Mullins v. Beth-Elkhorn Coal Corporation

Plain-English summary

Jimmy R. Mullins alleged that Beth-Elkhorn Coal and the United Mine Workers discriminated against him after an arbitration award removed him from a dispatcher position tied to his Part 90 transfer rights. The Commission held that Part 90 entitles a qualifying miner to a compliant low-dust position, but does not give the miner the right to choose a particular job. It reversed the ALJ's decision, vacated the finding that the union was an operator, and dismissed Mullins's discrimination complaint.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(1); 30 C.F.R. §§ 90.3(a), 90.100, 90.101, 90.102(a), and 90.103
• Outcome: The ALJ decision was reversed, the complaint was dismissed, and the union-operator finding was vacated.
• Key point: Part 90 protects transfer to qualifying low-dust work, not assignment to a miner's preferred position.

Full text (FMSHRC public release)

CCASE:
JIMMY MULLINS V. BETH-ELKHORN COAL
DDATE:
19870528
TTEXT:

FMSHRC-WDC
MAY 28, 1987

JIMMY R. MULLINS

  v.

BETH-ELKHORN COAL CORPORATION, Docket No. KENT 83-268-D

LOCAL 1468, DISTRICT 30,
UNITED MINE WORKERS OF
AMERICA

  and

INTERNATIONAL UNION, UNITED
MINE WORKERS OF AMERICA

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners

               DECISION

BY THE COMMISSION:

This proceeding involves a discrimination complaint filed by

Jimmy R. Mullins pursuant to the Federal Mine Safety and Health Act
of 1977. 30 U.S.C. $ 801 et seq. (1982)("Mine Act"). The complaint
alleges that Mullins' removal from a dispatcher's job pursuant to an
arbitration award resolving a seniority grievance violated section
105(c)(1) of the Mine Act by contravening his rights under 30 C.F.R.
Part 90 ("Part 90"). 1/ Former Commission Administrative Law Judge
Richard C. Steffey

1/ In relevant part, section 105(c)(1) of the Mine Act provides:

No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any

Page 2

miner, representative of miners or applicant for
employment in any coal or other mine subject to this
[Act] because such miner, representative of miners
or applicant for employment ... is the subject of
medical evaluations and potential transfer under a
standard published pursuant to section [101] of this

Page 3

~892
found that the removal of Mullins from the dispatcher's job
constituted unlawful discrimination, ordered that Mullins be
reinstated to that position, and awarded back pay, expenses,
and attorney's fees. 7 FMSHRC 1819 (November 1985)(ALJ). The
Commission granted petitions for discretionary review filed by
Beth-Elkhorn Corporation ("Beth-Elkhorn"), Local 1468, District 30,
United Mine Workers of America ("UMWA"), and the International
Union, UMWA. 2/ The Secretary of Labor ("Secretary") filed an
amicus curiae brief in support of petitioners. Because we conclude
that miners' Part 90 rights do not entitle miners to particular
transfer positions, we reverse.

                I.

The parties stipulated to the relevant facts. 7 FMSHRC

at 1821-25. Mullins began working for Beth-Elkhorn at its No. 26
underground coal mine in 1970. At all times relevant to this
proceeding, the UMWA represented miners at this mine for collective
bargaining purposes. Until February 1981, Mullins worked as a
repairman on a non.production maintenance shift. In May 1980,
Mullins had a chest x ray that evidenced pneumoconiosis, and the
Department of Labor's Mine Safety and Health Administration ("MSHA")
informed Mullins and Beth-Elkhorn of Mullins' option under Part 90 to
work in an area of the mine in which the average concentration of
respirable dust in the atmosphere was continuously maintained at or
below 1.0 mg/m3. See 30 C.F.R. $$ 90.1 & 90.3. Because the average
concentration of respirable dust in the mine atmosphere in which
Mullins was working was maintained at or below 1.0 mg/m3, Mullins
continued to work in his repairman's position.

On February 3, 1981, through exercise of his seniority rights
under the National Bituminous Coal Wage Agreement of 1981 ("the
Agreement"), the collective bargaining agreement to which Beth-Elkhorn
and the UMWA were parties, Mullins secured a job as an electrician on

 [Act] ... or because of the exercise by such
 miner, representative of miners or applicant for
 employment on behalf of himself or others of any
 statutory right afforded by this [Act].

