.
THUNDER BASIN COAL COMPANY
December 12, 1995
WEST 94-370
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
December 12, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 94-370
Petitioner : A.C. No. 48-00977-03525
v. :
: Black Thunder Mine
THUNDER BASIN COAL COMPANY, :
Respondent :
DECISION
Before: Judge Amchan
Factual Background[1]
In September 1990, eight miners employed at Thunder Basin's
surface coal mine near Wright, Wyoming, signed a form designating
Dallas Wolf and Robert Butero as their representatives under
section 103(f) and Part 40 of Volume 30 of the Code of Federal
Regulations. The principal function of a miners' representative
under these provisions is to accompany MSHA personnel during their
inspections of an operator's worksite. Such representa-tives may
also obtain an immediate inspection of a mine pursuant to section
103(g) of the Act.
Respondent refused to recognize Wolf and Butero as miners'
representatives and refused to post the form so designating them
as required by 40 C.F.R. �40.4. Wolf and Butero have never been
employees of Thunder Basin. Wolf is the principal organizer of
the United Mine Workers of America (UMWA) in the Powder River
Basin. Butero is a health and safety official of the UMWA.
Respondent's Black Thunder mine is non-union and the
company has successfully resisted UMWA attempts to organize
its workforce. In 1987 the UMWA lost an election conducted
pursuant to the National Labor Relations Act by a vote of 307
to 56. The company regarded the designation of Wolf and
Butero as miners' representatives to be motivated primarily,
if not solely, by the desire of a few of its miners to assist
the UMWA in its organizational efforts.
In March 1992, Thunder Basin sought and obtained an
injunction from the United States District Court for the
District of Wyoming prohibiting MSHA from enforcing the Part
40 designation of Wolf and Butero. However, both the United
States Court of Appeals for the Tenth Circuit and the United
States Supreme Court held that the District Court did not have
jurisdiction to issue the injunction, Thunder Basin Coal
Company v. Martin, 969 F.2d 970, 973 (10th Cir. 1992); Thunder
Basin Coal Co. v. Reich, 510 U.S. __, 114 S.Ct. 771, 127
L.Ed.2d 29 (1994).
In March 1993, the Commission, in Kerr-McGee Coal
Corporation, 15 FMSHRC 352, decided that designation of the
same union officials as miners' representatives at another
non-union mine in the same county as the Black Thunder mine
was not invalid, per se. A citation issued to Kerr-McGee
for failure to post the form so designating Wolf and Butero
was affirmed.
On January 21, 1994, two days after the Supreme Court
decision, and an MSHA internal communication regarding that
decision, Thunder Basin's President, James A. Herickhoff,
wrote the MSHA District Manager in Denver, Colorado. He
requested that the agency issue a citation to resolve the
miners' representative issue at the Black Thunder mine.
Herickoff stated further that Respondent expected MSHA to
specify an abatement time "sufficient for the parties to
pursue r esolution of this important issue before the
Commission and the courts."
MSHA inspector James A. Beam issued such a citation (No.
3589040) at 8:10 a.m. on February 22, 1994. The citation
required abatement within 15 minutes. When this period
elapsed without compliance by Respondent, Beam issued Order
No. 3589101 pursuant to section 104(b) of the Act. The order
did not require Respondent to withdraw miners from any area of
the mine or cease any of its operations. Within hours Thunder
Basin filed an application for temporary relief with the
Commission and an application for an expedited hearing on the
application.
**FOOTNOTES**
[1]:I regard the material facts in this case to be
undisputed. The specific findings herein are based on portions
of the record identified in my summary decision of May 11, 1994,
16 FMSHRC 1070, 1072-74. These findings were incorporated by
reference in my August 24, 1994 decision on remand, 16 FMSHRC
1849.
On March 11, 1994, MSHA's Office of Assessments informed
Respondent of its intention to assess a $2,000 daily penalty
for each day that the company failed to post the miners'
representative form. After my March 25, 1994, decision
denying temporary relief, 16 FMSHRC 1033, MSHA informed
Respondent on March 27, 1994, that assessment of the daily
penalty would commence that day.
On March 28, 1994, Thunder Basin filed a petition for
discretionary review of my March 25, 1994 decision. The
Commission affirmed the decision on April 8, 1994, 16 FMSHRC
671. On being apprised of the Commission's decision on April
8, Thunder Basin posted the miners' representative notice.
The denouement of the litigation regarding the miners'
representative can be summarized as follows:
August 24, 1994, ALJ decision affirming the citation/order
in this case, 16 FMSHRC 1849;
December 2, 1994, Court of Appeals for the District of
Columbia affirms Review Commission decision in Kerr-McGee
v. FMSHRC, 40 F.3d 1257 (D.C. Cir. 1994);
June 7, 1995, U.S. Court of Appeals for the Tenth Circuit
affirms Commission decision in the instant case, Thunder
Basin Coal Co v. FMSHRC, 56 F.3d 1275 (10th Cir. 1995)[2].
June 26, 1995, U.S. Supreme Court declines to grant
certiorari in Kerr-McGee, __ U.S. ___, 115 S.Ct. 2611,
132 L. Ed. 2d. 854 (1995).
The Secretary has proposed a penalty of $360 for the initial
citation and a daily penalty of $2,000 for Respondent's failure
to timely abate that citation. The Secretary's Complaint asks
for a total penalty of $26,360. The $2,000 daily penalty is
proposed from March 27, 1994, to April 8, 1994. This is the
period from which MSHA informed Respondent that it would assess
a daily penalty to the date the miners' representative form was
posted.
