Petition — Higgins v. Marshall

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FILED

IN THE FEB 20 1979

Supreme Court of the United Slain |

October 78. 1978

No. .. 7.8... [288

JEssE HiGGINs, PAUL GOWER and WILLIAM GIPSON,

Petitioners,

vs.

Ray MARSHALL, Secretary of Labor, and OLD BEN

CoaAL COMPANY, a division of SOHIO PETROLEUM

CORPORATION, Respondents.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

ADAMS, DuQUE & HAZELTINE

CHARLES GRIFFIN CALE

STEVEN B. JACOBSON

523 West Sixth Street

Los Angeles, California 90014

THOMAS GUMBEL

Runge & Gumbel

Post Office Box 533

Collinsville, Illinois 62234

Attorneys for Petitioners

Of Counsel:

HARRISON COMBS

General Counsel

Mary Lu JORDAN

United Mine Workers of America

900 Fifteenth Street, N.W.

Washington, D.C. 20005

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

INDEX

Page

EE 1

RG SEE a 2

i nieniicrncicctussesccesseseonesserses 2

EE EES ce 2

nace cncceccccesecenensesesece 2

The Legislative Background ..............................-- 2

ESS SOS 5

Reasons for Granting the Writ ................................ 9

I. The Question Presented by This Petition Is

an Important Question of Federal Law

Which Should Be Settled by This Court ...... 9

Il. The Decision of the Court of Appeals Is

Neen ee a. ecsnncapecses 11

Ill. The Decision of the Court of Appeals Con-

flicts With a Fourth Circuit Decision, and

Conflicts in Principle With Numerous De-

cisions of This and Other Courts .................. 13

Nee sn a cendasepecenenesenasers 16

Appendix A. Opinion of the Court of Appeals ...... la

Appendix B. Order of the Court of Appeals Deny-

SEE 13a

Appendix C. Order of the Court of Appeals Deny-

I os cnencnsssncacsaccescsrencnsereees l4a

Page

Appendix D. Order of the District Court Granting

and Denying Motions for Summary Judgment and

I OD NO Sihenacanis cece neeiivsccncccieaicicasuaonses 15a

Appendix E. Final Findings of Fact, Conclusions

of Law and Order of the Department of Labor ....16a

Appendix F. Sections 203(a) & (b) of the Federal

Coal Mine Health and Safety Act of 1969, 30

U.S.C. §§843(a) & (b) (1976)... eee 22a

iii.

TABLE OF CITATIONS

Cases Page

Bozwich v. Mathews, 562 F.2d 33 (C.A. 10, 1977)

Collins v. Mathews, 547 F.2d 795 (C.A. 4, 1976).. 14

Freeman Coal Mining Corp. v. IBMA, 504 F.2d

pT Ay. RRs ee rae rere 15

Lucas Coal Co. v. Morton, 522 F.2d 581 (C.A. 3,

RU mira cst acacia piabebbihanaiiilainnetinditiiibanests 15

Masters Local 1740 v. NLRB, 159 U.S. App. D.C.

11, 486 F.2d 1271 (1973), cert. denied, 416

i Ne I calaiict de cecthplakesconindtientincbbvccolbnniitaintes 16

Matala v. Marshall, N.D.W.Va. Civ. No. 78-0035

eo ID dicsinicdineehdanbclesieineetipumntiicianancnstinnicin 14

Morris v. Mathews, 557 F.2d 563 (C.A. 6, 1977) .. 15

Mullins v. Andrus, C.A.D.C. No. 77-1086 (pend-

UN > ics cdabesiniiitiadenaeeniniaintha thos astcnienenitooeiiimecmanabaee 14

Mullins v. Marshall, D.D.C.Civ.No. 78-1779

INLD» icclesissdh panic cision scielasnaneienenatlcgeladnaaivone 14

Munsey v. Morton, 165 U.S. App. D.C. 379, 507

ak So ) BRI RR REALS PES Ss Nee 15

NICOA v. Kleppe, 423 U.S. 388 (1976) ................ 15

NLRB v. Allis-Chalmers Manufacturing Co., 388

RUPEE UTENED. ‘ckerchsmniocnbipta tabahubulatieessibiovseaenseoenss 16

Old Ben Coal Corp. v. IBMA, 523 F.2d 25 (C.A.

Fie Re Caienecettdliconkeehipictileideiinicavesinhiotepanitiiticniesiis 15

Paluso v. Mathews, 562 F.2d 33 (C.A. 10, 1977) .. 15

Phillips v. IBMA, 163 U.S. App.D.C. 104, 500

F.2d 772 (1974), cert. denied, 420 U.S. 938

eR RE Sek Se a aE EN 15

iv.

Page

Reliable Coal Corp. v. Morton, 478 F.2d 257 (C.A.

ee eT NORE iy Seda Te 15

Rushton Mining Co. v. Morton, 520 F.2d 716

Ceol: SD, TORR <sctiinctniitiedieebdaubed kite. 15

UMWA v. Andrus, — U.S. App. D.C. —, 581 F.2d

888, cert. denied, 58 L.Ed.2d 321 (1978) .......... 15

UMWA v. Kleppe, 174 U.S.App. D.C. 328, 532

F.2d 1403, cert. denied, 429 U.S. 858 (1976) .... 15

UMWA District 6 v. IBMA, 183 U.S.App.D.C.

352, S68 F.28 TS Cet ee tia. 15

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

CTGFB) sinccnccisacicipeemctecabcieeabaadee agai 3,4, 9

Zeigler Coal Co. v. Kleppe, 175 U.S. App. D.C.

378, FIO FOR SES Tee ccna 15

Statutes:

Federal Coal Mine Health and Safety Act of 1969,

30 U.S.C. § 801 et seq., as amended (1976)

Section 2, 30 U.S.C. § 801 (1976) 00... 3

Section 202, 30 U.S.C. § 842 (1976) 00.0... 3

Section 203, 30 U.S.C. § 843 (1976) 00.0... passim

Title IV, 30 U.S.C. § 901 et seg. (1976) ............ 3

Section 401, 30 U.S.C. § 901 (1976) 00. 3

Section 428, 30 U.S.C. § 938 (1976) —.000 6

Federal Judicial Code, 28 U.S.C. § 1 et seg. (1976)

28 USC. § 12500) CRI deca 2

ae USS. § 13530 (I ket ri

28 USC. § 1937 (00 7

Page

Federal Mine Safety and Health Amendments Act of

1977, Pub.L.No. 95-164, 91 Stat. 1290 (Nov. 9,

1977)

Section 101, 91 Stat. 1290 (Nov. 9, 1977) ........ 2

Miscellaneous:

Department of the Interior, 1976 Annual Report

and Achievements, Mining Enforcement Safety

FE ROESEL IOI ANETTA EN 3, 10

Federal Register-August 1, 1978 ................--..---- 10, 11

House Committee on Education and Labor, Federal

Coal Mine Health and Safety Act (Comm. Print

oa sid i cama sis persuade eemamasnuleres 3

House Report No. 91-563 (Oct. 13, 1969) ........ 9

House Report No. 91-761 (Dec. 16, 1969) ............ 13

“NIOSH Orders Another Mass X-Ray of Coal

Miners,” McGraw-Hill Mine Regulation and

Productivity Report (Aug. 11, 1978) ............ 10, 11

Senate Report No. 91-411 (Sep. 17, 1969) ..4, 12, 13

IN THE

Supreme Court of the United Siates

October Term, 1978

Pe icc deaicshss

JESSE HicGins, PAUL GOWER and WILLIAM GIPSON,

Petitioners,

vs.

Ray MARSHALL, Secretary of Labor, and OLD BEN

CoAL COMPANY, a division of SOHIO PETROLEUM

CoRPORATION, Respondents.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

Petitioners Jesse Higgins, Paul Gower and William

Gipson respectfully pray that a Writ of Certiorari issue

to review the decision of the United States Court of

Appeals for the District of Columbia Circuit entered

in this proceeding on July 25, 1978.

Opinions Below

The Opinion of the Court of Appeals is reported

at 584 F.2d 1035, and is reproduced infra as

Appendix A. Orders of the Court of Appeals denying

rehearing and rehearing en banc are attached as Appen-

dix B and Appendix C, respectively. The unreported

Order of the United States District Court for the District

of Columbia is set out as Appendix D. The unreported

decision of the Department of Labor Administrative

Law Judge is included as Appendix E. ;

—2--

Jurisdiction

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1) (1976). The decision of the Court of

Appeals was entered on July 25, 1978, and a timely

petition for rehearing was denied on September 22,

1978. By Order of the Chief Justice dated December

15, 1978, the time for filing this petition was extended

to February 19, 1979.

Question Presented

Can employers of black lung victims force them

to suffer substantial wage losses if they exercise a

federal statutory right to transfer from jobs exposing

thein to potentially fatal levels of respirable coal dust,

despite a pay protection provision, 30 U.S.C. § 843(b)

(3) (1976), designed by Congress “to insure” that par-

ticipants in the transfer program will “suffer no loss

in compensation”?

Statutes Involved

This action involves Sections 203(a) and (b) of

the Federal Coal Mine Health and Safety Act of 1969,

30 U.S.C. §§ 843(a) & (b) (1976), which are set out

infra as Appendix F.'

