Kerr-McGee Coal Corporation
Kerr-McGee Coal Corporation (FMSHRC WEST 91-220 and consolidated dockets): Miners' representative designation must be posted
Apply this to your situation
This order from 1991 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Kerr-McGee Coal Corporation refused to post a designation naming United Mine Workers representatives for miners at its Jacobs Ranch Mine. Judge Michael A. Lasher, Jr. held that Mine Act representative-of-miners rules do not require a union to be certified for collective bargaining before it can serve as a walk-around representative. He rejected Kerr-McGee's claims that the designation conflicted with labor law or was an abuse of Mine Act procedures. The judge affirmed the citation and withdrawal order and assessed a $300 civil penalty.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 40.1 through 40.5
- Outcome: The citation and withdrawal order were affirmed, the contests were dismissed, and a $300 civil penalty was assessed.
- Key point: A miners' representative designated under Mine Act regulations may be a nonemployee union representative even when the union is not the mine's collective-bargaining representative.
Full text (FMSHRC public release)
+CCASE:
KERR-MCGEE COAL V. SOL (MSHA)
DDATE:
19911209
TTEXT:
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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges
KERR-MCGEE COAL CORPORATION, CONTEST PROCEEDINGS
CONTESTANT
Docket No. WEST 91-84-R
v. Citation No. 3242337; 10/25/90
SECRETARY OF LABOR, Docket No. WEST 91-85-R
MINE SAFETY AND HEALTH Order No. 3242340; 10/25/90
REVIEW ADMINISTRATION,
RESPONDENT Jacobs Ranch
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
REVIEW ADMINISTRATION, Docket No. WEST 91-220
PETITIONER A.C. No. 48-00997-03513
v. Jacobs Ranch
KERR-MCGEE COAL CORPORATION,
RESPONDENT
DECISION
Appearances: Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Respondent/Petitioner;
Charles W. Newcom, Esq., SHERMAN & HOWARD, Denver,
Colorado, for Contestant/Respondent.
Before: Judge Lasher
These three consolidated contest/civil penalty proceedings
came on for hearing in Denver, Colorado, on July 23, 1991.
Kerr-McGee Corporation (herein "K-M") in two contests challenges
Citation No. 3242337 issued on October 25, 1990, by MSHA
Inspector Jimmie Giles1 charging a violation of 30 C.F.R.
40.4 and
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104(b) "failure to abate" Withdrawal Order No. 3242340
issued approximately 10 to 20 minutes after the Citation was
issued. The Secretary of Labor (herein "MSHA") in the related
penalty proceeding captioned seeks assessment of a penalty for
the violation alleged in the citation.
Contentions of the Parties
The general issues are whether K-M violated 30 C.F.R. Part
40.4 and 103(f) of the Act by failing to post the designation
of representative of miners (in the record three times as
Exhibits K-1, M-1, and A-1 to the stipulation) and, if so, the
appropriate amount of penalty for such violation.
As MSHA points out, there is no question that K-M did not
post the "designation" and that it refused to abate the allegedly
violative practice by posting it after being requested to do so
by MSHA--which resulted in MSHA's issuance of a "failure to
abate" withdrawal order. The issue then is whether the defenses
asserted by K-M relieve it from posting the designation and
excuse the failure to abate.
K-M states the issues as:
1. Can a union, or an employee of that union, "represent"
miners at a mine when the union does not represent the mine's
employees pursuant to the provisions of the Labor Management
Relations Act ("LMRA")?
2. Does MSHA's application to 30 C.F.R. Part 40 create an
unnecessary and improper conflict between MSHA's regulations and
the LMRA?
3. Under Utah Power & Light Co. v. Secretary of Labor, 897
F.2d 447, 452 (10th Cir. 1990) is it an "abuse" for a union,
which does not represent employees at a mine pursuant to the
provisions
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of LMRA to seek to become a "representative of miners" under 30
C.F.R. Part 40 to facilitate organizing efforts at the mine?
