Benjamin Coal Company

Read the official release (fmshrc.gov)

Plain-English summary

Benjamin Coal Company barred two United Mine Workers of America health and safety representatives from accompanying an MSHA inspector during a spot inspection requested by four miners. Judge George A. Koutras held that the four miners had designated the UMWA, which in turn designated Barry Mylan and Lester Poorman as their representatives, giving them a statutory right to participate in the inspection. The judge rejected the company's argument that the complaint was untimely and found that the refusal violated the representatives' protected rights under sections 103(f) and 105(c)(1) of the Mine Act. He ordered the company to cease and desist, post the decision for miners, and pay a $100 civil penalty.

Decision snapshot

• Cited provisions: 30 U.S.C. § 813(f); 30 U.S.C. § 815(c); 30 C.F.R. §§ 40.1, 40.2, and 40.3
• Outcome: The discrimination complaint was affirmed, the company was ordered to stop blocking designated representatives, post the decision, and pay a $100 penalty.
• Key point: Miners may choose representatives to accompany an MSHA inspection even when the union is not the mine's collective-bargaining representative.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. BENJAMIN COAL
DDATE:
19870108
TTEXT:

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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. PENN 86-125-D
ON BEHALF OF MSHA Case No. PITT CD-8
BARRY MYLAN,
LESTER POORMAN, Benjamin Strip No. 1
COMPLAINANTS
v.

BENJAMIN COAL COMPANY,
RESPONDENT

AND

UNITED MINE WORKERS OF
AMERICA, (UMWA),
INTERVENOR

SUMMARY DECISION

Before: Judge Koutras

Statement of the Case

This proceeding concerns a complaint of discrimination filed
by MSHA on behalf of the complainants pursuant to section
105(c)(1) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. 815(c)(1). The complainants state that they are employed
by the United Mine Workers of America as Health and Safety
Representatives, and they allege that on or about October 31,
1985, when acting as miners' representatives, the respondent
denied them the right to travel with an MSHA inspector during a
spot inspection of the mine. The complaint seeks the following
relief:

1. A finding that the complainants were unlawfully
   discriminated against by the respondent for engaging in
   actions protected under section 105(c)(1) of the
   Federal Mine Safety and Health Act of 1977, 30 U.S.C.
   815.

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2. A cease and desist order and an order directing
   the respondent to post a notice that it will not
   violate section 105(c) of the Act.

3. An order assessing a civil penalty against the
   respondent for its violation of section 105(c) of the
   Act. Pursuant to 29 C.F.R. 2700.42, MSHA has
   submitted a statement proposing a civil penalty
   assessment in the range of $500 to $600 based upon the
   criteria for penalty assessments set forth in section
   110(i) of the Act.

The parties agreed to submit this matter to me for summary
decision pursuant to Commission Rule 64, 29 C.F.R. 2700.64, and
they have filed a joint stipulation of facts, and briefs in
support of their respective positions. The UMWA has been
permitted to intervene pursuant to Commission Rule 4(b), 29
C.F.R. 2700.4(b)(1) and (2), and it has filed briefs in support
of its position.

Issues

The principal issue presented in this case is whether or not
the respondent discriminated against the complainants by its
refusal to permit them to accompany an MSHA inspector in their
alleged capacity as miner's representatives. Additional issues
raised by the parties are identified and disposed of in the
course of this decision.

Applicable Statutory and Regulatory Provisions

1. The Federal Mine Safety and Health Act of 1977, Pub.L.
   95-164, 30 U.S.C. 801 et seq.

2. Sections 103(f), 105(c), and 110(i) of the Act, 30 U.S.C.
   813(f), 815(c), and 820(i)

3. 30 C.F.R. 40.1 and 40.2.

4. Commission Rules, 20 C.F.R. 2700.1 et seq.

Stipulations

MSHA and the respondent have stipulated to the following:

1. On November 4, 1985, Barry Mylan and Lester
   Poorman filed a section 105(c) complaint

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with the Mine Safety and Health Administration, Johnson
Field Office, against the Benjamin Coal Company.

2. Both Messrs. Mylan and Poorman are employed by the
   United Mine Workers of America as Health and Safety
   Representatives. Neither is employed at the Benjamin
   Coal Company in any capacity.

3. The Benjamin No. 1 Strip Mine, I.D. No. 36-02667, is
   one of eight surface mining operations which are owned
   and operated by Benjamin Coal Company and is located in
   the vicinity of Waukeska, near Westover, Clearfield
   County, Pennsylvania.

4. The No. 6 Preparation Plant, associated with the
   Benjamin No. 1 Strip Mine, processes coal from various
   strip mines operated by Benjamin Coal Company. The
   plant employs approximately 35 non-union miners on two
   production shifts and one maintenance shift to process
   a daily average of 2,200 tons of coal.

5. Employment at the Benjamin Coal Company is currently
   335 employees and the No. 1 Strip Mine including the
   No. 6 Preparation Plant employs approximately 262
   miners.

6. The president of the Benjamin Coal Company is David
   J. Benjamin.

7. On March 14, 1984, a secret ballot election was held
   at the Benjamin Coal Company by the National Labor
   Relations Board.

8. The employees (miners) of the Benjamin Coal Company
   by a vote of 261 to 209 voted against having the United
   Mine Workers of America become their representatives.
   (See Exhibit A).

9. On October 21, 1985, four miners who worked at the
   No. 6 Preparation Plant designated the United Mine
   Workers of America to act as the miners'
   representatives at the No. 6 Preparation Plant. (See
   Exhibit B).

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10. The United Mine Workers of America designated Barry
    Mylan as its representative and Lester Poorman as its alternate
    representative. (See Exhibit B).

11. On October 21, 1985, the aforementioned designation
    was placed upon an authorization form in accordance
    with 30 C.F.R. 40.3 and forwarded to Donald Huntley,
    District Manager of the Mine Safety and Health
    Administration's District 2. A copy was also sent to
    the Benjamin Coal Company. (See Exhibit B).

12. On October 24, 1985, Barry Mylan forwarded to John
    DeMichiei, Subdistrict Manager-MSHA, a written section
    103(g)(1) request for an inspection of the No. 6
    Preparation Plant. (See Exhibit C).

13. On October 31, 1985, as a result of the October 24,
    1985 request, MSHA Inspector Nicholas J. Kohart visited
    the No. 6 Preparation Plant for the purpose of
    conducting a section 103(g)(1) spot inspection.

14. Upon Inspector Kohart's arrival he was met by
    Messrs. Mylan and Poorman who informed him that they
    were the authorized mine representatives.

15. Inspector Kohart and Messrs. Mylan and Poorman
    appeared at the mine office that morning for the
    purpose of conducting the section 103(g)(1) spot
    inspection.

