<DOC>
[DOCID: f:s96-367d.wais]

 
UNITED MINE WORKERS OF AMERICA
February 11, 1997
SE 96-367-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION


               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                        February 11, 1997

UNITED MINE WORKERS OF AMERICA   :     DISCRIMINATION PROCEEDING
  ON BEHALF OF                   :
  WILLIAM KEITH BURGESS,         :     Docket No. SE 96-367-D
  GLENN LOGGINS, AND             :     JWR No. 4 Mine
  DAVID MCATEER,                 :
               Complainants      :
                                 :
          v.                     :
                                 :
SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :
  MICHAEL J. LAWLESS,            :
  FRANK YOUNG, and               :
  JUDY MCCORMICK                 :
               Respondents       :
                                 :
                                 :
UNITED MINE WORKERS OF AMERICA   :     DISCRIMINATION PROCEEDING
  ON BEHALF OF                   :
  B. RAY PATE, the LOCAL         :     Docket No. SE 97-18-D
  UNION 8982 SAFETY COMMITTEE    :     BIRM CD 96-07
  and others,                    :
               Complainants      :
                                 :
          v.                     :     U.S. Steel Mining Corp.
                                 :     Concord Prep Facilities
SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :
  TOM MEREDITH, MICHAEL J.       :
  LAWLESS & FRANK YOUNG,         :
               Respondents       :


              ORDER OF CONSOLIDATION AND DISMISSAL

Before:  Judge Bulluck

                    I. Motion to Consolidate

     In these discrimination cases brought by the United Mine
Workers of America ("UMWA") against the Mine Safety and Health
Administration ("MSHA") and individual MSHA employees pursuant to
section 105(c) of the Federal Mine Safety and Health Act of 1977
("the Act"), 30 U.S.C. section 801 et seq., the Respondent has
moved to consolidate and dismiss the complaints. [1]/  Inasmuch
as the complaints involve resolution of the same legal issue, and
the motion to consolidate is unopposed by the Petitioner, the
motion is granted.  For the reasons set forth below, the motions
to dismiss the complaints are, likewise, granted.

                     II. Motions to Dismiss

     The Secretary of Labor ("Secretary") moved to dismiss the
complaints, essentially arguing that there is no cause of
action against MSHA or its employees under section 105(c) of
the Act.  In support of his position, the Secretary cites the
Commission's  decision in Wagner v. Pittston Coal Group,
12 FMSHRC 1178 (June 1990), and the decision of the  Court of
Appeals for the Fourth Circuit("the Court") in Wagner v.
Secretary of Labor, No. 91-2025, 1991 U.S. App. LEXIS 26336, at
*1 (4th Cir. Nov. 5, 1991), aff'g by unpublished decision
12 FMSHRC 1178 (June 1990). [2]/

     In Docket No. SE 96-367-D, under the circumstances set forth
below, the complainants seek to hold MSHA and MSHA employees
liable for violations of sections 103(g)(in pertinent part,
requiring the Secretary to delete the names of individual miners
from copies of written complaints provided to operators), and
105(c)(1) of the Act (protecting miners who have engaged in
protected activity from discrimination). [3]/  On or about May
24, 1996, the chairman of Local 2245's safety committee David
McAteer, along with committee members William Keith Burgess and
Glenn Loggins, sent a letter to MSHA District 11 manager, Michael
Lawless, complaining of safety violations at the Jim Walter
Resources' #4 mine and MSHA's continual grant of extensions of
scheduled mine inspections.  Subsequently, at an accident

investigation team pre-inspection meeting held at the mine site,
attended by MSHA supervisors and inspectors, the mine manager and
some of his subordinates, and McAteer and Burgess, a sanitized,
typed version of the letter was distributed, omitting all names
and references to individual miners.  However, MSHA supervisor
Judy McCormick verbally chastised McAteer and Burgess for their
criticisms of MSHA, thereby disclosing the identity of the
complainants to Jim Walter Resources management.

     In Docket No. SE 97-18-D, the following circumstances gave
rise to the allegation of liability of MSHA and MSHA employees
for violations of section 105(c)(1) of the Act.  Pursuant to
various safety and health concerns raised during the
spring/summer of 1996 by UMWA representatives, including Local
Union 8982 president B. Ray Pate, on or about August 9, 1996,
MSHA District 11 manager Michael Lawless and assistant district
manager Frank Young met with UMWA representatives, including
Pate, to discuss the union's complaints about MSHA District 11
staff and enforcement problems at the mines within District 11.
Thereafter, on or about August 11, 1996, MSHA informed Pate that
MSHA District 11 supervisor Tom Meredith would be requiring all
miners at the U.S. Steel Concord Preparation Plant and associated
facilities, including the local union officials and its members,
to file health and safety complaints in writing by hand-delivery.
This policy discontinued MSHA's previous policy of accepting
complaints made by telephone to the District 11 office.
Consequently, on September 19 and 25, 1996, the UMWA filed a
section 105(c) complaint against MSHA employees Meredith, Lawless
and Young, charging the District 11 personnel with disclosing to
mine management the identity of the complaining miner
representative, seeking employment with the company, and
conducting negligible enforcement action at the mine.  By letters
dated September 23 and October 9, 1996, MSHA rejected the UMWA's
complaint.

