Kerr-McGee Coal Corporation

Plain-English summary

Kerr-McGee operated a nonunion surface coal mine where miners designated two United Mine Workers of America agents as their representatives for mine inspections. The Commission held that section 103(f) of the Mine Act and Part 40 allow miners to choose nonemployees, including union agents, as walkaround representatives even when the union is not their collective bargaining representative. It affirmed the ALJ's decision upholding a citation for failing to post the representatives' designations and an associated withdrawal order. The Commission also upheld the denial of Kerr-McGee's motion to reopen the record and explained that any abuse of walkaround rights must be addressed based on the representative's actual conduct.

Decision snapshot

• Cited standard: 30 C.F.R. § 40.4.
• Outcome: The ALJ's decision was affirmed, including the citation, withdrawal order, and $300 civil penalty.
• Key point: Mine Act walkaround representation is distinct from NLRA collective bargaining representation, and nonemployee union agents may serve as miners' representatives.

Full text (FMSHRC public release)

                                March 4, 1993

KERR-McGEE COAL CORPORATION :
:
v. : Docket Nos. WEST 91-84-R
: WEST 91-85-R
SECRETARY OF LABOR, : WEST 91-220
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

                                    DECISION

BY THE COMMISSION:

  This consolidated contest and civil penalty proceeding arises under the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (1988)(the
"Mine Act" or "Act"), and presents the issue of whether miners may choose as
their representative for "walkaround" purposes under section 103(f) of the
Mine Act,(Footnote 1) a union, or the agent of a union, that is not the
miners' collective bargaining representative under the National Labor
Relations Act, 29 U.S.C. 151 et seq. (as amended)(1988)("NLRA"). This case
arose when an inspector from the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued to Kerr-McGee Coal Corporation ("Kerr-McGee") a
citation alleging that Kerr-McGee had violated 30 C.F.R. 40.4 when it failed
to post at its Jacobs Ranch Mine, a nonunion mine, the names of certain
miners' representatives not employed by Kerr-McGee. These individuals were
agents of

1 The term "walkaround" is used in reference to the rights granted miners'
representatives under section 103(f) of the Mine Act, which provides in
pertinent part:

                 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 ... for the purpose of aiding such
           inspection and to participate in pre- or post-
           inspection conference held at the mine....

30 U.S.C. 813(f).

the United Mine Workers of America ("UMWA") and were designated as miners'
representatives by certain miners employed at the Jacobs Ranch Mine.(Footnote
2) The inspector subsequently issued an order of withdrawal pursuant to
section 104(b) of the Mine Act, 30 U.S.C. 814(b), after Kerr-McGee declined
to abate the alleged violation.

  Following an evidentiary hearing, Administrative Law Judge Michael A.

Lasher, Jr., upheld the citation and order. 13 FMSHRC 1889 (December 1991)
(ALJ). The judge concluded that, although the UMWA did not represent the
miners at the Jacobs Ranch Mine for collective bargaining purposes under the
NLRA, the designation of nonemployee UMWA agents as miners' representatives
did not constitute a "per se" abuse of the miners' representative process
under the Mine Act and the Secretary's implementing regulations at 30 C.F.R.
Part 40 ("Part 40"). For the reasons discussed below, we affirm.

                                  I.

                   Factual and Procedural Background

  A.    Factual Background

  Kerr-McGee owns and operates the Jacobs Ranch Mine, a surface coal mine

employing approximately 270 miners and located in the Powder River Basin near
Gillette, Wyoming. The employees at the mine have never been unionized.
Dallas Wolf, an organizer for the UMWA, moved to Gillette in April 1990, for
the purpose of unionizing miners in the Powder River Basin, including the
Jacobs Ranch miners.

  The UMWA held several meetings in Gillette that were organized by Wolf

and attended by a number of Kerr-McGee miners. In July 1990, the UMWA also
sponsored several days of safety training for Kerr-McGee miners. These
training sessions were presented by Robert Butero, a UMWA safety and health
representative. At the end of the training sessions, Wolf urged those in
attendance to sign forms designating Wolf and Butero as their miners'
representatives under Part 40.(Footnote 3) Seven of the Jacobs Ranch miners
designated

2 The regulations of the Secretary of Labor dealing with miners'
representatives are contained at 30 C.F.R. Part 40. Section 40.4, entitled
"Posting at mine," provides:

              A copy of the information provided the operator
        pursuant to   40.3 of this part [designating the
        miners' representative] shall be posted upon receipt
        by the operator on the mine bulletin board and
        maintained in a current status.