4. If a union's use of 30 C.F.R. Part 40 would require a
mine operator to waive its rights under the LMRA, is such a use
of Part 40 an "abuse?"
K-M's contentions then are:
1. Properly interpreted, 30 C.F.R. Part 40 requires that
before a labor union, or an employee of a union, can "represent"
miners and thus be a "Representative of Miners," under the Act
the union must be certified as a representative under the LMRA
(T. 33-34);3
2. MSHA's application of 30 C.F.R. Part 40 to K-M
unnecessarily and impermissibly conflicts with the LMRA (T. 43,
44);
3. The designation in this matter is for union organization
purposes and is thus an abuse of Mine Act regulations as applied
to K-M, and under Utah Power & Light, supra, K-M can take action
against the abuse (see T.37);
In this connection, KM alleges that "Both the UMWA's attempt
to gain under Mine Act regulations what it cannot acquire under
the LMRA (access to mine property and various mine records, and a
role in mine business as it relates to health and safety . . . )
and MSHA's proposed application of Part 40 at K-M which aids the
UMWA in this organizing endeavor are an abuse."
4. K-M, in this litigation, does not raise the issue of
technical defects in the designation of miners (T. 49).
30 C.F.R. Part 40, headed "Representative of Miners"
consists of five sections which appear below.
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The Regulation
40.1 Definitions.
As used in this Part 40:
(a) "Act" means the Federal Mine Safety and Health Act
of 1977.
(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 miners", "miners or
their representative", "authorized miner
representative", and other similar terms as they appear
in the Act.
40.2 Requirements.
(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, a copy of this information shall be
provided to the operator of the mine by the
representative of miners.
(b) Miners or their representative organization may
appoint or designate different persons to represet them
under various sections of the act relating to
representatives of miners.
(c) All information filed pursuant to this part shall
be maintained by the appropriate Mine Safety and Health
Administration District Office and shall be made
available for public inspection.
(Approved by the Office of Management and Budget under
control number 12190042)
(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et
seq.))
[43 FR 29509, July 7, 1978, as amended at 47 FR 14696,
Apr. 6, 1982]
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40.3 Filing procedures.
(a) The following information shall be filed by a
representative of miners with the appropriate District
Manager, with copies to the operators of the affected
mines. This information shall be kept current:
(1) The name, address, and telephone number of the
representative of miners. If the representative of
miners. If the representative is an organization, the
name, address, and telephone number of the organization
and the title of the official or position, who is to
serve as the representative and his or her telephone
number.
(2) The name and address of the operator of the mine
where the represented miners work and the name,
address, and Mine Safety and Health Administration
identification number, if known, of the mine.
(3) A copy of the document evidencing the designation
of the representative of miners.
(4) A statement that the person or position named as
the representative of miners is the representative for
all purposes of the Act; of if the representative's
authority is limited, a statement of the limitation.
(5) The names, addresses, and telephone numbers, of any
representative to serve in his absence.
(6) A statement that copies of all information filed
pursuant to this section have been delivered to the
operator of the affected mine, prior to or concurrently
with the filing of this statement.
(7) A statement certifying that all information fled is
true and correct followed by the signature of the
representative of miners.
(b) The representative of miners shall be responsible
for ensuring that the appropriate District Manager and
operator have received all of the information required
by this part and informing such District Manager and
operator of any subsequent changes in the information.
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40.4 Posting at mine.
A copy of the information provided the operator
pursuant to 40.3 of this part shall be posted upon
receipt by the operator on the mine bulletin board and
maintained in a current status.
40.5 Termination of designation as representa-
tive of miners.
(a) A representative of miners who becomes unable to
comply with the requirements of this part shall file a
statement with the appropriate District Manager
terminating his or her designation.
(b) The Mine Safety and Health Administration shall
terminate and remove from its files all designations of
representatives of miners which have been terminated
pursuant to paragraph (a) of this section or which are
not in compliance with the requirements of this part.
The Mine Safety and Health Administration shall notify
the operator of such termination.