Statement of the Case

The Legislative Background

This action arises out of Congressional efforts to

prevent the crippling and often deadly effects of coal

workers’ pneumoconiosis, commonly known as black

'The 1969 Act was renamed the Federal Mine Safety and

Heal.a Act of 1977 by § 101 of the Federal Mine Safety

and Health Amendments Act of 1977, Pub.L. No. 95-164,

91 Stat. 1290 (Nov. 9, 1977). The 1977 Amendments Act

made no changes in the language of § 843.

pre:

lung disease. In 1969, Congress formally recognized

black lung as a separate clinical entity, and as a

national health problem, in §§ 2 and 401 of the Federal

Coal Mine Health and Safety Act of 1969 (“1969

Act”), 30 U.S.C. §§ 801 & 901, as amended (1976).*

In Title IV of that Act, Congress created the program

of compensation payments for black lung victims

and their survivors which subsequently became the

subject of this Court’s decision in Usery v. Turner

Elkhorn Mining Co., 428 U.S. 1 (1976) (“Turner

Elkhorn’). 30 U.S.C. § 901 et seqg., as amended

(1976). At the same time, in order to reduce and

hopefully eliminate future incidence of the dreaded

disease, Congress placed limits on the amount of respira-

ble coal dust permitted in the ambient air of the

nation’s mines, and also provided that miners who

were developing black lung could transfer to positions

in areas where respirable dust levels were safe even

for them. 30 U.S.C. §§ 842 & 843(b)(1-2) (1976).

2Black lung disease “affects a high percentage of American

coal miners with severe, and frequently crippling chronic respira-

tory impairment. The disease is caused by long-term inhalation

of coal dust.” Usery v. Turner Elkhorn Mining Co., 428 U.S.

1,6 &n.1 (1976).

It was originally estimated that approximately 100,000 active

and retired coal miners were afflicted. Jd. at 6 n.1. Based upon

that estimate, the Chairman of the House Committee on Educa-

tion and Labor observed that “the likelihood of death from

black lung is twice as great as that of being killed in an

underground coal mine accident.” House Committee on Educa-

tion and Labor, Legislative History, Federal Coal Mine Health

and Safety Act, at 652 (Comm. Print 1970). In reality, by

December 31, 1976, over 360,000 miners or survivors of miners

had been found eligible for federal black lung compensation

payments. Department of the Interior, 1976 Annual Report

and Achievements, Mining Enforcement Safety Administration

(“MESA 1976 Annual Report’), at 24.

3By the end of 1976, black lung benefit payments were

totalling approximately $950 million per year, and over $5

billion in benefits had been paid since the program’s inception.

MESA 1976 Annual Report, n.2 supra, at 24.

tides

Like the restriction upon respirable dust, which this

Court expressly noted in Turner Elkhorn, the transfer

program recognized that “[r]emoving the miner from

the source of coal dust has so far proved the only

effective means of preventing the contraction of pneu-

moconiosis.” Turner Elkhorn, supra, 428 U.S. at 7. A

transferred miner is to remain in the new position “for

such period or periods as may be necessary to prevent

further development of [the] disease,” and to receive

“not less than the regular rate of pay received by

him immediately prior to transfer.” 30 U.S.C. § 843(b)

(1976). The pay protection provision is designed “to

insure” that miners will “suffer no loss in compensa-

tion” as a result of transferring. S.Rep. No. 91-411,

at 49 (Sep. 17, 1969). Congress considered the transfer

program “equal in importance to the dust control sec-

tion for decreasing the incidence and development of

pneumoconiosis.” H.Rep. No. 91-563, at 20 (Oct. 13,

1969).

The present dispute concerns the term “rate” as

it is used in 30 U.S.C. § 843(b)(3) (1976), when

requiring that miners who transfer continue to receive

at least the “regular rate of pay” received “immediately

prior” to transfer. (emphasis added) The question is

whether the “rate” referred to is the “classification

rate” a miner received immediately prior to transfer

(e.g., the machine operators’ rate), or is merely a

miner’s pre-transfer “dollar rate” (e.g., $41.50/day).

If payment of the pre-transfer “dollar rate” is

all that is required, coal mine operators can lawfully

penalize diseased miners who transfer, and can coerce

them to rescind their decisions to transfer, by withhold-

ing contract wage increases to which they would have

been entitled under applicable collective bargaining

abi

agreements in their more hazardous pre-transfer job

classifications. Also, by threatening to deny such in-

creases, mine operators can lawfully discourage black

lung victims from initially accepting transfers. Thus, as

Judge Wright observed below, “[i]n today’s inflationary

economy the practical difference between these interpre-

tations is that the classification rate interpretation will

allow a stricken miner to transfer to a more healthy

environment without fear of sacrificing ever larger

percentages of his compensation, while the dollar rate

interpretation will grant a miner a ‘protection’ so tempo-

rary that it may well be scheduled to disappear even

before the current industry contract expires.” 584 F.2d

at 1040.

Statement of Facts

The three petitioners are Illinois coal miners who

contracted black lung while employed by respondent

Old Ben Coal Company (“Old Ben”). In early 1972,

each exercised his § 843 transfer right. Jesse Higgins

and Paul Gower went f° »m the position of machine

operator to that of tracklayer, while William Gipson,

who has since retired due to disability, became a bottom

laborer a”’2r having previously been a repairman. Imme-

diately prior to their transfers, Higgins and Gower

were, as machine operators, paid at the classification

rate for that position, the dollar rate for which was

$41.50 per day. Immediately prior to his transfer,

Gipson as a repairman was paid at the classification

rate for that position, the dollar rate for which was

likewise $41.50 per day.

Old Ben continued to pay the petitioners $41.50

per day from the date of their transfers through Novem-

ber 11, 1972, when previously-scheduled salary in-

_ oa

creases for machine operators and repairmen were to

take effect under the applicable collective bargaining

agreement. Since November 12, 1972, Old Ben has

paid the petitioners at least $41.50 per day, but has

refused, however, to pay them the increases to which

they would have been entitled by contract in their

old positions. In other words, Old Ben has refused

to compensate them at their pre-transfer classification

rates, although it has paid them at least their pre-trans-

fer dollar rates. As a result, the petitioners have received

substantially less compensation than they would have

received if they had remained in their pre-transfer

positions.*

When Old Ben’s intentions became clear, the peti-

tioners unsuccessfully sought relief from the Department

of Labor pursuant to 30 U.S.C. § 938 (1976). In

a decision dated March 31, 1977, a Labor Department

Administrative Law Judge agreed that adoption of a

“dollar rate” interpretation of § 843(b)(3) would

“plac[e| afflicted miners in the dilemma of choosing

between their wages and their health, thus chilling

‘See 584 F.2d at 1040 n.5. The differences between the

petitioners’ pre-transfer classification rates and the rates received

can be summarized as follows:

Machine rators’

an Rates Losses Due

Dates Repairmen’s Rate Received to Transfer

11/12/72 to $45.75 $41.50 $4.25/day

11/11/73

11/12/73 to $50.00 $42.75 $7.25

11/11/74 se

12/06/74 to $55.00 $47.03 $7.97/d

12/05/75 oe

12/06/75 to $57.20 $48.91 $8.29/da

12/05/76 nied

12/06/76 to $58.92 $50.38 $8.54/da

12/05/77 —

03/27/78 to $73.32 $64.78 $8.54/day

present

any inclination to opt for their health.” (p. 20a, infra)

He further agreed that “in choosing between two wholly

permissible readings of the Act, it would be [his]

duty to accept the reading which fosters the health

of miners.” (p. 21a, infra) However, he read the

“words” of § 843(b)(3) as “clearly” providing, and

as making “a rather clear statement,” that transferring

black lung victims need only continue to receive the

same number of dollars received prior to transfer. (p.

20a, infra)

The Law Judge’s decision was affirmed on appea!

by the District Court for the District of Columbia

on August 18, 1977 (Hart, J.), and by a divided

panel of the Court of Appeals for the District of

Columbia on July 25, 1978 (Robb and Swygert, VJ.;

Wright, C.J., dissenting). Rehearing was also denied,

again with Judge Wright dissenting. The District Court's

jurisdiction was invoked under 28 U.S.C. §§ 1331 and

1337 (1976).

The Court of Appeals majority based its decision

on the “plain words” of § 843(b)(3), which were

seen as “simple and straightforward: ‘a transferring

miner is not to receive less compensation than he

would have received had he not transferred, that is,

not less than the monetary amount he was receiving

‘immediately prior to transfer’.” 584 F.2d at 1037.

It saw the only applicable rule of statutory construction

as being that courts “must give the words of an enact-

ment their ordinary meaning.” Jd. The majority found

it unnecessary “to resort either to any additional rule

of statutory construction or to the legislative history.”

Id.

In dissent, Judge Wright saw the majority’s ultimate

conclusion as contrary to “the majority’s own explana-

tion of its position,” since it claimed to be holding

that “a transferring miner is not to receive less compen-

sation than he v.ould have received had he not trans-

ferred,” while in reality it was allowing Old Ben to

pay the petitioners substantially less than they would

have received in their former positions. 584 F.2d at

1041. Judge Wright found the majority’s “unsupported”

and “bald assertions that regular rate of pay can mean

only dollar rate of pay,” which were the sole basis

for its conclusion that the statutory language was

“clear,” to be “singularly unconvincing.” Jd. “The ma-

jority never addressed the undisputed fact that the

term ‘rate of pay’ is commonly used in the sense

of a classification rate or job rate, rather than dollar

rate,” as with, for example, GS rates. Id. Nor did

the major ty “answer the argument that a miner’s classi-

fication rate of pay is clearly more ‘regular’ than his

dollar rate,” since dollar rates vary from year to year.

Id. In Judge Wright’s view, “[t]he classification rate

interpretation—that if a miner transfers from being

a machine operator to being a repairman his ‘old

rate of pay’ is the rate for machine operators and

his ‘new rate’ is the rate for repairmen—is not only

a logical interpretation, but the only one that will

not frustrate Congress’ intent to prevent transfers from

resulting in ‘loss in compensation.’ ” 584 F.2d at 1042.

Judge Wright saw the legislative history as “man-

dat[ing] the classification rate interpretation urged

by the miners.” 584 F.2d at 1041.

a on

REASONS FOR GRANTING THE WRIT

I. The Question Presented by This Petition Is an

Important Question of Federal Law Which Should

Be Settled by This Court.