30 U.S.C. $ 815(c)(1).

Under 30 C.F.R. Part 90, as relevant here, a miner determined

by the Secretary of Health and Human Services to have evidence of
the development of Black Lung disease (pneumoconiosis) is given the

Page 4

opportunity to work without loss of pay in an area of the mine where
the average concentration of respirable dust in the mine atmosphere
during each shift to which that miner is exposed is continuously
maintained at or below 1.0 milligrams per cubic meter of air
("mg/m3"). 30 C.F.R. $ 90.3.

2/ For the sake of brevity, Local 1468, District 30, and the
International Union of the UMWA are referred to herein as the "UMWA"
or "the Union" unless the context requires a more specific reference.

Page 5

~893
the second shift, also a non-production shift. 3/ In September 1981
a sampling of the atmosphere in the area in which Mullins was working
revealed that the average concentration of respirable dust exceeded
1.0 mg/m3. MSHA issued Beth-Elkhorn a citation alleging a violation
of 30 C.F.R. $ 90.100 for failing to maintain the required low dust
mine atmosphere where Mullins was working. Mullins became eligible
again under Part 90 for transfer to a job in a less dusty area of
the mine. Although Beth-Elkhorn offered to transfer Mullins to a
less dusty area, he elected to waive his transfer option, pursuant
to 30 C.F.R. $ 90.104(a), and to retain the electrician's job. 4/ By
letter dated October 15, 1981, Beth-Elkhorn informed MSHA that it did
not believe that the dust in Mullins' work area could be maintained at
the appropriate level but that Mullins had elected to waive his Part
90 transfer rights and remain in the electrician's position. Based on
Mullins' waiver, MSHA terminated the previously issued citation.

Approximately one year later, in September 1982, the

dispatcher's job on the second shift became permanently vacant and was
advertised for bidding in the mine. By letter dated September 17,
1982, Mullins informed MSHA that he now wished to re-exercise his
Part 90 rights to obtain that particular job. In his letter, Mullins
stated, "If I cannot obtain this job as a dispatcher, then I do not
wish to re-exercise my rights as a Part 90 miner." Exh. 9. In
response, MSHA notified Beth-Elkhorn in November 1982 that Mullins
had exercised his option "to work in a low dust area," and that "by
the 21st calendar day after receipt of the notification .. [Mullins]
must be working in an environment which meets the [1.0 mg/m ]
respirable dust standard." Exh. 11.

 Mullins also bid on the dispatcher's job under the seniority

provisions of the Agreement. Another bidder for the job, Norman
Caudill, had greater mine seniority but was not a Part 90 miner.
Beth-Elkhorn awarded the job to Mullins based on the "superseniority
provision" of Article XVII(i)(10) of the Agreement, which gives a
onetime job preference to Part 90 "production crew" members. 5/

3/ Article XVII(i) of the Agreement specifies that the filling of
all permanently vacant jobs and new jobs created during the term of
the contract shall be made on the basis of seniority. Article XVII(a)
defines "seniority" as "Length of service and the ability to step into
and perform the work of the job at the time it is awarded." Exh. 27,
pp. 64-76.

4/ 30 C.F.R. $ 90.104(a) provides that miners, through notification
or other actions, may waive their Part 90 rights. This section also

Page 6

permits miners to re-exercise their Part 90 rights following a waiver.
30 C.F.R. $ 90.104(c).

5/ Article XVII(i)(10) states:

 If the job which is posted involves work in a
 "less dusty area" of the mine (dust concentrations
 of less than one milligram per cubic meter), the
 provisions of the Article shall not apply if one of

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~894
Under the Agreement's procedures, Caudill filed a grievance
with respect to Beth-Elkhorn's decision to award Mullins the job.
The UMWA's Local 1468, District 30 represented Caudill, and the
grievance proceeded to arbitration. In an opinion issued on April 15,
1983, the arbitrator sustained Caudill's grievance. The arbitrator
held that the superseniority provision of Article XVII(i)(10) applies
only to Part 90 miners who are members of a "production crew," and
that Mullins, as an electrician on a non-production maintenance shift,
was not entitled to the onetime preference. Consequently, the
arbitrator awarded the job to Caudill. Exh. 18.

