The Berwind Decision: Where Are We Now With Liability For Contract Miners?

Just prior to the close of the century, the Federal Mine Safety and Health Review Commission issued its long-awaited decision in Berwind Natural Resources, et al v. Secretary of Labor, to usher in the new millennium. The case arose as a result of a mine explosion in Eastern Kentucky resulting in MSHA’s issuance of 225 citations, not only to the contractor, but to four affiliated entities of Berwind Corporation. While an Administrative Law Judge dismissed those citations as to three of the Berwind entities, both MSHA and the remaining Berwind entity appealed the case to the Commission. Although the Commission effectively left intact the Administrative Law Judge’s decision, it announced a new theory of liability that would apparently be applied in the future, namely the Unitary Operator Theory. This presentation will provide an in-depth look into the Berwind decision and explore the means under which MSHA might impose liability for contractor violations upon other entities in the future.