FINDINGS
A. Stipulated Facts (Ex. M-7)
1. Kerr-McGee is the owner and operator of the Jacobs Ranch
Mine, located in Campbell County, Wyoming. There are no issues of
jurisdiction in this matter.
2. On or about July 24 and 25, 1990, seven miners employed
at the Jacobs Ranch Mine signed Exhibit A to the Stipulation
which may be introduced into evidence in this case.
3. Exhibit A4 lists the UMW as the miners'
representative and lists UMW representatives to represent miners
at the Jacobs Ranch Mine.
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4. Employees at the Jacobs Ranch Mine have never been unionized
by the UMW or any other union.
5. One of the UMW representatives, Dallas Wolf, resides in
Gillette, Wyoming, and is International Teller/Organizer for the
UMW, who is living in Gillette for the purpose of unionizing the
coal miners in the Powder River Basin, including the miners at
the Jacobs Ranch Mine.
6. The second listed UMW representative, Bob Butero, resides
in Trinidad, Colorado, and is an international representative of
the UMW.
7. After Exhibit A was signed by the seven employees listed
thereon, it was mailed by Dallas Wolf to the District Manager,
Coal Mine Safety and Health, District 9 in Denver, Colorado.
8. Exhibit A was received by the Coal District 9 office and
returned to Mr. Wolf for further information. The additional
information was provided and received by the Coal District 9
office on or about August 30, 1990.
9. On or about September 6, 1990, the Coal District Manager,
District 9, mailed a letter to Mr. Wolf, acknowledging receipt of
Exhibit A.
10. The letter to Dallas Wolf from William Holgate, dated
September 6, 1990, acknowledging receipt of Exhibit A is attached
as Exhibit B and may be admitted into evidence in this case.
11. Dallas Wolf mailed Exhibit A to K-M Jacobs Ranch Mine,
on or about August 30, 1990.
12. Exhibit A was received by the Jacobs Ranch Mine and
discussed by K-M management at the mine and at the office in
Oklahoma City, Oklahoma. It was determined by management that the
designation would not be posted at the time, or in any other
location because of the view of K-M, which MSHA disagrees with,
that Exhibit A is not proper under 30 C.F.R. 40.
13. On or about October 25, 1990, MSHA received a 103(g)
complaint regarding the Jacobs Ranch Mine. The complaint alleged
that Exhibit A had not been posted at the mine as required by 30
C.F.R. 40.4.
14. Upon receipt of the complaint, Coal Mine Inspector
Jimmie Giles proceeded to the Jacobs Ranch Mine and presented a
copy of the complaint to mine management, including Ron Crispin.
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15. Mr. Crispin informed Mr. Giles that Exhibit A had not been
posted. During the visit by Inspector Giles, Mr. Crispin read a
statement of position to Mr. Giles. The statement of position is
attached hereto as Exhibit C and may be introduced into evidence
in this case.
16. Thereupon, Inspector Giles issued a 104(a) citation to
the Jacobs Ranch Mine for a violation of 30 C.F.R. 40.4, Citation
No. 3242337.
17. Inspector Giles informed the mine operator, through Mr.
Crispin, that they would have approximately 15 minutes to abate
the Citation by posting Exhibit A.
18. Mr. Crispin conferred with the Oklahoma City office and
determined that the operator would not post Exhibit A.
19. After about 20 minutes, Exhibit A had not been posted
and Inspector Giles had been notified that the mine would not
post it. Inspector Giles the issued Order No. 3242340, a 104(b)
order for failing to abate a citation.
20. Mr. Giles then left the mine and returned to his office
in Sheridan, Wyoming.
21. As a result of the citation and order, K-M management
representatives traveled to McAlester, Oklahoma, for a conference
with MSHA sub-district manager, Joseph Pavlovich. No change was
made in the citation or order as a result of the conference.
22. On or about November 16, 1990, K-M filed a timely notice
of contest with regard to the citation and order issued in this
matter. Thereupon, the Secretary of Labor filed a timely
response.
