Everyone in the United States will be affected by the Company’s appeal before the United States Court of Appeals, Ninth Circuit in San Francisco, California. The issue is more than just a mining one. It involves the legality of the imposition by one federal agency and a couple of its employees to define and designate the management of an American business. “There is no precedent for this unwanted infliction, yet we find ourselves defending accusations by the lawyer for the Department of Labor and the administrative judge for the same department. No witness presented evidence to support his claim”, said Michael M. Miller, company president.
Miller sent the following letter to 150 companies in California, Arizona and Nevada that are regulated by the federal Mines Safety Health Administration (MSHA). Prior to the deadline for filing a brief, he received one response. and asked for and received a postponement to August 23, 2004. “Will anyone recognize the importance of this abuse of process by the Federal administrative branch and two of its employees? Does anyone else care or comprehend the impact of this?” he wonders. If so, he asks you to come forward and help set the right precedent.
Newmont Mining, America’s largest gold mining company, placed a call to Miller several weeks ago. Its MSHA manager asked for details and commented how strange it was for the federal government to take such a legal pursuit of this issue. So far only one letter has been sent to the U.S. Court of Appeals. A fellow mine president writes:
“The case concerns a lead miner who died on the job, and the subsequent ruling that the company is responsible for the accident on the basis that the lead miner was management personnel. Whether or not the company’s position was properly argued in Court, I cannot say. However, I can state that in all my 50 years in the mining industry, I have never heard of a lead miner as being part of management. For that matter, I don’t know of any industry that classifies a lead man as management.
Typically, a lead miner would have the responsibility of conducting his specific job in one small location of the mine. He is considered the “lead” due to having the most experience, and thereby is entrusted with the direction and safety of the small group of miners that he works with. There may be several other lead miners in various areas of the mine, depending on the size of the operation.
Over the lead miners would be the shift foreman, who would be considered as part of the management team, and above that position would be the mine superintendent, or mine manager. Generally, at an underground mining operation, the foreman has several headings he is responsible for, but may only be able to inspect each one once or twice during the shift. This is one of the reasons for appointing a “lead” with the most mining experience, so he can keep watch over the area and report his observations and/or suggestions to the foreman.
The lead miner, however, would have no authority over any aspect of the mining operation, but is subject to the direction and decisions of the shift foreman. He cannot hire or fire employees; he cannot change his work location or his assigned task, or make any decisions other than those that directly affect his own job performance.
My conclusion as to the Court’s decision in this matter is that it may have been reached by someone unfamiliar with the working environment of the mining or construction industries. I sincerely hope that this writing, from someone who has been a mine owner for over 35 years, will serve as qualified testimony on behalf of the Original Sixteen to One Mine, and that this case will be carefully considered by the Court in the appeals process before a final decision is made.
Please feel free to contact me concerning this issue should uoy require any further information.”
THE FOLLOWING LETTER IS BEING CIRCULATED TO COMPANIES AND INDIVIDUALS FOR SUPPORT.
May 21, 2004
Dear Fellow Miners:
On November 6, 2004, one of our lead miners drove his trammer into a stationary overhang and died. The company was cited for three MSHA violations, which were challenged. The administration judge ruled in favor of MSHA. The company filed an appeal to the United States Court of Appeals in San Francisco, docket number: 04-71301. The opening brief and excerpts of record shall be served and filed on June 11, 2004.
The judge ruled that the miner was negligent and responsible for his own accident. He held the company responsible because the miner was a lead miner with one miner working with him. The judge held that a lead miner is management; therefore the company is guilty.
Our lead miner could not hire or fire employees. He could not change his workplace. His pay was on a regular schedule. He had no management duties other than being the one in charge of his workplace, something I believe all of us have in common in the industry.
There is no precedent for this assumption by the ALJ. Our regional MSHA people are not the ones driving this new interpretation of the codes. They actually do not approve of the concept. The unions are apparently not driving the concept either. I do not know who is but suspect it is the lawyers in government.
Original Sixteen to One Mine is a small company. It has been around longer than any other gold company. I have been its president since 1983. I believe that this decision will cost the mining industry dearly if it is upheld. It will affect your operations in the United States. It will also adversely affect America’s economic freedom and security. It must be overturned.
I seek your participation in some form, maybe an amicus brief. This injustice is important to all the miners in America. I feel somewhat inadequate to handle it alone. Over my mining career, the real MSHA guys have told me that until the industry stands up in court the abuses in judgment will continue. They have proven to be correct. I also realize that many of you are taking action against injustices in the operation of American mines. If no one recognizes the implications of this issue, we will do all we can to defeat the misguided interpretations of MSHA lawyers. If we lose, more American mining jobs will move into foreign lands. I would appreciate your help or acknowledgement that you are not in a position to participate.
Michael M. Miller,