Tuesday, July 25, 2006

Union reps can accompany Sago mine inspectors

Union representatives should be allowed to accompany investigators exploring the damaged Sago mine, even though the Sago miners did not belong to a union, a 4th U.S. Circuit Court of Appeals decision recently held.

"The question in this case is not about mine safety or whether an investigation of the Sago Mine explosion should take place, or even whether the mine operator and the miners can have representatives present during the investigation," the court said. "Rather, the issue reduces essentially to a matter of protocol, centering on how the interests of the mine operator and the miners are to be represented during an investigation of an explosion."

In the 21-page decision, issued June 28, a three-judge panel ruled that because the surviving miners designated members of the United Mine Workers of America as their representatives, those union officials must be allowed to accompany the mine owner's staff during inspection of the mine.

The court noted in its conclusion that although the parties are arguing over procedural details, both sides are trying to hedge their bets in anticipation of future litigation. "At this point, the driving currents of this appeal relate more to the parties’ collateral and future concerns about the investigation than the investigation itself. The mine operator worries that the UMWA will use its role as a miners’ representative to advance its created purpose of organizing miners, and the Mine Safety Administration and UMWA worry that Wolf Run will retaliate against two miners who have designated the UMWA to represent their interests during the investigation. In the absence of direct evidence to support these concerns at this point, however, they remain only speculative."

Wolf Run Mining Company operates the Sago Mine in Upshur County, West Virginia. After the December explosion that killed 12 men and critically injured another, Wolf Run, the Mine Safety and Health Administration, and the United Mine Workers union clashed about how the investigation should move forward.

Federal law allows both the company's representatives and union representatives to tag along in any investigation conducted by the Secretary of Labor, which oversees the Mine Safety and Health Administration. 92 of the 97 Sago Miners picked co-workers to be their representative, but 2 miners asked that the UMWA represent them.

When those union reps showed up on the day the investigation began, Wolf Run refused to allow them onto the premises. The Secretary of Labor, which oversees the Mine Health and Safety Administration, sought a preliminary injunction in West Virginia district court. The lower court judge granted it, and the company appealed.

Wolf Run argued that the Mine Act and federal labor laws, together, prohibit a union from representing workers when an attempt at unionizing has failed in the past, and that the union needs a majority of the workers to agree to let the union represent them.

But the Fourth Circuit disagreed.

"[T]hese are arguments that should be advanced to Congress to modify the Mine Act and the regulations promulgated under it. As now written, the Act does not, in any way, restrict who may serve as a miners’ representative, and the regulations under the statute define "miners’ representative" as "any person or organization which represents two or more miners." 30 C.F.R. § 40.1 (emphasis added). Thus, it appears that while an organization may exist to represent miners for collective bargaining, nothing on the face of the Mine Act or its regulations bars such an organization from being designated as a miners’ representative for mine inspections and investigations when at least two miners make that designation."

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