The question presented by this petition—whether

the nation’s black lung victims can be financially penal-

ized for participating in the “job transfer” program

created by Congress to prevent disabling and possibly

fatal aggravation of their sickness—is of exceptional

importance to the effectiveness of that program, and

thus is an important question of federal law which

should be decided by this Court. Congress considered

the transfer program “equal in importance to the [re-

spirable| dust control [program] for decreasing the

incidence and development of pneumoconiosis.” H.Rep.

No. 91-563, at 20 (Oct. 13, 1969); see Turner Elkhorn,

supra, 428 U.S. at 7-8. The answer to the question

of whether participants in that program can be finan-

cially penalized is one which will significantly affect

the number of afflicted miners who will exercise that

right.

As indicated by the Administrative Law Judge below,

allowing those who transfer to suffer wage losses places

“afflicted miners in the dilemma of choosing between

their wages and their health, thus chilling any inclina-

tion to opt for their health.” (p. .20a, infra) That

observation “is overwhelmingly confirmed by experi-

ence,” for as noted in the Court of Appeals below,

with “most” mine operators interpreting the statute

as permitting losses in compensation, “less than 20

percent of the eligible miners have taken advantage

of the option to transfer to more healthy job environ-

—_—

ents.”"” 585 F.2d at 1042 & n.14; see also 584

F.2d at 1040. The size of potential wage losses is

large, as indicated here where the petitioners “were

receiving 17% less compensation in 1977 than they

would have been receiving had they chosen continued

exposure to coal dust.” 584 F.2d at 1040 n.5. The

question is whether those who transfer must accept

“a significant loss in compensation.” 584 F.2d at 1040

(emphasis added).

Thousands of this nation’s citizens are deeply affected

by that question. Over 6,000 coal miners have already

been certified as eligible for transfers (n.5, below),

and the National Institute for Occupational Safety and

Health (“NIOSH”) has recently ordered another

“round” of x-rays of all underground coal miners with

at least three years’ experience, to locate those who

have become eligible since the two previous “rounds”

of 1970-71 and 1973-75.° NIOSH has also drafted

new transfer eligibility standards in light of increased

medical knowledge, and estimates that in addition to

however many miners would be found eligible during

the upcoming “round” if current standards were fol-

lowed, 2,200 more would be eligible under those now

5As of December 31, 1976, 5,830 black lung victims had

been found eligible for transfers, but only 1,190 (20.4%)

had exercised that right, and only 400 (6.9%) remained

in their new positions. MESA 1976 Annual Report, n.2 supra,

at 25. Unpublished figures provided to petitioners’ counsel by

Joseph Lamonica, Chief of the Health Division of the Labor

Department’s Mine Safety and Health Administration, indicate

that 6,480 miners had been found eligible for transfers by

December 31, 1977, that 1,215 (18.8%) had chosen to transfer,

and that 320 (4.9%) remained in their post-transfer positions.

*““NIOSH Orders Another Mass X-Ray of Coal Miners,”

McGraw-Hill Mine Regulation and Productivity Report, at 6

(Aug. 11, 1978); see 43 Fed. Reg. 33713-20 (Aug. 1, 1978).

—

proposed.’ And sadly, there will be yet more black

lung victims in the future. To all of these people,

the answer to the question here presented may literally

be the difference between life or death.

Moreover, it is not just the afflicted miners who

are affected. To their dependents, this action presents

the question of whether their breadwinner must choose

between significant and certain wage losses, and a

risk of premature disability and painful death, with

consequent personal loss and premature termination

of earnings. To taxpayers, there is the question of

whether it will be necessary to pay millions of dollars

in black lung and other benefits because afflicted miners

have had to choose between their wages and their

health, have chosen their wages when faced with that

“dilemma,” and have lost their health and perhaps

their lives as a result.* Indeed, the very human ques-

tion here presented is whether federal law should or

should not be interpreted in a manner, the inevitable

result of which will be the painful death of hundreds

if not thousands of coal miners, and the painful dis-

ablement of thousands more.

II. The Decision of the Court of Appeals Is Clearly

Wrong.

The question presented by this petition not only

is an important question of federal law, but also is

an important question which was wrongly decided by

the Court of Appeals’ majority below. Congress simply

™NIOSH,” n.6, supra; 43 Fed. Reg. 33762-63 (Aug. 1,

1978).

8See nn. 2 & 3, supra, indicating that over 360,000 miners

and survivors of miners had been found eligible for black

lung benefits by December 31, 1976, and that such payments

were then totalling approximately $950 million per year.

did not, in a landmark statute designed to preserve

their health and safety, “condemn miners suffering from

the dread black lung disease . . . to choose either

continued exposure to levels of coal dust that will

aggravate their affliction or a significant loss in com-

pensation.” 584 F.2d at 1039-40. Chief Judge Wright’s

dissenting opinion in the Court of Appeals, which

is reported at 584 F.2d 1039-1044, clearly and com-

pletely indicates why the petitioners should have pre-

vailed there. They would underscore three points made

in Judge Wright’s dissent.°

First, the decision of the panel majority is predicated

upon an obviously erroneous finding that the language

of § 843(b)(3) is “clear,” supposedly because the

term “rate of pay” has only one “ordinary meaning.”

584 F.2d at 1037. As Judge Wright points out, “[t]he

majority never addressed the undisputed fact that the

term ‘rate of pay’ is commonly used in the sense

of a classification or job rate, rather than dollar rate.”

584 F.2d at 1041. Federal civil servants are commonly

described as being paid at particular “GS rates,” trainees

in skilled crafts are commonly described as being paid

the “apprentice rate,” experienced plumbers are com-

monly described as being paid the “journeymen’s rate,”

etc. Just as in other contexts, letters are mailed at

the “first-class postage rate” and the like. In fact,

as Judge Wright indicates, the majority used the term

“rate” in the very sense of a “classification rate” right

in its own opinion. 584 F.2d at 1041 n.9. The

1969 Act was drafted by the standing Congressional

iabor committees, which are particularly familiar with

various uses of the term “rate.”

*Some references in the dissent to S.Rep. No. 91-411 are

misprinted in the West Reporter as references to “S.Rep.No.

pee. a and “S.Rep.No. 94-114.” See the dissent’s footnotes

4 an .

ome | 3

Second, the majority never addressed the fact that

§ 843(b)(3) does not just require payment of the

pre-transfer “rate of pay,” but of the “regular” pre-

transfer rate. “[A] miner’s classification rate of pay

is clearly more ‘regular’ than his dollar rate.” 584

F.2d at 1041. Dollar rates change annually, but miners

retain the same classification rates year after year—

particularly those miners most experienced and thus

most likely to have contracted black lung.

Finally, the majority decision is obviously contrary

to the 1969 Act’s legislative history, which not only

indicates that those who transfer are to “suffer no

loss in compensation,” but also declares that the 1969

Act is to “be construed liberally when improved health

or safety to miners will result.” S.Rep. 91-411 at 49

(Sep. 17, 1969); H.Rep. No. 91-761 at 63 (Dec.

16, 1969). Under the decision of the panel majority,

miners afflicted with black lung will, directly contrary

to Congressional intent, suffer a significant “loss in

compensation” if they transfer. Thus, afflicted miners

who must decide whether to accept or retain transfers

are faced with a choice of either their wages or a

healthful work environment. Such is hardly a “liberal”

construction of § 843(b)(3) which will result in “im-

proved health” to miners.

Ill. The Decision of the Court of Appeals Conflicts

With a Fourth Circuit Decision, and Conflicts in

Principle With Numerous Decisions of This and

Other Courts.

Still another reason review should be granted is

that the decision below conflicts with numerous de-

cisions of other courts. Most importantly, the holding

that black lung victims continue to receive the same

“pay rate” if they merely continue to receive the same

number of dollars is directly contrary to the Fourth Cir-

cuit’s holding in Collins v. Mathews, 547 F.2d 795,

799 (C.A. 4, 1976). There the Fourth Circuit held that

a black lung victim who was paid the same number of

dollars, and whose “earnings did not rise from year to

year as did those of his co-workers,” had indeed suf-

fered a loss in compensation and was no longer receiv-

ing the same “wage rate.” 7d. Because “his earnings

did not rise from year to year as did those of his

co-workers,” the Fourth Circuit held that the afflicted

miner’s “real wage rate reflect[ed] a decrease in “earn-

ings.” Id,

To be sure, the “pay rate” dispute in Collins arose

under the black lung benefits program rather than

the black lung transfer program. But that only illustrates

the fact that the instant question is significant even

beyond the very important issue of whether the

black lung transfer program is to be _ effective.’

Moreover, the significance of the decisional conflict is

heightened by its being between the District of Colum-

bia and Fourth Circuits. Irrespective of the specific

statutory context, appeals from most black lung “rate

of pay” decisions can be made to courts in either

of those two Circuits. Mine operators can appeal to

the District of Columbia courts, as the heads of all

relevant administrative agencies are located in the Dis-

trict of Columbia. At the same time, most aggrieved

miners can appeal to Fourth Circuit courts because

The “rate of pay” question is presented in the context

of the transfer program in at least three other pending cases,

Mullins v. Andrus, C.A.D.C. No. 77-1086, Mullins v. Marshall,

D.D.C. Civ. No. 78-1779, and Matala v. Marshall, N.D.W.Va.

Civ. No. 78-0035(W). Also, the parties in at least three addi-

tional disputes have agreed to abide by the ultimate result

here.

those same agencies, and most of the nation’s mine

operators, are located in the Fourth Circuit states of

West Virginia and Virginia. Thus, who will ultimately

prevail in most such cases will be determined by who

is fortunate enough not to prevail in agency proceedings.