B. Findings in Connection with Stipulation
Exhibit M-1 (Ex. A to the Stipulation entered into by the
parties) consists of a total of nine pages and
a. designates Bob Butero, International Safety
Representative and Dallas Wolf, International
Teller,5 of UMWA as
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"representatives" and seven employees as "alternate
representatives" to serve as representatives of the miners under
the Federal Mine Safety and Health Act of 1977, "for all
purposes" (T. 32),
b. was "submitted as required" by 30 C.F.R. 40.3, and
c. prior to the submission of Exhibit M-1, there had
been no prior designations, i.e., no miners'
representatives under the Mine Act at the subject mine
(T. 26-28, 54, 151).
Exhibit C to the Stipulation, Respondent's written statement
of position objecting to the designation referred to in paragraph
14 of the Stipulation which was read to the MSHA inspector who
issued the Citation, provides as follows:
Kerr-McGee does not believe it can lawfully be required
to accept the designation of a non-employee walk-around
representative at the Jacobs Ranch Mine or to recognize
any other action by a non-employee. MSHA Inspectors are
entitled to, and encouraged to, talk to Jacobs Ranch
employees as a part of all inspections. Inspections
should proceed on that basis without outside
interference.6
C. General Findings
The subject coal mine is located in the Powder River Basin
of Wyoming. The UMWA, since the summer of 1990, has been actively
seeking to unionize the subject mine as well as other mines in
the Powder River Basin. Dallas Wolf is an international
representative of the UMWA who moved to Gillette, Wyoming, in
April 1990, to engage in union organizing activities. The UMWA
held
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several meetings in Gillette which were attended by Jacobs Ranch
miners, which meetings were organized by Mr. Wolf. In July 1990,
the UMWA sponsored several days of safety training, presented by
Robert D. Butero, International Health and Safety representative
residing in Trinidad, Colorado. Issues discussed during the
safety training included safety and walk-around rights of miners.
At the end of the safety training sessions, July 24 and 25, 1990,
seven Jacobs Ranch miners signed the designation (Ex. M-1). Mr.
Wolf played a key role in the preparation, circulation, and
filing of the designation. The use of 30 C.F.R. Part 40 and the
designation of miners' representatives was part of UMWA's
organizing strategy and was an organizing "tool."7
After the designation was signed, it was sent to MSHA and
was received on August 18, 1990. Concurrently, Mr. Wolf mailed a
copy to the mine.
Subsequently the designation was corrected by additional
information and completed forms were sent to and received by MSHA
and K-M. (Exs. M-3 and M-4).
Upon receipt of the designation, KM by general management
decision determined not to post it even though it was familiar
with the UP&L decision granting walk-around rights to
non-employees (T. 147). K-M's determination not to post was made
several months prior to the appearance of MSHA Inspector Jimmie
Giles at the mine when the Citation and Order were issued. K-M
made no protest of the designation during this period and the
testimony of its Manager of Administration, Ronnie D. Crispin, in
this and related connections has considerable significance in
this matter:
Q. Okay. In between the time you decided not to post
and the time Mr. Giles wrote his citation, did you send
any letters to MSHA explaining why you didn't want to
post that designation form?
A. No, we did not.
* * * * *
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Q. Mr. Crispin, is it your understanding that this designation,
Exhibit M-1, is somehow abusive or something that was abused by
the union? Is that your understanding of M-1?
* * * * *
A. Personally, I feel, yes, it's an abuse of intent in
that.
Q. (My Ms. Miller) Will you explain why you think that
with regard to this document.
A. Because it designates United Mine Workers as a
Representative.
Q. What's abusive about that?
A. Because, obviously, they do not represent our
employees.
Q. In the collective bargaining sense, they don't
represent your employees?
A. That's correct.
Q. Is there anything else that you see that's abusive
about that document, anything else, or is that the--
A. That's the issue.8 (T. 148-149)
On or about October 25, 1990, MSHA received a Section 103(g)
complaint stating that the Jacobs Ranch Mine had not posted the
designation of representative form as required by Part 40
regulations. Inspector Giles then traveled to the mine on that
day and presented the complaint to mine management, i.e., Ron
Crispin. Mr. Crispin informed the inspector that, indeed, the
designation had not been posted and that it would not be posted.