Subsequent to the award, Beth-Elkhorn representatives met

with Mullins and informed him that they would comply with the
arbitrator's ruling by giving the dispatcher's job to Caudill.
They also advised him that he could return to his former electrician's
position or begin a new job as a repairman on the same non-production
shift. The repairman's job carried the same hourly rate of pay and,
in Beth-Elkhorn's opinion, was in a mine atmosphere that (unlike the
electrician's position) complied with the 1.0 mg/m3 dust standard.
After this meeting, Mullins chose to return to his job as an
electrician.

 In a letter dated May 2, 1983, Beth-Elkhorn informed MSHA of

these developments and stated that, in its opinion, Mullins' choice
constituted a waiver, pursuant to 30 C.F.R. $ 90.104, of his Part 90
transfer rights. At about the same time, Mullins filed a complaint
with MSHA alleging, in essence, that his removal from the dispatcher's
position discriminatorily denied him his Part 90 rights in violation
of section 105(c)(1) of the Mine Act. Following an investigation of
the complaint, MSHA determined that Mullins had not been subjected to
illegal discrimination under the Act and declined to prosecute a
complaint on Mullins' behalf. Mullins then instituted the present
proceeding before this independent Commission pursuant to section
105(c)(3) of the Act. 30 U.S.C. $ 815(c)(3).

In an eighty-page decision favoring Mullins, the judge found

that Mullins had engaged in protected activity under section 105(c)(1)
of the Mine Act when he re-exercised his Part 90 transfer rights and
bid on the job of dispatcher. 7 FMSHRC at 1850-54. The judge
concluded that

 the bidders is an Employee who is not working in
 a "less dusty area" and who has received a letter
 from the U.S. Department of Health and Human
 Services informing him that he has contracted

Page 8

black lung disease and that he has the option to
transfer to a less dusty area of the mine. In such
event, the job in the less dusty area must be awarded
to the letterholder on any production crew who has
the greatest mine seniority. Having once exercised
his option, the letterholder shall thereafter be
subject to all provisions of this Article pertaining
to seniority and job bidding. This section is not
intended to limit in any way or infringe upon the
transfer rights which letterholders may otherwise be
entitled to under the Act.

Page 9

~895
Article XVII(i)(10) of the Agreement itself discriminated against
and interfered with the rights of Part 90 miners by restricting
them to a onetime only exercise of superseniority in bidding on
vacant jobs and by giving preference in job placement only to
Part 90 production crew members. 7 FMSHRC at 1844-45, 1854-61.
The judge held that the UMWA discriminated against Mullins "when
[it] brought a grievance to arbitration and succeeded in obtaining
an interpretation of Article XVII(i)(10) of the [Agreement] which
resulted in an award of a job performed in [a low dust area] to a
miner who did not have any Part 90 rights at all." 7 FMSHRC at 1850.
The judge further held that Beth-Elkhorn discriminated against
Mullins by removing him from the dispatcher's job in compliance
with the arbitrator's award. 7 FMSHRC at 1868-73. In reaching
this conclusion, the judge opined that Beth-Elkhorn should have
"re-examine[d] the [Agreement] ... to determine why it should not be
revised in order to permit all Part 90 miners to bid on vacancies in
positions performed in less than 1.0 milligrams of respirable dust."
7 FMSHRC at 1872. Finally, the judge concluded that the UMWA was an
"operator" as defined in section 3(d) of the Mine Act, and
consequently could be assessed a civil penalty for the violation of
section 105(c)(1). 7 FMSHRC at 1841-44.

                 II.

The principal question presented.is whether the judge erred

in concluding that Mullins enjoyed the right to obtain a particular
Part 90 transfer position -- here, the dispatcher's job on the second
shift --and that Beth-Elkhorn's award of that job to another miner
pursuant to the arbitration decision violated section 105(c)(1) of the
Mine Act. There is no dispute that a Part 90 miner, upon exercising
his transfer option, has the right to be transferred to a position
satisfying the requisite Part 90 criteria. We hold, however, that a
Part 90 miner is not entitled to dictate to the operator or otherwise
specify the particular position to which the transfer must be made.
We find no statutory or regulatory basis for the judge's contrary
views.