16. Said inspection was commenced, however, during the
    course of the inspection, Messrs. Mylan and Poorman
    were ordered off of the mine property by David J.
    Benjamin, President of Benjamin Coal Company.

17. Mr. Benjamin refused to recognize the UMWA as a
    miners' representative because a majority of the
    employees of Benjamin Coal Company had voted against
    the UMWA as their representative in the election of
    March 14, 1984.

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18. Employees, i.e., miners, had in the past been
    allowed by Benjamin Coal Company to accompany federal
    inspectors on inspections at the No. 6 Preparation Plant.

19. On April 15, 1986, the Secretary of Labor filed the
    complaint before the Federal Mine Safety and Health
    Review Commission, which is the subject of this action.

20. The No. 1 Strip Mine's annual production tonnage is
    approximately 438,496. The Benjamin Coal Company's
    annual production tonnage is between 1,100,000 tons and
    1,500,000 tons.

21. The history of previous violations during the
    24-month period preceding the filing of this complaint
    was 103 over 68 inspection days. The respondent has no
    previous history of a section 105(c) violation.

An unopposed motion by the UMWA to amend the stipulations
was granted, and paragraph 8 above was amended as follows:

8(a). In a decision issued on July 31, 1985, an
administrative law judge of the National Labor
Relations Board determined that unfair labor practices
committed by Benjamin Coal Company had precluded the
conducting of a fair election and he therefore ordered
the election of March 14, 1984, set aside (decision
attached as Exhibit D). The judge concluded further
that said unfair labor practices were so egregious as
to preclude the holding of a fair election in the
future and that a previous election, conducted on
November 17, 1983, in which the UMWA obtained a
majority vote, constituted a more reliable indicia of
employee desires. The judge therefore concluded, as a
matter of law, that the UMWA was, and had been since
November 1983, the designated representative of a
majority of employees at the Benjamin mine.

8(b). The Administrative Law Judge Decision, attached
as Exhibit "D," has been appealed to the National Labor
Relations Board, where said appeal is still pending.

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Discussion

The facts in this case are not in dispute. The respondent's
No. 1 Strip Mine employs approximately 262 miners. The No. 6
Preparation Plant is part of the mine, and approximately 35
miners are employed at the plant.

On October 21, 1985, four miners who worked at the
preparation plant designated the UMWA as their representative.
This written designation was filed with MSHA's District 2 Manager
and a copy was sent to the respondent in accordance with 30
C.F.R. 40.2(a) and 40.3(b). The designation listed Barry Mylan
and Lester Poorman as the UMWA officials serving as
representatives. Mr. Mylan and Mr. Poorman both are employed by
the UMWA as Health and Safety Representatives, and neither is
employed by Benjamin Coal Company.

On October 24, 1985, Mr. Mylan filed a request with MSHA for
a section 103(g)(1) spot inspection of the preparation plant. In
response to that request, MSHA Inspector Nicholas J. Kohart
visited the preparation plant on October 31, 1985, for the
purpose of conducting the spot inspection. Upon his arrival,
Inspector Kohart was met by Mr. Mylan and Mr. Poorman who
informed him that they were the authorized representatives of the
miners at the plant. Mr. Mylan and Mr. Poorman intended to
accompany Inspector Kohart on his inspection as the miners'
representative pursuant to section 103(f) of the Act.

Inspector Kohart commenced his inspection, accompanied by
Mr. Mylan and Mr. Poorman. Upon learning of the presence of Mr.
Mylan and Mr. Poorman, respondent's President, David Benjamin,
went to the plant and ordered them off the mine property. Mr.
Benjamin's action was prompted by his refusal to recognize the
UMWA as the miners' representative because a majority of his
employees had voted against the UMWA as the collective bargaining
representative of miners in an NLRB directed election held on
March 14, 1984. Respondent's miners had in the past been
permitted to accompany MSHA inspectors on inspections at the
plant.

Thereafter, on November 4, 1985, Mr. Mylan and Mr. Poorman
filed a complaint with MSHA alleging that the respondent's
refusal to allow them to accompany Inspector Kohart as the
miners' representatives pursuant to section 103(f) of the Act
violated their rights under section 105(c) of the Act. MSHA
conducted an investigation of the complaint, and upon its
completion filed the instant complaint on behalf of Mr. Mylan and
Mr. Poorman on April 15, 1986.

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Respondent's Arguments

The respondent contends that the designation of the UMWA as
the representative of the miners by only four (4) miners is not
effective to confer representative status on the UMWA over many
times that number of miners. Consequently, respondent contends
that the allegation that it violated section 105(c) of the Act by
its actions cannot be sustained. Respondent asserts that its
actions were not motivated because of the exercise of any rights
under the Act by Mr. Mylan and Mr. Poorman, and that it is clear
that it has always permitted miners' representatives to take part
in MSHA inspections. In this instance, however, the respondent
maintains that it refused to recognize the UMWA as the
representative of its miners because a majority of its miners had
declined to have the UMWA act as their representative.

The respondent also contends that the complaint should be
dismissed because it was not filed until well after the statutory
and regulatory time limits set forth for the filing of a
complaint of discrimination, discharge or interference with the
Commission.

In support of its principal argument, the respondent points
out that the Act contains no definition of a representative of
miners. It recognizes that 30 C.F.R. 40.1 defines a
representative of miners as "any person or organization which
represents two or more miners at a coal or other mine for the
purpose of the Act . . .," and states that the Secretary of
Labor, in support of this definition has stated that:

The purposes of the Mine Act are better served by
allowing multiple representatives to be designated.
This insures that all miners have the opportunity to
exercise their right to select the representative of
their choice. . . . 43 Fed.Reg. 29508 (July 7, 1978).

Respondent argues that if all miners have the "right to
select the representative of their choice" the claimed violation
of section 105(c) cannot, in this case, be sustained. If miners
have the right to select a representative of their own choice,
respondent asserts that the designation of the UMWA as
representative for all of its miners or for all miners at the
preparation plant by only four miners must be ineffective since
neither the 31 other miners employed at the

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plant nor the 258 other miners employed at the mine can be forced
to accept the UMWA as their representative under the Act by the
action of four individuals. Because this is not a proper
designation from the persons the UMWA purports to represent,
respondent concludes that it cannot be penalized for refusing to
recognize the UMWA as the representative of its miners during the
inspection of October 31, 1985.

Respondent maintains that MSHA and the UMWA do not claim
that the UMWA is the representative of the four miners that
designated the UMWA as their representative, but interpret the
designation of four miners as being the effective designation of
all miners at the mine. In support of this conclusion, the
respondent states that MSHA's consideration of the designation by
the four miners to be of wide application is evidenced by the
fact that the respondent was cited on June 25, 1986, for refusing
to allow the UMWA to take part in an inspection on June 19, 1986,
at the site of an accident many miles away from the plant and
where none of the miners that signed the designation work.

