United States Court of Appeals, Tenth Circuit

783 F.
2d 155
1986-1987 O.S.H.D. ( 27,490
EMERY MINING CORPORATION, Petitioner/Appellant,

v.
SECRETARY OF LABOR, MINE SAFETY & HEALTH
ADMINISTRATION
("MSHA"), and Federal Mine Safety and Health
Review Commission, Respondents/Appellees,
United Mine Workers of America, Intervenor.
No. 83-2017.
United States Court of Appeals,

Tenth Circuit.
Jan. 31, 1986.
Thomas C. Means (Timothy M. Biddle with him on brief) of Crowell &

Moring, Washington, D.C., for petitioner/appellant, Emery Min. Corp.
Cynthia L. Attwood (Francis X. Lilly, Deputy Solicitor of Labor, Michael
A. McCord, Counsel, Appellate Litigation, and Linda L. Leasure, Atty.,
with her on brief), U.S. Dept. of Labor, Office of the Solicitor, Arlington,
Va., for respondent/appellee, Secretary of Labor.
Earl R. Pfeffer, Washington, D.C., for intervenor, United Mine Workers
of America.
Before BARRETT and MOORE, Circuit Judges, and THEIS, * District
Judge.
BARRETT, Circuit Judge.
Emery Mining Corporation (Emery) seeks review of an order of the Federal

Safety and Health Review Commission (Commission) affirming the decision of
an administrative law judge (ALJ) finding that Emery had violated the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. Sec. 801 et seq. (Act). This is a
case of first impression.
Emery operates an underground coal mine in Emery County, Utah, and is an

"operator" under the Act. Section 115(a) of the Act provides in part:
Each operator of a coal or other mine shall have a health and safety training
program which shall be approved by the Secretary.... Each training program
approved by the Secretary shall provide as a minimum that--
(1) new miners having no underground mining experience shall receive no less
than 40 hours of training if they are to work underground....
Section 115(b) of the Act provides in part:
Any health and safety training provided under subsection (a) of this section
shall be provided during normal working hours. Miners shall be paid at their
normal rate of compensation while they take such training, and new miners
shall be paid at their starting wage rate when they take the new miner training.
Section 3(g) of the Act defines a miner as "any individual working in a coal or
other mine."
Prior to the adoption of the Act in 1977, Emery hired its new miners and sent
them to the College of Eastern Utah for pre-employment training courses. After
passage of the Act, Emery continued this practice for several years. During
1979, however, Emery experienced a 48% turnover in inexperienced miners;
450 were hired and 190 terminated in the first 3 months. (R., Vol. I at 262, ALJ
Findings of Fact No 11.)
On January 1, 1980, Emery changed its hiring policy. Under its new hiring
policy Emery hired only experienced miners or those applicants who had
completed a 32 hour training program for new miners required by Sec. 825(a).
Emery did not pay its new miners for their time in taking the training course.
Rather, as set forth, Emery hired only experienced miners or those who had
already taken an approved training course. The reason for Emery's change in
the personnel policy was to screen out those persons who were not interested in
a mining career and thereby reduce the turnover rate. (Id., ALJ Findings of Fact
No. 13.)
10
On September 22, 1980, the Secretary of Labor (Secretary) filed a complaint of

discrimination against Emery on behalf of twelve Emery employees, each of
whom had been hired after January 1, 1980, and each of whom had personally
paid for their training courses prior to being employed by Emery. In his
complaint, the Secretary alleged that Emery had discriminated against the
twelve in violation of the Act by failing to compensate them for their training.
The Secretary requested an order directing that Emery "pay each complainant
back wages at the normal rate of compensation during training, and
reimbursement for all such training." (R., Vol. I at 2.)After an administrative
hearing the ALJ found: the twelve applicants (complainants) successfully
completed, at their own expense, 32 hours of training at a training course
approved under the Act; some of the twelve complainants initially contacted
Emery and were referred to Job Service1 where they were advised to take 32
hours of mining training, and, subsequent to completing the training at their
own expense, were hired by Emery; and some of the complainants initially
contacted Job Service where they were advised to take the mining training
courses and, subsequent to completing the training at their own expense, were
hired by Emery.
11
The ALJ also found that Emery has the right to impose legitimate preemployment qualifications on those who wish to be employed at its mines.
However, the legitimacy of Emery's pre-employment requirement of 32 hours
of miner's training depends on whether it conflicts with the Act. The ALJ
reasoned that because the Act places the responsibility for training of miners on
the operators, Emery's pre-employment qualification failed since it was in
conflict with the statutory right to training provided for in the Act. The ALJ
found that Emery discriminated against the complainants, in violation of the
Act, by requiring them to secure on their own time and at their own expense the
32 hours of training.
12
After the ALJ entered a decision finding that Emery had discriminated against
the twelve in violation of the Act, he ordered Emery to pay each complainant:
four days back pay in the amount of $263.12; tuition costs for the training
program; and, where applicable, mileage and incidental costs for meals and
motel expenses. The ALJ also assessed Emery a civil penalty of $1,000 for
violating the Act.
13
On appeal the Commission affirmed the ALJ's decision. In so doing the