The general principles governing analysis of discrimination

cases under the Mine Act are settled. In order to establish a
prima facie case of discrimination under section 105(c) of the Act,
a complaining miner bears the burden of production and proof in
establishing that (1) he engaged in protected activity and (2) the
adverse action complained of was motivated in any part by that
activity. Secretary on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2797-2800 (October 1980) rev'd on other grounds sub.

Page 10

nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal Co.,
3 FMSHRC 803, 817-18 (April 1981). The operator may rebut the
prima facie case by showing either that no protected activity occurred
or that the adverse action was in no part motivated by protected
activity. If an operator cannot rebut the prima facie case in this
manner, it nevertheless may defend affirmatively by proving that it
also was motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected activity
alone. Pasula, supra: Robinette, supra. See also Eastern Assoc.
Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v.
Stafford Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984):

Page 11

~896
Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically
approving the Commission's Pasula-Robinette test).

The first question is that of protected activity: Did

Mullins enjoy the right under the Mine Act and Part 90 to transfer
to a specific position? The Commission has established some broad
guidelines relevant to that question. We have held that section
105(c) of the Act bars discrimination against or interference with
miners who are "the subject of medical evaluations and potential
transfer" under the Part 90 standards. Goff v. Youghiogheny & Ohio
Coal Co., 7 FMSHRC 1776, 1780-81 (November 1985)("Goff I"). We have
emphasized the importance of the rights and protections conferred by
Part 90 and the related provisions of the Act, but have recognized
that their extent is not unlimited. For example, neither the Act nor
Part 90 entitles a qualifying miner to work in a mine environment
totally free of respirable dust. Goff v. Youghiogheny & Ohio Coal
Co., 8 FMSHRC 1860, 1865 (December 1986)("Goff II"). Claims of
protected activity and discrimination in this context must be resolved
upon the basis of a careful review of the structure of miners' rights
and operators' obligations contained in the pertinent statutory and
regulatory texts.

In general, key provisions of the Mine Act and related

mandatory health standards require that the average concentrations
of respirable dust and of respirable dust containing.quartz in the
atmospheres of active workings in coal mines be maintained at or
below specified low levels. 30 U.S.C. $$ 842 & 845; 30 C.F.R.
$$ 70.100 et seq. & 71.100 et seq. Section 101(a)(7) of the Act
further authorizes the Secretary to develop improved mandatory
health or safety standards providing that miners whose health has
been impaired by exposure to a designated hazard "shall be removed
from such exposure and reassigned." 6/ As we stated in Goff I,
"Part 90 implements this statutory mandate by providing for the
transfer of miners who, as a result of exposure to the health hazard

6/ In relevant part, section 101(a)(7) states:

          Where appropriate, [any mandatory health or
 safety standard promulgated under this subsection]
 shall provide that where a determination is made
 that a miner may suffer material impairment of health
 or functional capacity by reason of exposure to ...
 [a] hazard covered by such mandatory standard, that
 miner shall be removed from such exposure and reassigned.
 Any miner transferred as a result of such exposure shall

Page 12

continue to receive compensation for such work at no
less than the regular rate of pay for 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 miners shall be based on the new work
classification.

30 U.S.C. $ 811(a)(7)(emphasis added).

Page 13

~897
of respirable dust, have developed pneumoconiosis." 7 FMSHRC
at 1778 n. 3. The improved Part 90 standards supercede the interim
mandatory health standards contained in section 203(b) of the Mine
Act, 30 U.S.C. $ 843(b), which provided specifically for the transfer
of miners with evidence of development of pneumoconiosis "to another
position in any area of the mine." (Emphasis added.)

 The Part 90 transfer option encompasses three basic rights:

(1) to be assigned work in "an area of a mine" where the required
Part 90 dust concentration levels are continuously maintained
(30 C.F.R. $$ 90.3(a), 90.100 & 90.101); (2) in "an existing position"
at the same mine on the same shift or shift rotation or, if the miner
agrees in writing, in "a different coal mine, a newly.created position
or a position on a different shift or shift rotation" (30 C.F.R.
$ 90.102(a)); and (3) at no less than the regular rate of pay earned
by the miner immediately before exercise of the transfer option
(30 C.F.R. $ 90.103)(emphases added). It is the duty of operators to
effectuate these rights as applicable with respect to their Part 90
miners.