                    Proceedings against MSHA

     In Wagner, the Commission held that ". . . MSHA is not a
'person' subject to the provisions of Section 105(c)", and
dismissed the complaint that had been brought against the agency.
Wagner, 12 FMSHRC at 1185.  See also Nelson v. Secretary of
Labor, 14 FMSHRC 337 (February 1992) (Administrative Law Judge's
dismissal of the UMWA's complaint against MSHA, pursuant to the
Commission's holding in Wagner).

     The Commission approached the issue of MSHA's liability by
analyzing the construction of the Act to determine whether the

Secretary had consented to be sued.  First, in examining the
words of sections 105(c) and 3(f)(defines "person" as any
individual, partnership, association, corporation, firm,
subsidiary of a corporation, or other organization), the
Commission found no reference to the government or any
governmental entity in the term "person," and relied on a
principle of statutory construction that common usage of "person"
does not include the sovereign, and statutes using the term are
ordinarily construed to exclude it.  Wagner, 12 FMSHRC at 1184.
In determining that there is no waiver of sovereign immunity in
the Act, the Commission cited Rushton Mining Co. v. Secretary of
Labor, 11 FMSHRC 759, 766 (May 1989), noting that "it is well
settled that the United States, as the sovereign, is immune from
suit except as it consents to be sued and that waivers of its
immunity must be unequivocally expressed." Wagner, 12 FMSHRC at
1184.  Consequently, the Commission concluded that, "the
definitions set forth in the Act and the enforcement scheme of
section 105(c) indicate that Congress regarded the Secretary and
MSHA as separate and distinct from the population covered by the
term 'person.'" Id. at 1185.

     The complainants argue that Wagner is not applicable to the
instant proceedings, in that section 103(g)(1) of the Act does
not accord protection to miners who make oral complaints as in
Wagner, whereas protection is accorded to the written complaints
herein at issue.  This argument is unpersuasive, since the
language of the Act makes no such distinction, nor would such an
interpretation of section 103(g)(1) be consistent with the broad
protection against discrimination provided to complainants in
section 105(c).  While the narrow scope of section 103(g)(1)
specifically prescribes procedures by which the Secretary shall
maintain the confidentiality of complainants who raise health
and/or safety violations in writing, the broad language of
section 105(c)(1) clearly expresses Congressional intent that the
universe of protected activity be inclusive of oral and written
complaints: "[n]o person shall . . . in any manner discriminate
against . . . any miner . . . because such miner . . . has filed
or made a complaint . . . . (emphasis added)" 30 U.S.C. section
815(c)(1). [4]/

     Moreover, the issue of MSHA's sovereign immunity from 105(c)
liability was not before the Court in Wagner, and the Court
affirmed the Commission's decision which held, in part, that

MSHA, having not expressly waived its sovereign immunity, is not
a "person," as included in section 105(c).  Accordingly, as the
Commission decision remains the prevailing law, it is concluded
that MSHA is not a "person" subject to liability under section
105(c) of the Act, and that portion of the complaints, herein
seeking relief against MSHA for alleged violations of sections
103(g)(1) and 105(c) of the Act, is hereby dismissed.

        Proceedings against Individual Employees of MSHA

     The Commission's holding in Wagner, that "MSHA employees and
agents are not 'persons' subject to the provisions of section
105(c), and thus . . . cannot be sued individually under section
105(c),"  Wagner, 12 FMSHRC at 1185, was premised upon its
conclusion that, had Congress intended to render MSHA employees
susceptible to section 105(c) suits, it would have expressly
stated so; moreover, to hold otherwise would run afoul of the
enforcement scheme of section 105(c) respecting MSHA's
investigatory role/authority, as well as relief awarded and
sanctions imposed for violations. Id. at 1185, 1186.  This
holding was upheld by the Court in Wagner, which concluded that
"[f]inding no indication in the statutory framework of an intent
by Congress to depart from the accepted usage of the term
'person,' . . . MSHA employees acting within the scope of their
authority are agents of the sovereign, and therefore cannot be
liable under section 105(c)."  Wagner, at *6.

