Mid-Continent Resources, Inc.

Plain-English summary

Mid-Continent Resources was cited after a miners' representative was allegedly denied the opportunity to accompany an MSHA inspector at the Dutch Creek No. 1 Mine. The Secretary later moved to withdraw the civil penalty proposal after determining that the miners' representative designation was defective, and the Secretary had vacated the citation and order. Mid-Continent sought declaratory relief concerning the representative's access and related Mine Act and labor-law issues. Judge John J. Morris denied that request, granted the Secretary's motion to withdraw the penalty petition, vacated the proposed penalty, and dismissed the case.

Decision snapshot

• Cited provisions: 30 C.F.R. § 40.1(b), 30 U.S.C. §§ 813(f), 814(a), 820(e), and 820(k)
• Outcome: Declaratory relief was denied, the penalty petition was withdrawn, the proposed penalty was vacated, and the case was dismissed.
• Key point: The judge held that the Commission was not the forum for the labor-law relief sought and followed Commission precedent on miners' representative access.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. MID-CONTINENT RESOURCES

DDATE:
19880701

TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 87-88
PETITIONER A.C. No. 05-00301-03609

         v.                            Dutch Creek No. 1 Mine

MID-CONTINENT RESOURCES, INC.,
RESPONDENT
AND

UNITED MINE WORKERS OF AMERICA,
INTERVENOR

AMERICAN MINING CONGRESS,
AMICUS CURIAE

                          ORDER OF DISMISSAL

Before: Judge Morris

 The issues involved here arise from the federal Mine Safety

and Health Act, 30 U.S.C. 801 et seq., ("Mine Act" or "Act").

 At issue is whether the judge should grant the Secretary's

pending motion to withdraw her complaint proposing a civil
penalty or, in the alternative, deny the Secretary's motion and
grant respondent's motion for declaratory relief.

 A resolution of the issues requires a review of the

development and present status of this case.

                          PROCEDURAL HISTORY

 1. On March 16, 1987, the Secretary filed a civil penalty

against respondent Mid-Continent Resources, Incorporated. The
complaint proposing the penalty arose from Citation No. 2213910,
issued to Mid-Continent pursuant to 104(a) of the Act.

 The citation charges Mid-Continent with violating   103(f)

of the Act. The citation describes the following violative
practice:

         On 5/13/86, Donald Ford, Safety Department refused to
         Robert Butero, a designated representative of the
         miners, the right to accompany Mike Horbatko, an
         authorized representative of

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the Secretary. During an inspection of the Dutch Creek No. 1
Mine. The inspection was being conducted pursuant to 103(a) of
the Federal Mine Safety and Health Act of 1977.

 2. Section 103(f) of the Act, allegedly violated here,

provides as follows:

      "(f) 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 of the Secretary determines
      that more than one representative from each party would
      further aid the inspection, he can permit each party to
      have an equal number of such additional
      representatives. However, only one such representative
      of miners 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.

 3. On August 21, 1987 the judge stayed the proceedings

because he believed certain controlling cases were pending before
the Commission.

 4. On October 16, 1987 the stay was dissolved and the case

subsequently set for a hearing.

 5. In due course the United Mine Workers of America ("UMWA")

was granted party status and the American Mining Congress,
("AMC"), was granted leave to appear as Amicus Curaie.

 6. Mid-Continent's amended answer to the Secretary's

complaint alleged, in effect, that the designation of the miners
representative was invalid (Paragraph 20, Amended Answer).

 7. On November 23, 1987, the Secretary moved to withdraw his

petition for assessment of a civil penalty. His motion admitted

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that after a review and investigation the representative of
miners' form was:

      ... signed by two employees (one of whom was then
      off-work, permanently injured, had no intention of
      returning, and was unable to return to active
      employment at Mid-Continent ...

 In addition, his motion states that:

      "[c]onsequently, the individual was not an active miner
      at the time the representative of miners' form was
      filed with the Mine Safety and Health Administration.
      In light of the truth of this allegation and the fact
      that only two people signed the designation (see
      Respondent's Answer, Exhibit No. 5), the citation and
      order have been vacated by the Secretary."

 8. Mid-Continent opposed the Secretary's motion to withdraw

his proposal for penalty and further moved for declaratory
relief.

 9. Mid-Continent's opposition to the Secretary's motion

states, in part, as follows:

 A) That a major issue raised by the proceeding is whether a

nominal number of workers can properly designate a union such as
the UMWA as their walk-around representative under 30 C.F.R. Part
40 when the designated union is not a union which represents
employees at the mine under the Labor Management Relations Act,
as amended, 29 U.S.C. 141 et seq. Mid-Continent further
asserts the issue was exacerbated in this instance by virtue of
the fact that the UMWA was at the very time of the disputed
designation in the process of an unsuccessful effort to obtain
designation as the collective bargaining representative of
Mid-Continent employees by the National Labor Relations Board.

 B) Further, Mid-Continent contends the Secretary's position

is that any two or more employees may execute a designation under
30 C.F.R. Part 40. As a result a non-employee union
representative may gain access to Mid-Continent's mine, or any
other mine, regardless of whether that union has been designated
a collective bargaining representative of employees by the
National Labor Relations Board or whether the designated union
is, in fact, or in law, truly "representative'.

 C) Mid-Continent further states that since AMC is appearing

as Amicus Curiae the problems arising here are demonstrative of
similar situations throughout the industry.

 D) Further, to allow the Secretary to withdraw his civil

penalty without allowing this matter to move forward would
deprive Mid-Continent of its efforts to date.