See also virtually every other decision under the

1969 Act, indicating that contrary to the decision below,

the 1969 Act’s provisions are to be given a liberal con-

struction in light of the broad Congressional purpose of

protecting the health and safety of the nation’s coal min-

ers. NICOA v. Kleppe, 423 U.S. 388, 398-99 (1976);

UMWA _ v. Andrus, — U.S. App. D.C. —, 581

F.2d 888, 894, cert. denied, 58 L.Ed.2d 321 (1978);

UMWA District 6 v. IBMA, 183 U.S. App. D.C. 312,

316, 320, 321, 562 F.2d 1260, 1264, 1268, 1269

(1977); Zeigler Coal Co. v. Kleppe, 175 U.S. App.

D.C. 371, 377-78, 381-82, 536 F.2d 398, 404-05,

408-09 (1976); UMWA v. Kleppe, 174 U.S. App.

D.C. 328, 331, 532 F.2d 1403, 1406, cert. denied,

429 U.S. 858 (1976); Munsey v. Morton, 165 USS.

App. D.C. 379, 387-88, 507 F.2d 1202, 1210-11

(1974); Phillips v. IBMA, 163 U.S. App. D.C. 104,

114-15, 500 F.2d 772, 782-83 (1974), cert. denied,

420 U.S. 938 (1975); Lucas Coal Co. v. Morton,

522 F.2d 581, 587 (C.A. 3, 1975); Rushton Mining

Co. v. Morton, 520 F.2d 716, 720 (C.A. 3, 1975);

Reliable Coal Corp. v. Morton, 478 F.2d 257, 262

(C.A. 4, 1973); Morris v. Mathews, 557 F.2d 563,

570 (C.A. 6, 1977); Old Ben Coal Corp. v. IBMA,

523 F.2d 25, 33 (C.A. 7, 1975); Freeman Coal Mining

Corp. v. IBMA, 504 F.2d 741, 744 (C.A. 7, 1974);

Bozwich v. Mathews, 558 F.2d 475, 479 (C.A. 8,

1977); Paluso v. Mathews, 562 F.2d 33, 36 (C.A.

10, 1977).

——

sssiclibeii

Also contrast NLRB vy. Allis-Chalmers Manufactur-

ing Co., 388 U.S. 175, 179 (1967) (particularly when

construing labor legislation, “legislative history may

not be disregarded merely because it is arguable

that a provision may unambiguously embrace conduct

called in question”); and Masters Local 1740 v. NLRB,

159 U.S. App. D.C. 11, 14, 486 F.2d 1271, 1274

(1973), cert. denied, 416 U.S. 956 (1974) (“labor

legislation does not readily adapt itself to the ‘plain

meaning’ school of jurisprudence” ).

Conclusion

For the foregoing reasons, a Writ of Certiorari should

be granted, and the decision of the Court of Appeals

reversed.

Respectfully submitted,

ADAMS, DuQUE & HAZELTINE

CHARLES GRIFFIN CALE

STEVEN B. JACOBSON

523 West Sixth Street

Los Angeles, California 90014

THOMAS GUMBEL

Runge & Gumbel

Post Office Box 533

Collinsville, Illinois 62234

Attorneys for Petitioners

Of Counsel:

HARRISON COMBS

General Counsel

Mary Lu JORDAN

United Mine Workers of America

900 Fifteenth Street, N.W.

Washington, D.C. 20005

APPENDIX A.

JUL 2 7 95°

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S. App. D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may he

made before the bound volumes go to press.

United States Cmut of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 77-1829

JESSE HIGGINS, et al., APPELLANTS

RAY MARSHALL, Sec. of Labor, et al.

Appeal from the United States District Court

for the District of Columbia

(D.C. Civil 77-0567)

Argued March 22, 1978 | Wages: .,

ni &y. ?

this dary

Decided July 25, 1978 — :

o =” ~ Tin

Steven B. Jacobson, for appellants.

John S. Lopatto, III, Attorney, Department of Labor,

for appellee, Secretary of Labor.

Bills of costs must he filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

Mark M. Pierce, of the bar of the Supreme Court of

Wisconsin, pro hac vice, by special leave of Court, with

whom William Roundtree was on the brief, for appellee,

Old Ben Coal Company.

Before: WricHT, Chief Judge, SWYGERT,* United

States Circuit Judge for the Seventh Circuit,

and Ross, Circuit Judge

Opinion for the Court filed by Circuit Judge SWYGERT.

Dissenting opinion filed by Chief Judge WRIGHT.

GERT, Circuit Judge: The issue in this appeal is

7 pe statutory interpretation. Pursuant to section 203

of Title II of the Federal Coal Mines Health and Safety

Act of 1969 (the 1969 Act), “[a]ny miner [who con-

tracts pneumoconiosis and opts to transfer to a position

in a less dusty area of the mine] shall receive compensa-

tion for such work at not less than the regular rate of

pay received by him immediately prior to his transfer.

80 U.S.C. §848(b) (3) (emphasis added). What the

“regular rate of pay” means is the question we must

decide.

During 1972 each of the plaintiffs-appellants, three

coal nn for Old Ben Coal Company (Old Ben) in

Franklin County, Illinois, had chest examinations which

showed evidence of the development of pneumoconiosis or

black lung disease. Each man thereby became eligible

for transfer to another position in a less dusty area of the

mine to prevent further development of _the disease. 30

U.S.C. § 848(b) (1). Plaintiffs Jesse Higgins and Paul

Gower transferred from positions as machine operators

to positions as tracklayers; plaintiff William Gipson trans-

* Sitting by designation pursuant to 28 U.S.C. § 291 (a).

ferred from a position as a repairman to one as a bottom

laborer. Before the transfer, each man received $41.50

a day; after the transfer each man continued to receive

$41.50 a day although the other miners in the new

positions received only $37.25 a day.

On November 12, 1972 the situation changed. Pur-

suant to a new wage agreement, as of that date the daily

wage rates for the positions vacated by plaintiffs were

raised to $45.75 while the rates for the new positions

were raised to $40.00. The plaintiffs continued to re-

ceive $41.50 a day, the old rate applicable to their former

positions. This meant that the miners were receiving

$4.25 less each day than they would have received had

they never transferred from their previous positions.

They were, however, receiving $1.50 more each day than

other miners in the new positions. One year later, when

$50.00 became the daily rate for the vacated positions

and $42.75 for the new ones, the plaintiffs began to

receive $42.75 and have continued to receive the annual

increases awarded to miners in their new positions.’ The

plaintiffs unsuccessfully requested payment from Old Ben

at the rate for their vacated positions.

‘The applicable daily wage rate and the amounts actually

paid to the miners are summarized as follows:

Machine’ Tracklayer/

Operator/ Bottom Amount

Dates Repairman Laborer Paid Difference

Transfer to

11/11/72 $41.50 $37.25 $41.50 —

11/12/72 to

11/11/73 $45.75 $40.00 $41.50 $4.25/day

11/12/73 to

11/11/74 $50.00 $42.75 $42.75 $7.25/day

12/06/74 to

12/05/75 $55.00 $47.03 $47.03 $7.97 /day

12/06/75 to

12/05/76 $57.20 $48.91 $48.91 $8.29/day

12/06/76 to

12/05/77 $58.92 $50.38 $50.38 $8.54/day

n a complaint first filed with the Department of the

cok : aa then refiled with the Department of Labor,

the plaintiffs alleged that Old Ben was discriminating

against them in violation of 80 U.S.C. §§ 820 (b) and

938(a) by not paying the “Standard Daily Wage Rate

for their pre-transfer positions as required under section

843(b) (3), that is, by not granting them the pay in-

creases they would have received had they not trans-

ferred. A Department of Labor administrative law judge

denied relief, holding that Old Ben had not violated sec-

tion 843(b) (3). The judge rejected the expansive con-

struction suggested by the plaintiffs and instead read

the section as a “rather clear statement that a miner who

chooses to transfer shall not be paid at a lesser rate

(dollars per hour or day or ton) than he was receiving

immediately prior to his transfer.” (emphasis in the

order) He found that the term “immediately prior” fixes

the minimum hourly or daily rate which may be paid, not

the classification rate. The judge noted that although

the more liberal construction would probably encourage

more transfers to cleaner environments by not forcing the

afflicted miners to choose between wages and health,

the absence of ambiguity in the statute’s language pre-

vented such a construction. The administrative law

judge’s order was affirmed in an unreported decision

by the district court. -

ion i i 3(b)

The question is whether the language of section 84

(3) (that a miner who chooses to transfer for health

reasons may not be compensated at less than the “regular

rate of pay” received immediately prior to transfer )

2On July 16, 1974 the Interior Board of Mine Operations

Appeals denied the miners relief on jurisdictional grounds.

An appeal from that decision was dismissed by this court as

untimely filed. Higgins v. Andrus, No, 77-1363 (D.C. Cir.,

June 20, 1977).

means that in addition to not suffering an immediate

pay cut, the transferring miner also may not be denied

the future pay increments he would have received had he

remained in his previous position.

Plaintiffs contend that the term “regular rate of pay”

was misinterpreted by both the administrative law judge

and the district court. They argue that one who exer-

cises his option to transfer to a cleaner environment must

continue to receive at lease the wages he would have

received had he not transferred, and that the rate of

pay is tied to the position rather than to a dollar amount

received immediately prior to transfer. The plaintiffs

suggest that the term “rate of pay” was misinterpreted

because too much importance was attached to the use of

the word “immediately” in the statute, and, instead, more

attention should have been given to the word “regular.”

Accordingly, the term “regular rate” would then have

been defined as the “classification” rate because a miner

would have been receiving the same “classification rate”

more regularly than the same “dollar rate.”

In the alternative, the plaintiffs argue that the term

“regular rate of pay” is latently if not patently am-

biguous, and therefore this court must reconstruct how

Congress would have decided the issue had it been spe-

cifically addressed, citing Judge Leventhal’s concurrence

in District 6, UMWA v. IBMA, —— U.S. App. D.C.

