The Answer Isn’t Obvious And Would Likely Surprise Anyone Who’s Not Familiar With The Mining Industry.
By Brian Hendrix
What is a miners’ representative? Are they selected, elected, designated or authorized? How? By whom? Are they affiliated with a union or represent union members? A miners’ representatives must at least be an experienced miner, right? Currently employed as a miner at the mine in question? Are they compensated for their time? By the mine operator? By a union? Is there a limit on the number of miners representatives per mine? Does the mine operator have a role to play in the designation of miners’ representatives?
These are some of the most common questions about miner’ representatives that I see. Many of the answers aren’t obvious and would likely surprise anyone who’s not familiar with the mining industry, the Federal Mine Safety and Health Act and MSHA. So, here’s a short primer on miners’ representatives.
We’ll start with the most basic question: What is a miners’ representative? Congress, in its infinite wisdom, created the role in 1977. Section 103(f) of the Federal Mine Safety and Health Act provides in part that:
“a representative authorized by his miners shall be given an opportunity to accompany [MSHA] during the physical inspection of any [mine] . . . for the purpose of aiding such inspection and to participate in pre- or post-inspection conferences held at the mine. Such 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 made under this subsection. [If MSHA] determines that more than one representative from each party would further aid the inspection, [MSHA] can permit each party to have an equal number of such additional representatives. However, only one such representative of miners who is an employee of the operator shall be entitled to suffer no loss of pay during the period of such participation under the provisions of this subsection. Compliance with this subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of this chapter.”
30 U.S.C. § 813(f). In the 2013 version of MSHA’s Guide for Miners’ Representatives (which is readily available online and worth a read), MSHA provided a more succinct description of the position or role:
[a] miners’ representative is any person, group or organization designated by two or more miners to represent their interests during health and safety enforcement processes at their mine.
MSHA has also promulgated a regulation on the “Representative of Miners,” 30 C.F.R. Part 40. It lists the requirements for a miners’ representative and establishes the procedure by which a miner’s representative is designated by two or miners and recognized by MSHA.
What Does That Mean?
Per MSHA’s regulations and as interpreted by the Commission and the courts, it means that, if more than one miner at a mine authorizes someone to serve as their representative, that person my serve as the “miners’ representative” at that mine and may accompany and participate in MSHA inspections and investigations there.
To be recognized by MSHA as a miners’ representative, the “representative of miners” – not the miners or the mine operator – must file certain information with the “District Manager for the district in which the mine is located” and “[c]oncurrently” provide a copy of that information to the mine operator. 30 C.F.R. § 40.2. Specifically, the representative of miners must provide MSHA with:
- The miners’ representative’s contact information or “if the representative is an organization” the organization’s contact information and “the title of the official or position, who is to serve as the representative.”
- The mine and mine operator where the individual will serve as a miners’ representative.
- A copy of the document evidencing the designation of the representative of miners.
- “A statement that the person or position named as the representative of miners is the representative for all purposes of the Act; or if the representative’s authority is limited, a statement of the limitation.”
- “The names, addresses, and telephone numbers, of any representative to serve in his absence.”
- 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.
- A statement certifying that all information filed is true and correct followed by the signature of the representative of miners.
30 C.F.R. § 40.3. That’s it for the procedure. A miners’ representative is authorized or designated, not elected, and it only takes two miners to designate a miners’ representative. The mine operator plays no role and has little to no say in this in this process. If two or more miners designate an individual to serve as a miners’ representative and if that individual provides MSHA with the requisite information, he or she may serve as a miners’ representative.
Neither the mine operator nor other miners at a mine are entitled to know who authorized the individual to serve as a miners’ representative. MSHA will not disclose the identity of the miners who designated that individual to serve as a miners’ representative.
As MSHA explains in its 2013 Guide for Miners’ Representatives, “MSHA has a convenient advance filing option that preserves miner confidentiality. There is no requirement that the identities of the designating miners be generally known or published” and miners’ representatives “may omit any information that identifies the miners on the copy sent to the operator . . . MSHA will not tell the operator the identity of those miners if there is a risk of harm to them.”
As for qualifications, the bar is very low. Neither MSHA nor the Act requires a miners’ representative to possess any mining experience or be currently employed as a miner at the mine where they will serve as a miners’ representative or any other mine.
According to MSHA, if a miners’ representative “travel[s] frequently, or more than five consecutive days with an inspection party,” he or she must complete “initial miner training under 30 CFR 46 or 30 CFR 48.”
Otherwise, the representative’s “right to travel with inspectors on mine property is limited if you do not have the required training,” although he or she “may participate as a representative in other ways.”
What About Unions or Union Mines?
As MSHA puts it, “MSHA does not automatically recognize a union representative as a miners’ representative. Every miners’ representative, including union representatives, must meet MSHA’s requirements by filing the proper paperwork with the District Manager.” At a mine where the workforce is not represented by a union, a union member (who’s not employed at the mine) may be designated as a miners’ representative at the mine. This has occurred at non-union mines after accidents and before and after an election to certify or decertify a union as the bargaining representative at the mine.
That’s miners’ representatives 101. The difference between a good miners’ representative and a bad one is a topic for another column.
Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at [email protected].