Assessment of A Civil Penalty
Section 110(b) of the Act provides that an operator who
fails to correct a violation for which a citation has been issued
within the period permitted for its correction may be assessed
a civil penalty of not more than $5,000 for each day during
which such failure or violation continues. The Commission is
given authority to assess all civil penalties provided for in
the Act in section 110(i).
The latter section directs that the Commission shall
consider six criteria in assessing penalties: the operator's
history of previous violations, the size of the operator, the
negligence of the operator, the gravity of the violation, the
effect of the penalty on the operator's ability to stay in
business and the good faith of the operator in achieving rapid
compliance after being notified of the violation. The parties
have stipulated as to four of the criteria.
Thunder Basin had 23 violations of the Act in the two
years preceding the posting violation. It had no prior
violations of the cited provisions, nor any prior penalties
assessed pursuant to section 110(b). It is a large operator
and a $26,360 penalty would not affect its ability to stay
in business. The parties also stipulated that the gravity of
the violation was "low," that it was not "significant and
substantial," that no lost workdays could be expected and
that there was no likelihood of injury due to the violation.
Thus, the only criteria at issue are the good faith of
Respondent in achieving abatement and its negligence. As to
the latter, Respondent did not negligently fail to post the
miners' representative notice, it intentionally did not do so.
The real question is Respondent's "good faith."
A better way of phrasing the issue, however, is whether
Respondent should be assessed a substantial civil penalty for
its insistence on exhausting all avenues of judicial review
prior to complying with the citation. The Secretary contends
that Thunder Basin's course violates the fundamental
enforcement scheme of the statute. As the Secretary points
out, that scheme requires an operator to abate a citation
within the time set by MSHA, even if it contests the citation.
Further, the Secretary argues that an operator who stands upon
his rights, waiting for an adjudication of the citation's
validity, assumes the risk that if the citation is upheld that
it will be assessed the daily penalties provided for in
section 110(b).
Respondent argues that the citation in this case is quite
different than the typical MSHA citation. First, it asserts
that the health and safety of its employees was not affected
by its failure to post the miners' representative notice.
Secondly, it argues that given the harm done to its rights
under the National Labor Relations Act to fairly challenge the
UMWA's organizational drive, it was entitled to wait until the
Commission ruled on its application for temporary relief
before posting the notice.
The difficulty with Respondent's position is that the
Commission had already spoken on the issue in this case prior
to the issuance of instant citation and order. Respondent, at
numerous junctures, has argued that the facts in its case were
distinguishable from those in Kerr-McGee. I rejected that
argument in my March 25, 1994, decision on Respondent's
application for temporary relief, 16 FMSHRC 1033 at 1037-38.
I reiterate my belief that any fair reading of the
Kerr-McGee decision establishes that the Commission was fully
aware that the designation of Wolf and Butero as miners'
representatives was made in part, if not primarily, to assist
the UMWA organizational drive at Kerr-McGee. Kerr-McGee is
indistinguishable from the instant matter. This being the
case, I conclude that MSHA was acting reasonably in refusing
to extend the abatement date to allow Thunder Basin to
adjudicate the validity of the citation issued to it on
February 22, 1994, Martinka Coal Co, 15 FMSHRC 2452 (December
1993).
**FOOTNOTES**
[2]:The Commission did not grant Respondent's petition
for review of the ALJ decision, which became a final order of
the Commission. Assessing the penalty in this case requires
a balancing of two considerations. First is what I conclude
was Thunder Basin's insistence of getting a "second bite of
the apple" in the adjudication process despite the Commission's
decision in Kerr-McGee. As I stated in my March 25, 1994 Order
Denying Temporary Relief, this is analogous to requesting a
stay of the Kerr-McGee decision, which is expressly prohibited
by section 106(c) of the Act.
On the other hand, I agree with Respondent that this is
not a case in which its failure to abate necessarily exposed
miners to hazards. Indeed, I conclude that whether it did so
is purely speculative. Only if Wolf or Butero could have
apprised MSHA of hazards at Respondent's mine of which miners
at the site would not have been aware would Respondent's
noncompliance have posed a threat to its employees. Although
such a possibility existed, I conclude that any danger arising
from Respondent's failure to abate was very remote.
Finally,I have given consideration to Respondent's
argument, at pages 14-15 of its brief, that in part it was
relying on assurances from the Commission and Tenth Circuit
that it would not be subject to daily penalties if it chose to
litigate rather than abate. The decisions on which it relies,
Mid-Continent Resources, Inc., 12 FMSHRC 949 (May 1990) and
the Tenth Circuit decision overturning the injunction, predate
the Commission's decision in Kerr-McGee. Once the Commission
decided Kerr-McGee, Respondent's reliance on these assurances
was unreasonable.
Balancing the aforementioned factors, I conclude that an
appropriate penalty is $100 per day from March 27, 1994 to
April 8, 1994; a total penalty of $1,300. Respondent could
have been assessed a daily penalty commencing February 22,
1994. However, MSHA proposed a daily penalty from March 27,
and I conclude that the $2,000 per day proposal is much too
high given the low gravity of the violation.
ORDER
Respondent is hereby ordered to pay to the Secretary of
Labor the sum of $1,300 within 30 days of this decision. Upon
such payment this case is dismissed.
Arthur J. Amchan
Administrative Law Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202
(Certified Mail)
Timothy M. Biddle, Esq., Thomas C. Means, Esq., Crowell & Moring,
1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004-2595
(Certified Mail)
Thomas F. Linn, Esq., Thunder Basin Coal Co., 555 17th St.,
Suite 2000, Denver, CO 80202
(Certified Mail)
/lh