900615 alleges a violation of Section 75.363(a) of the Secretary’s regulations, and contends that a DSC employee working at the mine “failed to immediately correct or post with conspicuous ‘Danger’ signs hazardous conditions observed and recorded during the examinations[.]” Citation No. 8431839 alleges a violation of Section 75.360 of the Secretary’s regulations, and contends that a DSC employee working at the mine “failed to conduct adequate preshift examinations[.]” Citation No. 4900604 alleges a violation of Section 75.363(a) of the Secretary’s regulations, and contends that a DSC employee working at the mine “failed to immediately correct hazardous conditions or post the area with conspicuous ‘DANGER’ signs for hazards observed and recorded during the examinations[.]” Citation No. 4900589 alleges a violation of Section 75.1713-3 of the Secretary’s regulations, and contends that DSC “failed to develop, implement, and train select supervisory employees, to assure they have received the required first-aid training, for all sections, on all shifts.” Citation No. 4900440 alleges a violation of Section 48.7 of the Secretary’s regulations, and contends that DSC, “which provides contract employees to the Upper Big Branch Mine[,] failed to ensure their employees received task training for the jobs they were performing.” Citation No. 4900439 alleges a violation of Section 48.6 of the Secretary’s regulations, and contends that a DSC, “which provides contract employees to the Upper Big Branch Mine, failed to ensure their employees received experienced miner training.”

[2] The 2011 PPL, which was in place at the time DSC was cited and the proposed penalties were assessed, was simply a reissue of the 2009 PPL, i.e., PPL P09-V-02, which was in place at the time of the explosion.

[3] The Secretary asks for Chevron deference on this issue, but states that “[e]ven if the court were not to afford Chevron deference to the Secretary, it should nonetheless apply Auer deference [.]” Sec’y Mot. 24

[4] The Secretary argues that deference should be afforded to her interpretation of “independent contractor.” I agree with DSC that the Secretary’s deference argument is not entirely clear. Nevertheless, I find that no ambiguity exists in the Act, the Secretary’s regulations, or Commission case law and that this matter can properly be decided without affording deference to any interpretation the Secretary has put forth.

[5] See infra discussion of “services” below.

[6] On appeal, the D.C. Circuit explained how broad the “wide range of independent contractors” is when it stated that “Section 3(d) does not extend only to certain “independent contractor[s] performing services ... at [a] mine”; by its terms, it extends to “ any independent contractor performing services ... at [a] mine.” 30 U.S.C. § 802(d) (emphasis added).” Otis Elevator Co. v. FMSHRC, 921 F.2d 1285 (D.C. Cir. 1990) (aff’g Otis I and II)

[7] The Secretary has argued that Campbell, as a face boss, was an agent of DSC, but I do not find that argument persuasive for purposes of determining the supervision and control of DSC.