Respondent argues that if the designation by four miners is
effective for other miners at the mine, then this is contrary to
MSHA's expressed interpretation of the Act's intent "that all
miners have the opportunity to exercise their right to select the
representative of their choice. . . ." Therefore, the UMWA
cannot, as it purported to be, be the representative of all
miners at the Company or of all miners at the plant since the
miners presumably have the right to remain unrepresented or
choose their own representative.

Respondent cites section 103(f) of the Act which states:
"Where there is no authorized miner representative, the Secretary
or his authorized representative shall consult with a reasonable
number of miners concerning matters of health and safety in such
mine." (Emphasis added.)

Citing the legislative history of this provision, the
respondent points out that the Joint House and Senate Conference
Committee stated: "The Senate required the Secretary to consult
with a reasonable number of miners if there was no authorized
representative of miners. The House amendment did not contain
this protection for unorganized miners."

Respondent maintains that MSHA is required to consult with a
"reasonable number of miners" when there is no authorized
representative, and that the designation of a representative by
four of several hundred miners cannot relieve it of

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this responsibility and deprive other miners of the right to be
consulted. Respondent concludes that if a reasonable number of
miners must be consulted when there is no authorized
representative, the authorized representative of a group of
miners must be selected by a reasonable number of miners, and
that four miners is hardly a reasonable number in determining the
representative for over 250 miners.

Respondent asserts that it is clear that Congress had in
mind that the term "authorized representative of the miners"
applied to organized mines where MSHA would consult with the
representative that had been selected by a majority of the
employees, and the reason that MSHA is required to consult with a
"reasonable number of miners" where there is no authorized
representative, is because in an organized mine by definition,
the authorized representative would have been selected by a
majority, i.e., reasonable number of miners.

Respondent maintains that if four miners may effectively
designate a representative for all other miners, then the
remaining miners would also lose valuable rights and protections
under section 103(g) of the Act which states:

(1) Whenever a representative of the miners or a miner
in the case of a coal or other mine where there is no
such representative, has reasonable grounds to believe
that a violation of this Act or a mandatory health or
safety standard exists, or an imminent danger exists,
such miner or representative shall have a right to
obtain an immediate inspection by giving notice to the
Secretary or his authorized representative of such
violation or danger. . . ."

Citing the legislative history of this provision, respondent
points out that the Joint House and Senate Conference Committee
stated: "The conference substitute conforms to the Senate Bill,
except that such inspections can be requested only by a
representative of miners, or by a miner where there is no
representative of miners at the time."

Respondent argues that if the UMWA is the representative of
the miners at the mine and plant by virtue of the designation of
four miners, then by statutory mandate all other miners lose
their rights under section 103(g) of the Act. The statute and the
legislative history make it entirely clear that if there is a
representative of miners at a mine, then the miners are to be
represented by that representative

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for purposes of the Act, and they lose the right to act
individually because of the presence of a representative of
miners. Similarly, if there is a representative of the miners at
the mine, miners apparently lose the right under the Act to be
consulted at the time of an inspection pursuant to section
103(f).

Respondent concludes that if miners are going to lose
valuable rights under the Act to act individually because they
must deal through a representative, then they must be involved in
the selection of that representative. Respondent suggests that to
allow four miners to designate the representative for all other
miners deprives them of their freedom of choice and requires them
to be represented by an entity they have in this instance
previously rejected, and is contrary to the purpose of the Act as
set forth by MSHA which is allegedly best served by allowing all
miners "the opportunity to exercise their right to select the
representative of their choice." [43 Fed.Reg. 29508 (July 7,
1978) ].

Respondent maintains that by refusing to recognize the UMWA
as the representative for all of its miners, or as the
representative of the miners at the preparation plant, it did not
violate section 105(c) of the Act. It concludes that the UMWA
cannot, consistent with the regulations nor the spirit of the
Act, be the representative for miners that have not authorized it
to represent them.

Respondent argues further that allowing four miners to
designate a representative for other miners also conflicts with
the miners' rights under the National Labor Relations Act (NLRA).
In support of this argument, respondent asserts that section 7 of
this statute permits employees (miners are included in the
definition of employees) to engage in concerted activity for
purposes of collective bargaining or other mutual aid or
protection. Section 7 also states that employees may refrain from
engaging in such concerted activities. Concerted activities for
purposes of other mutual aid or protection includes matters of
safety and health in the workplace. NLRB v. Washington Aluminum
Co., 370 U.S. 9, 8 L.Ed.2d 298 (1962); Wheeling-Pittsburgh Steel
Corp. v. NLRB, 618 F.2d 1009 (3d Cir.1980); Wray Electric
Contracting, Inc., 210 NLRB 757, 86 LRRM 1589 (1974).

Respondent points out that under the NLRA a representative
of the employees selected by a majority of the employees becomes
the exclusive representative of the employees. [NLRA 9(a), 29
U.S.C. 159(a) ]. In 1984 an election was held in which the UMWA
sought to become the exclusive representative

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of the respondent's employees (miners), and that the employees
(miners), by a vote of 261 to 209, voted against having the UMWA
as their representative. Since that time, the employees (miners)
have not indicated any desire to have the UMWA represent them for
any purposes other than the purported designation by four
individuals of the UMWA as the representative of miners under the
Act.

The respondent suggests that because employees (miners) have
the right to refrain from being represented under the NLRA, a
determination allowing four individuals to select the
representative for many other miners would abrogate their right
to refrain from engaging in collective activity, and that any
recognition by an employer of a union as a representative of
employees that have not selected the union as their
representative can be an unfair labor practice under section
8(a)(2) of the NLRA, 29 U.S.C. 158(a)(2). Pick-Mt. Laurel Corp.
v. NLRB, 625 F.2d 476 (3d. Cir.1980). Moreover, if the UMWA is
their representative, the miners lose their rights to act
individually pursuant to sections 103(f) and (g) of the Mine Act.

The respondent points to the fact that MSHA has stated that
the purpose of the Mine Act are better served by having all
miners "exercise their rights to select the representative of
their choice. . . ." If this is the case, respondent further
suggests that miners also have the right to refrain from
selecting a representative and are free to pursue their rights
under the Act individually. Further, if miners are free under the
Act to refrain from having the UMWA represent them, respondent
concludes that the designation of the UMWA as their
representative by others must be invalid. Respondent further
concludes that allowing the UMWA to gain representative status
over other miners based on the actions of four miners would
directly conflict with the comprehensive scheme for the selection
of a union established under the NLRA as well as the apparent
intent of the Mine Act.

The respondent maintains that if the UMWA had won the
election and had been certified as the exclusive representative
of the employees at the company, it would, as contemplated by
Congress, be the authorized representative of the miners under
the Mine Act. Since the UMWA, a labor organization, did not win
the election and has not been certified as the representative of
respondent's employees, it cannot now achieve the status of a
representative for hundreds of miners based on the actions of
four miners, and that as a labor organization, it must follow the
procedures of the NLRA to gain the status of representative for
hundreds of miners.

