Kerr-McGee Coal Corp. v. Federal Mine Safety and Health Review Com'n, KERR-M

• Decision Date: 17 January 1995
• Docket Number: No. 93-1250,KERR-M,93-1250
• Citation: 40 F.3d 1257
• Parties: 149 L.R.R.M. (BNA) 2675, 309 U.S.App.D.C. 226, 63 USLW 2358, 130 Lab.Cas. P 11,368, 1994 O.S.H.D. (CCH) P 30,630 cGEE COAL CORPORATION, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, et al., Respondents. International Union, United Mine Workers of America, Intervenor. American Mining Congress; National Coal Association; Wyoming Mining Association, amici curiae.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1257

40 F.3d 1257

149 L.R.R.M. (BNA) 2675, 309 U.S.App.D.C.

226, 63 USLW 2358,

130 Lab.Cas. P 11,368,

1994 O.S.H.D. (CCH) P 30,630

KERR-McGEE COAL CORPORATION, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, et al.,

Respondents.

International Union, United Mine Workers of America, Intervenor.

American Mining Congress; National Coal Association;

Wyoming Mining Association, amici curiae.

No. 93-1250.

United States Court of Appeals,

District of Columbia Circuit.

Argued Oct. 4, 1994.

Decided Dec. 2, 1994.

Rehearing and Suggestion for Rehearing

In Banc Denied Jan. 17, 1995.

Charles W. Newcom, Denver, CO, argued the cause and filed the briefs, for petitioner.

Colleen A. Geraghty, Atty., U.S. Dept. of Labor, Washington, DC, argued the cause, for respondents. With her on the brief was W. Christian Schumann, counsel, U.S. Dept. of Labor, Washington, DC. L. Joseph Ferrara, Atty., Federal Mine Safety and Health Review Com'n, Washington, DC, entered an appearance.

Robert H. Stropp, Jr., Washington, DC, filed the brief for intervenor. Mary L. Jordan, Washington, DC, entered an appearance.

Thomas C. Means, J. Michael Klise, Mark G. Ellis, and Harold P. Quinn, Washington, DC, filed the brief, for amici curiae.

Before: SILBERMAN, SENTELLE, and ROGERS, Circuit Judges.

Opinion for the court by Circuit Judge ROGERS.

Concurring opinion by Circuit Judge SENTELLE.

ROGERS, Circuit Judge:

This appeal presents the question whether a non-elected labor organization can serve as a miners' representative at a non-unionized mine under the Federal Mine Safety and Health Amendments Act of 1977 (the "Act"). Petitioner Kerr-McGee Coal Corporation seeks review of a decision by the Federal Mine Safety and Health Review Commission requiring Kerr-McGee to recognize the United Mine Workers of America and two of its employees as miners' representatives. Kerr-McGee contends that unions and other third parties may not serve as miners' representatives unless a majority of miners has appointed them as a collective bargaining agent under the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. (as amended) (1988) ("NLRA"), since any other interpretation would create "significant problems counterproductive to health and safety." In view of the broad grant of authority to the Secretary of Labor, however, the interpretation of the Act proposed by the Secretary and adopted by the Commission does not conflict with the language of the statute or its legislative history and is therefore "reasonably defensible." Simpson v. Federal Mine Safety and Health Review Comm'n, 842 F.2d 453, 458 (D.C.Cir.1988). Finally, Kerr-McGee's reliance on Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992), is misplaced in view of the fact that Congress has determined the appropriate accommodation between mine owners' property interests and the safety objectives of the Act. Accordingly, we deny the petition for review.

I.

The Federal Mine Safety and Health Amendments Act of 1977, ¹ which Congress enacted "to promote safety and health in the mining industry," ² vests broad authority in the Secretary of Labor to promulgate regulations governing the mining industry and to investigate and remedy safety concerns. ³ Under Sec. 103(a) of the Act, the Secretary is to make "frequent" inspections of mines, including periodic visits "(1) [to] obtain[ ], utiliz[e], and disseminat[e] information relating to health and safety conditions, the causes of accidents, and the causes of diseases and physical impairments originating in such mines[, and] (2)[to] gather[ ] information with respect to mandatory health or safety standards." 30 U.S.C. Sec. 813(a). In addition, each year the Secretary must make at least two unannounced inspections of each surface mine for the purpose of "(3) determining whether an imminent danger exists, and (4) determining whether there is compliance" with the statutes and regulations that govern mines. Id.

In order to encourage miner awareness of health and safety concerns, Congress provided for miner participation in the inspection process. ⁴ Thus, Sec. 103(f) of the Act confers "walkaround rights" on designated representatives of the miners:

Subject to regulations issued by the Secretary, ... a representative authorized by his miners shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection ... for the purpose of aiding such inspection and to participate in pre- or post-inspection conferences held at the mine.

