dissenting:
I respectfully dissent.
The linchpin of the majority decision is that the language of section 203(b)(3) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 843(b)(3), is not susceptible to judicial interpretation because it is not ambiguous. In the majority’s view, the phraseology “not less than the regular rate of pay received by him immediately prior to his transfer” clearly means the amount of money received by the miner prior to his transfer rather than the regular contract classification rate which fixes the amount of money a miner is to receive from time to time. I think coal miners will be startled to discover this to be the plain meaning of this hoary provision of countless collective bargaining agreements. Their expectation, I submit, would be to the contrary — that the plain meaning of that phrase is the classification rate in which, of course, a miner in a given job classification receives incremental wage increases from time to time. Congress, of course, is no more privy than judges to the discrete vernacular of every industrial subculture. In divining its intent, however, we cannot assume it lacks the linguistic creativity to utilize language familiar to the governed. Since my colleagues, and others equally sincere and sensible, find a directly contrary unambiguous meaning, there are at least conflicting notions as to the plain meaning of this language. This, of course, requires resort to other statutory interpretative aids.
The parties argue the significance of wording in the 1977 amendments to the 1969 Act (which mandate similar transfer rights in non-coal mining industries). The original Senate version of the amendment provided:
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.
S. 717, 95th Cong., 1st Sess. § 201 (1977). The Senate Report made it clear that after transfer the miner would receive the subsequent pay increases of his former classification rate. S.Rep.No.95-181, 95th Cong., 1st Sess. (1977), reprinted in [1977] U.S.Code Cong. & Ad.News 3401. The House disagreed and added a specific limitation which appears in the final enactment. Thus the final language provides: “In the event of the transfer of a miner pursuant to [this section], increases in wages of the transferred miner shall be based under the new work classification.” 30 U.S.C. § 811(a)(7). The Conference Report indicates that the only protection provided for transferred miners in non-coal mines is protection from immediate economic disadvantage. H.R. Rep.No.95-655, 95th Cong., 1st Sess. 42 (1977), reprinted in [1977] U.S.Code Cong. & Ad.News 3401, 3485. The appellees contend that the inclusion of this specific limitation in the 1977 amendments for non-coal miners is a strong indication that Congress did not intend such a limitation to apply when it previously passed the 1969 Act which, of course, pertains to coal miners only.
The appellants point out, on the other hand, that Congress was solicited by the United Mine Workers to amend the language relating to coal miner transfers to specifically require that a transferred miner’s wages be increased according to his old classification. Congress declined to take that action and appellants argue this indicates an original intent that wages be increased according to the miner’s new classification. See majority opinion at 430, n. 6.
In my view, neither argument is persuasive. Such conjecture is of little efficacy in determining congressional intent. Section 203(b)(3) was enacted in 1969. The amendments containing the transfer provisions for non-coal miners were enacted in 1977. It was then — when the 1977 amendments were under consideration — that the United Mine Workers asked the congressional committee to amend the coal miner transfer provisions. To state the obvious, the composition of Congress in 1977 varied considerably from that of 1969; the intent of the one political body provides little guidance as to the intent of the other.
*432I am persuaded, however, as was Judge Wright in his dissent in Higgins v. Marshall, 584 F.2d 1035 (D.C.Cir.1978), cert. denied, 441 U.S. 931, 99 S.Ct. 2051, 60 L.Ed.2d 659 (1979), that Congress telegraphed the intent of the involved language in section 2 of the 1969 Act, 30 U.S.C. § 801(a). In section 2, Congress declared that the first priority and concern of all in the coal mining industry must be the health and safety of its most precious resource — the coal miner. 30 U.S.C. § 801(a). Congress elsewhere explicitly directed that “the Act be construed liberally when improved health or safety to miners will result.” Conf.Rep.No. 91-761, 91st Cong., 1st Sess. 1, reprinted in [1969] U.S.Code Cong. & Ad.News 2578, 2578. Most significantly, the intent of section 203(b)(3) was summarized by a Senate Report as follows:
In order to insure that miners who are afflicted with pneumoconiosis suffer no loss in compensation, the committee 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.
S.Rep.No.91-411, 91st Cong., 1st Sess. 49 (1969), quoted in Higgins v. Marshall, 584 F.2d at 1041-42 (Wright, C. J., dissenting). Loss was not restricted to potential loss immediately after transfer; the Senate emphasized without qualification that the miner was to suffer no loss of compensation.
During a period of six months after his transfer, Matala received the same wages he had previously received. A year later he was receiving $8.00 per day less than he would have received had he endured the risk of aggravating his industrially-imposed black lung condition by staying in his old position. Two new coal collective bargaining agreements have since been executed. The new contracts and future contracts responding to modern inflation accelerate his loss of pay. There is little doubt that coal miners suffering with black lung, now offered the choice of preserving their health only by transferring at the expense of their families will, for the most part, accept the dangers of their present positions to maintain an undiminished standard of living. Such a result is inconsistent with congressional passage of this remedial legislation.