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Respondent concludes that to interpret the Mine Act to allow a
union to gain a status as representative for employees without
their consent, would fly in the face of the long established
scheme of the NLRA, and that Congress could not have intended a
result whereby an employer could refuse to recognize a union that
has been rejected by a majority of his employees but the same
employer would have to recognize the same union as the
representative of the same employees because a few of those
employees had designated the union as representative for the
employees.

Summarizing its position on the merits, the respondent
concludes that the designation of the UMWA as the representative
of miners at its mine by four miners is inconsistent with both
the Mine Act and the National Labor Relations Act, because there
is no authority allowing two or more miners to select a
representative for many times that number of miners. This is
particularly true if the Acts' purposes are better served by
allowing miners to select representatives of their choice.

Respondent concludes that the designation that purported to
designate the UMWA as the representative of miners that did not
indicate a willingness to waive their individual rights under the
Act in favor of having the UMWA act as their representative is
clearly defective, and consequently, its refusal to recognize the
UMWA under these circumstances is not violative of section
105(c)(1) of the Mine Act. Moreover, the respondent maintains
that its actions were clearly not motivated because of the
exercise of rights protected under the Act by the UMWA, but
instead, were based on the act of its employees that had
previously rejected the UMWA as their representative.

In addition to its arguments on the merits of its asserted
defense in this case, the respondent asserts that MSHA's
complaint should be dismissed as untimely. Citing the time
requirements of section 105(c)(3) of the Act, and Commission
Rules 40 and 41, 29 C.F.R. 2700.40 and 2700.41, respondent
states that MSHA is required to make a written determination of a
violation within 90 days of receipt of a complaint and to
immediately file its complaint with the Commission if it believes
that a violation of section 105(c)(1) has occurred. Respondent
points out that 29 C.F.R. 2700.41(a) further delineates that
MSHA shall file its complaint with the Commission within 30 days
of any determination that a violation has occurred.

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Since the complaint by Mr. Mylan and Mr. Poorman was filed with
MSHA on November 4, 1985, the respondent maintains that MSHA
should have filed its complaint by March 5, 1986. Respondent
calculates that 90 days from November 4, 1985 is February 3,
1986; and 30 days from February 3, 1986, falls on March 5, 1986.
Instead, respondent points out that MSHA failed to file its
complaint with the Commission until April 15, 1986.

The respondent asserts that MSHA had ample opportunity to
file a complaint within the mandated time limits. Moreover,
respondent asserts that the instant case is not one where an
unsophisticated party not knowing their rights under the Act
failed out of ignorance to take advantage of his right to file a
complaint, and that the alleged discriminatees are
representatives of the UMWA, a large, sophisticated labor
organization that is fully capable of filing a complaint within
the required time limits and has historically been involved in
such litigation under the Act.

MSHA's Arguments

In support of its position in this case, MSHA initially
points out that under the analytical guidelines established by
the Commission in Secretary on behalf of Pasula v. Consolidation
Coal Corp., 2 FMSHRC 2786 (October 1980), rev'd on other grounds
sub nom. Consolidation Coal Corp. v. Marshall, 663 F.2d 1211 (3d.
Cir.1981), and Secretary on behalf of Robinette v. United Castle
Coal Company, 3 FMSHRC 803 (April 1981), a prima facie case of
discrimination is established if a miner proves by a
preponderance of the evidence that (1) he engaged in protected
activity, and (2) the adverse action taken against him was
motivated in any part by that protected activity. Pasula, 2
FMSHRC at 2799-2800; Robinette, 3 FMSHRC at 817-818. In order to
rebut a prima facie case, an operator must show either that no
protected activity occurred or that the adverse action was in no
part motivated by protected activity.

MSHA submits that a prima facie case of a violation of
section 105(c) of the Act has been proven in this case, and that
section 103(f) of the Act provides the statutory right which
gives rise to the protected activity at issue. MSHA points out
that section 103(f) provides rights to miners and their
representatives in connection with their participation in MSHA
inspections, and that in fulfilling his statutory rulemaking
mandate, the Secretary of Labor issued an Interpretative Bulletin
at 43 Fed.Reg. 17546 (April 25, 1978) setting forth the scope of
section 103(f). MSHA maintains that this

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interpretative bulletin is entitled to deference unless it can be
said not to be a reasoned and supportable interpretation of the
Act, and that the courts have often held that considerable
respect is due the interpretation given a statute by the officers
or agency charged with its administration. Whirlpool Corporation
v. Marshall, 445 U.S. 1 (1980); Ford Motor Credit Company v.
Milhollin, 444 U.S. 555 (1980); Mourning v. Family Publication
Service, Inc., 411 U.S. 356 (1973); Skidmore v. Swift & Company,
323 U.S. 134 (1944).

MSHA asserts that as set forth within the preamble of the
interpretative bulletin, the Department of Labor is responsible
for interpreting and applying the statutes which it administers,
and that publication of all interpretative positions by the
Department is useful in informing the general public and
interested segments of the public of positions on particular
provisions of certain statutes. The deference to be afforded
interpretative bulletins has been specifically addressed in
matters arising under the Fair Labor Standards Act of 1938 (29
U.S.C. 201 et seq.). The regulatory provisions of the Fair
Labor Standards Act specifically sets forth that "such
interpretations of the Act provide a practical guide to employers
and employees as to how the office representing the public
interest in its enforcement will seek to apply it" and
"constitute a body of experience and informed judgment to which
courts and litigants may properly resort for guidance." 29 C.F.R.
779.9

MSHA cites the introductory statement contained in the
interpretative bulletin, at 43 Fed.Reg. 17546, and maintains that
the bulletin explicity provides that a representative authorized
by the miners shall be given an opportunity to accompany the
inspector, and that an operator's refusal to allow participation
by a representative of miners is a violation of the Act which
subjects the operator to a citation and penalty under sections
104 and 105. MSHA points out that the bulletin also cites the
Congressional mandate that the scope of the protected activities
be broadly interpreted by the Secretary to include participation
in mine inspections, and specifically states that "[a] refusal by
an operator to comply with the requirements of section 103(f) is
an act which "interferes' with the exercise of statutory rights."
Accordingly, MSHA concludes that the provisions of section 105(c)
apply to discrimination or interference with the inspection
participation right. 43 Fed.Reg. 17547.

MSHA argues that on the facts of this case, the respondent
interferred with Mr. Mylan's and Mr. Poorman's statutory rights
to act as representatives of the miners at its No. 6

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Preparation Plant, and that this interference constitutes an
adverse action against them because of their attempt to
participate in protected activity.