Crispin told Inspector Giles that the two miners designated as walk-
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around representatives were union members and were not employed
at the Jacobs Ranch Mine. Mr. Crispin further indicated that the
mine had not received a notification from MSHA that the
designation was a valid one. Inspector Giles then called his
supervisor and the Denver District Office to determine the status
of the designation form. Giles learned that MSHA did not notify
K-M regarding a designation but that the representative of miners
provided a copy to the operator, as noted on the form. He then
issued the 104(a) citation and, as shown in the stipulation,
informed K-M that he would allow them 15 minutes to post the
designation, and abate the decision. Mr. Giles hereafter was
informed that the designation would not be posted and he then
issued the 104(b) order for a failure to abate.
On January 2, 1991, MSHA District Manager, William Holgate,
had a letter hand-delivered to K-M. The letter informed K-M of
his intention to request that the asessment office begin a daily
penalty if the citation was not immediately abated. K-M was given
24 hours to abate and it did so at that time.
Normally, the procedure for an inspection is for the
inspector to be accompanied by a representative of the operator
and a representative of the miners. Upon arrival at the mine, the
MSHA inspector will contact the operator to let him know that he
is at the mine and ask if there is a designated representative of
the miners available. If so, the inspector will contact that
representative; if not, he may ask the miners present if they
would like to select someone to accompany the inspector. (Tr.
166). The inspector is supposed to control the inspection and if
the representative of the operator or the representative of the
miner who is accompanying the inspector does something
inappropriate the inspector should interrupt the inspection and
explain that the representative is to only accompany the
inspector and assist him in the inspection. (T. 167). The
inspector would stop a representative from engaging in any union
organizing activity and if it persists would prohibit that
representative from participating in the inspection. (T. 168).
Based on many years of experience, MSHA subdistrict manager
Joe Pavlovich testified to the practical aspects of a walk-around
representative's duties:
A. Basically, what the person does is just travel with
an inspector and assist him most of the time. What we
end up finding is, we probably train the people in
health and safety regulations, as much as anything,
through their accompaniment and asking questions and
showing them what the correct interpretations of the
regulations are and the conditions that we find. (T.
168-169).
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Q. Is there a time when someone who is not employed at the mine
might be valuable to the inspector.
A. Well, we have had people involved in accident
investigations who would not be familiar with the mine,
but they are valuable to the inspection work force at
the time, usually in their knowledge of accidents or
accident types or assistance in mine rescue or whatever
we're involved in at the time. (T. 169).
During the course of the inspection, the walk-around
representative will have access to certain training records.
(See, for example, Exhibit M-17). In spite of testimony to the
contrary by Mr. Crispin, that is the only non-public record that
is kept by the mine that the inspector and the representative
might view. The other documents that would be accessible to a
miners' representative are accessible to the general public, and
the miners' representative thus does not see anything that he
could not otherwise see or review. (T. 171-173).
DISCUSSION AND ADDITIONAL FINDINGS
The position of MSHA is found meritorious and is adopted.
Examinaton of the pertinent provision of the Act and the
regulations disclose no restrictions or qualifcations on
"persons" or "organizations" in their inherent right to serve as
representatives of miners. Specifically, there is no requirement
of prior certification by the National Labor Relations Board (see
T. 34) nor any intimation of such to be found. The term
"representative of miners" includes any individual or
organization that represents any group of miners at a given mine
and does not require that the representative be a recognized
representative under other labor laws. (See Legislative History
Conference Report excerpt, Ex. M-6). The language of the
regulation is express. It is concluded that UMWA was at material
times an "organization" within the meaning of 30 C.F.R.
40.1(b)(1) and was not barred from representing miners as
authorized by MSHA's regulations. The interpretations of MSHA to
this effect have been consistent. Likewise precedent has been
consistent, including the Utah Power & Light decision mentioned
previously.