3 The Secretary's regulation defines the term "representative of miners" as
"[a]ny person or organization which represents two or more miners at a ...
mine for the purposes of the Act." It equates the term to "[r]epresentatives
authorized by the miners, miners or their representative, authorized miner

Wolf and Butero as their miners' representatives and themselves as alternate
representatives.(Footnote 4) The record reflects that neither Wolf nor Butero
actually acted in his capacity as miners' representative at the Jacobs Ranch
Mine.

  Under 30 C.F.R.   40.3, miners' representatives are required to file

with MSHA information regarding their designation and identity and to provide
copies to the affected operator. Wolf mailed the miners' representative
designation form to the MSHA District Office in Denver and its receipt was
acknowledged. Kerr-McGee received its copy of the form and decided that it
would not post the designation of Wolf and Butero at the mine pursuant to
section 40.4 (n.2 supra), because it believed that it was not required to
accept agents of the UMWA as miners' representatives. Kerr-McGee did not
inform MSHA of its decision not to post the designation.

  MSHA Inspector Jimmie Giles inspected the Jacobs Ranch Mine on October

25, 1990, in response to a complaint submitted to MSHA pursuant to section
103(g) of the Mine Act, 30 U.S.C. 813(g), that the miners' representative
designation form had not been posted at the mine. Ron Crispin, Kerr-McGee's
manager of administration, informed Inspector Giles that the designation form
was not, and would not be, posted. Crispin read to Inspector Giles a prepared
statement that Kerr-McGee was not required to accept the designation of
nonemployees as miners' representatives.(Footnote 5)

  Inspector Giles issued Kerr-McGee a citation alleging a violation of

section 40.4, for failure to post the designation form on the mine bulletin
board, and allowed Kerr-McGee 15 minutes to abate the condition by posting the
form. After Crispin again declined to post the designation form, Inspector
Giles issued an order of withdrawal pursuant to section 104(b) of the Act, 30
3(...continued)
representative," and other similar terms used in the Act. 30 C.F.R.
40.1(b)(1) & (2). Thus, under Part 40, any two miners at a mine may designate
"any person or organization" to represent them as a miners' representative.

4 Prior to this designation, there had never been a miners' representative
designated under Part 40 at the mine. Since this designation, approximately
92 Jacobs Ranch miners have been designated as Part 40 representatives. S.
Br. at 18-19 n.9.

5 The statement provides:

        Kerr-McGee does not believe it can lawfully be
        required to accept the designation of a non-employee
        walkaround 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.

Exh. C. to Stipulation, Exh. M-7.

U.S.C. 814(b), for refusal to abate the alleged violation. Kerr-McGee
finally abated the citation after receiving a letter from the MSHA district
manager stating that Kerr-McGee would be assessed a daily penalty (see 30
U.S.C. 820(b)) if it did not immediately abate the violative condition.
Kerr-McGee filed timely notices of contest of the citation and the order, and
the matter proceeded to an evidentiary hearing before Judge Lasher.

  B.    Procedural Background

  Following the hearing, and before submission of the parties' post-

hearing briefs, Kerr-McGee moved to reopen the record based upon newly
discovered evidence. Kerr-McGee asserted that, in an unrelated proceeding
after the hearing, its counsel had obtained from the UMWA several documents
establishing that certain statements made by Wolf in his pre-hearing
deposition in this matter were incorrect. Wolf had testified in his
deposition that he did not have any letters or written reports regarding this
case or his designation as a miners' representative. Kerr-McGee offered, as
its newly discovered evidence, a series of internal UMWA memoranda to and from
Wolf, which, it asserted, revealed that Wolf had been designated as a
walkaround representative in order to facilitate on-going UMWA organizing
activities.

  In an unpublished order, the judge denied Kerr-McGee's motion to reopen.