: F.2d ——, No. 75-1704 (D.C. Cir., Aug. 9,

1977). They suggest that the legislative history provides

such firm evidence in support of their more liberal con-

struction, that this court would be obliged to adopt that

construction even if the “plain words” of the statute could

support only the more limited interpretation. As their

final argument the plaintiffs contend that a canon of

statutory construction requires a liberal interpretation

of remedial legislation.

Although the two defendants take slightly different ap-

proaches in response to the plaintiffs’ arguments, they

both respond that none of the arguments is viable mainly

because the language of the statute is plain and therefore

requires no judicial interpretation. We agree.

When faced with a question of statutory interpreta-

tion, a court first must look to the language of the act

itself. Caminetti v. United States, 242 U.S. 470, 485

(1917). In the absence of persuasive reasons to the

contrary, we must give the words of an enactment their

ordinary meaning. Banks v. Chicago Grain Trimmers

Association, 390 U.S. 459, 465 (1968). With these prin-

ciples in mind, we find that the language of section

848(b) (3) is simple and straight-forward: a transfer-

ring miner is not to receive less compensation than he

would have received had he not transferred, that is, not

less than the monetary amount he was receiving “im-

mediately prior to transfer.” We therefore find it un-

necessary to resort either to any additional rule of

statutory construction or to the legislative history.

We find no merit in the plaintiffs’ contention that the

term “rate of pay” is latently if not patently ambiguous.

There is no ambiguity and therefore we do not need to

reconstruct how Congress would have decided the specific

question presented here. The legislative history of the

section, albeit sparse, indicates congressional concern for

protecting the transferring miner from loss in compen-

sation.’ There is nothing to indicate that Congress meant

to tie the compensation protection to the pay rate re-

ceived by miners in the pre-transfer classification. To so

hold would be to distort the clear meaning of the words

of the statute. When the meaning is clear, and the enact-

ment is within the constitutional authority of Congress,

the “sole function of the courts is to enforce it according

to its terms,” Caminetti v. United States, 242 U.S. at 485.

* H.R. Legis. Hist. at 49; S. Legis. Hist. at 175.

Our reading of the statute is consistent with the basic

purpose of the Act; by not having to take a pay cut upon

transfer to a position which would ordinarily pay less,

the miner is more likely to transfer to protect his health

than he would be otherwise.

Although we did not need to resort to legislative his-

tory in light of our holding that the meaning of the

phrase “regular rate of pay” is clear and unambiguous,

March v. United States, 506 F.2d 1306, 1313 (D.C. Cir.

1974), our research failed to uncover any conflicting

history. Boston Sand and Gravel Company v. United

States, 278 U.S. 41, 48 (1928). We do note one addi-

tional argument made by the Secretary of Labor which

concerns the legislative history of the amendments to the

1969 Act. On November 9, 1977 Congress enacted the

Federal Mine Safety and Health Amendments Act of

1977 (the 1977 Act), amending the 1969 Act by modify-

ing and extending coverage under Titles I and V to all

types of mining. Titles II, III, and IV remain basically

unchanged and continue to apply exclusively to the coal

mining industry.

The Secretary argues, with persuasion, that because

Congress specifically considered the question of whether

to adopt the compensation protection provision of sec-

ton 843(b) (3) when amending Title I, the legislative

history of the 1977 Act may be viewed as an indication

of how Congress had intended the pay protection provi-

sion in Title II to operate. As that legislative history

shows, the House version of the bill included no such pro-

vision under Title I. The Senate version, on the other

hand, incorporated pay protection in Title I as follows:

Any miner transferred as a result of such exposure

[to a hazard covered by a mandatory standard pro-

mulgated under this Act] shall continue to receive

compensation for such work at not less than the regu-

lar rate of pay for miners in the classification such

miner held immediately prior to his transfer.

S. 717, 95th Cong., 1st Sess. § 201[102(a)(6)] (1977)

(emphasis added). This language clearly would have re-

quired transferred miners to be compensated indefinitely

as they would have been had they never transferred.

Neither the House nor Senate version altered the existing

language of section 843(b) (3) of Title II.*

After passage of the bills, a conference committee met

to resolve the differences. The compensation protection

provision of Title I, as finally enacted by both houses,

includes the following language:

‘It is also worth noting that the very problem we address

here was drawn to the attention of Congress when the House

and Senate subcommittees were considering the amendments

to the 1969 Act. The following is an excerpt from the state-

ment submitted by Arnold Miller, President of the United

Mine Workers, to both subcommittees:

Black Lung Transfer Program. Section 203(b) of the

1969 Coal Act gives miners who have developed simple

pneumoconiosis a right to transfer to positions in less

dusty areas of mines in order to prevent the advance of

their disease, without having to suffer any loss in compen-

sation. However, some mine operators have refused to

pay transferees wage increases they would have received

if they had remained in their former positions, and ad-

ministrative relief from this practice has so far been de-

nied. As a result, less than one-fourth of those entitled to

transfer have done so.

To solve this problem once and for all, a new section

202 (f) should be added to the bill after line 12 on page 66,

as follows:

(e) Section 208(b) (8) [843(b) (3)] of such Act is

amended by striking out “received by him” and in-

serting in lieu thereof “being paid to miners perform-

ing the type of work such miner was performing.”

Congress did not adopt the proposed change.

Any miner transferred as a result of such exposure

shall continue to receive compensation for such work

at no less than the regular rate of pay for such

miners in the classification such miner held immedi-

ately prior to his transfer. In the event of the trans-

fer of a miner pursuant to the preceding sentence,

increases in wages of the transferred miner shall be

based upon the new work classification.

30 US.C. § 811(a) (7) (emphasis added). Of particular

note is the explanation included in the Conference Report:

_The conference substitute conforms to the Senate

bill, except that it limits the scope of the provision

which guarantees that a miner who is reassigned to

a different job classification will suffer no: reduction

in compensation if such reassignment is the result of

a medical examination indicating that such miner

may suffer material impairment of health or func-

tional capacity by further exposure to a toxic sub-

stance or harmful physical agent. After reassign-

ment, however, such miner will be entitled only to

the same dollar rate increases applicable to his new

job classification. The conferees intend this provision

to encourage miner participation in medical examina-

tion programs by insuring that miners who do par-

ticipate in such programs shall suffer no immediate

financial disadvantage if a medical examination re-

sults in a job reassignment.

H. Conf. Report No. 95-655, reprinted in [1977] U.S

Code Cong. & Ad. News 3490. —

It is clear that non-coal miners transferred un -

tion 811(a)(7) of the 1977 Act because of Rasch i

toxic substances are not to suffer any immediate decrease

in pay, but it is also manifest that the pay protection is

not linked forever to their pre-transfer job classification.

Of course, had Congress specifically addressed the issue

of the intent of section 848(b) (3) of the 1969 Act. its

declaration would clearly have been entitled to great

ioht. But even in the absence of such express consid-

pert subsequent enactments are entitled to some

weight. At the very least, the legislative history sur-

rounding the enactment of section 811 (a)(7) is con-

sonant with our holding.

The judgment of the district court is affirmed.

WRIGHT, Chief Judge, dissenting: In Section 2 of the

Federal Coal Mine Health and Safety Act of 1969

(FCMHSA or Act) Congress expressly declared that “the

first priority and concern of all in the coal mining indus-

try must be the health and safety of its most precious

resource—the miner.” * Even industry spokesmen testi-

fied in the hearings on the 1969 legislation that they did

“not believe profits should be put ahead of the health and

safety of mineworkers.”* To assure that the Act’s pur-

pose would not be frustrated by subsequent judicial con-

struction, the Conference Report specifically stated that

“(ijn adopting these provisions, the managers intend

that the act be construed liberally when improved health

or safety to miners will result.” *

The majority today turns its back on Congress’ pri-

mary concern with the health of miners and adopts an

interpretation of the Act that condemns miners suffering

from the dread black lung disease (pneumoconiosis)*‘ to

* Federal Coal Mine Health and Safety Act of 1969, § 2(a),

30 U.S.C. § 801(a) (1970).

*'S. Rep. No. 91-411, 91st Cong., 1st Sess. 1 (1969) (quoting

Stephen F. Dunn, President of the National Coal Association).

* H.R. Rep. No. 91-761, 91st Cong., 1st Sess. 63 (1969).

* The Surgeon General has described this disease as follows:

Coal miners’ pneumoconiosis is a chronic chest disease,

caused by the accumulation of fine coal dust particles in

the human lung. In its advanced form, it leads to severe

disability and premature death.

* * * * *

Physicians classify coal miners’ pneumoconiosis as sim-

ple or complicated, depending on the degree of evidence in

the X-ray picture. * * *

* * * [S]imple pneumoconiosis seldom produces signifi-

cant ventilatory impairment, but, the pinpoint type may

choose either continued exposure to levels of coal dust that

will aggravate their affliction or a significant loss in

compensation.’ The majority explains its action by claim-

ing that the statutory provision in question is “clear and

unambiguous.” Majority at 7. Since I find an interpre-

tation of the statute that would fulfill congressional in-

reduce the diffusing capacity, the ability to transfer oxy-

gen from the lung into the blood.

Complicated penumoconiosis [sic] [which] results if

exposure to coal dust continues after the victim contracts

simple pneumoconiosis] is a more serious disease. The

patient incurs progressive massive fibrosis as a complex

reaction to dust and other factors, which may include

tuberculosis and other infections. The disease in this form

usually produces marked pulmonary impairment and con-

siderable respiratory disability. Such respiratory disabil-

ity severely limits the physical capabilities of the individ-

ual, can induce death by cardiac failure, and may contrib-

ute to other causes of death.

* * oa * *

There is no specific therapy for pneumoconiosis in either

its simple or complicated form.

S. Rep. No. 94-411, supra note 2, at 7-8. The Senate Report

also notes that the disease is “irreversible once contracted.”

Id. at 7.