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In Secretary of Labor v. Benjamin Coal Company, 9 FMSHRC 17,
51-52 (January 1987), Judge George Koutras stated ". . . it seems
clear to me that in addressing the very concerns raised by the
respondent [Benjamin Coal] with respect to the application of the
collective bargaining provision of the National Labor Relations
Act with respect to the definition of the term "representative,"
the Secretary, in 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.' . . . I conclude . . . that the fact that the UMWA may not
represent the respondent's miners for puposes 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."
I find merit in MSHA's position that there is no conflict
between the Mine Safety and Health Act and the Labor Management
Relations Act in their application here. Although K-M uses the
term "representative" in discussing both Acts, the term does not
have the same meaning in both Acts. Under the LMRA, a
representative is elected by a majority of the workers, pursuant
to LMRA regulations. The purpose of the representative is to
present the needs of the employees to the employer, concerning
terms and conditions of employment. Pursuant to the LMRA
"Representatives designated or selected for the purposes of
collective bargaining by the majority of the employees in a unit
appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the
purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of employment . .
. " 29 U.S.C. 159(a). The representation, under the Labor
Management Relations Act, is pervasive; it covers virtually all
aspects of the labor-management relationship, and for a long
term. The requirements of the LMRA that both sides are obliged to
meet are extensive, and have been the subject of a long legal
history. By contrast, under the Mine Safety and Health Act, a
representative can be chosen by only two or more miners, pursuant
to regulation, solely for the purpose of accompanying the mine
inspector during his inspection.9
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"Representative of Miners" is defined at 30 C.F.R. 40.1(b) as
"Any person or organization which represents two or more miners
at a coal or other mine for the purposes of the Act."
MSHA has determined that any person qualified to be on a
mine site may act as miner's representative. The representative
need not be an employee of the mine, nor a member, or nonmember,
of any labor or other organization. Because the Secretary is
charged with administering the Mine Act, a remedial statute, the
Secretary's construction of the Act "is entitled to deference
unless it can be said not to be a reasoned and supportable
interpretation of the Act. In order to sustain construction by
the agency that administers the statute, a Court need only find
that the agency's interpretation is reasonable. Unemployment
Compensation Comm'n v. Aragon, 328 U.S. 143, 154-154 (1946). The
Court "need not find that [the administering agency's]
construction is the only reasonable one, or even that it is the
result [the court] would have reached had the question arisen in
the first instance in judicial proceeding." Id. at 153. Accord:
Udall v. Tallman, 380 U.S. 1, 16 (1965); Chevron U.S.A., Inc. v.
NRDC, Inc., 467 U.S. 837, 843 (1984). As the Tenth Circuit states
in a case dealing with the Secretary's interpretation of the
similar Occupational Safety and Health Act:
"[The] interpretation given a statute by the administrative
agency charged with carrying out the mandate of the statute of
the statute should be given great weight. Indeed, the
interpretation given a statute by the administrative agency
charged with its enforcement should be accepted by the courts, if
such interpretation be a reasonable one. And this is true even
though there may be another interpretation of the statute which
is itself equally reasonable." Brennan v. OSHRC, 513 F.2d 553,
554 (10th Cir. 1975).
In this regard, the Mine Act Senate committee report states:
"Since the Secretary of Labor is charged with responsibilty for
implementing this Act, it is the intention of the Committee,
consistent with generally accepted precedent, that the
Secretary's interpretation of the law and regulations shall be
given weight by both the Commission and thecourts. S. Rep. No.
95-181, 95th Con., 1st Sess. 49 (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 637 (1978).
The Secretary's interpretation of the statute and regulation
is actually supported by the Tenth Circuit's decision in Utah
Power & Light Company v. Secretary of Labor, supra. In that
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case, miners at the Deer Creek Mine in Utah designated as a
representative of miners for walk-around purposes a member of the
United Mine workers who was not employed at the Deer Creek Mine.