The judge stated that the prerequisites for reopening a record for the
presentation of newly discovered evidence are:

        the evidence [is] discovered after the completion of
        the trial; due diligence on the part of the moving
        party to discover the new evidence prior to trial is
        shown or inferred; the evidence is not merely
        cumulative or impeaching; the evidence is material;
        and the evidence is such that a new trial would
        probably produce a new result.

Unpublished Order at 2 (October 11, 1991)(citation omitted)("Order"). The
judge determined that Kerr-McGee did not establish that it had exercised due
diligence to discover the documents prior to trial. The judge next determined
that the evidence was largely cumulative, and that a number of the documents
had been discovered prior to trial and were either accepted into evidence or
dismissed by the judge as irrelevant. The judge also noted that the veracity
of Wolf's deposition testimony was a matter for impeachment and, as such, was
not a sufficient basis for reopening the case. Finally, the judge rejected
Kerr-McGee's argument that the newly discovered evidence would probably
produce a different result. The judge explained that the documents merely
revealed that union organizing activity was taking place in the Powder River
Basin, and that this was established and undisputed at trial. Order at 2-3.

  In his decision on the merits, the judge concluded that the designation

of Wolf and Butero as miners' representatives at the Jacobs Ranch Mine did not
constitute a per se abuse of the miners' representative process, and that
Kerr-McGee's refusal to post the designation was not justified. The judge
first determined, upon examination of Part 40 and section 103(f) of the Mine

Act, that a union may represent miners for walkaround and other Mine Act
purposes even though it is not the collective bargaining representative of
those miners under the NLRA. 13 FMSHRC at 1901. The judge pointed out that
the language of section 40.1(b) (n.3 supra) expressly provides that a
"representative of miners" includes "any individual or organization" that
represents two or more miners, and does not set forth any restriction or
qualification that the representative must be recognized as such under other
labor laws. Id. (emphasis added). The judge relied on Utah Power & Light Co.
v. Secretary, 897 F.2d 447 (10th Cir. 1990)("UP&L"), aff'g, Emery Mining
Corp., 10 FMSHRC 276 (March 1988), in which the United States Court of Appeals
for the Tenth Circuit, affirming the Commission, held that walkaround rights
may be extended to miners' representatives who are not employees of the
affected operator. Id.

  The judge further determined that a conflict did not exist between the

Mine Act and the NLRA. The judge reasoned that the representative process has
distinct meanings and purposes under each Act. 13 FMSHRC at 1902. He
explained that under the NLRA, a representative is elected by a majority of
workers for a broad range of collective bargaining purposes. In contrast,
under the Mine Act and the Secretary's Part 40 regulations, a representative
is chosen by two or more miners for the primary purpose of accompanying a mine
inspector during an inspection. Id.

  The judge also noted that MSHA has consistently interpreted the term

"representative" in the Mine Act and Part 40 as any person qualified to be on
a mine site, regardless of whether that person is an employee of the mine
operator or a member of a labor or other organization. 13 FMSHRC at 1903.
Finally, the judge observed that UP&L had clearly indicated that the Secretary
and an affected operator could take appropriate action against any miners'
representative who abuses the walkaround process by engaging in inappropriate
activities, such as union organizing, during walkaround. 13 FMSHRC at 1904-
05, citing UP&L, 897 F.2d at 452. The judge held that instances of abuse must
be considered on a case-by-case basis. The judge concluded that the exercise
of Mine Act rights by Kerr-McGee employees to designate nonemployee UMWA
members as their representatives was not an abuse of the miners'
representative process. 13 FMSHRC at 1905. The judge determined that "at
best [Kerr-McGee] showed [that the] UMWA used Part 40 as a `tool' to create
employee interest and to enhance its standing." 13 FMSHRC at 1898 n.7.
Accordingly, the judge denied Kerr-McGee's contests of the citation and order,
and assessed a civil penalty of $300. 13 FMSHRC at 1906.

  The Commission subsequently granted Kerr-McGee's petition for

discretionary review, which challenges the judge's decision on the merits and
his denial of the motion to reopen. The American Mining Congress, the
National Coal Association and the Wyoming Mining Association (collectively,
"industry amici"), jointly, and the UMWA, separately, filed amicus curiae
briefs in this proceeding, and the Commission heard oral argument.

                                     II.

                           Disposition of Issues

   A.   Motion to Reopen

  Kerr-McGee argues that the judge erred in denying its motion to reopen

the record. We disagree.