’ The significance of the loss in compensation is evident from

the facts of this case. As the figures reproduced in note 2 of

the majority opinion indicate, appellant miners were receiv-

ing 17% less compensation in 1977 than they would have been

receiving had they chosen continued exposure to coal dust.

Those figures also demonstrate that the loss in compensation

has steadily increased over time, both absolutely and as a per-

centage of wages paid. The most convincing evidence of the

significance of the loss in compensation, however, is the fact

that most eligible miners have chosen continued exposure to

coal dust rather than accept the lower income that they fear

will result from a voluntary transfer. See text and notes at

notes 7 & 14 infra.

tent, rather than frustrate it, equally compatible with

the statutory language, I must respectfully dissent.

This case turns on language in Section 848(b) of the

FCMHSA, a provision designed to allow miners who have

been diagnosed as suffering from black lung disease to

transfer at their option to mining jobs in which they will

be exposed to lower amounts of the coal dust that causes

and aggravates their crippling and eventually fatal dis-

ease. Realizing that miners might hesitate to transfer

voluntarily to jobs with lower wages, Congress provided

in Section 843(b) (8) that “[a]ny miner so transferred

shall receive compensation for such work at not less than

the regular rate of pay received by him immediately prior

to his transfer.” 30 U.S.C. § 848(b) (3) (1970).

The question in this case is whether the words “regu-

lar rate of pay” should be interpreted to mean dollar rate

or classification (job, contract) rate—i.e., whether trans-

ferred miners should continue to receive compensation at

the same dollar rate of pay (e.g., $40/day) or rather at

the same classification rate of pay (e.g., the machine

operator’s rate, the GS-2 rate) that they received before

being transferred. In today’s inflationary economy the

practical difference between these interpretations is that

the classification rate interpretation will allow a stricken

miner to transfer to a more healthy environment without

fear of sacrificing ever larger percentages of his compen-

sation, while the dollar rate interpretation will grant the

miner a “protection” so temporary that it may well be

scheduled to disappear even before the current industry

contract expires.° The impact of this difference is all too

* In this very case appellant miners transferred in 1972, and

the “protection” offered them by the mine owners’ “dollar

rate” interpretation was cancelled out by November 1973 as a

result of wage increases that had been agreed to before their

transfer, under the National Bituminous Wage A

1971. See JA 7. ge Agreement of

The dollar rate interpretation would lead to equally anomal-

clear from statistics on transfers since the FCMHSA

was passed. Most employers have, like Old Ben Coal

Company, adopted the dollar rate interpretation. As a

result, only a fraction of the miners eligible for transfers

have taken advantage of the remedy Congress provided.’

The Administrative Law Judge (ALJ) below recog-

nized that the dollar rate interpretation urged by the mine

owners would place “afflicted miners in the dilemma of

choosing between their wages and their health, thus chill-

ing any inclination to opt for their health.” JA 9. He

also agreed with appellants that “in choosing between two

wholly permissible readings of the Act, it would be my

duty to accept that reading which fosters the health of

miners.” Id. Nevertheless, he concluded that the “literal

language of the Act” was not “open” to the classification

rate interpretation. Jd. at 10. He focused particularly on

the word “immediately,” asserting that “[i]ts presence

can be explained, in my judgment, only as a reference

point from which to ascertain the lowest wage rate [a

transferred miner] may lawfully be paid.” Id. at 9. This

reliance on the word “immediately” seems misguided :

such a “reference point” is equally necessary under either

the classification rate or the dollar rate interpretation.°

ous results if the wages for all positions in the coal mines

were dropping, rather than rising. In such a situation the

dollar rate interpretation would require that miners be paid

more if they transfer than if they stay in their former jobs.

* Federal Mine Safety and Health Amendments Act of 1977,

Hearings Before the Subcomm. on Labor of the Comm. on

Human Resources, U.S. Senate, 95th Cong., 1st Sess. 162

(1977) (prepared statement of Arnold R. Miller). See also

note 14 infra.

® When the Senate wrote an analogous, but less ambiguous,

provision in 1977 which clearly specified protection of com-

pensation based on a miner’s “classification rate,” it again

used the words “immediately prior to his transfer” as a refer-

ence point. See text and note at note 18 infra.

Both the District Court and the majority sustain the

ALJ’s conclusion that the statute is unambiguous. While

both courts wisely avoid relying on the word “immedi-

ately,” neither supports its conclusion that the language

is clear with anything but bald assertions that “regular

rate of pay” can mean only dollar rate of pay. I find these

unsupported assertions singularly unconvincing. The ma-

jority never addresses the undisputed fact that the term

“rate of pay” is commonly used in the sense of classifi-

cation rate or job rate, rather than dollar rate.® Nor does

it answer the argument that a miner’s classification rate

of pay is clearly more “regular” than his dollar rate.

The majority apparently hopes to eliminate the statute’s

obvious ambiguity by asserting repeatedly that it does not

exist. Despite these efforts, however, even the majority’s

own explanation of its position falls victim to the am-

biguity it stubbornly refuses to acknowledge. The major-

ity first describes the “simple and straightforward” mean-

ing of the statute as follows: “a transferring miner is not

to receive less compensation than he would have received

had he not transferred * * *.” Majority at 6. This re-

quirement would be satisfied by the classification rate

interpretation, but it is clearly not satisfied by the inter-

pretation adopted by the majority. Then, in the same sen-

tence, the majority “clarifies” this “simple and straight-

forward” meaning by adding the words “that is, not less

* The term “rate” is used in the sense of classification rate

in both the brief of appellee Old Ben Coal Co. at p. 15 and the

majority’s opinion, e.g., at pp. 3-4. Appellee Secretary of Labor

(brief at 7) urges the court to consider the meaning of the

terms “regular rate of pay” in another section of the Act,

which guarantees miners full compensation at their regular

rates of pay if a mine is closed for safety violations. 30

U.S.C.A. § 821 (1978 pocket part). As appellants point out,

however, the classification rate interpretation fits in § 821 as

well as, if not better than, the dollar rate interpretation. Ap-

pellants’ reply brief at 22-25.

than the monetary amount he was receiving ‘immediately

prior to transfer.’” Jd.

Once such obvious verbal manipulation is put aside and

the ambiguity on the face of the statute is honestly ac-

knowledged, a court must turn to the legislative history

for assistance in choosing the correct interpretation. As

the ALJ was quick to recognize,” the legislative history

in this case mandates the classification rate interpretation

urged by the miners. The Senate Report summarized the

intent of Section 843(b) (3) as follows:

In order to insure that miners who are afflicted

with pneumoconiosis suffer no loss in compensation,

the commitiee has included a provision entitling a

miner who is transferred to another job pursuant to

this subsection to receive his old or new rate of pay,

whichever is greater.'"!

The classification rate interpretation—that if a miner

transfers from being a machine operator to being a re-

pairman his “old rate of pay” is the rate for machine

operators and his “new rate” is the rate for repairmen—

is not only a logical interpretation, but the only one that

will not frustrate Congress’ intent to prevent transfers

from resulting in “loss in compensation.”

Even more conclusive is Congress’ express direction

that “the Act be construed liberally when improved health

or safety to miners will result.”** As this court has

1S. Rep. No. 94-114, supra note 2, at 49. This same lan-

guage was used in the debates fol!owing the Conference to

describe the legislation as it emerged from the Conference

Committee. See STAFF OF SUBCOMM. ON LABOR OF THE SENATE

COMM. ON LABOR AND PUBLIC WELFARE, 94TH CONG., 1ST

SEss., LEGISLATIVE HISTORY OF THE FEDERAL COAL MINE

HEALTH AND SAFETY ACT OF 1969 1607 (Committee Print

1975).

12 H.R. Rep. No. 91-761, supra note 8, at 63.

recently stated, “Should a conflict develop between a

statutory interpretation that would promote safety [or

health] and an interpretation that would serve another

purpose at a possible compromise to safety [or health],

the first should be preferred.” District 6, UMW v. U.S.

Dep’t of Interior Board of Mine Operations Appeals, 562

F.2d 1260, 1265 (D.C. Cir. 1977). The health conse-

quences of the alternative interpretations urged by the

parties in this case are undisputed. The ALJ’s observa-

tion that the dollar rate interpretation would “chill”

the miners’ “inclination to opt for their health”™ is

overwhelmingly confirmed by experience. With most mine

owners following the dollar rate interpretation, less than

20 percent of the eligible miners have taken advantage of

the option to transfer to more healthy job environments."

The majority’s decision today can only further reduce

the incentive to opt for health: it undermines the com-

pensation protection Congress sought to provide and as-

sures that Congress’ intent to arrest the development of

already diagnosed black lung disease will continue to be

frustrated.

In an attempt to buttress its reliance on the allegedly

“clear” words of the statute the majority makes some ref-

erence to the legislative history of the Federal Mine

Safety and Health Amendments of 1977. These amend-

ments extended the enforcement provisions set out in

18 See p. 4 supra; JA 9.

** The most recent figures cited by the parties indicate that

between the effective date of the 1969 Act, June 30, 1970, and

December 31, 1975, 5,815 miners had been found eligible for

black lung transfers. Yet only 1,150 (19.6%) of these eligible

miners had exercised their rights to transfer and only 435

(7.5%) were still in their new positions at the end of 1975.

DEPARTMENT OF THE INTERIOR, MiNING ENFORCEMENT SAFETY

ADMINISTRATION, 1975 ANNUAL REPORT AND ACHIEVEMENTS

Part I at 11 (1976), cited in appellants’ brief at 12.

Titles I and V of the FCMHSA to other (non-coal ) parts

of the mining industry and shifted responsibility for en-

forcing the entire Act from the Interior Department to

the Labor Department.’* As the majority points out, the

1977 amendments did not attempt to address in any

detail problems that had arisen under Titles II (which

contains Section 843(b)(3)), III, and IV of the Act,

which remained applicable only to coal mining.** Thus,

although the United Mine Workers did comment on the

problem of the ambiguity in Section 843(b) (3) in hear-

ings on the 1977 legislation in the hope that Congress

would resolve the issue, Congress’ failure to address this

issue, which was peripheral to its central concerns, is

certainly not an endorsement of either position in this

case."