Nothing in the quoted texts -- from superseded section 203(b)

of the Mine Act (supra) to the present Part 90 standards -- requires
that eligible miners be transferred to particular positions. On
the contrary, placement in a position meeting the relevant
dust concentration criteria is all that is required. As the
Secretary points out in his amicus curiae brief, "Part 90 allows
an operator to respond with flexibility to a miner's request to work
in a less dusty area." S. Br. 8. Not only may the operator offer
the Part 90 miner transfer to a range of qualifying positions within
less dusty areas (30 C.F.R. $ 90.102), but also may elect to maintain
or bring the miner's existing work area into compliance with the
applicable Part 90 dust standards (30 C.F.R. $$ 90.100 & 90.101).
45 Fed. Reg. 80, 760-761 (December 5, 1980)(Secretary's official
commentary on final Part 90 regulations).

The pertinent legislative and regulatory histories make clear

that the fundamental purpose of these transfer provisions is the
protection of miners' health -- not the distribution of specific
jobs. Thus, in originally enacting as part of the 1969 Coal Act the
provision that became section 203(b) of the Mine Act, a key House
report states: "The committee considers this section ... equal in
importance to the dust control section for decreasing the incidence
and development of pneumoconiosis." H. Rep. No. 563, 91st Cong.,
1st Sess. 20 (1969), reprinted in Senate Subcommittee on Labor,
Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I

Page 14

Legislative History of the Federal Coal Mine Health and SafetY Act
of 1969, at 1050 (1975): see also Id. at 1071 72, 1199 & 1551.
The legislative history of the Mine Act again reveals that the
congressional emphasis is on decreasing the incidence of
pneumoconiosis. S. Rep. No. 181, 95th Cong., 1st Sess. 22-23 (1977),
reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative HistorY of the Federal
Mine Safety and Health Act of 1977. at 610-11 (1978); see also Id.
at 1320.

Moreover, the Secretary's official comments concerning the

final Part 90 standards adopted by him expressly indicate that while a
Part 90 miner is entitled to an opportunity to remove himself from
potentially

Page 15

~898
harmful concentrations of respirable dust a mine operator retains
"a margin of latitude" and "some flexibility in the placement of a
Part 90 miner, particularly in view of "unforeseen situations and
unexpected mine and market conditions." 45 Fed. Reg. at 80,765-66.
Thus, while an operator is required to provide a miner exercising his
Part 90 option with a job that meets the applicable dust concentration
limit, the operator retains an important measure of discretion to
choose the specific job that is offered, provided the job meets the
criteria specified in Part 90 regarding the mine involved, the shift
or shift rotation, and the rate of pay. To the extent that the judge
interpreted the Secretary's official comments as supporting a
conclusion to the contrary (7 FMSHRC at 1838-39), the judge erred. 7/

We also note the explanatory construction of the Part 90

regulations provided us by the Secretary on review:

 The intent of Part 90 is that the specific job
 assignment of a Part 90 miner remains essentially a
 management decision made by the operator. ... In
 promulgating Part 90, the Secretary did not intend
 that an operator be required to give an eligible
 miner a specific job, but instead that the operator
 be obliged only to give him the opportunity to work in
 low dust concentrations. Any other interpretation of
 Part 90 destroys the flexibility the regulation is
 intended to provide. For example, it would be pointless
 for the standard to give an operator the option of bringing
 the dust level on the miner's present job into compliance
 with the standard if the miner nevertheless could require
 the operator to transfer him to a different specific job
 of his own choosing.