  Although the Commission's procedural rules, 29 C.F.R. Part 2700, do not

specifically address motions to reopen a hearing on the basis of newly
discovered evidence, Commission Procedural Rule 54(a), 29 C.F.R. 2700.54(a),
authorizes Commission judges to regulate the course of hearings and to dispose
of procedural motions. The Commission also may properly look for guidance to
the Federal Rules of Civil Procedure ("Fed. R. Civ. P.")(29 C.F.R.
2700.1 (b)), and precedent thereunder. A motion to reopen the record t
submit new evidence is not expressly addressed in the federal rules but,
rather, is committed to the sound discretion of the trial judge. See
generally Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331
(1971). In general, an abuse of discretion occurs when the trial court bases
its decision on an erroneous conclusion of law or where there is no rational
basis in the evidence for its ruling. See, e.g., In re Coordinated Pretrial
Proceedings, etc., 669 F.2d 620, 623 (10th Cir. 1982).

  A motion for a new trial under Fed. R. Civ. P. 59 ("Rule 59") has

certain similarities and affords some guidance. See J. Moore, J. Lucas & G.
Grother, 6A Moore's Federal Practice 59.04[13](2d ed. 1992)("Moore's"). A
motion to reopen, however, seeks to offer additional evidence before a
decision has been rendered and, consequently, the standards for granting such
a motion are less stringent than those for a motion seeking a new
trial.(Footnote 6) Generally, in determining whether to grant a motion to
reopen, it is appropriate to consider the time when the motion is made, the
character of the additional evidence, and the effect of granting the motion.
6A Moore's at
59.04[13]

  The judge applied the post-judgment Rule 59 criteria, urged upon him by

Kerr-McGee, and did not expressly refer to the less stringent pre-judgment
test. In applying the somewhat similar Rule 59 criteria, however, the judge,
in effect, considered the essential factors of the pre-judgment test. Of
particular importance, the judge characterized the "new" evidence as
cumulative, and noted that a number of the allegedly newly found documents had
been discovered prior to trial and rejected at trial as irrelevant. Order at

2. The judge also determined that admission of the evidence would not have
   altered his findings in any event. Order at 3. He explained that the
   evidence merely demonstrated that union organizing activity was taking place
   in the Powder River Basin, which had been established at trial and was not
   disputed. Id. Under the circumstances, any error in setting forth the
   stricter Rule 59 criteria was harmless.

6 The stricter criteria for a Rule 59 post-judgment motion are the ones cited
by the judge in his pre-trial order.

  Because a rational basis existed for the judge's denial of Kerr-McGee's

motion to reopen, and the judge's error, if any, was harmless, we conclude
that the judge did not abuse his discretion. Accordingly, we affirm his order
denying the operator's motion to reopen the record.

   B.   Designation of Wolf and Butero as Miners' Representatives

        1.    Contentions of the parties on review

  The thrust of the operators'(Footnote 7) argument is that the Mine Act

should be construed to prohibit a union or a union member from being
designated as a "representative of miners," unless that union also represents
the miners under the NLRA. The operators assert that granting representative
status to a nonemployee union agent infringes upon an operator's right to
control access to its private property by nonemployees, including nonemployee
union organizers. In support, the operators rely heavily on Lechmere, Inc. v.
NLRB, 502 U.S. , 117 L.Ed.2d 79 (1992).

  Kerr-McGee distinguishes UP&L, 897 F.2d 447, on the grounds that, in

that case, the nonemployee miners' representative was a union member who
sought to act as a representative at a union mine, whereas the present case
involves a nonunion mine. Thus, Kerr-McGee asserts that UP&L is not
controlling.

  According to the operators, the Secretary's Part 40 Regulations and, in

particular, the definition of "representative of miners," are legally infirm.
The operators assert that the Part 40 definition of representative, which
allows for multiple representation by "any" individuals or organizations,
conflicts with provisions of the NLRA that prohibit a unionized employer from
dealing with any agent other than the official collective bargaining agent.
They argue that permitting a union member to act as a miners' representative
at a nonunion mine not only intrudes upon the operator's right under the NLRA
to control access to its private property by union organizers but also tends
to create a favorable impression among the miners towards the union. The
operators contend that the Secretary's interpretation of Part 40 is
unreasonable and that to permit the kind of representation involved here
amounts to a failure to accommodate Part 40 to the NLRA's regulatory scheme.