The majority also mentions the transfer provision en-

acted in the 1977 amendments to cover non-coal miners—

a provision analogous to Section 843(b) (3). Insofar as

the legislative history of this provision is relevant at all

to the case before us, however, it seems to support appel-

lants rather than the majority. As the majority notes,

the 1977 transfer provision as originally passed by the

Senate contained language specifically providing that

transferred miners were to continue to be paid at their

old classification rate:

Any miner transferred as a result of such exposure

shall continue to receive compensation for such work

at not less than the regular rate of pay for miners

in the classification such miner held immediately

prior to his transfer.

18 See H.R. Rep. No. 95-655, 95th Cong., Ist Sess. 37 (1977).

16 Jd.; majority op. at 7.

17 At the time the UMW made its presentation to Congress

there was apparently no definitive administrative interpreta-

tion on this point. See appellants’ reply brief at 37.

S. 717, 95th Cong., Ist Sess. § 201 (1977). The Senate

thus adopted new, clearer language rather than repeat-

ing the ambiguous language of Section 848(b) (3). The

Senate Report pointed out specifically that the “ ‘regular

rate’ is to include any subsequent salary increase re-

ceived by miners in the classification such miners held

immediately prior to transfer.” S. Rep. No. 95-181, 95th

Cong., Ist Sess. (1977).

The House bill, on the other hand, contained no trans-

fer provision, and the House conferees were apparently

unwilling to extend to non-coal miners the full protection

provided by the Senate bill. The compromise version of

the transfer provision that emerged from the Conference

Committee therefore added a sentence expressly limiting

the protection offered by the Senate bill: any increases

in a transferred miner’s wages were to be governed by

his new, rather than his old, classification."

Both the language of the 1977 transfer provision as

eventually enacted and the Conference Report reflect Con-

gress’ awareness that it was placing a special limit on

the protection offered to transferring miners. Rather than

adopting the Senate version, which it described as pro-

viding for “no reduction in compensation,” the Conference

adopted a version it described as providing that trans-

ferred miners would “suffer no immediate disadvantage.”

H.R. Rep. No. 95-655, 95th Cong., Ist Sess. 42 (1977)

** Any miner transferred as a result of such exposure shall

continue to receive compensation for such work at no less

than the regular rate of pay for miners in the classifica-

tion such miner held immediately prior to his transfer.

In the event of the transfer of a miner pursuant to the

preceding sentence, increases in wages of the transferred

miner shall be based under the new work classification.

** *

80 U.S.C.A. §811(a)(7) (1978 pocket part) (emphasis

added).

(emphasis added). This explicit recognition of the limi-

tation on the protection provided in the 1977 statute

contrasts sharply with the ambiguous wording of Sec-

tion 843(b) (3) and the unqualified statement in its leg-

islative history that transferred coal miners were to

suffer “no loss in compensation.” *

Although the absence of specific limitations on the

wage protection offered by Section 843(b)(3) can be

used to support appellants’ position when viewed in com-

parison with the analogous 1977 transfer provision,

arguments for either side based on the 1977 legislation

suffer serious limitations: eight years had passed and a

different Congress was involved, the 1977 transfer provi-

sion covers different miners with different afflictions *°

and is mandatory rather than voluntary, and, perhaps

most important, the 1977 provision is clearly a compro-

mise which lies between the positions urged by appellants

and appellees and which no one here urges as a possible

interpretation of the language of Section 843(b) (3).

Under these circumstances, the most fruitful approach

to this case is to focus on the words of Section 843(b) (3),

recognize their ambiguity, and interpret them according

to the clear intent and explicit directions of Congress.

Since the majority cuts its inquiry short by clinging to

19 See text and note at note 11 supra.

20 The 1977 amendments require transfers “where a deter-

mination is made that a miner may suffer material impair-

ment of health or functional capacity by reason of exposure to

the hazard covered by [a] mandatory standard * * *.” Section

101(a) (7), 80 U.S.C.A. § 811(a) (7). Rather than dealing

with a specific disease like black lung and with figures that

could be accurately approximated, Congress in 1977 was legis-

lating with respect to a much more vaguely defined and poten-

tially expansive category of disabilities. This difference might

arguably have been responsible for the legislature’s reluctance

to grant full wage protection.

the claim that the Congress, depite its expressed inten-

tions, enacted a provision that “clearly and unambigu-

ously” offers only a phantom protection to the mining

industry’s “most precious resource’ and puts profits

ahead of the health and safety of mine workers, I re-

spectfully dissent.

—13a—

APPENDIX B

United States Court of Appeals

for the District of Columbia Circuit

No. 77-1829

September Term, 1977

Jesse Higgins, et al, Appellants, v. Ray Marshall

Sec. of Labor, et al. Civil Action #77-0567.

BEFORE: Wright, Chief Judge; Swygert*, U.S. Circuit

Judge for the U.S. Court of Appeals Seventh

Circuit, and Robb, Circuit Judge.

Order

Upon consideration of the petition for rehearing filed

by appellants Jesse Higgins, et al, it is

ORDERED by the Court that appellants’ aforesaid

petition is denied.

Per Curiam

For the Court:

/s/ George A. Fisher

GEORGE A. FISHER

Clerk

Chief Judge Wright would grant appellants’ petition

for rehearing.

Filed: Sep 22, 1978

*Sitting by designation pursuant to Title 28 U.S.C. § 291(a).

-l4a—

APPENDIX C

United States Court of Appeals

for the District of Columbia Circuit

No. 77-1829

September Term, 1977

Jesse Higgins, et al., Appellants, v. Ray Marshall,

Sec. of Labor, et al. Civil Action #77-0567.

BEFORE: Wright, Chief Judge; Bazelon, McGowan,

Tamm, Leventhal, Robinson, MacKinnon, Robb

and Wilkey, Circuit Judges.

Order

The suggestion for rehearing en banc filed by appel-

lants Jesse Higgins, et al, having been transmitted

to the full Court and no Judge having requested a

vote with respect thereto, it is

ORDERED by the Court, en banc, that appellants’

aforesaid suggestion for rehearing en banc is denied.

Per Curiam

For the Court:

/s/ George A. Fisher

GEORGE A. FISHER

Clerk

Filed: Sep 22, 1978

-15a—

APPENDIX D

United States District Court

for the District of Columbia

Jesse Higgins, et al., Plaintiffs, v. Ray Marshall,

Secretary of Labor, and Old Ben Coal Corporation,

Defendants. Civil Action No. 77-0567.

Order Granting and Denying Motions for Summary

Judgment and Motions to Dismiss

Upon consideration of plaintiffs’ Motion for Summary

Judgment and of the respective defendants’ Motions

for Summary Judgment and to Dismiss and after oral

argument thereon in open Court, and it appearing

to the Court that there is no dispute of material fact,

and that the resolution of this matter is dependent

solely on the interpretation of 30 USC 843(b)(3),

and that this Section of the Code has been correctly

interpreted by the Administrative Law Judge of the

United States Department of Labor and by the de-

fendants herein, it is by the Court this 18 day of

August AD 1977,

ORDERED that plaintiffs’ Motion for Summary

Judgment be and the same is hereby denied, and it

is further

ORDERED that the defendants’ Motions for Sum-

mary Judgment be and the same are hereby granted,

and it is further

ORDERED that defendants’ Motions to Dismiss be

and the same are hereby denied.

/s/ George L. Hart, Jr.

UNITED STATES DISTRICT JUDGE

Filed: Aug 18, 1977

—16a—

APPENDIX E

U.S. Department of Labor

Office of Administrative Law Judges

Suite 700-1111 20th Street, N.W.

Washington, D.C. 20036

Jesse Higgins, Paul Gower and William Gipson, Com-

plainants, vy. Old Ben Coal Company, Respondent. Case

No. 76-BLA-633.

Final Findings of Fact, Conclusions

of Law and Order

Complainants assert the Respondent violated Section

428 of the Federal Coal Mine Health and Safety Act,’

which provides that “(no) operator shall discharge

or in any other way discriminate against any miner

employed by him by reason of the fact that such

miner is suffering from pneumoconiosis. . . .” This

contention is in turn based upon the claim that the

Respondent violated Section 203(b)(3),? which pro-

vides that any miner afflicted with pneumoconiosis,

who exercises the option to transfer to another position

in a less dusty work environment, “shall receive com-

pensation for such work at-not less than the regular

rate of pay received by him immediately prior to his

transfer.”

Facts

The parties waived hearing and stipulated the follow-

ing. Complainants became entitled to transfer to other

jobs less likely to contribute to the advance of so-

called “simple” pneumoconiosis pursuant to Section 203

130 U.S.C. 938.

230 U.S.C. 843(b) (1).

—17a—

of the Act. Effective January 31, 1972, Complainants

Jesse Higgins and Paul Gower transferred from the

position of Machine Operator where they received the

rate of $41.50 per day, to the position of Tracklayer,

which was paid at the rate of $37.25 per day. Com-

plainant William Gipson transferred on or about May

8, 1972 from the position of Repairman (daily rate

$41.50) to Bottom Laborer (daily rate $37.25). Each

continued to receive $41.50 per day, the rate applicable

to his previous position immediately prior to the date

of transfer.

On November 12, 1972, pursuant to the terms of

the National Bituminous Coal Wage Agreement of

1971, the wage rates for the positions vacated by Com-

plainants were raised to $45.75 per day and the rates

for their new positions were raised to $40.00 per

day. Complainants continued to receive the old rate

applicable to their former positions immediately prior

to their transfers.