S. Br. 8-9.

In sum, we find nothing in the language, purpose or history

of the Mine Act or of Part 90 that grants Part 90 miners the right
to secure specific jobs that they desire. Here, Mullins attempted
to exercise his Part 90 transfer option by seeking only the specific
job of dispatcher. (As noted, Mullins' transfer request to
Beth-Elkhorn stated: "If I cannot obtain this job as a dispatcher,
then I do not wish to re-exercise my rights as a Part 90 miner.")
Mullins, of course, had the

7/ In his Federal Register comments the Secretary rejected a
recommendation that Part 90 miners be assigned only to vacant

Page 16

existing job to avoid "bumping" non-Part 90 miners from their jobs.
45 Fed. Reg. at 80,766. We read the Secretary's statement that
"there will be occasions where an operator will assign a Part 90
miner to a position currently held by a non-Part 90 miner" not as an
indication that a Part 90 miner is entitled to a particular job over
a miner with more seniority, but rather as recognition that in the
exercise of the operator's prerogative of offering Part 90 miners
qualifying jobs, such "bumps" may be inevitable.

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~899
general right to re-exercise his Part 90 transfer option. To the
extent that he sought Part 90 transfer to a particular position,
however, his goal was outside the rights afforded by the Mine Act.

From the standpoint of Beth-Elkhorn's Part 90 obligations, it

follows that the operator did not violate the Mine Act by failing to
retain Mullins in the dispatcher's job. Beth-Elkhorn's only duty was
to offer Mullins a position that satisfied the Part 90 criteria.
The operator fulfilled its responsibilities by offering him the
repairman's job -- a position at the same mine, on the same shift,
at no loss in pay, and in a low dust area of the mine. 30 C.F.R.
$$ 90.100 & 90.102.

Nor is there any evidence in the record that Beth-Elkhorn's

actions otherwise were tainted in any part by an intent to
discriminate against Mullins or interfere with his exercise of any
legitimate protected activity. Prior to the dispute over the
dispatcher's job, Beth-Elkhorn and Mullins had reached a mutually
acceptable accommodation concerning Mullins' work as an electrician.
Beth-Elkhorn initially awarded the dispatcher's job to Mullins
pursuant to the superseniority provision of Article XVII(i)(10) of
the Agreement. The UMWA sought Mullins' removal from that position
pursuant to the grievance and arbitration procedures of the Agreement.
We cannot conclude that either the UMWA, in pursuing a grievance over
Mullins' initial placement in the dispatcher's position, or Beth-
Elkhorn, in removing Mullins from the job pursuant to the arbitration
award, violated the Mine Act.

As independent grounds for declaring Mullins' removal unlawful,

however, the judge determined that Article XVII(i)(10) of the
Agreement and the grievance arbitration proceedings taken in this
matter amounted to invalid restrictions upon Mullins' Part 90 and
Mine Act rights. We hold that the judge erred and exceeded the limits
of his authority in so ruling.

 The Mine Act is not an employment statute; the Commission does

not sit as a super grievance or arbitration board. When required to
do so for purposes of resolving issues arising under the Mine Act,
we must interpret the meaning and application of parties' bargaining
agreements with appropriate restraint. As the Commission has stated:
"It is true that we do not decide cases in a manner which permits
parties' private agreements to overcome mandatory safety requirements
or miners' protected rights; nor do we unnecessarily thrust ourselves
into resolution of labor or collective bargaining disputes."
Loc. U. No. 781, Dist. 17, UMWA v. Eastern Assoc. Coal Corp., 3 FMSHRC

Page 18

1175, 1179 (May 1981). See also United Mine Workers of America on
behalf of James Rowe, et al. v. Peabody Coal Co., 7 FMSHRC 1357,
1364 (September 1985), pet. for review filed, No. 85-1717 (D.C. Cir.
October 30, 1985).

The wisdom or fairness of Article XVII(i)(10) is not the

Commission's concern. Nor does the Commission's role include
assessing whether the arbitrator's construction of that provision
represents sound or unsound collective bargaining law. Also,
there being no Part 90 right to secure particular positions, the
superseniority effect of the Article in question may, in fact, operate
to grant some Part 90 miners