     The complainants' argument that the rules of respondent
superior under Alabama state law apply to the facts herein at
issue is equally unpersuasive since, as the Commission
recognizes, the cause of action, if any, does not arise under the
Act. [5]/  In concluding that it finds no cause of action under
section 105(c) for abuse of power by MSHA employees, the
Commission notes "that an employee whose action is in violation
of his or her duties is not immune from civil suit and possible
punitive action.  It is well settled that individuals wronged by
federal agents through abuse of their power may have a cause of
action for damages under state law." Wagner, 12 FMSHRC at 1186.
See also Wagner, 1991 U.S. App. LEXIS 26336, at *7 (the Court
recognized that claims of injury resulting from the wrongful acts
or omissions of government employees acting within the scope of

their employment are properly brought under the Federal Tort
Claims Act, and analyzed according to the rules of respondent
superior in the state wherein the alleged wrong occurred).

     In an alternative analysis, subjecting section 105
provisions to Virginia rules of respondent superior, the Court
then examined the alleged misconduct of the MSHA employee in the
case before it, and characterizing that behavior as an exercise
of "poor judgment," concluded that "[i]n the absence of a
statutory prohibition against such disclosure, there is no sound
basis for the court to conclude that Inspector Sloce exceeded the
bounds of his statutory authority by communicating Wagner's
identity to Wayne Fields and Clinchfield Coal."  Id. at *6, *7.
The Court did not address the question of whether MSHA employees
acting outside the scope of their authority are subject to suit
under section 105(c), and it is unnecessary to pursue that
question here, since I find nothing in the behavior of the MSHA
employees in question which is materially distinguishable from
the conduct in Wagner, or which would lead me to conclude that
these individuals acted outside the scope of their authority.
Finally, the Court made clear that it was rejecting a conclusion
that Congress intended for section 105 enforcement procedures to
be governed by applicable state rules of respondent superior
under the Federal Tort Claims Act, Id. at *7, and the Court's
reasoning is equally valid against the complainants' arguments in
the instant complaints.

     Accordingly, as held by the Commission in Wagner, and
affirmed by the Court, MSHA employees cannot be sued
individually under Section 105(c), and that portion of the
instant complaints alleging liability of MSHA employees under
105(c) is dismissed. [6]/




                                Jacqueline R. Bulluck
                                Administrative Law Judge







Distribution:

Judith Rivlin, Esq., UMWA, 900 15th Street, Washington, DC 20005
(Certified Mail)

Mr. Tom Meredith, MSHA Supervisor, District 11, 135
Gemini Circle, Suite 213, Birmingham, AL 35209 (Certified
Mail)

Mr. Michael J. Lawless, MSHA District 11 Manager, 135 Gemini
Circle, Suite 213, Birmingham, AL 35209 (Certified Mail)

Mr. Frank Young, MSHA District 11 Asst. Manager, 135 Gemini Circle,
Suite 213, Birmingham, AL 35209 (Certified Mail)

Judy McCormick, c/o MSHA, 135 Gemini Circle, Suite 213,
Birmingham, AL 35209-5842 (Certified Mail)

Yoora Kim, Esq., Office of the Solicitor, Department of Labor,
4015 Wilson Boulevard, Room 400, Arlington, VA 22203
(Certified Mail)


                                /fb


**FOOTNOTES**

     [1]:/  Although the UMWA filed its complaint (Docket No.
SE 97-18-D under section 105(c)(2), it is clear from the
pleadings that it intended to sue under section 105(c)(3), which
procedural error is without prejudice to the Secretary, and is
therefore deemed immaterial.

     [2]:/  Dennis Wagner sought to hold MSHA employees liable
for disclosing to the operator that he (Wagner) had reported a
safety violation to MSHA during a mine inspection.

     [3]:/  Because these cases are before me pursuant to motions
to dismiss, the complainants' allegations are treated as true.
Goff v. Youghiogheny & Ohio Coal Co., 7 FMSHRC 1776 (November
1985).

     [4]:/  According to the pleadings, the Secretary did comply
with section 103(g)(1), in that the letter that had been sent to
MSHA had been sanitized to remove all names and references to
individual miners before dissemination at the accident
investigation team pre-inspection meeting.

     [5]:/ Respondent superior: literally meaning "let the master
answer," this maxim means that a master is liable in certain
cases for the wrongful acts of his servent, and a principal for
those of his agent.  Black's Law Dictionary 1311, 1312 (6th ed.
1990).

     [6]:/ Inasmuch as the Court's holding in Wagner is based on
the sovereign immunity of MSHA and its employees, neither
expressly waived by statutory construction nor legislative
intent, it is unnecessary to address the remaining arguments.