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E) Mid-Continent also anticipates being confronted with the
identical issue in the near future. The 12-month
organizational/election immunity created under Section 9(e)(2) of
the National Labor Relations Act, 29 U.S.C. 159(c)(2) between
Mid-Continent and the UMWA expired in December 1987.

 F) Further, Mid-Continent faces civil penalties under

Section 110(a) and (b) of the 1977 Mine Act and face a choice of
either complying with the Mine Act (which is in clear conflict
with the Labor Management Relations Act) or risk greater
penalties under Section 110 of the Mine Act, including the
possibility of criminal sanctions. Accordingly, Mid-Continent
should be permitted the opportunity to litigate these matters
rather than risk penalty alternatives.

 G) No claim has been made that the Secretary anticipates

reformulating her position on the propriety of a non-employee
union representative (who was not selected as a representative of
employees under the Labor Management Relations Act). Specifically,
Mid-Continent contends this circumvents the National Labor
Relations Board and obtains ostensible authority under the Mine
Act when said representative is not, in law or fact
"representative". Thus, both the factual and legal issues
involved are significantly narrower than those involved in Climax
Molybdenum Co. v. Secretary of Labor, 703 F.2d 447, 453 (10th
Cir.1983).

 H) According to Mid-Continent a further issue is whether the

issuance of the citation contravened the prohibition of advance
notice under Section 110(e) of the Mine Act. This issue arises
from certain facts urged by Mid-Continent. Thus, if the case is
not allowed to proceed to declaratory relief then Mid-Continent
requests the matter be referred to the Department of Labor and
the Department of Justice for review of potential prosecution for
a violation of Section 110(e).

 10. On December 23, 1987 the judge cancelled the scheduled

hearing in Glenwood Springs, Colorado and gave the parties 15
days to state their views as to whether Mid-Continent should be
permitted to proceed with its request for declaratory relief.

 11. On March 29, 1988, the Commission issued its decision in

Emery Mining Corporation, 10 FMSHRC 276.

 12. The parties were given an opportunity to comment on the

effect of Emery as it related to the facts involved in the
instant case. The Secretary and UMWA oppose Mid-Continent's
motion. Amicus Curiae, AMC, supports Mid-Continent's position.

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Discussion

 As a threshold matter it appears that the Commission has

jurisdiction in this case. Section 110(k) of the Act prohibits
compromise, reduction or settlement of proposed penalties, once
contested, without Commission approval. Commission Rule 30(a), 29
C.F.R. 2700.30(a); Kocher Coal Co., 4 FMSHRC 2123 (1982).

 It further appears the Commission, in its discretion, may

grant declaratory relief under section 5(d) of the Administrative
Procedure Act, 5 U.S.C. 554(e); Climax Molybdenum Co. v.
Secretary of Labor, 703 F.2d 447 (10th Cir.1983).

 The pivitol issue is whether the Commission should exercise

its discretion and grant declaratory relief.

 Mid-Continent's prinicipal contention focuses on the point

that in Emery the miners' were represented by the UMWA. On the
other hand, Mid-Continent was union free at the time of the
citation contested herein. It has, in fact, been union free since
November, 1981.

 Emery clearly stands for the proposition that the rights of

miners' representatives broadly extends to non-employees. The
undersigned judge is obliged to follow the Commission rulings.
New Jersey Pulversing Company, 2 FMSHRC 1686 (1980). Accordingly,
on this point Mid-Continent could not prevail.

 Mid-Continent further contends that permitting access to its

mine by a UMWA representative would clearly conflict with the
National Labor Relations Act.

 However, in Emery Mining Corporation, the trial judge

addressed an issue of whether Emery's waiver of liability policy
might violate the laws of the State of Utah. 8 FMSHRC at 1206. On
appeal the Commission observed that the proper concern was
whether Emery had violated the Mine Act. Specifically, the
Commission expressed no opinion on any question concerning state
law, 10 FMSHRC 289, fn. 11. It would accordingly appear that any
relief on this point would lie with the NLRB and not the
Commission.

 Mid-Continent also argues that the Commission decision deals

with a union representative recognized under the NLRB law.
However the decision does not address the inherent conflict
between the criminal provisions relating to prohibitions on prior
notification of inspections in Section 110(e) of the Mine Act and
the necessity for prior notification to be given to a
non-employee walk-around representative, if the walk-around
designation is to be anything other than illusory. It is claimed
that the fortuity of a union organizer and inspector both showing
up at 6:30 a.m.

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is the one fact in this matter which will rarely occur absent
prior notification. This problem, according to Mid-Continent, can
be ameliorated somewhat in a situation where a union has already
been selected by employees. However, there is no way to
ameliorate it where, as here, the walk-around designation is
being used as a subterfuge to gain access to company property
contrary to the Labor-Management Relations Act.

 I disagree. The date and time of regularly scheduled mine

inspections, as mandated by the Act, would probably be common
knowledge to any interested miner at the site. In addition, in
any event it is the function of this judge to adjudicate issues
under the Mine Act, not the Labor Management Act.

 For the foregoing reasons the motion of Mid-Continent for

declaratory relief is denied and I enter the following:

                             ORDER

 1. The motion of respondent for declaratory relief is

denied.

 2. The motion of the Secretary to withdraw his petition for

assessment of a civil penalty is granted.

 3. The proposed penalty is vacated.

 4. The case is dismissed.


                       John J. Morris
                       Administrative Law Judge