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INTERNATIONAL UNION, UMW v. MARTIN

March 2, 1992

INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, Plaintiff,
v.
LYNN M. MARTIN, et al., Defendants.


Gesell


The opinion of the court was delivered by: GERHARD A. GESELL

MEMORANDUM

Plaintiff, a union that represents mine workers, challenges a decision of the Mine Safety and Health Administration ("MSHA") to exclude union representatives from certain interviews conducted during an investigation by MSHA of a mine explosion. The issues are before the Court on cross-motions for summary judgment that have been fully briefed. There are no material facts in dispute.

 Background

 On February 27, 1991, an explosion occurred at the Golden Eagle Mine near Weston, Colorado, in which eleven miners were injured. Shortly afterward, MSHA initiated an investigation into the explosion. During the course of its investigation, MSHA conducted an underground inspection at the mine with union and company representatives present, and later, without noticing a formal hearing, interviewed management and union members at a Holiday Inn in the nearby town of Trinidad, Colorado. Most of the witnesses interviewed at the Holiday Inn appeared without subpoena and were sworn; testimony was recorded and transcribed by a court reporter; and individuals interviewed were allowed to bring with them a representative of their choice. The interviews, which were conducted by federal and state officials, were private. Union and company officials who were not there representing a witness were excluded. When certain union witnesses whom MSHA had requested to attend declined to be interviewed in this fashion, MSHA subpoenaed their testimony and they chose to appear and testify at the informal interviews.

 On previous occasions, MSHA had almost always allowed plaintiff's officials to participate in post-accident investigation interviews. Indeed, plaintiff union asserts that when Congress enacted the statute, it contemplated full union participation at all stages of such investigations. The union seeks declaratory and injunctive relief requiring MSHA to afford the union access to and participation in this type of MSHA investigative proceeding. Defendants contend that interviews such as those involved in this case may be held in whatever manner MSHA desires and that no statutory provision prohibits the practice attacked by plaintiff.

 Discussion

 For the purpose of making any investigation of any accident or other occurrence relating to health or safety in a coal or other mine, the Secretary may, after notice, hold public hearings, and may sign and issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and administer oaths.

 30 U.S.C. § 813(b) (emphasis added). As part of such investigations, the statute contemplates that the Secretary will generally make actual physical inspections of the mine; and it provides that, when doing so, the Secretary must allow union representatives to be present:

 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) of this section, for the purpose of aiding such inspection and to participate in pre- or post- inspection conferences held at the mine.

 30 U.S.C. § 813(f).

 It is clear from the statute that Congress intended for the union representatives to have a role in helping the Secretary assure that mines are operated in a safe manner. Indeed, MSHA has recognized over the years the value of having union representatives participate in investigations. However, nothing in the statute requires union participation in interviews -- like those at issue in this case -- which are not conducted pursuant to formal hearings or as an integral part of an immediate physical inspection of the mine.

 The statute gives the agency the discretion to conduct formal, public hearings as part of its investigations. See 30 U.S.C. § 813(b). But nothing in the statute requires that investigations outside the mine be conducted solely as public hearings. Nor does the statute provide that any particular type of interview outside the mine pursuant to an investigation triggers a requirement that a public hearing be convened. The mere fact that statements taken during an interview are transcribed does not convert an interview, at which attendance is limited to a few government officials, into a public hearing. *fn1" By the terms of the statute, an interview becomes a public hearing when the agency opens it to the public. *fn2" Here, the agency did not open the interview to the public, because it determined that the hearing would be more effectively conducted in private. The Court finds nothing in the statute to invalidate that determination or practice.

 Union and company representatives are given special access to the Secretary's investigations in certain circumstances, specifically, when the Secretary or her representative is physically inspecting the mine. There is no contention before the Court that plaintiff was barred from the physical inspection of the mine or the discussions "at the mine," as is required explicitly by the statute. 30 U.S.C. § 813(f). The interviews at issue took place later at some distance from the mine, in a different town. Whether that other town was close enough to be considered "at the mine" is a potential source of some debate, and the Court declines to define "at" for purposes of the statute in terms of any specific number of feet or miles. *fn3" It is enough that, in this case, the interviews at the mine were attended by union representatives and the interviews in dispute, the ones at the Holiday Inn, were not in, or even in the immediate proximity of, the mine. The statute imposes no clear limitations beyond that, and thus the agency had discretion to determine whether or not it wanted to admit union and company officials to the interviews at the Holiday Inn. Moreover, the reasons MSHA gave for excluding the officials were not so unreasonable that, even if it had been the practice of MSHA in the past to admit such officials to ...


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