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~900
more rights than conferred by Part 90 and the Mine Act. The
Mine Act does not bar operators and unions from agreeing to give
Part 90 miners placement rights more generous than those provided
by statute and regulation. See, e.g., Franks v. Bowman Transportation
Co., 424 U.S. 747, 778-79 (1976); Moteles v. Univ. of Penn., 730 F.2d
913, 921 (3d Cir.), cert. denied. 469 U.S. 855 (1984); Tangren v.
Wackenhut Services, Inc., 658 F.2d 705, 707 (9th Cir. 1981), cert.
denied, 456 U.S. 916 (1982). Further, the complained-of distinction
in Article XVII(i)(10) between production and non-production Part 90
miners is a seniority matter negotiated between the contracting
parties and was drawn in a context of providing an elevated level of
rights to Part 90 miners. Such contractual distinctions, above the
statutory/regulatory "floor," do not violate the Mine Act or Part 90.
In short, Mullins had no Part 90 claim to the dispatcher's job; his
initial award of the job, pursuant to the superseniority provisions
of the Agreement, went beyond any entitlement under Part 90; and his
removal from that job pursuant to the same Agreement and proposed
transfer to another Part 90.qualifying position did not violate any
of his Part 90 rights.

Accordingly, we conclude that Mullins did not engage in

protected activity in seeking the dispatcher's job, and neither the
Union nor Beth-Elkhorn violated section 105(c) of the Mine Act in
connection with his removal from that position. 8/

                III.

 Finally, we briefly address the judge's holding that for

purposes of this proceeding the UMWA is an "operator" under the
Mine Act subject to a civil penalty for the violation of section
105(c)(1). 9/ Section 3(d) of the Act, 30 U.S.C. $ 802(d), defines
"operator" as any owner, lessee, or other person who operates,
controls, or supervises a coal or other mine or any independent
contractor performing services or construction at such mine."
The judge noted that Article lA of the Agreement provides that
Beth-Elkhorn may not contract out certain types of mine construction
or extraction jobs "unless all [UMWA] employees with necessary
skills to perform the work are working no less than 5 days per
week." 7 FMSHRC at 1843. The judge concluded that "by restricting
[Beth-Elkhorn's] right to contract out construction and other work
at the mine, [the UMWA] makes itself an 'independent contractor
performing services at the mine' and makes [itself] an 'operator'
within the meaning of section 3(d) of the Act." 7 FMSHRC at 1843.
We disagree.

Page 20

8/ During the course of this proceeding, the Union sought and the
judge denied his disqualification or refusal. 7 FMSHRC at 1897.
The UMWA sought review of the judge's ruling but at oral argument
advised the Commission that it had abandoned the refusal issue.
Tr. Oral Arg. 13-14. We therefore do not address that issue.

9/ Section 110(a) of the Act states that "[t]he operator of a ...
mine" in which a violation of the Act occurs shall be subject to a
civil penalty. 30 U.S.C. $ 820(a).

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~901
Without deciding whether a union may ever be an "operator"
under the Mine Act, we conclude that on the facts presented here
the UMWA is not an "independent contractor performing services or
construction." The Union did not itself "contract to perform services
or construction at [the] mine." See 30 C.F.R. $ 45.2(c). Of equal
importance, under the Agreement the power of the UMWA to restrict
Beth-Elkhorn's right to contract out construction and other work at
the mine is far removed from the kind of participation in the running
of the contracted activity or service that could support a finding
under the Mine Act of independent contractor status. See, e.g.,
Old Dominion Power Company v. Donovan, 772 F.2d 91, 96 (4th Cir.
1985); National Industrial Sand Ass'n. v. Marshall, 601 F.2d 689,
701 (3d. Cir. 1979). We vacate the judge's finding that the UMWA is
an "operator" under the Mine Act.

                IV.

For the foregoing reasons, the judge's decision is reversed
and Mullins' complaint of discrimination is dismissed. 10/

              Richard v. Backley, Commissioner

              Joyce A. Doyle, Commissioner

               James A. Lastowka, Commissioner

                L. Clair Nelson, Commissioner

10/ Chairman Ford did not participate in the consideration or
disposition of this case.

Page 22

~902
Distribution

Ron E. Meisburg, Esq.
Michael T. Heenan, Esq.
Smith, Heenan & Althen
1110 Vermont Avenue, N.W.
Washington, D.C. 20005
(for Beth-Elkhorn)

Gregory Ward, Esq.
P.0. Box 2068
Pikeville, Kentucky 41501
(for UMWA, District 30)

Earl R. Pfeffer, Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
(for International UMWA)

Mary Bruce Carter, Esq.
25 Fleener Building
P.0. Box 87
Hartford, Kentucky 42347
(for Jimmy Mullins)

Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
(for Secretary of Labor)