On November 12, 1973, another contract wage in-

crease occurred. The daily rates for the vacated posi-

tions advanced to $50.00 and those for the new posi-

tions to $42.75. Complainants received the new and

higher rates of $42.75, and have continued to receive

since that date the annual increases in the rates ap-

plicable under that contract and the succeeding contract

to their new positions.’ They have unsuccessfully re-

8The applicable contract wage rates and the amounts actually

paid by Old Ben can be conveniently shown as follows:

Machine Tracklayer

Operator/ Bottom/ Amount

Dates Repairman Laborer Paid Differences

Transfer to 11/12/72 $41.50 $37.25 $41.50 —

11/12/72 to 11/11/73 45.75 40.00 41.50 4.25/day

11/12/73 to 11/11/74 50.00 42.75 42.75 7.25/day

12/06/74 to 12/05/75 55.00 47.03 47.03 § 7.97/day

12/06/75 to 12/05/76 57.20 48.91 48.91 8.29/day

12/06/76 to 12/05/77 58.92 50.38 50.38 8.54/day

—18a—

quested that they be paid at the rates specified by

the contract for the positions from which they trans-

ferred.

Complainants originally brought their claims of dis-

criminatioa, based to Sections 110(b), 203 and 428

of the Act, to the Secretary of Interior. On July 16,

1974, the Board of Mine Operations Appeals dismissed

their claim for want of jurisdiction. Complainants then

requested relief from the Department of Labor pursuant

to Section 428. The relief requested is an order that

Respondent pay them at the contract rate for Machine

Operators and Repairmen in the future, pay them back-

pay plus 10 percent interest in the amounts by which

it has failed to do so since November 12, 1972, and

pay their costs and attorneys fees. |

Discussion and Conclusions

As is obvious, the issue is purely one of statutory

construction. Complainants argue that Section 203(b)

(3) must be given an expansive reading in order to

fully support the Act’s purpose of encouraging miners

to leave jobs which contribute to the advance of the

disease. They contend that the “rate of pay received

. immediately. prior to . . . transfer’ does not

simply prohibit an immediate loss in amount of compen-

sation, but rather, fixes into the future the rate applica-

ble to the vacated job classification as the rate which

applies to them in any new and lower-paid classification.

Thus, they assert that, to the end of their coal-mining

careers, they are entitled to compensation as if they

had never transferred to lower-paying jobs. Clearly

there exists no reading of the statute which could

be more encouraging of transfers to cleaner work en-

vironments. And, as surely, any reading which accom-

—19a—

modates an eventual loss of income will to some extent

discourage miners from making choices favorable to

their health.

There exists abundant authority for the proposition

that a narrow reading which would tend to subvert

the prime policy of protecting the health of miners

is to be avoided. The legislative history states “that

the Act is to be construed liberally when improved

health or safety will result.” House Lég. History at

1025; Senate Leg. Hist. at 1507. Courts have repeatedly

noted, in cases arising under this Act, that a narrow

or limited construction is to be eschewed in construing

such safety or remedial legislation.‘ Respondent never-

theless argues that the Section at issue plainly reveals

the Congressional intent: to ensure only that miners

who opt for lower paying jobs will receive no less

pay than they were receiving immediately before the

transfer. And, of course, it contends that it is inap-

propriate to alter such plain words by reference to

rules requiring liberal construction of remedial legisla-

tion.

The only legislative history brought to my attention

concerning the purpose of Section 203(b)(3) states

that it is “to insure” that miners who elect to transfer

will “suffer no loss in compensation” by making them

eligible to “receive the old or new rate of pay, whichever

is greater”. House Leg. Hist. at 49; Senate Leg. Hist.

at 175. Complainants argue with some force, against

4See Phillips v. IBMA, 500 F.2d 772, 782 (D.C. Cir., 1974);

Munsey v. Morton, 507 F.2d 1202 (D.C. Cir., 1974); UMWA

v. Kleppe, 532 F.2d 1403, 1405-06, (D.C. Cir., 1976); Rushton

Mining v. Morton, 520 F.2d 716, 720 (3rd Cir., 1975); Re-

liable Coal Corp. v. Morton, 478 F.2d 257, 262 (4th Cir.

1973); Freeman Coal Mining Corp. v. IBMA, 504 F.2d 741,

745 (7th Cir. 1974).

—20a—

this backdrop, that the words “at not less than the

regular rate of pay received . . . immediately prior

to . . . transfer” must be expansively construed so

as to avoid the result of placing afflicted miners in

the dilemma of choosing between their wages and their

health, thus chilling any inclination to opt for their

health, They also argue, unconvincingly to me, that

those words plainly mean that transferred miners shall

be paid at the same rate of pay—e.g., the Machine

Operator’s or the Repairman’s rate—at which they

were paid prior to transfer, as the dollar amounts

tied to that classification increase.

I read Section 203(b)(3) as a rather clear statement

that a miner who chooses to transfer shall not be

paid at a lesser rate (dollars per hour or day or

ton) than he was receiving immediately prior to his

transfer. Thus, “immediately prior” fixes the minimum

hourly or daily rate he may be paid. Had it been

Congress’ purpose to assure that a miner continue

to receive, into the indefinite future, the rate of pay

associated with the job classification he chose to leave,

it could simply have said that such a miner “shall

be entitled to receive compensation for such work

at the regular rate of pay for the job classification

from which he transferred”. Congress instead chose

words which seem clearly to provide only that an

afflicted miner may transfer without his wages being

diminished. Complainants argument would be far more

tenable if the word “immediately” were not in the

paragraph. Its presence can be explained, in my judg-

ment, only as a reference point from which to ascertain

the lowest wage rate he may lawfully be paid. It

seems otherwise unnecessary.

—2la—

In short, I think Congress’ purpose is too plainly

stated to permit a more “liberal” reading by me. The

rule requiring an expansive reading of remedial statutes

is applicable where ambiguity is perceived. In that

event, in choosing between two wholly permissible read-

ings of the Act, it would be my duty to accept that

reading which fosters the health of miners. Here, I

cannot conscientiously conclude that the literal language

of the Act is open to the construction urged by Com-

plainants. If Congress in plain terms provided a limited

incentive, it is not my function to enlarge it.

Order

Having found that Respondent has fulfilled the obli-

gations imposed on it by Section 203(b) (3), it follows

that no violation of Section 428 occurred. Complainants

request for relief is therefore denied.”

/s/ John H. Fenton

JOHN H. FENTON

Administrative Law Judge

Dated: March 31, 1977

Washington, D.C.

5As indicated in my proposed order of February 10, 1977,

I have followed the proposed procedures for Black Lung anti-

discrimination cases (Title 20 CFR Proposed Part 730—FR

Doc. 75-15 Filed 1/12/75, Federal Register, Vol. 40, No.

2). This final order is issued after receipt of Complainants’

Exceptions to the Proposed Order, filed on March 7, and

a Response thereto filed on March 9, 1977.

—22a—

APPENDIX F

Sections 203(a) & (b) of the Federal Coal Mine

Health and Safety Act of 1969, 30 U.S.C. §§843

(a) & (b) (1976):

§ 843. Medical examinations—Chest roentgenogram; availability;

periodic intervals; other tests; transmittal of results; ad-

vice of rights

(a) The operator of a coal mine shall cooperate

with the Secretary of Health, ‘:ducation, and Welfare

in making available to each miner working in a coal

mine the opportunity to have a chest roentgenogram

within eighteen months after December 30, 1969, a

second chest roentgenogram within three years there-

after, and subsequent chest roentgenograms at such

intervals thereafter of not to exceed five years as the

Secretary of Health, Education, and Welfare prescribes.

Each worker who begins work in a coal mine for

the first time shall be given, as soon as possible after

commencement of his employment, and again three

years later if he is still engaged in coal mining, a

chest roentgenogram; and in the event the second such

chest roentgenogram shows evidence of the development

of pneumoconiosis the worker shall be given, two years

later if he is still engaged in coal mining, an additional

chest roentgenogram. All chest roentgenograms shall

be given in accordance with specifications prescribed

by the Secretary of Health, Education, and Welfare

and shall be supplemented by such other tests as the

Secretary of Health, Education, and Welfare deems

necessary. The films shall be read and classified in

a manner to be prescribed by the Secretary of Health,

Education, and Welfare, and the results of each reading

on each such person and of such test shall be submitted

—23a—

to the Secretary and to the Secretary of Health, Educa-

tion, and Welfare, and, at the request of the miner,

to his physician. The Secretary shall also submit such

results to such miner and advise him of his rights

under this chapter related thereto. Such specifications,

readings, classifications, and tests shall, to the greatest

degree possible, be uniform for all coal mines and

miners in such mines.

Evidence of pneumoconiosis; option to transfer; wages

(b) (1) On and after the operative date of this

subchapter, any miner who, in the judgment of the

Secretary of Health, Education, and Welfare based

upon such reading or other medical examinations, shows

evidence of the development of pneumoconiosis shall

be afforded the option of transferring from his position

to another position in any area of the mine, for such

period or periods as may be necessary to prevent further

development of such disease, where the concentration

of respirable dust in the mine atmosphere is not more

than 2.0 milligrams of dust per cubic meter of air.

(2) Effective three years after December 30, 1969,

any miner who, in the judgment of the Secretary of

Health, Education, and Welfare based upon such read-

ing or other medical examinations, shows evidence of

the development of pneumoconiosis shall be afforded

the option of transferring from his position to another

position in any area of the mine, for such period

or periods as may be necessary to prevent further

development of such disease, where the concentration

of respirable dust in the mine atmosphere is not more

than 1.0 milligrams of dust per cubic meter of air,

or if such level is not attainable in such mine, to

—-24a—

a position in such mine where the concentration of

respirable dust is the lowest attainable below 2.0 milli-

grams per cubic meter of air.

(3) Any miner so transferred shall receive com-

pensation for such work at not less than the regular

rate of pay received by him immediateiy prior to his

transfer.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.