  The operators contend that the designation of a union agent as a

walkaround representative at a nonunion mine constitutes an abuse of section
103(f), even under UP&L, because it is plainly for an ulterior purpose. Kerr-
McGee urges that the aim of designating UMWA representatives here was to
foster their organizing efforts rather than to promote health and safety and,
consequently, that aim was abusive of the Mine Act.

7 Unless otherwise noted, the arguments of industry amici are included in our
discussion of Kerr-McGee's position and the term "operators" is used in
reference to their arguments. Similarly, the arguments of amicus UMWA are
incorporated in our discussion of the Secretary's position.

  The Secretary responds that the operators' suggested approach to the

miners' representative process is overly restrictive under the Mine Act and
the Part 40 implementing regulations. The Secretary notes that nothing in
Part 40 prohibits the Kerr-McGee miners from designating an agent of the UMWA
or any labor union as their miners' representative under the Mine Act, even
though the designated union is not the miners' collective bargaining
representative under the NLRA. The Secretary emphasizes that section 103(f)
of the Mine Act imposes no status limitations on who may serve as a miners'
representative, and, accordingly, Part 40 regulations simply mirror the
statute's broad approach.

  The Secretary urges that deference should be given to his interpretation

of the Mine Act and to his interpretation of the regulations that he has
adopted. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-45 (1984). The
Secretary asserts that his interpretation of the relevant portions of Part 40
should be accepted, as it is reasonable, consistent with the Mine Act, and is
supported by his "contemporaneous construction" of Part 40, published at the
time Part 40 was promulgated. The preamble to the regulations specifically
discussed and rejected the definition of "representative" as used in the NLRA,
explaining that the purposes of the representation process under the two
statutes were different. (Footnote 8)

  The Secretary further contends that UP&L, 897 F.2d 447, is dispositive.

There, the Tenth Circuit held that nonemployees may serve as walkaround
representatives. Under UP&L, an operator may take appropriate action against
a designated representative only if he engages in specific conduct unrelated
to safety or health. The Secretary contends that, as the judge found, Kerr-
McGee has failed to show instances of such abusive conduct. The Secretary
acknowledges that there was a union organizing campaign underway at the Jacobs
Ranch Mine, but argues that, as shown by the record, the designation of the
UMWA representatives was also intended to advance miners' safety. Thus, even

8 The preamble to Part 40 states:

        [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 [A]ct 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 any one union
        miner representative at each mine. The purposes of
        the Mine Act are better served by allowing multiple
        representatives to be designated.

43 Fed. Reg. 29508 (July 7, 1978).

if the miners' representatives possessed a "mixed motive," i.e., safety and
unionizing, there was no abuse of the walkaround function.

  Finally, the Secretary argues that the Part 40 regulations do not

impermissibly conflict with the NLRA. The Part 40 regulations do not impinge
on Kerr-McGee's right under the NLRA to deny access to its property to
nonemployees engaged in union organizing because the miners' representative
has only a limited access, a carefully delineated right to assist with
inspections, and may not use that access to engage in organizing activities.

        2.    Analysis

  We find the judge's reasoning persuasive and conclude that this matter

is controlled by the decisions of this Commission and the Tenth Circuit in the
UP&L litigation. The general issue of whether an operator's miners may
designate an individual who is not an employee of the mine operator as their
miners' representative for walkaround purposes has been previously determined
by the Commission. In Emery, the Commission held that "as a matter of
statutory right a nonemployee may be chosen by the miners of a given mine as
their representative and ... such a representative may properly be afforded
the opportunity to participate in walkaround at that mine -- although without
compensation from the operator." Emery, 10 FMSHRC at 284-85, aff'd, UP&L, 897
F.2d at 449-52. The Commission's conclusion in Emery was based on the
language of section 103(f) of the Mine Act, which "imposes no employee-status
limitation as to whom [miners] may choose [as their own representative]." 10
FMSHRC at 284. The Commission determined that the Secretary's Part 40
regulations' "broad definition of representative is in accord with the
underlying statutory text [of section 103(f)]." 10 FMSHRC at 285.