MSHA maintains that the respondent's contention that Mr.
Mylan and Mr. Poorman engaged in no protected activity because
they were UMWA representatives and the UMWA had lost a
representation election is without merit. MSHA states that the
fact that the UMWA did or did not represent the respondent's
miners pursuant to NLRB law does not foreclose representation
pursuant to the Mine Act. In support of its argument, MSHA
maintains that in 1978 the Secretary promulgated regulations at
Part 40 which inter alia defined a representative of miners, and
that the language of Part 40.1(b) clearly sets forth that "any
person or organization representing two or more miners at a coal
mine is a representative of miners for purposes of the Federal
Mine Safety and Health Act of 1977." Moreover, MSHA points out
that the preamble to Part 40 specifically addresses the term
"representative" as it is applicable to NLRB law and the Mine
Act, and states that the Secretary, in addressing the comments
filed during MSHA's rulemaking, stated that a broad definition
would be preferable to a narrow one and that "any attempt to
limit the manner in which representatives are selected would be
intrusive into labor-management relations at the mine and not in
keeping with the spirit if miner participation," 43 Fed.Reg.
29508.

MSHA maintains that the selection of the UMWA as
representative of miners in the instant proceeding meets the
Secretarial guarantees outlined above, and that the selection of
the UMWA as "miner representatives" on October 21, 1984, by four
miners who worked at the respondent's No. 6 Preparation Plant was
in accordance with the Act and its implementing regulations at
Part 40.

MSHA also maintains that the argument that the UMWA
representatives were not employees of the respondent, and thus
not able to represent the miners at the preparation plant is
without merit. In support of this conclusion, MSHA cites Judge
Broderick's decision in Consolidation Coal Company v. United Mine
Workers of America, 2 FMSHRC 1403 (June 12, 1980), affirmed by
the Commission at 3 FMSHRC 617 (March 21, 1981), holding that
non-employees may be representatives of miners within the meaning
of the Act even though they failed to formally file as
representatives pursuant to the Part 40 regulations.

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MSHA also relies on Judge Morris' decision in Emery Mining
Corporation v. MSHA and the UMWA, Intervenor, 8 FMSHRC 1182
(August 7, 1986), upholding a citation for a violation of section
103(f) of the Act because of Emery's refusal to permit an
international representative of the UMWA to accompany an MSHA
inspector on an inspection of its mine without first executing a
waiver of liability. In that case, Judge Morris specifically held
that Congress contemplated that non-employees may be
representatives of miners, and that the UMWA representative was
within the "person or organization" concept defined at Part
40.1(b). Further, Judge Morris rejected Emery's argument that a
distinction existed between employee and non-employee miners'
representative, citing footnote 18 of Council of Southern
Mountains, Inc. v. Federal Mine Safety and Health Review
Commission, 751 F.2d 1418, 1419 (D.C.Cir.1985), where the Court
stated that the Mine Act "merely refers to "representatives' and
does not articulate any distinction between the rights of
employees and non-employee representatives." Judge Morris
concluded that both the individual international representative
and the UMWA met the definition of "miners' representative."

MSHA concludes that it is without question that the UMWA and
its representatives are proper representatives of miners at the
respondent's No. 6 Preparation Plant within the meaning of the
Mine Act, and that the respondent's failure to recognize this
representative status because of an asserted lost NLRB
representation election is violative of the UMWA's and its
individual representatives' statutory rights under section 103(f)
of the Act. MSHA maintains that the Congressional purposes in
enacting the Mine Act and the NLRB Act are clearly distinct and
separate. It points out that the former is a remedial statute
designed to promote the safety and health of the miner, and that
Congress promulgated specific individual statutory rights to
miners as individual workers not as members of any union, while
the latter was designed to minimize industrial strife and improve
working conditions by encouraging employees to promote their
interests collectively. Accordingly, MSHA further concludes that
NLRB law and the results of any NLRB election are not controlling
in this proceeding.

MSHA's Proposed Civil Penalty Assessment

In support of its proposal for a civil penalty assessment
for the respondent's violation of section 105(c) of the Act, MSHA
has submitted information with respect to the civil penalty
criteria found in section 110(i) of the Act. MSHA

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asserts that the respondent was negligent in refusing to
recognize the statutorily guaranteed rights of miner
representatives, and that its conduct in this regard displays a
lack of due diligence for the rights of miners and presents a
"chilling effect" on those rights. MSHA considers the violation
to be serious, and concludes that the respondent displayed no
good faith in attempting to abate the violation in that it has
remained adamant in its refusal to recognize the UMWA as the
miners' representative in this case.

MSHA's brief does not address the issue of the timeliness of
its complaint, and the respondent's request for a dismissal on
the ground that the complaint was not timely filed.

The UMWA's Arguments

The UMWA states that the respondent has admitted that it
received the designation of the UMWA pursuant to 30 C.F.R.
40.3, as a representative of miners at the No. 6 Preparation
Plant, which listed the complainants Mylan and Poorman as the
UMWA officials serving as representatives, and that it also
admits that it refused to permit Mr. Mylan and Mr. Poorman to
accompany an MSHA inspector on a spot inspection on October 31,
1985. The UMWA rejects the respondent's argument that the UMWA
cannot be a representative of miners at the plant because it did
not receive a majority of the votes in a March 14, 1984, election
conducted under the National Labor Relations Act (NLRA) for
selection of an exclusive collective bargaining agent, and
because non-employees may not serve as miners' representatives
under the Mine Act as totally groundless.

The UMWA asserts that its status as exclusive collective
bargaining agent under the NLRA is completely irrelevant to its
status as a representative of miners under the Mine Act. In
support of its position, the UMWA points out that the Act makes
numerous references to miners' representatives for a variety of
purposes, and that one of the major functions of a miners'
representative is the walkaround right found in section 103(f).
Although the Act does not define the term "representative of
miners" and the similar terms used throughout the sections of the
Act footnoted at page 5 of its initial brief, the UMWA points out
that by rulemaking culminating on July 7, 1978, the Secretary of
Labor issued regulations which at 30 C.F.R. 40.1(b), defines
the term as follows:

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"Representative of miners" means:

(1) Any person or organization which represents two or
more miners at a coal or other mine for purposes of the
Act, and

(2) "Representatives authorized by the miners," "miners
or their representative," "authorized miner
representative," and other similar terms as they appear
in the Act.