Commission found: an employer has the right to choose its employees; and,
Sec. 825 grants two separate, related rights, i.e., to receive 40 hours of safety
training before working underground and to be compensated for the time and
expenses of that training by the mine operator. While the Commission found
that Emery's policy of requiring training prior to employment did not violate
the Act, it found Emery did violate the Act when, after hiring the complainants
as new miners, it refused to compensate them for their 32 hours of training
while nevertheless relying on that training to satisfy Emery's obligations under

the Act.
14
In its petition for review, Emery contends it is not required to compensate

persons for training received prior to the time they were employed as miners,
that the Commission's decision is arbitrary, and that the Commission
improperly allowed the ALJ's award of expenses to stand.
Discussion
15
Emery contends that the Act requires compensation only for individuals who
receive training while they are miners and that the Commission's theory "that
Emery must pay wages to and the training expenses of those persons who took
the training on their own and were subsequently hired finds no support in the
language of the Act." (Brief of Petitioner Emery Mining Corporation at 19.)
Emery contends that the Commission erred in finding that Emery violated the
Act when Emery, after hiring the complainants as new miners, refused to
compensate the miners for their training while simultaneously relying on that
training to satisfy the training requirements of the Act.
16
We hold, based on the record and with particular reference to those portions
thereof which establish beyond cavil that the applicants voluntarily took the
courses without any relationship to Emery and that Emery's pre-employment
policy of experience or training was adopted solely for the bona fide and
legitimate business reason to screen out those persons who were not interested
in a mining career thus reducing Emery's turnover rate, that Emery's hiring
policy did not violate the Act. The ALJ and Commission erred in finding
Emery in violation of the Act and liable for back wages, training and related
expenses of the twelve complainants. We must deny enforcement of the
Commission's order.
17
Significantly, neither the Act, nor any of the detailed regulations governing its
implementation, address the precise issue presented here: whether a mine
operator must pay for the training courses and related expenses assumed by an
individual who voluntarily takes the courses on his own initiative and who,
during that time, is not associated with or employed by the mine operator?
18
During hearings before the Commission Emery repeatedly argued that it should
not have to pay for the training expenses herein:
19
I want to emphasize three points about Emery's pre-employment criteria. First,
there was absolutely no obligation on the part of any individual, including these
12 claimants, to take the training; it was totally voluntary.
20
Second, Emery had no relationship whatsoever with any of these individuals

when they took the training. Emery did not even know who they were.
21
Third, once an individual completed the training, he or she had no obligation to

Emery at all. The person was free to work for another mining company, or
choose to not work in mining at all.
22
Now, both MSHA [Mine Safety and Health Administration] and the Union
appear to agree that Emery like any employer, is free to impose any legitimate
pre-employment qualifications it desires. For instance, if Emery wanted to do
so, it could simply say that it was only going to hire individuals who had
mining engineering degrees.
***
23
***
24
25
However, both MSHA and the Union argue that Emery has an obligation to pay
inexperienced individuals for whatever basic training they receive prior to the
time they are employed.
26
Nothing in the Act or the legislative history suggests that a new employee must
be paid wages and expenses for the time spent in a course he voluntarily took
prior to the time he was employed.
27
(R., Vol. I at 383-84 (emphasis supplied).) Furthermore Sec. 802(g) defines a