  In affirming the Commission's holding on this issue, the Tenth Circuit

concluded that the Secretary's and the Commission's interpretation of section
103(f) was "both reasonable and supportable" and held that miners may
authorize nonemployees to act as their representative under 103(f) of the
Act. 897 F.2d at 452. In reaching this conclusion, the Court determined that
the underlying purpose of section 103(f) "can be furthered by allowing both
employees and nonemployees to act as miners' representatives for walkaround
purposes." Id. The Court noted that miners may benefit from the
participation of nonemployee representatives in walkaround because such
representatives "may have greater expertise in health and safety matters than
an employee representative." 897 F.2d at 451.

  In UP&L, the mine operator had argued that the Secretary's inter-

pretation of section 103(f) in the Part 40 regulations was not reasonable, in
part, because it would allow the representative of a union to gain access to a
nonunion mine for purposes unrelated to the Act's safety objectives. 897 F.2d
at 452. In addressing this argument, the Court stated:

        While we recognize UPL's concern that walkaround
        rights may be abused by nonemployee representatives,
        the potential for abuse does not require a
        construction of the Act that would exclude nonemployee
        representatives from exercising walkaround rights


        altogether. The solution is for the operator to take
        action against individual instances of abuse when it
        discovers them.

Id. Contrary to Kerr-McGee's assertions on review, the Court did not base its
holding on the fact that, in that case, the miners were represented for NLRA
purposes by a union and, therefore, the designation of a nonemployee union
member as a miners' representative was permissible. Rather, the Court
interpreted the language of section 103(f) to permit representation by
nonemployees generally, including agents of a labor organization.

  We discern no basis in section 103(f) or Part 40 for applying the

principles set forth in Emery/UP&L only to situations where the designated
representative is a member of a union that also represents the miners for
collective bargaining purposes under the NLRA. The language of section 103(f)
does not prohibit miners from designating agents of a union as their
walkaround representatives on the basis that such miners are not represented
by the union for collective bargaining purposes. To the contrary, the
Commission has held that, under the broad language of section 103(f), miners
possess the right to designate a representative of their own choosing for
section 103(f) purposes. Emery, 10 FMSHRC at 284-85; Secretary on behalf of
Truex v. Consolidation Coal Co., 8 FMSHRC 1293, 1298 (September 1986).
Further, the operators' position would limit nonunionized miners' right to
designate representatives of their own choosing, thereby creating distinctions
between unionized and nonunionized miners that have no basis in the statute.

  The Commission held in Emery that section 103(f) specifically provides

that the requirements set forth therein are "[s]ubject to regulations issued
by the Secretary" and that the Secretary's pertinent regulations at Part 40
are consistent with the language of section 103(f). 10 FMSHRC at 285.
Moreover, the Secretary's manner of enforcement of his regulations is
consistent with those regulations and with Emery. Thus, the Secretary says
that he does not determine who qualifies as a walkaround representative based
on a person's status or motives. Oral Arg. Tr. 45-48. Instead, the Secretary
focuses on the actual conduct of the miners' representative during the
inspection. Oral Arg. Tr. 48. The Secretary states that it is irrelevant who
is chosen as a miners' representative so long as the representative's
"demeanor and behavior" is proper and consistent with the purposes of section
103(f). Id.

  The Commission is aware, as was the 10th Circuit in UP&L, that allowing

a union agent limited access to mine property under section 103(f) is subject
to possible abuse. We agree with the Secretary and the judge that it is the
conduct of a miners' representative, during a walkaround under section 103(f),
rather than the motivation of such representative, that must be examined to
determine whether there has been abuse. Although the UMWA agents, Wolf and
Butero, are organizing mines in the Powder River Basin, there has been no
showing here that they will, through their conduct, abuse the rights and
corresponding responsibilities of section 103(f). Kerr-McGee's concerns as to
possible future problems are speculative. Conduct by a miners' representative
that constitutes abuse can be addressed on an individual basis by an operator

and the Secretary, while generally preserving the right of miners to select
representatives of their choice. See UP&L, 897 F.2d at 452.