The UMWA maintains that since it has been designated by four
miners as their representative at the preparation plant, it is
clearly an "organization which represents two or more miners" at
the plant and meets the facial definition of "representative of
miners" under 30 C.F.R. Part 40, and nothing in that definition
indicates that a "representative of miners" must either have been
selected by a majority of all miners or have been certified as
the exclusive collective bargaining agent under the NLRA. In
addition to the clear language of section 40.1(b), the UMWA cites
the preamble to Part 40, 43 Fed.Reg. 29508 (July 7, 1978), which
states in pertinent part as follows:

[Some] commenters suggested that the National Labor
Relations Board (NLRB) definition of representatives be
applied while others suggested that the representatives
should be elected by a majority. . . . [T]he NLRB
definition is inappropriate because the NLRB definition
of "Representative" concerns itself with a
representative in the context of collective bargaining.
The meaning of the word representative under this Act
is completely different. Additionally the rights of
nonunion miners would be severely limited by a
definition of "Representative of Miners" based on the
collective bargaining concept. Furthermore, the
"majority rule" concept is a fundamental component of
the NLRB definition of representative, which
contemplates only one union miner representative at
each mine. The purposes of the Mine Act are better
served by allowing multiple representatives to be
designated. This insures that all miners have the
opportunity to exercise their right to select the
representative of their choice for the purpose of
performing the various functions of

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a representative of miners under the Act and within
the framework of each provision.

The UMWA argues that nothing in the Mine Act or its
legislative history indicates any Congressional intent to limit a
representative of miners under the Act to an organization or
individual selected by a majority of the miners or to an
organization certified as the exclusive bargaining agent under
the NLRA. The UMWA points out that the Secretary of Labor, who is
charged with enforcing the Mine Act and promulgating regulations
thereunder, has determined precisely the opposite through careful
rulemaking proceedings, in which the respondent's precise
argument was raised, considered fully, and rejected.

Citing United Mine Workers v. FMSHRC, 671 F.2d 615, 626
(D.C.Cir.1982) and Magma Copper Co. v. Secretary of Labor, 645
F.2d 694, 696 (9th Cir.1981), the UMWA further points out that
the Courts have held that safety legislation is to be liberally
construed to effectuate the congressional purpose and that
deference is to be given to the Secretary's reasoned and
reasonable statutory construction as enunciated in his
promulgated regulations. The UMWA concludes that the Secretary's
regulatory definition of "representative of miners" is "a
reasoned and supportable interpretation of the Act," and that the
UMWA, designated by four miners at the No. 6 Preparation Plant,
is not precluded from being a "representative of miners" within
the meaning of 30 C.F.R. 40.1(b) and the Mine Act merely
because it lacks certification as the exclusive collective
bargaining agent under the NLRA.

The UMWA finds no merit in the respondent's contention that
the UMWA and its safety and health representative cannot be
representatives of miners under the Mine Act because they are not
employed by the respondent. In support of its argument, the UMWA
maintains that one of the most important functions of a miners'
representative under the Act is the inspection walkaround right
under section 103(f). Quoting the pertinent provision of that
section which provides that "such representative if miners who is
also an employee of the operator shall suffer no loss of pay
during the period of his participation in the inspection made
under this subsection," the UMWA suggests that if all miners'
representatives were required to be employees of the operator,
the emphasized language would be meaningless surplusage. The UMWA
concludes that Congress obviously contemplated and intended that
non-employees, as well as employees, could be designated as
representatives of miners, and that Commission Judges Broderick
and Morris reached precisely this conclusion in

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Consolidation Coal Co. v. UMWA, 2 FMSHRC 1403, 1408 (1980), and
Emery Mining Corp. v. Secretary of Labor, 8 FMSHRC 1182, 1202
(1986) (review pending).

In addition, the UMWA ponts out that its safety and health
representatives receive much the same training as MSHA gives to
its inspectors, and that permitting non-employees to serve as
miners' representatives furthers the purposes of the Act by
allowing participation by representatives specially trained in
safety and health matters.

In further response to the respondent's arguments, the UMWA
asserts that the purpose of a walkaround representative under
section 103(f) is not to represent all of the miners for purposes
of collective bargaining, but rather, to assist MSHA and the
miners who have selected him in enforcing the statutory and
regulatory safety and health standards. The UMWA concludes that
nothing in the Act or 30 C.F.R. Part 40 requires that a miners'
representative be the exclusive representative for purposes under
the Act, or represent all miners, or be selected by a majority of
miners. Quite the contrary, as stated by the Secretary in the
preamble to Part 40, "the rights of nonunion miners would be
severely limited by a definition of "Representative of Miners'
based on the collective bargaining concept. Furthermore, . . .
[t]he purposes of the Mine Act are better served by allowing
multiple representatives to be designated." 43 Fed.Reg. 29508
(July 7, 1978).

The UMWA further concludes that its designation as a
representative of miners under the Act does not mean that the
other miners employed at the respondent's No. 1 Strip Mine have
been forced to accept the UMWA as their representative under the
Act by the action of four individuals because no exclusive
representative "for the purposes of collective bargaining" under
section 9(a) of the NLRA has been selected by the Part 40
designation involved in this case, nor have the rights of any or
all other respondent's miners to select one or more other
representatives under the Act been interferred with in any
manner. Those miners are free to designate any representative(s)
they choose, or to continue not to designate other
representatives under Part 40.

Finally, the UMWA concludes that the respondent's refusal to
permit the complainants to accompany an MSHA inspector during the
inspection on October 31, 1985, interferred with the exercise of
their statutory rights under section 103(f) of the Act, and
therefore was a violation of section 105(c)(1) of the Act. Under
the circumstances, the UMWA asserts that the

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respondent was properly cited for a violation and that a civil
penalty for that violation must be assessed.

Findings and Conclusions

In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, the complainants bear the
burden of production and proof to establish (1) they engaged in
protected activity and (2) that the adverse action complained of
was motivated in any part by that activity. Secretary on behalf
of Pasula v. Consolidation Coal Company, 2 FMSHRC 2768 (1980),
rev'd on other grounds sub. nom. Consolidation Coal Company v.
Marshall, 663 F.2d 1211 (3d Cir.1981); and Secretary on behalf of
Robinette v. United Castle Coal Company, 3 FMSHRC 803 (1981).
Secretary on behalf of Jenkins v. Hecla-Day Mines Corporation, 6
FMSHRC 1842 (1984). The operator may rebut the prima facie case
by showing either that no protected activity occurred or that the
adverse action was in no way motivated by protected activity. If
an operator cannot rebut the prima facie case in this manner it
may nevertheless affirmatively defend by proving that (1) it was
also motivated by the complainants' unprotected activities alone.
The operator bears the burden of proof with regard to the
affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC 1935
(1982). The ultimate burden of persuasion does not shift from the
complainant. Robinette, supra. See also Boich v. FMSHRC, 719 F.2d
194 (6th Cir.1983); and Donovan v. Stafford Construction Company,
No. 83-1566, D.C.Cir. (April 20, 1984) (specifically approving
the Commission's Pasula-Robinette test). See also NLRB v.
Transportation Management Corporation, --- U.S. ----, 76 L.Ed.2d
667 (1983).