"miner" as "any individual working in a coal or other mine." Section 825
requires each mine operator to have a training program and that "new miners"
having no underground experience shall receive 40 hours of training. Section
825 also provides that "miners" receiving training under the section shall be
compensated while taking the training.
28
It is uncontested that none of the twelve complainants herein was a miner as

defined by the Act nor an employee of Emery at the time they took the training
for which they now seek compensation. We hold that because the complainants
were not miners as defined by the Act, they are not entitled to compensation for
the 32 hours of training they voluntarily undertook, "back wages," and other
expenses incurred in completing the training program.
29
The Secretary, while acknowledging that the twelve complainants were not
employed by Emery or any other mine operator at the time they took their
training programs, argues that Emery cannot limit its applicant pool to
individuals who have received thirty-two hours of training, and that Emery
must pay the complainants back wages, tuition and related expenses incurred in
receiving their training. Emery responds that it has the right to impose
reasonable prehiring qualifications, including the right to hire only experienced
miners or applicants, and that, accordingly, it is not obligated to pay for the
complainants' training.
30
Emery's position is supported by the Commission's finding that the Act does
not restrict a mine operator's "prerogative of setting pre-employment
qualifications based on experience or training":
31
An employer has the right to choose its employees. See NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1, 45-46 [57 S.Ct. 615, 628, 81 L.Ed. 893]
(1937). This principle has been stated succinctly as follows: "[A]n employer
may exercise its right to refuse to hire for any reason or no reason at all as long
as statutory or constitutional provisions are not violated." Carter v. Seaboard
Coast Line Railroad Co., 392 F.Supp. 494, 499 (S.D.Ga.1974). Further, statutes
that potentially limit an employer's right to select its employees, for example
Title VII, are not violated when an employer refuses to hire an applicant
protected by such an Act because the applicant lacks bona fide occupational
qualifications. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 436 [91
S.Ct. 849, 856, 28 L.Ed.2d 158] (1971). We believe that in the Mine Act
Congress did not restrict a mine operator's prerogative of setting preemployment qualifications based on experience or training. Thus, Emery's
policy of requiring inexperienced job applicants to obtain 32 hours of MSHAapproved training prior to hire does not violate the Mine Act.
32
(R., Vol. I at 450-51.)
33
We hold that the Commission properly found that Emery's pre-employment

policy of requiring 32 hours of training did not violate the Act. However, under
the facts and circumstances of this case, we must hold that the Commission
erred when it subsequently found that Emery violated the Act by refusing to
pay its new hires for back wages, tuition and related expenses they incurred in
receiving 32 hours of training before being employed by Emery. We agree with
Emery that "[n]othing in the Act or the legislative history suggests that a new
employee must be paid wages and expenses for the time spent in a course he
voluntarily took prior to the time he was employed." (R., Vol. I at 383).
34
Within its decision the Commission candidly acknowledged that "none of the
Secretary's otherwise extensive regulations" addressed the "situation
encountered in this case." Also, although the Secretary argues laboriously that
Emery's construction of the term "miner" as defined under the Act is too
restrictive, we view Emery's analysis to be the more persuasive.
35
We cannot infer legislative provisions out of silence. Quivira Mining Company

v. United States E.P.A., 728 F.2d 477 (10th Cir.1984). The parties concede that
none of the "otherwise extensive regulations" or the Act itself addresses the
issue before us. The Act requires training for "new miners," and it defines
"miners" as "individuals working in a coal or other mine." None of the twelve
complainants were "miners" under the Act or employed by Emery at the time
they undertook their training. When, as here, a statute is clear on its face, we
cannot expand the Act beyond its plain meaning.
36
We deny enforcement of the Commissioner's order.
The Honorable Frank G. Theis, United States District Judge for the District of
Kansas, heard oral argument but did not participate in this opinion
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783 F.

EMERY MINING CORPORATION, Petitioner/Appellant,

United States Court of Appeals,

Thomas C. Means (Timothy M. Biddle with him on brief) of Crowell &

Emery Mining Corporation (Emery) seeks review of an order of the Federal

Emery operates an underground coal mine in Emery County, Utah, and is an

Section 115(b) of the Act provides in part:

On September 22, 1980, the Secretary of Labor (Secretary) filed a complaint of

On appeal the Commission affirmed the ALJ's decision. In so doing the

while nevertheless relying on that training to satisfy Emery's obligations under

In its petition for review, Emery contends it is not required to compensate

I want to emphasize three points about Emery's pre-employment criteria. First,

Second, Emery had no relationship whatsoever with any of these individuals

Third, once an individual completed the training, he or she had no obligation to

(R., Vol. I at 383-84 (emphasis supplied).) Furthermore Sec. 802(g) defines a

It is uncontested that none of the twelve complainants herein was a miner as

(R., Vol. I at 450-51.)

We hold that the Commission properly found that Emery's pre-employment

We cannot infer legislative provisions out of silence. Quivira Mining Company

We deny enforcement of the Commissioner's order.

An agency of the State of Utah Department of Employment Security

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