Jesse Higgins v. Ray Marshall, Sec. Of Labor , 584 F.2d 1035 ( 1978 )

Opinion for the Court filed by SWY-GERT, Circuit Judge.

Dissenting opinion filed by J. SKELLY WRIGHT, Chief Judge.

SWYGERT, Circuit Judge:

The issue in this appeal is one of 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 contracts pneumoconiosis and opts to transfer to a position in a less dusty area of the mine] 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. § 843(b)(3) (emphasis added). What the “regular rate of pay” means is the question we must decide.

I '

During 1972 each of the plaintiffs-appellants, three coal miners 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. § 843(b)(1). Plaintiffs Jesse Higgins and Paul Gower transferred from positions as machine operators to positions as tracklayers; plaintiff William Gip-son transferred 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. Pursuant 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 received $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.¹ The plaintiffs unsuccessfully requested payment from Old Ben at the rate for their vacated positions.

In a complaint first filed with the Department of the Interior² and then refiled with the Department of Labor, the plaintiffs alleged that Old Ben was discriminating against them in violation of 30 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 increases they would have received had they not transferred. A Department of Labor administrative law judge denied relief, holding that Old Ben had not violated section 843(b)(3). The judge rejected the expansive construction 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 prevented such a construction. The administrative law judge’s order was affirmed in an unreported decision by the district court.

II

The question is whether the language of section 843(b)(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) 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 argued that one who exercises his option to transfer to a cleaner environment must continue to receive at least 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 la-tently if not patently ambiguous, and therefore this court must reconstruct how Congress would have decided the issue had it been specifically addressed, citing Judge Leventhal’s concurrence in District 6, UMWA v. IBMA, 183 U.S.App.D.C. 312, 562 F.2d 1260 (1977). They suggest that the legislative history provides such firm evidence in support of their more liberal construction 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 approaches 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 interpretation, a court first must look to the language of the act itself. Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (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, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1968). With these principles in mind, we find that the language of section 843(b)(3) is simple and straight-forward: 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.” We therefore find it unnecessary 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 eon-cern for protecting the transferring miner from loss in compensation.³ There is nothing to indicate that Congress meant to tie the compensation protection to the pay rate received 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 enactment 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, 37 S.Ct. at 194. 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 history in light of our holding that the meaning of the phrase “regular rate of pay” is clear and unambiguous, March v. United States, 165 U.S.App.D.C. 267, 274, 506 F.2d 1306, 1313 (1974), our research failed to uncover any conflicting history. Boston Sand and Gravel Company v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 73 L.Ed. 170 (1928). We do note one additional 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 modifying 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 section 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 provision in Title II to operate. As that legislative history shows, the House version of the bill included no such provision 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 promulgated under this Act] 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.

S. 717, 95th Cong., 1st Sess. § 201[102(a)(6)] (1977) (emphasis added). This language clearly would have required 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.⁴

After passage of the bills, a conference committee met to rfesolve the differences. The compensation protection provision of Title I, as finally enacted by both houses, includes the following language:

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 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 upon the new work classification,

30 U.S.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 functional capacity by further exposure to a toxic substance or harmful physical agent. After reassignment, 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 examination programs by insuring that miners who do participate in such programs shall suffer no immediate financial disadvantage if a medical examination results in a job reassignment.

H. Conf.Report No. 95-655, reprinted in [1977] U.S.Code Cong. & Admin.News, pp. 3401, 3490.

It is clear that non-coal miners transferred under section 811(a)(7) of the 1977 Act because of exposure to 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 843(b)(3) of the 1969 Act, its declaration would clearly have been entitled to great weight. But even in the absence of such express consideration, subsequent enactments are entitled to some weight. At the very least, the legislative history surrounding the enactment of section 811(a)(7) is consonant with our holding.

The judgment of the district court is affirmed.

1 . The applicable daily wage rate and the amounts actually paid to the miners are summarized as follows:

Machine Tracklayer/

Operator/ Bottom Amount

Date.s 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/(iay

Machine Tracklayer/

Operator/ Bottom Amount

Dates Repairman Laborer Paid Difference

12/06/74 to

12/05/75 $55.00 $47.03 $47.03 $7.07-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

2 . On 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).

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

4 . 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 statement 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 compensation. However, some mine operators have refused to pay transferees wage increases they would have received if they had remained in their former positions, and administrative relief from this practice has so far been denied. 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 203(b)(3) [843(b)(3)] of such Act is amended by striking out “received by him” and inserting in lieu thereof “being paid to miners performing the type of work such miner was performing.”

Congress did not adopt the proposed change.