The respondent in this case is charged with a violation of
section 105(c)(1) of the Act for allegedly interferring with the
asserted statutory right of the complainants to accompany an MSHA
inspector during his inspection rounds in their capacity as the
designated miners' walkaround representatives pursuant to section
103(f) of the Act. The undisputed facts establish that on October
21, 1985, four miners working at the respondent's No 6
Preparation Plant designated the UMWA as their representative in
the exercise of their rights under the Act, and that the UMWA in
turn designated complainant Barry Mylan as its representative,
and complainant Lester Poorman as its alternate representative.
Mr. Mylan and Mr. Poorman are employed by the UMWA as health and
safety representatives and are not employed by the respondent.
The designation of Mr. Mylan and Mr. Poorman as the
representative of the miners was filed with MSHA's District
Office pursuant to 30 C.F.R. 40.3, and a copy was served on the
respondent.

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It is also undisputed that on October 31, 1985, an MSHA inspector
visited the mine for the purpose of conducting a section
103(g)(1) spot inspection, and when Mr. Mylan and Mr. Poorman
attempted to accompany the inspector on his inspection rounds in
their capacity as the miners' designated walkaround
representative, the respondent ordered them off the property and
would not permit them to accompany the inspector.

Section 105(c)(1) of the Act provides in pertinent part as
follows:

No person shall discharge or in any manner discriminate
against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners

• • • in any coal or other mine subject to this Act
• • • because of the exercise by such miner,
      representative of miners * * * on behalf of himself
      or others of any statutory right afforded by this Act.
      (Emphasis added).

Section 103(f) of the Act, commonly referred to as "the
walkaround right," provides as follows:

Subject to regulations issued by the Secretary, a
representative of the operator and a representative
authorized by his miners shall be given an opportunity
to accompany the Secretary or his authorized
representative during the physical inspection of any
coal or other mine made pursuant to the provisions of
subsection (a), for the purpose of aiding such
inspection and to participate in pre- or
post-inspection conferences held at the mine. Where
there is no authorized miner representative, the
Secretary or his authorized representative shall
consult with a reasonable number of miners concerning
matters of health and safety in such mine. Such
representative of miners who is also an employee of the
operator shall suffer no loss of pay during the period
of his participation in the inspection made under this
subsection. To the extent that the Secretary or
authorized representative from each party would further
aid the inspection, he can permit each party to have an
equal number of such additional representative of
miners

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who is an employee of the operator shall be entitled
to suffer no loss of pay during the period of such
participation under the provisions of this subsection.
Compliance with this subsection shall not be a
jurisdictional prerequisite to the enforcement of
any provision of this Act. (Emphasis added).

The critical issue in this case is the interpretation to be
placed on the term "miner representative" or "authorized
representative" of miners. The respondent's principal contention
is the assertion that the UMWA could not be the "miner
representative" or "authorized representative" of miners at its
preparation plant because the UMWA lost a representation election
conducted by the NLRB, and that the designation by four miners of
the UMWA as their representative is inconsistent with both the
Mine Act and the National Labor Relations Act because there is no
authority allowing two or more miners to select a representative
for many times that number of miners at the mine. Respondent
suggests that the purpose of the Mine Act is better served by
allowing a majority of the miners to select their own
representative, and that to permit four miners to designate the
UMWA as their representative impedes the "freedom of choice"
available to the other miners, and flies in the face of the
statutory scheme of the National Labor Relations Act and the Mine
Act.

As correctly stated by the parties, the Mine Act does not
specifically define the term "representative of miners," nor does
it set out all of the parameters of the statutory right of a
miner's representative to serve as a walkaround in a
representative capacity. However, in the exercise of his
rulemaking authority pursuant to the Act, the Secretary of Labor
on April 25, 1978, issued an Interpretative Bulletin at 43
Fed.Reg. 17546, setting forth the scope of the walkaround
provisions of section 103(f). The bulletin in pertinent part
provides as follows:

The Federal Mine Safety and Health Act of 1977 (Pub.L.
91-173, as amended by Pub.L. 95-164, November 9, 1977)
(hereinafter referred to as the Act) is a Federal
statute designed to achieve safer and more healthful
conditions in the nation's mines. Effective
implementation of the Act and achievement of its goals
depend in large part upon the active but orderly
participation of miners at every

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level of safety and health activity. Therefore, under
the Act, miners and representatives of miners are
afforded a wide range of substantive and procedural rights.

Section 103(f) provides an opportunity for the miners,
through their representatives, to accompany inspectors
during the physical inspection of a mine, for the
purpose of aiding such inspection, and to participate
in pre- or post-inspection conferences held at the
mine. As the Senate Committee on Human Resources
stated, "If our national mine safety and health program
is to be truly effective, miners will have to play an
active part in the enforcement of the Act.' S.Rep. No.
95-181, 95th Cong., 1st Sess., at 35 (1977).

In recognition of the fact that the Act does not contain a
definition of the term "representatives of miners," the Secretary
of Labor, on July 7, 1978, acting under his authority found in
section 101 of the Act to promulgate and revise mandatory
standards, promulgated 30 C.F.R. Part 40, governing the
identification of representatives of miners and setting forth the
filing requirements for such representatives, 43 Fed.Reg. 29508,
July 7, 1978.

30 C.F.R. 40.1--Definitions, in pertinent part provides:

(b) "Representative of miners" means:

(1) Any person or organization which represents two or
more miners at a coal or other mine for the purposes of
the Act, and

(2) "Representatives authorized by the miners," "miners
or their representatives," "authorized miner
representative," and other similar terms as they appear
in the Act.

30 C.F.R. 40.2--Requirements, in pertinent part provides:

(a) A representative of miners shall file with the Mine
Safety and Health Administration District Manager for
the district in which the mine is located the
information required by 40.3 of this part.
Concurrently,

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a copy of this information shall be provided to the
operator of the mine by the representative of miners.

In my view, the term "representatives of miners" for
purposes of the Mine Act was clearly defined by the Secretary
when the aforementioned regulations were promulgated. During the
rulemaking process, several commenters expressed concern that the
regulatory definition found in section 40.1 was overly broad and
would cause confusion among miners selecting a representative.
Some commenters suggested that the NLRB definition of
representative be applied while others suggested that miner
representatives should be elected by a majority of the miners. In
addressing these comments, the Secretary stated that a broad
definition would be preferable to a narrow one and that "any
attempt to limit the manner in which representatives are selected
would be intrusive into labor-management relations at the mine
and not in keeping with the spirit of miner participation," 43
Fed.Reg. 29508, July 7, 1978. Additionally, the Secretary stated
that:

[M]ore specifically, the NLRB definition is
inappropriate because the NLRB definition of
"Representative" concerns itself with a representation
in the context of collective bargaining, the meaning of
the word representative under this Act is completely
different. Additionally, the rights of nonunion miners
would be severly limited by a definition of
"Representative of Miners" based on the collective
bargaining concept. Furthermore, the "majority rule"
concept is a fundamental component of the NLRB
definition of representative, which contemplates only
one union miner representative at each mine. The
purposes of the Mine Act are better served by allowing
multiple representatives to be designated. This insures
that all miners have the opportunity to exercise their
right to select the representative of their choice for
the purpose of performing the various functions of a
representative of miners under the Act and within the
framework of each provision. (Emphasis added).

