1. MINE SAFETY CASES - NEWS YOU CAN USE FROM RECENT COURT AND COMMISSION DECISIONS presented by Timothy M. Biddle Crowell & Moring LLP Washington, D.C.

2. 2 The Federal Mine Safety and Health Review Commission Special Court that hears most kinds of Mine Safety Act disputes Exclusive Jurisidiction Offices in Washington, D.C. and Denver

3. 3 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

4. 4 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.govwww.fmshrc.gov

5. 5 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

6. 6 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

7. 7 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 (7 th Cir. 2002) Recent Decisions Independent Contractors

8. 8 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

9. 9 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

10. 10 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

11. 11 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 (11 th Cir May 9, 2003) (unpub.). Recent Decisions Discrimination Remedies – Temporary Reinstatement

12. 12 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

13. 13 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

14. 14 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