  Kerr-McGee also seeks reversal of the judge's decision on the basis that

Part 40, as applied here, conflicts with the NLRA. The NLRA broadly
guarantees employees the right to "bargain collectively through repre-
sentatives of their own choosing...." 29 U.S.C. 157. The Mine Act, on the
other hand, is a more narrowly tailored statute that pervasively regulates the
safety and health of employees in one industry. In effect, the operators ask
the Commission to read into section 103(f) of the Mine Act the concept of
collective bargaining representation under the NLRA with the result that a
nonemployee agent of a union could not be a miners' representative unless he
is also a duly certified bargaining representative at that mine. When
promulgating Part 40, the Secretary concluded that it would be inappropriate
to incorporate the NLRA definition of a "representative" because "the meaning
of the word representative under [the Mine] Act is completely different." 43
Fed. Reg. 29508 (see n.8 supra).

  Although we cannot ignore other statutes when interpreting the Mine Act,

nothing in the Mine Act or general principles of administrative law requires
that the Secretary or the Commission defer to or incorporate the NLRA. Our
proper field of judicial inquiry is the Mine Act. See generally PBGC v. LTV
Corp., 496 U.S. 633, 645-47 (1990). We agree with the Secretary that he is
not required to integrate the NLRA's concepts of collective bargaining
representation into his regulations implementing the Mine Act. Nor is this
Commission required to integrate NLRA concepts into its interpretation of the
Mine Act. See, e.g., UMWA on behalf of James Rowe et al., etc. v. Peabody
Coal Co., 7 FMSHRC 1357, 1364-65 (September 1985), aff'd, 822 F.2d 1134 (D.C.
Cir. 1987).

  The restrictions that have developed under the NLRA concerning

nonemployee access to an employer's property for organizing or related
purposes arise under a statute "whose very purpose is the governance of labor-
management relations." Peabody, 7 FMSHRC at 1365. The discrete safety and
health purpose of the Mine Act, and the text of section 103(f), render these
NLRA principles inapplicable here. As noted, the Secretary rejected the
approach advocated by the operators when he promulgated Part 40. See UP&L,
897 F.2d at 452; Emery, 10 FMSHRC at 285. We hold that the concept of
representative as it has developed under the NLRA is not determinative of the
miners' representative designation process under Part 40.

  The Supreme Court's decision in Lechmere does not require a different

result. Lechmere construed the provisions of the NLRA governing the access
rights of nonemployee union organizers to employers' private property. In
Lechmere, the Court was concerned with "the relationship between the rights of
employees under 7 of the [NLRA] ..., 29 U.S.C. 157, and the private
property rights of employers." Lechmere, 117 L.Ed.2d at 85. The Court did
not address general legal principles relating to the balancing of property
rights of employers against federal regulatory requirements established under
other statutes, such as the Mine Act. Lechmere does not reverse walkaround
law as it has developed under the Mine Act and does not overrule UP&L.

  Under the Mine Act, nonemployees may enter a mine for the limited

purpose of accompanying MSHA inspectors during their inspection of a mine.
The Mine Act entails pervasive regulation and a diminished expectation of full
enjoyment of private property rights. For example, search warrants for
government inspections are not required because, in part, the Mine Act "is
specifically tailored to address [Congress' safety and health] concerns, and
the regulation of mines [that] it imposes is sufficiently pervasive and
defined that the owner of such a facility cannot help but be aware that he
`will be subject to effective inspection.'" Donovan v. Dewey, 452 U.S. 594,
603 (1981)(citation and footnote omitted). Accordingly, the Court's analysis
of the property rights of employers in Lechmere, which relates solely to
employee organizing rights under the NLRA, is not applicable to this case.

  To the extent that Kerr-McGee is seeking a resolution of rights and

obligations under the NLRA, it is in the wrong forum. If the Secretary,
either through regulation or enforcement, requires an operator to take
specific actions that could constitute an unfair labor practice or would
otherwise conflict with the NLRA, the proper forum to resolve such conflicts
is the National Labor Relations Board ("NLRB"). The NLRB may determine
whether the Mine Act's requirements or the Secretary's implementing
regulations serve as a defense to an unfair labor practice charge.

                                  III.

                               Conclusion

   For the foregoing reasons, the judge's decision is affirmed.


                                 Arlene Holen, Chairman


                                 Richard V. Backley, Commissioner


                                 Joyce A. Doyle, Commissioner


                                 L. Clair Nelson, Commissioner