In view of the foregoing, it seems clear to me that in
addressing the very concerns raised by the respondent with
respect to the application of the collective bargaining
provisions of the National Labor Relations Act with respect to
the definition of the term "representative," the Secretary, in

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promulgating Part 40 clearly distinguished the NLRB law and the
Mine Act purposes and rejected any notion that a representative
of miners can only be based on any "majority rule." Under the
circumstances, I conclude and find that the respondent's
arguments with respect to the application of NLRB law in this
case are without merit, and they are rejected. I agree with the
arguments advanced by MSHA and the UMWA on this issue, and
conclude that the fact that the UMWA may not represent the
respondent's miners for purposes of NLRB or NLRA collective
bargaining purposes does not foreclose its representation of the
miners who designated it to act as their representative in the
exercise of their rights under the Mine Act.

The regulatory definition of the term "representative of
miners" as found in 30 C.F.R. 40.1 includes any person or
organization which represents two or more miners. Section 40.2(b)
provides that miners or their representatives may appoint or
designate different persons to represent them under various
sections of the Act relating to representatives of miners. On the
facts of this case, there is no question that the four miners
working at the preparation plant designated the UMWA as their
representatives, and that the UMWA designated Mr. Mylan and
Poorman to serve in their representative capacity on behalf of
the four miners.

The respondent's suggestion that the designation of the UMWA
by the four miners in question is binding on all miners at the
mine and has resulted in the loss of individual rights for all
remaining miners is not well taken. The issue is not whether the
UMWA represents all miners for all purposes under the Mine Act.
The issue is whether or not the respondent interferred with Mr.
Mylan's and Mr. Poorman's right to accompany the inspector as the
walkaround representative of the four miners who designated the
UMWA as their representative. As far as the other miners are
concerned, under the regulations found in Part 40, they are free
to designate any individual or organization to act as their
representative for purposes of MSHA inspection walkarounds. If
they choose not to select the UMWA, that is their business.

The respondent's contention that Mr. Mylan and Mr. Poorman
may not serve as miners' representatives because they are
employed by the respondent is rejected. As pointed out by MSHA
and the UMWA in their briefs, this issue has previously been
raised in Commission cases decided by Judge Morris and Judge
Broderick, in Consolidation Coal Company v. United Mine Workers
of America, 2 FMSHRC 1403 (1980), and Emery Mining Corp. v.
Secretary of Labor, 8 FMSHRC 1182

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(1986). I agree with those decisions, and find nothing in the Act
or MSHA's Part 40 regulations which makes distinctions between
the rights of employees and non-employee miners' representatives.

I conclude and find that the complainants in this case were
the duly designated walkaround representatives of the four miners
who so designated them, and they had a statutory right pursuant
to section 103(f) accompany the inspector during his inspection
on October 31, 1985. In a recently decided walkaround
discrimination case, Secretary ex rel. Richard Truex v.
Consolidation Coal Company, 8 FMSHRC 1293, September 25, 1986,
the Commission stated that "[t]he language of section 103(f),
providing that "a representative authorized by his miners shall
be given an opportunity to accompany the Secretary,'
unambiguously provides that miners possess the right to choose
their representative for section 103(f) inspections * * *," 8
FMSHRC 1298. Further, the legislative history of section 103(f)
clearly shows that Congress recognized the important function
served by such a right. The Senate Report stated, "It is the
Committee's view that [participation in inspections and pre- and
post-inspection conferences] will enable miners to understand the
safety and health requirements of the Act and will enhance mine
safety and health awareness." S.Rep. No. 181, 95th Cong., 1st
Sess. 28-29 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong.2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at
616-17 (1978) ("Legis.Hist."). See also Magma Copper Co., 1
FMSHRC 1948, 1951-52 (December 1979), aff'd, Magma Copper Co. v.
FMSHRC, 645 F2d 694 (9th Cir.1981), cert. denied, 454 U.S. 940
(1981).

I further conclude and find that the respondent's refusal to
allow Mr. Mylan and Mr. Poorman to accompany the inspector during
his inspection on October 31, 1985, violated their protected
statutory rights under section 103(f) to serve as the
representative of the miners who so designated them, and
constituted an unlawful interference with their protected rights
under section 105(c)(1) of the Act. Accordingly, the complaint
filed in this case IS AFFIRMED.

Respondent's Request for Dismissal of the Complaint as Untimely

After due consideration of the respondent's arguments
concerning the late-filing of the complaint, they are rejected,
and the respondent's request for a dismissal of the complaint on
this ground IS DENIED. It has been held that the filing deadlines
found in section 105(c) of the Act are

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not jurisdictional in nature, Christian v. South Hopkins Coal
Company, 1 FMSHRC 126, 134-136 (1979); Bennett v. Kaiser Aluminum
& Chemical Corporation, 3 FMSHRC 1539 (1981). Further, as
remedial legislation, the Act should be liberally construed so as
not to unduly prejudice miners for MSHA's delay in filing its
complaint. In this case, I find no protracted delay on MSHA's
part, nor can I conclude that the delay has prejudiced the
respondent in its ability to present its defense.

Civil Penalty Assessment

On the facts of this case, I do not consider the violation
to be egregious. MSHA's suggestion that the respondent displayed
a lack of good faith by adamantly refusing to recognize the UMWA
as the miner representative in this case is not well taken. Given
the protracted and somewhat nasty legal dispute surrounding the
contested NLRB collective bargaining election, I find no basis
for unduly penalizing the respondent for its legal position taken
in this case. Under the circumstances, and after consideration of
the civil penalty criteria found in section 110(i) of the Act, I
conclude that a civil penalty assessment of $100 is reasonable
and appropriate in this case.

ORDER

In view of the foregoing findings and conclusions, IT IS
ORDERED THAT:

1. The respondent cease and desist from prohibiting the
   UMWA or its designated health and safety
   representatives who have been designated by the four
   miners at the respondent's No. 6 Preparation Plant as
   their representatives from accompanying MSHA inspectors
   as walkaround representatives during their mine
   inspections.

2. The respondent post a copy of this decision on the
   mine and preparation plant bulletin boards or at other
   locations readily available or accessible to miners.

3. The respondent remit to MSHA a civil penalty
   assessment in the amount of $100 for its violation of
   section 105(c)(1) of the Act.

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Full compliance with this Order is to be made by the respondent
within thirty (30) days of the date of this decision.

George A. Koutras
Administrative Law Judge