30 U.S.C. Sec. 813(f). Miners' representatives may also participate in other procedures designed to address health and safety concerns. ⁵

The Act contemplates non-employee third parties serving as "miners' representatives." The statute provides only that the representative must be "authorized by his miners" and that any "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...." Id. By regulation, however, the Secretary has defined "miners' representative" to include "[a]ny person or organization which represents two or more miners ... for the purposes of the Act...." 30 C.F.R. Sec. 40.1(b)(1) (1993).

Of significance here, the regulations also provide that after receiving notice that two or more miners have appointed a representative, the mine operator is required to post the designation on the mine's bulletin board. Id. Sec. 40.4. Under the Act, if the mine operator violates statutory or regulatory requirements, the Secretary shall issue a citation and may recommend civil penalties of up to $50,000. 30 U.S.C. Secs. 814(a), 815(a), 820(a) (1988 & Supp. IV 1992). If the mine operator fails to abate the violation within the deadline set by the Secretary, the Secretary may fine the operator up to $5,000 per day that the violation continues. Id. Sec. 820(b). The Secretary acted under this provision of the Act in issuing the citation challenged in the instant appeal.

Kerr-McGee owns and operates the Jacobs Ranch Mine, a non-unionized surface coal mine in Campbell County, Wyoming. In July, 1990, seven miners employed at the mine designated the United Mine Workers of America ("UMWA") and two of its employees as their miners' representative. Prior to the designation of the UMWA, there had never been a miners' representative at the Jacobs Ranch Mine. The parties agree that one of the UMWA miners' representatives had relocated to Wyoming "for the purpose of unionizing the coal miners in the Powder River Basin, including the miners at the Jacobs Ranch Mine."

The UMWA subsequently mailed copies of the designation form to the Jacobs Ranch Mine and to the Mine Safety and Health Administration ("MSHA") office in Denver, Colorado. ⁶ Kerr-McGee officials at the mine decided not to post the designation form. After receiving a complaint that Kerr-McGee had violated 30 C.F.R. Sec. 40.4 by failing to post the form, ⁷ a MSHA coal mine inspector visited the mine and showed a copy of the complaint to the Manager of Administration. When the Jacobs Ranch Mine repeated its unwillingness to post the form, the inspector issued a citation under 30 U.S.C. Sec. 814(a). ⁸ Kerr-McGee refused to comply with the abatement order, and the inspector issued an order for failure to abate the citation, which Kerr-McGee contested to the Commission.

Before a Commission administrative law judge ("ALJ"), Kerr-McGee argued that neither the Act nor the regulations required it to recognize the UMWA as a miners' representative because the UMWA was neither a Jacobs Ranch Mine employee nor an official collective bargaining representative at the mine. The ALJ disagreed, finding that Kerr-McGee had violated 30 C.F.R. Sec. 40.4 by refusing to post the designation-of-miners form. Kerr-McGee Coal Corp. v. Secretary of Labor, Mine Safety and Health Review Admin., 13 F.M.S.H.R.C. 1889 (1990). The ALJ ruled that, consistent with Utah Power & Light Co. v. Secretary of Labor, 897 F.2d 447 (10th Cir.1990), absent a showing of abuse, the Act and regulations place no restrictions on who may act as a miners' representative. 13 F.M.S.H.R.C. at 1903-05. As a result, the fact that the UMWA was not a collective bargaining agent of the Jacobs Ranch miners did not prevent it from acting as a miners' representative for purposes of the Act. Further, the ALJ rejected Kerr-McGee's argument that, given the UMWA's intent to unionize the mine, its use of the miners' representative designation constitutes per se abuse of the rights and privileges accorded safety representatives under the Act. The ALJ suggested that an abuse of the Act would occur if, after entering mine property in its role as a miners' representative, the UMWA "infiltrat[ed] working areas to enlist members, distribute literature, purloin confidential ... records, etc." Id. at 1905. Absent proof of such individual instances of abuse, however, the UMWA could act as a miners' representative. The Commission affirmed the ALJ's decision in all respects. Kerr-McGee Coal Corp. v. Secretary of Labor, Mine Safety and Health Admin., 15 F.M.S.H.R.C. 352 (1993).

II.

Kerr-McGee contends that the Commission acted arbitrarily and unreasonably in adopting the Secretary's position that the Act and regulations allow non-elected labor unions to act as miners' representatives. The UMWA cannot qualify as a miners' representative at the Jacobs Ranch Mine, Kerr-McGee maintains, because the Act and its legislative history contemplate direct involvement by miners, not unions, and the UMWA would use its designation to further its organizational goals rather than the safety objectives embodied in the Act. In addition, Kerr-McGee maintains, the Secretary's interpretation creates unnecessary conflicts between the Act and Kerr-McGee's basic property rights to keep union organizers off of its property and out of its records. Hence, Kerr-McGee argues that even if the Act and...