Although the Deer Creek Mine also recognized the UMW as a
representative for collective purposes pursuant to the LMRA, the
Court focused on the meaning of "representative" as used in the
Mine Act in determining that "the Act clearly spells out the
purpose of a miners' representative's participation in an
inspection." That participation is solely to aid the inspector in
this investigation. The Court did not compare a walk-around
representative to a collective bargaining representative for
purposes of the LMRA. The statements made by the Court with
regard to the meaning of "representative" were in the context of
addressing the issue raised by the mine operator, that if
non-employees of the mine were allowed to act as walk-around
representatives, it may open the door for unions to participate
at mines not represented by a labor organization. The Court found
no merit in the operator's contention that would cause it to
limit walk-around rights. Instead, the Court determined that the
Mine Act and the regulations place no limits on who may be chosen
as a walk-around representative and hence it is logical to infer
that the "no limitation" aspect of the designation extends to
members of labor and other organizations. The Court noted that
the Secretary's position was amply supported by the history of
the Mine Act, and that the Secretary's interpretation of the Act
was "reasonable and supportable." (See T. 174).
The Court, in passing, merely noted the argument of the mine
operator regarding possible abuse, and dismissed the argument
with the one sentence that K-M relies on here. That sentence,
when read in the context of the decision, does not give K-M the
right to ignore the posting requirements and to ignore an order
issued by MSHA. The Court stated:
UPL's argument ignores the fact that, as with a federal
inspector, the Act clearly spells out the purpose of a
miners' representative's participation in an
inspection. Section 103(f) provides that an authorized
miner's representative shall have the opportunity to
accompany a federal inspector during the inspection of
a mine "for the purpose of aiding such inspection."
While we recognize UPL's concern that walk-around
rights may be abused by non-employee respresentatives,
the potential for abuse does not require a construction
of the Act that would exclude non-employee
representatives from exercising walk-around rights
altogether. The solution is for the operator to take
Page 18
~1905
action against individual instances of abuse when it is
discovered. (Emphasis added.)
K-M has shown no individual instance of abuse in this case.
Nor has it shown, beyond speculation, that UMWA's organizing
strategy, or for that matter the purposes of any of those
signatory to the designation, contemplated misuse of Part 40
rights by either "outside" or fifth-column type infiltration of
working areas to enlist members, distribute literature, purloin
confidential K-M records, etc., under the facade of Mine Act
walk-around participation. I am unable to conclude, absent
clearer basis and authority to do so, that the exercise of
important safety rights granted under one Act of Congress can per
se be abusive because such exercise is either controlled or
influenced to some degree by an organization engaged in union
organizing the rules for which are set forth by an agency created
by another Act of Congress. One would reasonably expect that both
parties, having various rights under various laws and
regulations, would exercise them.
The exercise of rights under the Mine Act by certain K-M
employees to desgnate UMWA as their "representative of miners" is
found not to be an "abuse" even though UMWA has not been
certified as collective bargaining representative for K-M's
employees or appropriate units of them.
CONCLUSIONS
1. The exercise of a right given under one law, the Mine
Safety and Health Act, as part of a labor organization's program
to organize miners under another labor law, is not per se an
"abuse." If, in exercising the right, "individual instances"
occur where a union engages in improper conduct, then the
question of specific abuse arises and must be determined on a
case by case basis.
2. In the process of designation of miners' representatives
under the Act the subjective intent of the union, organization,
or person does not determine whether there is an abuse. The right
to designate miners' representatives exists under the Act
independent of whether union organizing is ongoing (and is an
ulterior motive), and "abuse" thereof must be something beyond
the exercise of the right.
3. Conversely, depriving a union, other organization, or
person of their full rights under the Mine Act to designate a
representative under the Act by failing to post the designation,
while being part of a mine operator's own opposition to
organizing efforts can at the same time be a violation of the
Act.
Page 19
~1906
In conclusion, no merit is found to the defenses and contentions
raised by K-M which have been specified previously herein and
analyzed. The fact that it refused to post the designation is
admitted. Accordingly, the violation as charged in the Citation
and Order is found to have occurred.
Assessment of Penalty
K-M is a large mine operator (265-270 employees in 1990);
(T. 135) with a history of eight prior violations during the
pertinent two-year period preceding the instant violation. (Ex.
M-5).
The violation is found to have occurred as a result of a
well-deliberated decision by K-M to challenge the validity of the
regulation requiring posting of the miners' designation of
representatives made in the background of its resistance to the
UMWA organizing campaign. In gauging culpability, whether
negligence or deliberate action, the reason originally assigned
by K-M for refusing to post the designation appears to rest on
thin legal ground, and the failure to post did deprive miners of
rights guaranteed in the Act and implementing regulations.
The infraction was of a moderate degree of seriousness since
it deprived the miners of their rights (T. 55) including their
right to know who their representatives were and the scope of
their authority so that safety concerns could be communicated to
them in advance of inspection.10
Finally, it does not appear that K-M, upon notification of
the violation, proceeded to promptly abate the same.
In mitigation, it is noted that K-M established that it has
a favorable safety record.
Upon consideration of the foregoing, a penalty of $300 is
found appropriate for this violation and such is here ASSESSED.
Page 20
~1907
ORDER
1. Contestant K-M's Notices of Contest in the two Contest
Proceedings are DENIED: Citation No. 3242337 and Withdrawal Order
No. 3242340 are AFFIRMED; the two Contest proceedings are
DISMISSED.
2. Respondent K-M shall, within 30 days from the date of
this decision, pay to the Secretary of Labor the sum of $300 as
and for the civil penalty above assessed.
Michael A. Lasher, Jr.
Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE
1. The Citation, issued pursuant to Section 104(a) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801, et
seq. (herein "the Act"), describes the alleged violation in these
terms: "The operator has failed to post a list of the
representatives of the miners on the mine bulletin board." The
Citation, which was served on Ron Crispin, Manager of K-M's
Jacobs Ranch Mine, did not designate the infraction as
"significant and substantial."
2. This "no area affected" Order, which did not close or
shut down any area of the mine or equipment, alleged "The
operator has made no effort to post a list of the miners'
representatives on the mine bulletin board, and refuses to do
so." In its Notice of Contest, K-M contends that "No violation
can be found because the designation of the United Mine Workers
of America as a representative of miners under 30 C.F.R. part 40
for Jacobs Ranch Mine miners is improper."
3. K-M's Jacobs Ranch Mine employees have never been
represented for collective bargaining purposes by UMWA or any
other union. (T. 75).
4. The stipulation refers to Exhibits "A", "B", and "C",
which are described in the stipulation and are contained in the
Exhibits file as part of the record.
5. Exhibit K-36, page 11.
6. I find it significant that this was the reason K-M gave
at the time for its refusal to post the designation and that on
its face, the basis so asserted directly contradicts the
fundamental holding of the landmark case, Utah Power & Light Co.,
supra, that non-employee persons and organizations can serve as
miners' representatives for walk-around purposes. The emphasis
here is on opposition to "non-employee walk-around"
representatives and "outside interference." Nothing is said about
"abuse," even assuming arguendo that at this juncture
recognizable abuse was a viable legal concept.
7. In this record K-M at best showed UMWA used Part 40 as a
Page 21
"tool" to create employee interest and to enhance its standing.
Beyond that K-M's fear as to UMWA's future action was
speculative.
8. In terms of K-M's intent and purpose in refusing to post
the designation, this testimony coincides with the written-out
reason given to Inspector Giles when the Citation and Order were
issued.
9. MSHA seeks a representative of miners at each mine for
the purpose of assisting the mine inspector and accompanying the
inspector to point out any problems tha miners may have noticed.
The representative remains with the inspector during the
investigation and his only allowed activity is that of advising
and observing the mine inspector. Should the representative
engage in any other activity, he will be asked to leave and
another representative will join the inspector. In MSHA terms,
this person is a "walk-around representative."
10. As the Tenth Circuit Court stated in Utah Power & Light
Co., supra, ". . . knowledge on the part of the miners of the
identity, whereabouts, and scope of responsibility of their
representatives promotes the purposes of the Act." (See T.
53-54).
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